United States v. Christian Cardenas

FILED
NOT FOR PUBLICATION MAY 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50111
Plaintiff - Appellee, D.C. No. 2:08-cr-01331-ODW-1
v.
MEMORANDUM *
CHRISTIAN CARDENAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted May 7, 2012
Pasadena, California
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.
Christian Cardenas (Cardenas) appeals his conviction for possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Cardenas contends that
there was no probable cause to support the issuance of a search warrant, that the
affidavit supporting the search warrant contained stale facts, and that the good faith
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
exception did not apply. Additionally, Cardenas seeks a remand to conform the
written judgment to the court’s oral pronouncement of sentence.
1. The search warrant affidavit contained information regarding the
crime committed, that Cardenas likely committed the crime, and that
evidence pertaining to the crime was likely to be found at his residence.
Contrary to Cardenas’s contention, the affidavit met the “fair probability”
standard. Chism v. Washington State, 661 F.3d 380, 389 (9th Cir. 2011), as
amended.
2. The facts contained in an affidavit must be temporally related to
issuance of the search warrant. See United States v. Lacy, 119 F.3d 742, 745
(9th Cir. 1997). Whether that information is stale depends largely on the
“nature of the criminal activity and property sought.” Id. (citation omitted).
If there is sufficient basis to believe that the evidence to be seized is still on
the premises, the information in the affidavit is not stale. See id. at 746.
Because it is not unusual for information to remain stored on a
computer hard drive for substantial periods of time, the information in the
affidavit was not stale. See United States v. Kennedy, 643 F.3d 1251, 1253
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n.2 (9th Cir. 2011) (explaining that images accessed online remain on the
end-user’s computer even after deleted).
3. When a search warrant affidavit establishes “at least a colorable
argument for probable cause,” and law enforcement relied upon the search
warrant in “an objectively reasonable manner,” good faith reliance exists.
United States v. Krupa, 658 F.3d 1174, 1179 (9th Cir. 2011) (citations
omitted). Because the search warrant on its face contained specific and
detailed information regarding the items to be seized, the location of the
items, the name of the person alleged to have committed the crime, and a
description of the suspected crime, the district court did not err in its
determination that the executing officers relied on the warrant in good faith.
See id.
4. If the oral pronouncement of a sentence is unambiguous, the oral
pronouncement controls when there is a difference between the oral
pronouncement and the written judgment. See United States v. Kuo, 620
F.3d 1158, 1163 (9th Cir. 2010). During its pronouncement of Cardenas’s
sentence, the district court stated that automatic updates by software
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manufacturers were exempt from the condition that Cardenas could not
modify his computer software. Because the written judgment did not
contain this stated exemption, we remand this case to the district court for
the limited purpose of conforming the written judgment to the oral
pronouncement of sentence. See United States v. Goddard, 537 F.3d 1087,
1093 (9th Cir. 2008).
AFFIRMED and REMANDED for the district court to conform
the written judgment to the oral pronouncement of sentence.
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