United States of America v. Travis Kyle Mayer

United States Court of Appeals
For the Eighth Circuit
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No. 22-1259
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United States of America
Plaintiff - Appellee
v.
Travis Kyle Mayer
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 14, 2022
Filed: March 23, 2023
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Travis Mayer was convicted of several child pornography-related offenses.
He appeals the district court’s1 denial of his pretrial suppression motion, the
application of a sentencing enhancement, and the grouping of his counts at
sentencing. We affirm.
1 The Honorable Wilhelmina Wright, United States District Judge for the
District of Minnesota.

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I.
In 2017, police got a tip that Mayer violated his parole, prompting them to
search his residence, a motel room. Police seized Mayer’s cell phone and other
items, including children’s underwear, a diaper, and a notebook. Mayer was arrested
and sent back to prison for violating parole. At the time, police couldn’t access
Mayer’s phone, so they stored it.
In 2018, Mayer was released and got another phone. Mayer soon began an
online relationship with a minor girl. Things between Mayer and the minor became
hostile, and Mayer threatened to leak an explicit photo of her online. Police found
out about Mayer’s behavior, leading to his arrest. Police seized Mayer’s new phone,
but again couldn’t access it.
A grand jury indicted Mayer for distributing child pornography, transferring
obscene material to a minor, and committing a felony offense involving a minor
while he was required to register as a sex offender. Mayer moved to suppress
evidence derived from the Government’s searches. The Government responded that
Mayer’s motion was moot or unripe, explaining that it had not yet collected any
evidence from Mayer’s phones and did not, at the time, plan to use the items
recovered from the 2017 motel room search. The Government warned, though, that
suppression could become ripe if its case against Mayer changed. The district court
denied Mayer’s motion as moot.
Police got into Mayer’s phones a few months later. A couple of months after
that, the Government filed a superseding indictment, adding counts related to the
content of the phones. Mayer then moved to suppress evidence from the phones,
which the district court denied. On the day trial was set to begin, Mayer moved to
exclude the motel room evidence, citing the Government’s representation that it
didn’t intend to use the items. The district court denied Mayer’s motion, finding it
untimely and without good cause.

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A jury convicted Mayer on all counts except for one dismissed before trial.
At sentencing, Mayer objected to an enhancement for the number of child
pornography images connected to his offense. Mayer also objected that his counts
were improperly grouped, affecting the Guidelines calculation. The district court
overruled Mayer’s objections and sentenced him to life in prison. Mayer appeals.
II.
We first turn to the district court’s denial of leave to make an untimely pretrial
motion, which we review for an abuse of discretion. United States v. Blanks, 985
F.3d 1070, 1072 (8th Cir. 2021).
Under Federal Rule of Criminal Procedure 12(b)(3), evidentiary suppression
“must be raised by pretrial motion if the basis for the motion is then reasonably
available and the motion can be determined without a trial on the merits.” Even if a
suppression motion is untimely, “a court may consider the defense, objection, or
request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). “To show good
cause, a party must show both cause and prejudice.” United States v. Fogg, 922 F.3d
389, 391 (8th Cir. 2019).
Mayer argues that the district court erred when it denied his motion to exclude
the motel room evidence. He says that the Government promised it wouldn’t use
the evidence and the court did not hold the Government to its word. Mayer further
argues that he was prejudiced and points to several instances where the items were
talked about before the jury.
As an initial matter, Mayer’s motion was untimely. In its opposition to
Mayer’s original suppression motion, the Government expressed that “the issue of
suppression [wa]s moot, or at a minimum w[ould] only be ripe for adjudication later,
should the United States’ case against Mayer change.” As the district court
suggested, the Government’s case against Mayer changed when it filed its first
superseding indictment that charged Mayer with crimes dating back to 2017. At that

