United States v. King

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-1861

UNITED STATES OF AMERICA,

v.

RICHARD D. KING, JR.,
Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 04-cr-00071)
District Judge: Honorable John E. Jones, III

Argued October 27, 2009
Before: SLOVITER, FUENTES and HARDIMAN, Circuit
Judges.

(Filed: April 30, 2010)

Frederick E. Martin (Argued)
Office of United States Attorney
240 West Third Street
Suite 316
Williamsport, PA 17701-0000
Attorneys for Appellee

Ronald C. Travis (Argued)
Rieders, Travis, Humphrey, Harris,
Waters & Waffenschmidt
161 West Third Street
P.O. Box 215
Williamsport, PA 17701-0000
Attorneys for Appellant

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Richard King appeals his judgment of sentence following
a conditional guilty plea to violating 18 U.S.C. § 2241(c)
(Interstate Transportation to Engage in Sex with a Minor). The
principal question of precedential import is whether the rule of
law established in Georgia v. Randolph, 547 U.S. 103, 122-23
(2006), viz., that a present and objecting resident can override
another resident’s consent to search a home, applies to the
seizure of a computer. We hold that it does not.

I.

2
 In August 2003, King was using the screen name
“ayoungbeaverluvr” when he met Angela Larkin on a website
called “CherryPoppinDaddys.” In their initial conversation,
King acknowledged that performing oral sex on his own
daughter caused his divorce. He also offered to drive over 200
miles from his home in Mohnton, Pennsylvania, to Larkin’s
home in Emporium, Pennsylvania, so he could perform oral sex
on Larkin’s two-year-old daughter, whom she called “Peanut.” 1

During the next two months, King and Larkin chatted
online about their mutual interest in watching minors engage in
sex acts with adults and shared child pornography. After Larkin
said she liked one depiction of a young child engaged in a sex
act with an adult, King responded he would “most definitely” do
the same to Peanut. In September 2003, King chatted with
others about his sexual interest in Peanut. That same month,
Larkin also sent nude pictures of Peanut to King and others.

In addition to his involvement with Larkin and her
daughter, King maintained several online relationships with
underage girls to whom he sent child pornography. As part of
his self-professed desire to “sexually initiate” them, King taught
them to masturbate and sent them pictures of his genitals.

Larkin briefly lost contact with King in October 2003
when she left her husband and moved with Peanut and her
computer to Buffalo, New York. In mid-November 2003,

1
We refer to Larkin’s daughter as “Peanut” to protect her
privacy.

3
however, Larkin contacted King through a series of e-mails and
phone calls, asking to move in with him because she was
unhappy in Buffalo. King responded by e-mail: “you know
what my fantasy is.” Soon thereafter, Larkin e-mailed King to
ask if Peanut would sexually satisfy him. Following these
internet exchanges, on Thanksgiving Day 2003, King drove to
Buffalo, where he picked up Larkin and Peanut and brought
them to his home in Mohnton, Pennsylvania.

Within a week after Larkin moved in with him, King
began performing oral sex on Peanut. Though they lived under
the same roof, King and Larkin continued corresponding via e-
mails that show King’s sexual contact with Peanut was frequent
enough to make Larkin jealous. King also helped Larkin use a
PayPal account to obtain payment for distributing pornographic
images of Peanut over the internet.

Larkin’s conduct was discovered by law enforcement
agents in mid-February 2004 after pornographic images of
Peanut were found on a computer in Texas. The Texas
authorities promptly notified the Pennsylvania State Police, who
in turn notified Special Agent James Kyle of the Federal Bureau
of Investigation, of a potential child pornography victim in
Emporium, Pennsylvania. On February 19, 2004, Agent Kyle
obtained and executed a warrant to search Larkin’s former
residence in Emporium.

Upon his arrival at Larkin’s former residence, Agent
Kyle determined that the furniture and distinctive walls matched
those depicted in the child pornography images found in Texas.
While executing the warrant, Kyle met Larkin’s ex-husband,

4
Robert McCullen, who stated that Larkin had moved to Buffalo
in the fall with Peanut and her computer. After Kyle explained
the nature of his investigation, McCullen identified the girl in
the pictures as his daughter. Because McCullen was unaware of
Larkin’s whereabouts after she left Buffalo, he sent Larkin an
instant message asking her for a phone number where she and
Peanut could be reached. Larkin responded a few hours later
with a phone number. Officers initially traced the number to a
post office box in Mohnton, but further investigation revealed
that it was connected to King’s residence at 93 Pennypacker
Road in Mohnton.

Although Larkin had no warrants in the National Crime
Information Center database, Agent Kyle called the State Police
in Reading, Pennsylvania, apprised them of the situation, and
asked them to check for local warrants. This search located an
outstanding 2002 bench warrant for Larkin’s arrest issued by the
Court of Common Pleas of Potter County. After receiving
confirmation that the arrest warrant was still active—and after
independently verifying the connection between the phone
number and 93 Pennypacker Road—State Police Troopers Coyle
and Rodriguez proceeded to King’s residence to execute the
arrest warrant.

When King answered the door, Troopers Coyle and
Rodriguez advised him of the warrant for Larkin’s arrest and
asked to see her. King led them upstairs to the hallway right
outside the kitchen where they handcuffed Larkin; for officer
safety they asked the other residents—King, his mother and his
step-father—to stay put. At some point, Peanut joined them in

5
the hall. From where they stood, the officers could not see into
the bedrooms down the hall.

While at King’s residence, Trooper Coyle received a
phone call from an officer who suggested that Coyle ask Larkin
for permission to take her computer. After Larkin consented to
the seizure, King walked the troopers to a bedroom down the
hall and disconnected the computer. Before the troopers could
seize it, however, King claimed ownership of the hard drive and
objected to its seizure. King then requested permission to
remove the hard drive, but the troopers denied his request and
seized the computer, including the hard drive. The troopers
departed King’s residence with Larkin, Peanut and the
computer.

The next day, Agent Kyle and another FBI agent
transported Larkin to the Clinton County Correctional Facility
in the Middle District of Pennsylvania. During the drive, Larkin
signed a form authorizing the FBI to assume her online identity
and disclosed all of her passwords. Upon receiving this
authorization, Agent Kyle called a colleague and requested that
Larkin’s passwords be changed to preserve the content of her e-
mails.

The following Tuesday, King contacted two of Larkin’s
other “customers,” Rod Long and Kenneth Amerine, to warn
them that the FBI was using Larkin’s screen names. King also
told Amerine that he “just threw away [three] 120 gig hard
drives” and that the only way to destroy a hard drive is by
removing it and physically destroying it with a hammer, so the
FBI cannot recover anything. There is no direct proof that King

6
or Amerine destroyed any evidence, but no child pornography
was found on Amerine’s computer even though he admitted
viewing it.

Later that week, when Agent Kyle reviewed Larkin’s e-
mails and chats, he found incriminating conversations between
Larkin and King, including the conversations about Peanut.
With this evidence in hand, on March 3, 2004, Agent Kyle
obtained and executed two search warrants—one for the seized
computer and the other for King’s home, including all
computers contained therein. Although King was not home
when Agent Kyle executed the warrant, King spoke with Kyle
over the phone and initially declined Kyle’s invitation to speak
with him in person. That night, King changed his mind and
called to arrange a meeting with Kyle at the FBI’s office in
Williamsport, Pennsylvania, which is near the Clinton County
Correctional Facility where Larkin was housed. Because King
planned to be in the area to visit Larkin the next Saturday,
March 6, 2003, he arranged to meet Kyle that day.

