United States v. Michael Adam Carmody

USCA11 Case: 22-12539 Document: 33-1 Date Filed: 10/25/2023 Page: 1 of 10

[DO NOT PUBLISH]

In the United States Court of Appeals For the Eleventh Circuit

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No. 22-12539 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL ADAM CARMODY,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:21-cr-14018-AMC-1 ____________________

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22-12539 Opinion of the Court 5

precedent rule applies regardless of whether the later panel be- lieves the prior panel’s opinion to be correct, and there is no excep- tion to the rule where the prior panel failed to consider arguments raised before a later panel.” United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019). The record demonstrates that the district court did not err in denying the motion to suppress evidence. Individuals do not have a reasonable expectation of privacy in IP addresses. Trader, 981 F.3d at 967-68. Carmody’s argument is foreclosed by our prior precedent, so the evidence obtained from his IP address is admissi- ble. Gillis, 938 F.3d at 1198; Vega-Castillo, 540 F.3d at 1236. Thus, we affirm Carmody’s convictions. II. When reviewing a sentence for procedural reasonableness, we consider legal issues de novo and view factual findings for clear error. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). A district court’s interpretation and application of the Guidelines is reviewed de novo. United States v. Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). We must ensure that the district court did not make a significant procedural error, such as failing to calculate or improp- erly calculating the Guidelines range. United States v. Grushko, 50 F.4th 1, 17 (11th Cir. 2022), cert. denied, ___ U.S. ___, 143 S. Ct. 2594 (June 5, 2023), ___ U.S. ___, 143 S. Ct. 2680 (June 26, 2023). Unless the text of the Guidelines is ambiguous, we do not defer to the Guidelines Commentary. United States v. Dupree, 57 F.4th 1269, 1276-77 (11th Cir. 2023) (en banc).

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10 Opinion of the Court 22-12539

nature and circumstances of the offense, and the seriousness of the offense more heavily, we affirm Carmody’s sentence. Rosales- Bruno, 789 F.3d at 1254. Accordingly, based on the aforementioned reasons, we af- firm Carmody’s convictions and his 300-month sentence. AFFIRMED.

Footnotes

[2] Opinion of the Court 22-12539 ____________________ No. 22-13542 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL ADAM CARMODY, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:21-cr-14018-AMC-1 ____________________ Before JILL PRYOR, ABUDU and DUBINA, Circuit Judges. PER CURIAM: Appellant Michael Adam Carmody appeals his convictions for distributing, receiving, and possessing child pornography and 22-12539 Opinion of the Court 3 his subsequent sentence. 1 Carmody argues that the district court erred in denying his motion to suppress all evidence seized from the warrantless search of his internet protocol (“IP”) address. Car- mody also appeals the district court’s imposition of a 300-month sentence, which was an upward variance from the guideline term of 210 to 262 months. Carmody asserts that his sentence is proce- durally unreasonable because the district court relied on Sentenc- ing Guidelines Commentary even though the text of the Guideline was unambiguous. He also argues that his sentence is substan- tively unreasonable because the district court failed to properly bal- ance the 18 U.S.C. § 3553(a) factors, giving too much weight to de- terrence and the seriousness of his offense and not enough weight to mitigating factors. Having read the parties’ briefs and reviewed the record, we affirm Carmody’s convictions and sentence. I. 1 Carmody timely filed a notice of appeal after the district court entered its initial judgment on July 15, 2022, which resulted in the docketing of case num- ber 22-12539-HH. Carmody filed another timely notice of appeal on October 11, 2022, after the court entered an amended judgment establishing the amount of restitution to the victims in this case. That appeal resulted in the docketing of case number 22-13542-HH. Carmody filed an unopposed motion to consolidate the appeals and the briefing schedule, and the clerk granted the motion. On appeal, Carmody does not challenge the amount of restitution ordered by the district court, so any argument regarding that judgment is deemed abandoned. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022) (issues not raised on appeal are deemed abandoned), cert. denied, ___ U.S. ___, 143 S. Ct. 95 (2022).

[4] Opinion of the Court 22-12539 We review a district court’s denial of a motion to suppress evidence under a mixed standard, reviewing the court’s fact-finding for clear error and its application of the law to those facts de novo. United States v. Trader, 981 F.3d 961, 966 (11th Cir. 2020). We con- strue all facts in the light most favorable to the prevailing party be- low. Id. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. To suppress evi- dence based on Fourth Amendment violations, “a claimant has the burden of proving (1) that the search was unlawful and (2) that the claimant had a legitimate expectation of privacy.” United States v. McKennon, 814 F.2d 1539, 1542 (11th Cir. 1987). “Ordinarily, a per- son lacks a reasonable expectation of privacy in information he has voluntarily disclosed to a third party.” Trader, 981 F.3d at 967 (re- ferring to the third-party doctrine). In Trader, we held that the Car- penter exception 2 to the third-party doctrine does not extend to IP addresses. Trader, 981 F.3d at 967-68. Under the prior panel precedent rule, we are bound to fol- low our own prior binding precedent until it is overruled by the Supreme Court or this Court sitting en banc. United States v. Vega- Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). “The prior panel 2 In Carpenter v. United States, 585 U.S. ___, 138 S. Ct. 2206 (2018), the Supreme Court held that the “unique nature of cell phone location records” subjected them to Fourth Amendment protection; however, the Court noted that its decision was “a narrow one” and did not impact “business records that might incidentally reveal location information.” Id. at ___, 138 S. Ct. at 2220.

