United States v. Monson ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1612
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN MONSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Howard, Circuit Judges.
Jin-Ho King, with whom Milligan Rona Duran & King, LLC., was
on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
June 26, 2023
- 1 -
HOWARD, Circuit Judge. A jury convicted Jonathan Monson
on fifteen counts of an indictment charging sexual exploitation of
children and distribution, receipt, and possession of child
pornography. He was sentenced to 480 months' incarceration. On
appeal, Monson challenges the admission of certain evidence
against him at his trial, the sufficiency of the evidence against
him, and his sentence. Concluding that each challenge is
unavailing, we affirm.
I. BACKGROUND1
In 2017, while participating in an undercover capacity
in a Kik Messenger ("Kik")2 group named "Taboo Train 2.0," an FBI
agent observed not only that the group's discussion focused on
child pornography but also that one of the group's members was
distributing child pornography to the group. That user, whose
screen name consisted of four emoticons followed by the name "john
(daddauluv_r6n@talk.kik.com)," transmitted five images
constituting child pornography to the group.3 Suspicious that
In assessing the sufficiency claim, we recount the facts in
1
the light most favorable to the verdict. United States v. Burgos-
Montes, 786 F.3d 92, 98 (1st Cir. 2015). For the suppression of
evidence claim, we offer a balanced account. Id.; United States v.
Piper, 298 F.3d 47, 50 (1st Cir. 2002).
Kik is a cloud-based social media application that permits
2
users to anonymously share text and multi-media messages with one
another, both one-on-one and in group chats.
3 Those five images formed the bases for Counts 5-9.
- 2 -
Monson was the user distributing the child pornography, agents
obtained search warrants for Monson, his residence in Granby,
Massachusetts, and his vehicles.
In March 2018, FBI agents and local law enforcement
officers, armed and dressed in tactical gear, went to Monson's
home to execute the search warrant. During the execution of the
warrant, FBI Special Agent Ian Smythe expressed his desire to speak
with Monson, told Monson "that they perhaps would be better off
finding a place with less activity" to speak, and informed Monson
that he was neither in custody nor under arrest. Monson agreed to
accompany the agents to the Granby Public Safety Complex, a
community building which housed both the Granby police station and
fire station, and to speak with Smythe there. At the public safety
complex, Smythe and Special Agent Michael Sheehan led Monson to a
public conference room that was in the building's lobby -- not in
the section of the building designated as the police station --
where they then interviewed him. Smythe advised Monson of his
Miranda rights and Monson signed a form acknowledging that he
understood those rights and was willing to answer questions without
a lawyer present.
During the interrogation, Monson made a number of
admissions including: that he had an eleven-year-old daughter;
that he had installed Kik onto his iPhone and had used Kik to find
groups associated with incest fantasy and child pornography; that
- 3 -
the Kik account with the username consisting of four emoticons and
"john (daddauluv_r6n@talk.kik.com)" belonged to him; that
"daddauluv" referred to "daddy-daughter love"; that he became
active in the group "Taboo Train 2.0" over a year earlier using an
iPhone 6 -- which he had since traded in for an iPhone 7 Plus --
and that he had posted images to that group; that he would
frequently engage in "tickle fights" with his daughter and that he
may have touched her groin area; and that he had, on one occasion,
taken his iPhone into the bathroom while his daughter was showering
and "accidentally" took pictures which might still be on his
iPhone.
Following that interrogation, the agents seized Monson's
iPhone 7 Plus. Monson then underwent a polygraph examination and
a subsequent interview with a different agent, during which Monson
made additional incriminating admissions. At the conclusion of
the second interview the agents arrested Monson. Examination of
Monson's iPhone 7 Plus revealed evidence of the sexual exploitation
of children as well as child pornography.
In a superseding indictment the government brought
fifteen criminal counts against Monson: the first four counts
alleged Sexual Exploitation of Children (18 U.S.C. § 2251(a));
counts five through twelve alleged Distribution of Child
Pornography (18 U.S.C. § 2252A(a)(2)(A)); counts thirteen and
fourteen alleged Receipt of Child Pornography (18 U.S.C.
- 4 -
§ 2252A(a)(2)(A)); and count fifteen alleged Possession of Child
Pornography (18 U.S.C. § 2252A(a)(5)(B)).
In advance of trial, Monson sought to suppress the
statements that he had made during his initial interview at the
Public Safety Complex on the basis that those statements were made
during a custodial interrogation and that he had not waived his
Fifth Amendment rights before making the incriminating statements.4
Finding that Monson was not in custody at the time of the
interrogation, the district court denied the suppression motion.