King got lost on the way to Williamsport and arrived late
Saturday afternoon when the front doors were locked and the
building was relatively empty. Agent Kyle opened the door for
King and, after patting him down for weapons, led him to the
FBI office. Agent Kyle entered a code to unlock the office door,
which remained unlocked from the inside, and led King to an
interrogation room. Before asking any questions, Agent Kyle
told King he was free to leave at any time and that the interview
was voluntary. Because no other FBI agents were in the
Williamsport office at the time, an agent in the Philadelphia
office listened over the phone.

7
 Over the course of several hours, King admitted
performing oral sex on Peanut and traveling to New York for
that purpose. Agent Kyle showed King the incriminating e-
mails he retrieved from Larkin’s account, and then asked King
about his online relationships with other young girls as well as
about the thousands of child pornography images found on
King’s computer. King admitted to a long-standing interest in
sexual contact with young girls that began with his own
daughter. When the interview ended, visiting hours at the
Clinton County Correctional Facility were over, so Agent Kyle
tried to arrange for King to visit Larkin, but he was
unsuccessful. King then departed.

II.

Larkin was indicted in the Middle District of
Pennsylvania on February 26, 2004. On April 8, 2004, a
superseding indictment charged King with the offense at issue
in this appeal (18 U.S.C. § 2241(c)) and he promptly
surrendered to authorities. One year later, on April 15, 2005, a
second superseding indictment added charges against King for
sending and causing the receipt of child pornographic images
through interstate commerce in violation of 18 U.S.C.
§ 2252(a)(1)(A) and conspiracy to destroy evidence and obstruct
an official proceeding under 18 U.S.C. § 1512(c).

After entering a plea of not guilty, King moved to
suppress all evidence obtained on February 19, 2004, claiming
that the entry into his home and the seizure of Larkin’s computer
violated the Fourth Amendment. King also argued that his
statements to Agent Kyle on March 6, 2004 should be

8
suppressed because the interrogation violated his Fifth
Amendment rights under Miranda v. Arizona, 384 U.S. 436,
467-68 (1966). The District Court denied the motion on April
13, 2006, finding the entry into King’s home valid because the
police had an arrest warrant and probable cause to believe that
Larkin was in the home.2 The District Court also held that
seizure of the computer was proper because Larkin consented
and King assumed the risk of Larkin’s consent by installing his
hard drive therein.3 Finally, the District Court held that the
interrogation did not violate Miranda because it was not
custodial.

Following the District Court’s denial of his motion to
suppress, on April 17, 2006, King entered a conditional guilty
plea to one count of violating 18 U.S.C. § 2241(c). In exchange
for King’s plea, the Government agreed to: (1) dismiss the other
charges; (2) recommend a two-point downward departure for
acceptance of responsibility under section 3E1.1(a) of the

2
Alternatively, the District Court held that entry was
justified by exigent circumstances because Peanut was in
danger. We do not reach this issue.
3
Alternatively, the District Court held—as does our
concurring colleague, Judge Fuentes—that the seizure was
justified by exigent circumstances. We do not reach this issue.
Although Judge Sloviter fully agrees with this opinion, she does
not disagree with Judge Fuentes’s concurrence and believes that
under either rationale there is no constitutional objection to the
seizure of the computer.

9
United States Sentencing Guidelines (USSG); and (3)
recommend a one-level downward departure for substantial
assistance under USSG § 5K1.1. During the plea colloquy,
King admitted that “one of the many reasons” he traveled to and
from Buffalo was to have sex with Peanut, a minor under the
age of twelve. The District Court accepted King’s guilty plea.

On October 15, 2006, King’s attorney moved to withdraw
as counsel and to withdraw King’s guilty plea. The District
Court appointed new counsel, who argued that King should be
allowed to withdraw his guilty plea because he was innocent and
because the Government failed to turn over various documents,
including Brady materials. The District Court denied King’s
motion on June 8, 2007, finding insufficient justification for
withdrawal of the plea because King did not assert actual
innocence and because all materials were turned over to King’s
attorneys in a timely fashion.

On October 11, 2007, King filed a second motion to
withdraw guilty plea, this time claiming that he lacked the
requisite mental capacity to enter a valid guilty plea. The
District Court denied that motion on May 16, 2008, finding King
was mentally competent based on testimony from his prior
counsel and his conduct in court. After resolving these motions,
the District Court ordered the preparation of a fourth version of
the Presentence Investigation Report, scheduled a conference for
August 25, 2008, and ultimately scheduled a presentence
hearing for October 25, 2008.

The District Court determined King’s applicable
Sentencing Guidelines range and ruled on all departure motions

10
on February 4, 2009.4 The District Court began with a base
offense level of 27 and added the following upward departures
under the Sentencing Guidelines: (1) four levels because the
victim was under the age of twelve, § 2A3.1(b)(2); (2) two
levels for care, custody or supervisory control over the victim,
§ 2A3.1(b)(3)(A); (3) two levels because a computer was used
to facilitate the travel, § 2A3.1(b)(6)(B); (4) two levels for
obstruction of justice, § 3C1.1; and (5) five levels for
aggravating circumstances, § 5K2.0(a)(1)(B). The District
Court also denied downward departures for acceptance of
responsibility under § 3E1.1 and substantial assistance under
§ 5K1.1. In the final analysis, King’s total offense level was 42
and his criminal history category was II, resulting in a
Guidelines range of 360 months to life imprisonment.

The District Court sentenced King on March 16, 2009.
The sentencing hearing included testimony from Peanut’s
guardian, which was taken in camera and sealed. In open court,
the District Court considered the 18 U.S.C. § 3553(a) factors
and sentenced King to 360 months imprisonment, supervised
release for a term of life, and the mandatory $100 special
assessment. King filed this timely appeal, claiming that the
District Court erred in: (1) denying his motion to suppress; (2)
denying his motion to withdraw guilty plea; and (3) sentencing

4
The District Court applied the 2003 version of the
Sentencing Guidelines.

11
him to 360 months in prison. We address each argument in
turn.5

III.

We begin by considering King’s motion to suppress, in
which he argued that his Fourth and Fifth Amendment rights
were violated. We “review[] the District Court’s denial of a
motion to suppress for clear error as to the underlying factual
findings and exercise[] plenary review of the District Court’s
application of the law to those facts.” United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002).

A.

King claims the police violated the Fourth Amendment
when they entered his house on February 19, 2004 and seized
his hard drive without a warrant or his consent. He does not
dispute that Larkin consented to the seizure of her computer,
which included the hard drive that King had installed. Nor does
the Government dispute that King objected to the seizure of his
hard drive and asked agents for the opportunity to remove it
from Larkin’s computer. These facts present a novel question
of law: when an owner of a computer consents to its seizure,
does that consent include the computer’s hard drive even when
it was installed by another who claims ownership of it and
objects to its seizure?

5
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291.