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point, the basis for Mayer’s suppression motion was “then reasonably available
and . . . c[ould have] be[en] determined without a trial on the merits.” Fed. R. Crim.
P. 12(c)(3). Instead, Mayer waited until the day trial was set to begin, long after the
superseding indictment was filed, to make his motion.
While good cause may cure an untimely motion, Mayer has not made this
showing. According to the Government, it gave Mayer an exhibit list that identified
the motel room items six months before trial. And about three weeks before trial,
the Government filed its trial brief, also previewing the motel room findings. Mayer
had ample time and notice to renew his suppression motion but did not do so until
the first day of trial, meaning he hasn’t shown cause. Cf. Fogg, 922 F.3d at 391
(finding no cause where “the alleged defects appeared on the face of the superseding
indictment and in the grand jury materials provided before trial”).
Even if Mayer showed cause, he wasn’t prejudiced, which is required for good
cause. See id. The Government offered significant evidence at trial that supported
Mayer’s conviction, including his incriminating admissions that he received and
produced child pornography and explicit content recovered from his and the minor
victim’s phones. While the motel room evidence was incriminating in the sense that
it worked against Mayer, “[t]he desire to suppress” such evidence is “not by [itself]
sufficient to establish good cause to justify relief from a waiver of a defense,
objection, or request under Rule 12.” United States v. Trancheff, 633 F.3d 696, 698
(8th Cir. 2011).
All things considered, the district court did not abuse its discretion when it
denied Mayer leave to make an untimely pretrial motion.2
2 Mayer stylizes his pretrial ask as a motion to exclude evidence, rather than a
suppression motion. We disagree with this characterization. In any event, this
characterization doesn’t help Mayer because we’d review the motion to exclude for
an abuse of discretion, and we found none for reasons stated above. United States
v. Bowie, 618 F.3d 802, 814 (8th Cir. 2010). Still, Mayer asks us to review this issue
de novo because it involves an alleged breach of a Government promise. See

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III.
We next address the sentencing enhancement for the quantity of child
pornography images involved in Mayer’s offense. We review a district court’s
interpretation and application of the Guidelines de novo, United States v. Kiel, 454
F.3d 819, 822 (8th Cir. 2006), and “the factual determinations underlying the district
court’s decision for clear error,” United States v. Sanders, 4 F.4th 672, 676 (8th Cir.
2021), cert. denied, 142 S. Ct. 1161 (2022).
A defendant may receive a sentencing enhancement if a court finds by a
preponderance of the evidence that a “child pornography offense involve[d] 600 or
more images.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009) (cleaned
up); U.S.S.G. § 2G2.2(b)(7)(D). Under the Guidelines, images are “any visual
depiction[s] . . . that constitute[] child pornography.” U.S.S.G. § 2G2.2 cmt. n.6(A).
In making this determination, a court may “take account of factual matters not
determined by a jury,” Rita v. United States, 551 U.S. 338, 339 (2007), and “rely on
circumstantial evidence that demonstrates knowing possession of a certain number
of images.” United States v. Nissen, 666 F.3d 486, 491 (8th Cir. 2012).
Mayer argues that the district court clearly erred because the evidence did not
show that his offense involved 600 or more images. But, an FBI examiner testified
at trial that she found “several hundred” explicit images in a “kiddy porn heaven”
folder on one of Mayer’s cell phones, specifying a “five” to “six hundred” range.
While the examiner explained that the “majority” of the images were in the “kiddy
porn heaven” folder, she located other folders with similarly suggestive names, like
“new kiddy porn” and “kid smut.” Other evidence also showed that the image count
generally United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005)
(“Allowing the government to breach a promise that induced a guilty plea violates
due process.”). Mayer cites no on-point authority for de novo review, and we
disagree regardless. But even if this was a Government promises issue, and we
reviewed the Government’s representation de novo, the Government broke no
promise for reasons explained above.

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exceeded 600, including numerous images recovered from Mayer’s 2018 cell phone,
Mayer’s browsing history, and explicit videos of the minor victim sent to Mayer that
were recovered from the minor’s phone. See U.S.S.G. § 2G2.2 cmt. n.6(B)(ii)
(“Each video, video-clip, movie, or similar visual depiction shall be considered to
have 75 images.”). Based on this, the district court did not clearly err in finding that
Mayer’s offense involved 600 or more images.
IV.
We finally turn to the grouping of Mayer’s offenses. Generally, “[a] non-
harmless error in calculating the guidelines range requires a remand for
resentencing.” United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008) (citation
omitted). Under U.S.S.G. § 3D1.2, “counts involving substantially the same harm
should be grouped together for purposes of determining the offense level for the
crimes.” United States v. Green, 225 F.3d 955, 958 (8th Cir. 2000) (cleaned up).
The district court sentenced Mayer to life in prison because his combined
offense level exceeded 43. In calculating his sentence, Mayer says that the district
court erred when it declined to group three counts together because those counts
involved substantially the same harm. But even if we grouped Mayer’s offenses the
way he suggests, he would still receive a life sentence because his combined offense
level would exceed 43, so any error was harmless.
V.
The judgment of the district court is affirmed.
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