UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-5001

SIRISH KUMAR NANDA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-97-28)

Argued: March 1, 1999

Decided: May 11, 1999

Before WILKINSON, Chief Judge, and HAMILTON and
WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Michael Sacks, SACKS & SACKS, Norfolk,
Virginia, for Appellant. Arenda L. Wright Allen, Assistant United
States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Sirish Kumar Nanda appeals his conviction and 33-month sentence
for knowing receipt of materials depicting minors engaged in sexually
explicit conduct in violation of 18 U.S.C.A. §§ 2252(a)(2) (West
Supp. 1999), 2256 (West Supp. 1999), and 2 (West 1969). Nanda
contends that the district court erred in denying his motion to suppress
statements he made to federal agents and his motion to suppress evi-
dence seized from his computer, in admitting into evidence under
Fed. R. 404(b) additional photographs of child pornography and
records of computer chat-room dialogues with purported minors
found on his computer, and in denying his motion for a mistrial based
upon improper comments by the prosecutor during closing argument.
With regard to his sentence, Nanda argues that the district court erred
in enhancing his offense level for receipt of materials involving pre-
pubescent minors or minors under the age of twelve, in denying him
a minimal role adjustment, in enhancing his offense level for obstruc-
tion of justice based upon perjury at the suppression hearing, in deny-
ing him a downward adjustment for acceptance of responsibility, and
in denying him a downward departure for diminished capacity and for
voluntary disclosure. Finding no error, we affirm.

I.

On the morning of August 27, 1996, FBI Special Agents Stacey
Perkins, James Talley, and John Harley went to the home of
Defendant-Appellant Sirish Kumar Nanda to serve him a subpoena
for the trial of Craig Zucker and to interview him as a possible wit-
ness for that trial. Zucker had just been indicted on eleven counts of
distribution of child pornography in Chicago, and Nanda was identi-
fied as one of the individuals who had received an e-mail message
containing an electronic file with child pornography pictures entitled
"hot_yung.zip" from Zucker. Nanda agreed to speak with the agents.

                    2
Special Agent Perkins served the subpoena on Nanda and subse-
quently interviewed him. At a pretrial suppression hearing, Perkins
testified that she first explained to Nanda the substance of the sub-
poena, then handed him the group of pictures contained in the
hot_yung.zip file and asked him if he recognized any of them.
According to Perkins, Nanda replied that he did, and upon Perkins's
request, marked the pictures he recognized with an"X." Out of the 33
pictures in the file, Nanda marked 10 of them.

According to Perkins's testimony, during the course of their con-
versation Nanda stated that he had an America Online (AOL)
account, he paid for it with his Visa card, he learned how to download
the child pornography pictures from an ex-girlfriend named Leena,
and he had downloaded child pornography a dozen times. Perkins
stated that during their conversation, she never indicated that Nanda
would not be prosecuted for downloading and receiving child pornog-
raphy. Following her interview with Nanda, Perkins asked Nanda
whether he would consent to allow the FBI agents to take his com-
puter towers (hard drives) back to the office to see if the pictures he
had marked with an "X" could be found. Perkins presented Nanda
with a search form for the two computer towers and read the form
over with him. Nanda signed the form, as well as Special Agent Har-
ley, who witnessed Nanda's signature, and Special Agent Talley.
Once Nanda signed the form, the FBI seized the computers. A subse-
quent analysis of the files on the computer by FBI Computer Special-
ist Terry Swindell revealed that five of the photos that Nanda had
identified were on the computer towers. Perkins also testified at the
suppression hearing that Swindell found 700 other child pornography
images and records of four sexually oriented chat-room dialogues
with individuals who represented themselves as minors on Nanda's
hard drive.

On cross-examination, Perkins stated that at the time she served the
trial subpoena on Nanda he was not a subject of investigation, she
told him that it was against the law to download child pornography,
and she never promised him immunity from prosecution. Perkins also
stated that she concluded that Nanda should be a subject of criminal
investigation and prosecution after learning of the hundreds of child
pornography pictures on his computer a few weeks after her interview

                    3
with Nanda. According to Perkins, at no time was Nanda restrained
or told he could not leave his house.

