United States v. Sanchez

• Citation: 30 F.4th 1063
• Decision Date: 05 April 2022
• Docket Number: 19-14002
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Romeo Valentin SANCHEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

30 F.4th 1063

UNITED STATES of America, Plaintiff-Appellee,

v.Romeo Valentin SANCHEZ, Defendant-Appellant.

No. 19-14002

United States Court of Appeals, Eleventh Circuit.

Filed: April 5, 2022

Todd B. Grandy, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, Sara C. Sweeney, U.S. Attorney's Office, Orlando, FL, for Plaintiff-Appellee.

Laura Daines, Federal Public Defender's Office, Tampa, FL, Shehnoor Kaur Grewal, Russell K. Rosenthal, Federal Public Defender's Office, Fort Myers, FL, Rosemary Cakmis, Law Office of Rosemary Cakmis, Orlando, FL, for Defendant-Appellant.

Before Branch, Grant, and Ed Carnes, Circuit Judges.

ED CARNES, Circuit Judge:

After a five-day trial, a jury found Romeo Valentin Sanchez guilty of seven counts involving sex crimes against minors. The district court sentenced him to his guidelines sentence of life imprisonment plus a consecutive ten-year mandatory minimum. That consecutive part of his sentence was based on his conviction for committing a felony crime involving a minor while he was already registered as a sex offender.

He challenges the denial of his motion to suppress evidence obtained from his two cell phones. He also raises various challenges to his sentence. None of his challenges has merit.

I.

In March 2017 a woman contacted the Cape Coral, Florida police and reported that her twenty-nine-year-old former boyfriend, Romeo Sanchez, was having sex with her little sister CP, who was 14 years old.¹

A.

The family had begun to suspect that something was wrong when CP received a late-night call on her cell phone while the family was watching a movie at home. Her father answered and told the caller that the phone belonged to a fourteen-year-old, who shouldn't be getting late-night calls. The next day, CP's family took her phone and discovered that Sanchez had been the late-night caller.

They also discovered pornographic photographs and videos of CP that she had sent to Sanchez. CP admitted to her family she had been communicating with him through several social media applications and at his request had sent him nude photographs and videos of herself. She also admitted that they had sex.

After CP's family informed the police about what was happening, a detective went to their house to investigate and to seize her phone as evidence. As part of the investigation, the detective interviewed a neighbor who said that he had seen CP leaving her house in the night and getting picked up by someone driving a Ford Mustang. That was the kind of car that Sanchez drove.

CP was interviewed at the Children's Advocacy Center. She said Sanchez had asked her to send him nude pictures of herself using the "Kik" messenger app, and she had complied with his request. She also had agreed to meet him at her house to have sex while her parents weren't home. Sanchez came to her house at about 9:00 at night. She lost her virginity to him. She said that the sex was painful, and that Sanchez had ejaculated on her face.

Over the next seven months, Sanchez used various apps to ask on a daily basis for CP to send him pornographic images of herself. She complied by sending him pictures of her breasts, vagina, and buttocks. He also asked her to record and send nude videos of herself, specifying various acts he wanted the videos to depict. She complied. Sanchez asked her to record herself inserting a toothbrush into her vagina. When she told him that it would be painful, he replied, "I like seeing you in pain." She complied and sent him the video. During the time he was requesting and receiving child pornography from CP, Sanchez sent her two photographs of his penis, but he instructed her to delete those photos, and she complied.

During her Children's Advocacy Center interview, CP described other occasions when she and Sanchez had sex. She recounted that each time they had sex, he ejaculated on her face, in her mouth, or on her breasts. He told her not to tell anyone about them having sex or he would go to jail. One conversation that CP had with a friend indicated that Sanchez had impregnated CP and that her parents would be angry when they found out. But CP miscarried.

Detectives searched CP's cell phone and the social media apps on it and found that she had "friends" named "romeo Valentine" and "romeo2magic." Under each name, they found images of CP's breasts and face that had been sent to Sanchez. They also found evidence that she had sent sexually explicit images to "other males," and she admitted that she had done so.

The search of CP's phone revealed that on February 26, 2017, she had sent a Snapchat message to Sanchez, trying to end their "relationship," and telling him that he made her feel like "a whore where you put your dick." Sanchez responded by sending her his cell phone number. Phone records showed there were incoming calls and text messages from Sanchez on CP's phone.