[6] Opinion of the Court 22-12539 Carmody argues that the district court erroneously relied on the commentary to U.S.S.G. § 2G2.2 to calculate the number of images for which he was responsible and thus imposed a procedur- ally unreasonable sentence. The image table provides for a 5-level increase if a defendant possesses “600 or more images” of child por- nography. See U.S.S.G. § 2G2.2(b)(7)(D). The commentary con- tains additional guidance regarding how to calculate the number of images in a video: “Each video, video-clip, movie, or similar visual depiction shall be considered to have 75 images. If the length of the visual depiction is substantially more than 5 minutes, an up- ward departure may be warranted.” Id. at cmt (n.6.(B)(ii)). Car- mody contends that he should be held accountable for 414 images because the text of the guideline unambiguously requires that each video count only as one “image.” The government responds that the district court properly calculated the number of images based on Carmody’s possession of 226 still photographs of child pornog- raphy and 188 videos of child pornography. It posits that the stat- utory definitions upon which Carmody relies only articulate the types of files that can constitute child pornography; they have noth- ing to do with quantity and thus cannot bear upon the calculation. Because the word “image” is ambiguous, the government claims that the district court properly relied on the commentary to calcu- late the number of images for which Carmody was responsible. The record shows that the district court’s sentence is proce- durally reasonable because U.S.S.G. § 2G2.2 is ambiguous, and the district court could defer to the commentary. Dupree, 57 F.4th at 1276-77. The text of § 2G2.2 does not distinguish between a still 22-12539 Opinion of the Court 7 image and a video comprised of a series of images, so the term “im- ages” is ambiguous for the purposes of calculating the total number of images possessed by an offender who possesses videos. Further, because the statues that Congress relies on to define “images” lists various image formats but fail to indicate how each format should be tallied, it was necessary for the Sentencing Commission to de- velop a method to calculate the number of images contained in a video. In addition, the government’s expert testified that, when calculating videos based on the typical standard of frame rate, a video lasting 5 minutes and 43 seconds contained 8,575 images, the Sentencing Commission’s interpretation that each video contains

[75] images represents a “fair and considered judgment” that does not unjustly penalize offenders. See Kisor v. Wilkie, 588 U.S. ___,

[139] S. Ct. 2400, 2416-18 (2019) (clarifying when courts should defer to agency interpretations of ambiguous regulations). Moreover, if the 75:1 ratio established by the Sentencing Commission is not entitled to deference, the district court’s sen- tence remains procedurally reasonable. The district court heard testimony and made an express finding that the “record amply sup- ports the application of the enhancement in this case, given the nu- merous quantity of videos, some of which are quite lengthy and would very easily exceed the. . . 600 image threshold.” The district court concluded that Congress mandated that the Guidelines pro- vide for incremental enhancements depending on the number of images of child pornography. Because Carmody possessed 188 vid- eos, there is no question that he possessed over 600 images of child 8 Opinion of the Court 22-12539 pornography, even counting each of the videos as only two images each. Accordingly, we affirm as to this issue. III. When reviewing for substantive reasonableness, we con- sider the totality of the circumstances under a deferential abuse-of- discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). The party challenging a sentence bears the burden of proving that the sentence is unreasonable considering the rec- ord, the factors listed in 18 U.S.C. § 3553(a), and the substantial def- erence afforded sentencing courts. United States v. Rosales-Bruno,

[789] F.3d 1249, 1256 (11th Cir. 2015). The weight given to any specific § 3553(a) factor is commit- ted to the sound discretion of the district court, and we will not substitute our judgment in weighing the relevant factors. Rosales-Bruno, 789 F.3d at 1254. The district court abuses its discre- tion when it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an im- proper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). Carmody argues that the district court’s imposition of a 300- month sentence is substantively unreasonable because the district court did not consider the mitigating factors of his difficult upbring- ing when it weighed the § 3553(a) factors. Carmody also asserts that the district court erred because it failed to impose a propor- tional sentence when compared to other similarly situated 22-12539 Opinion of the Court 9 offenders. The government responds that the district court was well within its discretion in concluding that an upward variance was warranted after considering the totality of the circumstances and the depravity of Carmody’s conduct. The record supports the district court’s upward variance from the Sentencing Guidelines; thus, the sentence is substantively reasonable. The district court adopted the Guidelines range but found that Carmody’s “depraved actions” warranted an upward variance from the advisory guideline range. The district court re- lied on the “substantial quantities of sadistic images” featuring “ba- bies and toddlers who were heard screaming on the videos being raped and horrifically victimized” to impose the upward variance. The district court gave great weight to the factors of deterrence and protecting the public, finding that Carmody’s “dangerous de- sire to harm children” created “a very strong and palpable need” to impose a substantial sentence. The district court considered the § 3553(a) factors before concluding that the “extreme seriousness” of Carmody’s “truly unspeakable” offenses outweighed the miti- gating factors of his troubled upbringing and current familial sup- port. Although Carmody’s sentence is an upward variance above the recommended guideline range, the sentence does not create a definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors. Irey, 612 F.3d at 1189. Because Carmody fails to show that the district court abused its discretion in weighing the factors of deterrence, the