          United States Court of Appeals
                        For the First Circuit


No. 14-1821

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                            DEREK HINKLEY,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                    Torruella, Lynch, and Kayatta,
                            Circuit Judges.


     James S. Hewes, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.


                          September 30, 2015
          LYNCH, Circuit Judge.     In January 2014, Derek Hinkley

entered a conditional guilty plea to one count under federal law

of sexual exploitation of a minor.      18 U.S.C. § 2251(a).    As

allowed by his plea agreement, he now appeals the district court's

denial of three motions to suppress.       He also challenges his

sentence of 300 months of imprisonment.   We affirm his conviction

and sentence.

                               I.

     As to the motions to suppress, we recite the relevant facts

as found by the district court, consistent with record support.

United States v. Arnott, 758 F.3d 40, 41 (1st Cir. 2014).    As to

the facts relevant to the sentencing appeal, we take the facts as

set forth in the plea colloquy, the unchallenged portions of the

presentence report, and the sentencing hearing.   United States v.

Innarelli, 524 F.3d 286, 288 (1st Cir. 2008).

     On July 17, 2012, Derek Hinkley invited two boys, ages 12 and

15 (Victim #1 and Victim #2 respectively), to spend the night at

his apartment, with their parents' permission.     Both boys were

special education students who had known Hinkley for several

months.   Hinkley had told them and their parents that he was

eighteen years old even though he was actually twenty-eight.    On

the way to the apartment, Hinkley told the boys it was a "free

house" and that they could "walk around naked" if they wanted to.

At the apartment, Hinkley showed the boys his knife collection and


                              - 2 -
threatened    to   cut   off    their   penises   if   they   did   not   watch

pornography and masturbate in front of him using an imitation-

vagina sex toy.      The boys complied, and Hinkley used a webcam to

stream the image of Victim #2 masturbating on a social media site,

Omegle.

     On July 19, 2012, police officers received a report from one

of the boys' parents.      On the way to the victims' neighborhood to

investigate    the    matter,   police   detective     Derrick   St.   Laurent

observed a man surrounded by a group of neighborhood children on

the sidewalk. St. Laurent approached the man "on a hunch," learned

that the man was Hinkley, and then asked him to come to the Lewiston

police station for an interview.         The reason for asking Hinkley to

come to the station, St. Laurent testified, was that he prefers to

conduct interviews at the station so that the interviews can be

recorded.     Hinkley transported himself to the police station for

the interview and waited in the lobby for St. Laurent to arrive.

Hinkley was then questioned by St. Laurent in an eight-by-twelve

foot, windowless room. At the outset of the interview, St. Laurent

told Hinkley that he was not in custody, asked him whether he would

mind if the door was closed, and reminded him of how to exit the

police station in the event of an emergency.            Twenty-nine minutes

into the interview, St. Laurent told Hinkley that he was still

free to leave.       Thirty-eight minutes into the interview, he told

Hinkley that he was no longer free to leave.                  At this point,


                                    - 3 -
Hinkley received Miranda warnings and signed a consent-to-search

form.

        Relying on the consent-to-search form, the police then took

Hinkley to his apartment and in his presence seized, among other

things, a laptop computer and a sex toy.           They found approximately

eighty images of child pornography in the laptop's internet cache

and also found browsing history showing the Omegle website being

accessed on July 18, 2012, at approximately 12:53 AM.                  The police

then transported Hinkley to Androscoggin Jail.

        On July 20, 2012, Hinkley made further inculpatory admissions

during an interrogation at Androscoggin Jail.                 Before proceeding

with that interview, St. Laurent asked if Hinkley remembered the

Miranda warnings he was read the previous day.                 Hinkley answered

in the affirmative. St. Laurent nevertheless asked Hinkley whether

he wanted the warnings repeated. Hinkley answered in the negative.

As such, no new Miranda warnings were given.

        On March 12, 2013, Hinkley was indicted on one count of sexual

exploitation of a child, in violation of 18 U.S.C. § 2251(a).

Hinkley    filed     motions   to   suppress    three   different      pieces   of

evidence: (1) statements he made to Detective St. Laurent at the

police station on July 19, 2012; (2) physical evidence seized

during    a   search    of   his    apartment   after   the    July    19,   2012,

interview;     and     (3)   statements    he   made    to    St.     Laurent   at




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Androscoggin Jail on July 20, 2012.       The district court denied all

three motions.

      On January 30, 2014, Hinkley entered a conditional guilty

plea on one count of sexual exploitation of a minor.              The plea

agreement reserved his right to appeal the denial of the three

motions to suppress.

      The district court calculated Hinkley's guideline sentence

range as follows: The base offense level was 32, per U.S.S.G.