Trial spanning five days was had before a jury, and at the close
of the evidence, Monson moved unsuccessfully for a judgment of
acquittal, see Fed. R. Crim. P. 29(a), on the four child
exploitation counts on sufficiency grounds.
The jury subsequently found Monson guilty on all fifteen
counts, and the district court sentenced Monson to 480 months'
incarceration.
II. DISCUSSION
On appeal, Monson brings three distinct challenges.
First, he argues that the district court erred in denying his Rule
4 At the hearing on Monson's motion to suppress, Monson's
counsel clarified that the motion concerned only the admission of
statements made during the initial interrogation by Smythe (and
not any statements made during his polygraph examination or the
second interrogation -- conducted by a different FBI agent -- which
followed that examination).
- 5 -
29(a) motion because the evidence at trial was insufficient to
satisfy the jurisdictional element of the child exploitation
counts. Second, Monson argues that the court erred in denying his
suppression motion because he was interrogated while he was in
custody but had not waived his Miranda rights. Finally, he
challenges the procedural reasonableness of his sentence on the
ground that the district court incorrectly determined his
Guidelines sentencing range. We address each argument in turn.
A. THE SUFFICIENCY OF THE EVIDENCE
We begin with the challenge to the sufficiency of the
evidence on counts one through four because his success on that
score would render moot the other claims of trial and sentencing
error on those counts. United States v. Ramírez-Rivera, 800 F.3d
1, 16 (1st Cir. 2015), abrogation on other grounds recognized by
United States v. Leoner-Aguirre, 939 F.3d 310 (1st Cir. 2019).
i.
Preserved challenges to the sufficiency of the evidence
are reviewed de novo, see United States v. Ocean, 904 F.3d 25, 28
(1st Cir. 2018), and we will sustain the jury's verdict if the
record evidence -- "evaluated in the light most favorable to the
verdict . . . [and] including all plausible inferences drawn
therefrom" -- would permit a rational factfinder to find the
defendant guilty beyond a reasonable doubt. United States v.
Torres Monje, 989 F.3d 25, 27 (1st Cir. 2021) (internal quotation
- 6 -
marks omitted) (quoting United States v. Santos-Rivera, 726 F.3d
17, 23 (1st Cir. 2013)).
ii.
18 U.S.C. § 2251(a) provides that "[a]ny person who
employs, uses, persuades, induces, entices, or coerces any minor
to engage in . . . any sexually explicit conduct for the purpose
of producing any visual depiction of such conduct . . . shall be
punished . . . if that visual depiction was produced or transmitted
using materials that have been mailed, shipped, or transported in
or affecting interstate or foreign commerce by any means, including
by computer." As used in § 2251(a), Congress defined "producing"
to include "producing, directing, manufacturing, issuing,
publishing, or advertising." 18 U.S.C. § 2256(3). As have several
other circuits, we have held that § 2251(a) is thus to be
understood to criminalize both the initial recording or creation
of child exploitation materials as well as the subsequent creation
of copies or subsequent reproduction of those materials. See
United States v. Poulin, 631 F.3d 17, 23 (1st Cir. 2011) ("Congress
intended a broad ban on the production of child pornography and
aimed to prohibit the varied means by which an individual might
actively create it. As such, the government did not need to
establish at what point 'production' occurred, nor produce in
evidence a recording device." (internal citations omitted));
United States v. Burdulis, 753 F.3d 255, 262 (1st Cir. 2014) ("When
- 7 -
a person loads an image onto a thumb drive from the internet or
another source, that person has created a new copy of the image in
the digital memory of the thumb drive. As the Ninth Circuit put
it, '[w]hen the file containing the image is copied onto a disk,
the original is left intact and a new copy of the image is created,
so the process "produces" an image.'" (alteration in original)
(quoting United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir.
2002) (per curiam))); United States v. Lacy, 119 F.3d 742, 750
(9th Cir. 1997); United States v. Dickson, 632 F.3d 186, 189-90
(5th Cir. 2011); United States v. Caley, 355 Fed. Appx. 760, 761
(4th Cir. 2009); United States v. Maxwell, 386 F.3d 1042, 1052
(11th Cir. 2004), vacated but later reinstated in relevant part,
see 446 F.3d 1210, 1211 (11th Cir. 2006); United States v. Angle,
234 F.3d 326, 341 (7th Cir. 2000).
iii.
