                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 23 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50314

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00795-RGK-1

  v.
                                                 MEMORANDUM*
JOHN NANCE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted August 6, 2010
                               Pasadena, California

Before: KOZINSKI, Chief Judge, WARDLAW, Circuit Judge, and SINGLETON,
Senior District Judge.**

       John Nance appeals his conviction for possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B) and challenges his sentence on both



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
procedural and substantive grounds. We have jurisdiction pursuant to 28 U.S.C. §

1291 and we affirm.

      The district court did not err in denying Mr. Nance’s motion to suppress.

Because Mr. Nance was not in custody at the time of his interrogation, there was

no requirement that the agents read him his Miranda rights. See United States v.

Brobst, 558 F.3d 982, 995 (9th Cir. 2009). A reasonable person in Mr. Nance’s

position would have felt free to terminate the encounter with the law enforcement

agents, given the totality of the circumstances. See United States v. Craighead,

539 F.3d 1073, 1082 (9th Cir. 2008). After law enforcement agents asked if they

could speak with him, Mr. Nance invited them into his trailer and agreed to answer

questions. At no point did the agents effect a “police-dominated” atmosphere. Id.

at 1084. The tone of the questioning was open and cordial; the agents never

brandished the weapons concealed beneath their windbreakers, or confronted Mr.

Nance with evidence of his guilt. See United States v. Bassignani, 575 F.3d 879,

884–85 (9th Cir. 2009). Mr. Nance wasn’t placed in handcuffs or otherwise

physically restrained or threatened. Id. at 886; Brobst, 558 F.3d at 996. Moreover,

the agents took no action to isolate Mr. Nance or apply any pressure on him to

confess. Craighead, 589 F.3d at 1086–87.




                                         2
      The district court did not abuse its discretion in imposing a 60 month

sentence. See United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). Mr.

Nance employed file sharing software to actively search out over a thousand

pictures and videos—many depicting men engaged in explicit sexual acts with

prepubescent children. The district court recognized the seriousness of the offense

and committed no procedural error in imposing the enhancements called for by the

Guidelines. See United States v. Blinkinsop, 606 F.3d 1110, 1117–18 (9th Cir.

2010). To the extent that Mr. Nance’s age, health, lack of criminal history, and

acceptance of responsibility mitigate the seriousness of the crime, the district court

expressly and reasonably considered these factors by imposing a sentence 18

months below the low end of the advisory Guidelines range.

      AFFIRMED.




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