                         NOT FOR PUBLICATION
                    UNITED STATES COURT OF APPEALS
                         FOR THE NINTH CIRCUIT                                FILED
                                                                               MAR 24 2014
UNITED STATES OF AMERICA,                        No. 13-30015
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00008-DLC-1

  v.
                                                 MEMORANDUM*
WAYNE ALAN PARTIN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                       Argued and Submitted March 7, 2014
                                Portland, Oregon

Before:       TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior
              District Judge.**

       Wayne Alan Partin appeals his sentence following his guilty pleas for

conspiring to distribute controlled substances in violation of 21 U.S.C. § 846 and

accessing with intent to view child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B). The district court sentenced Partin to concurrent 120-month

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
sentences on each count. We have jurisdiction under 28 U.S.C. § 1291. We vacate

Partin’s sentence on both counts and remand.

      The appeal waiver in Partin’s plea agreement does not bar his appeal

because the applicable waiver provision was never mentioned during the plea

colloquy, and the district court misstated the scope of the provision it did mention.

See Fed. R. Crim. P. 11(b)(1)(N); United States v. Arellano-Gallegos, 387 F.3d

794, 797 (9th Cir. 2004) (finding plain error under Rule 11 where “the plea waiver

was never mentioned in open court prior to the acceptance of the plea”). We note

that neither the government nor defense counsel, who were present at the colloquy

and knew the terms of the plea agreement, brought these mistakes to the district

court’s attention.

      The district court correctly calculated the Sentencing Guidelines range for

Partin’s child pornography offense. The government did not have to prove that

Partin controlled the images of child pornography found in his computer cache,

shadow volume, and unallocated space. Unlike the defendant in United States v.

Kuchinski, 469 F.3d 853 (9th Cir. 2006), who was convicted of possessing child

pornography, id. at 856, Partin pled guilty to accessing with intent to view child

pornography. Therefore, for Partin’s offense to have “involved . . . 600 or more

images,” U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2G2.2(b)(7)(D), Partin


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need only have accessed with intent to view those images. Partin’s arguments that

this renders the Sentencing Guidelines nonsensical are without merit.

      The district court did not clearly err in finding that Partin accessed with

intent to view 600 or more images of child pornography. Partin visited about

2,000 individual pages on a website containing child pornography. Each page

contained twenty-one thumbnail images, some of which were images of child

pornography and some of which were not. The government’s expert testified that

every image was immediately viewable at the top of each page. The government’s

expert also testified that each of the more than 1,800 images of child pornography

on Partin’s computer must have appeared on a page that Partin actually visited.

The government thus established that every image on Partin’s computer appeared

at the top of his computer screen. It was not clear error to find that Partin accessed

with intent to view 600 or more of those images.

      The district court did not strictly comply with Fed. R. Crim. P. 32 because it

referenced disputed facts at sentencing without resolving the dispute. See Fed. R.

Crim. P. 32(i)(3)(B) (“At sentencing, the court . . . must—for any disputed portion

of the presentence report or other controverted matter—rule on the dispute or

determine that a ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in sentencing . . . .”);


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United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc)

(requiring “strict compliance” with Rule 32). The district court referenced the

disputed fact that Partin transported drugs in five-gallon buckets, implying that his

crime involved an enormous quantity of drugs. Further, the district court

referenced Partin’s intent to sell the drugs when he had denied such an intent,

contending instead that he intended merely to distribute them. We cannot be

confident that the district court did not rely on these disputed facts in weighing the

18 U.S.C. § 3553(a) factors, deciding what weight—if any—to give the

government’s U.S.S.G. § 5K1.1 motion, and calculating Partin’s overall sentence.

See United States v. Bay, 820 F.2d 1511, 1514 (9th Cir. 1987) (noting that a

sentence depends on “the totality of the circumstances” and is not “tied

inextricably” to any one crime of conviction).

      Because it is a common and commendable practice for district judges to

consider sentences holistically, see 18 U.S.C. § 3553(a), we vacate Partin’s

sentence on both counts and remand for resentencing on an open record, even

though the district court did not err in imposing sentence on the accessing child

pornography count. See Fernandez-Angulo, 897 F.2d at 1516 n.2; United States v.

Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc).

      VACATED and REMANDED.


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