In contending that the evidence was insufficient to
satisfy the jurisdictional element of the child exploitation
counts, Monson takes two tacks. He first argues that the evidence
did not establish that the image which formed the basis of count
one was produced using materials that had travelled in interstate
commerce, because that image was created with Monson's iPhone 6;
neither that iPhone 6, nor any information regarding it, were
admitted into evidence at trial; and the image was created before
Monson's iPhone 7 Plus (which was part of the evidence) was
- 8 -
manufactured. Monson contends that this gap precludes any finding
that the child exploitation occurred with the purpose of creating
the reproduction of the image that was found on that iPhone 7 Plus.
He separately argues that the evidence was insufficient to
establish that his iPhone 7 Plus, which contained the four images
underlying the child exploitation counts, had travelled in
interstate commerce. Finding both arguments unavailing, for the
reasons discussed below, we affirm the district court's denial of
Monson's Rule 29 motion for acquittal.
The iPhone 6 Argument (Count One)
Monson's challenge to the sufficiency of the evidence
underlying his conviction on count one focuses on the phrase "that
visual depiction" in connection with the interstate or foreign
commerce requirement in § 2251(a). The use of the word "that,"
Monson argues, links the conduct element (the use of a minor for
the purpose of producing any sexually explicit visual depiction)
with the commerce requirement such that the same visual depiction
(that is, the same image file) constitute both the prohibited
conduct and the commerce nexus. In making this argument, Monson
relies on the Sixth Circuit's reasoning in United States v. Lively,
852 F.3d 549, 558 (6th Cir. 2017), that
The word "that" links the two parts of
§ 2251(a). As used here, "that" is an
adjective. In the second part of § 2251(a),
"that" modifies and restricts the noun "visual
depiction," which is also used in the first
- 9 -
part of the statute. The most natural reading
of § 2251(a) is clear: "that" clarifies that
the "visual depiction" in the first half of
§ 2251(a) is the same "visual depiction" the
second jurisdictional hook addresses. Thus,
to violate § 2251(a), a defendant must
sexually exploit a minor for the purpose of
producing a visual depiction of this
exploitation, and that same visual depiction
must be produced using materials that have an
interstate-commerce nexus.
A jury could not find that Monson violated § 2251(a)
with respect to the image underlying count one, he argues, because
his use of a minor and his initial creation of a visual depiction
of that use occurred before the iPhone 7 Plus on which the image
was discovered had even been manufactured. Accordingly, a jury
could not find that he had "the purpose to produce" the visual
depiction that was located on the iPhone 7 Plus at the time that
he used the minor to create the initial visual depiction on his
iPhone 6, preventing the requisite link between the conduct element
and interstate commerce requirement. We reject this argument.
Even if we were to accept and apply Monson's narrowing
construction of § 2251(a), when viewed in the light most hospitable
to the verdict the evidence is nonetheless sufficient to permit a
reasonable factfinder to conclude that Monson intended to create
subsequent copies of the image (including, specifically, the copy
that was discovered on his iPhone 7 Plus) at the time that he
- 10 -
created the initial depiction.5 There was evidence that, less than
a year after Monson initially captured the image on his iPhone 6,
he saved the image to his iCloud account, linked that iCloud
account to his iPhone 7 Plus, populated the image onto his iPhone
7 Plus from his iCloud account, and then continued to store the
image on his iPhone 7 Plus. From this evidence, a reasonable jury
could conclude that Monson intended, at the time the initial
depiction was created, to make and populate subsequent copies of
that image on devices linked to his iCloud account including and
especially any subsequent iPhones that he obtained to replace his
iPhone 6. See Downs, 56 F.4th at 1321-22 (finding that a
reasonable jury could conclude that the defendant had the requisite
intent to create subsequent copies at the time of initial capture
based on circumstantial evidence, including that subsequent copies
were actually created).
On this point, the Sixth Circuit's decision in Lively
does not suggest a contrary conclusion. In Lively, the court held
that the jurisdictional element in § 2251(a) was not satisfied
based on a co-defendant's subsequent copying of the images at issue
onto a hard-drive because "there [was] no reason to believe that
Lively had the purpose of producing -- or having [the co-defendant
5 To be clear, in assuming the narrow construction of
§ 2251(a) we do not mean to endorse it or to suggest that our prior
precedent necessarily permits it.
- 11 -
produce] -- the Hard-Drive images." 852 F.3d at 554. Lively thus
is properly viewed as a case in which an independent actor produced
the hard drive image, and that conduct could not priorly be imputed
to the defendant who created the previous image. Cf. Pattee, 820
F.3d at 511, n.8 ("[M]erely transferring or copying a pornographic
image that was produced by someone else is [not] tantamount to
'producing' child pornography.").
