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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13109
________________________
D.C. Docket No. 8:12-cr-00457-SCB-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNOLD MAURICE MATHIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 24, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Arnold Maurice Mathis, a registered sex offender, enticed a minor to engage
in sexual activity in 2004. Seven years later, in 2011, he attempted to convince a
minor to take sexually explicit pictures and send them to him via text message, and
he actually succeeded in convincing a different minor to do so. Based on this
conduct, a jury convicted Mathis of several child exploitation offenses and the
district court sentenced him to a 480-month total term of imprisonment. On
appeal, Mathis raises numerous challenges to his convictions and sentences, which
we address in turn. After a thorough review of the record and consideration of the
parties’ briefs, and with the benefit of oral argument, we affirm Mathis’s
convictions and sentences. However, we remand to the district court for the
limited purpose of correcting a scrivener’s error in the judgment.
I. BACKGROUND
A. Mathis’s Sexual Abuse of Jarvis J. and Subsequent Arrest
In 2004, Mathis, who was approximately 34 years old, approached Jarvis J.
after a high school basketball game. Jarvis was 14 years old at the time. Mathis
introduced himself as Pastor Maurice and gave Jarvis approximately $20 to
purchase items at the concession stand. Mathis also told Jarvis that he was willing
to act as a father figure or mentor and that he could assist Jarvis financially by
helping him purchase shoes and clothes. Mathis gave Jarvis his cell phone number
and told Jarvis to call him the next day.
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At some point the following week, Jarvis met Mathis and Mathis gave him a
pair of shoes, a shirt, and $100 to purchase a prepaid cell phone. Jarvis
subsequently purchased a cell phone, phone card, and minutes for the phone.
Jarvis used the phone to talk to Mathis, and the two met a few days after Jarvis
bought the phone. On that occasion, after going to a fast food restaurant, Mathis
took Jarvis to Mathis’s house where Mathis eventually goaded Jarvis into showing
him his penis. Mathis then performed oral sex on Jarvis. Mathis told Jarvis not to
tell anyone about the encounter and promised that he would give Jarvis money and
take care of him. Mathis took Jarvis to an ATM and gave him money.
Following the incident at Mathis’s house, Jarvis used his cell phone to talk
to Mathis on a daily basis. During his conversations with Jarvis, Mathis became
more explicit and told Jarvis that he wanted to engage in sexual conduct with him.
Mathis eventually met Jarvis again and, after having a meal, Mathis took Jarvis to
Mathis’s house. Mathis performed oral sex on Jarvis and instructed him to
perform anal sex on Mathis. Jarvis complied with Mathis’s instructions.
Sometime thereafter, Mathis talked to Jarvis on the phone about traveling to
Orlando to go bowling. When Mathis arrived to pick up Jarvis, Jarvis observed
another man in the car with Mathis as well as a boy around Jarvis’s own age. The
group drove to Orlando, but instead of going bowling, they went to a diner and
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then a hotel. At the hotel, Mathis performed oral sex on Jarvis and had Jarvis
perform anal sex on him while the other boy performed anal sex on the other man.
Subsequently, Mathis took Jarvis to a townhouse in Lakeland and tried to
perform oral sex on him, but Jarvis resisted. Jarvis did not tell anyone about his
experiences with Mathis until December 2011, nearly seven years later. At that
time, Jarvis ran into the other man who had gone with him and Mathis to Orlando.
After arguing with the man in a store, Jarvis talked to his pastor and then went to
the Polk County Sheriff’s Office. At the sheriff’s office, Jarvis told Sergeant
James Evans and Detective Zoe Vizcarrondo about his experiences with Mathis.
Detective Vizcarrondo asked Jarvis to make a recorded phone call to Mathis.
During the call, Mathis acknowledged that he had engaged in sexual conduct with
Jarvis.
A few hours after Jarvis’s recorded call with Mathis, law enforcement
officers arrested Mathis. During the arrest, officers seized Mathis’s cell phone,
which was a Sprint smartphone.
B. The Search of Mathis’s Smartphone
After Mathis was arrested, Detective Vizcarrondo obtained a search warrant
for the contents of his cell phone. In support of her application for a search
warrant, Detective Vizcarrondo submitted an affidavit which provided in pertinent
part that the victim in the case, Jarvis, was 21 years old and that when he was
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between the ages of 14 and 15, Mathis sexually abused him. The affidavit
explained that, according to Jarvis, Mathis continuously called him from Mathis’s
cell phone and that Mathis would also communicate with him via text message.
Detective Vizcarrondo stated that Mathis had maintained the same phone number
since the time of the crimes, and that a forensic examination of the phone would
reveal a log of the recorded phone call between Jarvis and Mathis. In addition,
Detective Vizcarrondo averred that, based on her knowledge, experience, and
training in child sexual abuse investigations,
[T]here are certain characteristics common to many individuals
involved in the communication made between the suspect and victim
of such investigations. These suspects sometimes possess and
maintain “soft copies” of such communication in the privacy and
security of their personal cell phones and retain these items for many
years. They often conceal such correspondence and often maintain
lists of names, addresses, and telephone numbers of individuals with
whom they have been in contact with and who share the same
interests in encounters, sexual in nature, with children.
Glenn Hayes, a computer forensics examiner with the Polk County Sheriff’s
Office, initially examined Mathis’s cell phone on December 22, 2011. During the
initial examination of Mathis’s phone, Hayes was able to retrieve contact lists,
phone logs, and text messages, but could not retrieve multimedia messages—i.e.,
text messages to which a file was attached. Hayes examined the phone a second
time on August 1, 2012. During the second examination, Hayes was able to
retrieve all of the same data as before in addition to multimedia messages. Based
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on information obtained from Mathis’s cell phone, law enforcement officers
believed that he had either persuaded or attempted to persuade two other minors—
Jerel A. and Harold J.—to send him sexually explicit pictures of themselves.
C. The Indictment
A grand jury returned a second superseding indictment charging Mathis with
(1) knowingly employing, using, persuading, inducing, enticing, and coercing
Jerel A., a minor, to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct, and attempting to do so, in violation
of 18 U.S.C. § 2251(a) (Count One); (2) knowingly attempting to employ, use,
persuade, induce, entice and coerce Harold J., a minor, to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct, in
violation of 18 U.S.C. § 2251(a) (Count Two); (3) knowingly persuading,
inducing, and enticing Jarvis J., a minor, to engage in sexual activity, and
attempting to do so, in violation of 18 U.S.C. § 2422(b) (Count Three); and
(4) committing the offenses in Counts One through Three while he was required to
register as a sex offender under the laws of Florida, in violation of 18 U.S.C.
§ 2260A (Count Four).
