USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12539
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ADAM CARMODY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cr-14018-AMC-1
____________________
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 2 of 10
2 Opinion of the Court 22-12539
____________________
No. 22-13542
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ADAM CARMODY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cr-14018-AMC-1
____________________
Before JILL PRYOR, ABUDU and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Michael Adam Carmody appeals his convictions
for distributing, receiving, and possessing child pornography and
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 3 of 10
22-12539 Opinion of the Court 3
his subsequent sentence. 1 Carmody argues that the district court
erred in denying his motion to suppress all evidence seized from
the warrantless search of his internet protocol (“IP”) address. Car-
mody also appeals the district court’s imposition of a 300-month
sentence, which was an upward variance from the guideline term
of 210 to 262 months. Carmody asserts that his sentence is proce-
durally unreasonable because the district court relied on Sentenc-
ing Guidelines Commentary even though the text of the Guideline
was unambiguous. He also argues that his sentence is substan-
tively unreasonable because the district court failed to properly bal-
ance the
18 U.S.C. § 3553(a) factors, giving too much weight to de-
terrence and the seriousness of his offense and not enough weight
to mitigating factors. Having read the parties’ briefs and reviewed
the record, we affirm Carmody’s convictions and sentence.
I.
1 Carmody timely filed a notice of appeal after the district court entered its
initial judgment on July 15, 2022, which resulted in the docketing of case num-
ber 22-12539-HH. Carmody filed another timely notice of appeal on October
11, 2022, after the court entered an amended judgment establishing the
amount of restitution to the victims in this case. That appeal resulted in the
docketing of case number 22-13542-HH. Carmody filed an unopposed motion
to consolidate the appeals and the briefing schedule, and the clerk granted the
motion. On appeal, Carmody does not challenge the amount of restitution
ordered by the district court, so any argument regarding that judgment is
deemed abandoned. See United States v. Campbell,
26 F.4th 860, 871 (11th Cir.
2022) (issues not raised on appeal are deemed abandoned), cert. denied, ___
U.S. ___,
143 S. Ct. 95 (2022).
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 4 of 10
4 Opinion of the Court 22-12539
We review a district court’s denial of a motion to suppress
evidence under a mixed standard, reviewing the court’s fact-finding
for clear error and its application of the law to those facts de novo.
United States v. Trader,
981 F.3d 961, 966 (11th Cir. 2020). We con-
strue all facts in the light most favorable to the prevailing party be-
low.
Id.
The Fourth Amendment protects against unreasonable
searches and seizures. U.S. Const. amend. IV. To suppress evi-
dence based on Fourth Amendment violations, “a claimant has the
burden of proving (1) that the search was unlawful and (2) that the
claimant had a legitimate expectation of privacy.” United States v.
McKennon,
814 F.2d 1539, 1542 (11th Cir. 1987). “Ordinarily, a per-
son lacks a reasonable expectation of privacy in information he has
voluntarily disclosed to a third party.” Trader, 981 F.3d at 967 (re-
ferring to the third-party doctrine). In Trader, we held that the Car-
penter exception 2 to the third-party doctrine does not extend to IP
addresses. Trader, 981 F.3d at 967-68.
Under the prior panel precedent rule, we are bound to fol-
low our own prior binding precedent until it is overruled by the
Supreme Court or this Court sitting en banc. United States v. Vega-
Castillo,
540 F.3d 1235, 1236 (11th Cir. 2008). “The prior panel
2 In Carpenter v. United States,
585 U.S. ___,
138 S. Ct. 2206 (2018), the Supreme
Court held that the “unique nature of cell phone location records” subjected
them to Fourth Amendment protection; however, the Court noted that its
decision was “a narrow one” and did not impact “business records that might
incidentally reveal location information.”
Id. at ___, 138 S. Ct. at 2220.
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 5 of 10
22-12539 Opinion of the Court 5
precedent rule applies regardless of whether the later panel be-
lieves the prior panel’s opinion to be correct, and there is no excep-
tion to the rule where the prior panel failed to consider arguments
raised before a later panel.” United States v. Gillis,
938 F.3d 1181,
1198 (11th Cir. 2019).
The record demonstrates that the district court did not err
in denying the motion to suppress evidence. Individuals do not
have a reasonable expectation of privacy in IP addresses. Trader,
981 F.3d at 967-68. Carmody’s argument is foreclosed by our prior
precedent, so the evidence obtained from his IP address is admissi-
ble. Gillis, 938 F.3d at 1198; Vega-Castillo,
540 F.3d at 1236. Thus,
we affirm Carmody’s convictions.
II.
When reviewing a sentence for procedural reasonableness,
we consider legal issues de novo and view factual findings for clear
error. United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010).
A district court’s interpretation and application of the Guidelines is
reviewed de novo. United States v. Tejas,
868 F.3d 1242, 1244 (11th
Cir. 2017). We must ensure that the district court did not make a
significant procedural error, such as failing to calculate or improp-
erly calculating the Guidelines range. United States v. Grushko,
50
F.4th 1, 17 (11th Cir. 2022), cert. denied, ___ U.S. ___,
143 S. Ct.
2594 (June 5, 2023), ___ U.S. ___,
143 S. Ct. 2680 (June 26, 2023).
Unless the text of the Guidelines is ambiguous, we do not defer to
the Guidelines Commentary. United States v. Dupree,
57 F.4th 1269,
1276-77 (11th Cir. 2023) (en banc).
