USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11049
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENTON LAWRENCE FRANK,
Defendant- Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:11-cr-00019-SPC-MRM-1
____________________
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 2 of 14
2 Opinion of the Court 21-12139
____________________
No. 21-12139
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENTON LAWRENCE FRANK,
Defendant- Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cr-00170-SPC-NPM-1
____________________
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Brenton Frank challenges vari-
ous rulings that the district court made in separate proceedings re-
lated to the revocation of his prior term of supervised release under
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 3 of 14
21-12139 Opinion of the Court 3
18 U.S.C. § 3583(e)(3), and his subsequent conviction for possessing
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) &
(b)(2). After careful consideration, we affirm.
I.
In 2011, Frank was convicted of distributing material involv-
ing the sexual exploitation of minors. The district court sentenced
him to 72 months’ imprisonment, followed by 15 years of super-
vised release.
In late 2019, after Frank had begun his supervised release,
Lee County Deputy Sheriff Michael Vivian pulled him over be-
cause his brake lights were malfunctioning. Upon checking Frank’s
records, Vivian learned that he was a registered sex offender. Viv-
ian was accompanied by a trainee, and a few more officers shortly
arrived on the scene and parked behind Vivian’s patrol car. Vivian
turned off his roof lights, and roughly six minutes after pulling
Frank over, he returned his identification along with a written
warning. He also immediately asked to search Frank’s car, and
Frank gave verbal consent.
Upon searching the car, Vivian found a phone under the
driver’s seat. Frank admitted that the phone was his and signed a
form consenting for the officers to search it. Vivian found child por-
nography on the phone, so he seized it and allowed Frank to leave.
After obtaining a search warrant for the phone, the Sheriff’s Office
found hundreds of files depicting sexual abuse of children.
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 4 of 14
4 Opinion of the Court 21-12139
The same day as the traffic stop, Frank called his probation
officer, Robert Gillespie, and left a voicemail saying that he had
been stopped by law enforcement and admitting that he had been
using a smartphone to access the internet. Gillespie then received
a call from Vivian, who told him about the encounter, including
the child pornography that he found on the phone. In a later phone
conversation with Gillespie, Frank further admitted to download-
ing and viewing child pornography with the phone. Gillespie kept
handwritten notes of these conversations, which he later destroyed
after summarizing them on his computer.
Frank obtained another phone, which he used to communi-
cate with a twelve-year-old girl in Texas. Through a series of ma-
nipulative messages, he convinced her to connect with him in per-
son. So he traveled to Texas and met with her, but he was discov-
ered by her mother.
The next day, law enforcement officers pulled Frank over in
New Mexico. After realizing that Frank was on supervised release,
the officers asked him if he had permission to leave the judicial dis-
trict where he was convicted. Frank then sped away, and at the end
of a high-speed chase, the officers arrested him.
Officer Gillespie later obtained a warrant against Frank from
the district court for nine violations of his supervised release condi-
tions: (1) failing to answer truthfully in response to inquiries from
his probation officer; (2) failing to participate in mental health
counseling; (3) using a computer or online service; (4) viewing im-
ages of child pornography; (5) committing a crime while on
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 5 of 14
21-12139 Opinion of the Court 5
supervised release by possessing child pornography; (6) traveling
outside the judicial district to Texas without permission; (7) having
direct contact with a minor in Texas; (8) traveling outside the judi-
cial district to New Mexico without permission; and (9) committing
a crime while on supervised release by fleeing and eluding officers
in New Mexico.
In preparation for his supervised release revocation hearing,
Frank sought a subpoena of Officer Gillespie’s notes from his con-
versations with Frank and Deputy Vivian. The district court
granted the subpoena, but it later quashed it at the request of the
government.
After hearing testimony and arguments at the final revoca-
tion hearing, the district court found Frank guilty of all nine super-
vised release violations. Frank asked the court to delay his sentenc-
ing so that he could obtain a mental health evaluation but admitted
that he was competent to proceed. The court denied this request,
revoked his supervised release, and sentenced him to 24 months’
imprisonment—the maximum statutory penalty.
