UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENEON FITZROY ISAAC, Defendant-Appellant.
No. 19-11239
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
February 5, 2021
Before BRANCH, LUCK, and ED CARNES, Circuit Judges.
D.C. Docket No. 6:18-cr-00190-CEM-TBS-1; Appeal from the United States District Court for the Middle District of Florida
One winter day, a mother and her two young daughters were begging for money at a convenience store. The mother was ill and they were homeless, hungry, destitute. A man approached them and offered to help. He bought them food and clothing, found them a place to stay, even purchased watches for them. When you’re desperate, those showing kindness can seem heaven-sent and those who help can appear angelic. But not every kind act is motivated by kindness and some who offer help aim to harm. Keneon Fitzroy Isaac is an example, which is why he is now serving an 80-year sentence in federal prison.
In the weeks after meeting the mother and her two daughters at the convenience store in January of 2018, Isaac regularly provided them with food and clothing, even gifts. At first he paid for hotel rooms for them. Eventually, he provided them with an RV to live in. It didn’t have plumbing or electricity, but it was better than living on the streets. By those acts of kindness, Isaac gained their trust. Which was exactly what he wanted to do.
Less than a month later, after an investigation sparked by an anonymous tip, officers from the Cocoa Beach, Florida Police Department arrested Isaac. They seized a ZTE cellphone Isaac had on him when he was arrested. The officers also conducted an inventory search of Isaac’s car and found a second cellphone, a black LG. Later, they got warrants to search both cellphones.
A. Motion to Suppress
Isaac moved to suppress the evidence found on his LG cellphone, which was the one that was found in his car. That phone contained the videos and pictures of Isaac sexually abusing D.J. and 213 other child pornography pictures. He argued that the warrant authorizing the search of that cellphone was invalid because the search of his car was an illegal search incident to arrest. In response to the government’s argument that the search was instead a routine inventory search, he argued that it was not a valid one because the officers had failed to comply with their department’s own procedures because they did not give him a chance to have somebody come and get his car as an alternative to it being impounded. The government replied that the inventory search was authorized by and done in compliance with standard police procedures. At the suppression hearing the arresting officer, Detective Betts of the Cocoa Beach Police Department, testified about his investigation, the arrest of Isaac, and his search of Isaac’s MercedesBenz.
Having been given Isaac’s name, Betts was able to locate and meet with him. Isaac confirmed that he had met the family while they were begging for money, and said he felt sorry for them and was helping them out. He described the two children and gave Betts their names. He also gave Betts a phone number that he said was for the mother, but Betts was unable to locate the family.
The tipster also gave Betts information about where to find the family. He later found the children in an RV behind a rundown gas station in a high crime area. That night from about 7:00 p.m. until 10:30 p.m. he interviewed D.J. and her sister at the sheriff’s office.
Based on his interviews of D.J. and her sister, Detective Betts decided he had probable cause to arrest Isaac for lewd and lascivious battery. He went to the RV and called Isaac and asked him to come there. Isaac arrived alone in his Mercedes-Benz at around 11:00 p.m. He parked in a nearby lot, blocking a semitruck that was also parked there. After Isaac walked up to him, Betts called the number D.J. had given him; and the phone Isaac had on him began to ring. From that, Betts concluded the phone was the same one that D.J. had described, but he couldn’t tell if its screen was cracked, and he didn’t know whether Isaac had any other cellphones on him or in his car.
Detective Betts decided to have the car impounded. He later testified that the Cocoa Beach Police Department’s Standard Operating Procedure authorized him to impound Isaac’s car because Isaac was in custody. Betts made the decision to do it for several reasons: it was late at night and the Mercedes-Benz would be unsecured in a high crime area; the police department was short staffed, so there were no officers who could remain with it; Betts himself could not stay with the car because he needed to interview Isaac; Isaac’s car was blocking a parked semitruck whose driver had shown up and said that he needed to leave; and Isaac was alone and, although he had a roommate, the roommate had a suspended license and could not move the car for him.
