United States v. Jeffrey Bard

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 17-10471
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10471

Plaintiff-Appellee, D.C. No. 4:16-cr-01474-RM-JR-1 v.

JEFFREY EMSING BARD, AKA Jeffrey MEMORANDUM* Bard,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Submitted December 17, 2018** San Francisco, California

Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,*** Judge.

Jeffrey Emsing Bard appeals his sentence following his conviction for

possession and distribution of child pornography. He challenges the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. court’s application of certain adjustments under the Sentencing Guidelines

(“Guidelines”), as well as the imposition of lifetime supervision to follow his

release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), and affirm the sentence.

1. The district court correctly started with the applicable Guidelines

range under U.S.S.G. § 2G2.2 as “the initial benchmark” to aid its decision. See

United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011) (quoting Gall v.

United States, 552 U.S. 38, 49 (2007)). As we have previously held, the

Guidelines for child pornography are not categorically unreasonable, despite a

history of frequent congressional action. Id. And, critically, “district courts are not

obligated to vary from the child pornography Guidelines on policy grounds if they

do not have, in fact, a policy disagreement with them.” Id.

Similarly, the statistics cited by Bard do not call into question the framework

of the various enhancements that applied in his case. We have noted the unique

harm to victims of computer usage in these crimes, such as easing the retrieval,

distribution, and perpetuation of child pornography via the digital medium. See

United States v. Kiefer, 760 F.3d 926, 931 (9th Cir. 2014). By contrast, the

number of images poses a distinct harm proportionate to culpability. See United

States v. Acosta, 619 F.3d 956, 962 (8th Cir. 2010) (“[E]nhancing a defendant’s

sentence for the number of illegal items with which he was involved is a common

2 practice throughout the Guidelines and is not unreasonable.”). Despite the frequent

imposition of both enhancements with these offenses, each serves a different

purpose from the other and from the base offense, and are not “impermissible

double counting.” See United States v. Gallegos, 613 F.3d 1211, 1216 (9th Cir.

2010).

2. The district court correctly applied the various adjustments when

calculating Bard’s sentence under the Guidelines. Bard pleaded guilty to

“knowingly distribut[ing] the child pornography.” Accordingly, he was not

eligible for a reduction under § 2G2.2(b)(1), which would have required that his

conduct be limited to “receipt or solicitation.” For the same reason, the

enhancement under § 2G2.2(b)(3)(F) applied because Bard “knowingly engaged in

distribution.”

The district court properly rejected Bard’s request for a role reduction as a

minor participant. The adjustment would require that Bard show he was

“substantially less culpable than the average participant in the criminal activity,” §

3B1.2, comment. (n.3(A)), and that “more than one participant was involved,” §

3B1.2, comment. (n.2). But, as Bard acknowledged in his objections, “the only

known assessors of the material were government agents,” who are explicitly

excluded from this analysis. See U.S.S.G. § 3B1.1, comment. (n.1).

3. Bard’s sentence was not objectively unreasonable. After calculating

3 the Guidelines range of 151 to 188 months, the Court varied downward for a

sentence of 108 months. District courts are not free to vary from the Guidelines

“simply based on an individualized determination that they yield an excessive

sentence in a particular case.” Henderson, 649 F.3d at 963. Instead, the court

carefully considered the § 3553(a) factors, as it was required to do, and varied

substantially downward from the Guidelines sentence. Bard’s sentence, based on

the nature and circumstances of the offense, his age, and his employment record,

was not substantively unreasonable.

4. Finally, the district court did not abuse its discretion by imposing

lifetime supervision. The court considered the comments Bard made to the court,

as well as the findings of the sex offense specific evaluation. It concluded that

Bard is “a long way from rehabilitation and from working on [his] rehabilitation.”

In light of the Guidelines’ recommendation that supervised release be imposed for

life for sexual offenses, U.S.S.G. § 5D1.2(b)(2), p.s., the district court did not

abuse its discretion when it evaluated Bard’s case and imposed a term of

supervision within the Guidelines recommendation.

AFFIRMED.