The iPhone 7 Plus Argument (Counts One through Four)
Monson also argues that there was a lack of evidence
that his iPhone 7 Plus travelled in interstate commerce, and thus
that there was insufficient evidence to support a conviction for
child exploitation based on the discovery of the images on that
phone.
At trial, the government sought to prove the interstate
commerce nexus for the child exploitation counts by introducing
records from Apple Inc. showing that a black iPhone 7 Plus bearing
a specific 15-digit international mobile equipment identity (IMEI)
number was manufactured in Kunshan, China in 2017 before being
shipped to the United States, and then eliciting testimony from
Smythe that Monson's iPhone 7 Plus (which Smythe had examined on
multiple occasions) bore the same IMEI number as listed in the
Apple records and thus was the phone to which those records
referred. Monson argues that this evidence was not sufficient to
establish that his iPhone was the same iPhone referred to in the
- 12 -
Apple records because the evidence "forced the jury to speculate
that [Smythe] could recall the fifteen digit IMEI for Mr. Monson's
iPhone 7 Plus and accurately compare it to the IMEI listed on the
Apple records, notwithstanding that the Apple records described
the phone as 'BLACK' and the witness recalled the phone to be
'[n]ot black.'"6 According to Monson, "[t]his kind of speculation
cannot support a finding of guilt beyond a reasonable doubt." We
reject the argument.
Generally, "[i]t is the responsibility of the jury --
not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the
jury's verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury." Cavazos
v. Smith, 565 U.S. 1, 2 (2011) (emphasis added). The jury
supportably could have found the evidence to point to the iPhone
7 Plus described in the Apple records as the same iPhone that the
agents seized from Monson. While a reasonable juror could have
viewed Smythe's ability to recall the specific IMEI number or
failure to accurately describe the color of the phone with
skepticism, the record does not compel the conclusion that the
testimony was insufficient to establish that the Apple records
described Monson's iPhone 7 Plus. As we have often stated, "[w]hen
6 Smythe's report and testimony described the iPhone 7 Plus
as dark gray.
- 13 -
the record is fairly susceptible of two competing scenarios, the
choice between those scenarios ordinarily is for the jury." United
States v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007); see also
United States v. Seary-Colón, 997 F.3d 1, 11-12 (1st Cir. 2021)
("We need not conclude that 'no verdict other than a guilty verdict
could sensibly be reached, but must only [be] satisf[ied] . . .
that the guilty verdict finds support in a plausible rendition of
the record.'" (alterations in original) (quoting United States v.
Hatch, 434 F.3d 1, 4 (1st Cir. 2006))).
Concluding that the evidence presented at trial was
sufficient to support Monson's convictions on each of the child
exploitation counts, we affirm the district court's denial of
Monson's Rule 29 motion for acquittal.
B. The Suppression Ruling
Monson also argues that the district court erred in
denying his motion to suppress statements, because those
statements were made during a custodial interrogation without
there having been a valid waiver of his Miranda rights. Because
we cannot upset the district court's finding that Monson was not
in custody at the time that he made the statements at issue, we
affirm the denial of the suppression motion.
i.
"In reviewing a district court's decision on a motion to
suppress, we scrutinize findings of fact for clear error and
- 14 -
conclusions of law de novo." United States v. Miles, 18 F.4th 76,
78 (1st Cir. 2021) (citing United States v. Simpkins, 978 F.3d 1,
6 (1st Cir. 2020)).
"[T]he [Supreme] Court [has] made clear that the
ultimate determination of custody is a mixed question of fact and
law. The initial examination of the 'totality of the
circumstances' is factual. The second inquiry, however -- whether,
objectively, these circumstances constitute the requisite
'restraint on freedom of movement of the degree associated with a
formal arrest' -- requires the 'application of the controlling
legal standard to the historical facts.'" United States v.
Ventura, 85 F.3d 708, 711 n.2 (1st Cir. 1996) (quoting Thompson v.
Keohane, 516 U.S. 99, 112 & n.11 (1995)); see United States v.
Mittel-Carey, 493 F.3d 36, 39 (1st Cir. 2007). Accordingly, we
review for clear error the district court's findings as to the
circumstances surrounding the interrogation, and review de novo
the court's conclusion as to whether, under those circumstances,
a reasonable person would have felt free to end the interrogation
and leave. United States v. Infante, 701 F.3d 386, 396 & n.9 (1st
Cir. 2012)
ii.