Nanda presented a markedly different account of the agents' visit
at the suppression hearing. Nanda testified that Perkins assured him
from the beginning that he was not in trouble and reassured him to
that effect throughout their conversation. Nanda stated that he told
Perkins that he would be very happy to help her in any way that he
could. When the conversation turned toward his computer, Nanda
asked whether the agents had a search warrant; in response, one of the
male agents told him in a threatening manner that if they had to get
a search warrant, they would return with twenty officers in uniform
and cars with flashing lights and would search his entire house. At
one point, Nanda received a call from his secretary telling him that
he was late for a meeting. According to Nanda's testimony, he asked
the agents whether they could complete the search in the afternoon,
and Agent Perkins replied that they had to do the search right now.
Nanda agreed to let the agents look at his computer. Following a brief
look at his computer by the agents, Agent Perkins told Nanda that
they were taking his computer for further analysis and gave him a
consent form to sign. According to Nanda, one of the male agents told
him that they would take his computer whether or not he signed the
consent form. Nanda acknowledged signing the consent form, but
said that he felt he had no choice but to give up his computer.

On cross-examination, Nanda disputed Perkins's account of their
conversation regarding child pornography. Nanda denied that his ex-
girlfriend had shown him how to download child pornography and
denied telling Perkins that he had downloaded child pornography
approximately twelve times. Nanda also stated that he did not mark
any of the photographs Perkins had shown him. Nanda again
acknowledged signing the consent form, which indicated that he had
a right to refuse to consent, but claimed that he did not read it prior
to signing it.

After being indicted for knowing receipt of the hot_yung.zip file,
which contained five photographs of minors involved in sexually
explicit conduct, Nanda moved to suppress, as coerced, statements he
made to the FBI agents and all evidence seized from his computer.
Nanda also moved to exclude noncharged material found on the com-

                    4
puter from being presented at trial. At the suppression hearing, the
district court received testimony from Perkins and Nanda, as recited
above, before continuing the matter until later. The Government then
filed a notice of intent to introduce as Rule 404(b) evidence, in addi-
tion to the hundreds of images of children engaged in sexually
explicit conduct found on Nanda's computer, records of four sexually
oriented chat-room dialogues with purported minors found on the
computer.

When the district court resumed consideration of Nanda's motions,
it received testimony from Special Agents Talley and Harley that cor-
roborated Special Agent Perkins's account of events and testimony
from Nanda's ex-fiancee that corroborated Nanda's account of events.
Based upon the testimony of these five witnesses, the district court
concluded that Nanda voluntarily consented to his conversations with
the FBI agents, voluntarily agreed to have the agents look at his com-
puter, and voluntarily consented to the execution of the search form.
The district court therefore denied Nanda's motion to suppress his
statements to the FBI agents and his motion to suppress the evidence
gathered from his computer based upon improper force or involuntari-
ness. The district court also permitted the Government to introduce
the records of four sexually oriented chat-room dialogues with pur-
ported minors and twelve additional child pornography photographs,
all found on Nanda's computer, pursuant to Rule 404(b) of the Fed-
eral Rules of Evidence. Based upon the totality of the evidence intro-
duced by the Government, the jury convicted Nanda of Count One of
the indictment: knowing receipt of materials depicting minors
involved in sexually explicit conduct in violation of 18 U.S.C.A.
§§ 2252(a)(2) (West Supp. 1999), 2256 (West Supp. 1999), and 2
(West 1969).1

At sentencing, Nanda's base offense level was set at fifteen pursu-
_________________________________________________________________
1 Count Two of the indictment charged that upon conviction for violat-
ing 18 U.S.C.A. § 2252 (West Supp. 1999), Nanda shall forfeit to the
United States, inter alia, any and all property used or intended to be used
in the commission of the violation, including but not limited to his com-
puter. Because Nanda voluntarily consented to the forfeiture of the com-
puter following the jury's guilty verdict, the jury did not deliberate on
this count.

                    5
ant to the child pornography guideline. See U.S. Sentencing Guide-
lines Manual § 2G2.2 (Nov. 1993).2 Because Nanda possessed
sexually explicit material involving prepubescent minors or minors
under the age of twelve, Nanda's base offense level was increased an
additional two levels. See U.S.S.G. § 2G2.2(b)(1). The district court
denied Nanda's request for a four-level reduction for minimal role.
See U.S.S.G. § 3B1.2(a). The district court assessed a two-level
enhancement for obstruction of justice based upon perjury at the sup-
pression hearing. See U.S.S.G. § 3C1.1. The district court denied
Nanda's request for a two-level reduction for acceptance of responsi-
bility. See U.S.S.G. § 3E1.1(a). Finally, the district court denied
Nanda's request for a downward departure for diminished capacity,
see U.S.S.G. § 5K2.13, and for voluntary disclosure, see U.S.S.G.
§ 5K2.16. With an adjusted offense level of 19 and a criminal history
category of I, Nanda's guideline range was 30-37 months. See
U.S.S.G. Ch. 5, Pt. A. The district court sentenced Nanda to 33
months imprisonment and three months supervised release. On
December 15, 1997, Nanda filed a timely notice of appeal.