D. Mathis’s Motion to Suppress
Prior to trial, Mathis moved to suppress the evidence obtained from the
search of his cell phone. Mathis argued Detective Vizcarrondo’s affidavit in
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support of the search warrant was misleading because it indicated Mathis used his
cell phone to commit crimes against Jarvis J., even though the events giving rise to
the charge occurred in 2004, when Mathis had a different cell phone. Mathis
further maintained the search warrant was not supported by probable cause to
believe evidence of an offense committed seven years prior to the search would be
found on Mathis’s current smartphone; that the information on which the warrant
was based was stale; and that once law enforcement officials determined the
smartphone did not contain text messages from before 2011, any further search
exceeded the scope of the warrant.
At a suppression hearing held before a magistrate judge, Sergeant Evans
testified that when he spoke with Jarvis J. at the Polk County Sheriff’s Office in
December 2011, Jarvis stated that, in 2004 and 2005, Mathis would communicate
with him on the phone, in person, and via text message. Sergeant Evans stated that
he knew Mathis did not have the same cell phone in 2011 as he did in 2004.
Nevertheless, based on his training and experience, Sergeant Evans believed
evidence of a crime committed in 2004 could be present on a cell phone in 2011.
For instance, the phone could contain soft copies of information, digital images
and media could be placed on a phone from an external source, and digital media
could be transferred from one phone to another with a media card. Sergeant Evans
further testified that, in his experience, individuals who sexually abuse minors
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generally maintain soft copies of evidence on their cell phones. Sergeant Evans
acknowledged there was no indication that Mathis took photographs of Jarvis with
his cell phone or that any text messages between Mathis and Jarvis were sexual in
nature.
Adam Sharp, an expert in data recovery and the forensic analysis of
computers and cell phones, testified it was highly improbable that text messages
sent from a phone in 2004 would be present on a smartphone in 2011. Sharp
explained that cell phones in 2004 could hold approximately one hundred text
messages and that once the phone’s capacity was reached, old text messages would
be cleared when new text messages were received. Furthermore, it was not
generally possible to transfer information from one cell phone to another if an
individual changed cell phone carriers. In addition, data was stored differently in
2004 than in 2011, and various other factors would have made it improbable that a
text message from a cell phone in 2004 would be transferred to subsequent cell
phones.
The magistrate judge issued a report and recommendation (R&R),
concluding Mathis’s motion to suppress should be denied because Detective
Vizcarrondo did not recklessly mislead the state court judge who issued the search
warrant, and because law enforcement acted in good faith reliance on the warrant
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when searching Mathis’s cell phone. Over Mathis’s objections, the district court
adopted the magistrate judge’s R&R and denied the motion to suppress.
E. The Trial
At trial, Jarvis J. testified and recounted his interactions with Mathis in
detail. In addition, the Government introduced a copy of Mathis’s 1995 judgment
from the Circuit Court for Leon County, which showed that he entered a plea of
nolo contendere to lewd and lascivious assault on a child, in violation of § 800.04
of the Florida Statutes. The Government also introduced a judgment from
February 21, 1997, establishing that Mathis was sentenced to 48 months’
imprisonment for violating his probation on his § 800.04 offense.
While Hayes was testifying at trial, Mathis renewed his motion to suppress,
arguing for the first time that the second search of his cell phone in August 2012
was not authorized by the search warrant. In response, the Government elicited
testimony from Hayes, who explained that during the December 2011 examination,
the device he used to remove information from Mathis’s cell phone was not able to
extract multimedia messages from the phone. However, the device was
subsequently updated numerous times before Hayes examined the phone again in
August 2012. After the device was updated, Hayes was able to retrieve everything
from Mathis’s phone, including multimedia messages. The district court denied
the renewed motion to suppress. The court explained that law enforcement officers
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had not acted in bad faith in waiting approximately eight months before searching
the phone a second time and, regardless, Mathis was not prejudiced by the delay.
During the third day of trial, the Assistant United States Attorney (AUSA)
advised the district court that earlier that morning she was in the elevator with
Sergeant Evans when a juror stepped into the elevator as the doors were closing.
Before the AUSA noticed the juror, the AUSA told Sergeant Evans that she had
been at work until 2:00 a.m., to which Sergeant Evans responded, “[t]hat sucks.”
Michelle Gonzalez, a special agent with the Federal Bureau of Investigation
(FBI), testified that, based on their birth certificates, Jerel A. and Harold J. turned
16 years old in 2011, and that Jarvis J. was 14 years old in 2004.
Rashaad J. testified that he was friends with Harold J. Rashaad first met
Mathis in the summer of 2011, when Rashaad was 17 years old. Rashaad met
Mathis through Harold. Rashaad testified he took three pictures of Harold shirtless
for Harold to send to Mathis, and that he saw Harold send one of the pictures to
Mathis. Rashaad also saw Harold send a pornographic picture to Mathis that he
got from the Internet.
At the beginning of the fourth day of trial, the AUSA informed the district
court that while Agent Gonzalez was at a coffee shop, a juror possibly overheard
the special agent say “they need to get him” during a conversation on her cell
phone. The district court indicated it did not think there was a problem.
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Harold J. was called as a witness. He testified that he first met Mathis after
a basketball game. Mathis told Harold that he wanted to get to know him and then
began sending Harold text messages. Mathis indicated he was trying to act like a
father figure and told Harold to let him know if he needed anything. For instance,
on May 24, 2011, Mathis sent Harold a text message saying “I’m good people I
promise you can trust me even if you do things wrong” as well as a message
stating in part, “[w]hen I meet you I saw something about you and took interest in
you . . . . Let’s keep in touch so I can do things for you.” Mathis also sent Harold a
text message on May 24, 2011, stating “[l]et me help you. No one will know what
I’m doing unless you tell them. This coming from my heart cause I see good in
you. . . . You will have money in your pocket and lots of nice cloth[e]s and shoes
for next year.”
On May 31, 2011, in response to a text message from Mathis, Harold sent
Mathis a text message stating he was 15 years old. Mathis continued sending text
messages to Harold encouraging Harold to trust him and professing that he had
strong feelings for Harold. On several occasions, Mathis asked Harold to send him
pictures, and Harold complied by sending pictures of himself in athletic wear and
casual clothing. Mathis also sent Harold text messages asking Harold about his
sexual activity and discussing Harold’s physique.
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On July 16, 2011, Mathis sent Harold a text message asking Harold to send
him a picture of himself shirtless. Harold ignored the text message and Mathis sent
Harold text messages several days later again asking for pictures of Harold without
a shirt. Harold ultimately sent Mathis three pictures of himself in which he was
not wearing a shirt. Mathis subsequently sent Harold text messages asking Harold
to send him pictures of his genitalia. In response, Harold sent Mathis pictures of
male genitalia he obtained from the Internet. After Harold sent one of the pictures,
Mathis sent Harold text messages asking Harold to let him see and touch Harold’s
genitalia.
