US v Roybal

12-10-2013 Oregon:

US v Roybal

Appellant Roger Allen Roybal ("Roybal") pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). Based on its holding that Roybal's act of showing child pornography to an eleven-year-old victim qualified as "distribution," the district court

• (1) applied a six-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(D), and
• (2) declined to apply a two-level reduction under U.S.S.G. § 2G2.2(b)(1).

On appeal, Roybal contends that his act of "showing" child pornography does not qualify as "distribution" under the sentencing guidelines. Without deciding whether an act of "showing" child pornography to a third party can itself constitute "distribution," we hold that additional findings made by the district court warrant the six-level enhancement.

At sentencing, the district court imposed a supervised-release condition requiring that Roybal participate in a sex-offender treatment program and "abide by the policies of the program, to include physiological testing." The district court made no specific mention of penile plethysmograph testing.

Roybal contends on appeal that penile plethysmograph testing may not be imposed as a requirement of his supervised release. As the district court did not make the requisite findings, we hold that penile plethysmograph testing may not be imposed.