Nanda advances several arguments on appeal. First, he argues that
the district court erred in denying his motion to suppress statements
he made to federal agents in the course of their interview and his
motion to suppress evidence found during a search of his computer
on the ground that he was promised that he would not suffer any
adverse consequences by cooperating, thus rendering his consent
involuntary. Next, Nanda argues that the district court erred in admit-
ting twelve additional images of child pornography and four sexually
oriented chat-room dialogues with purported minors found on his
computer as evidence of other crimes, wrongs, or acts under Fed. R.
Evid. 404(b), because this evidence was neither relevant nor reliable.
Next, Nanda argues that the district court erred in refusing to declare
a mistrial after the prosecutor made statements at closing argument
that improperly made reference to Nanda's failure to testify, that mis-
stated the nature and character of the offense for which Nanda was
charged, and that improperly appealed to the jury's emotions and pas-
sions.
_________________________________________________________________
2 Although Nanda was sentenced in 1997, the 1993 version of the
Guidelines Manual was used pursuant to U.S.S.G.§ 1B1.11(b)(1).

                    6
With regard to his sentence, Nanda argues that the district court
erred in enhancing his offense level by two levels for receipt of mate-
rials involving prepubescent minors or minors under the age of twelve
because the Government failed to show that he intended to receive
such photographs and that any of the minors in question were actually
under twelve. Next, Nanda argues that the district court erred in not
granting him a four-level minimal role adjustment because he did not
forward the hot_yung.zip file to anyone, yet he received a harsher
sentence than the more culpable individuals in the child pornography
distribution scheme. Next, Nanda argues that the district court erred
in enhancing his offense level by two levels for obstruction of justice
based upon perjury at the suppression hearing because his false deni-
als were not material to the subject matter of the hearing, which was
whether he was subject to coercion or duress by the agents. Next,
Nanda argues that the district court erred in denying him a two-level
downward adjustment for acceptance of responsibility because he
demonstrated acceptance of responsibility by his failure to proffer any
testimony at trial regarding the demonstration of guilt, by statements
of contrition in the presentence report, and by the uncontradicted sen-
tencing testimony of three mental health professionals who had evalu-
ated Nanda and concluded that he had accepted responsibility for his
actions and was compliant with treatment efforts. Finally, Nanda
argues that the district court erred in rejecting his request for a down-
ward departure for diminished capacity and for voluntary disclosure
because the aforementioned testimony from the three mental health
professionals amply support his claim for diminished capacity and
because he voluntarily disclosed incriminating information regarding
the commission of the instant offense. We address each of these argu-
ments in turn.

II.

Nanda's first contention on appeal is that the district court erred in
denying his motion to suppress statements he made to the federal
agents in the course of their interview and his motion to suppress evi-
dence seized from his computer during their search. In particular,
Nanda argues that statements made by Perkins during the interview
impliedly promised him that he would not suffer any adverse conse-
quences by cooperating, thus rendering both his statements to the

                     7
agents and his consent to the search involuntary. Nanda's argument
raises two distinct issues that we address in turn.

A.

First, Nanda argues that his statements to the FBI agents were
involuntary and, therefore, inadmissible. This Court"must make an
independent determination on the issue of voluntariness, while
accepting the district court's findings of fact on the circumstances sur-
rounding the [statements] unless clearly erroneous." United States v.
Braxton, 112 F.3d 777, 781 (4th Cir. 1997) (en banc) (internal quota-
tion marks omitted). Deference to the district court's factual findings
are particularly warranted where the district court bases its findings
on the credibility of the witnesses. See United States v. Locklear, 829
F.2d 1314, 1317 (4th Cir. 1987) (per curiam).

