                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 31 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

   UNITED STATES OF AMERICA,                       No.    17-10329

                   Plaintiff-Appellee,             D.C. No.
                                                   CR-00287-KJD-CWH
     v.

   ANDREW J. GIBSON,                               MEMORANDUM*

                   Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                        Argued and Submitted June 7, 2019
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and STATON,** District
Judge.


      Andrew Gibson appeals his conviction and sentence for possessing child

pornography. As to his conviction, Gibson argues that (1) his confession should

have been suppressed, and (2) he should have been permitted at trial to cross-


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
examine Detective Shannon Tooley about her false statement in a prior proceeding.

As to his sentence, Gibson challenges (3) the district court’s application of the

distribution enhancement, (4) the substantive reasonableness of the custodial

sentence, and (5) the term and conditions of supervised release. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm

Gibson’s conviction, vacate the supervised release component of his sentence, and

remand for resentencing.

      1. We review de novo the district court’s denial of Gibson’s motion to

suppress; we review the factual findings underlying the denial for clear error.

United States v. Brobst, 558 F.3d 982, 991 (9th Cir. 2009). Even assuming that

Gibson was “in custody” during questioning for Miranda purposes, Detective

Tooley “adequately conveyed that [Gibson] had the right to consult with an

attorney before questioning,” United States v. Loucious, 847 F.3d 1146, 1151 (9th

Cir. 2017), and thereafter Gibson voluntarily, knowingly, and intelligently waived

his Miranda rights. United States v. Price, 921 F.3d 777, 791 (9th Cir. 2019). The

district court did not err in finding that Gibson did not unequivocally request

counsel. See Davis v. United States, 512 U.S. 452, 461–62 (1994). The recording

of the interrogation is not definitively intelligible, and the district court was in the

best position to resolve conflicting testimony from Gibson and Detective Tooley




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about what was actually said. See United States v. Craighead, 539 F.3d 1073,

1082 (9th Cir. 2008).

      2. We review for abuse of discretion Confrontation Clause challenges to

limits on the scope of cross-examination. United States v. Larson, 495 F.3d 1094,

1101 (9th Cir. 2007) (en banc). Even assuming that the district court abused its

discretion by prohibiting Gibson from questioning Detective Tooley at trial about

false statements she had made in a sworn warrant application in a prior case, any

error was harmless beyond a reasonable doubt. See id. at 1107–08 (citing

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Detective Tooley’s

testimony was largely superfluous in light of the deluge of other evidence against

Gibson, including testimony and corroborating reports from the forensic examiner

regarding the images on Gibson’s computers, forensic evidence and witness

testimony establishing Gibson as the exclusive owner and user of those computers,

and Gibson’s confession.

      3. We review for clear error the district court’s factual finding at sentencing

that Gibson knew that illicit images placed or left in the Ares “shared” folder

would be distributed to other users. See United States v. Gasca-Ruiz, 852 F.3d

1167, 1170 (9th Cir. 2017). The government submitted evidence that Gibson is a

longtime Ares user with a sophisticated understanding of that program and

computers generally, including his statement that he had been using Ares for nearly


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a decade, his testimony that he knew how to remove files from Ares by “hiding”

them in concealed local folders, and his cohabitant’s testimony that Gibson was

“very talented” with computers. Accordingly, the district court did not clearly err

by inferring Gibson’s knowledge of Ares’s automatic file-sharing features and

applying the distribution enhancement.

       4. “We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Cruz-Mendez, 811 F.3d 1172, 1175 (9th Cir. 2016).

Gibson argues that the district judge’s comments regarding lesser sentences for

defendants who admit guilt or accept plea deals indicate that the district judge

improperly punished Gibson for going to trial. But Gibson is not situated similarly

to persons who accepted responsibility or expressed remorse and a recognition of

wrongdoing, and there is no indication that the district judge sought to retaliate

against Gibson for proceeding to trial. See United States v. Carter, 560 F.3d 1107,

1121 (9th Cir. 2009); see also Corbitt v. New Jersey, 439 U.S. 212, 223–24 (1978);

United States v. McKinney, 15 F.3d 849, 853 (9th Cir. 1994) (“Our focus [is] on

the defendant’s personal contrition, rather than on his exercise of his constitutional

rights.”).

       5. We review de novo constitutional challenges to conditions of supervised

release. United States v. Aquino, 794 F.3d 1033, 1036 (9th Cir. 2015). Gibson’s

supervised release requires that he not go “any place where [he] know[s] children


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. . . are likely to be.” This condition leaves Gibson guessing as to how probable a

child’s presence would have to be at a given location—even those locations

commonly understood to cater predominantly to adults—to trigger Gibson’s

exclusion. And, even if the condition were more definite, it would still sweep too

broadly, effectively barring Gibson from any location—be it a grocery store,

hospital, courthouse, or place of worship—where a child was present. The

condition is therefore unconstitutional. See United States v. Evans, 883 F.3d 1154,

1160 (9th Cir. 2018); United States v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007).

      Accordingly, we vacate Gibson’s sentence as to supervised release and

remand for resentencing, at which time Gibson may re-raise his concerns regarding

the basis for imposition of a lifetime term of supervised release; the scope of

pornography-restrictive conditions, see United States v. Gnirke, 775 F.3d 1155 (9th

Cir. 2015); whether a prospective familial exception to location-restrictive

conditions is required, see United States v. Wolf Child, 699 F.3d 1082 (9th Cir.

2012); and whether the written judgment aligns with the oral pronouncement.

AFFIRMED in part; VACATED and REMANDED in part.




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