                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1908
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                              Nicholas Jacob Harper

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                           Submitted: January 12, 2015
                              Filed: May 29, 2015
                                  [Published]
                                ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

PER CURIAM.

      Pursuant to a conditional plea agreement in which he preserved his right to
appeal a suppression issue, Defendant Nicholas Jacob Harper pleaded guilty to one
count of Receipt of Images of Child Pornography in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1). He received a sentence of 121 months' imprisonment, 20
years' supervised release, and a $20,000 fine. He now appeals the suppression issue.
In addition, he asserts a plain-error challenge to the fine. We affirm.

                                          I.

      Officers obtained a warrant to search a home in Arkansas where an identifiable
internet connection and computer had been used to receive child pornography. Upon
executing the warrant, officers did not discover the computer being sought. Officers,
however, discovered that a wireless network for the home was unsecure and could be
accessed from neighboring homes.

      While on the property being searched, officers observed Harper leaving a
neighboring home in a pick-up truck bearing Oklahoma license plates. Officers knew
the computer being sought had been used in the vicinity of Owassa, Oklahoma, to
download images of child pornography. Officers ran the plates and discovered
Harper had an outstanding warrant for contempt.

       Officers also approached the home Harper had exited and talked to a woman
at that home. The woman, Harper's girlfriend, stated she and Harper had recently
moved to Arkansas from Owassa. Later, Harper returned to the neighborhood but did
not return to the street where the officers were congregated. Rather, he drove up and
down a nearby street.

       Officers eventually located Harper parked in a grassy area where they
approached him. The parties generally do not dispute what happened next—officers
arrested him, searched his truck, and discovered a computer and a thumb drive in a
backpack located in a truck-bed toolbox. Later, at the police station, officers gave
Harper a Miranda1 warning, and he signed a consent form to allow officers to search


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                         -2-
the computer and thumb drive. Harper initially denied downloading images of child
pornography, but after officers discovered images, Harper admitted he had
downloaded the images.

       Harper moved to suppress the materials found in the truck. The parties dispute
whether an officer, Detective Monson, asked for consent before searching the truck's
cab or toolbox. They also dispute whether Harper provided consent to these searches.
In this regard, Detective Monson testified at a suppression hearing that he asked
Harper for consent before searching the cab and again before searching the toolbox.
Detective Monson also testified that Harper gave consent both times and that he told
Harper, both times, that Harper was not required to consent. Detective Monson
explained that he did not obtain written consent because he rode in another officer's
vehicle and therefore did not have the forms he normally would have carried in his
own car.

        Other officers could neither confirm nor deny that Detective Monson asked for
or obtained consent. Detective Monson testified that at least one of the other officers
had been standing in close proximity when he asked Harper for consent. That officer,
however, could not recall whether Detective Monson asked for consent. Harper
testified that he did not consent to the searches and that Detective Monson did not ask
for consent.

     A magistrate judge2 issued a detailed report recommending denial of the
motion, finding Detective Monson credible, and holding Harper provided consent.
Harper filed objections, and the district court3 issued an order addressing the


      2
       The Honorable Erin L. Setser, United States Magistrate Judge for the Western
District of Arkansas.
      3
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.

                                         -3-
objections, adopting the report and recommendation, and denying the motion. Harper
then entered into a conditional plea agreement and pleaded guilty, preserving the
suppression issue for appeal.

       At sentencing, the district court4 gave a downward variance from a guidelines
range of 151–180 months' imprisonment and imposed a sentence of 121 months. The
court also imposed a substantial term of supervised release and a $20,000 fine. The
statutory maximum for the fine was $250,000, and the guidelines range was
$17,500–$175,000.

       The court addressed at length concerns with the sentencing guidelines for child
pornography offenses. In particular, the court discussed with counsel the difficulty
of dealing with requests for variances and the application of enhancements when
many enhancements in child pornography cases have become the norm (high number
of images, use of computer, etc.) and when many defendants present similar factual
backgrounds and personal histories. The court addressed the 18 U.S.C. § 3553(a)
factors in two ways—implicitly through these extended discussions and explicitly
when highlighting the factors. Finally, in fashioning the overall sentence, the court
discussed the need to use all of the tools at its disposal—incarceration, supervised
release, and the fine—to arrive at an appropriate sentence.

       The court did not expressly discuss the details of Harper's ability to pay, but the
court expressed a clear and comprehensive understanding of the record showing
careful study prior to sentencing—a different judge had handled the case through the
acceptance of the conditional plea. As a part of the record, the presentence
investigation report shows Harper had few assets and a negative net worth. The
report states Harper graduated high school, attended four semesters of college, earned


      4
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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good grades, and obtained a degree in Electrical Technology. The report also
indicates Harper claimed to have "specialized training and skills as an electrical
technician in data communications, in fiber optics and is CPR/AED certified. Also,
he reports having professional licenses in welding, forklift/all lifts operation and
bobcat operation." Finally, the report indicates he held employment related to the
field of his education from 2007 through 2012, earning $16.50–$24 per hour except
for brief stints when he worked lower paying jobs in retail settings. Harper did not
object to these factual assertions.