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 6 of 10
6 Opinion of the Court 22-12539
Carmody argues that the district court erroneously relied on
the commentary to U.S.S.G. § 2G2.2 to calculate the number of
images for which he was responsible and thus imposed a procedur-
ally unreasonable sentence. The image table provides for a 5-level
increase if a defendant possesses “600 or more images” of child por-
nography. See U.S.S.G. § 2G2.2(b)(7)(D). The commentary con-
tains additional guidance regarding how to calculate the number of
images in a video: “Each video, video-clip, movie, or similar visual
depiction shall be considered to have 75 images. If the length of
the visual depiction is substantially more than 5 minutes, an up-
ward departure may be warranted.” Id. at cmt (n.6.(B)(ii)). Car-
mody contends that he should be held accountable for 414 images
because the text of the guideline unambiguously requires that each
video count only as one “image.” The government responds that
the district court properly calculated the number of images based
on Carmody’s possession of 226 still photographs of child pornog-
raphy and 188 videos of child pornography. It posits that the stat-
utory definitions upon which Carmody relies only articulate the
types of files that can constitute child pornography; they have noth-
ing to do with quantity and thus cannot bear upon the calculation.
Because the word “image” is ambiguous, the government claims
that the district court properly relied on the commentary to calcu-
late the number of images for which Carmody was responsible.
The record shows that the district court’s sentence is proce-
durally reasonable because U.S.S.G. § 2G2.2 is ambiguous, and the
district court could defer to the commentary. Dupree, 57 F.4th at
1276-77. The text of § 2G2.2 does not distinguish between a still
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 7 of 10
22-12539 Opinion of the Court 7
image and a video comprised of a series of images, so the term “im-
ages” is ambiguous for the purposes of calculating the total number
of images possessed by an offender who possesses videos. Further,
because the statues that Congress relies on to define “images” lists
various image formats but fail to indicate how each format should
be tallied, it was necessary for the Sentencing Commission to de-
velop a method to calculate the number of images contained in a
video. In addition, the government’s expert testified that, when
calculating videos based on the typical standard of frame rate, a
video lasting 5 minutes and 43 seconds contained 8,575 images, the
Sentencing Commission’s interpretation that each video contains
75 images represents a “fair and considered judgment” that does
not unjustly penalize offenders. See Kisor v. Wilkie,
588 U.S. ___,
139 S. Ct. 2400, 2416-18 (2019) (clarifying when courts should defer
to agency interpretations of ambiguous regulations).
Moreover, if the 75:1 ratio established by the Sentencing
Commission is not entitled to deference, the district court’s sen-
tence remains procedurally reasonable. The district court heard
testimony and made an express finding that the “record amply sup-
ports the application of the enhancement in this case, given the nu-
merous quantity of videos, some of which are quite lengthy and
would very easily exceed the. . . 600 image threshold.” The district
court concluded that Congress mandated that the Guidelines pro-
vide for incremental enhancements depending on the number of
images of child pornography. Because Carmody possessed 188 vid-
eos, there is no question that he possessed over 600 images of child
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 8 of 10
8 Opinion of the Court 22-12539
pornography, even counting each of the videos as only two images
each. Accordingly, we affirm as to this issue.
III.
When reviewing for substantive reasonableness, we con-
sider the totality of the circumstances under a deferential abuse-of-
discretion standard. Gall v. United States,
552 U.S. 38, 51,
128 S. Ct.
586, 597 (2007). The party challenging a sentence bears the burden
of proving that the sentence is unreasonable considering the rec-
ord, the factors listed in
18 U.S.C. § 3553(a), and the substantial def-
erence afforded sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
The weight given to any specific § 3553(a) factor is commit-
ted to the sound discretion of the district court, and we will not
substitute our judgment in weighing the relevant factors.
Rosales-Bruno, 789 F.3d at 1254. The district court abuses its discre-
tion when it “(1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an im-
proper or irrelevant factor, or (3) commits a clear error of judgment
in considering the proper factors.” United States v. Irey,
612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted).
Carmody argues that the district court’s imposition of a 300-
month sentence is substantively unreasonable because the district
court did not consider the mitigating factors of his difficult upbring-
ing when it weighed the § 3553(a) factors. Carmody also asserts
that the district court erred because it failed to impose a propor-
tional sentence when compared to other similarly situated
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 9 of 10
22-12539 Opinion of the Court 9
offenders. The government responds that the district court was
well within its discretion in concluding that an upward variance
was warranted after considering the totality of the circumstances
and the depravity of Carmody’s conduct.
The record supports the district court’s upward variance
from the Sentencing Guidelines; thus, the sentence is substantively
reasonable. The district court adopted the Guidelines range but
found that Carmody’s “depraved actions” warranted an upward
variance from the advisory guideline range. The district court re-
lied on the “substantial quantities of sadistic images” featuring “ba-
bies and toddlers who were heard screaming on the videos being
raped and horrifically victimized” to impose the upward variance.
The district court gave great weight to the factors of deterrence
and protecting the public, finding that Carmody’s “dangerous de-
sire to harm children” created “a very strong and palpable need” to
impose a substantial sentence. The district court considered the
§ 3553(a) factors before concluding that the “extreme seriousness”
of Carmody’s “truly unspeakable” offenses outweighed the miti-
gating factors of his troubled upbringing and current familial sup-
port.
Although Carmody’s sentence is an upward variance above
the recommended guideline range, the sentence does not create a
definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors. Irey,
612
F.3d at 1189. Because Carmody fails to show that the district court
abused its discretion in weighing the factors of deterrence, the
USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 10 of 10
10 Opinion of the Court 22-12539
nature and circumstances of the offense, and the seriousness of the
offense more heavily, we affirm Carmody’s sentence. Rosales-
Bruno, 789 F.3d at 1254.
Accordingly, based on the aforementioned reasons, we af-
firm Carmody’s convictions and his 300-month sentence.
AFFIRMED.
