United States v. Thomas Sweeney ( 2018 )


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  •                           RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 18a0095p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                               ┐
    Plaintiff-Appellee,   │
    │
    >      No. 17-3768
    v.                                               │
    │
    │
    THOMAS A. SWEENEY,                                      │
    Defendant-Appellant.     │
    │
    ┘
    Appeal from the United States District Court
    for the Southern District of Ohio at Columbus.
    No. 2:16-cr-00073-1—Michael H. Watson, District Judge.
    Decided and Filed: May 25, 2018
    Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.
    _________________
    COUNSEL
    ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
    Appellant. Benjamin C. Glassman, Heather A. Hill, UNITED STATES ATTORNEY’S
    OFFICE, Cincinnati, Ohio, for Appellee.
    _________________
    OPINION
    _________________
    JOHN K. BUSH, Circuit Judge. Defendant Thomas Sweeney appeals his conviction and
    sentence for production and receipt of child pornography, attempted enticement of a minor to
    engage in sexual conduct, and commission of a sex offense against a minor while being required
    No. 17-3768                        United States v. Sweeney                              Page 2
    to register as a sex offender. For the reasons explained below, we affirm his conviction and
    sentence.
    I
    Sweeney’s parental rights over his daughter, T.R., were terminated after he was convicted
    of raping his niece, and he had no contact with T.R. during his ten-year imprisonment. Upon his
    release from prison in 2013, Sweeney began contacting T.R. via Facebook and text message.
    By June 2015, when T.R. was 14, their communications had turned sexual and included the
    mutual sending of explicit pictures, detailed discussion of sex acts, and ultimately
    unconsummated plans to meet for the purpose of engaging in sexual acts.
    T.R. alerted her adoptive parents to the nature of her conversations with Sweeney, and
    they alerted officers from the Department of Homeland Security, who alerted Sweeney’s parole
    officer. During a meeting with his parole officer, Sweeney indicated that he owned a cellular
    telephone that he had left at the homeless shelter where he lived. The parole officer told waiting
    DHS officers about this telephone and that Sweeney was planning on going to a hospital.
    A parole officer, accompanied by the DHS officers, went to the homeless shelter, located the
    telephone, and secured the phone’s media-storage card, which DHS officers later searched
    pursuant to a warrant.
    After a jury trial at which evidence from the media-storage card was admitted, Sweeney
    was convicted on all counts and received a carceral sentence of fifty-five years.
    II
    Sweeney makes three arguments on appeal. First, he contends that the district court
    erred in admitting evidence derived from the media-storage card, which he argues was obtained
    in violation of the Fourth Amendment. Second, Sweeney claims that the trial court erred by
    applying a two-level enhancement under USSG § 2G2.1(b)(5), which applies when the defendant
    is the “parent” of the victim; Sweeney argues he was not T.R.’s parent after his parental rights
    were terminated. And finally, he maintains that his sentence was procedurally unreasonable for
    No. 17-3768                           United States v. Sweeney                           Page 3
    the district court’s failure to address various mitigation arguments that Sweeney raised at
    sentencing.
    ***
    On appeal from the denial of a motion to suppress, we review the district court’s factual
    findings for clear error and its legal conclusions de novo. United States v. Foster, 
    376 F.3d 577
    ,
    583 (6th Cir. 2004). We may overturn a district court’s denial of a motion to suppress only if the
    defendant has met his burden to show “a violation of some constitutional or statutory right
    justifying suppression.” United States v. Rodriguez-Suazo, 
    346 F.3d 637
    , 643 (6th Cir. 2003)
    (citation omitted).
    The Fourth Amendment protects the “right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
    Though “this fundamental right is preserved by a requirement that searches be conducted
    pursuant to a warrant issued by an independent judicial officer,” there are “exceptions to the
    general rule that a warrant must be secured before a search is undertaken.” California v. Carney,
    
    471 U.S. 386
    , 390 (1985).
    One such exception allows warrantless searches so long as they are pursuant to a
    constitutional state law authorizing the warrantless searches of parolees and their residences. See
    Samson v. California, 
    547 U.S. 843
    , 856 (2006).           We have already held that Ohio R.C.
    § 2967.131(C), the law authorizing the warrantless search of Sweeney’s residence, is
    constitutional, see United States v. Loney, 
    331 F.3d 516
    , 521 (6th Cir. 2003), and Sweeney does
    not contest that the search was pursuant to the requirements of that statute.