Following the procedure for inventory searches, Betts and another officer searched the car. They found a black touchscreen cellphone with cracks in the screen — Isaac’s LG cellphone. Betts recognized the phone from the tipster’s pictures, so he decided to leave it in the car and get a warrant to search the car and seize the phone. He then completed the inventory search, left Isaac’s phone where he found it, and the car was towed.
The district court denied Isaac’s motion to suppress the evidence from his LG cellphone. It rejected Isaac’s argument that the search of the car was a search incident to arrest. Instead, it found the search of the car was an inventory search, and that it was valid. The court implicitly credited Betts’ testimony by adopting his version of events and concluded that all of his actions related to the search “took place using his reasonable discretion according to standard police procedure and in good faith.” Because the inventory search was lawful, the court concluded, the later search warrants obtained for the car and the contents of the LG cellphone were also lawful, and “suppression of the cellphone and any evidence discovered from the cellphone [was] not warranted.”
After his suppression motion was denied, Isaac consented to a bench trial based on stipulated facts. Those stipulated facts included that: Isaac had gained the family’s trust by providing them living necessities; he had engaged in sexually explicit conduct with D.J. in his car and documented that conduct in photographs; he had engaged in sexually explicit conduct with D.J. in his condo and documented that conduct in photographs and video recordings; and his cellphones had contained hundreds of additional pictures of child pornography involving other children. Isaac and the government “agree[d] that the stipulated facts are true and correct and that they prove the elements of Counts One, Two and Three of the Indictment beyond a reasonable doubt.”
(Isaac’s brief to this Court refers to D.J. as his “alleged victim.” It is not merely an allegation. Isaac stipulated to the fact that he had engaged in sexually explicit conduct with D.J. and had taken hundreds of photographs and two videos of it. He “agree[d] that the stipulated facts are true and correct.” His sexual abuse of D.J. is not an allegation. It is a fact.)
After a bench trial based on the stipulated facts, the district court found Isaac guilty on all counts.
Isaac’s presentence investigation report calculated an advisory guidelines range of life in prison. The combined statutory maximum for his crimes, however, was 960 months, so that became the top and bottom of his recommended guideline range. See 18 U.S.C. §§ 2251(e), 2252A(b)(2); United States Sentencing Guidelines § 5G1.1(a) (Nov. 2018); United States v. Irey, 612 F.3d 1160, 1169–70 (11th Cir. 2010) (en banc). The recommended range was based on a total offense level of 43 and a criminal history category of I.
The PSR recommended a base offense level of 32. To that base offense level, the PSR recommended five enhancements: two levels because the victim was a minor between the ages of 12 and 16, U.S.S.G. § 2G2.1(b)(1)(B); two levels because the offense involved the commission of a sexual act or sexual contact, id. § 2G2.1(b)(2)(A); two levels because the victim was a minor in Isaac’s custody, care, or supervisory control, id. § 2G2.1(b)(5); two levels because Isaac knew or should have known the victim was a vulnerable victim, id. § 3A1.1(b)(1); and five levels because Isaac had engaged in a pattern of activity involving prohibited sexual conduct, id. § 4B1.5(b)(1). It recommended increasing Isaac’s offense level by another three levels based on grouping his convictions under U.S.S.G. § 3D1.4. That three-level increase based on grouping was calculated, in part, by applying an enhancement within one of the underlying groups: an enhancement under U.S.S.G. § 2G2.2(b)(5) for engaging “in a pattern of activity involving the sexual abuse or exploitation of a minor.” The PSR also recommended a two-level reduction for acceptance of responsibility. See id. § 3E1.1(a). The net effect of the recommended enhancements and reduction would have been an offense level of 46. But when a total enhanced offense level is greater than 43, the guidelines require that the total offense level still be treated as 43. See id. ch. 5, pt. A, cmt. n.2.