      When addressing the fine, the court stated:

      There's also going to be a fairly substantial fine imposed, and I've taken
      into consideration the fact that you're going to be in prison for a long
      amount of time, you're not going to have a whole lot of income coming
      in. To the Court's knowledge based on what the Court has reviewed,
      you don't have a whole lot of assets from which to pay a fine. But you're
      going to be ordered—to the extent you can't pay the fine immediately,
      you're going to be ordered to make a payment. And while you're in
      prison, you're going to make—you know, if you have a job in prison or
      you incur earnings in prison, you're going to have to pay on that fine.
      And every time you see that fine deducted from your earnings, and when
      you're on a period of supervised release, continual payments are going
      to be required. And every month, Mr. Harper, when you make a
      payment on that fine, I want you to remember this day in court. I want
      you to remember the victimization that you have caused to the nameless
      victim in this case.5


      5
        The district court also referenced a payment plan, recognizing Harper's present
inability to pay the fine in full:

      Any unpaid financial penalty shall be payable during the period of
      imprisonment in quarterly installments of $25 or 10 percent of the
      defendant's quarterly earnings, whichever is greater. The payment of
      any remaining balance shall be a condition of supervised release and

                                         -5-
       When the court announced the fine of $20,000 as a part of the overall sentence,
Harper's counsel did not object. Harper now appeals the suppression issue and raises
a plain-error challenge to the fine.

                                           II.

                                A. Suppression Motion

       We review the constitutionality of a search or seizure de novo but the
underlying factual determinations only for clear error. United States v. Craig, 630
F.3d 717, 721 (8th Cir. 2011); United States v. Almeida-Perez, 549 F.3d 1162, 1170
(8th Cir. 2008) ("In the appeal from a suppression ruling, we review for clear error
the questions of historical fact, such as who said what."). Credibility assessments are
"the province of the trial court." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.
1995). As such, the "decision to credit a witness's testimony over that of another can
almost never be a clear error unless there is extrinsic evidence that contradicts the
witness's story or the story is so internally inconsistent or implausible on its face that
a reasonable fact-finder would not credit it." Id.

       Harper attempts to attack the district court's determination under this exacting
standard. He identifies several points that arguably detract from Detective Monson's
credibility. First, Harper notes that no officers could corroborate Detective Monson's
claim that he asked for and obtained consent from Harper. Harper also notes that one
of the officers who could not corroborate Detective Monson's claim had been
standing by Detective Monson and, necessarily, would have heard any request for


      may be paid in monthly installments of $200 or 10 percent of the
      defendant's net monthly household income, whichever is greater, with
      the entire balance of the fine to be paid in full one month—or no later
      than one month prior to the end of the period of supervised release.


                                           -6-
consent. Finally, Harper notes that, even if Detective Monson arrived at the scene in
a different officer's car, the lack of forms did not preclude Detective Monson from
obtaining or memorializing consent on any available paper.

       Harper is correct to the extent he argues any or all of these factors might have
given the district court reason to believe Harper rather than Detective Monson. None
of them, however, create the internal inconsistency or implausibility necessary to
compel the conclusion that Detective Monson was non-credible. Further, Harper's
arguments necessarily ask us to overlook the countervailing considerations that: his
own claims also are uncorroborated; his claims are self-serving; and Detective
Monson himself was the one who testified that the other officer was standing by him
when he asked Harper for consent—an unlikely claim unless Detective Monson
actually believed the other officer heard him obtain consent (or unless Detective
Monson and the other officer were not only both non-credible but actually conspiring
to conceal a lack of consent).

      In the end, the district court could have chosen to believe either man, and after
watching the men testify and listening to the other officers' testimony, the court
believed Detective Monson. We have reviewed the suppression hearing transcript
and will not disturb this finding. Consent is a valid exception to the warrant
requirement, and an officer's credible report of verbal consent can suffice to meet the
government's burden of establishing consent. See United States v. Dupree, 202 F.3d
1046, 1049 (8th Cir. 2000) (finding consent based on officer testimony despite
contradicting defendant testimony).

                                        B. Fine

       Harper concedes we review merely for plain error the fine imposed as a part of
his sentence. Harper argues he does not, and will not, have the ability to pay the fine.
He also argues the district court did not address his ability to pay the fine or otherwise

                                           -7-
discuss the applicable factors listed in 18 U.S.C. § 3572(a), U.S. Sentencing
Guidelines Manual § 5E1.2, or U.S.S.G § 5E1.2 cmt. n.3.

       Harper overstates the district court's burden to explain itself when imposing a
near-the-bottom-of-the-Guidelines fine. First, although Harper's status as a convicted
felon and sex offender will impede his ability to earn, he possesses training and skills
that have allowed him to secure meaningful employment in the past. Second, the
court in this instance demonstrated familiarity with the record and noted Harper's lack
of assets and limited ability to earn while incarcerated. Third, the court supplied
payment requirements for the terms of incarceration and supervised release. And
fourth, the court explained the role of the fine as a part of the overall sentence—a
sentence which included a substantial downward variance.

       Against this backdrop, we note that the relevant Guideline provides the "court
shall impose a fine in all cases, except where the defendant establishes that he is
unable to pay and is not likely to become able to pay any fine." U.S.S.G. § 5E1.2(a).
In other words, Harper bore the burden of proving his inability to pay a fine within
the Guidelines range. United States v. Cornelison, 717 F.3d 623, 630 (8th Cir. 2013).
He did not do so.

       In any event, to show plain error, Harper must "show an error that is clear or
obvious under current law, and he must demonstrate that the error affected his
substantial rights and seriously affected the fairness, integrity, or reputation of the
judicial proceedings." United States v. Hinkeldey, 626 F.3d 1010, 1012 (8th Cir.
2010) (describing United States v. Olano, 507 U.S. 725, 732–34 (1993)). Even if we
believed the fine or the court's relatively short discussion of the factors supporting the
fine amounted to a clear or obvious error, relief would remain unavailable.




                                           -8-
     Nothing about the fine viewed against this record affects the integrity or public
reputation of judicial proceedings or otherwise suggests a lack of fairness. See
Cornelison, 717 F.3d at 630 (rejecting a plain-error challenge to a fine).

      We affirm the judgment of the district court.
                      ______________________________




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