FILED NOT FOR PUBLICATION JAN 09 2012
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50094
Plaintiff - Appellee, D.C. No. 2:08-cr-01332-PSG-1
v. MEMORANDUM * HERMAN CANDLER GRIGSBY,
Defendant - Appellant.
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted August 5, 2011 Pasadena, California
Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District Judge.**
Herman Grigsby appeals his conviction of one count of attempted travel in
foreign commerce with intent to engage in illicit sexual conduct, in violation of 18
U.S.C. § 2423, and one count of possession of child pornography in violation of 18
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald M. Whyte, Senior United States District Judge for the Northern District of California, sitting by designation. U.S.C. § 2252(A)(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
1. The district court did not err by increasing Grigsby’s offense level by
four levels pursuant to U.S.S.G. § 2G2.2(b)(4) based on a finding that Grigsby
possessed an image that depicted an adult male engaged in anal penetration with a
minor male. A single image is sufficient to trigger the § 2G2.2(b)(4) enhancement.
See United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007). In the district
court, Grigsby “agree[d]” that the photograph qualified for an enhancement under
United States v. Rearden, 349 F.3d 608, 615 (9th Cir. 2003), and declined the
court’s offer to conduct an evidentiary hearing on the issue. He now seeks to
distinguish Rearden only on the ground that he lacked the mental state necessary
for imposition of the enhancement. But this argument ignores application note 2 to
U.S.S.G. § 2G2.2, which makes clear that the provision “applies if the offense
involved material that portrays sadistic or masochistic conduct or other depictions
of violence, regardless of whether the defendant specifically intended to possess,
access with intent to view, receive, or distribute such materials.”
2. Grigsby waived his challenge to the two-level increase under U.S.S.G. §
2G2.2(b)(6) for offenses involving “use of a computer or an interactive computer
service” by stipulating to this enhancement in his plea agreement. Moreover, the
2 provision applies because Grigsby used WebTV, which is “a service or system that
provides access to the Internet.” 47 U.S.C. § 230(f)(2); U.S.S.G. § 2G2.2, app. n.1.
3. The district court did not plainly err by failing to specify whether it
employed a preponderance of the evidence or a clear and convincing standard of
proof in applying the § 2G2.2(b)(4) and § 2G2.2(b)(6) enhancements because the
government made the required factual showing under either standard. Thus
Grigsby has failed to demonstrate that any error “affected [his] substantial rights”
by “affect[ing] the outcome of the district court proceedings.” Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)).
4. The district court correctly applied the multi-count enhancement pursuant
to U.S.S.G. § 3D. Grigsby’s argument that the court incorrectly considered the
possession count to be more “serious” than the attempted travel count reads a
moral connotation into this section of the Guidelines, when the “serious” finding
refers to the relative offense level of different groups of counts. See U.S.S.G. §
3D1.4(a)-(c).
5. The district court did not abuse its discretion by choosing not to reduce
Grigsby’s criminal history score under U.S.S.G. § 4A1.3(b)(1). While the
provision gives district courts the discretion to depart downward, doing so is not
3 mandatory, and given that Grigsby’s arrest for driving under the influence came 21
days before his arrest for the current offenses and that his blood alcohol
concentration was 0.25, the district court’s decision was not unreasonable.
6. Although Grigsby raised policy arguments about flaws in the child
pornography section of the Guidelines before his sentencing hearing, he did not
object at sentencing to the district court’s failure to address these arguments.
Therefore we review this claim for plain error. See United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 n.3 (9th Cir. 2010). Grigsby contends that the
Guidelines illogically result in harsher punishment for possession of child
pornography than for crimes involving actual contact with minors. The district
court did not err in rejecting this argument. Rather, it made clear that Grigsby’s
attempted foreign travel for the purposes of an illicit sexual encounter with a child
demonstrated that his crime was more dangerous than possession of pornography.
The district court acknowledged that its sentence was “lengthy” and “harsh,” and
indeed it imposed a 121-month sentence that exceeded the government’s
recommended 97-month sentence.
7. The within-Guidelines sentence imposed by the district court is not
substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). The reasonableness of the district court’s sentence is
4 adequately supported by Grigsby’s attempt to engage in an actual contact crime,
his admitted pedophilia, and decades of collecting child pornography.
8. The district court did not err by requiring that Grigsby submit to drug
testing as a condition of supervised release pursuant to 18 U.S.C. § 3583(d). This
condition is permissible in light of the extensive evidence of Grigsby’s current
alcohol and past drug abuse, and the connection between his alcoholism and the
offenses for which he was convicted. See 18 U.S.C. § 3583(d); United States v.
Sales, 476 F.3d 732, 735-36 (9th Cir. 2007). Grigsby’s reliance on United States v.
Betts, 511 F.3d 872 (9th Cir. 2007), is misplaced. There we vacated a no-alcohol
condition where there was no evidence of any kind of substance abuse, and
distinguished cases such as this one where there is “some evidence of prior alcohol,
drug, or prescription medicine abuse.” Id. at 879.
9. The district court did not abuse its discretion by imposing a condition of
supervised release pursuant to 18 U.S.C. § 3583(d) requiring that Grigsby submit
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FILED NOT FOR PUBLICATION JAN 09 2012
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50094
Plaintiff - Appellee, D.C. No. 2:08-cr-01332-PSG-1
v. MEMORANDUM * HERMAN CANDLER GRIGSBY,
Defendant - Appellant.
