United States v. Robinson

• Decision Date: 24 January 2014
• Docket Number: No. 12–60841.,12–60841.
• Citation: 741 F.3d 588
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Brian ROBINSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

741 F.3d 588

UNITED STATES of America, Plaintiff–Appellee

v.Brian ROBINSON, Defendant–Appellant.

No. 12–60841.

United States Court of Appeals,Fifth Circuit.

Jan. 24, 2014.

Paul David Roberts (argued), Assistant U.S. Attorney, U.S. Attorney's Office, Oxford, MS, for Plaintiff–Appellee.

LeRoy Davis Percy (argued), Percy Law Firm, P.L.L.C., Oxford, MS, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before SMITH, PRADO, and ELROD, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Brian Robinson was convicted of producing, possessing, and distributing child pornography. He challenges the district court's denial of his motion to suppress evidence and his 720–month sentence. We affirm the denial of his motion to suppress, but vacate his sentence and remand for resentencing because the district court did not appreciate its authority to consider evidence of Robinson's cooperation under 18 U.S.C. § 3553(a).

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2010, federal investigators discovered images of child pornography in a suspect's possession. Two sets of images were sent over the internet in June and July 2010 by a person using the username “lowkey” on the instant messaging service ICQ. Information embedded within the images indicated that the sets of images had been taken on May 20, 2008, and January 26, 2009. Investigators obtained subscriber information and Internet Protocol (“IP”) logs related to the “lowkey” account. Investigators further determined that the account had been accessed numerous times from a particular IP address assigned to Accurate Roofing Company, Inc. (“Accurate Roofing”) in Potts Camp, Mississippi.

In March 2011, investigators obtained a search warrant for Accurate Roofing. Prior to serving this search warrant at Accurate Roofing, investigators determined that the child in the images was the young son of Brian Robinson, who was a vice-president of Accurate Roofing. Based on the original affidavit and the additional information identifying Robinson's son, investigators also obtained a search warrant for Robinson's home. At Accurate Roofing, investigators found a computer and a separate thumb drive that contained a combined 260 images of child pornography and 19 videos of child pornography. They also discovered evidence that Robinson's workplace computer had been used to access the “lowkey” account. At his residence, agents found clothing, household items, and furniture that appeared in the pornographic images.

Robinson initially agreed to speak with investigators; however, when he was asked how images of his son had come to be on another person's computer, Robinson stopped the interview. He was arrested on state charges of child exploitation. The next day, after being advised of his rights, Robinson gave a full recorded confession. He admitted that the “lowkey” account was his and that he had sent images of his son to other persons using that account. Robinson was indicted on two counts of production of child pornography (18 U.S.C. § 2251(a)), two counts of distribution of child pornography (18 U.S.C. § 2252A(a)(1)), and one count of possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)).

Robinson moved to suppress the evidence obtained through the searches of his workplace and home as well as his statement to investigators. He argued that the affidavit submitted in support of the warrant to search Accurate Roofing “failed to establish a nexus between the place to be searched and the evidence sought” because it failed to disclose both that other IP addresses had accessed the “lowkey” account and that investigators did not know which IP address had accessed the account at the time the images were transmitted. As for the affidavit in support of the warrant to search his residence, Robinson argued that the affidavit failed to assert that the household items seen in the images were still in the residence when the search warrant was sought in 2011. Finally, because he had invoked his right to counsel the day before he gave his incriminating statement to investigators, Robinson argued that his statement should be suppressed. The district court denied the suppression motions after an evidentiary hearing.

Pursuant to a conditional plea agreement, Robinson pleaded guilty to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography. He reserved the right to appeal the denial of his motions to suppress. SeeFed.R.Crim.P. 11(a)(2).