Statements made by a defendant during a custodial
interrogation are inadmissible at trial unless, in advance of the
interrogation, the defendant was advised that he "has a right to
- 15 -
remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed" and the defendant
knowingly and voluntarily waived those rights. Miranda v. Arizona,
384 U.S. 436, 444 (1966); see also Dickerson v. United States, 530
U.S. 428, 432-33 (2000).
"Accordingly, the need for a Miranda warning 'turns on
whether a suspect is in custody.'" United States v. Swan, 842
F.3d 28, 31 (1st Cir. 2016) (quoting United States v. Hughes, 640
F.3d 428, 435 (1st Cir. 2011)). A two-step inquiry is used to
determine whether a suspect is in custody. See Howes v. Fields,
565 U.S. 499, 509 (2012); United States v. Melo, 954 F.3d 334, 340
(1st Cir. 2020). First, it must be determined whether, based on
the objective circumstances surrounding the interrogation, a
reasonable person would have felt free to terminate the
interrogation and leave. Fields, 565 U.S. at 509. Second, if it
is determined that a reasonable person would not feel free to do
so, it must then be determined whether the environment in which
the interrogation occurred "present[ed] the same inherently
coercive pressures as the type of station house questioning at
issue in Miranda." Id.Factors that we have identified previously as relevant
to the custody inquiry include the setting of the interrogation,
"the number of law enforcement officers present at the scene, the
- 16 -
degree of physical restraint placed upon the suspect, and the
duration and character of the interrogation." Swan, 842 F.3d at
31 (quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir.
1987)). However, this is "by no means an exhaustive list" and a
court must consider the totality of circumstances surrounding the
interrogation to determine whether it was custodial. Mittel-
Carey, 493 F.3d at 39. Further, those circumstances are to be
evaluated objectively, "not [based] on the subjective views
harbored by either the interrogating officers or the person being
questioned." Stansbury v. California, 511 U.S. 318, 323 (1994).
iii.
Assessing the totality of the circumstances in light of
the precedents above, we conclude that a reasonable person in
Monson's position would have felt free to terminate the
interrogation and leave and thus affirm the district court's
suppression ruling.
To begin, the questioning of Monson took place in a
conference room at the Granby Public Safety Facility. While it is
true that the Granby police department was housed in that same
complex, the record reflects that Monson did not enter the police
station before or during the interrogation by Smythe, that "the
police station really had no part in this interview other than
that it was under the same roof inside this larger community
building," and that the conference room "was not designed in any
- 17 -
way to be a law enforcement type room that was set up for police
purposes" but "was just an open space with a table and some chairs
and the door opened out into a common area within this building."
Accordingly, although the location of the interrogation was
unfamiliar to Monson, it was more akin to a neutral location than
a police station interview room, a factor that weighs in favor of
concluding that the interrogation was non-custodial. See Infante,
701 F.3d at 397 (questioning in a neutral setting -- a hospital
room -- weighed in favor of interrogation being non-custodial);
United States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999)
("Although the location apparently was not familiar to [the
suspect] and the area was not well-lit, a public highway is a
neutral setting that police officers are not in a position to
dominate."); United States v. Campbell, 741 F.3d 251, 267 (1st
Cir. 2013) ("The defendants were questioned in a neutral location,
a hotel parking lot.").
Next, the record reflects that two members of law
enforcement travelled with Monson to the community center and that
only two law enforcement agents were present during his
questioning. In arguing that the interrogation was custodial,
Monson highlights the fact that eight or nine agents and police
officers arrived at his home to carry out the search warrant, and
he contends that this number supports a finding that he was in
custody. However, because the focus of our inquiry is on Monson's
- 18 -
interrogation, see Swan, 842 F.3d at 31 ("[I]n conducting the
Miranda analysis, we focus on the time that the relevant statements
were made"), the number of agents present when Monson made the
statements that he seeks to suppress is the relevant number for us
to consider, not the total number of agents and police officers
who participated in the investigation or search of Monson's
property. See Hughes, 640 F.3d at 436 ("[A]lthough four officers
trekked to the island, only two of them participated in the
questioning."); United States v. Crooker, 688 F.3d 1, 12 (1st Cir.