At the sentence hearing, the district court overruled Isaac’s objections and adopted the PSR. Among other things, the court found that D.J. was under Isaac’s “custody, care, or supervisory control” because of the “significant disparity” between their ages, and because Isaac was able to get D.J. alone as a result of “the trust he had earned from the family.” The court based those findings on the evidence and the stipulated facts. The court also found that Isaac had engaged in a “pattern of activity” because a “plain reading” of the guidelines and the stipulated facts showed that he had sexually abused D.J. on two separate occasions, which was enough to be a pattern under the relevant guideline provisions.
Isaac told the court he took “full responsibility” for his actions. But at the same time he downplayed the seriousness of his actions, asserting “[i]t’s not something that I stalked the family or sat in a place and waited for somebody to appear.” Instead, he told the court, “[i]t was just a bad judgment on my part.”
[Y]ou should know that for the rest of her life, whenever she meets someone, if she decides to marry someone, if she decides to have kids one day, for every part of her life moving forward, she’s going to think about this. Do I tell anyone about what happened to me? Are they going to blame me for what happened? Is she going to use some sort of controlled substance to try to manage the horrible posttraumatic stress disorder that she is probably suffering based on what happened? This never goes away.
The court emphasized the seriousness of Isaac’s “unthinkable heinous conduct” and said that “I don’t think it gets much worse than this.” And the court described Isaac’s crimes as “sort of the un-Holy Trinity. [He] took advantage of a family by earning their trust. Then [he] sexually abused, sexually battered a child. And on top of that, [he] filmed it.” The court also noted that because the sexual abuse was recorded there is the possibility that the recordings might “pop up later.”
The court sentenced Isaac to the statutory maximum sentence, which was also the top and bottom of his guidelines range. That sentence was a term of 960 months in prison: 360 months for Count One, 360 months for Count Two, and 240 months for Count Three, all to run consecutively. The court found that, after considering the advisory sentencing guidelines and the 18 U.S.C. § 3553(a) factors, the sentence was sufficient, but not greater than necessary, to comply with the statutory purposes of sentencing.
III. INVENTORY SEARCH ISSUE
Isaac contends that the district court erred in denying his motion to suppress the evidence found on his LG cellphone. He argues that the cellphone was found because of an illegal inventory search of his car, so it should have been suppressed as the fruit of an illegal search. According to him, the search was illegal because Detective Betts, the officer who decided to impound his car, failed to follow the police department’s procedures.
We review a district court’s ruling on a motion to suppress under a mixed standard, reviewing only for clear error the district court’s findings of fact and reviewing de novo its application of the law to those facts. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). “[W]hen considering a ruling on a motion to suppress, all facts are construed in the light most favorable to the prevailing party below.” Id. Here, that’s the government.
Though the police generally need a warrant to conduct a search, they do not need a warrant to search an impounded car if they (1) had the authority to impound the car, and (2) followed department procedures governing inventory searches. See United States v. Williams, 936 F.2d 1243, 1248 (11th Cir. 1991). An officer has the authority to impound a car if his decision to impound it is “in good faith, based upon standard criteria, and not solely based upon suspicion of evidence of criminal activity.” Sammons v. Taylor, 967 F.2d 1533, 1543 (11th Cir. 1992) (quotation marks omitted); accord United States v. Johnson, 777 F.3d 1270, 1277 (11th Cir. 2015). Though the search cannot be based on only the suspicion of finding evidence, an officer’s expectation that evidence will turn up does not invalidate an otherwise lawful inventory search. See United States v. Bosby, 675 F.2d 1174, 1179 (11th Cir. 1982). Once a car is lawfully impounded, officers may conduct a warrantless inventory search of it if they continue to follow “standardized criteria.” Sammons, 967 F.2d at 1543.
