UNITED STATES v. HAMMOND (2018)

MEMORANDUM **

Dumaka Hammond appeals the district court’s denial of his motion to suppress evidence obtained pursuant to a warrant issued by a magistrate judge in the Eastern District of Virginia authorizing use of a Network Investigative Technique (NIT) during the investigation of a child pornography website and its users. The government cross-appeals the district court’s imposition of a 108-month sentence that fell below the federal mandatory minimum. Because the facts are known to the parties, we repeat them only as necessary to explain our decision.

I

The district court did not err in denying Hammond’s motion to suppress evidence. Although the warrant violated Federal Rule of Criminal Procedure 41(b), suppression is not required because the good faith exception to the exclusionary rule applies. See United States v. Henderson, No. 17-10230, 906 F.3d 1109, 2018 WL 5260851 (9th Cir. 2018).

II

The district court did not err in declining to apply the federal ten-year mandatory minimum. Hammond pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The government argues that the district court should have applied the mandatory minimum because Hammond was previously convicted for possession of child pornography under state law, California Penal Code § 311.11(a). The usual, elements-based categorical approach applies to determine whether prior convictions under state law “relate to” child pornography such that the federal mandatory minimum, 18 U.S.C. § 2252(b)(2), applies. See United States v. Reinhart, 893 F.3d 606, 610 (9th Cir. 2018). The California statute for possession of child pornography, section 311.11(a), is not a categorical match for the federal child pornography provision. See Chavez-Solis v. Lynch, 803 F.3d 1004, 1008 (9th Cir. 2015).

AFFIRMED.