Whether a defendant's statements are inadmissible because of
implied promises made by a government agent is a matter governed
by the Fifth Amendment. See Braxton, 112 F.3d at 780. A statement
is coerced if it was extracted by implied promises"however slight."
Hutto v. Ross, 429 U.S. 28, 30 (1976). "The proper inquiry is whether
the defendant's will has been overborne or his capacity for self-
determination critically impaired." Braxton , 112 F.3d at 780 (internal
quotation marks omitted). After hearing the testimony of Nanda and
the FBI agents, the district court determined that the agents did not
impliedly promise Nanda any immunity or leniency. Based on these
factual findings, which are not clearly erroneous, we conclude that
Nanda's statements to the agents were voluntary, and therefore admis-
sible, under the Fifth Amendment. The district court did not err in
denying Nanda's motion to suppress statements he made to the
agents.

B.

Next, Nanda argues that his consent to the search of his computer
was involuntary. Whether a defendant has freely and voluntarily con-
sented to a search is a factual determination by the district court that
this Court will reverse on appeal only if it is clearly erroneous. See
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en
banc). "[W]hen the lower court bases a finding of consent on the oral

                     8
testimony at a suppression hearing, the clearly erroneous standard is
particularly strong since the [court] had the opportunity to observe the
demeanor of the witnesses." Id. at 650-51 (internal quotation marks
omitted) (alteration in original).

Voluntary consent to a search is an exception to the Fourth Amend-
ment requirement of a search warrant. See Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). To determine whether a consent to search
is voluntary, we examine the totality of the circumstances surrounding
the consent. See Lattimore, 87 F.3d at 650. Factors that are appropri-
ate for the district court to consider include the characteristics of the
accused (such as age, maturity, education, intelligence, and experi-
ence) and the conditions under which the consent to search was given
(such as the officer's conduct, the number of officers present, and the
duration of the encounter). See id. Whether the accused knew he pos-
sessed a right to refuse to consent is a relevant factor, but the govern-
ment need not demonstrate that the defendant knew of his right to
refuse consent to prove that consent was voluntary. See id.

After hearing the testimony of Nanda and the FBI agents, the dis-
trict court concluded that the agents did not coerce Nanda into con-
senting to a search of his computer. The court found that Nanda was
an educated individual who possessed a Ph.D. in nuclear physics and
understood the purpose for which the agents were at his home. The
court also found that Nanda's purported fear of the agents was not
credible because it was belied by his eagerness to cooperate and his
volunteering of information to the agents that they did not have. The
court further noted that the interview took place at approximately 8:30
in the morning in Nanda's house and that Nanda was not a target of
the agents' investigation at the time. In sum, the district court rejected
Nanda's portrayal of his encounter with the agents as an "adversarial,
aggressive, combative atmosphere" in concluding that he freely con-
sented to the search. Based upon the deference this Court pays to
credibility determinations by the district court, see Lattimore, 87 F.3d
at 650-51, we cannot conclude that the district court's conclusion that
Nanda's consent to search was voluntary and its subsequent denial of
Nanda's motion to suppress the evidence found on his computer was
clearly erroneous.

                     9
III.

Next, Nanda argues that the district court erred in admitting the
Government's evidence of twelve additional images of child pornog-
raphy and records of four sexually oriented chat-room dialogues with
purported minors, all found on Nanda's computer, as evidence of
other crimes, wrongs, or acts. See Fed. R. Evid. 404(b). In particular,
Nanda argues that the photographs and chat-room talks were not
admissible because they were not reliable, and due to the inability of
the Government to pinpoint the dates of the photographs and the talks,
they were not relevant. This Court reviews a district court's determi-
nation of the admissibility of evidence under Federal Rule of Evi-
dence 404(b) for abuse of discretion. See United States v. Queen, 132
F.3d 991, 995 (4th Cir. 1997), cert. denied, 118 S. Ct. 1572 (1998).
A district court will not be found to have abused its discretion unless
its decision to admit evidence under Rule 404(b) was"arbitrary or
irrational." United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990).

Rule 404(b) permits evidence of other crimes, wrongs, or acts to
be introduced to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake. Fed. R. Evid. 404(b). This
Court has treated 404(b) as an inclusionary rule, excluding only evi-
dence that has no purpose other than to prove criminal disposition.
See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).
"[E]vidence is admissible under 404(b) if it is (1) relevant to an issue
other than character, (2) necessary, and (3) reliable." Id. (internal quo-
tation marks omitted). Moreover, under Fed. R. Evid. 403, relevant
evidence may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice. See United States v.
Bailey, 990 F.2d 119, 122 (4th Cir. 1993).

