NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Appeal from the United States District Court for the District of Nevada Kent J. Dawson , District Judge, Presiding Argued and Submitted June 7 , 2019 Portland, Oregon Before: MURGUIA and HURWITZ, Circuit Judges, and STATON, * * District Judge.

Andrew Gibson appeals his conviction and sentence for possessing child pornography. As to his conviction, Gibson argues that (1) his confession should have been suppressed, and ( 2) he should have been permitted at trial to cross

-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Josephine L. Staton, United States District Judge for the Central District of California, sitting by designation. UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ANDREW J. GIBSON ,

Defendant

- Appellant. No. 1 7

- 10329
D.C. No. CR

- 00287

- KJD

- CWH

MEMORANDUM * 

# FILED

JUL 31 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

examine Detective Shannon Tooley about her false statement in a prior proceeding

. As to his sentence, Gibson challenges (3) the district court’s application of the
distribution enhancement, (4) the substantive reasonableness of the custodial sentence, and (5) the term and conditions of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742

. W e affirm Gibson’s conviction, vacate the supervised release componen t of his sentence, and remand for resentencing

. 1. We review de novo the district court ’ s denial of Gibson ’ s motion to
suppress ; we review the f actual findings underlying the denial for clear error.
United States v. Brobst , 558 F.3d 982, 991 (9th Cir. 2009)

. Even a ssuming that Gibson was “in custody” during questioning for Miranda purposes, Detective Tooley “ adequately convey ed that [Gibson] had the right to consult with an attorney before questioning , ” United States v. Loucious , 847 F.3d 1146, 1151 (9th Cir. 2017) , and thereafter Gibson voluntarily, knowingly, and intelligently waived his Miranda rights

. United States v. Price , 921 F.3d 777, 791 (9th Cir. 2019)

. T he
district court did not err in finding that Gibson did not unequivocally request counsel

. See Davis v. United States , 512 U.S. 452, 461

– 62 (1994). T he recording of the interrogation is not definitively intelligible , and the district court was in the best position to resolve conflicting testimony from Gibson and Detective Tooley3

about what was actually said

. See United States v. Craighead , 539 F.3d 1073,
1082 (9th Cir. 2008)

. 2. We review for abuse of discretion Confrontation Clause challenges to limit s on the scope of cross - examination . United States v. Larson , 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc). Even assuming that t he district court abused its discretion by prohibiting Gibson from questioning Detective Tooley at trial about false statements she had made in a sworn warrant application in a prior case , any

error was harmless beyond a reasonable doub t. See id. at 1107

– 08 (citing
Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986) ). Detective Tooley’s testimony was largely superfluous in light of the deluge of other evidence against Gibson, including testimony and corroborating reports from the forensic examiner regarding the images on Gibson’s computers , forensic evidence and witness testimony establishing Gibson as the exclusive owner and user of those computers , and Gibson ’s confession.
3. We review for clear error the district court’s fac tual finding at sentencing
that Gibson knew that illicit images placed or left in the Ares “shared” folder
would be distributed to other users. See United States v. Gasca

- Ruiz , 852 F.3d 1167, 1170 (9th Cir. 2017). T he government submitted evidence that G ibson is a lon gtime Ares user with a sophisticated understanding of that program and computers generally , including his statement that he had been using Ares for nearly4

a decade , his testimony that he knew how to remove file s from Ares by “hiding” them in concealed local folders, and his cohabitant’s testimony that Gibson was “very talented” with computers

. Accordingly, the district court did not clearly err by inferring Gibson ’s knowledge of Ares ’ s automatic file

- sharing fea tures and applying the distribution enhancement

. 4. “We review the substantive reasonableness of a sentence for abuse of
discretion. ” United States v. Cruz

- Mendez , 811 F.3d 1172, 1175 (9th Cir. 2016)

. Gibson argues that the district judge’s comments regarding lesser sentences for defendants who admit guilt or accept plea deals indicate that the district judge improperly punished Gibson for going to trial

. But Gibson is not situated similarly to persons who accepted responsibility or express ed remorse and a recognition of wrongdoing , and t here is no indication that the district judge sought to retaliate against Gibson for proceeding to trial. See United States v. Carter , 560 F.3d 1107, 1121 (9th Cir. 2009); see also Corbitt v. New Jersey , 43 9 U.S. 212, 223

– 24 (1978) ; United States v. McKinney , 15 F.3d 849, 853 (9th Cir. 1994) (“Our focus [is] on the defendant’s personal contrition, rather than on his exercise of his constitutional rights .”).
5. We review de novo constitutional challenges to conditions of supervised
release. United States v. Aquino , 794 F.3d 1033, 1036 (9th Cir. 2015). Gibson’s supervised release requires that he not go “any place where [he] know[s] children5

. . . are likely t o be.” This condition leaves Gibson guessing as to how probable a child ’ s presence would have to be at a given location

— even those locations commonly understood to cater predominantly to adults

— to trigger Gibson ’ s exclusion. And, even if the condition we re more definite, it would still sweep too broadly, effectively barring Gibson from any location

— be it a grocery store, hospital, courthouse, or place of worship

— where a child was present. The condition is therefore unconstitutional. See United States v. Evans , 883 F.3d 1154, 1160 (9th Cir. 2018); United States v. Soltero , 510 F.3d 858, 866 (9th Cir. 2007). Accordingly, we vacate Gibson’s sentence as to supervised release and remand for resentencing , at which time Gibson may re - raise his concerns regarding the basis for imposition of a lifetime ter m of supervised release ; the scope of pornography

- restrictive conditions , see United States v. Gnirke , 775 F.3d 1155 (9th Cir. 2015); whether a prospective familial exception to location

- restrictive condi tions is required, see United States v. Wolf Child , 699 F.3d 1082 (9th Cir. 2012) ; and whether the written judgment aligns with the oral pronouncement.
AFFIRMED in part; VACATED and REMANDED in part.