United States v. Kenneth Van Aalsburg

MEMORANDUM

Defendant Kenneth Van Aalsburg pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252 (a)(4)(B). He appeals from the district court’s application of certain sentencing enhancements. We conclude that the sentencing enhancements were properly applied and, thus, affirm.

1. Defendant first contends that the district court erred by applying a “preponderance of the evidence” standard because the disputed sentencing enhancements had a disproportionate effect on his sentence. United States v. Jordan, 256 F.3d 922, 928 (9th Cir.2001). We hold that any error was harmless beyond a reasonable doubt because clear and convincing evidence supported the disputed enhancements. See United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir.2000) (stating harmless error standard).

2. We review de novo the district court’s interpretation of the Sentencing Guidelines, and we review for clear error the district court’s findings of fact. United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.2008). “We have noted an intracircuit conflict regarding whether we review application of the Guidelines to the facts for an abuse of discretion or de novo.” United States v.…