United States v. Peterson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4326
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRY DALE PETERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-118)
Submitted: September 16, 2005 Decided: October 14, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jill E. M. HaLevi, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a written plea agreement, Harry Dale Peterson
entered a conditional plea of guilty to one count of knowingly
possessing images of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (2000). He was sentenced to twenty-seven months’
imprisonment followed by a three-year term of supervised release.
Peterson’s counsel filed a brief raising the issue of whether
Peterson’s sentence is unconstitutional in light of Blakely v.
Washington, 542 U.S. 296 (2004). Although Peterson’s attorney
admits additional claims have no merit, she also raises the issues
of whether the court erred by denying motions to suppress evidence,
to dismiss the indictment, and to depart downward from the
sentencing guidelines, under Anders v. California, 386 U.S. 738(1967).
We first consider whether the court properly denied
Peterson’s motion to suppress the images found on Peterson’s
computer. This court reviews the legal conclusions regarding a
motion to suppress de novo. United States v. Kitchens, 114 F.3d
29, 31 (4th Cir. 1997). There are no factual disputes regarding
the search. For a search warrant to be supported by probable
cause, a nexus must be established between the place searched and
the alleged criminal activity. United States v. Lalor, 996 F.2d
1578, 1582 (4th Cir. 1993).
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Moreover, “[a] valid search warrant may issue only upon
allegations of ‘facts so closely related to the time of the issue
of the warrant as to justify a finding of probable cause at that
time’” United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir.
1984). “The vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit." Id. at 1336.
Furthermore, other circuits have found that child pornographers
keep their contraband for a long time and have upheld searches
conducted much longer than five days after the information upon
which the search was based became known. See United States v.
Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997) (upholding search based
on information ten months old). Finally, we note the South
Carolina law that requires computer technicians to disclose
materials containing child pornography does not confer law
enforcement status upon the technicians. United States v. Jarrett,
338 F.3d 339, 344-45 (4th Cir. 2003). After thoroughly reviewing
the record, we conclude the court properly denied Peterson’s motion
to suppress.
We next consider whether the court properly denied a
motion to dismiss the indictment based on the First and Fifth
Amendments. The Supreme Court has held that the viewing of
photographs of naked children is an unprotected activity because of
the harm inflicted on the children. Ashcroft v. Free Speech
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Coalition, 535 U.S. 234, 245-51 (2002). The Supreme Court has
further held that the protections of the First Amendment do not
extend to child pornography where the criminal statute focuses on
the well-being of the children. See New York v. Ferber, 458 U.S.
747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990). We conclude
therefore the court properly found 18 U.S.C. § 2252A(a)(5)(B)
constitutional.
We next address the issue of whether the court properly
denied Peterson’s motion for downward departure. This court has no
authority to review a refusal to grant a motion to depart, unless
the district court erroneously believed that it did not have the
authority to depart. United States v. Underwood, 970 F.2d 1336,
1338 (4th Cir. 1992). Because we conclude the district court was
aware it had the authority to depart, we decline to review the
court’s denial of his motion.
Finally, Peterson’s attorney argues Peterson’s sentence
was unconstitutional under Blakely, the precursor to United States
v. Booker, 543 U.S. , 125 S. Ct. 738 (2005). Booker applies to
all cases pending on direct review at the time it was decided. 125
S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328
(1987)). Because Peterson did not raise his sentencing challenge
in the district court, his constitutional claims under Blakely and
Booker are reviewed for plain error. United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). In Booker, the Supreme Court held
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that Blakely applied to the federal sentencing guidelines and that
the mandatory manner in which the federal sentencing guidelines
required courts to impose sentencing enhancements based on facts
found by the court by a preponderance of the evidence violated the
Sixth Amendment. 125 S. Ct. at 746, 750.
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If it imposes a
sentence outside the guideline range, the district court must state
its reasons for doing so. Hughes, 401 F.3d at 546. This remedial
scheme applies to any sentence imposed under the mandatory
guidelines, regardless of whether the sentence violates the Sixth
Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,
J., opinion of the Court)).
In his plea agreement, Peterson stipulated to his
sentencing range and further agreed to be sentenced in conformity
with the federal sentencing guidelines. We conclude Peterson
agreed to the imposition of the sentencing enhancements, and
therefore, the court did not violate the Sixth Amendment under
Booker.
The next issue is whether the court erred by applying the
sentencing guidelines as mandatory and whether Peterson can meet
his burden of demonstrating the error affected his substantial
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rights. See United States v. White, 405 F.3d 208, 223 n.10 (4th
Cir. 2005) (citing Hughes, 401 F.3d at 551); see also United States
v. Olano, 507 U.S. 725, 734-35 (1993) (under plain error test,
defendant bears burden of proving that error affected substantial
rights). After thoroughly reviewing the record, we conclude
Peterson cannot meet this burden.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Peterson's judgment. This court requires counsel to inform her
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests a
petition be filed, but counsel believes such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel's motion must state that a
copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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