Gary Scevola, a senior investigator with the U.S. Marshal Service, testified
that he obtained certified copies of Mathis’s sex offender registration forms from
the Florida Department of Law Enforcement, and the Government introduced the
forms into evidence.
After Scevola testified, the Government recalled Agent Gonzalez. Agent
Gonzalez testified that as part of her investigation she reviewed text messages
between Mathis and Jerel A. After Mathis objected to the introduction of Jerel’s
text messages as impermissible hearsay, the district court instructed the jurors that
they could not consider Jerel’s text messages for the truth of the matter asserted.
The court further instructed the jurors that they could nevertheless consider
Mathis’s text messages for the truth of the matter asserted. Mathis also objected to
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the introduction of the text messages on Confrontation Clause grounds. Over
Mathis’s objections, Agent Gonzalez testified that on May 2, 2011, Jerel sent a text
message to Mathis stating “[h]ey this jerel..this my number,” to which Mathis
replied, “[o]k did you have enough money” and “[o]k well you will get some more.
Also text me tonite when you by yourself want to talk to you, and know I care
about you.” Mathis then sent Jerel text messages expressing affection and
promising to provide for him, as well as messages asking Jerel to send him
pictures. Jerel complied and sent Mathis several pictures of himself. Mathis also
repeatedly sent Jerel text messages discussing the size of Jerel’s genitalia and
Jerel’s sexual activity. Mathis sent Jerel text messages asking Jerel to trust him,
such as the following message on May 8, 2011: “Jerel you got it real good and
don’t realize it. You need to let your guards down and let me be close to you.”
Eventually, Mathis sent Jerel text messages asking him for pictures of his
genitalia. On June 29, 2011, Jerel sent Mathis a text message containing a picture
of his genitalia. Mathis responded by sending Jerel text messages asking to touch
Jerel’s genitalia. On September 11, 2011, Mathis again sent text messages to Jerel
asking for pictures of Jerel’s genitalia. In response, Jerel sent Mathis a text
message containing a picture of his genitalia. On cross-examination, Agent
Gonzalez acknowledged that Jerel had been present in the courthouse the previous
day.
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After the Government rested its case-in-chief, Mathis moved for a judgment
of acquittal, which the district court denied. Mathis then introduced two exhibits
into evidence and rested his case without renewing his motion for a judgment of
acquittal. Mathis did not testify.
On the fifth and final day of trial, the district court instructed the jury and
then the parties delivered their closing arguments. During the Government’s
closing argument, the AUSA stated “[i]n 2004 the defendant was 34. Jarvis J. was
14. Jarvis J. told you the defendant, Pastor Maurice, molested him and he
assaulted him. It’s a violation of Florida law. The same statute as defendant’s
1995 conviction.” Mathis objected to the statement and moved for a mistrial. The
district court denied the motion but offered to instruct the jury regarding the
AUSA’s statement. Mathis declined to ask for an instruction.
When the proceedings resumed following a break between the parties’
closing arguments, defense counsel informed the court that, during the break,
Mathis’s aunt overheard one juror say to another juror, “oh, I just love her.” The
district court stated it did not know to whom or what the comment was referring
and that a cautionary instruction was not warranted. The jury ultimately convicted
Mathis on each count.
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F. The Presentence Investigation Report
In preparing Mathis’s Presentence Investigation Report (PSI), the probation
officer calculated a combined adjusted offense level of 41 as to Counts One
through Three, based in part on a two-level enhancement under U.S.S.G.
§ 2G2.1(b)(6) for Mathis’s use of a computer or interactive computer service to
persuade, induce, entice, coerce, or facilitate the travel of a minor to engage in
sexually explicit conduct. Mathis had a criminal history category of V pursuant to
U.S.S.G. § 4B1.5(a)(2) because he had sustained a prior conviction for a sex
offense. Based on his combined adjusted offense level of 41 and criminal history
category of V, Mathis’s advisory guidelines range on Counts One through Three
was 360 months to life imprisonment, with a consecutive 10-year statutory
mandatory minimum term of imprisonment on Count Four. Mathis was also
subject to statutorily enhanced penalties on Counts One and Two under 18 U.S.C.
§ 2251(e) based on his 1995 conviction. Mathis objected to the PSI’s factual
allegations as well as the enhancements under U.S.S.G. § 2G2.1(b)(6) and 18
U.S.C. § 2251(e).
G. The Sentencing Hearing
During his sentencing hearing, Mathis reiterated his objection to the
§ 2G2.1(b)(6) enhancement, arguing that he did not use “the computer
components” of his smartphone in committing the offenses in Counts One and
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Two, in which he was charged with persuading Jerel A. and attempting to persuade
Harold J. to produce child pornography. Instead, Mathis simply sent text messages
and requested pictures, which he could have done with a basic cell phone. The
district court overruled the objection and found the two-level enhancement applied
because Mathis used a smartphone which had Internet and email capabilities and,
further, Mathis sent and received multimedia messages.
Relying on Alleyne v. United States, 133 S. Ct. 2151 (2013), Mathis objected
to his sentence being enhanced based on the facts underlying his prior conviction.
Mathis also objected to the statutory enhancements under 18 U.S.C. § 2251(e),
contending that his 1995 conviction was not a qualifying predicate offense because
the statute under which he was convicted did not require contact as an element of
the offense. The district court overruled the objection, finding that the § 2251(e)
enhancements applied because the statute was not limited to prior convictions
involving sexual contact. After ruling on various other objections, the district
court calculated that Mathis had a total offense level of 41 and criminal history
category of V, yielding a guidelines range of 360 months to life imprisonment,
with a mandatory consecutive 10-year sentence on Count Four. The district court
sentenced Mathis to 480 months’ imprisonment, comprised of concurrent terms of
360 months’ imprisonment on Counts One, Two, and Three, and a consecutive
120-month term of imprisonment on Count Four. This appeal followed.
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II. DISCUSSION
Mathis raises a host of issues on appeal related to his trial, convictions, and
total sentence. Specifically, Mathis contends that (1) the district court erred by
denying his motion to suppress and renewed motion to suppress; (2) the
introduction of Jerel A.’s text messages at trial violated his Confrontation Clause
rights; (3) insufficient evidence supported each of his convictions; (4) the district
court erred by denying his motion for a mistrial based on the AUSA’s statements
during closing argument; (5) the district court should have interrogated the jurors
or given them an instruction following the two instances of inadvertent juror
contact and after Mathis’s aunt overheard a comment between two jurors; (6) the
cumulative effect of the alleged trial errors warrants reversal; (7) the district court
erred in applying a two-level sentencing enhancement under U.S.S.G.
§ 2G2.1(b)(6); 1 and (8) the district court erred by enhancing his sentences pursuant
to 18 U.S.C. § 2251(e). We conclude none of the issues raised by Mathis have
merit, and we therefore affirm his convictions and sentences.
