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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15713
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00018-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MURRAY JOHN BATSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 11, 2018)
Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
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Murray John Batson appeals his convictions and sentence of 292 months of
imprisonment following his conditional pleas of guilty to sexually exploiting
children,
18 U.S.C. § 2251(a), (e), and to possessing and knowingly receiving or
distributing child pornography,
id. § 2252A(a)(5)(B), (b)(2). Batson challenges the
denial of his motion to suppress incriminating photographs discovered on his
cellular telephone. Batson also challenges the enhancement of his sentence for
engaging in a pattern of activity of prohibited sexual conduct with a minor. See
United States Sentencing Guidelines Manual § 4B1.5(b) (Nov. 2016). We affirm.
Two standards of review govern this appeal. The denial of a motion to
suppress presents a mixed question of law and fact. United States v. McCullough,
851 F.3d 1194, 1199 (11th Cir.), cert. denied,
137 S. Ct. 2173 (2017). We review
findings of fact for clear error and the application of the law to those facts de novo.
Id. We also review de novo the interpretation of the Sentencing Guidelines. United
States v. Burge,
407 F.3d 1183, 1186 (11th Cir. 2005).
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV. Generally, a search of property is considered
unreasonable without a warrant issued on probable cause, Maryland v. Buie,
494
U.S. 325, 331 (1990), but “it is well settled that one of the specifically established
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exceptions to the requirements of both a warrant and probable cause is a search
conducted pursuant to consent to search,” United States v. Gonzalez,
71 F.3d 819,
827 (11th Cir. 1996) (quoting United States v. Freyre–Lazaro,
3 F.3d 1496, 1500–
01 (11th Cir. 1993)). To determine whether consent is given voluntarily requires a
case-specific examination of the totality of the circumstances. United States v.
Spivey,
861 F.3d 1207, 1213 (11th Cir. 2017), cert. denied,
138 S. Ct. 2620 (2018).
Voluntariness hinges on factors such as whether the defendant was in custody,
whether the police used coercive tactics, the extent of the defendant’s cooperation,
his awareness of his right to refuse consent, his education and intelligence, and his
belief that an officer will not discover incriminating evidence.
Id. The decision to
consent is voluntary when an officer does not use imperatives and instead makes
requests that the defendant is free to deny. United States v. Tobin,
923 F.2d 1506,
1512 (11th Cir. 1991) (en banc). And property is not seized within the meaning of
the Fourth Amendment until an officer exercises “dominion and control over” the
property, United States v. Jacobsen,
466 U.S. 109, 118–22 (1984), or commits
“some meaningful interference with [the defendant’s] possessory interests in that
property,” Soldal v. Cook County, Ill.,
506 U.S. 56, 61 (1992).
The district court did not err by denying Batson’s motion to suppress. “A
search is reasonable and does not require a warrant if law enforcement obtains
voluntary consent,” Spivey, 861 F.3d at 1213, and testimony from Investigators
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Cheree Edwards and Steven Smith and from Batson established that he willingly
allowed them to view the contents of and freely relinquished his cellular telephone
to them for a forensic examination. During the investigators’ first visit, Batson
admitted them to his home, pointed out peepholes, signed a consent-to-search
form, showed them video recordings and photographs on his telephone, and then
gave his telephone to Investigator Smith. When the investigators returned later that
day, Batson invited them to “come on in,” he volunteered that they “caught” him
downloading a pornographic video, he replayed the video on his telephone, he
handed the telephone to the investigators, and he gave them written consent to
search the telephone. Although the investigators did not tell Batson that he had a
right to refuse consent, in the light of his unconditional cooperation, they were not
required to do so for his consent to be voluntary. See Schneckloth v. Bustamonte,
412 U.S. 218, 234 (1973) (“knowledge of a right to refuse is not a prerequisite of a
voluntary consent”). And because Batson possessed his telephone when he asked
to delete a pornographic video and the investigators responded that they preferred
for him to “keep the phone as it is,” there was no “meaningful interference with
[Batson’s] possessory interests in his property” to taint the voluntariness of his
later decision to relinquish his telephone for a forensic examination. See Soldal,
506 U.S. at 61 (quoting Jacobsen,
466 U.S. at 113). As Batson stated during his
suppression hearing, he was “nice and helpful” to the investigators. The district
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court did not clearly err in finding that Batson decided to cooperate with
investigators and consented for them to search his cellular telephone.
The district court also did not err in concluding that Batson’s multiple sexual
offenses involving the same minor victim qualified as a pattern of sexual activity.
A defendant is subject to a five-level enhancement of his sentence if his “instant
offense of conviction is a covered sex crime . . . and [he] engaged in a pattern of
activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b)(1). A pattern of
activity exists “if on at least two separate occasions, the defendant engaged in
prohibited sexual conduct with a minor.” Id. § 4B1.5 cmt. n.4(B)(i). We interpret
language in the guidelines consistent with its “plain and ordinary meaning,” United
States v. Tham,
118 F.3d 1501, 1506 (11th Cir. 1997), and “[i]n common terms,
when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically
signals that the article is being used as a synonym for either ‘any’ or ‘one,’” United
States v. Warren,
820 F.3d 406, 408 (11th Cir. 2016) (quoting United States v.
Alabama,
778 F.3d 926, 932 (11th Cir. 2015)). The use of the singular term “a
minor” in section 4B1.5(b)(1) reveals that the five-level enhancement applies when
the defendant abuses the same minor. That conclusion is not novel; the Eighth,
Sixth, and Second Circuits have interpreted section 4B1.5(b)(1) the same way.
United States v. Pappas,
715 F.3d 225, 229 (8th Cir. 2013) (holding that section
4B1.5(b)(1) applies to a defendant who abuses the same minor on multiple
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occasions); United States v. Brattain,
539 F.3d 445, 448 (6th Cir. 2008) (“[T]he
plain language of § 4B1.5(b)(1) and its application note apply to defendants who
abuse only a single victim.”); United States v. Phillips,
431 F.3d 86, 90 (2d Cir.
2005) (“Under Application Note 4 [to section 4B1.5], . . . the ‘pattern’ can be
satisfied by the exploitation of one minor, instead of two . . . .”). Batson confessed
that he touched his victim’s genitalia as she slept, and a federal agent testified at
sentencing that Batson’s cellular telephone contained “numerous photographs of
[his victim] in various positions, [wearing] various outfits, [in] various locations
within the home, with hands penetrating her vagina, [and his] penis penetrating her
lips.” The district court correctly increased Batson’s offense level by five levels for
his pattern of sexual activity.
We AFFIRM Batson’s convictions and sentence.
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