§ 2G2.1.    His adjusted offense level was 42, after a two-level

enhancement due to the victims being between 12 and 16, a two-

level enhancement because the offense involved sexual contact, a

two-level enhancement for use of a laptop computer to disseminate

images of Victim #2 over the internet, a two-level enhancement

because the victims were in his care, and a two-level enhancement

for misrepresenting his age.          He also received a five-level

enhancement for a pattern of activity involving prohibited sexual

contact    and    a   three-level    reduction     for    acceptance      of

responsibility, yielding an offense level of 44.              Because the

maximum offense level is 43, the total offense level was 43. While

the   guideline   sentence   based   on   his   offense   level   was   life

imprisonment, the statutorily authorized maximum sentence is 360

months so the guideline range was considered to be 360 months.




                                 - 5 -
     On July 28, 2014, Hinkley was sentenced to 300 months of

imprisonment, a life term of supervised release, and a $100 special

assessment.   This appeal followed.

                                      II.

     In reviewing a denial of a motion to suppress, we review a

district court's legal conclusions de novo and findings of fact

for clear error.   United States v. Fermin, 771 F.3d 71, 76–77 (1st

Cir. 2014).   We uphold the denial of all three motions.

A.   First Motion to Suppress

     Hinkley argues that the statements he made during his July

19, 2012, interrogation at the Lewiston police station should be

suppressed, for two reasons: first, because he was in custody from

the beginning of the interview but did not receive Miranda warnings

until partway through, and second, because the Miranda warnings

that he was eventually given were inadequate.                  Neither argument

has merit.

     Miranda warnings are required only when a person is being

interrogated while in custody.        United States v. Crooker, 688 F.3d

1, 10-11 (1st Cir. 2012); see also Miranda v. Arizona, 384 U.S.

436, 444 (1966).    A number of factors are relevant to determining

whether a person is in custody for Miranda purposes.                      These

include:   where   the   questioning        occurred,    the    number   of   law

enforcement officers present during questioning, the degree of

physical   restraint,    and   the    duration     and    character      of   the


                                     - 6 -
interrogation.    Crooker, 688 F.3d at 11.   The question is whether,

viewed objectively, those circumstances constitute the requisite

"restraint on freedom of movement of the degree associated with a

formal arrest."    United States v. Hughes, 640 F.3d 428, 435 (1st

Cir. 2011) (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983) (per curiam)).

     Considering the circumstances, the district court did not err

in finding that Hinkley was not in custody at the outset of the

interview.   Hinkley arrived at the police station voluntarily and

was never restrained.   See United States v. Francois, 715 F.3d 21,

32 (1st Cir. 2013). He was interviewed by only one police officer.

He was told at the beginning of the interview and again twenty-

nine minutes into the interview that he was "free to leave."     See

United States v. Infante, 701 F.3d 386, 396–97 (1st Cir. 2012).

The tone of the interviewing officer, as the district court noted,

was "generally one of frustration, not anger or aggression."     See

Hughes, 640 F.3d at 437.    The mere fact that the questioning took

place in a police station did not create a condition of custody.

See Oregon v. Mathiason, 429 U.S. 492, 493–95 (1977) (per curiam);

McCown v. Callahan, 726 F.2d 1, 5-6 (1st Cir. 1984).     As such, the

fact that there were other police officers in the vicinity did not

create a condition of custody; that would be the case in any police

station interview.    Nor was a condition of custody created by the

fact that St. Laurent persuaded Hinkley to talk by confronting him


                                - 7 -
with inculpatory evidence.         See Mathiason, 429 U.S. at 495–96.

Hinkley was not in custody at the outset of the interview and

Miranda warnings were not required until thirty-eight minutes into

the interview when the detective told Hinkley he was no longer

free to leave.

      Hinkley argues that the Miranda warnings he was eventually

given were ineffective, for two reasons: first, because he never

waived his right to remain silent, and second, because he lacked

the capacity to make a valid waiver.           As to the first argument,

Hinkley made a valid waiver by making uncoerced statements after

acknowledging that he understood his Miranda rights.            See Berghuis

v. Thompkins, 560 U.S. 370, 384 (2010).              In making the second

argument, Hinkley relies exclusively on expert testimony from his

defense psychologist, which he claims is evidence that his waiver

was involuntary. However, as the district court found, that expert

actually testified that Hinkley had average intelligence, and that

Hinkley   had       demonstrated   average     performance      on   a   test

specifically designed to determine whether he could understand and

respond to Miranda warnings.            Indeed, the transcript of the

interview attests to Hinkley's repeated attempts to resist St.

