*1 United States Court of Appeals
For the First Circuit
No. 14-1821
UNITED STATES OF AMERICA,
Appellee,
v.
DEREK HINKLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
James S. Hewes, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
September 30, 2015
*2 LYNCH , Circuit Judge . In January 2014, Derek Hinkley entered a conditional guilty plea to one count under federal law of sexual exploitation of a minor. 18 U.S.C. § 2251(a). As allowed by his plea agreement, he now appeals the district court's denial of three motions to suppress. He also challenges his sentence of 300 months of imprisonment. We affirm his conviction and sentence.
I.
As to the motions to suppress, we recite the relevant facts
as found by the district court, consistent with record support.
United States v. Arnott,
On July 17, 2012, Derek Hinkley invited two boys, ages 12 and 15 (Victim #1 and Victim #2 respectively), to spend the night at his apartment, with their parents' permission. Both boys were special education students who had known Hinkley for several months. Hinkley had told them and their parents that he was eighteen years old even though he was actually twenty-eight. On the way to the apartment, Hinkley told the boys it was a "free house" and that they could "walk around naked" if they wanted to. At the apartment, Hinkley showed the boys his knife collection and *3 threatened to cut off their penises if they did not watch pornography and masturbate in front of him using an imitation- vagina sex toy. The boys complied, and Hinkley used a webcam to stream the image of Victim #2 masturbating on a social media site, Omegle.
On July 19, 2012, police officers received a report from one of the boys' parents. On the way to the victims' neighborhood to investigate the matter, police detective Derrick St. Laurent observed a man surrounded by a group of neighborhood children on the sidewalk. St. Laurent approached the man "on a hunch," learned that the man was Hinkley, and then asked him to come to the Lewiston police station for an interview. The reason for asking Hinkley to come to the station, St. Laurent testified, was that he prefers to conduct interviews at the station so that the interviews can be recorded. Hinkley transported himself to the police station for the interview and waited in the lobby for St. Laurent to arrive. Hinkley was then questioned by St. Laurent in an eight-by-twelve foot, windowless room. At the outset of the interview, St. Laurent told Hinkley that he was not in custody, asked him whether he would mind if the door was closed, and reminded him of how to exit the police station in the event of an emergency. Twenty-nine minutes into the interview, St. Laurent told Hinkley that he was still free to leave. Thirty-eight minutes into the interview, he told Hinkley that he was no longer free to leave. At this point, *4 Hinkley received Miranda warnings and signed a consent-to-search form.
Relying on the consent-to-search form, the police then took Hinkley to his apartment and in his presence seized, among other things, a laptop computer and a sex toy. They found approximately eighty images of child pornography in the laptop's internet cache and also found browsing history showing the Omegle website being accessed on July 18, 2012, at approximately 12:53 AM. The police then transported Hinkley to Androscoggin Jail.
On July 20, 2012, Hinkley made further inculpatory admissions during an interrogation at Androscoggin Jail. Before proceeding with that interview, St. Laurent asked if Hinkley remembered the Miranda warnings he was read the previous day. Hinkley answered in the affirmative. St. Laurent nevertheless asked Hinkley whether he wanted the warnings repeated. Hinkley answered in the negative. As such, no new Miranda warnings were given.
On March 12, 2013, Hinkley was indicted on one count of sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a). Hinkley filed motions to suppress three different pieces of evidence: (1) statements he made to Detective St. Laurent at the police station on July 19, 2012; (2) physical evidence seized during a search of his apartment after the July 19, 2012, interview; and (3) statements he made to St. Laurent at *5 Androscoggin Jail on July 20, 2012. The district court denied all three motions.
On January 30, 2014, Hinkley entered a conditional guilty plea on one count of sexual exploitation of a minor. The plea agreement reserved his right to appeal the denial of the three motions to suppress.
The district court calculated Hinkley's guideline sentence range as follows: The base offense level was 32, per U.S.S.G. § 2G2.1. His adjusted offense level was 42, after a two-level enhancement due to the victims being between 12 and 16, a two- level enhancement because the offense involved sexual contact, a two-level enhancement for use of a laptop computer to disseminate images of Victim #2 over the internet, a two-level enhancement because the victims were in his care, and a two-level enhancement for misrepresenting his age. He also received a five-level enhancement for a pattern of activity involving prohibited sexual contact and a three-level reduction for acceptance of responsibility, yielding an offense level of 44. Because the maximum offense level is 43, the total offense level was 43. While the guideline sentence based on his offense level was life imprisonment, the statutorily authorized maximum sentence is 360 months so the guideline range was considered to be 360 months.
On July 28, 2014, Hinkley was sentenced to 300 months of imprisonment, a life term of supervised release, and a $100 special assessment. This appeal followed.
II.
In reviewing a denial of a motion to suppress, we review a
district court's legal conclusions de novo and findings of fact
for clear error. United States v. Fermin,
A. First Motion to Suppress
Hinkley argues that the statements he made during his July 19, 2012, interrogation at the Lewiston police station should be suppressed, for two reasons: first, because he was in custody from the beginning of the interview but did not receive Miranda warnings until partway through, and second, because the Miranda warnings that he was eventually given were inadequate. Neither argument has merit.
Miranda warnings are required only when a person is being
interrogated while in custody. United States v. Crooker, 688 F.3d
1, 10-11 (1st Cir. 2012); see also Miranda v. Arizona, 384 U.S.
