                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 14 2010

                                                                       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. 09-10099

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00379-LDG-
                                                 GWF
  v.

ROBERT MYRON LATHAM,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                             Submitted May 11, 2010 **
                              San Francisco, California

Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
      Robert Latham (“Latham”) appeals from the district court’s judgment at

sentencing after a jury found him guilty of various counts related to child

pornography. Latham assigns errors to both his convictions and sentences. We

affirm.

      In 2005, an undercover child pornography investigation yielded an Internet

Protocol (“IP”) address that FBI agents traced to Latham’s brother. The agents

consulted with the Internet service provider and independently confirmed Latham’s

brother’s address using public records and surveillance. The agents thus had

probable cause to support a warrant authorizing a search of the residence for

computers used to share and store child pornography.

      The possibility of “spoofing”—using special software to make it appear that

one is using a specific router when in fact one is secretly using a different

router—does not undermine the affidavit supporting the warrant. See United

States v. Craighead, 539 F.3d 1073, 1081 (9th Cir. 2008) (holding that probable

cause is not defeated by omissions from supporting affidavits of “statements . . .

relating to IP spoofing” or “Internet hijacking”). The district court did not err in

denying Latham’s motion to suppress.

      Latham’s contention that the affidavit’s information was stale is waived

because he did not raise it in his motion to suppress below. See United States v.


                                           2
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (explaining that failure to raise a

particular ground in support of a motion to suppress constitutes waiver and “places

the issue beyond the scope of our ability to review for plain error”). Even if we

were to interpret the staleness argument as a variation of the ground Latham raised

in his motion to suppress, given the nature of the crime, the three-month delay did

not render the information stale. See United States v. Lacy, 119 F.3d 742, 746 (9th

Cir. 1997).

      To assess Latham’s claim that he was “in custody” during his interview, we

review the totality of facts and ask whether a “reasonable innocent person in such

circumstances would conclude that after brief questioning he or she would not be

free to leave.” United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).

       Latham was interviewed in his bedroom with the door open and within

earshot of his brother. All parties agree that no threats were made during the

search and that a conversational tone was used throughout. Latham was informed

on at least two occasions that he was free to leave. He testified that one reason he

did not do so is that he did not want to leave his brother alone—suggesting that he

stayed because he preferred to, not because he felt compelled to remain. Latham’s

nephew, on the other hand, did exercise his right to leave. This is further

indication that it was unreasonable for Latham to think he could not leave as well.


                                          3
The district court did not err in finding that Latham was not “in custody” during his

interview.

      Latham argues that the government destroyed two desktop computers that it

seized from his brother’s residence, thereby violating his due process rights by

failing to preserve possibly exculpatory evidence. The government disputes this

characterization of the evidence. Under California v. Trombetta, the duty to

preserve evidence is:

      limited to evidence that might be expected to play a significant role in
      the suspect's defense. To meet this standard of constitutional
      materiality, evidence must both possess an exculpatory value that was
      apparent before the evidence was destroyed, and be of such a nature
      that the defendant would be unable to obtain comparable evidence by
      other reasonably available means.

467 U.S. 479, 488-89 (1984) (footnote and citation omitted). There is no due

process violation for failure to preserve potentially useful evidence unless there is a

showing of bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

      Latham has not established to any reasonable degree that there might have

been exculpatory evidence found on the other desktop computers. Nor did he

establish bad faith. The evidence found on Latham’s laptop computer was

sufficient to support his convictions and independent from any evidence that might




                                           4
have been discovered on the desktop computers. The district court did not err in

failing to dismiss the indictment on these grounds.

      “We review de novo whether a sentence violates the Eighth Amendment.”

United States v. Meiners, 485 F.3d 1211, 1212 (9th Cir. 2007). To sustain an

Eighth Amendment violation, there must be a threshold determination leading to

the inference that the sentences are grossly disproportionate to the crime.

Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring in part

and concurring in the judgment). The record supports no such inference.

      In reviewing the sentencing decision, we first “consider whether the district

court committed significant procedural error, then we consider the substantive

reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008).

      The district court’s imposition of the statutory maximum sentences on

Counts 2 and 3 was neither procedurally erroneous nor substantively

unreasonable.1 The district court used the sentencing guidelines as a reference

point to determine that Latham’s offense level exceeded the highest level listed on

the sentencing table. Latham has identified no procedural errors, and both

sentences fall within the guidelines range. Considering the totality of the


      1
          Latham’s sentence on Count 1 was statutorily mandated.

                                          5
circumstances, the sentences were not unreasonable. See Carty, 520 F.3d at 988

(explaining that “a correctly calculated Guidelines sentence will normally not be

found unreasonable on appeal”).

       Latham’s double jeopardy claim is raised for the first time on appeal; we

review for plain error. United States v. Olano, 507 U.S. 725, 732 (1993).2 Latham

was convicted of both Receipt of Child Pornography (Count 3) and Possession of

Child Pornography (Count 4). The two Counts were based on the same images.

Because possession is a lesser-included offense of receipt, the district court plainly

erred by imposing convictions on both counts. United States v. Davenport, 519

F.3d 940, 947 (9th Cir. 2008).

      The remedy for this error is generally to remand to the district court so that it

can decide, in its discretion, which conviction to vacate. Whichever conviction is

vacated can be reinstated without prejudice if the other conviction is overturned on

direct or collateral review. Id. at 948. Here, however, the district court recognized

that it should not impose a sentence on both counts and declined to impose a

sentence on Count 4. Given that the district court seems to have been aware of the

Double Jeopardy problem and that it chose to impose a sentence only on Count 3,


      2
       Latham’s due process claim of judicial bias is also raised for the first time
on appeal. We find no evidence in the record of bias or hostility, and thus no plain
error.

                                           6
remand is unnecessary. We therefore vacate the conviction under Count 4 without

prejudice.

      AFFIRMED IN PART and VACATED IN PART.




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