The district court found that the police department’s Standard Operating Procedure (“SOP”) authorized Betts to impound Isaac’s car. That procedure gives Cocoa Beach police officers the authority to impound cars in at least 10 different situations. The district court decided that this case involved one of those impoundment situations, the one in which the driver is taken into custody and the car would be left unattended. In that situation, the officer may impound the car if “all reasonable efforts to provide the vehicle driver with alternatives to impoundment have been unsuccessful or impractical due to time or staffing constraint.” We will call this the post-arrest provision.1
Our interpretation of the guidelines is governed by traditional rules of statutory construction, United States v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017), and the language of the guidelines is given its “plain and ordinary meaning,” United States v. Tham, 118 F.3d 1501, 1506 (11th Cir. 1997). We follow a guideline’s application note as “authoritative unless we determine that it ‘is inconsistent with, or a plainly erroneous reading of, that guideline.’” United States v. Hill, 783 F.3d 842, 844 (11th Cir. 2015) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).
The instruction in the commentary that courts should apply § 2G2.1(b)(5) broadly and functionally guides our analysis. See U.S.S.G. § 2G2.1 cmt. n.5(A). The language of the commentary is broadly inclusive, stating that the enhancement “includes offenses involving a minor entrusted to the defendant.” Id. (emphasis added); see id. § 1B1.1 cmt. n.2 (“The term ‘includes’ is not exhaustive.”); United States v. Newman, 614 F.3d 1232, 1236–37 (11th Cir. 2010) (“Because the term
And the commentary twice notes that the § 2G2.1(b)(5) enhancement can apply to defendants entrusted with the victim only temporarily, meaning there is no requirement that the defendant and the victim have a long-term relationship. See id. Finally, the commentary instructs courts to consider the “actual relationship” instead of just the “legal status” between the defendant and the victim, which requires a functional approach instead of a formalistic one. See id.
In addition to the interpretative approach or leaning that the commentary advises using, the plain meaning of the operative phrase in § 2G2.1(b)(5) is pretty plain. In the phrase “custody, care, or supervisory control” the word that seems most apt in this case is “care.” To articulate that word’s meaning, dictionary definitions are helpful. “Care” means having a minor in one’s “charge” or under one’s “protection” and having “responsibility” to “watch over or attend to” her. See Care, Webster’s New World College Dictionary (5th ed. 2020); see also Care, Oxford English Dictionary (2d ed. 1989) (“Charge; oversight with a view to
The commentary to the guideline also supports that plain meaning in its discussion of what it means for a child to be in the defendant’s “custody, care, or supervisory control.” It lists “teachers, day care providers, baby-sitters, or other temporary caretakers” as among those who would qualify for the enhancement. See U.S.S.G. § 2G2.1 cmt. n.5(A). Of course, each of those examples describes a person who “looks after” and has responsibility for the safety and wellbeing of a minor who is in that person’s “care.” Because the commentary list is non‑exhaustive and the enhancement is to be applied broadly, the operative language must include defendants whose roles in the care of children are comparable to one or more of the commentary’s examples.
Under the plain meaning of being in someone’s “care,” D.J. was “in the care of” Isaac at the times when he sexually abused her. He was looking after the minor D.J., who was 13 years old. He had been providing D.J. and her family with the necessities of life when he picked her up in his car on the first day he molested her, and he was the only adult alone with her when he committed his crimes. While D.J. was alone with him, Isaac was the adult responsible for looking after her
Isaac’s “custody, care, or supervisory control” over D.J. on the two occasions is comparable to the examples in the commentary. At the very least, he had the same kind of “care” over D.J. as the temporary caretaker example the commentary provides. Like a temporary caretaker, Isaac was trusted with D.J. Cf. U.S.S.G. § 2G2.1 cmt. n.5(A) (noting the enhancement “includes offenses involving a minor entrusted to the defendant”). The stipulated facts included that Isaac “gain[ed] the family’s trust” and, relying on those facts, the district court found that “quite frankly, by gaining the family’s trust, [Isaac] got [D.J.] alone” and that on the two dates of abuse Isaac “had access to the child, the minor, because of the trust he had earned from the family.” (Emphasis added.) That factfinding was not clear error.
