UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROMEO VALENTIN SANCHEZ, Defendant-Appellant.
No. 19-14002
United States Court of Appeals For the Eleventh Circuit
04/05/2022
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:17-cr-00136-SPC-MRM-1 [PUBLISH]
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
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,
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
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 the 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
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
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
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 detective seized it.
B.
The search of Phone 2 produced evidence of another child victim, AP, a 14-year-old girl with whom Sanchez had communicated through the Kik messenger application.2 There were pornographic images of her that AP had sent to Sanchez using the app, including an image of AP lifting her shirt and exposing her breasts. The username that had received the messages was “thatboygian,” purportedly “Gian King,” a 13-year-old Asian boy. But it was actually Sanchez using a fake identity to communicate with AP.
The conversations on Phone 2 between AP and Sanchez (posing as Gian King) started late on the night of May 26, 2017,
On July 14, 2017, about a month after Sanchez‘s arrest and the search of Phone 2, detectives met with AP and her family at their home. AP identified herself in the photos from Sanchez‘s Phone 2. She said that she had met Sanchez on May 14, 2017, when she and her family dined at Carrabba‘s where he was their server. Sanchez, who had a mobile nail service, offered to paint AP‘s and her family‘s nails at their home, and the family agreed. He came to their home and did their nails on May 25, 2017, which was the day before Sanchez’ communications (as Gian King) began with
AP was later interviewed at the Children‘s Advocacy Center. She disclosed that she had told Sanchez that she was attracted to men with Asian or Korean appearance, and he had suggested that she contact a family friend of Asian descent, “Gian King.” The day after he painted AP‘s family‘s nails, he convinced AP to download “What‘sApp” and provided a screen name for “Gian.” AP‘s phone and Sanchez‘s phone combined contained six photos and two videos of her engaged in sexual conduct; the videos were each less than 13 seconds long. AP never had sex with Sanchez.
C.
A grand jury returned a seven-count superseding indictment against Sanchez. It charged him with two counts of enticing a minor to engage in sexual activity, in violation of
The government responded that seizure of Phone 1 was justified by consent and exigent circumstances. It alternatively argued that even without Phone 1‘s evidence, the warrant to search Phone 2 was supported by probable cause.
The district court held an evidentiary hearing. The government called two witnesses: Detective Hicks and Sergeant Kaye. After their testimony, the court heard arguments from both sides. It later issued an order denying the motion to suppress. The court
[A] reasonable, experienced officer had legitimate reason to fear evidence on Phone 1 would be destroyed by wiping, remote or otherwise, before securing a search warrant for Sanchez‘s home. Such fear is because Sanchez (1) was not in custody, (2) told the Detectives that his phone was not locked and everyone had access to it, (3) knew about the Detectives investigating his sexual relationship with [CP]; (4) knew the Detectives had a warrant for Phone 1, and (5) had been previously convicted of a crime for inappropriate contact with a minor.
On the issue of consent, the court credited Sergeant Kaye‘s testimony that Sanchez‘s mother agreed to allow him to enter the home for the limited purpose of seizing the phone, which is what he did. The court explained:
At one point, Sanchez‘s parents approached the garage area where the Detectives were meeting with their son. At that time, the Detectives were speaking to Sanchez about Phone 1. Sergeant Kaye suggested that Sanchez‘s parents get the phone. Sanchez said that the phone was in his room. Sergeant Kaye testified that Sanchez‘s mother affirmatively agreed to get the phone. His testimony, while lacking in the specifics of how Sanchez‘s mother consented, was
uncontroverted and credible. He never wavered in his testimony that she consented to the search and that he would not have entered the residence without first obtaining consent. He followed Sanchez‘s mother inside and into an unlocked bedroom. Once the phone was retrieved from the bedroom, Sergeant Kaye and Sanchez‘s mother exited the residence. The entire search took minutes.
There is no evidence of intimidation or coercion; Sanchez‘s mother was not under arrest or threatened. A reasonable officer standing in Sergeant Kaye‘s shoes would have believed that Sanchez‘s mother could enter her residence and retrieve the phone. When Sergeant Kaye asked Sanchez‘s mother to retrieve the phone, she never stated that she did not have access to the home, the unlocked bedroom, or the phone. Nor did Sanchez or his father indicate that she did not have permission to retrieve Phone 1. In fact, Sanchez told them where it was.
The search was limited in scope. Sergeant Kaye followed Sanchez‘s mother into the home to obtain the phone and did not deviate from that consent. The only item retrieved was Phone 1. Based on a review of the totality of the circumstances, the Court finds that Sanchez‘s mother gave Sergeant Kaye voluntary consent.