12
 Answering the pivotal question in the negative, King
relies on Georgia v. Randolph, where the Supreme Court held
that police cannot search a home based on one resident’s
consent when another resident objects to the search. 547 U.S.
at 122-23. The District Court considered this argument and
rejected it, relying on United States v. Matlock, 415 U.S. 164
(1974), where the Supreme Court held that granting a third party
“common authority” over personalty “assume[s] the risk” that
the third party will consent to its search. Id. at 170-71.

Although both Randolph and Matlock bear on our
decision in this appeal, we find neither one controlling because
the facts of this case place it somewhere between those cases.
In Matlock, the Supreme Court established that consent from
one with “common authority . . . is valid as against the absent,
nonconsenting person with whom that authority is shared.” 415
U.S. at 170-71 & n.7 (emphasis added). The Court reasoned
that when someone grants common authority to another, he
assumes the risk that the co-user will consent to a search of that
common area or item. Id. Although this rule specifically
applies to either “premises or effects,” id., the Court was not
faced with a situation—like the instant appeal and
Randolph—where another party is present and objecting to the
police action.

In Randolph, although the Supreme Court resolved the
question of an objecting resident’s ability to vitiate the consent
of his co-tenant, the Court was not presented with a
situation—like the instant appeal and Matlock—where personal
“effects” were at issue. Randolph merely held “that a
warrantless search of a shared dwelling for evidence over the

13
express refusal of consent by a physically present resident
cannot be justified as reasonable as to him on the basis of
consent given to the police by another resident.” 547 U.S. at
120 (emphasis added).

To our knowledge, the only federal appellate decision to
address this issue after Randolph is the Ninth Circuit’s alternate
holding in United States v. Murphy, 516 F.3d 1117, 1124 (9th
Cir. 2008), which was not cited by the parties. In that case,
Murphy was living in, and running a methamphetamine lab out
of, a storage unit rented by Roper. Id. at 1119. Police searched
the unit based on Roper’s consent, even though Murphy
objected. Id. at 1119-20. Citing Randolph, Murphy argued that
his objection overcame Roper’s consent. Id. at 1121. The Ninth
Circuit agreed, finding the storage unit was a dwelling, albeit an
unconventional one. Id. at 1124. In the alternative, the Ninth
Circuit opined that Randolph would apply even if the unit were
not a dwelling, because “there is no reason that the rule in
Randolph should be limited to residences.” Id. The Ninth
Circuit reasoned that Randolph is based on “common authority,”
which had been extended “well beyond residences.” Id.

As we shall explain, our reading of Randolph leads us to
disagree with the Ninth Circuit’s reasoning in Murphy.
Although the majority opinion in Randolph did not directly
address personalty, our review of three opinions filed in
Randolph leads us to conclude that the Supreme Court implicitly
limited its holding to searches and seizures of the home. To
fully understand that implication, we must begin with the
primary dissent.

14
 In his dissent, Chief Justice Roberts addressed our issue
directly, explaining that Matlock provides the baseline rule for
co-user objections to searches of personal effects. Randolph,
547 U.S. at 128 (Roberts, C.J., dissenting). Co-user consent is
effective because the act of sharing property frustrates the
owner’s reasonable expectation of privacy with regard to the co-
user. Id. at 131 (“by sharing private space, privacy ‘has already
been frustrated with respect to’” the person with whom it is
shared (quoting United States v. Jacobsen, 466 U.S. 109, 117
(1984))). Consequently, once an owner shares personalty or a
secret, he assumes the risk that his confidante will share it with
the police. Id. Furthermore, after the owner relinquishes his
reasonable expectation of privacy regarding the confidante, his
presence and objection cannot undermine her consent. Id. at
128, 131. Chief Justice Roberts illustrated this rule with an
example that anticipated the facts presented here: “If two
roommates share a computer and one keeps pirated software on
a shared drive, he might assume that his roommate will not
inform the government. But that person has given up his
privacy with respect to his roommate by saving the software on
their shared computer.” Id. at 131. The dissent also argued that
this rule should extend to the home:

[J]ust as an individual who has shared illegal
plans or incriminating documents with another
cannot interpose an objection when that other
person turns the information over to the
government, just because the individual happens
to be present at the time, so too someone who
shares a place with another cannot interpose an
objection when that person decides to grant access

15
 to the police, simply because the objecting
individual happens to be present.

Id. at 128.

Writing for the Court in Randolph, Justice Souter never
disagreed with Chief Justice Roberts about the rule for
personalty. In fact, Justice Souter rejected the dissent’s attempt
to equate the home with a secret as a “false equation [that]
suggests a deliberate intent to devalue the importance of the
privacy of a dwelling place.” 547 U.S. at 115 n.4. This
rejoinder strongly implies that the majority agreed with the
dissent’s rule for personalty and secrets but rejected it as to the
home because of the home’s privileged status in Fourth
Amendment jurisprudence. See, e.g., id. Furthermore, the
majority crafted its rule using terms that apply solely to
dwellings. For example, when explaining the “fine line” drawn
between Randolph and prior precedents, the Court stated that
Randolph applies “if a potential defendant with self-interest in
objecting is in fact at the door and objects.” Id. at 121. These
terms, combined with the majority’s emphasis on the sanctity of
the home, strongly imply that the Randolph rule applies only to
a dwelling place.

We also find it significant that the majority’s fifth vote in
Randolph limited his concurrence to the facts of the case. 547
U.S. at 127 (Breyer, J., concurring) (joining the majority
“[g]iven the case-specific nature of the Court’s holding”). Like
the majority, Justice Breyer used terms that apply only to a
dwelling, without making any reference to personal effects. See,

16
e.g., id. at 126-27 (referring to “officers seeking to enter the
house” and “to enter a home” (emphasis added)).

In sum, our reading of Justice Souter’s opinion for the
Court, Justice Breyer’s concurrence, and Chief Justice Roberts’s
dissent, leads us to conclude that the rule of law established in
Randolph does not extend beyond the home.6

Because Randolph does not apply to personal effects,
King’s suppression argument necessarily fails. A computer is
a personal effect, see, e.g, Andrus, 483 F.3d at 718-20

6
Contrary to the concurrence’s assertion, this rule does
not risk encroaching on Fourth Amendment rights. Computer
users can protect their files by using a password, just as one who
shares a footlocker can protect his photographs by placing them
in a locked container inside the footlocker. See, e.g., United
States v. Andrus, 483 F.3d 711, 718-20 (10th Cir. 2007); United
States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) (explaining that
consent to search an area does not include consent to search
locked containers in that area); see also Randolph, 547 U.S. at
135 (Roberts, C.J., dissenting) (“To the extent a person wants to
ensure that his possessions will be subject to a consent search
only due to his own consent, he is free to place these items in an
area over which others do not share access and control, be it a
private room or a locked suitcase under a bed.”). For example,
in Trulock v. Freeh, the Fourth Circuit found that a defendant
who protected his files with a password, had not “assumed the
risk” that his co-user “would permit others to search his files.”
275 F.3d 391, 403 (4th Cir. 2001).

