                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 31 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   16-10237

                Plaintiff-Appellee,             D.C. No. 4:14-cr-00638-JD-1

 v.
                                                MEMORANDUM*
KONRAD P. WOLFF,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                     Argued and Submitted October 19, 2017
                           San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,** District Judge.

      Konrad Wolff appeals his conviction and sentence entered after a bench trial

on stipulated facts for receiving child pornography in violation of 18 U.S.C.

§ 2252(a)(2). We affirm.

      1. Wolff argues that police violated the Fourth Amendment’s prohibition


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
against unreasonable seizures by accepting his hard drive and other electronic

devices from his wife. The district court correctly rejected this argument. There is

no evidence that Wolff’s wife acted as an agent of the police; rather, the record is

clear that she contacted the police and voluntarily relinquished the items because she

was concerned they contained child pornography. “The government’s acceptance

of documents obtained in a private search and voluntarily relinquished to

government agents does not constitute a seizure . . . .” United States v. Black, 767

F.2d 1334, 1340 n.4 (9th Cir. 1985); see also Coolidge v. New Hampshire, 403 U.S.

443, 487 (1971) (“Had [the defendant’s wife], wholly on her own initiative, sought

out her husband’s guns and clothing and then taken them to the police station to be

used as evidence against him, there can be no doubt under existing law that the

articles would later have been admissible in evidence.”).         We reject Wolff’s

argument that Black was superseded by United States v. Jacobsen, 466 U.S. 109

(1984) and United States v. Jones, 565 U.S. 400 (2012). A three-judge panel must

follow the decisions of previous panels unless the prior decision “is clearly

irreconcilable with the reasoning or theory of intervening higher authority.” Miller

v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).             Jacobsen is not

“intervening” authority because it was decided after Black. Jones is not “clearly

irreconcilable” with Black because it is concerned with searches rather than seizures,

see Jones, 565 U.S. at 408, and does not consider whether a Fourth Amendment


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seizure occurs when a private citizen voluntarily relinquishes another’s property to

the government.

      2. Wolff argues that the search warrants pursuant to which the hard drive and

the electronic devices were searched were not premised on a showing of probable

cause. To the contrary, the affidavits submitted by a police officer in support of the

warrant applications provided ample reason to find probable cause. The affidavit in

support of the warrant application to search the hard drive stated that Wolff’s wife

had personally viewed the photos on the hard drive and reported seeing “‘hundreds’

of images of minors engaged in sexual acts or exposing themselves in a sexual

manner.” See United States v. Smith, 795 F.2d 841, 847–49 (9th Cir. 1986). The

affidavit in support of the warrant application to search the other devices added that,

based on the officer’s training and experience, “pedophiles collect and keep such

sexually explicit materials . . . on computers, computer peripherals, and other

electronic devices capable of storing and/or viewing electronic information.” See

United States v. Lacy, 119 F.3d 742, 746 & n.6 (9th Cir. 1997).

      3. Wolff argues that the district court committed procedural error by failing

to recognize at the time of sentencing its ability to vary from the child pornography

Guidelines under Kimbrough v. United States, 552 U.S. 85 (2007). “[A] district

court commits procedural error when it fails to appreciate its Kimbrough discretion

to vary from the child pornography Guidelines based on a categorical policy


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

2011). But, “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.” Id. The judge expressly noted that he had “read and considered” Wolff’s

sentencing memorandum, which reminded the court of its discretion under

Kimbrough. The judge also characterized the Guidelines during sentencing as

“advisory,” and imposed a sentence in the middle of the Guidelines range. And, the

judge noted that though he had “some concerns that [the sentence] understates the

gravity of Mr. Wolff’s offense,” the sentence was “sufficient but not greater than

necessary to meet . . . the policies of sentencing.” There is thus no indication in this

case that the district court either thought the Guidelines were too harsh or failed to

appreciate its Kimbrough discretion.

      4. Wolff argues his waiver of his challenge to the restitution award is invalid

because the district court negotiated this waiver at sentencing. But, the district court

neither “initiated” nor “directly negotiated” the waiver. United States v. Gonzalez–

Melchor, 648 F.3d 959, 965 (9th Cir. 2011). Rather, the judge initially expressed

his concerns about awarding Wolff a reduction under § 3E1.1(b) of the United States

Sentencing Guidelines for “assist[ing] authorities in the investigation or prosecution

of his own misconduct” because he “did not plead guilty,” “has opposed all

restitution,” and “reserved his right to appeal,” and invited counsel to respond.


                                           4
Wolff’s counsel then indicated that the challenge to restitution was entirely “on legal

grounds” and offered to “concede the restitution issue and moot that issue on

appeal.” After confirming that this was Wolff’s desire, the court granted Wolff an

additional level of reduction under § 3E1.1(b). The court neither requested an

appellate waiver nor promised the § 3E1.1(b) reduction in return for the waiver. This

case is thus not like Gonzalez–Melchor, in which the judge initiated the exchange

by stating he would “like to hear” the defendant waive his right to appeal and that

he would grant a “substantial reduction” in the sentence if the defendant did so. 648

F.3d at 961.

      AFFIRMED.




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                                                                         FILED
United States v. Wolff, 16-10237
                                                                          OCT 31 2017
GWIN, District Judge, dissenting:                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      I concur with the majority’s Fourth Amendment analysis. However, I believe

we should remand this case for resentencing. For that reason, I dissent in part.

      At sentencing, the district court unnecessarily involved itself in plea

negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1). The

district judge essentially engaged the defendant in a trade. If the defendant waived

the defendant’s objection to restitution, the district court would award a third level

for acceptance of responsibility under §3E1.1(b).

      Although the government had earlier moved the court for a full three-level

Guidelines reduction for acceptance of responsibility, the district judge refused the

government’s motion unless Wolff withdrew his objection to restitution. Thereafter,

in exchange for Wolff’s agreement not to challenge a restitution order, the district

judge gave Wolff the full three-level acceptance of responsibility reduction.1

Functionally, Wolff’s Guidelines recommended incarceration shifted downward in

exchange for Wolff’s agreement not to challenge $6,000 in restitution.

      Additionally, I believe that the district judge failed to adequately address


1
 Transcript of Sentencing Hearing at 6 (“The Court: ‘So – we’re clear . . . Mr.
Wolff will pay the restitution to the three victims in the amounts specified in the
presentence report and not challenge that order on appeal; is that right?’ [Defense
Attorney] Hansen: ‘So waived.’ The Court: ‘Okay. All right. I will grant, then, the
additional level of reduction on the government’s motion.’”).
Wolff’s arguments regarding reasons to vary from the Guidelines under Kimbrough

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

      Both the Supreme Court and the Ninth Circuit have held that “when a party

raises a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in

support of a requested sentence, then the judge should . . . explain why he accepts or

rejects the party’s position.” United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.

2008) (en banc) (citing Rita v. United States, 551 U.S. 338, 356 (2007)). While the

district judge here did provide a number of reasons for why he imposed the sentence

he chose, he did not “go further and explain why he . . . rejected” Wolff’s

nonfrivolous argument. See Rita, 551 U.S. at 357.

      I respectfully dissent in part.




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