The district court rejected Sanchez‘s argument that the search warrant for Phone 2 was tainted because it was based in part on the evidence found in Phone 1. The court concluded that
After the jury found Sanchez guilty on all seven charges against him, he was sentenced to life imprisonment plus a consecutive ten-year mandatory minimum. He appeals the denial of his motion to suppress and raises four sentence-related challenges. We will first address whether the district court erred by not excluding evidence derived from the officer‘s brief, warrantless entry into Sanchez‘s home for the sole purpose of seizing a phone that he agreed to turn over to law enforcement.
II.
“A district court‘s ruling on a motion to suppress presents mixed questions of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748–49 (11th Cir. 2002). We must accept the district court‘s fact findings as true unless they are clearly erroneous, but we review de novo its application of the law to the facts. Id. at 749. A district court‘s credibility determination gets special deference, and we accept it “unless it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it.” Id. (quotation marks omitted); see also United States v. Castaneda, 997 F.3d 1318, 1325 (11th Cir. 2021).
Sanchez contends that the government did not meet its burden of proving that Sergeant Kaye had consent to conduct a “search” of his home because the sergeant was “unable to identify
“A warrantless entry into a suspect‘s home to search the premises is presumed to be unreasonable.” Ramirez-Chilel, 289 F.3d at 751. Which means only that the government has the burden of proving that the defendant gave his free and voluntary consent to the search. See United States v. Massell, 823 F.2d 1503, 1507 (11th Cir. 1987).
Sanchez himself verbally consented to the seizure of Phone 1 in the house. He told the officers he was “fine” with giving them his phone and that his parents knew where it was and that it was in his room. After he said that, his mother gave Sergeant Kaye at least nonverbal consent to follow her into the home to retrieve the phone. And both Sanchez‘s and his mother‘s consent was freely and voluntarily given. There was no show of force causing either of them to acquiesce to a show of authority. Nor did the officers arrive in the middle of the night to conduct a search, which we‘ve recognized can be a factor indicating coercion. Cf. Ramirez-Chilel, 289 F.3d at 751 & n.8 (“Nighttime searches are deemed to be more
We‘ve repeatedly made it clear that consent can be nonverbal; stepping aside and “‘yielding the right-of-way‘” to officers at the front door is valid consent to enter and search. Id. at 752; Gill ex rel. K.C.R. v. Judd, 941 F.3d 504, 525–26 (11th Cir. 2019). Likewise, silently accepting an officer‘s expressed intent to enter the house solely for the purpose of retrieving a phone is also valid consent. Especially when the owner of the phone, who is a co-occupant of the house, has already verbally consented to turning it over (pursuant to a valid warrant) and has told the officers which room it is in. All of these circumstances add up to voluntary consent. See United States v. Morales, 893 F.3d 1360, 1367 (11th Cir. 2018) (explaining that a determination about whether a person‘s consent to search was voluntary depends on the specific facts and is based on the “totality of the circumstances“). The district court did not err in finding that there was valid consent for Sergeant Kaye to enter the house for the sole purpose of retrieving Phone 1, which is what he did and all that he did.
Because the search for and seizure of Phone 1 was valid, the search for and seizure of Phone 2 was not tainted. No poisonous tree, no poisonous fruit.
III.
Sanchez‘s
Any individual who violates . . . [
§ 2251 ] shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex
trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years . . . .
Sanchez raises arguments about congressional intent, earlier versions of the statute, the rule of lenity, and the absurdity doctrine. He asserts that his prior conviction for “an indecent act” should not trigger a 25-year mandatory minimum for his current
Sanchez‘s congressional intent argument is based on amendments to
Sanchez was convicted under Article 120 in 2011 because he sent pornographic photos of his exposed penis and of a woman‘s bare breasts and buttocks to a 13-year-old girl. That conviction required Sanchez to register as a sex offender. His conduct was far from what he describes as a “minor sexual indiscretion.” In any event, the particulars of his sex crime against a child, which violated Article 120, are not essential to the application of
“As always with questions of statutory interpretation, our inquiry begins with the plain language of the statute.” United
Sanchez‘s arguments about lenity and absurdity do not alter that result. The rule of lenity cannot override the clear directive of a statute. See Salinas v. United States, 522 U.S. 52, 66 (1997) (explaining that the rule of lenity “does not apply when a statute is unambiguous“); Mulhall v. Unite Here Loc. 355, 667 F.3d 1211, 1216 (11th Cir. 2012). And there is nothing absurd about the application of
IV.