A. Motions to Suppress
Mathis contends the search of his phone violated his Fourth Amendment
rights because the affidavit submitted in support of the search warrant was
1
Mathis also argued in his initial brief that the district court erred by applying an
enhancement under U.S.S.G. § 2G2.1(b)(3), but he explicitly abandoned that argument in his
reply brief and we do not address it.
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misleading and thus the warrant was not obtained in good faith. He also argues the
second examination of his phone exceeded the scope and timeframe of the search
warrant.
In considering the district court’s denial of a motion to suppress, we review
the district court’s factual findings for clear error, construing the facts in the light
most favorable to the prevailing party, but review the district court’s application of
law to the facts de novo. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir.
2014). We also review de novo “whether a search warrant affidavit established
probable cause” and we “give due weight to inferences drawn from [the] facts by
resident judges and local law enforcement officers.” United States v. Bush, 727
F.3d 1308, 1315 n.3 (11th Cir. 2013) (internal quotation marks omitted).
1. The Search Warrant
Mathis argues the affidavit Detective Vizcarrondo submitted in support of
her application for a search warrant was misleading because (1) the affidavit did
not explicitly state that Mathis’s cell phone was a 2011 smartphone and was not
the same phone Mathis used in 2004, and (2) the affidavit failed to state that Jarvis
never alleged his phone and text message conversations with Mathis were sexual in
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nature. Mathis further maintains it was improbable that evidence of a crime
committed in 2004 would be present on a cell phone in 2011. 2
Mathis’s arguments are unavailing. It is well established that affidavits
submitted in support of search warrants are presumptively valid. Franks v.
Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978) (“There is, of course, a
presumption of validity with respect to the affidavit supporting the search
warrant.”); United States v. Lebowitz, 676 F.3d 1000, 1010 (11th Cir. 2012)
(“Affidavits supporting warrants are presumptively valid.”). Thus, “intentional or
reckless omissions will invalidate a warrant only if inclusion of the omitted facts
would have prevented a finding of probable cause.” Lebowitz, 676 F.3d at 1010
(internal quotation marks and alteration omitted).
Inclusion of the omitted facts would not have prevented a finding of
probable cause. 3 Even if the affidavit had stated that Mathis possessed a different
2
At oral argument, counsel argued the information contained in the affidavit was stale.
As counsel noted, she made passing reference to that argument in her opening brief when she
stated “the application was overly-broad in an apparent attempt to avoid the appearance of
staleness and in order to attempt to obtain evidence of other crimes unrelated to J.J.’s
allegations.” That terse statement did not sufficiently raise the issue. See United States v. King,
751 F.3d 1268, 1277 (11th Cir. 2014); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“We have long held that an appellant abandons a claim when he either makes
only passing references to it or raises it in a perfunctory manner without supporting arguments
and authority.”). Even if we were to consider the argument, it lacks merit. The affidavit was
based on information from Jarvis’s recorded phone call to Mathis in December 2011.
3
It is well settled that “[c]ourts reviewing the legitimacy of search warrants should not
interpret supporting affidavits in a hypertechnical manner; rather, a realistic and commonsense
approach should be employed.” United States v. Miller, 24 F.3d 1357, 1361 (11th Cir. 1994).
Having employed a commonsense approach in reviewing the search warrant in this case, we
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phone in 2011 than the phone he used to contact Jarvis in 2004, and that Jarvis
never claimed his cell phone and text message communications with Mathis were
sexual in nature, the affidavit provided probable cause sufficient to support the
issuance of a warrant. See United States v. Gibson, 708 F.3d 1256, 1278 (11th Cir.
2013) (“To obtain a warrant, police must establish probable cause to conclude that
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” (internal quotation marks omitted)). We have explained that “an
affidavit should establish a connection between the defendant and the property to
be searched and a link between the property and any criminal activity.” Id.
(internal quotation marks and brackets omitted).
Detective Vizcarrondo’s affidavit established a connection between Mathis
and the phone to be searched. The affidavit explained that Jarvis made a recorded
phone call to Mathis’s phone number on December 17, 2011, that Mathis did not
maintain a home phone and appeared to exclusively use his cell phone to
communicate with others, and that Mathis had maintained the same phone number
since 2004.
The affidavit also established a connection between Mathis’s cell phone and
criminal activity. Specifically, the affidavit explained Jarvis had told law
conclude Detective Vizcarrondo did not intentionally or recklessly omit information from the
affidavit she submitted to the state court judge who issued the warrant.
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enforcement officers that, during the period in time when Mathis sexually abused
him, Mathis continuously called him from Mathis’s cell phone and that the two
would communicate via text messages. Contrary to Mathis’s contentions, the fact
that Mathis may not have made sexually explicit comments to Jarvis on the phone
or in text messages did not mean evidence of wrongdoing would not be found on
his phone. See United States v. Tinkle, 655 F.2d 617, 621 (5th Cir. Unit A Sept.
1981) (“The currency of probable cause is probability, not legal certainty; it may
exist even though the evidence before the officer is insufficient to convict.”). 4 As
the Supreme Court has stated, “innocent behavior frequently will provide the basis
for a showing of probable cause,” and the relevant inquiry in making a
determination of probable cause “is not whether particular conduct is ‘innocent’ or
‘guilty,’ but the degree of suspicion that attaches to particular types of
non-criminal acts.” Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317,
2335 n.13 (1983). The affidavit, moreover, explained that, based on her
knowledge, experience, and training, Detective Vizcarrondo knew that individuals
who sexually abuse children sometimes maintain copies of communications with
their victims “in the privacy and security of their personal cell phones and retain
these items for many years.” See Riley v. California, 573 U.S. __, __, 134 S. Ct.
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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2473, 2492 (2014) (“In the cell phone context . . . it is reasonable to expect that
incriminating information will be found on a phone regardless of when the crime
occurred.”).
Alternatively, even if the search warrant was not supported by probable
cause, evidence obtained from the search of Mathis’s phone was not subject to
suppression under the good faith exception to the exclusionary rule. See United
States v. Martin, 297 F.3d 1308, 1313 (11th Cir. 2002) (explaining that “United
States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420 (1984), stands for the
principle that courts generally should not render inadmissible evidence obtained by
police officers acting in reasonable reliance upon a search warrant that is
ultimately found to be unsupported by probable cause”).5 The record contains no
indication Detective Vizcarrondo was dishonest or reckless in preparing her
affidavit or that she could not have harbored an objectively reasonable belief in the
existence of probable cause. Because the officers engaged in “objectively
reasonable law enforcement activity and . . . acted in good faith when obtaining
5
Mathis does not argue in his initial brief that any exception to the good faith rule applies
in this case. He does not contend that (1) Detective Vizcarrondo included information in the
affidavit that she knew was false or would have known was false except for her reckless
disregard for the truth; (2) the issuing judge wholly abandoned his judicial role; (3) the affidavit
was so lacking in indicia of probable cause that official belief in its existence was unreasonable;
or (4) the warrant was so facially deficient that the executing officers could not reasonably
presume it was valid. See Martin, 297 F.3d at 1313. Accordingly, Mathis has abandoned any
argument regarding the exceptions to the good faith rule. See United States v. McKinley, 732
F.3d 1291, 1295 n.1 (11th Cir. 2013). In the alternative, even if the issue was sufficiently raised,
Mathis has not demonstrated that any exception to the good faith rule applies and we conclude
the issue lacks merit.
