USA v. Bradley Duane Long

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10511
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRADLEY DUANE LONG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:22-cr-10008-KMM-1
____________________
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2 Opinion of the Court 23-10511
Before WILLIAM PRYOR , Chief Judge, and J ORDAN and L AGOA , Cir-
cuit Judges.
PER CURIAM:
Bradley Long appeals his convictions and sentence of 210
months of imprisonment for distributing and possessing child por-
nography. 18 U.S.C. §§ 2252(a)(2), (a)(4)(B). He challenges the de-
nial of his motion to suppress and the substantive reasonableness
of his sentence. We affirm.
On February 1, 2022, Agent Millard Quad with the Florida
Department of Law Enforcement was assigned to investigate a
CyberTip received on January 13, 2022, from the National Center
for Missing and Exploited Children. The tip stated that 16 images
and a video containing child pornography had been uploaded to
the internet through Kik, a messenger application, between De-
cember 11 and 12, 2021. The tip provided the e-mail address and
the internet protocol address through which the uploads were
made. Agent Quad determined that the e-mail address and internet
protocol address were active and belonged to Long. Agent Quad
conducted surveillance of the residence and observed a motorcycle
registered to Long parked in one of the assigned spaces.
On February 28, 2022, Agent Quad applied for a warrant to
search the residence for evidence of child pornography. He ex-
plained that, in his experience, possessors of child pornography of-
ten maintained electronically-stored collections of these materials
for many years. On March 3, 2022, officers executed the search
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23-10511 Opinion of the Court 3
warrant. Long’s roommate identified several electronic devices
that belonged to Long, including an iPad on which agents found
Long’s Kik account and over 1,000 images of child pornography.
After a federal grand jury indicted Long for distributing and
possessing child pornography, id. §§ 2252(a)(2), (a)(4)(B), he moved
to suppress the evidence seized from his residence. He argued that
the information supplying probable cause was stale because it was
based on an isolated occurrence two and a half months earlier and
there was no evidence of ongoing criminal activity.
After holding a hearing on the motion, the magistrate judge
issued a report and recommendation that Long’s motion to sup-
press be denied. The magistrate judge determined that the infor-
mation in the search warrant affidavit was not too stale to support
probable cause because two and a half months was “not unduly
long” and because forensic examiners would be able to recover any
hidden, erased, or encrypted files on Long’s devices. The magis-
trate judge noted that it was “common sense . . . that people who
obtain and/or share photographs online, whether related to child
pornography or not, are likely to retain those photographs for fu-
ture viewing.” And the magistrate judge determined that none of
the factors precluding reliance on the good-faith exception applied.
See United States v. Leon, 468 U.S. 897, 921–23 (1984). Long objected
to the report and recommendation. He argued that warrant was
based on stale information and that the agents did not act in good
faith by relying on the search warrant.
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4 Opinion of the Court 23-10511
The district court denied Long’s motion to suppress and
adopted the report and recommendation. The district court found
no clear error in the magistrate judge’s findings and overruled
Long’s objections as “nothing more than a rehashing of the same
arguments” raised in his motion to suppress, which the magistrate
judge had addressed.
At a bench trial, Long stipulated that the seized iPad be-
longed to him and contained over 1,000 images of child pornogra-
phy. He also stipulated that, in 2020, a Kik user messaged him stat-
ing, “trades” with a winking emoji, to which Long responded with
three images containing child pornography. In response, the Kik
user sent Long three images of child pornography. The district
court found Long guilty of both counts.
Long’s presentence investigation report provided a com-
bined total offense level of 38, a criminal history category of I, and
an advisory guideline range of 235 to 293 months of imprisonment.
In addition to his base offense level of 22, United States Sentencing
Guidelines Manual § 2G2.2(a)(2) (Nov. 2021), the report applied a
two-level increase because the materials involved prepubescent
minors, id. § 2G2.2(b)(2); a five-level increase because he distrib-
uted child pornography for valuable consideration, which was ac-
cess to other child pornography, id. § 2G2.2(b)(3)(B); a four-level
increase because the material was sadistic and portrayed sexual
abuse or exploitation of infants and toddlers, id. § 2G2.2(b)(4)(B); a
two-level increase because the offense involved a computer, id.
§ 2G2.2(b)(6); and a five-level increase because the offense involved
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23-10511 Opinion of the Court 5
more than 600 images of child pornography, id. § 2G2.2(b)(7)(D).