    He argues instead that we should apply an exception to the exception and disallow this
    search because the parole officer who searched Sweeney’s domicile was impermissibly acting as
    a “stalking horse” to help the DHS officers evade the Fourth Amendment’s warrant requirement
    in their investigation into Sweeney.
    The prohibition on law-enforcement officers’ using parole officers as “stalking horses”
    for their own investigations stems from a line of cases starting with Griffin v. Wisconsin,
    No. 17-3768                        United States v. Sweeney                               Page 4
    
    483 U.S. 868
    (1987). Griffin justified warrantless searches of probationers based on the “special
    needs” of a state in administrating its system of probation, just as the special needs of
    administering a penal system limit the requirements of the Fourth Amendment in the prison
    context. 
    Id. at 873–77.
    Because the exception to the warrant requirement is predicated on the
    special needs inherent in a system of probation, the search must be related to those needs and not
    merely an instance of law-enforcement officers’ using a parole officer as a stalking horse to
    assist in an unrelated investigation. See United States v. Goliday, 145 F. App’x 502, 505 (6th
    Cir. 2005).
    More recently, however, the Supreme Court has grounded this exception in the lower
    expectation of privacy enjoyed by probationers, which is weighed against the promotion of
    legitimate governmental interests to determine whether the search was reasonable under “the
    totality of the circumstances.” 
    Samson, 547 U.S. at 849
    –52. Because this justification for the
    exception is not always related to the special needs of the probationary system, the reason for
    conducting the search need not necessarily be related to those needs either.
    When the government relies on the “special needs” doctrine to justify a search, the
    stalking horse exception may still apply, but when the government relies on the totality-of-the-
    circumstances doctrine as articulated in Samson, it does not. See United States v. Lykins, 544 F.
    App’x 642, 647 n.2 (6th Cir. 2013). Because the district court explicitly relied on the doctrine in
    Samson, and because the state defends the search on those grounds, the stalking-horse exception
    does not apply.
    Regardless, there is no reason to think that the parole officer was acting as a stalking
    horse for the DHS officers. Under the “special needs” doctrine, the stalking-horse exception
    only prevents probation officers from assisting law enforcement in evading the Fourth
    Amendment’s warrant requirement—it allows that “police officers and probation officers can
    work together and share information to achieve their objectives.” United States v. Martin,
    
    25 F.3d 293
    , 296 (6th Cir. 1994).
    Here, the parole officer who searched Sweeney’s residence had every parole-related
    reason to do so—he had recently been informed by DHS officers that Sweeney was exchanging
    No. 17-3768                           United States v. Sweeney                               Page 5
    explicit pictures with his daughter, a clear violation of the terms of his parole, which he had been
    sentenced to as a result of his conviction for raping his niece. That DHS also wanted access to
    Sweeney’s phone does not detract from the parole officer’s legitimate interest in searching it.
    In short, the stalking-horse exception to the general rule allowing parole officers to search
    a parolee’s residence does not apply when, as here, that search is reasonable under the totality of
    the circumstances, as authorized by Samson, and even if it did apply, the parole officer was not
    acting as a stalking horse.
    ***
    At sentencing, the district court applied a two-level enhancement to Sweeney’s
    Guidelines range under USSG § 2G2.1(b)(5), which applies if “the defendant was a parent,
    relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in
    the custody, care, or supervisory control of the defendant.”
    The appropriate interpretation of USSG § 2G2.1(b)(5) is a legal issue, which we review
    de novo. See, e.g., United States v. Stubblefield, 
    682 F.3d 502
    , 510 (6th Cir. 2012). The factual
    findings required to determine whether Sweeney fell within USSG § 2G2.1(b)(5), appropriately
    interpreted, are reviewed for clear error. United States v. Hodge, 
    805 F.3d 675
    , 678 (6th Cir.
    2015) (citing United States v. Maken, 
    510 F.3d 654
    , 656–57 (6th Cir. 2007)).
    Sweeney’s position is that he is not T.R.’s parent, as the term is used in USSG
    § 2G2.1(b)(5), because his parental rights over T.R. had been terminated before the offense.
    In support of his argument, he points to the text of the enhancement, which describes
    several enumerated categories—parents, relatives, and legal guardians—and also applies the
    enhancement to anyone who “otherwise [has] custody, care, or supervisory control” of the
    victim.     Sweeney reads the term “otherwise” as requiring that the preceding enumerated
    categories be limited such that only people who have custody, care, or supervisory control count
    as parents, relatives, or legal guardians for purposes of § 2G2.1(b)(5).
