USA v. Aby Raul Rivera Torres

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12996
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABY RAUL RIVERA TORRES,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00397-MSS-JSS-1
____________________
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2 Opinion of the Court 22-12996
Before J ORDAN, G RANT, and L AGOA , Circuit Judges.
PER CURIAM:
Aby Torres appeals his convictions and 110-year sentence
for production, distribution, and possession of child pornography.
Below, he moved to suppress evidence gathered from his cell
phone, arguing that law enforcement had tasked his girlfriend’s
child to search his boat for the phone without a warrant, in
violation of the Fourth Amendment. The district court did not
abuse its discretion by declining to hold an evidentiary hearing
when the facts alleged by Torres’s motion did not entitle him to
relief, and it did not clearly err by finding that the child was not
acting as an agent of the government when searching his boat.
Separately, Torres argues that the district court erred by
imposing two sentence enhancements: for engaging in a pattern of
activity involving the sexual abuse or exploitation of a minor under
U.S. Sentencing Guidelines § 2G2.2(b)(5), and for engaging in a
pattern of activity involving prohibited sexual conduct under
§ 4B1.5(b)(1). Neither enhancement constitutes reversible error.
Accordingly, we affirm both Torres’s convictions and his sentence.
I.
Torres, his girlfriend, and his girlfriend’s two minor children
shared a house together in Spring Hill, Florida. Law enforcement
officials had learned from another criminal investigation that
Torres was sharing child pornography through Kik, an instant-
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22-12996 Opinion of the Court 3
message application. Based on this information, they obtained
warrants to search Torres, his cell phone, and the shared residence.
Torres’s motion to suppress evidence obtained from his cell
phone alleges that on November 13, 2021, officers conducting
surveillance observed him in a boat parked on the driveway outside
his house. Three minor children, all under the age of thirteen, were
standing in the yard. One was Torres’s girlfriend’s eight-year-old
daughter. The officers arrested Torres, then asked the children if
any of them had seen Torres with his cell phone. The children led
the officers into the house, saying they had seen Torres use his
phone near the living room couches and recliners.
A search of the living room did not turn anything up, but
Torres’s girlfriend’s daughter then stated that “she knew where to
look” next. She exited the house, entered the boat parked on the
driveway, found the cell phone, and handed it over to the officers.
Investigators found over 600 images of child sexual abuse material
on the phone, including multiple images of the child who
discovered the phone—being sexually abused by a man. When
questioned by the police, Torres admitted that he had produced
these images.
Before trial, Torres moved to suppress the cell phone and its
contents, arguing that the child had acted as an agent of the
government when searching his boat and that the cell phone was
thus seized in an unconstitutional, warrantless search. He also
asked for an evidentiary hearing. The district court denied the
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4 Opinion of the Court 22-12996
motion to suppress without a hearing, finding that the child had
not acted as the officers’ agent.
During a bench trial, Torres renewed his objections to the
introduction of the cell phone evidence, which the court again
denied. The court then found Torres guilty on five counts of
producing, distributing, and possessing child pornography in
violation of 18 U.S.C. §§ 2251(a), (e) and 2252(a), (b).
At his sentencing hearing, Torres objected to two
sentencing enhancements recommended by his presentence
investigation report (PSI). First, the PSI recommended an
enhancement for engaging in a pattern of activity involving the
sexual abuse or exploitation of a minor under U.S.S.G.
§ 2G2.2(b)(5) because, earlier in 2020, Torres had committed an
aggravated sexual assault of a child in Galveston, Texas. Second,
the PSI recommended a separate enhancement under U.S.S.G.
§ 4B1.5(b)(1) for being a repeat sex offender against minors, both
because of the Texas sexual assault and because Torres had
distributed images depicting sexual abuse of his Florida victim on
at least three separate occasions. Torres objected to the factual
bases for both enhancements as unsupported by the
preponderance of the evidence.
After taking testimony from the mother of the victim
involved in Torres’s 2020 sexual assault, the court overruled
Torres’s objection to both enhancements. The court sentenced
Torres to the statutory maximum for each count to be served
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22-12996 Opinion of the Court 5
consecutively, for a total imprisonment term of 110 years. Torres
appeals.
II.
On appeal, Torres argues that the district court erred when
it found that his motion to suppress had not raised a genuine factual
dispute as to whether the child who found the phone in the boat
was acting as the government’s agent when she did so. He claims
that he is entitled to both an evidentiary hearing on the issue, as
well as to outright reversal of the denial of his suppression motion.
We disagree on both counts.
A district court “may refuse a defendant’s request for a
suppression hearing and motion to suppress if the defendant fails
to allege facts that, if proved, would require the grant of relief.”
United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985). We
review a district court’s refusal to hold an evidentiary hearing for
abuse of discretion. United States v. Hill, 643 F.3d 807, 874 (11th Cir.
2011).
When reviewing a denial of a motion to suppress, we review
the court’s factual determinations for clear error and questions of
law de novo, construing the facts in the light most favorable to the
prevailing party below. United States v. Thomas, 818 F.3d 1230, 1239
(11th Cir. 2016). Clear error review is deferential, and we will not
invalidate a district court’s findings unless we are left with a
“definite and firm conviction” that it made a mistake. Id.
(quotation omitted).
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The Fourth Amendment applies only to governmental
action; a “search by a private person does not implicate the Fourth
Amendment unless he acts as an instrument or agent of the
government.” United States v. Steiger, 318 F.3d 1039, 1045 (11th Cir.
