United States Court of Appeals
For the First Circuit
No. 06-2532
UNITED STATES OF AMERICA,
Appellee,
v.
ROY LEWIS ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Oberdorfer,* Senior District Judge.
Wayne R. Foote with whom Law Offices of Wayne R. Foote, PA was
on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for
appellee.
March 25, 2008
*
Of the District of Columbia, sitting by designation.
OBERDORFER, Senior District Judge. Roy Lewis Rogers appeals
his conviction and sentence for one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He
challenges the district court’s denial of his motion to suppress
evidence, arguing that the police exceeded the scope of their
search warrant authorizing them to search for “photos of [a minor
child]” when they seized and later viewed a videotape. He also
contends that pursuant to § 5G1.3(b) of the federal Sentencing
Guidelines, the district court should have ordered his entire
federal sentence of imprisonment to run concurrently to his
undischarged state sentence. Finding no error in the denial of
Rogers’ motion to suppress or at sentencing, we affirm.
I. BACKGROUND
A. Facts
In 2004, Detective James Skehan of the Houlton, Maine Police
Department began investigating Rogers’ relationship with a
fourteen-year-old child (“DW”), whose mother was a friend of
Rogers. Based on the information he learned during his
investigation, Skehan believed that Rogers had subjected DW to
unlawful sexual advances. Skehan also believed that Rogers had
communicated with DW via e-mail and that DW’s mother had given
Rogers several photos of DW.
On July 21, 2004, based on a lengthy affidavit summarizing his
investigation, Skehan requested a warrant to search Rogers’
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apartment. A state justice of the peace issued the warrant (the
“first search warrant”). Although Skehan had sought permission to
search for a variety of computer equipment and electronic-data-
storage devices, the issued warrant simply authorized a search for
a “Computer belonging to Roy Rogers. (Unk Brand, Color, Serial
Numbers etc). Also any photos of [DW].” Appendix (“App.”) at 26.
While executing the search warrant, the officers (including
Skehan) saw in Rogers’ bedroom two unlabeled videotapes lying on
the table next to his computer. Also on the table, about a foot
away from the videotapes, was a piece of paper with DW’s name on
it. The officers seized the videotapes and the computer. During
the search the officers saw, but did not seize, other videotapes,
a video camera, DVDs, computer floppy disks and other electronic-
data-storage devices.
After Skehan returned to the police station, he and an
Assistant District Attorney watched one of the videotapes. It
showed Rogers having sexual intercourse with a nine-year-old
relative (Child A) and also showed the child engaging in other
sexually explicit conduct at Rogers’ direction. Based on that
evidence, on July 22, 2004, Skehan sought and obtained a search
warrant (the “second search warrant”) to search Rogers’ apartment
for:
1. Video recorders, videotapes, cameras, photographs,
negatives, letters, and any recording media that could be
used to record sexual encounters, or to duplicate or
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transmit or distribute recordings of sexual encounters,
including but not limited to:
A) Any computers and electronic data storage or
retrieval devices found at the residence as
described in section 1, above;
B) Any computer records or data, whether in
electronic or printed form, that are evidence of
possession, ownership or control of the
property/items to be seized, or that are evidence
of the identity of any person(s) who possessed,
owned or controlled such property/items;
All of which are evidence of the crimes of Gross Sexual
Assault (17-A M.R.S.A. § 253), and which may also be
evidence of the crimes of Dissemination of Sexually
Explicit Materials (17 M.R.S.A. § 2923) and Sexual
Exploitation of a Minor (17 M.R.S.A. § 2922), or other
similar State or Federal Offense.
2. Bedding depicted in the video including a blue floral
comforter.
3. Clothing depicted in the video including blue,
po[l]kadotted underwear, slit on the sides.
App. 28-29. The police executed the second warrant immediately.
Later that same day, the police questioned Rogers. Confronted
with the contents of the videotape of Child A, he made several
incriminating statements, including that his computer contained
child pornography downloaded from the Internet. The police then
searched Rogers’ computer and the other seized items. They
discovered a videotape showing another minor child (Child B)
engaged in sexually explicit conduct with Rogers present and
recovered 57 images of child pornography from Rogers’ computer.
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B. Procedural History
On the basis of the above-described evidence, prosecutors
indicted and convicted Rogers in both state and federal court. We
describe the state proceedings only insofar as they are relevant to
the issues raised by the pending federal appeal.
1. State Indictment and Conviction
On September 9, 2004, the State of Maine indicted Rogers in a
six-count indictment, charging him with sexual offenses against
Child A, Child B and DW (identified as Child C). Pursuant to a
plea agreement, he pled guilty to, and was convicted of, four of
the six counts: (1) “gross sexual assault” in violation of 17-A
M.S.R.A. § 253(1)(B), based on his having engaged in a “sexual act”
with Child A, a minor under the age of 14 (Count 1); (2) two counts
of “sexual exploitation of a minor” in violation of 17 M.R.S.A. §
2922(1)(A) (now 17-A M.R.S.A. § 282), based on his having caused
Child A and Child B to engage in “sexually explicit conduct”
“knowing or intending that the conduct would be photographed”
(Counts 2 and 4); and (3) “sexual abuse of a minor” in violation of
17-A M.R.S.A. § 254(1)(A-2), based on his having engaged in a
“sexual act” with DW (Child C), a minor who was 14 or 15 and at
least 10 years younger than he (Count 6). The State dismissed the
remaining two counts.
On July 28, 2005, the state court sentenced Rogers as follows:
(1) for Count 1, 15 years imprisonment, with all but six years
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suspended, followed by four years of probation; (2) for Count 2,
nine years imprisonment, all suspended, with three years probation,
all to be served consecutively to Count 1; (3) for Court 4, 364
days imprisonment, to be served concurrently with Count 1; (4) and
for Count 6, 364 days imprisonment, to be served concurrently with
Count 1.
2. Federal Court Indictment and Conviction
On July 12, 2005, a few weeks before the state court imposed
its sentence, a federal grand jury indicted Rogers for one count of
possession of child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B). The indictment charged that “on or about July 22,
2004, in the District of Maine,” Rogers had “knowingly possessed a
computer that contained an image of child pornography, specifically
a computer graphic image the production of which involved the use
of a minor engaging in sexually explicit conduct, that had been
transported in interstate and foreign commerce, specifically by
computer via the Internet.”1 App. 31. The federal charge was
1
At that time, § 2252A(a)(5)(B) made it a crime to
knowingly possess any book, magazine, periodical, film,
videotape, computer disk, or any other material that
contains an image of child pornography that has been
mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer, or
that was produced using materials that have been mailed,
or shipped or transported in interstate or foreign
commerce by any means, including by computer.
18 U.S.C. § 2252A(a)(5)(B).
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based solely on Rogers’ possession of the images found on his
computer, not on his sexual abuse and exploitation of the three
minor children.
a. Federal Court Motion to Suppress
Rogers filed a motion to suppress all of the evidence
discovered after the issuance of the first search warrant – the
videotapes, the pornographic images discovered on his computer, and
his incriminating statements. He argued that the first search
warrant’s authorization to search for and seize “photos of DW”
encompassed solely developed print photographs and not images on a
videotape or on a computer. He further argued that because the
contents of the first videotape provided the basis for the second
search warrant, everything discovered and seized pursuant to the
second warrant should be suppressed as “fruit of the poisonous
tree.”
A magistrate judge recommended denying the motion to suppress.
She concluded that “searching the computer hard drive and the
videotape for photos of DW was well within the scope of the
warrant” because both were “plausible repositories” for “photos of
DW.” App. 12. She reasoned that “[g]iven the current state of
technology, looking at a computer’s hard drive to find photos is no
more inappropriate than opening a photo album” and that “[c]urrent
technology also permits ‘photos’ to be stored on homemade
videotapes.” Id. Over Rogers’ objection, the district court
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adopted the magistrate’s report and recommendation in its entirety.
