                                                                           FILED
                                                                            NOV 24 2009
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30298

             Plaintiff - Appellee,               D.C. No. 5:05-CR-00003-JWS-1

  v.
                                                 MEMORANDUM *
TOMMY HANSON,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                          Submitted November 2, 2009 **
                              Seattle, Washington

Before: ALARCÓN, FERNANDEZ and CLIFTON, Circuit Judges.

       Tommy Hanson appeals his conviction and sentence for possession of child

pornography under 18 U.S.C. § 2252(a)(4)(B). We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      The district court did not err in denying Hanson’s motion to suppress. Nyna

Fleury did not act “as an ‘instrument or agent’ of the government” when she went

on Hanson’s computer and discovered child pornography. United States v. Young,

153 F.3d 1079, 1080 (9th Cir. 1998) (quoting Walter v. United States, 447 U.S.

649, 656 (1980)). Fleury’s discovery, which she volunteered to police, provided

probable cause to support the search warrants executed on February 12, February

25, and June 7, 2005. Hanson consented to the computer search executed after his

arrest, which consisted only of Officer Villers moving a computer mouse with

Hanson’s permission and seeing images of child pornography in plain view on the

screen.

      Hanson made his post-arrest statements to police voluntarily, and these

statements did not violate his right to counsel. Nothing in the record suggests even

the slightest police coercion or vulnerability on Hanson’s part that might indicate

that his statements “were not the product of a rational intellect and a free will.”

Mincey v. Arizona, 437 U.S. 385, 398 (1978) (internal quotation marks omitted).

Hanson validly waived his Miranda rights in writing after his arrest. Hanson’s

right to counsel was not violated. Hanson’s mention—over two months before his

arrest— that he “wanted to look at what he was charged with and talk to a lawyer”

was not a valid invocation of his right to counsel. Hanson made the statement long


                                           2
before he was in custody. Cf. United States v. Wright, 962 F.2d 953, 955 & n.2 (9th

Cir. 1992) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991)) (right to

counsel cannot be invoked before defendant is in custody).

      The district court did not err in denying Hanson’s motion to withdraw his

guilty plea because of ineffective assistance of counsel. The court correctly

concluded that counsel’s advice about the sadistic or masochistic enhancement was

not “a gross mischaracterization of the likely outcome,” United States v. Jeronimo,

398 F.3d 1149, 1155 (9th Cir. 2005); that Hanson’s contention that counsel failed

to explain “relevant conduct” was not credible; and that the failure to obtain an

additional sentencing point reduction was traceable to Hanson’s own decision, not

his attorney’s. None of Hanson’s ineffective assistance arguments amounts to a

“fair and just reason for requesting the withdrawal” of his guilty plea. Fed. R.

Crim. P. 11(d)(2)(B).

      Hanson’s sentence is not one of the “exceedingly rare” sentences that is so

“grossly disproportionate to the severity of the crime” that it is prohibited by the

Eighth Amendment. Rummel v. Estelle, 445 U.S. 263, 271, 272 (1980).

      AFFIRMED.




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