Sanchez also challenges four guidelines sentencing enhancements. One of them is the application of a 4-level increase under
But CP told Sanchez that inserting the toothbrush would be painful, to which he responded that he “like[d] seeing [her] in pain.” Which at least implicitly acknowledged it would be painful. An objective viewer could reasonably find that it was painful and humiliating. See United States v. Caro, 309 F.3d 1348, 1351–52 (11th Cir. 2002) (holding that the sadistic conduct enhancement applied when the images showed penetration that would be painful, including vaginal and anal penetration with foreign objects); see also United States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999) (explaining that “sadistic and masochistic conduct includes sexual gratification which is purposefully degrading and humiliating“); United States v. Starr, 533 F.3d 985, 1001 (8th Cir. 2008) (holding that a minor‘s “self-penetration by a foreign object” justifies application
Sanchez also challenges a 2-level increase he received under
And when the court applied the
And there‘s more. The fact that Sanchez produced child pornography on two separate occasions means that the pattern enhancement applies. See United States v. Isaac, 987 F.3d 980, 994 (11th Cir. 2021) (explaining that a pattern is “at least two separate occasions” that need not occur “during the course of the offense” or “involve[] the same minor“) (quoting
Finally, Sanchez challenges a 2-level increase that was imposed under
Sanchez scored a total offense level of 51. The highest offense level from the guidelines sentencing table that counts in sentencing is 43, and as a result 43 became Sanchez‘s countable offense level. See
V.
Sanchez contends that his rights under the Double Jeopardy Clause were violated because he was sentenced for violating both
The Double Jeopardy Clause guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
They don‘t, as the Sixth Circuit has held. It rejected a similar double jeopardy challenge to sentences under
Here,
18 U.S.C. § 2422(b) requires the government to prove that [the defendant] attempted to persuade a minor to engage in “sexual activity for which any person can be charged with a criminal offense.” This element is not found in18 U.S.C. § 2251 . And§ 2251 requires the government to prove that [the defendant] attempted to persuade a minor to engage in sexually explicit conduct “for the purpose of producing any visual depiction of such conduct.” This element is not contained in18 U.S.C. § 2422(b) . Because18 U.S.C. §§ 2422(b) and2251 each require proof of an element that the other does not, [the defendant‘s] double jeopardy argument fails.
United States v. Hart, 635 F.3d 850, 858 (6th Cir. 2011); see also United States v. Isabella, 918 F.3d 816, 849 n.28 (10th Cir. 2019) (rejecting the defendant‘s argument that the “‘activity for which any person can be charged with a criminal offense’ under
VI.
Finally, Sanchez contends that his guidelines-range life sentence (plus a 10-year consecutive mandatory minimum one) is substantively unreasonable. He argues that it would have been enough to impose the mandatory minimum sentence of 35 years (25 years on the child pornography production counts plus 10 years consecutive on count 7, the felony offense involving a minor while he was already registered as a sex offender). Sanchez points to the sentence hearing testimony of defense witness psychologist Dr. Imhof. He testified to his opinion that Sanchez‘s risk of recidivism would be greatly reduced after he served a 35-year sentence, at which time Sanchez would be in his mid-sixties. Sanchez also argues that “the court unreasonably placed no weight on the many, many mitigating factors here — that [he] served his country in the United States Air Force, which included deployments overseas; [his] vulnerability in prison; and no evidence of intent to actually distribute the images sent to him.”
We review the reasonableness of a sentence only for abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). We will “vacate the sentence if, but only if,
The district court did not improperly weigh the factors or commit a clear error of judgment. See id. The court stated that it had taken into account the
At the sentence hearing, the court explained in detail its findings and conclusion about the appropriate sentence. In weighing the
Instead of getting the message, the court said, Sanchez “sought” CP as one of his victims and even “befriended her family.” The court had heard testimony from CP during the trial that Sanchez had sex with the fourteen-year-old girl on multiple occasions. At sentencing, the court spoke directly to Sanchez:
By [CP‘s] own admission, she was a shy, insecure 14-year-old. During the course of the offense, you not only took her virginity, but you took her dignity as well in all of the messages you sent her, the barrage of phone calls, of contact, of sexual contact with her. And all through that, when confronted during the course of the search warrant you continued to deny any allegations that she made against you. In fact, during the controlled call you acted like you didn‘t even know her, her family or her sister. And you continued to lie to law enforcement about all of those contacts.
The court found it “[p]articularly troubling” that after law enforcement seized Sanchez‘s phone, he “still didn‘t stop.” Instead, he “sought another victim.” It appeared that he was “always looking for another victim, always looking for another conquest.”
To that end, the court explained, after law enforcement took Sanchez‘s phone, he got another one and found another young victim by preying on a family who came to eat at the restaurant where he worked. About the crimes he had committed against that other
In light of all those considerations, the court imposed the guidelines sentence of life imprisonment plus a consecutive ten-year mandatory minimum, which was required because Sanchez had committed felony crimes involving minors while he was already registered as a sex offender.
“We‘ve upheld time and again sentences that will outlast a child pornographer‘s life.” Isaac, 987 F.3d at 996 (citing four decisions that also cite others). And the life sentence here was within the guidelines range. See id. at 994 (“Though we don‘t automatically presume a sentence within the guidelines range is reasonable, we ordinarily expect it to be.“) (quotation marks omitted). The
AFFIRMED.