    No. 17-3768                              United States v. Sweeney                                        Page 6
    Additionally, Sweeney cites the “Reason for Amendment” offered by the Sentencing
    Commission for § 2G2.1(b)(2),1 which tells us that this section was added “to provide an
    increase for defendants who abuse a position of trust in exploiting minor children.” USSG app.
    C, amend. 324 (2003). Not all parents are in a position of trust relative to their children, says
    Sweeney, inviting us to imagine a biological parent who gives up his biological child for
    adoption and has no subsequent relationship with that child, against whom the biological parent
    then offends. Arguing that this hypothetical parent should not be subject to the enhancement,
    Sweeney concludes that we should limit the definition of “parent, relative, or legal guardian” to
    those who have custody, care, or supervisory control over the victim, because anyone who has
    custody, care, or supervisory control over a child is in a position of trust.
    We are unconvinced that USSG § 2G2.1(b)(5) only applies to parents, relatives, or legal
    guardians who have custody, care, or supervisory control over their victims. Because anyone
    who has custody, care, or supervisory control over a victim is already subject to the
    enhancement, this would render the terms “parent,” “relative,” and “legal guardian” superfluous,
    and we are “‘reluctan[t] to treat statutory terms as surplusage’ in any setting.”2 Duncan v.
    Walker, 
    533 U.S. 167
    , 174 (2001) (alteration in original) (quoting Babbitt v. Sweet Home
    Chapter of Cmties. For a Great Or., 
    515 U.S. 687
    , 698 (1995)).
    What, then, is the correct definition of “parent?”3 “A fundamental canon of statutory
    construction is that, unless otherwise defined, words will be interpreted as taking their ordinary,
    contemporary, common meaning.” Perrin v. United States, 
    444 U.S. 37
    , 42 (1979). The term
    “parent” is normally used to refer to the progenitors of a child, as well as anyone who has taken
    1
    USSG § 2G2.1(b)(2) later became USSG § 2G2.1(b)(5).
    2
    When confronted with very similar language in a different context, the Supreme Court came to the same
    conclusion. See Taylor v. United States, 
    495 U.S. 575
    , 597 (1990). In Taylor, the Court interpreted the term
    “burglary” as it appears in 18 U.S.C. § 924(e)(2)(B), which defines “violent felony” as, among other things, a crime
    that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a
    serious potential risk of physical injury to another” (emphasis added).
    3
    Because the government does not argue that Sweeney was T.R.’s relative or legal guardian, we do not
    define those terms.
    No. 17-3768                                United States v. Sweeney                                            Page 7
    on the role traditionally reserved for those progenitors, such as a stepfather.4 One can be a parent
    in this sense without having parental rights over one’s child.
    Sweeney argues that in addition to biological parentage, the enhancement requires that
    the defendant must have also abused a position of trust, citing the Guidelines commentary earlier
    noted. He argues that, here, there was no position of trust between himself and T.R. But, as
    explained below, even applying the definition that Sweeney asks us to adopt—and it seems clear
    that, as used in § 2G2.1(b)(5), “parent” includes at least the child’s biological father who abuses
    a position of trust—the district court did not clearly err in finding that the enhancement applies in
    this case. We need not decide, therefore, whether a biological relationship alone between the
    perpetrator and the victim would be sufficient for the “parent” enhancement to apply.
    The district court applied § 2G2.1(b)(5) because T.R. “saw [Sweeney] in [his] biological
    father role despite the fact that she’d been adopted.” While the district court used the term
    “biological,” it applied the enhancement because of the role Sweeney was playing in T.R.’s life,
    not the mere fact that she was his biological daughter.5
    In determining whether the district court clearly erred in finding that Sweeney is T.R.’s
    parent under § 2G2.1(b)(5), we must be mindful that the Sentencing Commission directed that
    the enhancement “have broad application.” USSG § 2G2.1(b)(5), cmt. n.5. The trial transcript is
    replete with testimony showing that Sweeney had reestablished his parental relationship with
    T.R. and was therefore in a position of trust relative to her. The district court did not clearly err
    in finding that their relationship fell within the broad application of § 2G2.1(b)(5).
    4
    See, e.g., Oxford English Dictionary, Parent, http://www.oed.com/view/Entry/137816?rskey=h61fNd&res
    ult=1&isAdvanced=false#eid (“A person who is one of the progenitors of a child; a father or mother. Also, in
    extended use: a woman or man who takes on parental responsibilities towards a child, e.g. a stepmother, an adoptive
    father.”).