17
(analogizing a computer to a container). Therefore, we apply
the Matlock rule and ask whether King relinquished his privacy
in the hard drive with respect to Larkin. Here, King placed his
hard drive inside the computer Larkin owned and that the two of
them shared, without any password protection. As a result, he
assumed the risk that Larkin would consent to its seizure.
Accordingly, the District Court did not err in holding that the
seizure of Larkin’s computer did not violate the Fourth
Amendment and evidence derived therefrom was admissible
against King.

B.

We next turn to King’s claim that Troopers Coyle and
Rodriguez violated the Fourth Amendment when they entered
93 Pennypacker Road to execute the arrest warrant on Larkin.
Officers may enter a third party’s residence to arrest the subject
of an arrest warrant if they have probable cause to believe she is
inside. United States v. Agnew, 407 F.3d 193, 196 (3d Cir.
2005). In assessing “whether the police had probable cause to
believe a suspect was residing and present in a home, we apply
a common sense approach and consider the facts and
circumstances within the knowledge of the law enforcement
agents, when viewed in the totality.” United States v. Veal, 453
F.3d 164, 167-68 (3d Cir. 2006) (internal quotation omitted).

King claims the State Police lacked probable cause to
enter his residence because the phone number initially was
traced to a post office box and they failed to stake out King’s
home to determine whether Larkin was inside. King correctly
notes that the phone number Larkin gave to McCullen was

18
initially traced to a post office box. As the District Court noted,
however, the Government quickly traced the phone number to
93 Pennypacker Road after determining that the number quite
obviously could not apply to a post office box. Accordingly, the
District Court committed no error—much less clear
error—when it found that the telephone number “was ultimately
traced” to King’s home.

The District Court did commit one factual error which, to
its credit, the Government acknowledges. The District Court
found that McCullen told the officers Larkin moved to the Berks
County area. In fact, McCullen told Agent Kyle that he did not
know where Larkin went after she left Buffalo. Therefore, we
evaluate whether probable cause existed to believe that Larkin
was in King’s residence without considering this errant fact.

Applying plenary review to the properly found facts, we
hold the State Police had probable cause to believe Larkin was
in King’s residence. The State Police knew not merely that
Larkin had left Buffalo; they knew that a few hours earlier
Larkin said she and Peanut could be reached at a phone number
traced to 93 Pennypacker Road. Under the totality of the
circumstances, these facts provided probable cause for the State
Police to believe Larkin was at King’s residence when they went
there to execute the arrest warrant.

C.

King also claims a violation of his Fifth Amendment
rights on March 6, 2004, when Agent Kyle interviewed him at
the Williamsport FBI office without administering Miranda

19
warnings. The disposition of this question turns on whether that
interview constituted a “custodial interrogation.”

Miranda applies to those “in custody.” Miranda, 384
U.S. at 467-68. One is “in custody” when the authorities say or
do something objectively indicating “they would not have
heeded a request to depart or to allow the suspect to do so.”
United States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006).
We consider five factors to determine whether King was
objectively free to leave:

(1) whether the officers told the suspect he was
under arrest or free to leave; (2) the location or
physical surroundings of the interrogation; (3) the
length of the interrogation; (4) whether the
officers used coercive tactics such as hostile tones
of voice, the display of weapons, or physical
restraint of the suspect’s movement; and (5)
whether the suspect voluntarily submitted to
questioning.

Id. at 359-60.

Applying the five factors to the facts of this case, some
favor King’s position and some favor the Government’s
position. The second and third factors—the location of the
interrogation and its length—favor King. The FBI office is
inherently more intimidating than most locations such as a
business office, an automobile, or a public street. Likewise, the
interrogation was fairly long, lasting several hours. On the other
hand, the first, fourth, and fifth factors all favor the

20
Government. Agent Kyle specifically told King he was not
under arrest, the office door was not locked from the inside,
King could have exited at any time, and there is no evidence that
Agent Kyle used any coercive tactics. Finally, King voluntarily
submitted to the questioning after previously refusing, and
departed when he chose to do so. Therefore, it was objectively
reasonable for King to think he was free to leave.

Our conclusion is supported by the factual similarity
between this appeal and the interrogation that the Supreme
Court held to be non-custodial in Oregon v. Mathiason, 429
U.S. 492 (1977). In that case, “Mathiason (1) had come to the
station voluntarily, (2) was informed that he was not under
arrest, and (3) left the interview without hindrance.” United
States v. Jacobs, 431 F.3d 99, 106 (3d Cir. 2005) (citing
Mathiason, 429 U.S. at 495). Accordingly, we hold that King
was not “in custody” for purposes of Miranda, so the District
Court did not err in finding no violation of King’s Fifth
Amendment rights.

IV.

We next address King’s challenge to the District Court’s
denial of his motion to withdraw guilty plea. King bore a
“substantial” burden, United States v. Jones, 336 F.3d 245, 252
(3d Cir. 2000), of showing a “fair and just reason” for the
withdrawal of his plea. Fed. R. Crim. P. 11(d)(2). We review
the District Court’s denial of a motion to withdraw guilty plea
for abuse of discretion. United States v. Brown, 250 F.3d 811,
815 (3d Cir. 2001).

21
 In determining whether a “fair and just reason” existed
for withdrawal of a defendant’s plea, district courts consider
whether: (1) the defendant “asserts his innocence;” (2) the
defendant proffered strong reasons justifying the withdrawal;
and (3) the government would be prejudiced by the withdrawal.
United States v. Martinez, 785 F.2d 111, 114 (3d Cir. 1986).
King claims to have satisfied all three factors.

King purports to have asserted innocence when he argued
to the District Court that he was “factually innocent in the
Middle District” because all of his sexual contact with Peanut
occurred at his home in the Eastern District of Pennsylvania.
This argument, first proffered in the motion to withdraw, fails
for several reasons.

First, King waived this issue. He tries to avoid waiver by
framing his claim of actual innocence as a non-waivable
jurisdictional defect, but his effort fails because all federal
courts have jurisdiction to hear criminal cases arising under
federal statutes such as 18 U.S.C. § 2241(c). 18 U.S.C. § 3231;
see also United States v. Polin, 323 F.2d 549, 556 (3d Cir.
1963). As we have explained, challenges to the appropriate
district court are actually challenges to venue. United States v.
Robinson, 167 F.3d 824, 829 (3d Cir. 1999). By pleading guilty
in the United States District Court for the Middle District of
Pennsylvania, King waived any claim of improper venue. See
Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007)
(holding entry of a guilty plea waives all non-jurisdictional
issues).

22
 Second, even had King preserved the argument, venue
was proper in the Middle District of Pennsylvania because it
was a “district wherein the crime shall have been committed.”
U.S. Const. amend. VI. The offense of interstate transportation
to engage in sex with a minor contains three elements: (1)
crossing interstate lines; (2) with the intent to engage in a sexual
act with a minor; and (3) either performing or attempting to
perform the act. 18 U.S.C. § 2241(c); see also United States v.
Cryar, 232 F.3d 1318, 1321-22 (10th Cir. 2000). Because this
a continuing offense, venue is appropriate in any district where
King transported or abused Peanut. 18 U.S.C. § 3237(a)
(“[A]ny offense against the United States . . . committed in more
than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or
completed.”); see also Cryar, 232 F.3d at 1321-22 (applying 18
U.S.C. § 3237(a) to prosecutions under 18 U.S.C. § 2241(c)).
Because King drove through the Middle District of
Pennsylvania on his way to and from Buffalo, New York, venue
was appropriate there.

