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United States v. Hanson

United States Court of Appeals, Ninth Circuit

August 28, 2019

United States of America, Plaintiff-Appellee,
v.
Tommy Hanson, Defendant-Appellant.

          Argued and Submitted August 7, 2019 Anchorage, Alaska

          Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding Nos. 5:05-cr-00003-RRB 4:17-cr-00071-RRB.

          John P. Balazs (argued), Sacramento, California, for Defendant-Appellant.

          Robert A. Parker (argued), Attorney; Brian A. Benczkowski, Assistant Attorney General; Kyle F. Reardon and Adam Alexander, Assistant United States Attorneys; Andrea W. Hattan, Appellate Chief; Bryan Schroder, United States Attorney; Criminal Division, Appellate Section, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

          Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel affirmed the defendant's 2017 conviction for receipt of child pornography, vacated the sentences imposed for that conviction and for a violation of supervised release, and remanded for resentencing on both matters.

         The panel held that the district court did not abuse its discretion under Fed.R.Evid. 414 and 404(b) by admitting evidence related to the defendant's 2007 child pornography conviction in his 2017 trial on similar charges.

         The panel held that the district court violated the Ex Post Facto Clause when it sentenced the defendant to five years' imprisonment under 18 U.S.C. § 3583(k) (2006) upon revoking his supervised release rather than sentencing him under the statutes as they existed in 2005 when he committed his first child pornography offense. Under those statutes, the maximum term of reimprisonment the district court could impose after revoking the defendant's supervised release on his Class C felony conviction was two years.

         Reviewing for plain error, the panel agreed with the government that the error was clear and obvious under governing law. The panel held that the record raises at least a reasonable probability that the district court would have imposed a lower total sentence if it had known that the maximum possible sentence on revocation of supervised release was two years rather than five, and that the error affected the defendant's substantial rights. The panel concluded that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings, requiring a remedy.

         Explaining that the "sentencing package" approach to this case is appropriate, the panel vacated the sentences for both the supervised release violation and the 2017 conviction, and remanded for resentencing. The panel wrote that the district court is free to fashion an appropriate combined sentence on remand, provided it does not impose a sentence greater than two years on the supervision matter.

          OPINION

          TALLMAN, CIRCUIT JUDGE.

         Appellant Tommy Hanson had served a prison term and was under supervised release overseen by a United States Probation Officer when he was again found in possession of child pornography. He was convicted by jury verdict and appeared for sentencing on both the 2017 substantive offense and for the violation of the terms of his supervised release triggered by his repeated criminal conduct. In these consolidated appeals he challenges the 15-year sentence imposed for receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and the consecutive five-year prison sentence imposed under 18 U.S.C. § 3583(k), upon revocation of his supervised release. We conclude that the district court violated the Constitution's Ex Post Facto Clause when it sentenced Hanson under section 3583(k), and that this was plain error warranting vacatur of the sentence and a remand for a complete resentencing. We affirm Hanson's 2017 conviction because the district court did not abuse its discretion by admitting evidence related to Hanson's prior 2007 child pornography conviction under Federal Rules of Evidence 414 and 404(b).

         Because Hanson was sentenced for his supervised release violation and his 2017 conviction in the same proceeding, both were based on the same underlying conduct found by a jury beyond a reasonable doubt, and because it appears the district court was attempting to fashion an appropriate "sentencing package" to account for both transgressions, we follow our "customary practice," United States v. Christensen, 828 F.3d 763, 821 (9th Cir. 2015), and remand for resentencing on both the supervised release violation and the 2017 conviction.

         I

         In 2005, federal officers arrested Hanson upon his return from a trip overseas after his housesitter discovered child pornography on his computer. Hanson gave a statement to them in which he admitted to obtaining images of nude underage girls from two online newsgroups, alt.binarypictures.hussie and alt.binarynudism. Hanson had used an application called NewsBin to automatically download illicit images from the newsgroups. Hanson entered a conditional guilty plea in 2007 to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).[1] He was sentenced to 96 months of imprisonment, followed by 60 months of supervised release.

         Upon release from federal prison, Hanson began serving his term of supervised release in June 2012. In October 2016, during a routine inspection of the cabin where Hanson was living, his federal probation officer found Hanson with a laptop, external hard drive, and smartphone in violation of the terms of his supervised release. Hanson admitted the laptop and hard drive were his, but denied that they contained any inappropriate images or content. The probation officer seized the devices and provided them to the FBI for forensic analysis. Eventually, investigators discovered a very large collection of pornography and child pornography on the laptop and hard drive.[2] Both devices also contained copies of the NewsBin application and a similar program called News Rover.

         On May 18, 2017, his probation officer filed a petition recommending revocation of Hanson's supervised release, and a month later, a federal grand jury charged Hanson with receipt and possession of child pornography. Both the petition and the indictment stemmed from the material found on Hanson's seized electronic devices. After a three-day trial, a jury convicted Hanson of receipt of child pornography. Hanson agreed to combine the disposition of his supervised release revocation proceeding with the sentencing in his criminal case.

         In its presentence report for Hanson's 2017 conviction (the "criminal matter" or "criminal conviction"), the probation office noted that the statutory minimum sentence for Hanson's second child pornography conviction was 15 years under 18 U.S.C. § 2252(b)(1). Probation calculated an advisory sentencing range of 210 to 262 months for the offense and recommended the statutory mandatory minimum sentence of 15 years, i.e., 180 months. To redress the breach of the terms of supervised release (the "supervision matter"), the probation office informed the court that 18 U.S.C. § 3583(k) required a minimum term of imprisonment of five years, [3] and further recommended that the sentence be imposed consecutively to the term imposed for Hanson's 2017 conviction. At the combined sentencing proceeding, the district court accepted these recommendations. As a result, the court understood- incorrectly, as it turned out-that it could not impose a total of less than 20 years of imprisonment unless it chose to run the two sentences concurrently rather than consecutively.

         During the proceeding, counsel for the government requested a 20-year sentence for the 2017 conviction consecutive to "whatever sentence the Court imposes on the supervision matter," and asked if the court wished the government "to address the supervision matter as well." The court responded: "Yes. I would like to know what you think the entire sentence should be." Government counsel stated: "My recommendation is 25 years composite, so the 20 years on the trial case, consecutive to the five-year minimum term under 3583(k) on the supervised release violation," noting that it was "appropriate to impose some time consecutive between the supervised release violation and the sentence in this case, because there are two different interests at play."

         In imposing the sentence, the district court said the following:

Here it is significant that the conduct of conviction was the same as the earlier conduct, which shows a pattern of conduct that was undeterred by years of prison, significant time of sexual abuse rehabilitation opportunities, all of which you ignored, none of which you cooperated with, and then you're back doing the same thing in a way that you're trying to hide your conduct. You knew what you were doing was wrong and yet you continued to do it.
That's what leads me to think that when Congress said that someone in your situation should serve at least 15 years, I think that's reasonable, because ...

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