                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                              APR 20 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   15-30245

              Plaintiff-Appellee,                D.C. No.
                                                 2:14-cr-00030-SAB-1
 v.

RANDY ZACHERLE,                                  MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Stanley Allen Bastian, District Judge, Presiding

                      Argued and Submitted February 9, 2017
                               Seattle, Washington

Before: FISHER, PAEZ and CALLAHAN, Circuit Judges.

      Randy Zacherle was convicted for possessing child pornography in violation

of 18 U.S.C. § 2252A. He appeals that conviction, raising four arguments: (1) the

evidence of child pornography found on one of his laptops must be suppressed

because it was the product of an unreasonable search and seizure; (2) the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
government violated his privilege against self-incrimination by discussing his

physical response to a single question during an interrogation in which he waived

his right to remain silent; (3) a jury had to find beyond a reasonable doubt he was

previously convicted for possessing child pornography; and (4) alleged sentencing

guideline calculation errors must be reversed despite receiving the mandatory

minimum sentence for his conviction. We have jurisdiction, and we affirm.

                                          1

      The district court did not err in finding Zacherle abandoned the laptop on

which child pornography was found. See United States v. Nordling, 804 F.2d

1466, 1469 (9th Cir. 1986) (“A determination of abandonment is a factual finding

that we review for clear error.”). Zacherle left this laptop in Marianne Mosqueda’s

bedroom for three months without any instruction as to what she was to do with it

and did not tell her anything about his whereabouts. That he was incarcerated

during this absence is not dispositive. Zacherle could have asserted control over

the laptop. He sent his mother to collect his pickup from Mosqueda’s home.

Moreover, he was simply a guest in Mosqueda’s home. He paid no rent or bills

and performed only modest chores in exchange for room and board. He could not

reasonably expect Mosqueda to store his belongings for months without any

request from him to do so. Her decision to rid herself of Zacherle’s computer by


                                          2
giving it to his estranged sister – who subsequently gave it to law enforcement –

did not violate Zacherle’s Fourth Amendment rights. See United States v. Wilson,

472 F.2d 901, 902 (9th Cir. 1972) (“Search or seizure of abandoned property, even

without a warrant, is simply not unreasonable.”).

      To the degree Zacherle argues the files on his computer were entitled to

greater protection than the computer itself, we are not persuaded. Zacherle

abandoned his computer, and he exhibited no greater concern for the files it

contained. There is no evidence suggesting the files were locked. Rather, he left

his unlocked computer with unlocked files in a guest bedroom for months without

any attempt to exert control over the computer or files in which he now asserts a

privacy expectation. It may be that Zacherle thought there was no need to protect

his files or computer from Mosqueda, his estranged sister or even law enforcement

because he was confident all evidence of his wrongdoing was deleted by the file-

eraser-software FBI agents later found on his computer. That he did not possess

the “technical savvy” to understand deleted files could be recovered with the right

tools does not give him the right to assert an expectation of privacy he previously

abandoned. United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (quoting

United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008)).

                                          2


                                          3
       Zacherle’s Fifth Amendment rights were not violated when the jury was

allowed to hear a description of his physical response after being asked whether he

downloaded child pornography. Zacherle agreed to speak with law enforcement

officers after being read his Miranda rights. He answered all of their questions

with verbal responses, except for one. To that question, Zacherle gave a physical

response – curling into a fetal position on his chair. There is no evidence the

questioning officer “exert[ed] pressure” or was anything but “courteous.” United

States v. Lorenzo, 570 F.2d 294, 298 (9th Cir. 1978). Nor is there evidence

Zacherle made any explicit statement alerting the officer he wished to exercise his

privilege against self-incrimination as to that question and not others. Indeed, he

answered the questions that followed with verbal responses. Given Zacherle’s

“willingness . . . to talk” and “continued [willingness] to do so after his failure to

respond [verbally] to a single question,” “he cannot be said to have invoked his

right to remain silent,” totally or selectively. Id.

                                            3

       The Supreme Court has long recognized “the fact of a prior conviction” is a

narrow exception to the general rule that facts increasing the statutory sentence

must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, 133 S. Ct.


                                            4
2151, 2160 n.1 (2013) (citing Almendarez-Torres v. United States, 523 U.S. 224

(1998)). Accordingly, the jury did not have to determine that Zacherle was

previously convicted of possession of child pornography to trigger the mandatory

minimum sentence of 10 years. See Apprendi, 530 U.S. at 490; 18 U.S.C.

§ 2252A(b)(2).

                                          4

      Because Zacherle’s conviction for possession of child pornography carried a

minimum 10-year sentence in light of his previous conviction, any other

sentencing error is moot because the district court had no discretion to impose a

sentence lower than the one he received. See Melendez v. United States, 518 U.S.

120, 126-27 (1996).

      The judgment of the district court is AFFIRMED.




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