UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4326

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HARRY DALE PETERSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(CR-03-118)

Submitted: September 16, 2005 Decided: October 14, 2005

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jill E. M. HaLevi, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. J. Strom Thurmond, Jr., United

States Attorney, M. Rhett DeHart, Assistant United States Attorney,

Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Pursuant to a written plea agreement, Harry Dale Peterson

entered a conditional plea of guilty to one count of knowingly

possessing images of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B) (2000). He was sentenced to twenty-seven months’

imprisonment followed by a three-year term of supervised release.

Peterson’s counsel filed a brief raising the issue of whether

Peterson’s sentence is unconstitutional in light of Blakely v.

Washington, 542 U.S. 296 (2004). Although Peterson’s attorney

admits additional claims have no merit, she also raises the issues

of whether the court erred by denying motions to suppress evidence,

to dismiss the indictment, and to depart downward from the

sentencing guidelines, under Anders v. California, 386 U.S. 738

(1967).

We first consider whether the court properly denied

Peterson’s motion to suppress the images found on Peterson’s

computer. This court reviews the legal conclusions regarding a

motion to suppress de novo. United States v. Kitchens, 114 F.3d

29, 31 (4th Cir. 1997). There are no factual disputes regarding

the search. For a search warrant to be supported by probable

cause, a nexus must be established between the place searched and

the alleged criminal activity. United States v. Lalor, 996 F.2d

1578, 1582 (4th Cir. 1993). 
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Moreover, “[a] valid search warrant may issue only upon

allegations of ‘facts so closely related to the time of the issue

of the warrant as to justify a finding of probable cause at that

time’” United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir.

1984). “The vitality of probable cause cannot be quantified by

simply counting the number of days between the occurrence of the

facts supplied and the issuance of the affidavit." Id. at 1336.

Furthermore, other circuits have found that child pornographers

keep their contraband for a long time and have upheld searches

conducted much longer than five days after the information upon

which the search was based became known. See United States v.

Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997) (upholding search based

on information ten months old). Finally, we note the South

Carolina law that requires computer technicians to disclose

materials containing child pornography does not confer law

enforcement status upon the technicians. United States v. Jarrett,

338 F.3d 339, 344-45 (4th Cir. 2003). After thoroughly reviewing

the record, we conclude the court properly denied Peterson’s motion

to suppress. 

We next consider whether the court properly denied a

motion to dismiss the indictment based on the First and Fifth

Amendments. The Supreme Court has held that the viewing of

photographs of naked children is an unprotected activity because of

the harm inflicted on the children. Ashcroft v. Free Speech
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Coalition, 535 U.S. 234, 245-51 (2002). The Supreme Court has

further held that the protections of the First Amendment do not

extend to child pornography where the criminal statute focuses on

the well-being of the children. See New York v. Ferber, 458 U.S.

747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990). We conclude

therefore the court properly found 18 U.S.C. § 2252A(a)(5)(B)

constitutional.

We next address the issue of whether the court properly

denied Peterson’s motion for downward departure. This court has no

authority to review a refusal to grant a motion to depart, unless

the district court erroneously believed that it did not have the

authority to depart. United States v. Underwood, 970 F.2d 1336,

1338 (4th Cir. 1992). Because we conclude the district court was

aware it had the authority to depart, we decline to review the

court’s denial of his motion.

Finally, Peterson’s attorney argues Peterson’s sentence

was unconstitutional under Blakely, the precursor to United States

v. Booker, 543 U.S. , 125 S. Ct. 738 (2005). Booker applies to

all cases pending on direct review at the time it was decided. 125

S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328

(1987)). Because Peterson did not raise his sentencing challenge

in the district court, his constitutional claims under Blakely and

Booker are reviewed for plain error. United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005). In Booker, the Supreme Court held
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that Blakely applied to the federal sentencing guidelines and that

the mandatory manner in which the federal sentencing guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment. 125 S. Ct. at 746, 750.

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence. If it imposes a

sentence outside the guideline range, the district court must state

its reasons for doing so. Hughes, 401 F.3d at 546. This remedial

scheme applies to any sentence imposed under the mandatory

guidelines, regardless of whether the sentence violates the Sixth

Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,

J., opinion of the Court)). 

In his plea agreement, Peterson stipulated to his

sentencing range and further agreed to be sentenced in conformity

with the federal sentencing guidelines. We conclude Peterson

agreed to the imposition of the sentencing enhancements, and

therefore, the court did not violate the Sixth Amendment under

Booker.

The next issue is whether the court erred by applying the

sentencing guidelines as mandatory and whether Peterson can meet

his burden of demonstrating the error affected his substantial
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rights. See United States v. White, 405 F.3d 208, 223 n.10 (4th

Cir. 2005) (citing Hughes, 401 F.3d at 551); see also United States

v. Olano, 507 U.S. 725, 734-35 (1993) (under plain error test,

defendant bears burden of proving that error affected substantial

rights). After thoroughly reviewing the record, we conclude

Peterson cannot meet this burden. 

Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

Peterson's judgment. This court requires counsel to inform her

client, in writing, of his right to petition the Supreme Court of

the United States for further review. If the client requests a

petition be filed, but counsel believes such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel's motion must state that a

copy thereof was served on the client. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED