NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30165

Plaintiff-Appellee, D.C. No. 2:17-cr-00216-JCC v.

RICHARD D. BLICK, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted December 12, 2019 Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT,** District Judge.

Defendant-Appellant Richard Blick timely appeals his jury convictions and

sentences for possession and receipt of child pornography. Blick argues his

convictions for receipt and possession, a lesser-included offense of receipt,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. violated the Double Jeopardy Clause of the Fifth Amendment. Next, Blick argues

the prosecutor committed misconduct by referring to Blick as a “predator” during

its rebuttal argument in an effort to inflame the jury and arouse its passion against

him, violating his Sixth Amendment Due Process right to a fair trial. Finally, Blick

challenges the district court’s application of a five-level enhancement for an

offense involving at least 600 images. We have jurisdiction under 28 U.S.C.

§ 1291. Upon our review, we affirm.

On February 22, 2018, a grand jury returned a superseding indictment

charging Blick in Count One with possession of child pornography for images

discovered on a Samsung tablet, in violation of 18 U.S.C. § 2252(a)(4)(B) and

(b)(2), and in Count Two with receipt of child pornography regarding images

“other than those described in Count [One],” in violation of 18 U.S.C. § 2252(a)(2)

and (b)(1). Following a trial, the jury convicted Blick on both counts. The district

court imposed concurrent custodial sentences of 180 months on Count One and

240 months on Count Two, followed by a lifetime term of supervision.

We review issues not raised in the district court for plain error. United

States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir. 2012); United States v.

Davenport, 519 F.3d 940, 943 (9th Cir. 2008). “We review ‘the district court’s

interpretation of the Sentencing Guidelines de novo, the district court’s application

of the Sentencing Guidelines to the facts of th[e] case for abuse of discretion, and

2 the district court’s factual findings for clear error.’” United States v. Lambert, 498

F.3d 963, 966 (9th Cir. 2007) (alteration in original) (citation omitted).

Blick’s convictions for receipt and possession of child pornography do not

violate the Double Jeopardy Clause because they are not based on the same

conduct. See Davenport, 519 F.3d at 947; United States v. Johnston, 789 F.3d 934,

938 (9th Cir. 2015); United States v. Overton, 573 F.3d 679, 697 (9th Cir. 2009);

United States v. Schales, 546 F.3d 965, 977 (9th Cir. 2008). Blick does not deny

that the Superseding Indictment clearly charged separate conduct. See Schales,

546 F.3d at 980. Additionally, law enforcement officers testified at trial which

images were found on specific devices. And although the marshalling instruction

for Count Two did not specify that the receipt charge related to devices “other than

those described in Count [One],” the instruction for possession made clear that

Count One related specifically to images discovered on the Samsung tablet.

Further, the instructions for both counts informed the jury that it “must be

unanimous as to which visual depiction (or visual depictions) satisfies all of the

elements of th[at particular] crime.” Thus, the district court did not plainly err in

instructing the jury in this case.

Likewise, the prosecutor’s single reference to Blick as a “predator” during

rebuttal does not constitute plain error requiring us to overturn his convictions. See

Del Toro-Barboza, 673 F.3d at 1151–52. The prosecutor referred to Blick as a

3 “predator” when describing the way he befriended a minor victim to obtain

sexually explicit photographs of her. Blick has not demonstrated the prosecutor’s

statement was “designed to appeal to the passions, fears and vulnerabilities of the

jury” rather than to further its theory of the case. United States v. Weatherspoon,

410 F.3d 1142, 1149 (9th Cir. 2005). Moreover, Blick has failed to show how the

remark substantially prejudiced his trial. See United States v. Koon, 34 F.3d 1416,

1445 (9th Cir. 1994), aff’d in part, rev’d in part, 518 U.S. 81 (1996).

Finally, the district court correctly applied the five-level enhancement of the

U.S. Sentencing Guidelines Manual § 2G2.2(b)(7)(D) (U.S. Sentencing Comm’n

2016) [hereinafter U.S.S.G.], to the facts of this case. See United States v. Hymas,

780 F.3d 1285, 1289 (9th Cir. 2015); see also U.S.S.G. § 6A1.3(a) (permitting a

district court to rely on any information that has “sufficient indicia of reliability to

support its probable accuracy”). At trial, law enforcement officers testified that

they discovered more than a thousand images and more than eight hundred videos1

of child pornography. Thus, the court did not clearly err in finding that the offense

involved more than 600 images of child pornography and did not abuse its

discretion in applying the enhancement. See Lambert, 498 F.3d at 966.

AFFIRMED.

1 Each video is considered to contain seventy-five images. U.S.S.G. § 2G2.2 cmt. n.6(B).

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