NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-10072

Plaintiff-Appellee, D.C. No. 1:19-cr-00012-1 v. MEMORANDUM* MICHAEL LOUIS MCCARRON, Defendant-Appellant.

Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding

Argued and Submitted January 19, 2022 Honolulu, Hawaii Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.

Michael McCarron appeals his conviction and sentence for attempted enticement of a minor and attempted transfer of obscene material to a minor. As the facts are known to the parties and set forth in our concurrently filed opinion,1 we repeat them only as necessary to explain our decision.

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

III

The district court’s instructional error regarding the community standard for obscenity does not require reversal. “Where, as here, the defendant failed to object to the jury instruction before the district court, we review for plain error whether the instruction misstated the law.” See United States v. Robertson, 895 F.3d 1206, 1218 (9th Cir. 2018). A “national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” United States v. Kilbride, 584 F.3d 1240, 1254 (9th Cir. 2009). Under Kilbride, the district court did err in instructing the jury to use a local community, rather than a “national community,” standard for obscenity. But McCarron does not and cannot explain how applying the “national community” standard would have changed the result. Accordingly, he fails to carry his plain-error burden of demonstrating the error affected his substantial rights. See Olano, 507 U.S. at 734.

IV

The district court did not plainly err when it declined to give McCarron an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1(a).2 Application Note 2 of § 3E1.1(a) provides, “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” U.S.S.G. § 3E1.1, note 2. Indeed, it is the “rare situation[]” where a defendant “clearly demonstrate[s] an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.” Id. McCarron’s scattered record statements of “contrition and remorse,” as McCarron describes them, fail to convince us that this case presents such a “rare situation[].” See id.

The district court also did not plainly err in imposing an enhancement under U.S.S.G. § 2G3.1(b)(1)(E), which applies when “the offense involved distribution to a minor that was intended to persuade, induce, entice, [or] coerce, . . . the minor to engage in prohibited sexual conduct.” McCarron argues that the evidence was insufficient to show he attempted to persuade, induce, entice, or coerce a minor— an argument we have already rejected in our concurrently filed opinion.

V

McCarron’s argument that Standard Condition 12 is unconstitutionally vague is foreclosed by our decision in United States v. Gibson. See 998 F.3d 415, 422–23 (9th Cir. 2021).

VI

The judgment of the district court is AFFIRMED.