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[the] search warrant . . . the Leon good faith exception applies.” Id. (internal
quotation marks omitted).
2. The August 2012 Examination 6
Mathis also contests the validity of the second examination of his
smartphone, which occurred on August 1, 2012. Before the district court, Mathis
argued in his renewed motion to suppress that the multimedia messages obtained
during the August 2012 examination were not in plain view during the December
2011 examination and there was no authorization for the August 2012 examination
because no new search warrant had been obtained.
On appeal, Mathis contends evidence obtained from his smartphone on
August 1, 2012, should have been suppressed because the examination occurred
well after the expiration of the 10-day period provided in the warrant. Mathis
devotes only two paragraphs of his sixty-one page opening brief to this issue. In
those two paragraphs, Mathis mostly repeats the facts underlying his claim and his
actual argument boils down to three sentences. First, he argues “[t]he district court
erred in not granting Mathis’s motion to suppress at trial where the evidence was
obtained outside the scope and time frame of the search warrant.” Second, he
6
Although Mathis arguably waived his challenge to the August 2012 examination
because he did not raise it in his motion to suppress prior to trial, see United States v. Ford, 34
F.3d 992, 994 n.2 (11th Cir. 1994) (concluding a party’s failure to raise a suppression argument
prior to trial resulted in a waiver of the issue); Fed. R. Crim. P. 12(b)(3), (e), the district court
considered and rejected the issue on the merits and we will therefore address it, see United States
v. Lall, 607 F.3d 1277, 1290 (11th Cir. 2010).
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asserts “[e]vidence seized while the police are acting outside the boundaries of the
warrant is subject to suppression.” Third, Mathis contends that “[o]nly during a
search conducted eight mo[n]ths [after the initial search], outside the scope of the
search warrant[,] was Hayes able to determine who sent the MMS messages.”
Mathis does not argue the eight month delay was itself unreasonable or that he was
prejudiced by the delay. In support of his arguments, Mathis cites only a single
Fourth Circuit opinion from 1994 for the proposition that, if officers seize items
which are not enumerated in a search warrant, those items are subject to
suppression.7
Although Mathis contends the second examination of his phone violated his
constitutional rights, we have held that “[t]he Fourth Amendment does not specify
that search warrants contain expiration dates,” and that a search conducted after a
warrant’s expiration date does not necessarily require suppression of the evidence.
United States v. Gerber, 994 F.2d 1556, 1559-60 (11th Cir. 1993); see also
Herring v. United States, 555 U.S. 135, 144, 135 S. Ct. 695, 702 (2009) (“To
trigger the exclusionary rule, police conduct must be sufficiently deliberate that
7
Mathis has waived any arguments that he raises only in his reply brief because those
arguments are too late. United States v. Lopez, 649 F.3d 1222, 1246 (11th Cir. 2011); United
States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“Arguments raised for the first time in a
reply brief are not properly before a reviewing court.” (internal quotation marks and alteration
omitted)). In addition, the record does not support Mathis’s contention in his reply brief that the
Government searched his smartphone month after month for eight months. Instead, the record
establishes that Mathis’s smartphone was examined only twice.
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exclusion can meaningfully deter it, and sufficiently culpable that such deterrence
is worth the price paid by the justice system.”).
We need not decide this issue, however, because even if the August 2012
examination violated Mathis’s Fourth Amendment rights, any error in admitting
the evidence at trial was harmless. See United States v. Rhind, 289 F.3d 690, 694
(11th Cir. 2002). The record demonstrates that officers obtained Mathis’s SMS
messages, i.e., plain text messages, during the initial examination of his cell phone,
but could not recover his multimedia messages, i.e., text messages containing
pictures or videos. The initial search was conducted within the ten-day period
provided in the warrant and, as discussed above, was valid. Mathis’s plain text
messages, even without the multimedia messages and accompanying pictures,
provided overwhelming evidence of Mathis’s guilt on Counts One and Two.
Accordingly, any error in admitting the multimedia messages was harmless. 8 See
id. (concluding a Fourth Amendment violation was harmless because evidence of
the defendants’ guilt was overwhelming).
B. The Confrontation Clause
Mathis argues that the admission of Jerel A.’s text messages at trial violated
his rights under the Confrontation Clause. Mathis contends he was prohibited from
8
Counsel agreed at oral argument that any error in the introduction of the multimedia
messages obtained from the August 2012 examination was harmless in light of the plain text
messages retrieved during the December 2011 examination.
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cross-examining and impeaching Jerel’s testimony, while the Government was
allowed to introduce favorable evidence in the form of Jerel’s text messages. “We
review a preserved Confrontation Clause claim de novo,” United States v. Curbelo,
726 F.3d 1260, 1271-72 (11th Cir. 2013), and also review de novo “the question of
whether hearsay statements are testimonial for purposes of the Confrontation
Clause,” United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010)
(internal quotation marks omitted).
Mathis’s arguments lack merit. The Confrontation Clause bars the
admission of a witness’s testimonial statements when the witness did not appear at
trial unless the witness was unavailable and the defendant had a prior opportunity
to examine him. Caraballo, 595 F.3d at 1227; see also Crawford v. Washington,
541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004). Mathis does not argue on
appeal that Jerel’s text messages were testimonial and he has “therefore abandoned
an issue on which he had to prevail in order to obtain reversal.” United States v.
King, 751 F.3d 1268, 1277 (11th Cir. 2014). Regardless, any argument that Jerel’s
text messages were testimonial would be unavailing. We have explained that:
[F]ormal statements to government officers are generally testimonial
as are affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used prosecutorially.
Similarly, extrajudicial statements contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions, and statements that were made under circumstances
which would lead an objective witness reasonably to believe that the
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statement would be available for use at a later trial, fall within the core
class of testimony.
Caraballo, 595 F.3d at 1228 (brackets and alterations omitted). Jerel’s text
messages were not formal statements to government officers, they were not made
during a custodial examination, and they did not constitute an affidavit, prior
testimony, or pretrial statements that he would reasonably expect to be used
prosecutorially. Jerel’s text messages were not formalized testimonial materials,
and they were not made under circumstances that would lead an objective witness
reasonably to believe that they would be available for use at a later trial. See id.