Laurent's increasingly aggressive questioning and his persistence

in avoiding a confession, even to the point of fashioning on-the-

fly exculpatory explanations for otherwise inculpatory facts.                 As

a   result,   the    district   court   did   not   err   in   finding   by    a


                                   - 8 -
preponderance      of   the   evidence         that   Hinkley     knowingly       and

intelligently waived his Miranda rights.              See id.

B.   Second Motion to Suppress

     Hinkley      argues   that   physical       evidence      seized    from    his

apartment should be suppressed for two reasons: first, because it

was the fruit of an earlier Miranda violation, and second, because

the government failed to obtain valid consent to search.                    Neither

argument has merit.

     There was no Miranda violation during the police station

interview, so the evidence was not "fruit of the poisonous tree."

Even if there had been a Miranda violation, failure to give

adequate Miranda warnings does not require suppression of the

physical fruits of those unwarned statements.                   United States v.

Patane, 542 U.S. 630, 634 (2004).

     In arguing that the government failed to obtain valid consent

to search, Hinkley again points to his expert's report to argue

that he lacked the capacity to consent.                  To determine whether

consent     was   voluntary,      we    examine       the     totality    of     the

circumstances, which may include consideration of the defendant's

"age, education, experience, knowledge of the right to withhold

consent, and evidence of coercive tactics."                    United States v.

Chaney, 647 F.3d 401, 407 (1st Cir. 2011) (quoting United States

v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003)).                   There was no

clear     error   in    the   district         court's      determination       that,


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considering his age, demeanor, and intelligence, Hinkley was "not

so cowed that he was psychologically incapable of giving valid

consent."   See United States v. Romain, 393 F.3d 63, 69 (1st Cir.

2004) ("[A] finding of voluntary consent (other than one based on

an   erroneous   legal     standard)    is    reviewable   only    for   clear

error . . . .").    Nor was Hinkley's voluntary consent negated by

the fact that it was secured by the detective's statement that the

apartment   would   be    searched    eventually,   with   or     without   his

consent.    See United States v. Vázquez, 724 F.3d 15, 22-25 (1st

Cir. 2013) (holding that consent to search is not invalid where

procured by an officer's reasonable assessment that there would be

a legal search anyway).

C.    Third Motion to Suppress

      Hinkley argues that statements he made at Androscoggin Jail

on July 20, 2012, should be suppressed on the basis of inadequate

Miranda warnings.        He argues that the detective was required to

readminister the full Miranda warnings rather than merely ask if

he recalled the previous day's warnings.

      Miranda warnings need not be renewed every time there is a

break in questioning.         Once an effective Miranda warning is

administered, those warnings remain effective until the passage of

time or an intervening event makes the defendant unable to fully

consider the effect of a waiver.        See United States v. Pruden, 398

F.3d 241, 246–47 (3d Cir. 2005). We can presume that the defendant


                                     - 10 -
would remember the warnings even if some time has elapsed between

the warning and the questioning.                  See United States v. Edwards,

581 F.3d 604, 607–08 (7th Cir. 2009).                 Here, Hinkley acknowledged

less than twenty-four hours after the first set of warnings that

he remembered the warnings, remained familiar with them, and did

not need them repeated.              There is no indication that the passage

of     time    was    long     enough     to   make    Hinkley's       second   waiver

involuntary.         See United States v. Nguyen, 608 F.3d 368, 375 (8th

Cir. 2010) (concluding that full-day break in questioning did not

make    Miranda      warnings       ineffective);     Pruden,    398    F.3d    at   247

(twenty-hour break in questioning); Guam v. Dela Pena, 72 F.3d

767, 770 (9th Cir. 1995) (fifteen-hour break in questioning).

                                           III.

       In     reviewing      the    procedural     soundness    of   sentencing,      we

review questions of law de novo, factual findings for clear error,

and judgment calls for abuse of discretion.                      United States v.

Trinidad-Acosta, 773 F.3d 298, 308-09 (1st Cir. 2014).                      We review

substantive reasonableness for abuse of discretion.                      Id. at 309.

Hinkley        challenges          the   application     of     three      sentencing

enhancements and the substantive reasonableness of his sentence.

A.     Five-Level Enhancement for Pattern of Activity

       The district court applied a five-level enhancement pursuant

to U.S.S.G. § 4B1.5(b)(1) for a pattern of activity involving

prohibited sexual contact.                In applying the enhancement, the


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district court relied on reports of inappropriate sexual contact

that allegedly occurred between Hinkley and Minor #11 from March

to June 2012. Hinkley argues that the anonymous allegations, which

were introduced through two written police reports and testimony

by   the   detective    who    investigated      Minor   #1's    complaint,     are

unreliable. He argues that the district court erred in considering

the allegations because the identity of Minor #1 was undisclosed,

Minor #1 could not be cross-examined, and Minor #1 was known to

have unspecified mental health issues.