Isaac fit the commentary’s example of a temporary caretaker because as a 44-year-old adult and the only adult present, he had caretaking responsibilities for D.J. See Beasley, 688 F.3d at 535 (affirming enhancement despite the defendant’s argument that he was “merely a shop owner, [and] not a caregiver or custodian” when the defendant “was the primary, and maybe the only, adult present” for overnight lock-ins at a video game store); cf. Alfaro, 555 F.3d at 498 (noting the government’s argument to the district court that “if the victim had injured herself,
Another similarity to a temporary caretaker was that Isaac had a broadly comparable degree of authority over D.J. Cf. United States v. Murrell, 368 F.3d 1283, 1289–90 (11th Cir. 2004) (interpreting “custody, care, or supervisory control” as used in U.S.S.G. § 2G1.1 cmt. n.8 and holding that it applied to someone who “exercised such authority” over the minor as to “direct or command [her] actions”). Isaac’s thirty-year age difference over D.J., his having established himself as a provider for her, and being all alone with her are facts that show he had authority over her while she was alone with him. See Alfaro, 555 F.3d at 500 (“[T]his Court concludes that the 20-year age difference between [the defendant] and his teenage minor victim . . . mitigates against a finding that the two were ‘peers.’”); see also United States v. Blackbird, 949 F.3d 530, 532 n.2 (10th Cir. 2020) (“While age is not dispositive, we consider it a relevant factor in determining whether a minor is in defendant’s custody, care, or supervisory
Isaac stipulated that D.J. followed his commands when he “directed [her] to pull down her underwear and display her naked vagina” and “directed the child to perform oral sex on him.” (Emphasis added.) That shows Isaac’s authority over D.J. Cf. Murrell, 368 F.3d at 1290 (undercover agent had “custody, care, or supervisory control” over fictitious minor daughter when he “was in a position to direct or command the actions of the” fictitious daughter) (emphasis added).
For those reasons, and in light of the record and the stipulated facts, we are not left with a “definite and firm conviction that a mistake [was] committed” by the district court in applying the § 2G2.1(b)(5) enhancement. Rothenberg, 610 F.3d at 624 (quotation marks omitted). Instead, we are convinced the court was entirely correct in doing so.
B. The Pattern of Behavior Enhancements
Isaac also contends that the district court erred in applying the §§ 2G2.2(b)(5) and 4B1.5(b)(1) enhancements because the two separate occasions of sexual abuse he stipulated to don’t “establish a pattern.” Under § 2G2.2(b)(5) a defendant convicted of possessing child pornography qualifies for an increase to his offense level if he “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” A pattern is “any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant” regardless of whether the abuse “occurred during the course of the offense,” “involved the same minor,” or “resulted in a conviction for [the] conduct.” Id. § 2G2.2 cmt. n.1 (emphasis added). “Sexual abuse or sexual exploitation” includes the production of child pornography. See id. (incorporating the conduct described in
Under § 4B1.5(b), in any case where (1) the defendant’s conviction is of a “covered sex crime,” (2) he is not a career offender under § 4B1.1, and (3) he did not commit the offense after having sustained at least one “sex offense conviction,” he qualifies for a five-level increase if he “engaged in a pattern of activity involving prohibited sexual conduct.” Id. § 4B1.5(b). It is undisputed that the (1), (2), and (3) conditions are met. The dispute is about whether Isaac “engaged in a pattern” of prohibited sexual conduct. A pattern, again, is “at least two separate occasions.” Id. § 4B1.5 cmt. n.4(B)(i). Isaac stipulated to producing child pornography of the victim on both February 22 and 24. The production of child pornography occurred on two different days and was not continuous. The production on February 22 was separated from the production on February 24 by
C. Substantive Reasonableness
Finally, Isaac contends that regardless of the sentence enhancements, his 80-year sentence was substantively unreasonable. He says that it was unreasonable because the district court paid only lip service to the § 3553(a) factors and ignored his “redeeming qualities,” and because it is “humanly impossible for [him] to complete” his sentence.