Meanwhile, Frank was indicted in a new criminal proceed-
ing for possession of child pornography. Frank moved to suppress
the evidence obtained through Deputy Vivian’s search of his car
and phone. But after an evidentiary hearing, the district court de-
nied the motion. Following a bench trial, the district court found
Frank guilty. It calculated the guideline sentencing range to be 120
to 135 months. It nevertheless imposed a 180-month sentence, set
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 6 of 14
6 Opinion of the Court 21-12139
to run consecutively to his sentence for his supervised release vio-
lations, and followed by a lifetime of supervised release.
Frank timely appealed the district court’s judgments in both
his revocation proceeding and his new criminal case. This Court
later consolidated the two appeals.
II.
Frank challenges several of the district court’s decisions
from both the revocation proceeding and the new criminal case.
First, he argues that the district court erred at the revocation pro-
ceeding by quashing the subpoena for Officer Gillespie’s notes. Sec-
ond, he argues that the district court abused its discretion by deny-
ing his request for a continuance of sentencing on his supervised
release violations so that he could seek a mental health evaluation.
Third, he argues that, in the new criminal case, the district court
erred by denying his motion to suppress the evidence that Deputy
Vivian obtained after searching his car. Fourth, he asserts that the
court abused its discretion by imposing substantively unreasonable
sentences—both for his supervised release violations and for his
new criminal offenses.
A.
First, Frank argues that the district court should not have
quashed the subpoena for Officer Gillespie’s notes. He argues that
he was entitled to those notes under Federal Rules of Criminal Pro-
cedure 16, 17 and 32.1. And he asserts that the notes were necessary
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 7 of 14
21-12139 Opinion of the Court 7
because they may have contradicted the testimony of Officer Gil-
lespie or Deputy Vivian.
We review a district court’s evidentiary rulings for an abuse
of discretion. United States v. Perez-Oliveros, 479 F.3d 779, 783
(11th Cir. 2007). Furthermore, we will not reverse an erroneous
evidentiary ruling if it was “harmless,” meaning that it “had no sub-
stantial influence on the outcome and sufficient evidence unin-
fected by error supports the” conviction. See United States v.
Hands, 184 F.3d 1322, 1329 (11th Cir. 1999).
Even assuming, without concluding, that the district court
erred by quashing the subpoena, we find that this action was harm-
less. Regardless of whether the notes could have contradicted Dep-
uty Vivian’s testimony that Frank’s brake lights were malfunction-
ing, or that he consented to the search of his car, the evidence of
child pornography discovered during the search would have nev-
ertheless been admissible because the exclusionary rule does not
apply in supervised release revocation proceedings. United States
v. Hill, 946 F.3d 1239, 1242 (11th Cir. 2020).
And even if Officer Gillespie’s notes had somehow contra-
dicted his or Deputy Vivian’s testimony regarding the contents of
the phone, an FBI agent independently testified that he had re-
viewed the images of child pornography, along with some pictures
that Frank had taken of himself with the phone. Because the evi-
dence of guilt as to the relevant violations far outweighed any prej-
udice that Frank suffered due to his inability to obtain the notes,
the district court’s decision to quash the subpoena did not
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 8 of 14
8 Opinion of the Court 21-12139
substantially influence the outcome of the revocation proceeding.
See Hands, 184 F.3d at 1329. We therefore affirm as to this issue.
B.
Second, Frank challenges the district court’s denial of his re-
quest for a continuance of his sentencing on the supervised release
violations so that he could seek a mental health evaluation. But he
only vaguely asserts that this denial was an abuse of discretion, and
that it was not supported by the evidence. Given the perfunctory
nature of Frank’s argument, we conclude that he has abandoned
the issue. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“[A]n appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory man-
ner without supporting arguments and authority.”).
C.
Third, turning to the new criminal proceeding, Frank argues
that the district court erred by denying his motion to suppress the
evidence found through Deputy Vivian’s search of his car and
phone. He argues that Vivian illegally prolonged the traffic stop to
search his vehicle without articulable suspicion of further illegal ac-
tivity. He alternatively contends that, even if Vivian did not pro-
long the stop, he never obtained Frank’s consent for the search. Fi-
nally, he asserts that, even if he consented to the search, it was the
result of involuntary acquiescence.