Apart from his venue argument, King advances the
specious claim that although he intended to transport Peanut and
intended to have sex with her, he asserted innocence because he
did not admit to having the requisite intent while crossing state
lines. But the requisite intent may be formed at any point during
the “interstate travel” as long as the defendant traveled “for the
purpose of engaging in the unlawful sexual act.” United States
v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006) (citing United
States v. Hayward, 359 F.3d 631, 638 (3d Cir. 2004)); see also
Cryar, 232 F.3d at 1324 (pointing to evidence from before the

23
drive, including conversations expressing sexual interest in the
attempted victim).

Furthermore, the evidence shows that having sex with
Peanut was the purpose of King’s travel and that he formed this
purpose before he drove to Buffalo, not a week later, as he
claims. A bald assertion of innocence is inadequate; it must be
supported by the facts. Brown, 250 F.3d at 818. Here, e-mails
and instant messages King sent to Larkin and others demonstrate
that he intended to have sex with Peanut. For example, while
discussing Larkin’s request to move in, King reminded her of
his “fantasy” and Larkin asked King if Peanut “would be
enough” to satisfy him. King also told others of his sexual
interest in Peanut. Finally, King admitted to Agent Kyle that
when he left for Buffalo he knew he would have sex with
Peanut, and he admitted engaging in sex acts with Peanut
multiple times during her first week in Mohnton. For all these
reasons, the District Court did not abuse its discretion when it
found that King did not assert actual innocence.

As for the second prong—reasons justifying the
withdrawal—King simply rehashes his “factual innocence”
argument, claiming lack of jurisdiction is the most compelling
reason to allow withdrawal of his guilty plea. King was
required, however, to explain why he changed his mind
following his guilty plea. United States v. Jones, 336 F.3d 245,
253 (3d Cir. 2003). King could have objected to venue much
sooner and cites no reason for his belated change of heart. The
absence of any explanation is strong support for the District
Court’s finding that King suffered from “pleader’s remorse”
once he learned of the proposed Guidelines range in his

24
Presentence Investigation Report.7 But changing one’s mind is
not a sufficient reason to justify withdrawal of a guilty plea.
E.g., United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998).
Therefore, the District Court did not abuse its discretion when
it found that King failed to proffer strong reasons justifying the
withdrawal of his plea.

We cannot find a “fair and just reason” to justify
withdrawal of King’s guilty plea because he failed to satisfy
either the first or second prong of the test. Therefore, we hold
that the District Court did not abuse its discretion when it denied
King’s motion to withdraw guilty plea.8

7
The District Court made King aware during the plea
colloquy that it could impose punishments up to the statutory
maximum punishment of life imprisonment, $250,000 in fines,
a $100 special assessment, and a life term of supervised release,
in addition to restitution. And King specifically acknowledged
that potential maximum sentence. But as of that date, the initial
proposed Guidelines range, not including the § 5K1 motion, was
151 to 168 months. King first moved to withdraw his guilty
plea less than two months after he received the Presentence
Investigation Report, which proposed a Guidelines range of 360
months to life.
8
King also challenges his competence to enter the guilty
plea but as the District Court found, King was competent. In
addition to King’s attorneys testifying that he was competent,
King alertly caught a nuanced mistake during the plea colloquy,
which shows that he understood the proceeding and the rights he

25
 V.

We now turn to King’s appeal of his sentence. King
acknowledges that the District Court properly calculated his
initial Guidelines range, but claims it erred when ruling on
various departure motions and failed to grant him a downward
variance under 18 U.S.C. § 3553(a).

At step two of the test we established in United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006), the District Court
denied the Government’s motion for a downward departure for
acceptance of responsibility under USSG § 3E1.1, while
imposing a five level upward departure for aggravating
circumstances under § 5K2.0. King appeals both of those
decisions, which we review for abuse of discretion.9 United
States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

A.

was waiving.
9
King also appeals the denial of the Government’s
motion for a downward departure for substantial assistance
under § 5K1.1. But we lack jurisdiction to review such a denial
unless the District Court was unaware of its discretion to grant
the motion, United States v. Cooper, 437 F.3d 324, 332-33 (3d
Cir. 2006), abrogated on other grounds by Kimbrough v. United
States, 552 U.S. 85 (2007), and King does not argue that the
District Court lacked such knowledge.

26
 The District Court denied the Government’s motion for
a two-level reduction for acceptance of responsibility under
§ 3E1.1 because King obstructed the investigation, subsequently
denied elements of the crime, and blamed his crime on others,
including the victim. King claims he is entitled to the departure
because he saved taxpayers the cost of a trial, assisted the FBI,
and surrendered promptly. The Guidelines require a defendant
to “clearly demonstrate[] acceptance of
responsibility,”§ 3E1.1(a), and we give the District Court “great
deference on review,” because “the sentencing judge is in a
unique position to evaluate the defendant’s acceptance of
responsibility.” Id. App. Note 5; see also United States v.
Dullum, 560 F.3d 133, 142 (3d Cir. 2009).

The District Court based its decision on the Guidelines
Application Notes, which outline some of the appropriate
factors to consider in determining whether a defendant “clearly
demonstrate[d]” acceptance of responsibility. These factors
include admitting all elements of the offense and “relevant
conduct,” voluntarily assisting in the investigation, surrendering
to authorities promptly and voluntarily, and timely accepting
responsibility. See § 3E1.1 App. Note 1(a), (d), (e) & (h). In
contrast, factors that show lack of acceptance include “falsely
den[ying], or frivolously contest[ing], relevant conduct that the
court determines to be true,” Id. App. Note 1(a), and receiving
an upward departure under § 3C1.1 for obstruction. § 3E1.1
App. Note 4 (the obstruction enhancement “ordinarily indicates
that the defendant has not accepted responsibility for his
conduct”).

27
 Although King promptly surrendered to police, admitted
his criminal conduct to the FBI, and pleaded guilty, the record
is replete with other evidence that he did not accept
responsibility. First, King’s initial admissions and guilty plea
were undermined when he recanted some of those admissions
and later sought to withdraw his guilty plea, claiming he was not
guilty. Second, after admitting criminal intent during his plea
colloquy, King later raised specious arguments denying as
much. Third, King received a § 3C1.1 upward departure for
obstruction of justice because he destroyed three hard drives
containing evidence and taught Amerine how to destroy a
computer’s hard drive. Finally—and most remarkably—King
has consistently attempted to blame others for his reprehensible
conduct. He blamed Larkin for pressuring him to have sex with
Peanut, claiming he declined her offers for a few days. Most
disturbingly, King even blamed his two-year-old victim,
claiming she initiated some sexual encounters by climbing on
his lap.

For all the foregoing reasons, ample evidence supports
the District Court’s denial of the Government’s motion for
downward departure for acceptance of responsibility.10

10
King also argues that entering a guilty plea, by itself,
automatically entitles him to a one-level departure under
Dullum. As the District Court explained, however, entering a
guilty plea does not entitle a defendant to the § 3E1.1 adjustment
“as a matter of right.” § 3E1.1 App. Note 3. We did not reverse
the District Court’s grant of such a one-level downward
departure in Dullum because the issue was not raised on appeal.

