United States v. Michael McCarron

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2022
• Docket: 20-10072
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10072

Plaintiff-Appellee, D.C. No. 1:19-cr-00012-1

v. MEMORANDUM* MICHAEL LOUIS MCCARRON,

Defendant-Appellant.

Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding

Argued and Submitted January 19, 2022 Honolulu, Hawaii

Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.

Michael McCarron appeals his conviction and sentence for attempted

enticement of a minor and attempted transfer of obscene material to a minor. As

the facts are known to the parties and set forth in our concurrently filed opinion,1

we repeat them only as necessary to explain our decision.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 In the concurrently filed opinion, we address McCarron’s other arguments concerning his conviction and sentence. See United States v. McCarron, --- F.4th - --- (9th Cir. 2022). I

Special Agent Albo’s challenged testimony, which the Government

concedes was improper, is not a basis for reversal. Because McCarron “failed to

raise a specific [‘ultimate issue’] objection to the testimony at trial . . ., we review

the district court’s decision . . . only for plain error.” See United States v. Campos,

217 F.3d 707, 712 (9th Cir. 2000). On plain error review, “[i]t is the defendant

rather than the Government who bears the burden of persuasion with respect to

prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993). McCarron fails to

carry such burden in view of the overwhelming evidence against him. Moreover,

we reject McCarron’s argument that Albo’s testimony “suggested that McCarron

had confessed elsewhere in the video” of his non-custodial interview. Albo was

not asked if McCarron confessed, and the line of questioning did not imply that he

had.

II

Because McCarron intentionally withdrew his Rule 106 objection to the

video excerpts of his non-custodial interview, he waived any review. See United

States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir. 1995) (“[W]ithdrawal of an

objection is tantamount to a waiver of an issue for appeal.”). In any event, we are

satisfied from our review of the entire video and of the excerpts played at trial that

the Government’s editing was neither misleading nor harmful.

2 III

The district court’s instructional error regarding the community standard for

obscenity does not require reversal. “Where, as here, the defendant failed to object

to the jury instruction before the district court, we review for plain error whether

the instruction misstated the law.” See United States v. Robertson, 895 F.3d 1206,

1218 (9th Cir. 2018). A “national community standard must be applied in

regulating obscene speech on the Internet, including obscenity disseminated via

email.” United States v. Kilbride, 584 F.3d 1240, 1254 (9th Cir. 2009). Under

Kilbride, the district court did err in instructing the jury to use a local community,

rather than a “national community,” standard for obscenity. But McCarron does

not and cannot explain how applying the “national community” standard would

have changed the result. Accordingly, he fails to carry his plain-error burden of

demonstrating the error affected his substantial rights. See Olano, 507 U.S. at 734.

IV

The district court did not plainly err when it declined to give McCarron an

acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1(a).2 Application

Note 2 of § 3E1.1(a) provides, “This adjustment is not intended to apply to a

2 McCarron resists plain error review by pointing out that he adopted the initial presentence report, which “included [the] reduction.” But he subsequently also adopted, without objection, the final presentence report, which no longer recommended the reduction.

3 defendant who puts the government to its burden of proof at trial by denying the

essential factual elements of guilt.” U.S.S.G. § 3E1.1, note 2. Indeed, it is the

“rare situation[]” where a defendant “clearly demonstrate[s] an acceptance of

responsibility for his criminal conduct even though he exercises his constitutional

right to a trial.” Id. McCarron’s scattered record statements of “contrition and

remorse,” as McCarron describes them, fail to convince us that this case presents

such a “rare situation[].” See id.

The district court also did not plainly err in imposing an enhancement under

U.S.S.G. § 2G3.1(b)(1)(E), which applies when “the offense involved distribution

to a minor that was intended to persuade, induce, entice, [or] coerce, . . . the minor

to engage in prohibited sexual conduct.” McCarron argues that the evidence was

insufficient to show he attempted to persuade, induce, entice, or coerce a minor—

an argument we have already rejected in our concurrently filed opinion.

V

McCarron’s argument that Standard Condition 12 is unconstitutionally

vague is foreclosed by our decision in United States v. Gibson. See 998 F.3d 415,

422–23 (9th Cir. 2021).

VI

The judgment of the district court is AFFIRMED.