Far from amounting to “the functional equivalent of in-court testimony,” Curbelo,
726 F.3d at 1272 (internal quotation marks omitted), Jerel’s text messages were
informal, haphazard communications sent at all hours and from locations such as
his house, the bus stop, and his school. Jerel’s text messages were not testimonial
statements and Mathis’s right of confrontation was not violated by their admission
at trial.
C. Sufficiency of the Evidence
Mathis argues that insufficient evidence supported each of his convictions. 9
As to Count One—which charged Mathis with persuading, inducing, enticing, or
9
While we ordinarily “review challenges to the sufficiency of the evidence de novo, and
ask whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt,”
when a defendant “fails to renew his motion for judgment of acquittal at the end of all of the
evidence, we review the defendant’s challenge to the sufficiency of the evidence for a manifest
miscarriage of justice.” United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012) (internal
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coercing Jerel A. to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct—Mathis reiterates his Confrontation
Clause arguments and then asserts without elaboration that there was no proof
beyond a reasonable doubt that Jerel produced a sexually explicit visual depiction.
We have already determined that Mathis’s Confrontation Clause arguments lack
merit and we conclude the evidence was more than sufficient to support Mathis’s
conviction on Count One.
At trial, the Government introduced evidence that Jerel was a minor in 2011
and that Mathis persuaded, induced, enticed, or coerced Jerel to take pictures of his
genitalia and then send them to Mathis in text messages. Specifically, Mathis
asked Jerel for pictures of Jerel’s genitalia in May, June, and September of 2011,
Mathis offered to pay Jerel for a picture of Jerel’s genitalia, and he directed Jerel to
take sexually explicit pictures. For instance, on June 29, 2011, Mathis sent Jerel a
text message stating “I want my picture and it better be hard and I hope you trust
me cause I have been there for you.” Similarly, on September 11, 2011, Mathis
asked Jerel to send him a text message with a picture of his genitalia, stating “[o]k
quotation marks omitted). Although Mathis introduced two exhibits into evidence during his
case-in-chief and then failed to renew his motion for a judgment of acquittal, we need not decide
whether to review his arguments only for a manifest miscarriage of justice because his
sufficiency challenges fail regardless of the standard applied. See United States v. Houser, 754
F.3d 1335, 1349 (11th Cir. 2014) (“Regardless of the standard applied . . . [the defendant’s]
sufficiency challenge fails.”).
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just send a good one I want to see how long it is,” and, after receiving a picture,
Mathis sent Jerel a text message saying “[c]an you hold it up please.” The
Government also introduced into evidence two pictures of male genitalia Jerel sent
to Mathis, at least one of which was an image of male genitalia in an aroused state.
The evidence adduced at trial was sufficient for a jury to conclude Mathis
persuaded Jerel to produce and send him a visual depiction of sexually explicit
conduct. See United States v. Grzybowicz, 747 F.3d 1296, 1305-07 (11th Cir.
2014).
The evidence was also sufficient to support Mathis’s conviction on Count
Two, which charged him with attempting to persuade, induce, entice, or coerce
Harold J. to engage in sexually explicit conduct for the purpose of producing a
visual depiction of such conduct. On appeal, Mathis argues only that his
conviction cannot stand because Harold did not, in fact, produce a visual depiction
of sexually explicit conduct. Mathis’s argument fails to recognize that he was
convicted in Count Two of attempted production of child pornography rather than
actual production. The evidence presented at trial, moreover, demonstrated that
Mathis intentionally attempted to persuade Harold, who was a minor in 2011, to
produce child pornography. Harold testified that Mathis repeatedly sent him text
messages exhorting Harold to trust him. Harold also explained that, on several
occasions, Mathis asked Harold to send him text messages with pictures of
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Harold’s genitalia. According to Harold, on one occasion Mathis sent him text
messages offering to pay him $500 in exchange for such a picture and, on another
occasion, Mathis promised to take Harold to Tampa in exchange for Harold taking
and sending a picture of his genitalia. In addition, the Government introduced
copies of the text messages between Mathis and Harold in which Mathis asked
Harold for pictures of his genitalia. A reasonable jury could have found that
Mathis took a substantial step toward persuading, inducing, or enticing Harold to
produce child pornography and that he attempted to produce child pornography.
See United States v. Lee, 603 F.3d 904, 918 (11th Cir. 2010).
Mathis next contends insufficient evidence supported his conviction on
Count Three because he was charged with enticing and attempting to entice Jarvis
to engage in sexual activity on a cellular phone and that no evidence proved sexual
activity took place on the phone or that Mathis used a phone to commit the offense.
Mathis again misconceives the offense for which he was convicted. Count Three
charged him with using a facility of interstate commerce to knowingly persuade,
induce, or entice Jarvis J., a minor, to engage in illegal sexual activity, in violation
of 18 U.S.C. § 2422(b). Section 2422(b) does not require that the sexual activity
have occurred on the facility of interstate commerce, in this case a cell phone. See
18 U.S.C. § 2422(b).
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Regardless, Mathis’s argument is contradicted by the record. Jarvis testified
that, after their first sexual interaction, Mathis talked to him on his cell phone in a
sexually explicit manner and that Mathis was more comfortable “talking about
planning it with [him].” Jarvis’s extensive testimony at trial provided sufficient
evidence for the jury to conclude Mathis used his cell phone to induce or entice
Jarvis to engage in sexual activity and his conviction on Count Three must stand.
Mathis’s conviction on Count Four was also supported by sufficient
evidence. Count Four charged Mathis with violating 18 U.S.C. § 2260A by
committing the offenses charged in Counts One through Three while he was
required to register as a sex offender under Florida law. 10 The Government
introduced a copy of a judgment demonstrating that, on February 22, 1995, Mathis
was convicted of lewd or lascivious assault on a child, in violation of § 800.04 of
the Florida Statutes. 11 Accordingly, Florida law required Mathis to register as a
sex offender if he was released from his sentence for that conviction on or after
10
Section 2260A provides:
Whoever, being required by Federal or other law to register as a sex offender,
commits a felony offense involving a minor under section 1201, 1466A, 1470,
1591, 2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2260, 2421, 2422, 2423, or
2425, shall be sentenced to a term of imprisonment of 10 years in addition to the
imprisonment imposed for the offense under that provision. The sentence
imposed under this section shall be consecutive to any sentence imposed for the
offense under that provision.
18 U.S.C. § 2260A.
11
Mathis was sentenced to a 52-month term of imprisonment, but his sentence was
suspended and he was placed on a 2-year term of probation.