Nanda's primary defense during trial was that the Government
could not prove that he knowingly received the hot_yung.zip file. The
additional photographs and chat-room dialogues were relevant and
necessary because they tended to show Nanda's intent, knowledge,
and absence of mistake with regard to the hot_yung.zip file. See
United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988)
(holding that evidence of additional child pornography could be used
to show the defendant's intent and absence of mistake). This evidence
was reliable because it was found on the hard drive of Nanda's com-

                     10
puter, where the five photographs named in Count One of the indict-
ment also were found. Moreover, the relevance of the 404(b) evidence
was not substantially outweighed by the danger of unfair prejudice
under Fed. R. Evid. 403, particularly considering that the district court
limited the Government to twelve images out of the 700 that were
found on Nanda's computer and instructed the jury that the 404(b)
evidence could not be considered in determining whether Nanda actu-
ally performed the acts charged in the indictment: knowing and
unlawful receipt of the hot_yung.zip file and the photographs con-
tained therein. The district court, therefore, did not abuse its discre-
tion in admitting into evidence the additional photographs and chat-
room dialogues.

IV.

Nanda also challenges his conviction on the ground that the prose-
cution made prejudicial comments during closing argument. During
the Government's rebuttal following Nanda's closing argument, the
third-year law student assisting the U.S. Attorney made the following
statements:

           What the defense attorney would like you to believe is a
          lot of smoke because you notice he never put on any evi-
          dence, nor did he ever really show or rebut anything that
          was put on.

(J.A. at 557.)

           I think the defense attorney said you can only imagine
          what a conviction can do to a nuclear physicists[sic], and
          that's true, but I think you can imagine what exploitation
          can do to a child, a child that has pictures taken of that child
          and then spread all over the Internet.

(J.A. at 560.)

           Defense counsel started his opening argument out and
          said this is pretty serious indeed. I hope you would, as you
          go back and deliberate, realize this is serious business. The

                    11
          trading of these kind of images objectifies our children,
          whether they be your family or whether they be society.

(J.A. at 563.) Following each of these statements, the district court
sustained an objection from Nanda's counsel. Following the Govern-
ment's rebuttal, the district court immediately issued a curative
instruction that stated that the defendant was not obligated to call wit-
nesses or to put on any evidence, and that the jury could not consider
or draw an inference from the defendant's failure to testify or to pre-
sent evidence. The court also instructed the jury to confine its concern
to the charge for which the defendant was on trial. The court then
denied Nanda's motion for a mistrial based upon these improper com-
ments.

Nanda argues that the district court erred in not granting his motion
for a mistrial. In particular, Nanda argues that the first objectionable
statement improperly made reference to Nanda's failure to testify via
his reference to his failure to present any evidence to rebut the gov-
ernment's case. Nanda also asserts that the second and third objec-
tionable statements misstated the nature and character of the offense
for which Nanda was indicted and made improper appeals to the
jury's emotions and passions.

The "grant or denial of a motion for mistrial is within the sound
discretion of the trial court, and will not be overturned absent a clear
abuse of that discretion." United States v. Dorsey, 45 F.3d 809, 817
(4th Cir. 1995). In order for a defendant to show that the trial court
abused its discretion, the defendant must show prejudice; "no preju-
dice exists, however, if the jury could make individual guilt determi-
nations by following the court's cautionary instructions." Id. (internal
quotation marks omitted).

First, Nanda argues that a mistrial was warranted because the asso-
ciate prosecutor improperly made reference to Nanda's failure to tes-
tify via his reference to Nanda's failure to present any evidence to
rebut the government's case. In United States v. Whitehead, 618 F.2d
523 (4th Cir. 1980), this Court held that "[t]he test for determining
whether an indirect remark constitutes improper comment on a defen-
dant's failure to testify is: Was the language used manifestly intended
to be, or was it of such character that the jury would naturally and

                     12
necessarily take it to be a comment on the failure of the accused to
testify." Id. at 527 (internal quotation marks omitted). In applying this
standard, this Court has concluded that a statement by the Govern-
ment during closing argument that its evidence was"uncontradicted"
did not improperly comment on the accused's failure to testify where
the defense rested without calling any witnesses of its own. See
United States v. Francis, 82 F.3d 77, 79 (4th Cir. 1996). Because the
associate prosecutor's statement regarding Nanda's failure to put on
evidence is almost identical to the objected-to statement in Francis,
the district court did not abuse its discretion in denying Nanda's
motion for a mistrial based upon this statement. 3