      Evidentiary       requirements     at    the   sentencing        stage    are

significantly less rigorous than they are at trial.                      As Hinkley

concedes, there is no Confrontation Clause right at sentencing.

United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005).                    The

sentencing      court    has   broad    discretion       to     accept     relevant

information without regard to its admissibility under the rules of

evidence applicable at trial, as long as it concludes that the

information has sufficient indicia of reliability.                 United States

v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010); see also

U.S.S.G.    §   6A1.3(a).      Even    conduct    that   did     not   lead    to   a

conviction may be considered.          U.S.S.G. § 4B1.5 cmt. 4(B)(ii).




      1To avoid confusion, we note that the unnamed "Minor #1" is
an eleven-year-old who is a different person from either Victim #1
or Victim #2, who were the victims on July 17, 2012.


                                      - 12 -
     Applying the deferential abuse of discretion standard to the

district    court's    determination         of   whether        evidence     was

sufficiently reliable for sentencing purposes, United States v.

Rodríguez, 731 F.3d 20, 31 (1st Cir. 2013), we find no error.                 The

district   court   found   that   it   was   reasonable     to    rely   on   the

experience of the detective who prepared the police reports.                  It

also found that certain details reported by Minor #1 made the

reports "almost self-authenticating": for example, Minor #1 knew

that Hinkley preferred to be called Ethan rather than Derek,

described Hinkley befriending him in much the same way that Hinkley

befriended Victims #1 and #2, and accurately recounted details of

Hinkley's apartment.       See United States v. Mills, 710 F.3d 5, 16

(1st Cir. 2013) (finding that corroborated details in confidential

informants'   statements     supported   district    court's       finding    of

reliability).

B.   Two-Level Enhancement for Misrepresentation of Identity

     The district court applied a two-level enhancement pursuant

to U.S.S.G. § 2G2.1(b)(6)(A) for Hinkley's misrepresentation of

his identity for the purpose of producing and transmitting sexually

explicit material.     While Hinkley admits that he misrepresented

his age, he argues that he should not have received the enhancement

because he did not misrepresent any other aspects of his identity.

     As Hinkley's counsel conceded at oral argument, this argument

is foreclosed by the guideline application note, which explicitly


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includes misrepresentation of age as behavior that could trigger

this enhancement.         U.S.S.G. § 2G2.1 cmt. 4(A).            Record evidence

amply       supports    the   district   court's      finding    that   Hinkley's

misrepresentation of his age as eighteen rather than twenty-eight

was instrumental to his gaining access to his victims, because it

made the minors and their parents put their guards down.                        See

United States v. Starr, 533 F.3d 985, 1002 (8th Cir. 2008).

C.      Two-Level Enhancement for Sexual Contact

        The district court applied a two-level enhancement under

U.S.S.G. § 2G2.1(b)(2)(A) for an offense involving the commission

of sexual contact.        Hinkley argues that this enhancement does not

apply because he never touched the victim, and forced self-

masturbation by the victim does not fit the statutory definition

of sexual contact. See 18 U.S.C. § 2246(3); see also United States

v. Shafer, 573 F.3d 267, 272-78 (6th Cir. 2009).

        We   do   not   decide   the   merits   of    this   issue   because,    as

Hinkley's counsel conceded at oral argument, any error in the

application of this enhancement was harmless.                 Even if this two-

level       enhancement   were   removed,   the      guideline   sentence   would

remain unchanged.2        Therefore, "it is sure that the error did not


        2
       Hinkley's offense level was calculated at 44 and then
lowered to the maximum level of 43.       Removing the two-level
enhancement would bring the offense level down to 42.          The
guideline range for a first-time offender with an offense level of
43 is life imprisonment, as compared to 360 months to life for an
offense level of 42.    Because both guideline ranges are higher


                                       - 14 -
affect the sentence imposed."      United States v. Alphas, 785 F.3d

775, 780 (1st Cir. 2015) (citing Williams v. United States, 503

U.S. 193, 203 (1992)).       Having affirmed the application of the

other challenged enhancements, we can say that any error in the

application    of   this   two-level    enhancement   would   have   been

harmless.

D.   Substantive Reasonableness

     Hinkley argues that his sentence was unreasonable and that he

should have received a lower sentence in light of his lack of

criminal history, his own history of sexual abuse as a child, his

mental health diagnoses, and his vulnerability to being abused in

prison.     We find no abuse of discretion by the district court,

which already took into account these considerations in imposing

a below-guidelines sentence.

                                  IV.

     For the reasons stated, we affirm.




than the statutory maximum penalty of 360 months, the guideline
range would be 360 months under either offense level.


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