Case: 13-15955 Date Filed: 09/02/2014 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15955
Non-Argument Calendar
________________________
D.C. Docket No. 0:13-cr-60166-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL MORALES COLON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 2, 2014)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
Case: 13-15955 Date Filed: 09/02/2014 Page: 2 of 9
PER CURIAM:
Miguel Morales Colon appeals his conviction and 240-month total sentence
for receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1),
and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and
(b)(2). Colon argues that the district court erred in denying his motion to suppress
statements he made to federal agents without receiving a Miranda1 warning during
an allegedly custodial interrogation. Colon also argues that his sentence is both
procedurally and substantively unreasonable. Upon review of the record and
consideration of the parties’ briefs, we affirm.
I.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir.
2014). “Whether [a defendant] was ‘in custody’ and entitled to Miranda warnings
is a mixed question of law and fact” as well. United States v. Moya, 74 F.3d 1117,
1119 (11th Cir. 1996). “[W]e review the district court’s factual findings . . . for
clear error and its legal conclusions de novo.” Id.
Colon argues that the inculpatory statements he made to federal agents
before they advised him of his constitutional rights as required by Miranda should
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
2
Case: 13-15955 Date Filed: 09/02/2014 Page: 3 of 9
have been suppressed. The Supreme Court in Miranda held that the Fifth
Amendment requires “the exclusion of incriminating statements obtained during
custodial interrogation unless the suspect fails to claim the Fifth Amendment
privilege after being suitably warned of his right to remain silent and of the
consequences of his failure to assert it.” Minnesota v. Murphy, 465 U.S. 420, 430,
104 S. Ct. 1136, 1143 (1984). Miranda does not apply, however, “outside the
context of the inherently coercive custodial interrogations for which it was
designed.” Id., 104 S. Ct. at 1144 (internal quotation marks omitted). Colon was
therefore entitled to a Miranda warning only if he was in custody at the time he
made the statements at issue.
We have explained that “although a reasonable person in the defendant’s
position may feel constrained not to leave . . . —and thus may be deemed to have
been ‘seized’ by law enforcement—he will not necessarily be considered in
‘custody’ for Fifth Amendment purposes.” United States v. Luna-Encinas, 603
F.3d 876, 881 (11th Cir. 2010). Rather, Miranda warnings are required only where
the totality of the circumstances shows that a reasonable person in the defendant’s
position “would have understood his freedom of action to have been curtailed to a
degree associated with formal arrest.” Id. (internal quotation marks omitted).
“The test is objective: the actual, subjective beliefs of the defendant and the
3
Case: 13-15955 Date Filed: 09/02/2014 Page: 4 of 9
interviewing officer on whether the defendant was free to leave are irrelevant.”
Moya, 74 F.3d at 1119.
Several factors guide the determination of whether an environment is
coercive enough to be custodial. For instance, “courts are much less likely to find
the circumstances custodial when the interrogation occurs in familiar or at least
neutral surroundings, such as the [defendant]’s home.” United States v. Brown,
441 F.3d 1330, 1348 (11th Cir. 2006) (alteration and internal quotation marks
omitted). Whether a defendant was “[u]nambiguously advis[ed] . . . that he [wa]s
free to leave and [wa]s not in custody” is another “powerful factor” that “generally
will lead to the conclusion that the defendant [wa]s not in custody.” Id. at 1347.
Other relevant factors include “whether the officers brandished weapons, touched
the suspect, or used language or a tone that indicated that compliance with the
officers could be compelled,” United States v. Street, 472 F.3d 1298, 1309 (11th
Cir. 2006) (internal quotation marks omitted), as well as whether the defendant
was physically restrained and the duration of the interview. See Luna-Encinas,
603 F.3d at 881; Brown, 441 F.3d at 1349.
Considering the totality of the circumstances, we conclude that Colon was
not in custody when he made the inculpatory statements in question. Colon was
interrogated in the familiar surroundings of his home. The district court found that
the federal agents told Colon at the outset of questioning that he was not under
4
Case: 13-15955 Date Filed: 09/02/2014 Page: 5 of 9
arrest and that he did not have to talk to them. The district court also found that the
agents spoke to Colon in a conversational manner and kept their weapons holstered
and that Colon was not handcuffed or otherwise physically restrained during the
interview. Further, the district court found that, although Colon was handcuffed
after the interview while being transported to the Federal Bureau of Investigation
(“FBI”) office for a polygraph test, he voluntarily agreed to go to the FBI office
and to be handcuffed during transport. Colon has not shown that these findings are
clearly erroneous,2 and they strongly support the district court’s conclusion that a
reasonable person in Colon’s position would not have felt that his freedom was
curtailed to a degree associated with formal arrest. See Brown, 441 F.3d at 1347–
49.
We therefore agree with the district court that Colon was questioned in a
non-custodial setting and, consequently, no Miranda warnings were required.
Accordingly, the district court properly denied Colon’s motion to suppress.
II.
2
The district court’s findings turn, in part, on the credibility of Colon and FBI Special
Agent Alexis Carpinteri, the only witnesses at the suppression hearing. The district court plainly
rejected Colon’s testimony that he was never told that he did not have to answer the agents’
questions. A district court’s credibility determination is entitled to great deference. See Brown,
441 F.3d at 1346–47. Accordingly, we will not disturb the district court’s credibility assessment
in this case, particularly because Colon has not clearly challenged the credibility assessment but
instead cites his own testimony as if the district court had believed him.
5
Case: 13-15955 Date Filed: 09/02/2014 Page: 6 of 9
We ordinarily review the reasonableness of a sentence for abuse of
discretion using a two-step process. See United States v. Cubero, 754 F.3d 888,
892 (11th Cir. 2014). “First, we look at whether the district court committed any
significant procedural error, such as miscalculating the advisory [G]uidelines range
. . . or failing to adequately explain the chosen sentence.” Id. “Then, we examine
whether the sentence is substantively unreasonable under the totality of the
circumstances and in light of the [18 U.S.C.] § 3553(a) factors.” Id. When a
defendant fails to object to an alleged sentencing error before the district court,
however, we review for plain error only. See United States v. Bonilla, 579 F.3d
1233, 1238 (11th Cir. 2009).
Colon first argues that his sentence is procedurally unreasonable because the
district court erred in failing to apply a two-level reduction under U.S.S.G.
§ 2G2.2(b)(1) for conduct limited to receipt or solicitation of child pornography.
Because he did not request this adjustment in the district court, our review is for
plain error. See id. Colon’s argument—that a defendant who used a peer-to-peer
file-sharing program to obtain child pornography and knowingly placed
pornography files in a “shared” folder accessible to the public, but who took no
“active” steps to distribute the files, is entitled to the two-level decrease described
in § 2G2.2(b)(1)—is squarely foreclosed by our recent decision in Cubero. 754
F.3d at 895–96 (holding that the district court did not err in failing apply
6
Case: 13-15955 Date Filed: 09/02/2014 Page: 7 of 9
§ 2G2.2(b)(1) where the defendant “used a peer-to-peer file-sharing network to
obtain hundreds of [child pornography] images, some of which he elected to make
available to other users” by placing the images in a shared folder). 3 Consequently,
the district court did not err, much less plainly err, in not giving Colon the two-
level reduction.
Colon next contends that his sentence is procedurally unreasonable because
the district court did not adequately explain its sentence. 4 Colon admits that a
sentencing judge typically need not give a lengthy explanation for imposing a
sentence within the Guidelines range. He argues, however, that the district court in
this case should be required to give more extensive reasons for rejecting his request
for a downward variance because the U.S. Sentencing Commission recently
released a report (the “2013 report”)5 concluding that the child pornography
Guidelines warrant revision. We rejected an identical argument in Cubero, 754
3
The fact that the defendant in Cubero was adjudicated guilty of knowingly distributing
child pornography, whereas Colon was adjudicated guilty of knowingly receiving child
pornography, does not alter our conclusion. At the sentencing hearing, the district court found
that Colon distributed child pornography, and Colon has not challenged that determination on
appeal. See United States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (explaining that issues
not raised in an appellant’s opening brief are deemed abandoned).
4
Colon incorrectly characterizes this argument as a substantive reasonableness argument.
The Supreme Court has indicated that whether the district court adequately explained the chosen
sentence is a procedural reasonableness argument. See Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007).
5
See U.S. Sentencing Comm’n, Report to Congress: Federal Child Pornography Offenses
(Dec. 2012).
7
Case: 13-15955 Date Filed: 09/02/2014 Page: 8 of 9
F.3d at 901 (holding that “the 2013 report does not heighten the district court’s
statutory duty to state the reasons for imposing a particular sentence”).
Additionally, the district court here gave a detailed explanation to support its
sentencing decision. The court explained that it believed Colon committed perjury
during trial when he denied telling the FBI that he downloaded the peer-to-peer
file-sharing network on his computer and when he denied telling the FBI that he
used the search term “PTHC” 6 to search for files on the network. The court then
stated that a downward variance was not appropriate because “it would [not]
promote respect for the law” to sentence Colon below the Guidelines range “when
[he] lie[d] at a trial” and that a sentence in the middle of the Guidelines range
would serve as a sufficient deterrent. We do not believe the law requires the
district court to state its reasons more extensively.
Finally, Colon argues that his sentence is substantively unreasonable
because it is greater than necessary to serve the sentencing purposes of 18 U.S.C.
§ 3553(a). Colon relies principally on the 2013 report’s finding that, in some cases
involving peer-to-peer file sharing, U.S.S.G. § 2G2.2 produces overly severe
sentencing ranges that may not be based on empirical evidence. Once again,
however, Colon’s argument is foreclosed by Cubero, where we held that “[w]hile a
district court may certainly consider the 2013 report in choosing the ultimate
6
“PTHC” is an abbreviation for “pre-teen hard core” pornography.
8
Case: 13-15955 Date Filed: 09/02/2014 Page: 9 of 9
sentence,” the court is not compelled by the report to vary from the § 2G2.2-based
range. 754 F.3d at 900. In other words, “the district court’s use of § 2G2.2 as an
advisory guideline does not[, without more,] render [the] sentence . . .
substantively unreasonable.” Id. Colon has not provided any reason, apart from
the 2013 report’s findings, that his within-Guidelines sentence is too severe.
Therefore, he has not met his burden to show that his sentence is substantively
unreasonable. Cf. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008) (stating that “[w]e ordinarily expect a sentence within the Guidelines range
to be reasonable, and the appellant has the burden of establishing the sentence is
unreasonable in light of the record and the § 3553(a) factors”).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
9