Opinion
No. 15-10087
03-21-2016
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN FREITAS, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 1:13-cr-00124-JMS MEMORANDUM Appeal from the United States District Court for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
John Freitas appeals from the district court's judgment and challenges the 42-month sentence imposed following his guilty-plea conviction for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Freitas contends that the district court procedurally erred by (1) basing the sentence on his inability to stay sober while on pretrial release, (2) failing to explain adequately why its policy disagreement with the child pornography guidelines did not support a greater downward variance, and (3) relying on the unfounded assumption that he lacks impulse control. These claims fail. The district court did not punish Freitas for his insobriety, but rather properly considered his multiple violations of his pretrial release conditions. See 18 U.S.C. § 3553(a). The record belies Freitas's contention that the district court imposed the sentence in order to promote his rehabilitation, in violation of Tapia v. United States, 131 S. Ct. 2382 (2011). In addition, the district court thoroughly explained its decision to vary downwards and the extent of the variance. See United States v. Henderson, 649 F.3d 955, 963-64 (9th Cir. 2011). Finally, to the extent that the district court based the sentence on a determination that Freitas lacked impulse control, Freitas has not shown that this finding was clearly erroneous. See United States v. Christensen, 732 F.3d 1094, 1103 (9th Cir. 2013).
AFFIRMED.