With regard to the second and third objectionable statements,
Nanda argues that a mistrial was warranted because the associate
prosecutor misstated the nature and character of the offense for which
Nanda was indicted and made improper appeals to the jury's emotions
and passions. To establish prosecutorial misconduct, a defendant
"must show that the remarks were improper and that they prejudi-
cially affected the defendant's substantial rights so as to deprive [him]
of a fair trial." United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995) (internal quotation marks omitted). Any harm from the asso-
ciate prosecutor's remark regarding the nature of the charge against
Nanda was cured by the district court's immediate cautionary instruc-
tion that the jury should confine its concern to the charge for which
Nanda was on trial. Moreover, although the associate prosecutor's
remark regarding child pornography generally was improper, it did
not prejudicially affect Nanda's substantial rights so as to deprive him
of a fair trial because the remark was isolated and not intentionally
placed before the jury to divert attention to extraneous matters, and
there was substantial evidence of Nanda's guilt in the absence of the
remarks. See United States v. Curry, 993 F.2d 43, 46 (4th Cir. 1993).
The district court, therefore, did not abuse its discretion in denying
Nanda's motion for a mistrial on the basis of these two statements.
_________________________________________________________________
3 Even if the associate prosecutor's statement regarding Nanda's failure
to put on evidence improperly commented on Nanda's failure to testify,
the district court's immediate curative instruction to the jury to ignore
Nanda's failure to testify and its closing charge to the same effect cured
any improper impression and was sufficient to avoid declaring a mistrial.
See United States v. Lorick, 753 F.2d 1295, 1298 (4th Cir. 1985).

                     13
V.

Nanda also raises numerous objections on appeal with regard to his
sentence. Specifically, Nanda contends that the district court erred:
(1) in enhancing his offense level by two levels for receipt of materi-
als involving minors who are prepubescent or under the age of twelve,
(2) in not granting him a four-level downward adjustment for having
a minimal role in the offense, (3) in imposing a two-level increase in
offense level for obstruction of justice based upon perjury at the sup-
pression hearing, (4) in refusing to grant him a two-level downward
adjustment for acceptance of responsibility, and (5) in not granting
him a downward departure for diminished capacity and for voluntary
disclosure.

To give due deference to a district court's application of the Sen-
tencing Guidelines, we review factual determinations for clear error
and legal questions de novo. See United States v. Blake, 81 F.3d 498,
503 (4th Cir. 1996). Moreover, this Court lacks authority to review
a decision of a district court not to depart from the applicable guide-
line range unless the district court's decision is based upon the belief
that it lacks the legal authority to depart. See United States v. Brock,
108 F.3d 31, 33 (4th Cir. 1997). In such a case, this Court may review
the district court's decision for abuse of discretion. See Koon v.
United States, 116 S. Ct. 2035, 2046 (1996). With these principles in
mind, we address Nanda's sentencing claims seriatim.

A.

First, Nanda argues that the district court erred in enhancing his
offense level by two levels for receipt of material involving prepubes-
cent minors or minors under twelve years old. See U.S.S.G.
§ 2G2.2(b)(1). In particular, Nanda argues that the government failed
to show that he intended to receive such photographs and that any of
the minors in question were actually under twelve.

In making the enhancement determination, the district court looked
at record testimony regarding the uncharged material found on
Nanda's hard drive pursuant to U.S.S.G. § 1B1.3. The district court
concluded that a two-level enhancement was warranted because sev-
eral of the photographs were images of prepubescent minors or

                    14
minors under the age of twelve. In doing so, the district court treated
Nanda's offense as one of aggregate harm under U.S.S.G. § 3D1.2(d).
See U.S.S.G. § 1B1.3(a)(2). As further circumstantial evidence in
support of the two-level enhancement, the district court credited the
testimony of Agent Perkins that many of the files were found in sub-
directories with abbreviated names referring to minors.

Nanda's offense was not one of aggregate harm, however, because
under U.S.S.G. § 2G2.2, the offense level is not determined on the
basis of quantity or other measure of aggregate harm. For offenses in
which the offense level is not determined by aggregate harm, the Sen-
tencing Guidelines provide that relevant conduct includes "all acts
and omissions . . . that occurred during the commission of the offense
of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense."
U.S.S.G. § 1B1.3(a)(1)(A). Nanda's additional photographs did not
occur during his receipt of the hot_yung.zip file, in preparation for
receipt of the hot_yung.zip file, or in the course of attempting to avoid
detection or responsibility for receipt of the hot_yung.zip file. The
district court clearly erred in treating the additional 700 photographs
as relevant conduct under § 1B1.3 and as a ground for enhancement
under § 2G2.2(b)(1).