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted August 5, 2011 Pasadena, California
Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District Judge.**
Herman Grigsby appeals his conviction of one count of attempted travel in
foreign commerce with intent to engage in illicit sexual conduct, in violation of 18
U.S.C. § 2423, and one count of possession of child pornography in violation of 18
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald M. Whyte, Senior United States District Judge for the Northern District of California, sitting by designation. U.S.C. § 2252(A)(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
1. The district court did not err by increasing Grigsby’s offense level by
four levels pursuant to U.S.S.G. § 2G2.2(b)(4) based on a finding that Grigsby
possessed an image that depicted an adult male engaged in anal penetration with a
minor male. A single image is sufficient to trigger the § 2G2.2(b)(4) enhancement.
See United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007). In the district
court, Grigsby “agree[d]” that the photograph qualified for an enhancement under
United States v. Rearden, 349 F.3d 608, 615 (9th Cir. 2003), and declined the
court’s offer to conduct an evidentiary hearing on the issue. He now seeks to
distinguish Rearden only on the ground that he lacked the mental state necessary
for imposition of the enhancement. But this argument ignores application note 2 to
U.S.S.G. § 2G2.2, which makes clear that the provision “applies if the offense
involved material that portrays sadistic or masochistic conduct or other depictions
of violence, regardless of whether the defendant specifically intended to possess,
access with intent to view, receive, or distribute such materials.”
2. Grigsby waived his challenge to the two-level increase under U.S.S.G. §
2G2.2(b)(6) for offenses involving “use of a computer or an interactive computer
service” by stipulating to this enhancement in his plea agreement. Moreover, the
2 provision applies because Grigsby used WebTV, which is “a service or system that
provides access to the Internet.” 47 U.S.C. § 230(f)(2); U.S.S.G. § 2G2.2, app. n.1.
3. The district court did not plainly err by failing to specify whether it
employed a preponderance of the evidence or a clear and convincing standard of
proof in applying the § 2G2.2(b)(4) and § 2G2.2(b)(6) enhancements because the
government made the required factual showing under either standard. Thus
Grigsby has failed to demonstrate that any error “affected [his] substantial rights”
by “affect[ing] the outcome of the district court proceedings.” Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)).
4. The district court correctly applied the multi-count enhancement pursuant
to U.S.S.G. § 3D. Grigsby’s argument that the court incorrectly considered the
possession count to be more “serious” than the attempted travel count reads a
moral connotation into this section of the Guidelines, when the “serious” finding
refers to the relative offense level of different groups of counts. See U.S.S.G. §
3D1.4(a)-(c).
5. The district court did not abuse its discretion by choosing not to reduce
Grigsby’s criminal history score under U.S.S.G. § 4A1.3(b)(1). While the
provision gives district courts the discretion to depart downward, doing so is not
3 mandatory, and given that Grigsby’s arrest for driving under the influence came 21
days before his arrest for the current offenses and that his blood alcohol
concentration was 0.25, the district court’s decision was not unreasonable.
6. Although Grigsby raised policy arguments about flaws in the child
pornography section of the Guidelines before his sentencing hearing, he did not
object at sentencing to the district court’s failure to address these arguments.
Therefore we review this claim for plain error. See United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 n.3 (9th Cir. 2010). Grigsby contends that the
Guidelines illogically result in harsher punishment for possession of child
pornography than for crimes involving actual contact with minors. The district
court did not err in rejecting this argument. Rather, it made clear that Grigsby’s
attempted foreign travel for the purposes of an illicit sexual encounter with a child
demonstrated that his crime was more dangerous than possession of pornography.
The district court acknowledged that its sentence was “lengthy” and “harsh,” and
indeed it imposed a 121-month sentence that exceeded the government’s
recommended 97-month sentence.
7. The within-Guidelines sentence imposed by the district court is not
substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). The reasonableness of the district court’s sentence is
4 adequately supported by Grigsby’s attempt to engage in an actual contact crime,
his admitted pedophilia, and decades of collecting child pornography.
8. The district court did not err by requiring that Grigsby submit to drug
testing as a condition of supervised release pursuant to 18 U.S.C. § 3583(d). This
condition is permissible in light of the extensive evidence of Grigsby’s current
alcohol and past drug abuse, and the connection between his alcoholism and the
offenses for which he was convicted. See 18 U.S.C. § 3583(d); United States v.
Sales, 476 F.3d 732, 735-36 (9th Cir. 2007). Grigsby’s reliance on United States v.
Betts, 511 F.3d 872 (9th Cir. 2007), is misplaced. There we vacated a no-alcohol
condition where there was no evidence of any kind of substance abuse, and
distinguished cases such as this one where there is “some evidence of prior alcohol,
drug, or prescription medicine abuse.” Id. at 879.
9. The district court did not abuse its discretion by imposing a condition of
supervised release pursuant to 18 U.S.C. § 3583(d) requiring that Grigsby submit
to searches and seizures of computers and related devices. “Subjecting computers
and other devices able to access the Internet to monitoring, search and seizure is
critical to preventing [Grigsby] from viewing or obtaining child pornography.”
United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir. 2008). This condition of
supervised release is sufficiently narrow because it applies only to those devices
5 connected to the Internet. See United States v. Quinzon, 643 F.3d 1266, 1272-74
(9th Cir. 2011) (analyzing an identically-worded condition of supervised release).
10. Because Grigsby failed to object to the 2,000 feet residency condition,
we review for plain error. United States v. Daniels, 541 F.3d 915, 928 (9th Cir.
2008). Though the district court failed to articulate the reason for imposing the
2,000 feet restriction, some form of residency restriction was appropriate, given the
crimes to which he pleaded guilty, and the district court did not plainly err by
imposing the one recommended by the Probation Office. Cf. United States v.
Rudd, – F.3d –, 2011 WL 5865897 (9th Cir. Nov. 23, 2011) (finding an abuse of
discretion in the imposition of 2,000 feet restriction over objection without
articulating a sufficient basis for the distance chosen).
AFFIRMED.