2012) ("[A]lthough [numerous] officers were present inside and
around [the suspect's] house, no more than two agents were in
direct conversation with [the suspect] at one time."); cf. Mittel-
Carey, 493 F.3d at 40 (presence of eight officers in suspect's
home weighed towards custodial nature of interrogation because
interrogation took place at the home with all eight officers
present). That only two agents were present for Monson's
interrogation weighs in favor of a conclusion that the
interrogation was non-custodial. See Hughes, 640 F.3d at 436;
Crooker, 688 F.3d at 12; Swan, 842 F.3d at 32; see also United
States v. Quinn, 815 F.2d 153, 157 (1st Cir. 1987) ("[W]e do not
believe the physical presence of two more officers, besides the
three who were there when the two suspects first arrived, could
have led to a reasonable inference that a de facto arrest had
occurred.").
- 19 -
Third, the record reflects that there was no physical
restraint placed upon Monson at any time during the interrogation.
The district court found that Monson "was not restrained in any
way," and that "[the interrogation] occurred in this community
room that clearly was not confining him. . . . There was no degree
of restraint. There was no indication that he was put in a corner
and an agent sat next to him and he couldn't move. There was no
indication of locking doors or any type of other restraint." We
have previously explained that among the factors relevant to the
custodial inquiry, "the element that carries the most weight is
the level of physical control that the agents exercised over the
defendant during the search and interrogation," Mittel-Carey, 493
F.3d at 40, and that a lack of any physical control, contact or
restraint weighs heavily in favor of a conclusion of no-custody.
See United States v. Nishnianidze, 342 F.3d 6, 14 (1st Cir. 2003);
Swan, 842 F.3d at 33; Infante, 701 F.3d at 398; Hughes, 640 F.3d
at 436 ("[W]e think it significant that no meaningful physical
restraint was applied to the defendant.").
Monson argues that, despite the absence of any physical
restraint, he lacked "true freedom of movement" because "the agents
dictated when and how [he] moved." In support, Monson highlights
that he was transported to the public safety complex by the agents
and told that they would drive him back home when they were
finished. But the force of this point is undermined by the fact
- 20 -
that Monson went to the police station with the agents voluntarily.
See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (no custody
where, inter alia, the suspect "came voluntarily to the police
station"); McCown v. Callahan, 726 F.2d 1, 6 (1st Cir. 1984)
(explaining that "we d[id] not see how one could say, as a matter
of law, that [the suspect] was in custody when he was questioned"
because, in addition to other factors, he "c[a]me to the station
voluntarily"); Quinn, 815 F.2d at 160 ("Even when questioning
occurs in the stationhouse, a suspect need not be given Miranda
warnings if he went there voluntarily and there was no such
restriction on his freedom as to render him in 'custody.'"
(emphasis added) (quoting California v. Beheler, 463 U.S. 1121,
1125 (1983))); United States v. Ellison, 632 F.3d 727, 730 (1st
Cir. 2010) (Souter, J.) (fact that suspect was the one who
suggested the interview was a relevant factor to our conclusion of
no-custody). Indeed, we have previously explained that where a
suspect was "not ordered to ride with [the officers]" but that
instead transportation by the police "was merely a suggestion to
which [the suspect] agreed," this further undermines any
suggestion of custody or a lack of freedom of movement. Swan, 842
F.3d at 31.
Fourth, the duration and character of the interrogation
suggest that Monson was not in custody. The interrogation lasted
- 21 -
for approximately one hour,7 a factor which weighs against the
custodial nature of the interrogation. We have previously
characterized interrogations that were ninety minutes as
"relatively short" and held that the length of those interrogations
did not suggest custody. Hughes, 640 F.3d at 437; Swan 842 F.3d
at 33. Further, the district court found that the "[t]he character
of the questioning was conversational," and that it "was not
aggressive at all or adversarial." These too are findings which
suggest that the interrogation was non-custodial. See Swan, 842
F.3d at 33; Infante, 701 F.3d at 397 ("The atmosphere was non-
confrontational."); Hughes, 640 F.3d at 437 ("[T]he ambiance was
relaxed and non-confrontational throughout the interview. The
7 Monson argues that we should consider the time that he spent
undergoing the post-interrogation polygraph examination and the
second, post-polygraph, round of questioning when assessing the
total length of his interrogation and, accordingly, that we should
consider the over five total hours Monson spent at the complex to
constitute a "lengthy" interrogation. However, to the extent that
Monson means to suggest that the district court's factual finding
that the interrogation lasted one hour was clearly erroneous, this
argument is undeveloped and thus waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). Moreover, as discussed
above, supra note 4, Monson explicitly represented to the district
court that his motion to suppress focused solely on the initial
interrogation by Smythe, precluding Monson from now arguing that
the motion concerned the whole of his interactions with law
enforcement on the date he was arrested. See United States v.
