                                                                            FILED
                           NOT FOR PUBLICATION                              FEB 18 2011

                                                                        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. 08-50045

              Plaintiff - Appellee,              D.C. No. CR-04-00042-VAP-1

  v.
                                                 MEMORANDUM *
JAMES SANDERS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

       James Sanders appeals his conviction for conspiring to possess and

possessing child pornography, traveling interstate with the intent to engage in a

sexual act with a minor, and aggravated sexual abuse of a minor under 12 years of

age. On appeal, Sanders challenges: (1) the district court’s denial of his motion to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
suppress statements he made and evidence obtained from a backpack seized from

his work truck when he was detained; (2) the sufficiency of the evidence regarding

the counts on sexual abuse of a minor; (3) prosecutorial misconduct in the way of

improper vouching; and (4) the reasonableness of his 240-month sentence. We

affirm his conviction and sentence.1

      1. The denial of a motion to suppress is reviewed de novo and the trial

court’s factual findings are reviewed for clear error. United States v. Aukai, 497

F.3d 955, 958 (9th Cir. 2007). Here, Agent Arnold properly detained Sanders

while executing a valid warrant, and we have held that Miranda warnings are not

required for a detention incident to a valid search warrant, so long as the officers’

questioning “stays within the bounds of questioning permitted during a Terry

stop.” United States v. Davis, 530 F.3d 1069, 1080-81 (9th Cir. 2008). Even if

Sanders were in custody when his first statements were made, the statements were

admissible because he spoke spontaneously after he was told not to talk and that he

would be given Miranda warnings later. His later statements were made when he

was no longer in custody, and thus are admissible. Moreover, his backpack and the

laptop computer in the backpack were seized based on probable cause that they



      1
             The parties are familiar with the facts and we repeat them here only as
necessary to explain our decision.

                                           2
contained evidence of illicit activity or contraband, namely child pornography.

Accordingly, the district court did not err in admitting evidence of Sanders’

statements and the contraband.

      2. In reviewing a challenge to the sufficiency of the evidence to support a

conviction, the court considers whether, viewing the evidence in the light most

favorable to the prosecution, “no rational trier of fact could have found proof of

guilt beyond a reasonable doubt.” United States v. Stanton, 501 F.3d 1093, 1100

(9th Cir. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). Here,

viewed in the light most favorable to the prosecution, the evidence in the form of

chat logs, Sanders’ testimony, and the testimony of the minor’s father, was

sufficient to support the jury’s finding that Sanders traveled to New Mexico with

the intent to engage in sex with a minor and that he did travel to New Mexico and

attempted to engage in sex with a seven year-old boy in December 2000. The

district court properly denied Sanders’ motion for acquittal.

      3. Although generally a prosecutor may not express his opinion of the

defendant’s guilt or his belief in the credibility of a government witness, we have

recognized that a prosecutor must “have reasonable latitude to fashion closing

arguments,” including “the freedom to argue reasonable inferences based on the

evidence.” United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).


                                          3
Moreover, where, as here, there is no timely objection in the district court to a

prosecutor’s alleged vouching, on appeal, the defendant’s claim is reviewed only

for plain error. United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007).

Here, even if the prosecutor’s statement concerning a witness’s candor and honesty

was vouching, it was not plain error and, in light of the considerable evidence of

Sanders’ guilt, there is no “miscarriage of justice” in affirming his conviction. See

Molina, 934 F.2d at 1446.

      4. A district court’s sentencing decision is reviewed for abuse of discretion.

Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc). When a district court departs from the

Guidelines, it should “ensure that the justification is sufficiently compelling to

support the degree of the variance,” and on appeal, we consider the totality of the

circumstances and “give due deference to the district court’s decision.” Carty, 520

F.3d at 991, 993. We also give considerable deference to a district court’s

determination of the appropriate supervised release conditions, reviewing those

conditions deferentially, for abuse of discretion. United States v. Weber, 451 F.3d

552, 557 (9th Cir. 2006). Here, the district court properly considered the

Guidelines, the factors set forth in 18 U.S.C. § 3553(a), and Sanders’ arguments

concerning his age and solitary situation. The district court adequately explained


                                           4
its reasons for the sentence imposed. Sanders has not shown that the conditions of

supervised release limiting the materials he may possess and the organizations with

which he may associate are an abuse of the district court’s discretion.

      Sanders’ conviction and sentence are AFFIRMED.




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