The presentencing report (“PSR”) calculated a total offense level of 43. Because Robinson had no criminal history, his criminal history category was I. These calculations resulted in a guidelines range of imprisonment for life. However, the sum of the statutory maximum sentences for each count of conviction was 720 months, making this the guidelines sentence. Robinson filed a sentencing memorandum,¹ which, in relevant part, requested a lower sentence based on his cooperation with investigators in at least two other cases.

At sentencing, Robinson urged the district court to consider his cooperation with authorities when considering the sentencing factors of 18 U.S.C. § 3553(a)(2). The district court adopted the PSR; stated that it had considered the advisory guidelines range, the statutory ranges, and the sentencing factors of § 3553(a); and found no reason to depart from the guidelines range. Robinson was sentenced to a total of 720 months of imprisonment.² Addressing his cooperation with authorities, the district court “acknowledge [d]” those efforts, but it stated that “it does you no good for the purposes of sentencing in that the Court does not have before it a [U.S.S.G. § ] 5K[1.1] motion to consider.” The district court further stated that it was a “moot question” whether Robinson would have received a reduction under § 5K1.1 because the Government had chosen not to file such a motion. The district court represented that it was not considering all the § 3553(a) factors:

I represent on the record that if the Court were to consider those [§ 3553] factors, it would not have helped Mr. Robinson at all in his sentence because when the Court considers the nature and circumstances of this offense [it] finds that there is no reason when [sic] he would be entitled to any reduction due to this charge of molesting his child, his own son, and distributing pornography of his son.

The district court reiterated this statement: “If I considered all the factors under [§ ] 3553 ... the Court would still be of the opinion that a 720–month sentence is appropriate in this case.” Robinson unsuccessfully objected that the sentence imposed was substantively unreasonable. He filed a timely notice of appeal from the amended judgment.

II. DISCUSSION

Robinson appeals (1) the district court's denial of his motions to suppress the evidence seized from Accurate Roofing and from his residence and (2) the procedural and substantive reasonableness of his sentence.We first address Robinson's suppression challenge.

A. Suppression1. Standard of Review and Applicable Law

When reviewing a denial of a motion to suppress evidence, this Court reviews factual findings for clear error and the ultimate constitutionality of law enforcement action de novo. United States v. Charles, 469 F.3d 402, 405 (5th Cir.2006). The clearly erroneous standard is particularly deferential where, as here, “denial of a suppression motion is based on live oral testimony ... because the judge had the opportunity to observe the demeanor of the witnesses.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir.2005) (citation and internal quotation marks omitted).

We apply a two-step test to determine whether to suppress evidence under the exclusionary rule: first, we ask whether the good faith exception to the rule applies, and second, we ask whether the warrant was supported by probable cause. United States v. Mays, 466 F.3d 335, 342–43 (5th Cir.2006) (citation omitted). The good faith exception to the exclusionary rule provides “that evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible” even if the affidavit on which the warrant was grounded was insufficient to establish probable cause. United States v. Shugart, 117 F.3d 838, 843 (5th Cir.1997) (citation and internal quotation marks omitted).

This Court has recognized several circumstances in which the good faith exception does not apply, including where the judge who issued the warrant acted after being “misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth,” or the affidavit upon which the warrant is founded is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Mays, 466 F.3d at 343 (citation and internal quotation marks omitted).

2. Search Warrant for Accurate Roofing

Immigration and Customs Enforcement Special Agent Brent Lyons prepared the affidavit in support of the search warrant for Accurate Roofing. The affidavit alleged that the IP address assigned to Accurate Roofing “was utilized to transfer images of child pornography via the Internet by using an online instant messaging chat program in approximately June and July 2010.” It also stated that investigators had learned the IP address most recently used (on December 15, 2010) to log in to the “lowkey” account was assigned to Accurate Roofing and that IP addresses assigned to Accurate Roofing had been used to log in to the “lowkey” account on multiple other (unspecified) dates.

Agent Lyons testified at the suppression hearing. He stated that investigators had requested six months of login data for the “lowkey” account, but the internet service provider could provide only approximately three months of data. He acknowledged...