United States v. Albert Garza

MEMORANDUM

Albert Garza appeals his conviction and sentence on child pornography charges. In a concurrently filed opinion we address his competency argument. Here, we address his remaining challenges:

The district court did not plainly err by entering judgment on both counts of his conviction in violation of the Double Jeopardy Clause. This case is materially indistinguishable from United States v. Teague, 722 F.3d 1187, 1192 (9th Cir.2013). Because we reject this challenge to Garza’s conviction, we also reject the dependent challenge to Garza’s sentence.

Nor did the district court plainly err by awarding Garza a two-level “distribution” enhancement under § 2G2.2(b)(3)(F) or by not giving Garza a two-level reduction under § 2G2.2(b)(l) for, essentially, not distributing. A district court can’t commit plain error when there is no binding precedent to guide it and the circuits are split. United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). Garza admits that there was no binding precedent on this issue and that the circuits are split. Accordingly, Garza can’t show plain error.

Finally, we accept one of Garza’s challenges to special condition of…