United States v. Franklin Eller, Jr. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10425
Plaintiff-Appellee, D.C. No.
3:16-cr-08207-DGC-1
v.
FRANKLIN PAUL ELLER, Jr.,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted November 17, 2022
Phoenix, Arizona
Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Franklin Eller, Jr. appeals from his jury convictions and sentence for
attempted coercion and enticement of a minor, attempted production of child
pornography, and attempted receipt of child pornography. We have jurisdiction
pursuant to 28 U.S.C. § 1291. As the parties are familiar with the facts, we do not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
recount them here. We affirm.1
1. Eller argues that the district court erred in denying his motion to
suppress evidence obtained pursuant to an overbroad warrant. But we need not
decide whether the warrant was overbroad because, under the doctrine of
severance, the district court did not need to suppress any evidence presented at
trial.
The doctrine of severance allows the court to “strike from a warrant those
portions that are invalid and preserve those portions that satisfy the Fourth
Amendment. Only those articles seized pursuant to the invalid portions need be
suppressed.” United States v. Flores, 802 F.3d 1028, 1045 (9th Cir. 2015) (quoting
United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir. 1984)). Severance
therefore requires “identifiable portions of the warrant [to] be sufficiently specific
and particular[.]” United States v. Spilotro, 800 F.2d 959, 967 (9th Cir. 1986).
Flores is instructive on this issue. There, the government searched the
entirety of the defendant’s Facebook account and seized 11,000 pages of data
pursuant to a warrant seeking evidence of conspiracy and importation of a
controlled substance. 802 F.3d at 1044-45. Without reaching the issue of
overbreadth, we reasoned that “the two sets of Facebook messages introduced at
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Eller also challenges the sufficiency of the evidence for his attempted coercion
and enticement conviction under 18 U.S.C. §§ 2422(b) and 2. We affirm that
conviction in a concurrently filed published opinion.
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trial were sent on the day of Flores’s arrest and thus fell well-within even the
narrowest of temporal limits.” Id. at 1045-46. Because “[n]o evidence was
introduced at trial that should have been suppressed,” we affirmed the district
court’s denial of the defendant’s motion to suppress under the doctrine of
severance. Id. at 1045.
Similarly, the district court did not need to suppress any evidence introduced
at Eller’s trial. As Eller concedes, the search warrant affidavit supplied probable
cause to justify the search of his Yahoo account from January 1 to May 11, 2012,
during which he allegedly received at least three child pornography images. The
affidavit also provided a factual basis to justify the search of Eller’s Yahoo data
after May 11, 2012: the affidavit noted that the “seller” accounts with which Eller
communicated were still active, which gives rise to a reasonable probability that
Eller continued to communicate with such accounts after the specific 2012
communications that Yahoo had identified.
Thus, even if the search warrant was overbroad as to Eller’s pre-2012 data,
we need not decide the issue because the trial exhibits in dispute are from 2013 to
2014—a period for which the warrant affidavit gave probable cause and is
therefore “sufficiently specific and particular” to support severance. Spilotro, 800
F.2d at 967; see also United States v. Cardwell, 680 F.2d 75, 79 (9th Cir. 1982)
(“[I]f properly relied upon to limit the scope of the warrant, [an affidavit can]
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provide the information needed to limit the general nature of the warrant.”);
Gomez-Soto, 723 F.2d at 653 (applying severance after finding that a portion of the
warrant was sufficiently particularized because the affidavit provided probable
cause justifying the seizure). Because we may affirm a denial of a motion to
suppress “on any basis supported by the record,” United States v. McClendon, 713
F.3d 1211, 1218 (9th Cir. 2013), the district court did not err in denying Eller’s
motion to suppress under the doctrine of severance.2
2. Eller also raises two challenges to his life term of supervised release.
First, he argues that the district court erred in imposing a life term of supervised
release on procedural grounds by failing to adequately explain the sentence.
Because Eller failed to raise this objection at the sentencing hearing, we review for
plain error. United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010).
A district court commits procedural error when it fails to adequately explain
the sentence selected. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc). But here, the district court adequately explained its reasoning for Eller’s
life term of supervised release. During the sentencing hearing, the district court
justified Eller’s downward variance to fifteen-years’ imprisonment followed by a
lifetime of supervised release by explaining the sentence acknowledged the gravity
2
Because we affirm the district court’s denial of Eller’s motion to suppress, we
need not address the government’s additional argument that the “good-faith”
exception to the exclusionary rule applies.
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of the offense while ensuring Eller received proper mental health treatment. The
district court also considered the § 3553(a) factors when explaining its sentencing
decision. See United States v. Rusnak, 981 F.3d 697, 711 (9th Cir. 2020)
(affirming the district court’s decision to vary downwards for the prison sentence
and impose a life term of supervised release in part because it had “fully
considered the 18 U.S.C. § 3553(a) factors”).
Although Eller “requested a specific departure” by seeking a 60-month term
of supervised release, he proffered little justification for the reduced term besides
his lack of criminal history. See Carty, 520 F.3d at 990, 992, 995 (finding that the
district court was not required to provide more than a simple explanation for
imposing a sentence within the Guidelines even though the defendant requested a
departure based on his lack of criminal history, available alternatives, and “his
sons’ need for [] a role model”). Because the district court was not required to
provide more in its reasoning, it did not err, let alone plainly err.
Second, Eller challenges the length of his supervised release as substantively
unreasonable. We review the substantive reasonableness of conditions of
supervised release for abuse of discretion. United States v. Daniels, 541 F.3d 915,
924 (9th Cir. 2008).
We review the substantive reasonableness of a sentencing decision under
“the totality of the circumstances.” Carty, 520 F.3d at 993. When making
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sentencing decisions, district courts must consider factors such as “the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), and “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct,” id. § 3553(a)(6). Although this court has
never recognized a presumption of reasonableness when the sentence “accords
with the Commission’s view of the appropriate application of § 3553(a) in the
mine run of cases,” we have recognized that such a sentence is likely reasonable.
Carty, 520 F.3d at 994 (quoting Rita v. United States, 551 U.S. 338, 350-51
(2007)).
Here, Eller’s life term of supervised release was substantively reasonable
under the totality of the circumstances. The district court properly considered the
relevant factors: the nature of the offense, Eller’s mental health, the need for the
sentence imposed, the range of sentences available, policy considerations, and
sentencing disparities between other defendants. See 18 U.S.C. § 3553(a). When
explaining the sentence, the district court emphasized that “clearly the solution . . .
is mental health treatment, . . . not years in custody.”
Although the majority of other known defendants charged with the same
offense do not face lifetime supervised release, this does not indicate that Eller’s
sentence was substantively unreasonable. The record suggests that the district
court was acutely aware of the risk of sentencing disparities and identified that risk
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as “the most influential” factor motivating its sentencing decision. Moreover, Eller
is not similarly situated to the other known defendants who did not receive a life
term of supervised release. Of the additional completed federal prosecutions
resulting from this investigation, nineteen out of the twenty-three supervised
release terms imposed were for a fixed term of years (rather than for life), and of
those nineteen defendants, eighteen had pleaded guilty to all or some charges. See
United States v. Garro, 517 F.3d 1163, 1172 (9th Cir. 2008) (finding the defendant
“not similarly situated to those with whom he compared himself because they had
. . . pled guilty”). The one remaining federal defendant who did not plead guilty
was sentenced to 330 years in prison, thereby rendering the length of his
supervised release obsolete. And even some defendants who pleaded guilty still
received lifetime supervised release. Accordingly, the district court did not abuse
its discretion in imposing a life term of supervised release.
AFFIRMED.
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