436, 444 (1966). A number of factors are relevant to determining
whether a person is in custody for Miranda purposes. These
include: where the questioning occurred, the number of law
enforcement officers present during questioning, the degree of
physical restraint, and the duration and character of the
*7
interrogation. Crooker,
Considering the circumstances, the district court did not err
in finding that Hinkley was not in custody at the outset of the
interview. Hinkley arrived at the police station voluntarily and
was never restrained. See United States v. Francois,
Hinkley argues that the Miranda warnings he was eventually
given were ineffective, for two reasons: first, because he never waived his right to remain silent, and second, because he lacked the capacity to make a valid waiver. As to the first argument, Hinkley made a valid waiver by making uncoerced statements after acknowledging that he understood his Miranda rights. See Berghuis v. Thompkins, 560 U.S. 370, 384 (2010). In making the second argument, Hinkley relies exclusively on expert testimony from his defense psychologist, which he claims is evidence that his waiver was involuntary. However, as the district court found, that expert actually testified that Hinkley had average intelligence, and that Hinkley had demonstrated average performance on a test specifically designed to determine whether he could understand and respond to Miranda warnings. Indeed, the transcript of the interview attests to Hinkley's repeated attempts to resist St. Laurent's increasingly aggressive questioning and his persistence in avoiding a confession, even to the point of fashioning on-the- fly exculpatory explanations for otherwise inculpatory facts. As a result, the district court did not err in finding by a *9 preponderance of the evidence that Hinkley knowingly and intelligently waived his Miranda rights. See id.
B. Second Motion to Suppress
Hinkley argues that physical evidence seized from his apartment should be suppressed for two reasons: first, because it was the fruit of an earlier Miranda violation, and second, because the government failed to obtain valid consent to search. Neither argument has merit.
There was no Miranda violation during the police station
interview, so the evidence was not "fruit of the poisonous tree."
Even if there had been a Miranda violation, failure to give
adequate Miranda warnings does not require suppression of the
physical fruits of those unwarned statements. United States v.
Patane,
In arguing that the government failed to obtain valid consent
to search, Hinkley again points to his expert's report to argue
that he lacked the capacity to consent. To determine whether
consent was voluntary, we examine the totality of the
circumstances, which may include consideration of the defendant's
"age, education, experience, knowledge of the right to withhold
consent, and evidence of coercive tactics." United States v.
Chaney,
C. Third Motion to Suppress
Hinkley argues that statements he made at Androscoggin Jail on July 20, 2012, should be suppressed on the basis of inadequate Miranda warnings. He argues that the detective was required to readminister the full Miranda warnings rather than merely ask if he recalled the previous day's warnings.
Miranda warnings need not be renewed every time there is a
break in questioning. Once an effective Miranda warning is
administered, those warnings remain effective until the passage of
time or an intervening event makes the defendant unable to fully
consider the effect of a waiver. See United States v. Pruden, 398
F.3d 241, 246–47 (3d Cir. 2005). We can presume that the defendant
*11
would remember the warnings even if some time has elapsed between
the warning and the questioning. See United States v. Edwards,
III.
In reviewing the procedural soundness of sentencing, we
review questions of law de novo, factual findings for clear error,
and judgment calls for abuse of discretion. United States v.
Trinidad-Acosta,
Evidentiary requirements at the sentencing stage are
significantly less rigorous than they are at trial. As Hinkley
concedes, there is no Confrontation Clause right at sentencing.
United States v. Luciano,
B. Two-Level Enhancement for Misrepresentation of Identity The district court applied a two-level enhancement pursuant to U.S.S.G. § 2G2.1(b)(6)(A) for Hinkley's misrepresentation of his identity for the purpose of producing and transmitting sexually explicit material. While Hinkley admits that he misrepresented his age, he argues that he should not have received the enhancement because he did not misrepresent any other aspects of his identity.
As Hinkley's counsel conceded at oral argument, this argument
is foreclosed by the guideline application note, which explicitly
*14
includes misrepresentation of age as behavior that could trigger
this enhancement. U.S.S.G. § 2G2.1 cmt. 4(A). Record evidence
amply supports the district court's finding that Hinkley's
misrepresentation of his age as eighteen rather than twenty-eight
was instrumental to his gaining access to his victims, because it
made the minors and their parents put their guards down. See
United States v. Starr,
The district court applied a two-level enhancement under
U.S.S.G. § 2G2.1(b)(2)(A) for an offense involving the commission
of sexual contact. Hinkley argues that this enhancement does not
apply because he never touched the victim, and forced self-
masturbation by the victim does not fit the statutory definition
of sexual contact. See 18 U.S.C. § 2246(3); see also United States
v. Shafer,
We do not decide the merits of this issue because, as Hinkley's counsel conceded at oral argument, any error in the application of this enhancement was harmless. Even if this two- level enhancement were removed, the guideline sentence would remain unchanged. [2] Therefore, "it is sure that the error did not *15 affect the sentence imposed." United States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015) (citing Williams v. United States, 503 U.S. 193, 203 (1992)). Having affirmed the application of the other challenged enhancements, we can say that any error in the application of this two-level enhancement would have been harmless.
D. Substantive Reasonableness
Hinkley argues that his sentence was unreasonable and that he should have received a lower sentence in light of his lack of criminal history, his own history of sexual abuse as a child, his mental health diagnoses, and his vulnerability to being abused in prison. We find no abuse of discretion by the district court, which already took into account these considerations in imposing a below-guidelines sentence.
IV.
For the reasons stated, we affirm.
than the statutory maximum penalty of 360 months, the guideline range would be 360 months under either offense level.
Notes
[1] To avoid confusion, we note that the unnamed "Minor #1" is an eleven-year-old who is a different person from either Victim #1 or Victim #2, who were the victims on July 17, 2012.
[2] Hinkley's offense level was calculated at 44 and then lowered to the maximum level of 43. Removing the two-level enhancement would bring the offense level down to 42. The guideline range for a first-time offender with an offense level of 43 is life imprisonment, as compared to 360 months to life for an offense level of 42. Because both guideline ranges are higher