United States v. Fernando Esparza

MEMORANDUM

Petitioner Fernando Esparza appeals his sentence for distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The facts of this case are known to the parties, and we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291 .

I

Esparza argues the district court erred in applying a five-level enhancement under U.S.S.G. § 2G2.2(b)(6)(D). The district court applied such enhancement after determining that Esparza’s possession of roughly 1,150 images of child pornography was “part of the same course of conduct or common scheme or plan” as his distribution offense. See U.S.S.G. § lB1.3(a)(2). We are satisfied that the enhancement was supported by the record.

For conduct to be “part of the same course of conduct or common scheme or plan” within the meaning of Guidelines § lB1.3(a)(2), “[tjhere must be ‘sufficient similarity and temporal proximity to reasonably suggest that repeated instances of criminal behavior constitute a pattern of criminal conduct.’ ” United States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992) (quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir. 1990)).

The district court correctly reasoned that distribution and…