    5
    Further supporting our view that the district court’s application of the enhancement was not predicated
    solely on the biological relationship between Sweeney and T.R., the district court invited “the Circuit to clarify
    whether a biological father is an appropriate application of this guideline, but I believe it is in this case.” Had the
    district court been of the opinion that being the biological father of the victim was sufficient simpliciter, it would not
    have said that it was sufficient in this case. In the context of the sentencing transcript, clearly the district court
    thought that it was sufficient in this case because of the familial relationship that had developed between Sweeney
    and T.R. beyond their biological relationship.
    No. 17-3768                              United States v. Sweeney                                        Page 8
    Sweeney and T.R. were in periodic contact for approximately two and a half years. T.R.
    described their relationship immediately prior to the criminal activity as “good, like friendly, like
    trying to see if we could be like father/daughter again.” As the following example shows, the
    text-message conversations between the two support T.R.’s characterization of the relationship.
    T.R.:            “Leave me alone and forget about being lovers because it’s not
    going to happen.”
    Sweeney:         “What! What did I do, love?”
    T.R.:            “I don’t want to be lovers. I just want you to be my dad, nothing
    more than a father.”
    The record makes it clear that Sweeney had re-entered T.R.’s life as a father figure, even
    if he did not have custody, care, or supervisory control over her. The district court did not
    clearly err in finding that this was sufficient to show that Sweeney was T.R.’s parent for
    purposes of § 2G2.1(b)(5).
    ***
    Finally, Sweeney argues that his sentence is procedurally unreasonable because the
    district court failed to address various mitigating arguments he presented at sentencing. 6 In
    passing sentence, district courts must address legitimate mitigating arguments raised by the
    defendant. See, e.g., United States v. Wallace, 
    597 F.3d 794
    , 803 (6th Cir. 2010) (“When a
    defendant raises a particular[, nonfrivolous] argument in seeking a lower sentence, the record
    must reflect both that the district judge considered the defendant’s argument and that the judge
    explained the basis for rejecting it.” (alteration in original) (quoting United States v. Gapinski,
    
    561 F.3d 467
    , 474 (6th Cir. 2009))). But we have been clear that district courts need not engage
    in a formulaic point-by-point refutation of a defendant’s mitigation arguments; the district court
    discharges its duty so long as it “conduct[s] a meaningful sentencing hearing and truly
    consider[s] the defendant’s arguments.” United States v. Gunter, 
    620 F.3d 642
    , 646 (6th Cir.
    2010).
    6
    Sweeney also cursorily argues that his sentence is procedurally unreasonable because the district court
    “did not review or address on the record in any meaningful way [the] 18 U.S.C. § 3553(a) factors,” although he fails
    to mention which factors he believes were inadequately reviewed or why their review was inadequate. Reviewing
    the record has convinced us that the district court considered the § 3553(a) factors adequately.
    No. 17-3768                            United States v. Sweeney                                    Page 9
    Sweeney admits we review this issue under the deferential plain-error standard. We are
    not convinced that the district court plainly failed to consider or adequately explain its rejection
    of any of the arguments Sweeney presented at sentencing.
    Sweeney claims that the district court failed to address his argument that “the Sentencing
    Guidelines for these type [sic] of offenses themselves were skewed, and not commiserate [sic]
    with actual offense conduct,” that “the instant offense was less appalling than some other
    offenses prosecuted under the statute,” that “there would be a sentencing disparity if the court
    imposed a 45 year sentence,” and that “a 30 year sentence was in effect a life sentence.”
    The district court, however, clearly considered these arguments. It granted that “this does
    seem to be a category of cases where there is growing agreement that perhaps the punishments
    are treated more harshly under the guidelines than with other types of criminal offenses” and
    indicated that it was “mindful of the need to avoid unwarranted sentencing disparities.” It agreed
    with Sweeney that “this is not the worst offense the Court has seen.” And it recognized that
    “[a] 35-year sentence may in fact be a life sentence.”
    While the district court did not engage in a point-by-point explanation of why each of the
    mitigation arguments did not further influence its decision,7 the record shows that it considered
    each of these arguments and rejected each after a careful consideration of the appropriate
    § 3553(a) factors.
    III
    For the foregoing reasons, we AFFIRM.
    7
    The district court was moved, at least, by Sweeney’s argument that more appalling offenses have been
    committed, crediting this fact with its having “chosen a sentence below the statutory maximum range.”