US v. Donald Scott, No. 09-4728 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4728 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD STEPHEN SCOTT, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Lacy H. Thornburg, District Judge. (2:08-cr-00027-LHT-1) Submitted: June 10, 2010 Decided: July 6, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. William C. Spaht, John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS, LLP, Birmingham, Alabama, for Appellant. Edward R. Ryan, United States Attorney, Charlotte, North Carolina; David A. Thorneloe, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Donald 144-month Stephen sentence Scott imposed appeals following his his conviction guilty plea and to one count of transmission of child pornography via a computer, in violation of 18 U.S.C.A. § 2252(a)(1) (West Supp. 2010); twelve counts of U.S.C.A. receiving § child 2252(a)(2) (West pornography, Supp. possession of materials containing engaging in sexually explicit in 2010); violation and one of 18 count of visual depictions of a minor conduct, in U.S.C.A. § 2252(a)(4)(B) (West Supp. 2010). violation of 18 Scott reserved his right to appeal the district court s denial of his motion to suppress, and on appeal he challenges that denial, as well as his sentence. For the following reasons, we affirm. Scott first challenges the district court s denial of his motion to suppress. This court reviews the factual findings underlying the district court s denial of a motion to suppress for clear error and the court s legal conclusions de novo. United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). A factual finding is clearly erroneous if this court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks omitted). However, if the district court's account of the evidence is plausible in light of the 2 record viewed in its entirety, this court will not reverse the district court's finding fact[s] differently. even if it would have decided the United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation marks and alteration omitted). In other words, when two views of the evidence are permissible, the district court s choice between them cannot be clearly erroneous. alteration omitted). Id. (internal quotation marks and When a motion to suppress has been denied by the district court, this court construes the evidence in the light most favorable to the Government. United States v. Farrior, 535 F.3d 210, 217 (4th Cir.), cert. denied, 129 S. Ct. 743 (2008). While private searches ordinarily do not offend the Fourth Amendment, when a private individual acted as a Government agent, Fourth Amendment protections are implicated. United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010); see United States v. Jacobsen, 466 U.S. 109, 113 (1984). This determining court whether considers a private two search primary factors implicates the in Fourth Amendment: (1) whether the Government knew of and acquiesced in the private (2) whether the individual s private challenged individual intended conduct; to assist enforcement or had some other independent motivation. and law Day, 591 F.3d at 683 (quoting United States v. Jarrett, 338 F.3d 339, 3 344 (4th Cir. 2003)). more than mere The first factor requires evidence of knowledge and passive acquiescence Government before finding an agency relationship. F.3d at 345. by the Jarrett, 338 Scott bears the burden of proving the existence of an agency relationship. Id. at 344. Scott asserts that the Fourth Amendment was implicated when a computer technician with whom Scott had left his computer for repair opened the desktop file images in an investigator s presence. containing pornographic Our review of the record leads us to agree with the district court that although the investigator was present, there was no evidence that he directed the technician to open the file. an agency relationship. Thus, Scott fails to establish Accordingly, the district court properly denied the motion to suppress. Scott next challenges the substantive reasonableness of his sentence. This court reviews a sentence for reasonableness, using an abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51 (2007). substantive reasonableness, circumstances. Scott disregarded we consider the In assessing totality of the Id. argues U.S. that Sentencing the district Guidelines (2008) in determining his sentence. court Manual should have § 2G2.2(a)(2) This argument fails. The Supreme Court has made clear that [a] district court should 4 begin by correctly calculating the applicable Guidelines range, and use it as sentencing. the a starting point Gall, 552 U.S. at 49. district court chose to vary and initial benchmark in After doing so in this case, downward from that range, having considered the sentencing factors and the arguments of counsel. We conclude that the district court s variance sentence is substantively reasonable under the totality of the circumstances. We therefore affirm the district court s judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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