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October 1, 1997. See Fla. Stat. § 943.0435; Miller v. State, 971 So. 2d 951, 954
(Fla. 5th DCA 2007). Mathis maintains no evidence was introduced at trial
proving when he was released from custody for his § 800.04 offense. Thus, no
evidence was presented that he was required to register as a sex offender under
Florida law.
Contrary to his contentions, the Government presented sufficient evidence
from which a reasonable jury could have found he was required to register as a sex
offender. The Government introduced a copy of a judgment from February 21,
1997, adjudicating Mathis guilty of violating the term of probation to which he was
sentenced for his § 800.04 conviction. Mathis was sentenced to a 48-month term
of imprisonment for his probation violation and was given credit for 174 days of
time served. Accordingly, the jury could have found Mathis was to be incarcerated
for 1,286 days, placing his release date well beyond October 1, 1997. Such a
finding was supported by copies of Mathis’s sex offender registration forms, which
indicated he registered as a sex offender with the State of Florida in January 1999
due to his § 800.04 conviction.
D. Motion for a Mistrial
Mathis argues the district court erred by denying his motion for a mistrial
based on the AUSA’s statement during closing argument that Mathis’s conduct in
2004 was a violation of § 800.04, the same statute under which Mathis was
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convicted in 1995. We review the denial of a motion for a mistrial for abuse of
discretion. United States v. Garcia, 405 F.3d 1260, 1272 (11th Cir. 2005). An
improper closing argument will justify a new trial only if it was “both improper
and prejudicial to a substantial right of the defendant.” Id. (internal quotation
marks omitted).
In the context of the entire trial, the AUSA’s comment did not prejudice
Mathis’s substantial rights. See United States v. Hasner, 340 F.3d 1261, 1275
(11th Cir. 2003) (“Prosecutorial misconduct is a basis for reversing an appellant’s
conviction only if, in the context of the entire trial in light of any curative
instruction, the misconduct may have prejudiced the substantial rights of the
accused.” (internal quotation marks omitted)). The jury was provided a copy of the
indictment which clearly revealed the same information referenced by the AUSA,
namely that Mathis’s conduct in 2004 was illegal under § 800.04 of the Florida
Statutes, and that Mathis had previously violated § 800.04. Additionally, the
evidence that Mathis enticed or induced Jarvis to engage in sexual activity was
overwhelming and included Jarvis’s testimony at trial as well as Jarvis’s recorded
conversation with Mathis in which Mathis acknowledged sexually abusing Jarvis
when he was a minor. Thus, no reasonable probability existed that, but for the
remark, the outcome of the trial would have been different. The district court did
not abuse its discretion by denying Mathis’s motion for a mistrial. See United
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States v. Capers, 708 F.3d 1286, 1308-09 (11th Cir. 2013) (“A defendant’s
substantial rights are prejudiced if there is a reasonable probability that, but for the
improper remarks, the outcome of the trial would have been different.” (internal
quotation marks omitted)).
E. Juror Encounters
Mathis next argues that three occurrences during the course of the trial
involving jurors could have affected the impartiality of the jury and rendered his
trial unfair. First, Mathis contends the juror who potentially overheard the AUSA
tell Sergeant Evans that she worked late into the night could have felt sympathy for
the AUSA and, by extension, the Government’s case. Second, Mathis maintains
the jury could have been influenced or affected by the fact that a juror potentially
overheard Agent Gonzalez in a coffee shop say into her cell phone “we need to get
him.” Third, Mathis argues that the two jurors whom Mathis’s aunt overheard
saying “oh, I just love her” could have been expressing a preference for the
Government and bias toward the defense.
We presume that the jury was impartial, and neither Mathis’s speculation
nor the record establishes that the jurors in the elevator and the coffee shop
actually overheard the statements of which he complains, or that any of the jurors
were biased against him. See United States v. Siegelman, 640 F.3d 1159, 1182
(11th Cir. 2011). Mathis has failed to make a colorable showing that the jury was
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exposed to extraneous information, see id., and the district court did not err by
declining to interrogate each member of the jury in response to such fleeting,
innocuous events. Furthermore, the district court instructed the jurors that their
decision had to be based on the evidence presented during trial and that they
should not be influenced in any way by sympathy or prejudice against the
defendant or the Government. The district court also instructed the jurors that they
should not discuss the case among themselves until the court gave them the case to
decide. We presume the jury followed the district court’s instructions, and Mathis
has provided us with no basis for disregarding that presumption. See United States
v. Stone, 9 F.3d 934, 938 (11th Cir. 1993) (“Few tenets are more fundamental to
our jury trial system than the presumption that juries obey the court’s
instructions.”).
F. Cumulative Error
Mathis argues that the cumulative effect of the alleged errors at trial
deprived him of a fair trial. Mathis, however, has not demonstrated cumulative
error warranting a new trial. See Grzybowicz, 747 F.3d at 1311; Capers, 708 F.3d
at 1299 (explaining a defendant’s substantial rights must be affected to warrant
relief under the cumulative error doctrine).
G. The § 2G2.1(b)(6) Enhancement
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Turning to his 480-month total sentence, Mathis argues the district court
erred by applying a two-level enhancement under U.S.S.G. § 2G2.1(b)(6), which
applies if the defendant, for the purpose of producing sexually explicit material,
used “a computer or an interactive computer service to . . . persuade, induce,
entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit
conduct, or to otherwise solicit participation by a minor in such conduct.”
According to Mathis, the enhancement applies only when a defendant used the
Internet in the commission of the offense and not simply because a phone with
Internet capabilities was used. We disagree.
Section 2G2.1(b)(6) provides:
If, for the purpose of producing sexually explicit material or for the
purpose of transmitting such material live, the offense
involved . . . the use of a computer or an interactive computer service
to (i) persuade, induce, entice, coerce, or facilitate the travel of, a
minor to engage in sexually explicit conduct, or to otherwise solicit
participation by a minor in such conduct; or (ii) solicit participation
with a minor in sexually explicit conduct, increase by 2 levels.
U.S.S.G. § 2G2.1(b)(6). The guidelines commentary instructs that the word
“computer” has “the meaning given that term in 18 U.S.C. § 1030(e)(1).” U.S.S.G.
§ 2G2.1 cmt. (n.1). 18 U.S.C. § 1030(e)(1), in turn, defines a computer as:
an electronic, magnetic, optical, electrochemical, or other high speed
data processing device performing logical, arithmetic, or storage
functions, and includes any data storage facility or communications
facility directly related to or operating in conjunction with such
device, but such term does not include an automated typewriter or
typesetter, a portable hand held calculator, or other similar device.
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18 U.S.C. § 1030(e)(1).
It is an issue of first impression in this Circuit whether a cell phone is a
“computer” within the meaning of § 1030(e)(1). The Eighth Circuit, however, has
decided the issue. See United States v. Kramer, 631 F.3d 900, 902-04 (8th Cir.