App. 14-15.
b. Guilty Plea and Sentencing
On June 13, 2006, pursuant to a plea agreement, Rogers pled
guilty to one count of possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B). However, he reserved the right to
appeal the denial of his motion to suppress. See Fed. R. Crim. P.
11(a)(2).
At the sentencing hearing, applying the 2003 version of the
federal Sentencing Guidelines, the district court determined that
Rogers had an offense level of 30, a criminal history category of
I, and a sentencing guideline range of 97-120 months imprisonment.
The court imposed the maximum sentence of 120 months imprisonment,
but ordered that Rogers “receive credit for the state conduct used
to enhance his federal guideline range,” which the court
“determine[d] . . . to be 1 year, resulting in a sentence of 108
months, to be served consecutive to any undischarged term of
imprisonment being served with the State of Maine Docket CR04-98.”
App. 2.
At the sentencing hearing, Rogers had contended that under
Guideline § 5G1.3(b), his entire federal sentence should run
concurrently to his undischarged state sentence. See U.S.S.G. §
5G1.3(b) (2003). The district court disagreed, ruling that §
5G1.3(c), not § 5G1.3(b), applied to Rogers’ case. Exercising its
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discretion under § 5G1.3(c), it ordered that all but 12 months of
Rogers’ 120-month sentence run consecutively to his undischarged
state sentence.
II. DISCUSSION
On appeal, Rogers challenges the district court’s denial of
his motion to suppress and its refusal to order that his entire
federal sentence run concurrently under § 5G1.3(b) of the federal
Sentencing Guidelines.
A. Motion to Suppress
Rogers argues that the seizure and search of the videotape
exceeded the scope of the first search warrant because the
warrant’s reference to “photos of DW” should be read as limited to
developed print photographs. “In reviewing the district court’s
denial of a motion to suppress, ‘we accept the trial court’s
findings of fact unless they are clearly erroneous and subject its
conclusions of law to de novo review.’” United States v. Mousli,
511 F.3d 7, 11 (1st Cir. 2007) (quoting United States v. Coplin,
463 F.3d 96, 100 (1st Cir. 2006)). As there are no facts in
dispute, we review de novo the district court’s ruling that the
seizure and search of the videotape fell within the scope of the
first search warrant.
The Fourth Amendment prohibits the issuance of any warrant
except one “particularly describing the place to be searched, and
the persons or things to be seized.” U.S. Const. amend. IV. “Any
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search intruding upon [an individual’s] privacy interest must be
justified by probable cause and must satisfy the particularity
requirement, which limits the scope and intensity of the search.”
United States v. Bonner, 808 F.2d 864, 867 (1st Cir. 1986). “When
investigators fail to limit themselves to the particulars in the
warrant, both the particularity requirement and the probable cause
requirement are drained of all significance as restraining
mechanisms, and the warrant limitation becomes a practical
nullity.” See Mousli, 511 F.3d at 12 (internal quotations
omitted); see also United States v. Upham, 168 F.3d 532, 536 (1st
Cir. 1999) (“It is settled law that the search and seizure
conducted under a warrant must conform to the warrant.”).
Furthermore, “[a]s a general proposition, any container
situated within residential premises which are the subject of a
validly-issued warrant may be searched if it is reasonable to
believe that the container could conceal items of the kind
portrayed in the warrant.” United States v. Gray, 814 F.2d 49, 51
(1st Cir. 1987) (citing United States v. Ross, 456 U.S. 798, 820-21
(1982)); see also United States v. Giannetta, 909 F.2d 571, 577
(1st Cir. 1990); United States v. Doherty, 867 F.2d 47, 65-66 (1st
Cir. 1989). In determining whether it is reasonable to search a
particular container for an object, “search warrants and affidavits
should be considered in a common sense manner, and hypertechnical
readings should be avoided.” See Bonner, 808 F.2d at 868 (citing
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Spinelli v. United States, 393 U.S. 410, 419 (1969)); United States
v. Syphers, 426 F.3d 461, 465 (1st Cir. 2005); United States v.
