United States v. Albert Hernandez, Jr.

MEMORANDUM

Albert Silva Hernandez, Jr. (Hernandez) appeals his jury conviction and sentence for eight counts of sexually exploiting a child, in violation of 18 U.S.C. § 2251 (a).

1. Hernandez contends that the government impermissibly changed its theory of prosecution during rebuttal argument by deviating from the jury instruction that focused on the word “persuaded.” However, the indictment and the evidence presented at trial provided Hernandez adequate notice of the charges against him. See Morrison v. Estelle, 981 F.2d 425, 428-29 (9th Cir.1992). Therefore, we reject Hernandez’s Sixth Amendment argument.

2. Under plain error review, there was no double counting. See United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir.2013). Hernandez was charged and convicted under a federal statute, not the state companion statute. Because the federal statute does not contain the abuse of trust and sexual contact enhancements as elements, there was no double counting. See United States v. Kiefer, 760 F.3d 926, 931-32 (9th Cir.2014).

3. Hernandez contends that the district court erred in applying the distribution enhancement set forth in U.S.S.G. § 2G2.1(b)(3) because he “did not…