28
 B.

King received a five level upward departure under
§ 5K2.0(a)(1)(B), which applies when “there exists an
aggravating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines.” The District Court
found two aggravating circumstances: (1) subsequent statutory
and Guidelines amendments show that the applicable Guidelines
do not sufficiently punish the crime; and (2) King’s pattern of
sexually abusing minors, including his own daughter, places his
conduct outside the heartland and warrants greater punishment
than the ordinary case.

King first argues that the District Court violated the
Guidelines’ mandate to apply the lower level when there has
been an amendment, by relying on Guidelines amendments that
post-dated his conduct. USSG § 1B1.11. Contrary to King’s
argument, the District Court did not apply the subsequent
amendment. Rather, it considered the Congressional finding
behind those amendments to ascertain whether the applicable
Guidelines punish his crime adequately. Given Congress’
significant role in sentencing, its finding on the adequacy of the
Guidelines is an appropriate consideration. “It is, after all,
Congress-not the judiciary-[which] is vested with the authority
to define, and attempt to solve . . . societal problems.” United
States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008) (internal citations

560 F.3d at 142 n.8. We did, however, deny that the departure
was required. Id.

29
and quotations omitted). Although King correctly notes that the
District Court’s reliance on Congressional findings was based
on decisions of the First, Fourth and Seventh Circuits, rather
than this Court, we now join those courts in holding that such
reliance is proper. See id.; United States v. Grigg, 442 F.3d 560,
564-65 (7th Cir. 2006); United States v. Hecht, 470 F.3d 177,
182 (4th Cir. 2006).

King also claims the District Court did not have an
adequate basis for finding his conduct outside the heartland
because it failed to cite statistics. But we have never required a
District Court to cite statistics in support of its § 5K2.0
determinations. Instead, we have established the following three
steps: (1) “identify the factor or factors that potentially take the
case outside the Guidelines’ ‘heartland’ and make it special or
unusual”; (2) “determine whether the Guidelines forbid
departures based on the factor, encourage departures based on
the factor, or do not mention the factor at all”; and (3) follow the
rule from step two and, if unmentioned, “the court must, after
considering the structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole, decide whether
[the factor] is sufficient to take the case out of the Guideline’s
heartland.” United States v. Iannone, 184 F.3d 214, 226 (3d Cir.
1999) (citing and quoting Koon v. United States, 518 U.S. 81,
94-96 (1996)). In addition to the abuse of discretion standard
applied to sentencing determinations, the District Court’s
§ 5K2.0 determination is entitled to heightened deference
because district courts “see many more Guidelines cases than
appellate courts do,” which give them an “institutional
advantage . . . over appellate courts in determining whether the
facts of a given case take it out of the ‘heartland’ of Guidelines

30
cases.” Iannone, 184 F.3d at 227 (citing and quoting Koon, 518
U.S. at 98).

The District Court identified King’s pattern of repeated
sexual abuse as the factor that takes his conduct outside the
heartland of the offense. The Guidelines under which the
District Court enhanced King’s advisory sentencing range
account for the victim’s age, the defendant’s responsibility for
the victim’s care and the use of a computer in the offense.
§§ 2A3.1(a), (b)(2)(A), (3), (6). But those Guidelines do not
take into account King’s repeated abuse of his daughter or his
online predation of minors.

Although King was not criminally charged for abusing
his daughter, it was proved relevant conduct. See United States
v. Watts, 519 U.S. 148, 156 (1997). In addition to the damning
e-mails, King admitted to Agent Kyle, and later Probation
Officer Noll, that he performed oral sex on his daughter,
explaining that it started when she had a diaper rash at six
months old and continued because “it made her feel good.”

In addition to sexually abusing his daughter, King spent
“countless hours” online talking to young girls to, in his words,
“sexually initiate” them and to satisfy his desires. He taught
them how to masturbate and sent them pictures of child
pornography and his own genitals. King requested pictures of
them and asked for their addresses to arrange encounters. He
even bragged to others with similar predilections about how
many girls he engaged online. Thus, a plethora of evidence
supports the District Court’s finding that King repeatedly

31
sexually abused minors and that such abuse was not covered by
the applicable Guidelines.

The Guidelines listing encouraged and discouraged
factors for departures do not mention repeated abuse. §§ 5H1.1-
1.12, 5K2.0-2.23. Consequently, at step three the District Court
determined that King’s pattern of sexual abuse was sufficient to
take his case outside the heartland in light of similar Guidelines
that contain enhancements for recurring abuse. See Iannone,
184 F.3d at 228-29 (making this determination based on “two
areas of the Guidelines [that] provide specific bases for upward
departures based on conduct similar” to the defendant’s). For
example, some child pornography offenses warrant a five-level
upward departure for “a pattern of activity involving the sexual
abuse or exploitation of a minor.” § 2G2.2(b)(4).11 The
Application Notes explain that “pattern” means “two or more
separate instances” of the conduct, regardless of whether they
“(A) occurred during the course of the offense; (B) involved the
same or different victims; or (C) resulted in a conviction for
such conduct.” Id. App. Note 1. Even though that
“enhancement does not apply to [King’s] conduct, its rationale
does.” Iannone, 184 F.3d at 228. He repeatedly sexually abused
both his daughter and Peanut. As § 2G2.2(b)(4) shows, this

11
That Guideline also provides a five-level upward
departure for distributing child pornography to a minor, §
2G2.2(b)(2)(C), and seven levels for distributing with intent to
persuade, induce or facilitate the minor’s traveling for sexual
conduct. § 2G2.2(b)(2)(D). Both of those offenses are
analogous to King’s online prowling.

32
repeated abuse creates social harm that is not addressed by a
Guideline that applies to a single instance of abuse. Therefore,
the District Court did not abuse its discretion in departing based
on King’s repeated abuse.

Once the District Court found that a departure was
appropriate, it was also required to set the amount of the
departure by “analogizing to existing Guidelines provisions.”
Iannone, 184 F.3d at 229. Importantly, “[w]e are dealing here
with analogies to the guidelines, which are necessarily more
open-textured than applications of the guidelines.” United
States v. Baird, 109 F.3d 856, 872 (3d Cir. 1997) (citation
omitted). Here, § 2G2.2(b)(5) provides a five-level upward
departure for “a pattern of activity involving the sexual abuse or
exploitation of a minor,” which is consistent with King’s
conduct. The analogous Guidelines contain departures of five,
seven, and eleven levels. Here, the District Court adopted the
lowest of those, which was not an abuse of discretion.

C.

After establishing King’s Guidelines imprisonment range
as 360 months to life, the District Court applied the factors of 18
U.S.C. § 3553(a) and determined that 360 months incarceration
was just and reasonable. King claims his sentence was
procedurally and substantively unreasonable.

As a matter of procedure, the sentencing court must give
“rational and meaningful consideration” to the § 3353(a) factors.
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en
banc). We do not require the District Court to address every

33
factor, as long as “the record makes clear” that it considered
each factor. Tomko, 562 F.3d at 568. Additionally, the District
Court may decide how much discussion each factor warrants.
United States v. Rita, 551 U.S. 338, 356-57 (2007). As a
substantive matter, the District Court must reasonably apply the
§ 3553(a) factors based on the totality of the circumstances.
Cooper, 437 F.3d at 329-30; Tomko, 562 F.3d at 567.

