                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 11 2015

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50108

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00384-ODW-1

  v.
                                                 MEMORANDUM*
CHARLES STANLEY KOWALESKI, III,
aka Charles S. Kowaleski,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                      Argued and Submitted February 6, 2015
                               Pasadena California

Before: KLEINFELD and GOULD, Circuit Judges, and GETTLEMAN, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
      Charles Stanley Kowaleski appeals his conviction and sentence for receipt of

child pornography and possession of child pornography. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

      1. The district court did not abuse its discretion in admitting the images and

video clips despite Kowaleski’s challenge under Federal Rule of Evidence 403.

First, despite Kowaleski’s offered stipulations, including the stipulation that a

reasonable person looking at the images even momentarily would know that the

images were child pornography, the images and video files shown at trial were

relevant to proving Kowaleski’s knowledge of the files, and that he acted

“knowingly,” and to undercutting Kowaleski’s asserted theory that a roommate had

used Kowaleski’s computer to download and store the files. Also, the district

court’s careful voir dire and cautionary instruction to the jury, combined with the

fact that the images and video were only shown once and only three images and

five video clips totaling less than a minute were shown, minimizes any prejudice.

See United States v. Ganoe, 538 F.3d 1117,1120, 1123–24 (9th Cir. 2008)

(rejecting an appeal involving similar offered stipulations where images and video

were relevant to negate the defendant’s theory that he had downloaded them

without knowing they were child pornography). United States v. Merino-

Balderrama, 146 F.3d 758, 762–63 (9th Cir. 1998), is distinguishable because in


                                          2
that case more than ten minutes of film were shown, there was no evidence that the

defendant had ever viewed the film, and his knowledge of file content could have

been established by still images of child pornography on the covers of the tapes.

      2. The district court did not commit procedural error in sentencing

Kowaleski. The district court did say that 44,000 images was more than it had

encountered in any case before, and that the seriousness of the crime was

underscored by the fact that “44,660 images files and 210 movie files of child

pornography had been seized.” But reading the transcript in context shows that the

district court was aware that many of the images were not child pornography. The

district court acknowledged as much, stating that the top sentencing enhancement

only required 600 images, and that whatever the number, there were a lot of

images. The district court confirmed its reasoning in applying that enhancement

on the basis that 120 of the video files that were confirmed as child pornography

converted to over 9000 images under the Sentencing Guidelines. See U.S.S.G. §

2G2.2 cmt. n.4(b)(ii). While the references to the 44,000 images could have been

clearer, we will not vacate the sentence on that basis. See United States v.

Vanderwerfhorst, 576 F.3d 929, 936 (9th Cir. 2009).

      The transcript of the sentencing hearing also shows that after correctly

calculating the Sentencing Guidelines range, the district court carefully considered


                                          3
and responded to Kowaleski’s arguments and gave reasons for its sentencing

decision consistent with the sentencing factors under 18 U.S.C. § 3553. This is

consistent with our procedural requirements related to sentencing. See United

States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008).

      3. Based on the district court’s analysis of the § 3553 factors, there is

nothing in the record to suggest that the district court’s below-Guidelines sentence

is substantively unreasonable. See id. at 993.

      AFFIRMED.




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