2011). As that court has noted, the language of § 1030(e)(1) is broad and
encompasses any device that uses a data processor. Id. at 902. We agree with the
Eighth Circuit’s observation that “each time an electronic processor performs any
task—from powering on, to receiving keypad input, to displaying information—it
performs logical, arithmetic, or storage functions. These functions are the essence
of its operation.” Id. at 903. Nothing in the statutory definition of a computer
requires that the device have a connection to the Internet or Internet capabilities.
Id. We will not rewrite the statutory definition to exclude Mathis’s use of a
smartphone to call and send text messages to his minor victims—activities that
undoubtedly employed an electronic or high speed data processing device
performing logical, arithmetic, and storage functions. The Seventh Circuit has
explained in discussing the scope of § 1030, “[a]s more devices come to have
built-in intelligence, the effective scope of the statute grows. This might prompt
Congress to amend the statute but does not authorize the judiciary to give the
existing version less coverage than its language portends.” United States v. Mitra,
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405 F.3d 492, 495 (7th Cir. 2005). 12 We therefore hold that a defendant’s use of a
cell phone to call and send text messages constitutes the use of a computer, as that
term is defined in 18 U.S.C. § 1030(e)(1), and warrants imposition of an
enhancement under U.S.S.G. § 2G2.1(b)(6).
In the alternative, even if the enhancement was not warranted, any error was
harmless. As calculated by the district court, Mathis had a combined total offense
level of 41 and a criminal history category of V, yielding a guidelines range of 360
months to life imprisonment. Without the § 2G2.1(b)(6) enhancement, Mathis’s
offense level of 39 and criminal history category of V would have still yielded a
guidelines range of 360 months to life imprisonment. See U.S.S.G. Ch. 5 pt. A,
sentencing table. Given that Mathis’s guidelines range was the same with or
without the enhancement, any potential error in applying the enhancement does not
warrant reversal. See United States v. Campa, 529 F.3d 980, 1013 (11th Cir. 2008)
(“A sentencing error, under the Guidelines, is harmless if a court considers the
proceedings in their entirety and determines that the error did not affect the
sentence or had but very slight effect.” (internal quotation marks omitted)).
H. The § 2251(e) Enhancement
12
We do not mean to say that every use of a device with a data processor necessarily
warrants imposition of an enhancement under § 2G2.1(b)(6). The guidelines commentary
specifies that the enhancement “is intended to apply only to the use of a computer . . . to
communicate directly with a minor,” as Mathis did in this case. U.S.S.G. § 2G2.1 cmt. (n.4).
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Mathis raises several challenges to the district court’s imposition of a
sentencing enhancement under 18 U.S.C. § 2251(e). Specifically, Mathis contends
the enhancement was inapplicable because the Florida statute under which he was
convicted in 1995, i.e, § 800.04, did not require actual touching or contact with a
minor. Mathis also argues that imposition of an enhanced sentence violated his
Sixth Amendment rights.
We review de novo the interpretation of a statute, United States v. McQueen,
727 F.3d 1144, 1151 (11th Cir. 2013), as well as preserved claims of error under
Alleyne and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), see
King, 751 F.3d at 1279. Section 2251 criminalizes the sexual exploitation of
minors and provides for a sentence of not less than 15 years’ or more than 30
years’ imprisonment. 18 U.S.C. § 2251(a), (e). However, if a defendant “has one
prior conviction . . . under the laws of any State relating to aggravated sexual
abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward,” the
defendant is subject to a 25-year mandatory minimum and 50-year statutory
maximum sentence. Id. § 2251(e).
1. Actual Touching or Contact
Mathis asserts that for an enhancement to apply under § 2251(e), a prior
state conviction must have required sexual contact, not merely sexual conduct. He
maintains that because he was convicted of lewd or lascivious assault on a minor,
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and assault can be committed without actual touching, his conviction under
§ 800.04 of the Florida Statutes was not a qualifying offense.13
Mathis’s argument is unavailing. His reading of § 2251(e) ignores the plain
text of the statute, which provides for an enhanced sentencing range if the
defendant has previously been convicted under a state law relating to sexual abuse
of a minor. See 18 U.S.C. § 2251(e). We have interpreted the phrase “relating to”
broadly in the context of child exploitation offenses, and have held that a
defendant’s prior conviction under Georgia law for discussing illicit sexual acts
with a minor warranted an enhancement under § 2251(e). See United States v.
McGarity, 669 F.3d 1218, 1262-63 (11th Cir. 2012). We have also held that the
plain meaning of the phrase “sexual abuse of a minor” includes “acts that involve
physical contact between the perpetrator and the victim as well as acts that do not.”
United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001). Mathis
cannot avoid our clear pronouncement that “the phrase ‘sexual abuse of a minor’
means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor
for a purpose associated with sexual gratification.” Id. Mathis’s prior state
conviction under § 800.04 for lewd or lascivious assault on a child related to the
13
At the time of Mathis’s offense, § 800.04 provided in pertinent part that “[a] person
who . . . [h]andles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious,
or indecent manner . . . without committing the crime of sexual battery, commits a felony of the
second degree.” Fla. Stat. § 800.04(1) (1994).
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Case: 13-13109 Date Filed: 09/24/2014 Page: 41 of 42
sexual abuse of a minor and the district court did not err by enhancing his sentence
under § 2251(e).
2. The Sixth Amendment
Finally, to preserve the issue, Mathis argues that the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219
(1998), does not apply to this case and the district court’s imposition of a statutory
sentencing enhancement violated his Sixth Amendment rights. Mathis’s argument
is squarely foreclosed by Circuit precedent, see King, 751 F.3d at 1280 (rejecting
the argument that Alleyne is inconsistent with Almendarez-Torres); United States v.
Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005) (explaining that the Supreme
Court’s holding in Almendarez-Torres was left undisturbed by Apprendi), and we
adhere to the Supreme Court’s holding in Almendarez-Torres that “the
Government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence,” King, 751 F.3d at 1280
(internal quotation marks and brackets omitted).
III. CONCLUSION
For the foregoing reasons, we affirm Mathis’s convictions and sentences.
However, we note the judgment states Mathis was convicted on Count Two of
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production and attempted production of child pornography. 14 We remand to the
district court for the limited purpose of correcting the judgment to reflect that
Mathis was convicted on Count Two only of attempted production of child
pornography. See United States v. Reeves, 742 F.3d 487, 507 n.12 (11th Cir. 2014)
(“We may sua sponte raise the issue of clerical errors in a judgment and remand
with instructions that the district court correct them.”).
AFFIRMED and REMANDED.
14
During the sentencing hearing, the district court judge imposed Mathis’s sentence on
each count by count number. Count Two charged Mathis with attempted production of child
pornography and the typographical error occurred in the clerical entry of “Nature of Offense.”
42