As additional support for the two-level enhancement, the district
court relied on the descriptive names of the subdirectories in which
the photographs were stored. In United States v. Kimbrough, 69 F.3d
723 (5th Cir. 1995), the Fifth Circuit upheld a two-level enhancement
pursuant to U.S.S.G. § 2G2.2(b)(1) where the district court based its
enhancement on two files found on the defendant's computer
described as "Eight Years Indian Girl" and"Preteen School Girl." Id.
at 733-34. In this case, the district court heard testimony at sentencing
from Agent Perkins that of the five photos in the hot_yung.zip file
found on Nanda's hard drive, three were found in the subdirectory
LGS, one was found in the subdirectory JMIS, and one was found in
the subdirectory PT. Perkins testified that based upon her experience
in other child pornography cases and training in the area, LGS stood
for "little girls," JMIS stood for "junior miss," and PT stood for "pret-
een." Based upon the persuasive reasoning of Kimbrough, Perkins's
testimony, and Nanda's own admission that he was curious about this
type of material, we conclude that there was sufficient evidence estab-

                     15
lishing that the photos in the hot_yung.zip file were of prepubescent
minors or minors under the age of twelve and that Nanda intended to
receive such photos. It was therefore not clear error for the district
court to assess a two-level enhancement for receipt of images show-
ing prepubescent minors or minors under the age of twelve.

B.

Next, Nanda argues that the district court erred in not reducing his
offense level for having a minimal role in the offense. See U.S.S.G.
§ 3B1.2(a). In particular, Nanda argues that he should have received
a minimal role reduction because he did not forward the hot_yung.zip
file to anyone else, yet he received a harsher sentence than the more
culpable individuals in the child pornography distribution scheme,
including Craig Zucker.

A downward adjustment pursuant to U.S.S.G. § 3B1.2 is intended
for a defendant "who plays a minimal role in concerted activity . . .
[and is] plainly among the least culpable of those involved in the con-
duct of a group." U.S.S.G. § 3B1.2, comment. (n.1). Furthermore,
"[i]t is intended that the downward adjustment for a minimal partici-
pant will be used infrequently." U.S.S.G. § 3B1.2, comment. (n.2).
That Nanda did not forward the file in question is of no import. Nanda
was charged with the receipt, not the distribution, of child pornogra-
phy. In light of the testimony presented at trial regarding the affirma-
tive steps that one must go through to receive and download a zip file,
Nanda clearly did not play a minimal role in the offense for which he
was convicted: knowing and unlawful receipt of the hot_yung.zip file.4

Further, the disposition of Zucker's case is wholly irrelevant to the
determination of whether Nanda had a minimal role in the offense of
conviction because Zucker was charged with a different offense,
distribution of child pornography. Moreover, Zucker's sentence was
not an appropriate factor for the district court to consider in sentenc-
_________________________________________________________________
4 For the same reasons discussed ante in Section V.A, we are inclined
to conclude that the additional 700 photographs and four chat-room dia-
logues cannot be considered in determining whether Nanda had a mini-
mal role in the offense. This belief does not change our ultimate
conclusion on this issue, however.

                    16
ing Nanda. Cf. United States v. Fonville, 5 F.3d 781, 783-84 (4th Cir.
1993) (holding that a downward departure is not warranted to correct
sentencing disparities between co-defendants or co-conspirators). The
district court, therefore, did not clearly err in refusing to grant
Nanda's request for a downward adjustment for minimal role in the
offense.

C.

Next, Nanda argues that the district court erred in imposing a two-
level adjustment for obstruction of justice based upon Nanda's per-
jury at the suppression hearing. See U.S.S.G. § 3C1.1 & comment.
(n.4). In particular, Nanda argues that his false denials at the suppres-
sion hearing were not material to the subject matter of the hearing --
whether he was subject to coercion or duress by the agents.

Before holding that a defendant has obstructed justice by commit-
ting perjury, the district court must make an independent finding that
the defendant has "give[n] false testimony concerning a material mat-
ter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory." United States v.
Dunnigan, 507 U.S. 87, 94 (1993). A matter is material if testimony
concerning it would "tend to influence or affect the issue under deter-
mination." U.S.S.G. § 3C1.1, comment. (n.5). The district court found
that Nanda had falsely testified as to the alleged promises made by
Perkins and the coercion he was subject to by the agents and had
falsely stated that he had not marked several photographs in the
hot_yung.zip file. Additionally, the district court determined that
Nanda's statements that he did not tell Perkins that he had down-
loaded child pornography and that Perkins did not go over the consent
form with him were untruthful. As the district court determined, these
false statements were clearly material to the subject matter of the sup-
pression hearing -- whether Nanda had freely made incriminating
statements during the interview and had voluntarily consented to a
search of his computer. The district court, therefore, did not err in
finding that Nanda had committed perjury, warranting a two-level
enhancement for obstruction of justice.

