FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF No. 20-10339 AMERICA, Plaintiff-Appellee, D.C. Nos. 2:18-cr-00303-JCM-EJY-1 v. 2:18-cr-00303-JCM-EJY DUSTIN RANDALL, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted December 10, 2021 San Francisco, California Filed May 20, 2022 Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Bumatay; Dissent by Judge Wardlaw 2 UNITED STATES V. RANDALL SUMMARY * Criminal Law Answering two questions of first impression in this circuit, the panel affirmed a sentence imposed on Dustin Randall for distributing and receiving child pornography in violation of 18 U.S.C. § 2252A. The panel held that to be eligible for a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which applies to offenders who distribute child pornography “in exchange for any valuable consideration,” the defendant need not actually receive the “valuable consideration,” and that the district court therefore did not err in applying the enhancement. The panel held that the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a), mandates a $5,000 assessment for each of a defendant’s counts of conviction—not a single assessment per defendant in the case. The panel explained that § 3014(a) works in conjunction with 18 U.S.C. § 3013, to which § 3014 is closely related in terms of text, purpose, and statutory structure; and observed that every circuit court has interpreted § 3013’s assessment on a person “convicted of an offense” to apply separately to each count of conviction rather than to each offender. The panel wrote that the ordinary meaning of § 3014’s “convicted of an offense” also supports a separate assessment per conviction. The panel concluded that the district court therefore did not err in * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. RANDALL 3 assessing a fine of $5,000 for each of Randall’s two counts of conviction. Judge Wardlaw dissented from the portion of the majority opinion concerning the § 3014(a) assessment. She wrote that the majority’s conclusion that § 3014(a) imposes a per-count assessment is based on a flawed reading of § 3013, an earlier enacted statute that differs markedly from § 3014 in both text and structure. She wrote that whether the court should impose the § 3014 assessment turns on the nature of the offense—not the number of offenses of conviction. The panel rejected Randall’s remaining objections to his sentence in a concurrently filed memorandum disposition. COUNSEL Amy B. Cleary (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant. Elham Roohani (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Christopher Chiou, Acting United States Attorney; United States Attorney’s Office, Las Vegas, Nevada; for Plaintiff-Appellee. 4 UNITED STATES V. RANDALL OPINION BUMATAY, Circuit Judge: Dustin Randall was convicted of …
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