UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4728
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD STEPHEN SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00027-LHT-1)
Submitted: June 10, 2010 Decided: July 6, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William C. Spaht, John C. Neiman, Jr., BRADLEY ARANT BOULT
CUMMINGS, LLP, Birmingham, Alabama, for Appellant. Edward R.
Ryan, United States Attorney, Charlotte, North Carolina; David
A. Thorneloe, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Stephen Scott appeals his conviction and
144-month sentence imposed following his guilty plea to one
count of transmission of child pornography via a computer, in
violation of 18 U.S.C.A. § 2252(a)(1) (West Supp. 2010); twelve
counts of receiving child pornography, in violation of 18
U.S.C.A. § 2252(a)(2) (West Supp. 2010); and one count of
possession of materials containing visual depictions of a minor
engaging in sexually explicit conduct, in violation of 18
U.S.C.A. § 2252(a)(4)(B) (West Supp. 2010). Scott reserved his
right to appeal the district court’s denial of his motion to
suppress, and on appeal he challenges that denial, as well as
his sentence. For the following reasons, we affirm.
Scott first challenges the district court’s denial of
his motion to suppress. This court reviews the factual findings
underlying the district court’s denial of a motion to suppress
for clear error and the court’s legal conclusions de novo.
United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1104 (2010). A factual finding is clearly
erroneous if this court “on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008)
(internal quotation marks omitted). However, “if the district
court's account of the evidence is plausible in light of the
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record viewed in its entirety,” this court will not reverse the
district court's finding even if it would have “decided the
fact[s] differently.” United States v. Stevenson, 396 F.3d 538,
542 (4th Cir. 2005) (internal quotation marks and alteration
omitted). In other words, when two views of the evidence are
permissible, “the district court’s choice between them cannot be
clearly erroneous.” Id. (internal quotation marks and
alteration omitted). When a motion to suppress has been denied
by the district court, this court construes the evidence in the
light most favorable to the Government. United States v.
Farrior, 535 F.3d 210, 217 (4th Cir.), cert. denied, 129 S. Ct.
743 (2008).
While private searches ordinarily do not offend the
Fourth Amendment, when “a private individual acted as a
Government agent,” Fourth Amendment protections are implicated.
United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010); see
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
This court considers two primary factors in
determining whether a private search implicates the Fourth
Amendment: “(1) ‘whether the Government knew of and acquiesced
in the private’ individual’s challenged conduct; and
(2) ‘whether the private individual intended to assist law
enforcement or had some other independent motivation.’” Day,
591 F.3d at 683 (quoting United States v. Jarrett, 338 F.3d 339,
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344 (4th Cir. 2003)). The first factor requires “evidence of
more than mere knowledge and passive acquiescence by the
Government before finding an agency relationship.” Jarrett, 338
F.3d at 345. Scott bears the burden of proving the existence of
an agency relationship. Id. at 344.
Scott asserts that the Fourth Amendment was implicated
when a computer technician with whom Scott had left his computer
for repair opened the desktop file containing pornographic
images in an investigator’s presence. Our review of the record
leads us to agree with the district court that although the
investigator was present, there was no evidence that he directed
the technician to open the file. Thus, Scott fails to establish
an agency relationship. Accordingly, the district court
properly denied the motion to suppress.
Scott next challenges the substantive reasonableness
of his sentence. This court reviews a sentence for
reasonableness, using an abuse of discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007). In assessing
substantive reasonableness, we consider the totality of the
circumstances. Id.
Scott argues that the district court should have
disregarded U.S. Sentencing Guidelines Manual § 2G2.2(a)(2)
(2008) in determining his sentence. This argument fails. The
Supreme Court has made clear that “[a] district court should
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begin by correctly calculating the applicable Guidelines range,”
and use it as a “starting point and initial benchmark” in
sentencing. Gall, 552 U.S. at 49. After doing so in this case,
the district court chose to vary downward from that range,
having considered the sentencing factors and the arguments of
counsel. We conclude that the district court’s variance
sentence is substantively reasonable under the totality of the
circumstances.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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