Chen, 998 F.3d 1, 6 (1st Cir. 2021) ("An issue may be waived when
a party purposefully abandons it, either expressly or by taking a
contrary position at trial. A party who waives an issue at trial
cannot later complain on appeal by pressing a position that was
not taken at trial." (internal citations omitted)).
- 22 -
troopers' demeanor remained calm. . . . The troopers were polite
and never hectored the defendant.").
Finally, among the totality of the circumstances
surrounding the interrogation are additional factors that support
the conclusion that the interrogation was non-custodial. These
include the facts that (1) the agents informed Monson that he was
neither in custody nor under arrest, see Infante, 701 F.3d at 398(emphasizing such statements as relevant to conclusion that
suspect was not in custody); (2) Monson was never pat frisked or
physically searched and maintained his cell phone on him throughout
the interrogation, see Swan, 842 F.3d at 33 (suspect's ability to
access her cell-phone during the interrogation weighed against
finding of custody); (3) the interrogation took place in the middle
of the afternoon,8 see Infante, 701 F.3d at 398 (questioning of
suspect "occurred in the late morning and early afternoon, as
opposed to a time that might have appeared more menacing," weighing
in favor of no-custody); and (4) although the law enforcement
representatives were armed, their weapons were holstered and were
8 Monson argues that, because he worked evenings, "the time
was effectively an early hour" and we should treat it as such when
assessing whether he was in custody. This argument, however, runs
directly contrary to our obligation to evaluate the circumstances
objectively and "not [based] on the subjective views harbored by
either the interrogating officers or the person being questioned."
Stansbury, 511 U.S. at 323. Objectively, a reasonable person would
not consider the early afternoon to constitute an early hour and
would not view the decision to conduct the search and interrogation
at that time as particularly menacing.
- 23 -
not pointed at Monson. See Hughes, 640 F.3d at 435-36 (no custody
where visible weapons remained holstered throughout the
interaction); cf. Crooker, 688 F.3d at 11 (no custody where the
"officers holstered their guns after the entry team cleared the
house and left them holstered throughout the afternoon-long
search").
To be sure, not all of the facts weigh in favor of a
conclusion that the interrogation was not custodial. The record
reflects that the agents made it clear to Monson that he was the
focus of their investigation, and that they never told Monson that
he was free to leave. However, neither of these facts are
determinative, nor do they outweigh the many facts suggesting that
Monson was not in custody. See United States v. Lanni, 951 F.2d
440, 443 (1st Cir. 1991) (holding that the district court did not
commit clear error in finding that the suspect was not in custody
despite fact that officers never told suspect he was free to leave
or terminate the interrogation); Mathiason, 429 U.S. at 494-95(holding suspect was not in custody despite fact that he was told
he was a suspect in a theft and, falsely, that the officers had
evidence incriminating him).
Accordingly, considering the totality of the
circumstances attending the interrogation, we uphold the district
court's determination that Monson was not in custody, and thus
that a Miranda warning was not required, at the time of his
- 24 -
interrogation by Smythe because a reasonable person in Monson's
position would have felt free to terminate the interrogation and
leave.
C. THE SENTENCE
Finally, Monson levies two challenges against the
district court's calculation of his Guidelines sentencing range,
contending that, because of the alleged miscalculation, his
incarcerative sentence of 480 months is procedurally unreasonable.
Because we conclude that any error in calculating the Guidelines
range did not affect the district court's sentencing and thus was
harmless, we affirm the sentence imposed.
i.
Because Monson did not raise an objection to either the
Guidelines calculation or to the sentence in the district court,
we review his challenge only for plain error. United States v.
Taylor, 848 F.3d 476, 496 (1st Cir. 2017). To succeed under that
standard, Monson must show "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
- 25 -
ii.
"'[F]ailing to calculate (or improperly calculating) the
Guidelines range' is a 'significant procedural error.'" United
States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (alteration in
original) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
That said, in order to succeed on a plain-error challenge to
sentencing, it is the defendant's burden to demonstrate a
reasonable likelihood that, absent the court's error, the district
court would have imposed a more favorable sentence than it did.
See United States v. Marchena-Silvestre, 802 F.3d 196, 200 (1st
Cir. 2015). "In most cases a defendant who has shown that the
district court mistakenly deemed applicable an incorrect, higher
Guidelines range has demonstrated a reasonable probability of a
different outcome." Molina-Martinez v. United States, 578 U.S.