The report applied a two-level reduction for accepting responsibil-
ity because he proceeded to a bench trial to assert and preserve is-
sues not relating to his factual guilt, id. § 3E1.1(a).
Long lodged several objections and requested a downward
variance to a sentence of 60 months of imprisonment due to the
physical, verbal, and sexual abuse he experienced as a child and his
psychological assessment stating he had a relatively low risk of sex-
ually recidivating. He also argued that he was entitled to a
third-level reduction for accepting responsibility, id. § 3E1.1(b).
At sentencing, the district court sustained only Long’s ac-
ceptance-of-responsibility objection, id., which reduced his total of-
fense level to 37 and his advisory guideline range to 210 to 262
months of imprisonment. Regarding the statutory sentencing fac-
tors, 18 U.S.C. § 3553(a), Long argued that his advisory guideline
range was “horrific” for a first offender and military veteran. He
argued that, despite his abusive childhood, he had maintained con-
sistent employment and healthy relationships, and his family was
supportive of him. Long allocuted and apologized for his conduct.
The government responded that Long’s own abuse was no
excuse for harming others by possessing over 1,000 images of child
pornography, many of which depicted infants and toddlers and sa-
distic material, and by distributing child pornography to others.
The government added that, although Long’s daughter denied sex-
ual abuse, he began supplying her with alcohol and drugs starting
at five years old and had bragged about incest in Kik messages.
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6 Opinion of the Court 23-10511
After considering the statutory sentencing factors, id., the
district court found that a downward variance was unwarranted
and sentenced Long to 210 months of imprisonment. The district
court explained that it had considered Long’s history and charac-
teristics, the instant offense conduct, and the need to promote re-
spect for the law and deterrence.
Two standards of review govern this appeal. In reviewing
the denial of a motion to suppress, we review findings of fact for
clear error and the application of law to those facts de novo. United
States v. Barsoum, 763 F.3d 1321, 1328 (11th Cir. 2014). We review
the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). We will disturb “the sentence
if, but only if, we are left with the definite and firm conviction that
the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)
(internal quotation marks omitted).
Long argues that the district court erred in denying his mo-
tion to suppress because any probable cause supporting the war-
rant had dissipated in the two and a half months between the up-
load and the issuance of the warrant. The “staleness doctrine . . . re-
quires that the information supporting the government’s applica-
tion for a warrant must show that probable cause exists at the time
the warrant issues.” United States v. Bervaldi, 226 F.3d 1256, 1264
(11th Cir. 2000). To determine whether the supporting information
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23-10511 Opinion of the Court 7
is stale, we do not apply arbitrary time limits. United States v. Harris,
20 F.3d 445, 450 (11th Cir. 1994). Instead, we consider the particular
facts of the case, the nature of the suspected crime, the character of
the items sought, the habits of the accused, and the nature and
function of the area to be searched. Id.
The district court correctly ruled that the information sup-
porting probable cause was not stale. We have rejected staleness
challenges in similar appeals because “pedophiles rarely, if ever,
dispose of child pornography.” United States v. Touset, 890 F.3d
1227, 1238 (11th Cir. 2018) (quoting United States v. Zimmerman, 277
F.3d 426, 434 (3d Cir. 2002)). Indeed, “probable cause of involve-
ment in electronic child pornography remains even longer because
deleted files can remain on electronic devices.” Id. (rejecting a stale-
ness argument where the defendant’s electronic devices were
searched over a year and a half after he made suspicious online pay-
ments suggesting his involvement in child pornography). And, in
any event, Long raises no argument about the good-faith excep-
tion, which provides an independent basis for affirming. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014).
The district court also did not abuse its discretion in sentenc-
ing Long to a term of imprisonment at the low end of the advisory
guidelines range. Long argues that his sentence is greater than nec-
essary. But the district court weighed the statutory sentencing fac-
tors, 18 U.S.C. § 3553(a), and determined that, despite Long’s abu-
sive childhood and lack of criminal history, a lower sentence would
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8 Opinion of the Court 23-10511
not provide sufficient punishment and deterrence or adequately re-
flect the serious nature of his offense conduct. The “decision about
how much weight to assign a particular sentencing factor is com-
mitted to the sound discretion of the district court.” United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015) (quotation
marks omitted). Long’s sentence is reasonable.
We AFFIRM Long’s convictions and sentence.
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