The subscriber information for the social media applications that CP had used to communicate with Sanchez showed that they were associated with an internet protocol address registered to Sanchez's residence. That address matched the one for his Florida driver's license and for his registration on the State Sexual Offender Registry. He was on the registry because in 2011, while serving in the Air Force, he had an Article 120 military conviction for indecent conduct. It involved his sending over the internet photos of his exposed penis and of a woman's bare breasts and buttocks to a 13-year-old girl.

As part of their investigation, detectives conducted a controlled call between CP and Sanchez. After she and Sanchez exchanged greetings, she told him that her parents had found out about their relationship. After that, "Sanchez changed his tone, appearing to be confused, claiming he believed the call was from someone else." He ended the call.

The next day, Detectives Hicks and Mino, Sergeant Kaye, and Officer Mills from the Cape Coral Police Department went to Sanchez's house with a warrant to seize his phone. (We'll call it Phone 1 to distinguish it from a second phone, which we'll call Phone 2, that officers seized later when they arrested Sanchez at the restaurant where he worked.) Sanchez came out to the driveway to speak with the officers. He told them he lived at the house with his parents, and admitted that he had dated CP's older sister (although he said he knew her by a different name), but he denied having had sex with CP. He denied nearly everything they asked about CP, including having spoken with her during the controlled call. He said "everyone" had access to his phone, and he didn't lock it. The detectives told Sanchez that, based on their investigation, they thought he was lying to them.

Sanchez asked if he was being arrested, and Detective Hicks said no. Sanchez asked if he needed to get a lawyer, and Hicks said he could not give legal advice. The detectives showed Sanchez a copy of the search warrant for Phone 1. When he questioned the electronic signature of the judge, the detectives told him that the warrant was valid and that they were there to seize the phone. Detective Hicks said they were going to arrest Sanchez if he didn't turn over the phone. Sanchez replied, "I'm fine giving you my phone."

Sanchez "grabbed at his pocket," causing Detective Hicks to think that he might have a weapon or try to "wipe" evidence from the phone; he patted Sanchez's pocket to see if there was a weapon or the phone in it. There wasn't.

While Sanchez was speaking with the detectives, his parents returned home. Sergeant Kaye approached them and told them that their son was being questioned as part of an investigation. Later, they came over to where the detectives were speaking with Sanchez. At that point, Sanchez and the detectives were discussing the warrant for seizing the phone, and Sergeant Kaye proposed that Sanchez's parents get the phone. Sanchez said that his parents knew where the phone was located and said it was in his room. A transcript of the interview shows that an unidentified officer said: "So let's just grab that one," referring to the phone, "and we'll — I'll go in with you [Sanchez's mother]. That way nobody gets all nervous when you go in the house."

Sergeant Kaye later testified that Sanchez's mother had agreed to get the phone from the house, and he went in with her to get it. The sergeant didn't recall whether her consent was verbal or nonverbal, but he testified that he would not have entered the house without her permission. The district court found his testimony was credible.

Sergeant Kaye testified that he accompanied Sanchez's mother to get the phone "for safety purposes and to ensure that the phone was not tampered with." She led him to an unlocked bedroom where the phone was located, and he could not recall who picked up the phone, but they were in the home just a few minutes, and after they had retrieved the phone, the officers left. They did not arrest Sanchez at that time.

A forensic search of Phone 1 revealed 27 calls between Sanchez and CP, ranging in length from three seconds to four hours. Forensic examinations of CP's and Sanchez's phones uncovered chat conversations about their sexual relationship as well as nude images and videos of CP that she had sent Sanchez. There was a total of 18 videos of CP, each one less than 10 seconds long. Some of the 18 videos depicted the young girl inserting a toothbrush into her vagina, inserting a curling iron into her vagina, grabbing her breasts, and other acts of that sort. One video had a "text bar" that said, "I hate videos."

A few months after the officers seized Phone 1, Detective Hicks and another officer, who was wearing a body camera, arrested Sanchez at his workplace, Carrabba's Italian Grill. When Sanchez retreated to a back room as they came in, they followed him. He tried to conceal his phone (Phone 2) in the kitchen and said it belonged to the restaurant, but after verifying that the restaurant didn't provide Sanchez with a phone, the...