The burden is on Isaac to show that his sentence is unreasonable in light of the facts of this case and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We review the reasonableness of the sentence only for an abuse of discretion, and in conducting our deferential review we consider “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007); accord United States v. Irey, 612 F.3d 1160, 1188–90 (11th Cir. 2010) (en banc). Though we don’t “automatically presume a sentence within the guidelines range is reasonable, we ordinarily expect” it to be. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)) (cleaned up).
To begin with, the district court said that the impact of Isaac’s crimes on D.J., the victim, weighed heavily in its decision. As the court put it, D.J. “has already gotten a life sentence.” The court explained to Isaac that victim impact, though certainly not the only factor, is a “big part of what we do here, because we don’t want victims to become vigilantes and take matters into their own hands.” The court certainly did not err in considering the impact of Isaac’s crimes on D.J. As we stated in our Irey decision: “The seriousness of a crime varies directly with the harm it causes or threatens. It follows that the greater the harm the more serious the crime, and the longer the sentence should be for the punishment to fit the crime.” Irey, 612 F.3d at 1206. That is especially relevant in cases involving
The district court was also “taken aback” by Isaac’s apparent lack of remorse and failure to “understand the enormity” of what he had done. The court’s reaction stemmed from how Isaac characterized his own possession of child pornography depicting the sexual torture of toddlers and infants, his own grooming and sexual abuse of a 13-year-old girl, and his own photographing and video recording of that sexual abuse. Isaac characterized it as “just a bad judgment.” As the district court aptly noted, that’s the kind of thing you expect to hear “from someone who’s been caught shoplifting or writing a bad check” and not from someone who’s admitted to “unthinkable heinous behavior.”
The district court also did not err in considering the seriousness of Isaac’s offense, calling it “the un-Holy Trinity.” That un-Holy Trinity was first earning the family’s trust, then sexually abusing the child, then filming it. The court took into account the fact that Isaac’s behavior was calculated and systematic and expert, and that Isaac “saw the goal” and used “all of the tools in [his] toolbox to get from point A to point B,” and that he could not have done “a more textbook version of grooming.” And because Isaac recorded it, the district court noted, there will always be a concern that those images might “pop up later” for others to see, tormenting D.J. all over again. We would add that Isaac should know that concern is a real one. On his phones were between 213 and 243 child porn images, several coming from infamous “series” that have been widely circulated on the internet, and that have caused the victims in them endless pain. Given that, and given the calculated way in which Isaac gave a hope of security to a homeless family only to
Finally, as for Isaac’s complaint that he won’t live to see the end of his 80-year sentence, that fact doesn’t establish that the sentence is unreasonable. We’ve upheld time and again sentences that will outlast a child pornographer’s life. See Kirby, 938 F.3d at 1258–59 (affirming a 120-year sentence for a defendant whose initial guidelines calculation of life, like Isaac’s, was greater than the statutory maximum); United States v. Fox, 926 F.3d 1275, 1276, 1282 (11th Cir. 2019) (affirming a 30-year sentence for a 60-year-old defendant convicted of one count of production of child pornography and rejecting the argument that the district court should have given greater weight to the defendant’s age); Sarras, 575 F.3d at 1208, 1219–21 (affirming a 100-year sentence for a defendant whose initial guidelines calculation of life, like Isaac’s, was greater than the statutory maximum); see also Irey, 612 F.3d at 1220–21 (collecting cases affirming various decades long sentences for offenses involving sexual abuse of children); Sarras, 575 F.3d at 1220–21 (same).