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 9 of 14
21-12139 Opinion of the Court 9
“A district court’s ruling on a motion to suppress presents a
mixed question of law and fact.” United States v. Zapata, 180 F.3d
1237, 1240 (11th Cir. 1999). We review the district court’s factual
findings for clear error and its application of the law to the facts de
novo. Id. We also review the court’s credibility determinations for
clear error. United States v. Amedeo, 370 F.3d 1305, 1318 (11th Cir.
2004). “[A]ll facts are construed in the light most favorable to the
prevailing party below.” United States v. Bervaldi, 226 F.3d 1256,
1262 (11th Cir. 2000).
A seizure stemming from a police-observed traffic offense
violates the Fourth Amendment if the traffic stop is prolonged be-
yond the time reasonably necessary to complete the “mission” of
the stop—such as checking the driver’s license and registration,
searching for outstanding warrants, and attending to safety con-
cerns. Rodriguez v. United States, 575 U.S. 348, 350–51, 354–55
(2015).
That said, further questioning does not implicate the Fourth
Amendment if the initial detention turns into a consensual encoun-
ter. United States v. Ramirez, 476 F.3d 1231, 1237 (11th Cir. 2007).
To determine whether an encounter has become consensual, we
ask whether, based on the totality of the circumstances, “a reason-
able person would feel free to terminate” it. Id. at 1240 (quoting
United States v. Drayton, 536 U.S. 194, 201 (2002)). Relevant factors
might include the length of the stop; whether the police behaved
coercively; the number of officers present; the defendant’s age, ed-
ucation, and intelligence; whether the defendant was physically
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 10 of 14
10 Opinion of the Court 21-12139
restrained or touched; whether his path was blocked; and whether
he had everything he needed to proceed on his journey. Id.; United
States v. Knights, 989 F.3d 1281, 1286 (11th Cir. 2021).
Similarly, “[s]earches conducted by means of consent are
valid so long as the consent is voluntary.” United States v. Kapper-
man, 764 F.2d 786, 793 (11th Cir. 1985). The government has the
burden to prove the voluntariness of consent, meaning that it must
show that the consent was “the product of an essentially free and
unconstrained choice.” Zapata, 180 F.3d at 1241 (quoting United
States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989)).
Here, the district court did not err in finding that Vivian did
not prolong the stop to search Frank’s car. Vivian testified that he
issued the warning roughly six minutes after pulling Frank over,
and that he asked to search the car shortly afterward. This amount
of time was reasonably necessary to complete the “mission” of is-
suing Frank a warning for an equipment violation. See Rodriguez,
575 U.S. at 350–51. And we agree that, once Vivian issued the warn-
ing and returned Frank’s identification, a reasonable person would
have felt free to leave. After all, the patrol cars were parked behind
Frank instead of blocking his path, and Vivian seemingly indicated
that he had deactivated the roof lights on his vehicle. Although
there were multiple officers standing nearby, none of them had
drawn their weapons or attempted to restrain Frank. In light of
these facts, the encounter became consensual after Vivian returned
the paperwork to Frank.
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 11 of 14
21-12139 Opinion of the Court 11
And the district court did not clearly err by finding that
Frank consented to the searches of his vehicle and his phone. Viv-
ian testified that Frank gave him verbal consent to search the vehi-
cle. And although this consent was not recorded electronically or
in writing, we cannot say that the district court clearly erred by
crediting Vivian’s testimony. Likewise, because Frank signed the
form authorizing the search of his phone, the record supports the
district court’s finding that he consented to that search as well.
Finally, Frank failed to argue before the district court that,
even if he gave consent, it was involuntary. We therefore review
that argument for plain error. United States v. Moriarty, 429 F.3d
1012, 1018-19 (11th Cir. 2005). “To establish plain error, a defend-
ant must show there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. at 1019.
Frank contends that he involuntarily acquiesced to the
search because there were multiple officers present, some of their
vehicle lights were on, and he had some mental health issues. But
it is not plain to us that such circumstances render consent invol-
untary. We accordingly affirm the denial of his motion to suppress
evidence.
