                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10128

              Plaintiff - Appellee,              D.C. No. 3:10-cr-08036-DGC-1

  v.
                                                 MEMORANDUM *
RICHARD LARRY SELF, AKA Richard
Self,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                            Submitted August 6, 2012 **
                             San Francisco, California

Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and KORMAN,
Senior District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Richard Self was convicted of three counts of transporting child

pornography and three counts of possession of child pornography, in violation of

18 U.S.C. §§ 2252A(a)(1), (a)(5)(B), and 2256. Before trial, Self moved to

suppress all evidence discovered at his home and in his semi-truck on the grounds

that the information used to obtain the search warrant was stale and insufficient to

establish probable cause. The district court denied Self’s motion and, after trial,

imposed a 135-month sentence. Self appeals the denial of his motion to suppress

and challenges his sentence as procedurally erroneous and substantively

unreasonable. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. §

1291, and we affirm.1

      We review the district court’s denial of a motion to suppress de novo and the

magistrate’s factual findings for clear error. United States v. Hill, 459 F.3d 966,

970 (9th Cir. 2006). “[T]he duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause existed.”

Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal quotation marks and

alterations omitted). We review a district court’s sentence for reasonableness.

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).



      1
             Because the parties are familiar with the facts and procedural history
we do not restate them here except as necessary to explain our decision.

                                           2
      1.     In United States v. Lacy, 119 F.3d 742 (9th Cir. 1997), we held that an

affidavit similar to the one at issue here provided non-stale information despite a

ten-month lapse between the first lead and the issuance of the search warrant. We

reached this conclusion because the affidavit specifically outlined the

characteristics of child pornographers to retain their collections for long periods of

time. Id. at 745-46; accord United States v. Gourde, 440 F.3d 1065, 1072 (9th Cir.

2006) (en banc) (“Collectors act like ‘pack rats’ because they have difficulty

obtaining images of child pornography.”). Here, the affidavit described not only

these characteristics of child pornography acquirers, but also the ability to recover

information from a computer months or even years after it was first viewed or

downloaded. Cf. Lacy, 119 F.3d at 746.

      Other federal circuits have extended the temporal component of Lacy to

cover longer lapses due to these same factors. See United States v. Allen, 625 F.3d

830, 842 (5th Cir. 2010) (eighteen-month-old information is not stale); United

States v. Lemon, 590 F.3d 612, 614-15 (8th Cir. 2010) (same); United States v.

Frechette, 583 F.3d 374, 378-79 (6th Cir. 2009) (sixteen months is not stale);

United States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005) (one year is not stale).

We agree with their well-reasoned analyses based on Lacy, and hold that a

fourteen-month lapse does not render the information in this case stale.


                                           3
      Although Self contends that this case is more akin to United States v. Weber,

923 F.2d 1338 (9th Cir. 1990), the key distinction is the nature of the storage

device. Whereas Weber involved a mail package with printed photographs, this

case, like Lacy, involves electronic images stored on a computer, which is capable

of retaining material for months or even years after it has been viewed. Self also

asserts that the information in the affidavit underlying the search warrant was

insufficient to establish probable cause. However, the search warrant was based on

sufficient information provided in the detailed affidavit, and the additional facts

Self contends were lacking were unnecessary.

      The second search warrant was based upon evidence discovered during the

first search. If the first search was valid, this evidence was sufficient to establish

probable cause for the second warrant. Because we hold that the first search

warrant was valid, we also hold that the district court did not err in denying Self’s

motion to suppress evidence obtained from the second warrant.2

      2.     In analyzing the reasonableness of Self’s sentence, we must first

determine if the district court committed procedural error, then ascertain whether

the sentence was substantively reasonable. Gall v. United States, 552 U.S. 38, 51


      2
              Because we hold that the information was not stale, we do not reach
the issue of whether the good faith exception applies under United States v. Leon,
468 U.S. 897 (1984).

                                            4
(2007). The district court did not commit procedural error where it heard Self’s

arguments, denied a motion for downward departure that included most of his

arguments, and thoroughly explained its reasons for giving a within-Guidelines

sentence. Moreover, “district courts are not obligated to vary from the child

pornography Guidelines on policy grounds if they do not have, in fact, a policy

disagreement with them.” United States v. Henderson, 649 F.3d 955, 964 (9th Cir.

2011). There is nothing to indicate that the district court did not understand its

discretion to depart from the applicable Guidelines range under Kimbrough v.

United States, 552 U.S. 85 (2007).

      Self’s sentence, which was at the low end of the Guidelines range, is

substantively reasonable under the totality of the circumstances, including his

failure to accept responsibility and lack of unique mitigating factors. See Gall, 552

U.S. at 51; Carty, 520 F.3d at 996. Thus, the district court imposed a reasonable

sentence.

      AFFIRMED.




                                           5