189, 200 (2016). However, "[t]here may be instances when, despite
application of an erroneous Guidelines range, a reasonable
probability of prejudice does not exist" such as when the record
demonstrates "that the district court thought the sentence it chose
was appropriate irrespective of the Guidelines range" or where the
district court's explanation "make[s] it clear that the judge based
the sentence he or she selected on factors independent of the
Guidelines." Id. Accordingly, the government is permitted to
counter the presumption that a Guidelines calculation error was
prejudicial by pointing to a clear statement from the sentencing
- 26 -
court providing "an indication that the trial court 'intended to
untether' the sentence from the Guidelines range." Taylor, 848
F.3d at 498 (quoting United States v. Hudson, 823 F.3d 11, 19 (1st
Cir. 2016)).
iii.
Monson's procedural challenge to the district court's
calculation of the applicable Guidelines range at sentencing is
two-fold: first, he contends that the district court incorrectly
determined his total offense level due to a grouping error; second,
he argues that the district court incorrectly calculated his
Guidelines sentence due to the court's misapplication of U.S.S.G.
§5G1.1. However, both of these challenges fail for the same
reason: the record demonstrates that the sentence imposed by the
district court was independent of, and based on factors unrelated
to, the Guidelines sentence and that the district court explicitly
stated its intent to uncouple the sentence from the Guidelines by
noting that they were inapplicable in a case such as this. Because
the district court's sentence was not based on a Guidelines range,
any error that the court may have made in calculating that
Guidelines range (through either its determination of Monson's
total offense level or its application of U.S.S.G. §5G1.1) had no
effect. Each of Monson's challenges thus fails on the third prong
of our plain error review, because he cannot demonstrate that he
- 27 -
would have received a lesser sentence but for the district court's
alleged errors.
The district court opened Monson's sentencing hearing by
stating "the Court accepts the presentence report guideline
calculation as being accurate" but noted that it "recognized that
the numbers are extraordinarily high and generally inapplicable in
a situation like this because of how the numbers come out." The
court thus clarified that its acceptance of the Guidelines range
was a mere technicality, indicating that its sentencing
determination was independent of that Guidelines calculation. The
court discussed at length the various factors that it considered
in determining an appropriate sentence including the seriousness
of the offense, the impact of the offense on the victims, and
Monson's background (including his lack of prior criminal history,
his military service, his steady record of employment, and his
amenability to rehabilitation). The record thus reflects that it
was these factors, and not the Guidelines calculation (which the
court expressly indicated was inapplicable here) that drove the
court's sentencing determination.
Monson argues that the court nonetheless used the
Guidelines as a starting point to determine his sentence, and thus
its erroneous calculation of the applicable Guidelines range led
to a higher sentence than would have been imposed but for the
errors. In support of this argument, he points to the fact that
- 28 -
the court mentioned the higher Guidelines range that was applied
in a different case concerning similar conduct as a means of
differentiating the defendant in that other case from Monson.
However, read in the context of the sentencing hearing as a whole,
we do not view the court's brief mention of that higher Guidelines
range as demonstrating that the court used Monson's Guidelines
range as a starting point in determining an applicable sentence.
The court discussed the other case -- United States v. Deordio,
No. 3:18-cr-30056-MGM (D. Mass. Feb. 4, 2021) -- in response to
the government's recommendation that the court impose the same
sentence on Monson that it had imposed on the defendant in Deordio
(720 months). The court responded to this suggestion by noting
that there was "a much different criminal history between [Monson
and Deordio], much different in life circumstances, and much
different in amenability to rehabilitation, but very different
with respect to prior criminal history." The court then proceeded
to note the different Guidelines ranges in the two cases -- 5,040
months for Deordio compared to 4,080 months for Monson -- while
again explaining that "the use of the Guidelines in these types of
cases . . . falls by the wayside a little." Read in this context,
we construe the district court's mention of the Guidelines ranges
as merely intended to further illustrate that the very different
backgrounds and criminal histories of the two defendants rendered
them differently situated at sentencing. We do not, however, read
- 29 -
that reference to the Guidelines as indicating that the court used
either defendant's Guidelines range as a starting point in
determining the applicable sentence for Monson, especially given
that the court repeatedly and explicitly disclaimed the
applicability of the Guidelines to its sentencing determination.
Because we conclude that the sentence imposed by the
district court was not tethered to the Guidelines range, any error
that the district court may have made in calculating that range
did not affect Monson's rights or result in a higher sentence than
would have been imposed in the absence of the alleged errors.
III. CONCLUSION
For the foregoing reasons, the convictions and sentence are
affirmed.
- 30 -