2003). In this Circuit, for a private person to be considered an agent
of the government for Fourth Amendment purposes, we look to
two factors: “(1) whether the government knew of and acquiesced
in the intrusive conduct, and (2) whether the private actor’s
purpose was to assist law enforcement efforts rather than to further
his own ends.” Id.1 This is a factual inquiry, subject to review only
for clear error on appeal. See United States v. Ford, 765 F.2d 1088,
1090 (11th Cir. 1985).
The district court did not clearly err by finding that, under
the facts as alleged by Torres, the officers neither knew of nor
acquiesced to the child’s search of Torres’s boat. Torres’s motion
to suppress alleges that while the three children and the officers
were inside the house, one child “verbally stated to law
enforcement officers she knew where to look for the Target
1 The government argues that in order to meet the first prong of knowledge
and acquiescence, the government agent must “affirmatively encourage,
initiate or instigate” the private person’s search. In support of this
requirement, the government’s brief cites only an unpublished case from this
Circuit and a published case from the Tenth Circuit. See United States v. Emile,
618 F. App’x 953, 955 (11th Cir. 2015) (unpublished); United States v. Smythe, 84
F.3d 1240, 1243 (10th Cir. 1996). Neither is binding on this Court. Because we
find that Torres has not met even the comparatively less demanding standard
of knowledge and acquiescence, we need not address whether the
government’s stricter standard applies.
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22-12996 Opinion of the Court 7
Cellphone next, left the Target Residence, entered the boat that
was parked in the driveway outside of the Target Residence, and
located and seized the Target Cellphone inside the boat near the
helm.” He does not allege either that the officers asked the child
to search the boat or that the officers knew the child intended to
search the boat when she left the house.
Under Torres’s recounting, all the officers knew was that the
child voluntarily left the house, not that she intended to search the
boat. With no suggestion “that the Government had any pre-
knowledge of the search nor that the agents openly encouraged or
cooperated in the search,” Torres cannot meet the knowledge and
acquiescence prong of the inquiry. Ford, 765 F.2d at 1090. The
district court therefore did not clearly err by denying the motion to
suppress.2 And because Torres’s allegations, even if true, would
2 We pause to note that our predecessor Circuit has held that a search warrant
identifying a property is “sufficient to embrace the vehicle parked in the
driveway on those premises.” United States v. Napoli, 530 F.2d 1198, 1200 (5th
Cir. 1976); see also Brooks v. United States, 416 F.2d 1044, 1050 (5th Cir. 1969) (a
search warrant for a “lot and the cabin” authorizes search of an automobile
“parked in the lot and very close to the cabin”); Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc) (decisions by the former Fifth Circuit
handed down before October 1, 1981 are binding on this Court). In this case,
officers had a warrant to search Torres’s property, identified by both its street
address and its physical characteristics, including a “two-car driveway.” The
warrant even includes a picture of the house clearly depicting Torres’s boat
parked in the driveway, immediately next to the residence. Therefore, even
if the child’s search could be attributed to the government, the officers’
warrant to search the property appears to have authorized a search of Torres’s
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8 Opinion of the Court 22-12996
not have warranted suppression, the court also did not abuse its
discretion by declining to hold an evidentiary hearing. See
Richardson, 764 F.2d at 1527. Finally, Torres is not entitled to a
judgment of acquittal because he stipulated during the bench trial
that, provided the evidence from the cell phone was properly
admitted, there was sufficient evidence to convict him at all counts.
III.
Torres next argues that the district court erred by applying
sentencing enhancements for a pattern of sexual misconduct
against minors under U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5(b)(1). The
government bears the burden of proving the facts underlying a
Guidelines enhancement by a preponderance of the evidence.
United States v. Alberts, 859 F.3d 979, 982 (11th Cir. 2017). We
review the district court’s factual findings underlying an
enhancement for clear error. Id.
Both parties agree that even if Torres’s enhancement under
U.S.S.G. § 2G2.2(b)(5) were eliminated, his total offense level
would be unchanged. Any error with respect to its application was
therefore harmless at worst, rendering remand and resentencing
unnecessary. See United States v. Sanchez, 30 F.4th 1063, 1076–77
(11th Cir. 2022).
The U.S.S.G. § 4B1.5(b)(1) sentencing enhancement applies
if the defendant engaged in a “pattern of activity involving
boat as well. Because no party raised this issue, however, we do not decide it
here.
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prohibited sexual conduct.” A defendant engaged in a “pattern”
under § 4B1.5(b)(1) if he engaged in prohibited conduct “on at least
two separate occasions.” Id. cmt. n.4(B)(i). Multiple offenses
against the same victim may count for the enhancement. United
States v. Fox, 926 F.3d 1275, 1279–80 (11th Cir. 2019).
Below, Torres stipulated that on two separate days in July
2021, he distributed images through his Kik messenger account
depicting an adult man sexually abusing his Florida victim. These
images depicted the same child, but wearing different clothing.
Torres also stipulated that in August 2021, he had used the “live”
function on his Kik messenger account to distribute an image of an
adult man raping his Florida victim.
The district court did not err by finding that these stipulated
facts amounted to a showing that Torres had engaged in multiple
instances of prohibited sexual conduct on different occasions. That
the images lacked metadata definitively confirming their date of
creation is immaterial—the fact that the images were distributed
on different dates, that the child was wearing different clothing in
the images, and that the August image was distributed via Kik’s
“live” feature (suggesting it could not have been produced earlier
at the time of the July images) all more than adequately support
the inference that Torres sexually abused his victim on multiple,
separate days. The enhancement was proper.
* * *
AFFIRMED.
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