United States of America v. Michael Eugene Hollis

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL EUGENE HOLLIS,
Defendant - Appellant.
No. 09-10215
D.C. No. 1:08-CR-00276-OWW
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Michael Eugene Hollis appeals from the 210-month sentence imposed
following his guilty-plea conviction for receipt or distribution of material involving
the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(2). We have
FILED
APR 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-10215 2
jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate Hollis’ sentence and
remand for resentencing.
Hollis contends that the district court clearly erred when it applied a five-
level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), for distributing
pornographic images “for the receipt, or expectation of receipt, of a thing of
value,” because there was no evidence in the record to support its finding that he
shared files in order to obtain any benefit. We agree that the record fails to
establish that Hollis distributed pornographic material in order to obtain faster
access to other pornographic images or any other benefit. See U.S.S.G.
§ 2G2.2(b)(3)(B) & cmt. n. 1; see also United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc) (explaining that it would be procedural error for a district
court to choose a sentence based on clearly erroneous facts). Accordingly, we
vacate Hollis’ sentence and remand for further findings consistent with this
opinion.
VACATED and REMANDED.

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