Baldyga, 233 F.3d 674, 683 (1st Cir. 2000).
In the instant case, the critical question is whether it is
reasonable to believe that a videotape could contain “photos of
DW.” Rogers argues that the term “photos” – at least in this case
– clearly means “developed print photographs” and, therefore, that
it was not reasonable for the officers to search the videotape for
“photos of DW.” The government responds, echoing the magistrate
judge’s analysis, that given the current state of technology, the
term “photos” reasonably includes images captured on videotapes or
by a digital camera.
We are persuaded that the government’s argument must prevail.
As the magistrate judge pointed out, given the state of technology,
a videotape is a plausible repository for a photo. To adopt the
narrowest definition of “photos,” as Rogers proposes, would, we
believe, ignore our obligation to read the warrant and affidavit in
a common sense manner and avoid hypertechnical definitions. The
affidavit submitted in support of the warrant application stated
that DW’s mother “said that [Rogers] has several photos of [DW] at
his apartment” and that “he had asked her for copies of the ones
she had.” Gov’t Addendum at 1. Based on that information, the
warrant authorized the seizure of all “photos of DW.” Given these
facts, we conclude that it is reasonable to believe that in the
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circumstances here the two seized videotapes could contain “photos
of DW.” Accordingly, the seizure and subsequent search of the
videotape did not exceed the scope of the first search warrant. It
follows (and Rogers does not argue to the contrary) that there is
no basis for suppressing any of the evidence discovered thereafter.
Accordingly, we conclude that the district court did not err in
denying Rogers’ motion to suppress the videotape.
The district court also ruled that the first search warrant
authorized a search of the computer for images. However, in fact,
the search of the computer for images did not occur until after the
officers obtained the second search warrant. It clearly authorized
such a search. Therefore, we need not decide whether the first
search warrant alone would have permitted a search of a computer's
image files.
B. Application of Sentencing Guidelines § 5G1.3(b)
On appeal, Rogers argues that the district court erred in
refusing to apply Guideline § 5G1.3(b) and order that his entire
federal sentence run concurrently to his undischarged state
sentence.
“In a case in which a defendant is subject to an undischarged
term of imprisonment, the court generally has authority to impose
an imprisonment sentence on the current offense to run concurrently
with or consecutively to the prior undischarged term.” U.S.S.G. §
5G1.3, cmt. background (citing 18 U.S.C. § 3584(a)); see United
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States v. Caldwell, 358 F.3d 138, 143 (1st Cir. 2004). “Exercise
of that authority, however, is predicated on the court’s
consideration of the factors listed in 18 U.S.C. § 3553(a),
including any applicable guidelines or policy statements issued by
the Sentencing Commission.” U.S.S.G. § 5G1.3, cmt. background;
see 18 U.S.C. § 3584(b); Caldwell, 358 F.3d at 143.
Section 5G1.3 of the Guidelines addresses the “Imposition of
a Sentence on a Defendant Subject to an Undischarged Term of
Imprisonment.” U.S.S.G. § 5G1.3. Part (a) specifies when
consecutive sentences are required; part (b) specifies when
concurrent sentences are required; and part (c) covers “any other
case” and gives the district court the discretion to impose
sentence concurrently, partially concurrently or consecutively, “to
achieve a reasonable punishment for the instant offense.” Id. §
5G1.3(a)-(c).
Rogers argues on appeal, as he did before the district court,
that his case is covered by § 5G1.3(b), which, in the 2003 version
of the Guidelines, provided:
If . . . a term of imprisonment resulted from another
offense that is relevant conduct to the instant offense
of conviction under the provisions of subsections (a)(1),
(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that
was the basis for an increase in the offense level for
the instant offense under Chapter Two (Offense Conduct)
or Chapter Three (Adjustments), the sentence for the
instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for
any period of imprisonment already served on
the undischarged term of imprisonment if the
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court determines that such period of
imprisonment will not be credited to the
federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall
be imposed to run concurrently to the
remainder of the undischarged term of
imprisonment.