D.
Fourth, Frank argues that the district court abused its discre-
tion by imposing substantively unreasonable sentences—both in
the revocation proceeding and in his new criminal case.
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 12 of 14
12 Opinion of the Court 21-12139
We review the substantive reasonableness of a sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
“The party challenging a sentence has the burden of showing that
the sentence is unreasonable in light of the entire record, the [18
U.S.C.] § 3553(a) factors, and the substantial deference afforded
sentencing courts.” United States v. Rosales-Bruno, 789 F.3d 1249,
1256 (11th Cir. 2015). A sentence is substantively unreasonable
only if the district court “(1) fails to afford consideration to rele-
vant factors that were due significant weight, (2) gives signifi-
cant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” Id.
(quoting United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)).
Accordingly, we do not reweigh the Section 3553(a) factors unless
we are “left with the definite and firm conviction that the district
court committed a clear error of judgment.” Irey, 612 F.3d at 1190;
United States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009).
Although the district court must consider each Section
3553(a) factor, it need not discuss each factor specifically, and its
statement that it considered the factors is sufficient. United States
v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). Nor must it
weigh each factor equally, but instead may give “‘great weight’ to
one factor over others.” Rosales-Bruno, 789 F.3d at 1254 (quoting
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009)). When
a district court departs from the sentencing guidelines range, as it
did here, “the justification for the variance must be ‘sufficiently
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 13 of 14
21-12139 Opinion of the Court 13
compelling to support the degree of the variance.’” Irey, 612 F.3d
at 1186–87 (quoting Gall, 552 U.S. at 597).
Regarding the 24-month sentence for his supervised release
violations, Frank contends that the district court should not have
imposed the statutory maximum, and that his mental and emo-
tional problems justified a lower sentence.
But there is nothing in the record to suggest that the district
court’s sentence was substantively unreasonable. Although a sen-
tence of 24 months was above the guidelines range, the district
court provided adequate justification for the variance by explaining
Frank’s deliberate efforts to circumvent various conditions of his
supervised release and manipulate a minor into meeting with him.
The district court noted Frank’s mental health history, and we are
unconvinced that it abused its discretion merely by failing to give
more weight to this factor. See Rosales-Bruno, 789 F.3d at 1254;
Langston, 590 F.3d at 1237. Because Frank cannot show that the
district court abused its discretion in imposing the statutory maxi-
mum sentence of 24 months, we affirm on this issue.
As for the 180-month sentence in his new criminal case,
Frank again argues that the district court committed a clear error
of judgment in weighing the Section 3553(a) factors. He specifically
asserts that it gave too much weight to his criminal history, and
that it should have given more weight to his mental health prob-
lems. He also argues that he is distinguishable from other defend-
ants whose criminal histories justified upward variances. And he
asserts that all the justifications that the district court stated for the
USCA11 Case: 20-11049 Date Filed: 09/21/2022 Page: 14 of 14
14 Opinion of the Court 21-12139
upward variance were already baked into the sentencing guidelines
calculation. Finally, he contends that the upward variance went
against the purpose of the Sentencing Guidelines to provide cer-
tainty and fairness.
We conclude that Frank’s 180-month sentence was substan-
tively reasonable. Contrary to Frank’s contention, there is nothing
in the record to suggest that the court committed a clear error of
judgment in weighing the Section 3553(a) sentencing factors. The
court made sufficient findings to support its upward variance when
it stated, among other things, that it was essential for Frank to un-
derstand the seriousness of his offense, promote respect for the
law, provide just punishment, deter Frank from future criminal
conduct, and protect the public from further crimes. These findings
were especially supported by Frank’s escalating and manipulative
behavior in contacting a minor directly. The court had the discre-
tion to assign more weight to Frank’s criminal history than to his
mental health issues or the criminal histories of other defendants.
See Rosales-Bruno, 789 F.3d at 1254. And although the court varied
upward based on conduct that was already considered in calculat-
ing the guideline range, we have previously held that courts may
do just that. United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir.
2021). Accordingly, we cannot conclude that the district court
abused its discretion by imposing a 180-month sentence.
AFFIRMED.