We review both procedural and substantive
determinations for abuse of discretion. Tomko, 562 F.3d at 567.
If there are no procedural errors, our substantive review is
highly deferential and we will affirm “unless no reasonable
sentencing court would have imposed the same sentence on that
particular defendant for the reasons the district court provided.”
Id. at 568.

King claims the District Court failed to give meaningful
consideration to his “history and characteristics,” 18 U.S.C.
§ 3553(a)(1), because it did not consider that he came from a
“broken home” and was himself a victim of sexual abuse. The
Government concedes that the District Court’s discussion of
King’s history and characteristics did not mention those facts,
but notes that the District Court addressed King’s history of
abuse in the context in which it was raised.

During the sentencing hearing, King’s attorney briefly
outlined King’s childhood abuse as a basis for the District Court
to find him mentally incompetent, or at least “a damaged
person.” Counsel concluded that point by saying “the identified
problems that Mr. King has are not . . . genetic . . . and therefore
something had to happen to him.” The District Court addressed

34
King’s mental heath issues, “agree[ing] with [defense counsel]
that there are myriad mental health questions that arise from the
testimony that this court has received” but concluded that King
was competent. After King’s attorney discussed the abuse in
only one sentence, the District Court was not required to address
the issue in detail, especially given its considerable discretion.
Therefore, the District Court committed no procedural error at
King’s sentencing. See Rita, 551 U.S. at 356-57.

Absent a procedural error, we review King’s substantive
challenges for abuse of discretion to determine whether the
§ 3553(a) “factors were reasonably applied to the circumstances
of the case.” Cooper, 437 F.3d at 330. We will affirm if a
“reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district
court provided.” Tomko, 562 F.3d at 568. King raises several
substantive challenges, none of which overcomes this high
hurdle.12

12
King argues that the District Court improperly counted
the severity of the crime, his failure to accept responsibility and
his obstruction when deciding both departures and
reasonableness under § 3553(a). Such double counting is
allowed, however. Tomko, 562 F.3d at 583 (“[U]nder § 3553(a),
the District Court was permitted to give further weight to a
factor covered by a specific Guidelines provision.”); United
States v. Greenidge, 495 F.3d 85, 103 (3d Cir. 2007) (“We
emphasize that a sentencing court is not prohibited from
considering the factual basis underlying a defendant’s sentence
enhancement [in the § 3553(a) analysis], and indeed, should

35
 First, King claims his sentence is unreasonable because
his conduct was not more severe than other abusers of Peanut
who received shorter sentences and because his conduct was less
severe than Larkin’s, who also was sentenced to 360 months
imprisonment. Although King admits that his conduct was
severe, he argues that another perpetrator inflicted worse harm
by infecting Peanut and her older sister with a sexually
transmitted disease. Similarly, King argues that his conduct was
less severe than Larkin’s because she sought out men to abuse
her own daughter. We are unpersuaded by these comparisons
because sentencing disparities are unreasonable only when the
defendants are similarly situated. 18 U.S.C. § 3553(a)(6)
(requiring the sentencing court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct”); see
also United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006)
(citing 18 U.S.C. § 3553(a)(6)).

The District Court properly distinguished King’s conduct
from that of Larkin and the other perpetrators. The only
perpetrator convicted of the same crime as King received a
lower sentence because, unlike King, he accepted responsibility,
provided substantial assistance, did not obstruct the
investigation and had a lower criminal history. The other
perpetrators were sentenced for lesser crimes, did not have
regular contact with Peanut, and did not exercise care or control
over her. As for Larkin, she pleaded guilty to a lesser crime

consider those facts in order to tailor the sentence to the
defendant’s individual circumstances.”).

36
than King.13 Those differences justify King’s term of
incarceration. See Parker, 462 F.3d at 278 (holding co-
defendants were not similarly situated because one had a less
extensive criminal history).

Second, King claims that the District Court’s sentence
was substantively unreasonable because it did not consider the
significance of the abuse King suffered as a child. As we noted
previously, that issue was considered and addressed in the
context in which King’s counsel presented it. The District Court
did not abuse its discretion in this regard.

Third, King claims his sentence was substantively
unreasonable because the District Court lost focus on the
offender because of the appalling nature of the conduct and
ignored his mental health issues. This argument is based on our
decision in United States v. Olhovsky, where the defendant was
18 years old when arrested and presented substantial expert
testimony that he had a uniquely low chance of recidivism. 562
F.3d 530, 547-50 (3d Cir. 2009). For example, the expert
testified that the defendant, who had “subnormal social
development,” was succeeding in treatment and learning to
engage in age-appropriate relationships. Id. at 543, 549-51. The

13
We call it a “lesser crime” because at all relevant times
the maximum sentence for King’s crime of conviction was life
imprisonment, 18 U.S.C. § 2241(c) (both before and after the
2006 amendment), whereas the maximum sentence for Larkin’s
crime of conviction was 30 years imprisonment. 18 U.S.C. §
2251 (amended in 2003 from 20 to 30 years).

37
district court in Olhovsky completely ignored that expert
testimony, even erroneously finding that the defendant was not
responding to treatment. Id. at 548. Furthermore, it committed
procedural error by ignoring several § 3553(a) factors and
focusing solely on “incapacitation, deterrence, and punishment.”
Id. at 547 & 550 n.18. Although it is true that we found
Olhovsky’s sentence substantively unreasonable, id. at 549-51,
our decision must be read in light of the district court’s
procedural errors, which “necessarily raise questions about the
substantive reasonableness of [the] sentence.” Id. at 553.

We disagree that King’s case is analogous to Olhovsky.
Here, the District Court committed no procedural error and its
descriptions of King’s conduct as “almost nausea inducing” and
“disturbingly serious” were not erroneous. Quite to the contrary,
the District Court aptly described the nature of King’s crime of
conviction and relevant conduct. Accordingly, we will affirm
King’s sentence.14

14
King also argues that the District Court erred by
considering the subsequent statutory and Guidelines
amendments during its § 3553(a) determination. Like our
analysis regarding departures, it was within the District Court’s
discretion to consider subsequent amendments, without applying
them, during its § 3553(a) determination. See United States v.
Goff, 501 F.3d 250, 257 n.12 (3d Cir. 2007) (relying on a
subsequent amendment to bolster its holding the District Court’s
sentence was unreasonable: the defendant’s “sentence appears
even more unreasonable when measured against the sentencing
range provided in subsequent versions of the Sentencing

38
 VI.

For the foregoing reasons, we find no error in the District
Court’s decisions to deny King’s motion to suppress or his
motion to withdraw guilty plea. We also hold that the District
Court’s departure rulings were free of error and its application
of the § 3553(a) factors were neither procedurally nor
substantively unreasonable. We will therefore affirm the
judgment of the District Court in all respects.

Guidelines”).