D.

Next, Nanda argues that the district court erred in refusing to grant
him a two-level downward adjustment for acceptance of responsibil-

                     17
ity. See U.S.S.G. § 3E1.1(a). In particular, Nanda argues that he has
demonstrated an acceptance of responsibility by his failure to proffer
any testimony at trial regarding the determination of guilt, his state-
ments of contrition in the presentence report, and the uncontradicted
sentencing testimony of three mental health professions who had
evaluated Nanda and concluded that Nanda had accepted responsibil-
ity for his actions and was compliant with treatment efforts.

"In order to receive a downward departure, the defendant must first
accept responsibility for all of his criminal conduct." United States v.
Strandquist, 993 F.2d 395, 401 (4th Cir. 1993) (emphasis added)
(internal quotation marks omitted). Moreover, "[c]onduct resulting in
an enhancement under § 3C1.1 (Obstruct[ion] . . . of Justice) ordinar-
ily indicates that the defendant has not accepted responsibility for his
criminal conduct." U.S.S.G. § 3E1.1, comment (n.4). Because
Nanda's case is not an extraordinary one in which both the adjust-
ments for obstruction of justice and for acceptance of responsibility
might apply, his arguments are essentially foreclosed by the district
court's assessment of a two-level enhancement for obstruction of jus-
tice. Moreover, the Sentencing Guidelines specifically state that the
adjustment for acceptance of responsibility "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, is convicted, and
only then admits guilt and expresses remorse." U.S.S.G. § 3E1.1,
comment. (n.2). Nanda's claims of acceptance of responsibility fall
into this category. The district court's rejection of Nanda's request for
a downward adjustment for acceptance of responsibility was therefore
not clearly erroneous.

E.

Finally, Nanda argues that the district court erred in rejecting his
request for a downward departure for diminished capacity, see
U.S.S.G. § 5K2.13, and for voluntary disclosure, see U.S.S.G.
§ 5K2.16. In particular, Nanda argues that the uncontradicted sentenc-
ing testimony from the three highly qualified mental health profes-
sionals amply support and warrant a downward departure for
diminished mental capacity. He also argues that because he voluntar-
ily disclosed incriminating information regarding the commission of
the instant offense, he is entitled to a downward departure for volun-

                     18
tary disclosure. Because the district court believed that it could not
depart on the grounds urged by Nanda, this Court may review the dis-
trict court's decision for abuse of discretion. See Koon, 116 S. Ct. at
2046.

With regard to the downward departure for diminished capacity
pursuant to § 5K2.13, this Court has held that in order to qualify for
such a departure, "a defendant must be suffering from something
greater than emotional problems or hardship." United States v.
Withers, 100 F.3d 1142, 1147-48 (4th Cir. 1996) (internal citations
and quotation marks omitted). The defendant "must show an inability
to process information or to reason." Id. at 1148 (internal quotation
marks omitted). Moreover, the defendant must demonstrate that his
significantly reduced mental capacity bore a causal relationship to the
crime. See id. In this case, the district court found that the defendant
was clearly able to process information and to reason, given his
superb on-the-job performance. Moreover, it is undisputed that the
events that allegedly triggered Nanda's depression and anxiety, the
deaths of his brother and his father, occurred two years after his
receipt of the hot_yung.zip file. The district court, therefore, did not
abuse its discretion in refusing to grant a downward departure on the
basis of diminished capacity.

With regard to the downward departure for voluntary disclosure
pursuant to § 5K2.16, the district court found that Nanda did not vol-
untarily disclose any information to the agents; he merely corrobo-
rated their existing knowledge. Although Nanda provided the agents
with his computer, they were already aware that he was in possession
of the hot_yung.zip file and the photographs contained therein. We
find no error in this determination. The district court, therefore, did
not abuse its discretion in refusing to grant a downward departure on
the basis of voluntary disclosure.

VI.

For the reasons discussed, we find no error by the district court at
the trial or sentencing phases of the criminal proceeding against
Nanda. We therefore affirm Nanda's conviction and sentence.

AFFIRMED

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