“Thus, § 5G1.3(b) provides for an adjustment in sentence only where
the undischarged sentence was (1) for a crime that constitutes
relevant conduct for the instant offense and (2) was the basis for
an increase in the offense level for the instant offense under
Chapters Two or Three of the Guidelines.” See United States v.
Lino, 493 F.3d 41, 44 (2007).
We begin, therefore, with an examination of how Rogers’ state
offenses impacted the determination of his guideline offense level.
Determining Rogers’ offense level was a multi-step process. First,
under the 2003 Guidelines, § 2G2.4 provided the base offense level
for a violation of 18 U.S.C. § 2252A(a)(5)(B). U.S.S.G. § 2G2.4
(2003). However, § 2G2.4(c)(1) provided that “[i]f the offense
involved causing . . . a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such
conduct,” § 2G2.1 applies. Id. § 2G2.4(c)(1). Under the
Guidelines, a defendant’s “offense conduct” includes both the
conduct underlying the specific federal charges – here, the 57
pornographic images on Rogers’ computer – and all “relevant
conduct.” Id. § 1B1.3. In Rogers’ case, the district court
treated his possession of the videotapes of Child A and Child B as
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“relevant conduct.” Because the videotapes satisfied the
requirements of § 2G2.4(c)(1), the district court looked to § 2G2.1
to determine Rogers’ offense level. In the 2003 Guidelines, §
2G2.1 had a base offense level of 27. Applying a four-level
increase because “the offense involved a victim who had . . . not
attained the age of twelve years,” id. § 2G2.1(b)(1)(A), a
two-level increase because “the defendant was a . . . relative . .
. of the minor involved in the offense,” id. § 2G2.1(b)(2), and a
three-level decrease for acceptance of responsibility, id. § 3E1.1,
resulted in Rogers’s total offense level of 30.
Rogers contends that because the “videotapes” were treated as
“relevant conduct,” his case falls under § 5G1.3(b). However, §
5G1.3(b) requires both that the other offense be “relevant conduct”
and that it “was a basis for an increase in the offense level for
the instant offense.” U.S.S.G. § 5G1.3(b). Here, the only state
offenses that were considered “relevant conduct” and affected
Rogers’ federal offense level were his convictions for sexual
exploitation of a minor (Counts 2 and 4). Those convictions were
based on the fact that he videotaped Child A and Child B engaging
in sexually explicit conduct, precisely the same conduct that
resulted in the cross-reference to § 2G2.1, and the final offense
level of 30. Rogers’ offenses of gross sexual assault of Child A
(Count 1) and sexual abuse of Child C (Count 6) were not considered
“relevant conduct,” and, even if they had been, did not impact the
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determination of Rogers’ federal offense level. Accordingly, the
district court did not err in concluding that § 5G1.3(b) did not
apply.
Having rejected the application of § 5G1.3(b), the district
court applied § 5G1.3(c). Section 5G1.3(c) provides:
(Policy Statement) In any other case involving an
undischarged term of imprisonment, the sentence for the
instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense.
U.S.S.G. § 5G1.3(c). The application notes to subsection (c)
provide that in a “complex case” where the defendant is “subject to
multiple undischarged terms of imprisonment that seemingly call for
the application of different rules,” the court is to “exercise its
discretion in accordance with subsection (c) to fashion a sentence
of appropriate length and structure it to run in any appropriate
manner to achieve a reasonable punishment for the instant offense.”
U.S.S.G. § 5G.3, cmt. n.3 (2003). That is precisely what the
district court here did, giving Rogers 1 year of credit for time
served on the state offenses that affected his federal offense
level, but ordering that the remaining 108 months be served
consecutively to his undischarged state sentence. Indeed, Rogers
concedes that if the district court did not err in not applying §
5G1.3(b), his sentence comports with the Guidelines.
Accordingly, we find no error in Rogers’ sentence.
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III. CONCLUSION
For the reasons stated in the foregoing opinion, we affirm.
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