39
FUENTES, Circuit Judge, concurring.
I concur with Judge Hardiman’s well-crafted and
thorough opinion. I agree with the majority’s conclusion in Part
III.A that the District Court properly denied King’s motion to
suppress the evidence found on the computer seized from his
home. I write separately, however, because I believe that the
seizure of King’s computer hard drive was more properly
justified on the well-settled ground of exigent circumstances and
that the majority need not have adopted a new rule of
constitutional law restricting Georgia v. Randolph to searches
of the home. 547 U.S. 103, 122–23 (2006). In Randolph, the
Supreme Court held that a present cotenant could refuse consent
to a police search, regardless of the consent of a fellow
occupant.
The exigent circumstances exception to the warrant
requirement is well-established. See, e.g., Illinois v. McArthur,
531 U.S. 326, 337 (2001) (Souter, J., concurring) (noting that
the likelihood that property can be destroyed “in anticipation of
a warrant exemplifies the kind of present risk that undergirds the
accepted exigent circumstances exception to the general warrant
requirement”); Couden v. Duffy, 446 F.3d 483, 496 (3d Cir.
2006); accord Schmerber v. California, 384 U.S. 757, 770–71
(1966). Importantly for this case, exigent circumstances include
the prevention of the “imminent destruction of evidence.”
Couden, 446 F.3d at 496 (internal quotation marks & citation
omitted); accord Schmerber, 384 U.S. at 770–71. In the context
of the destruction of evidence, we have described the exigent
circumstances inquiry as follows:
When Government agents . . . have probable

-1-
 cause to believe contraband is present and, in
addition, based on the surrounding circumstances
or the information at hand, they reasonably
conclude that the evidence will be destroyed or
removed before they can secure a search warrant,
a warrantless search is justified.
United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973).
A review of the record in our case demonstrates that the
seizure of the computer was clearly justified under the exigent
circumstances exception. As the District Court found, “King
would have possessed the opportunity to tamper with or dispose
of the [computer] in the interim” before the officers retrieved a
search warrant. (App. at 28.) This finding is reviewed for clear
error. United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006)
(citation omitted). The officers possessed probable cause to
believe that the computer contained evidence of a crime, namely
images of child pornography. When Officer Kyle entered the
trailer in Emporium, Pennsylvania, he recognized it as the
location where the pornographic video of Larkin’s daughter was
made. McCullen told Kyle that when Larkin left, she took her
daughter and her computer with her, giving the officers probable
cause to believe that the computer contained evidence of child
pornography and that it would be found at Larkin’s residence.
The officers could also reasonably conclude that the evidence on
the computer would be destroyed or removed by King before
they could return with a warrant. Computer-based evidence is
readily tampered with, and, given Larkin’s arrest, King had a
motivation to destroy any incriminating evidence on the
computer. Accordingly, the District Court’s finding that King
had the opportunity to tamper with the computer was not clear

-2-
error, and the warrantless seizure was justified based on
exigency. I would affirm the denial of the suppression motion
on this ground.
Rather than affirming the District Court on the basis of
exigent circumstances, the majority adopts a narrow
interpretation of Randolph that limits the Supreme Court’s
holding in that case to residences and does not include personal
effects. I respectfully disagree with this approach. Prudential
principles counsel in favor of deciding the instant case on the
basis of well-established precedent rather than reaching a novel
question of Fourth Amendment law. As we can uphold the
seizure of the computer as necessary to prevent the destruction
of evidence, I would do just that. Moreover, this approach
would not substantially hinder law enforcement. The presence
of an objecting co-owner is relevant to the determination of
whether “the evidence will be destroyed or removed before
[officers] can secure a search warrant.” Rubin, 474 F.2d at 268.
The Supreme Court noted as much in Randolph:
Sometimes, of course, the very exchange of
information . . . in front of the objecting
inhabitant may render consent irrelevant by
creating an exigency that justifies immediate
action on the police’s part; if the objecting tenant
cannot be incapacitated from destroying easily
disposable evidence during the time required to
get a warrant, a fairly perceived need to act on the
spot to preserve evidence may justify entry and
search . . . .
547 U.S. at 117 n.6 (internal citations omitted). As anticipated

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by the Supreme Court, King’s presence in the home, his
objection to the seizure, and the ease with which he could have
tampered with the evidence created a “need to act on the spot”
that justified the officers’ actions.
Finally, I am concerned that the rule crafted by the
majority has the potential to permit an encroachment on Fourth
Amendment rights in circumstances in which society would
recognize a reasonable expectation of privacy. Randolph
instructs that “[t]he constant element in assessing Fourth
Amendment reasonableness in the consent cases . . . is the great
significance given to widely shared social expectations.” 547
U.S. at 111. I do not agree with the majority that, by sharing
ownership in personal property, an individual who is present at
the time that officers seek to search or seize that property has
lost his or her right to refuse consent.
Take, for example, the situation in which two co-
inhabitants share a footlocker inside their common residence.
Both individuals have access to, and store items inside, the
footlocker. For safekeeping and privacy purposes, one
individual has placed inside of the footlocker photographs
depicting him engaging in compromising, but legal, conduct.
The police arrive at the shared residence, and the other co-
inhabitant consents to the seizure of the footlocker and the
search of its contents. The person depicted in the photographs
objects, fearing that disclosure of the photographs could
humiliate him and harm his reputation. Under the approach
taken by the majority, by sharing the footlocker, he has forfeited
his expectation of privacy in the photographs and his right to

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shield them from view.1 An analogous scenario involving a
shared computer on which one user has stored compromising
digital photographs can be easily imagined.
The majority relies heavily on the principal dissenting
opinion in Randolph, in which Chief Justice Roberts emphasized
that “in cases of shared information, papers, containers, or
places . . . privacy has been shared with another. Our common
social expectations may well be that the other person will not, in
turn, share what we have shared with them with
another—including the police—but that is the risk we take in
sharing.” 547 U.S. at 131. Positing examples that appear to be
directly applicable to the instant case, the Chief Justice
concluded that by sharing a locker or a computer, one co-owner
has given up his privacy with respect to the other and
“assume[s] the risk that those who have access to and control
over his shared property might consent to a search.” Id. at 134
(internal quotation marks omitted) (alteration in original). As
the Randolph majority clarified, however, the cases on which
Chief Justice Roberts relied were inapposite in one key
aspect—“the potential objector[ was] nearby but not invited to
take part in the threshold colloquy.” Id. at 121. Acknowledging
that it was “drawing a fine line,” the Court nonetheless held that
“a physically present inhabitant’s express refusal of consent to

1
The situation would be very similar with respect to a
self-storage unit leased by two individuals, both of whom are
present when police request consent to search the unit. Keeping
personal effects segregated in such a storage unit through the
use of locks or other barriers would be impractical.

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a police search is dispositive as to him, regardless of the consent
of a fellow occupant.” Id. at 121, 123 (emphasis added).
My colleagues further argue that, in writing for the Court,
Justice Souter declined to expressly disagree with Chief Justice
Roberts’s approach as it applied to personalty; they cite this as
evidence that the Court’s intention was to restrict its holding to
the home. As Randolph involved the search of a home, and
not the search or seizure of personal effects, I hesitate to find
such meaning in Justice Souter’s silence, particularly where,
under prudential principles, we should not be addressing the
issue in the first instance.
As I discuss above, we need not resolve this
constitutional issue of first impression to affirm the District
Court’s denial of King’s suppression motion. Instead, I would
simply hold that the warrantless seizure of the computer was
justified based on the exigent need to prevent the destruction of
evidence.

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