United States v. Tommy Hanson ( 2009 )

FILED
NOV 24 2009
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30298
Plaintiff - Appellee, D.C. No. 5:05-CR-00003-JWS-1
v.
MEMORANDUM *
TOMMY HANSON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Submitted November 2, 2009 **
Seattle, Washington
Before: ALARCÓN, FERNANDEZ and CLIFTON, Circuit Judges.
Tommy Hanson appeals his conviction and sentence for possession of child
pornography under 18 U.S.C. § 2252(a)(4)(B). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
The district court did not err in denying Hanson’s motion to suppress. Nyna
Fleury did not act “as an ‘instrument or agent’ of the government” when she went
on Hanson’s computer and discovered child pornography. United States v. Young,
153 F.3d 1079, 1080 (9th Cir. 1998) (quoting Walter v. United States, 447 U.S.
649, 656 (1980)). Fleury’s discovery, which she volunteered to police, provided
probable cause to support the search warrants executed on February 12, February
25, and June 7, 2005. Hanson consented to the computer search executed after his
arrest, which consisted only of Officer Villers moving a computer mouse with
Hanson’s permission and seeing images of child pornography in plain view on the
screen.
Hanson made his post-arrest statements to police voluntarily, and these
statements did not violate his right to counsel. Nothing in the record suggests even
the slightest police coercion or vulnerability on Hanson’s part that might indicate
that his statements “were not the product of a rational intellect and a free will.”
Mincey v. Arizona, 437 U.S. 385, 398 (1978) (internal quotation marks omitted).
Hanson validly waived his Miranda rights in writing after his arrest. Hanson’s
right to counsel was not violated. Hanson’s mention—over two months before his
arrest— that he “wanted to look at what he was charged with and talk to a lawyer”
was not a valid invocation of his right to counsel. Hanson made the statement long
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before he was in custody. Cf. United States v. Wright, 962 F.2d 953, 955 & n.2 (9th
Cir. 1992) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991)) (right to
counsel cannot be invoked before defendant is in custody).
The district court did not err in denying Hanson’s motion to withdraw his
guilty plea because of ineffective assistance of counsel. The court correctly
concluded that counsel’s advice about the sadistic or masochistic enhancement was
not “a gross mischaracterization of the likely outcome,” United States v. Jeronimo,
398 F.3d 1149, 1155 (9th Cir. 2005); that Hanson’s contention that counsel failed
to explain “relevant conduct” was not credible; and that the failure to obtain an
additional sentencing point reduction was traceable to Hanson’s own decision, not
his attorney’s. None of Hanson’s ineffective assistance arguments amounts to a
“fair and just reason for requesting the withdrawal” of his guilty plea. Fed. R.
Crim. P. 11(d)(2)(B).
Hanson’s sentence is not one of the “exceedingly rare” sentences that is so
“grossly disproportionate to the severity of the crime” that it is prohibited by the
Eighth Amendment. Rummel v. Estelle, 445 U.S. 263, 271, 272 (1980).
AFFIRMED.
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