United States v. Herman Grigsby

AMENDED MEMORANDUM

Herman Grigsby appeals his conviction of one count of attempted travel in foreign commerce with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423 , and one count of possession of child pornography in violation of 18 U.S.C. § 2252 (A)(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

1. The district court did not err by increasing Grigsby’s offense level by four levels pursuant to U.S.S.G. § 2G2.2(b)(4) based on a finding that Grigsby possessed an image that depicted an adult male engaged in anal penetration with a minor male. A single image is sufficient to trigger the § 2G2.2(b)(4) enhancement. See United States v. Holt, 510 F.3d 1007, 1011 (9th Cir.2007). In the district court, Grigsby “agree[d]” that the photograph qualified for an enhancement under United States v. Rearden, 349 F.3d 608, 615 (9th Cir.2003), and declined the court’s offer to conduct an evidentiary hearing on the issue. He now seeks to distinguish Rearden only on the ground that he lacked the mental state necessary for imposition of the enhancement. But this argument ignores application note 2 to U.S.S.G. § 2G2.2, which makes clear that…