from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:16-cr-00073-1-Michael H.
Watson, District Judge.
M. SCHAD, FEDERAL PUBLIC DEFENDER, CINCINNATI, OHIO, FOR
BENJAMIN C. GLASSMAN, HEATHER A. HILL, UNITED STATES
ATTORNEY'S OFFICE, CINCINNATI, OHIO, FOR APPELLEE.
Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.
K. BUSH, Circuit Judge.
Thomas Sweeney appeals his conviction and sentence for
production and receipt of child pornography, attempted
enticement of a minor to engage in sexual conduct, and
commission of a sex offense against a minor while being
required to register as a sex offender. For the reasons
explained below, we affirm his conviction and sentence.
parental rights over his daughter, T.R., were terminated
after he was convicted of raping his niece, and he had no
contact with T.R. during his ten-year imprisonment. Upon his
release from prison in 2013, Sweeney began contacting T.R.
via Facebook and text message. By June 2015, when T.R. was
14, their communications had turned sexual and included the
mutual sending of explicit pictures, detailed discussion of
sex acts, and ultimately unconsummated plans to meet for the
purpose of engaging in sexual acts.
alerted her adoptive parents to the nature of her
conversations with Sweeney, and they alerted officers from
the Department of Homeland Security, who alerted
Sweeney's parole officer. During a meeting with his
parole officer, Sweeney indicated that he owned a cellular
telephone that he had left at the homeless shelter where he
lived. The parole officer told waiting DHS officers about
this telephone and that Sweeney was planning on going to a
hospital. A parole officer, accompanied by the DHS officers,
went to the homeless shelter, located the telephone, and
secured the phone's media-storage card, which DHS
officers later searched pursuant to a warrant.
jury trial at which evidence from the media-storage card was
admitted, Sweeney was convicted on all counts and received a
carceral sentence of fifty-five years.
makes three arguments on appeal. First, he contends that the
district court erred in admitting evidence derived from the
media-storage card, which he argues was obtained in violation
of the Fourth Amendment. Second, Sweeney claims that the
trial court erred by applying a two-level enhancement under
USSG § 2G2.1(b)(5), which applies when the defendant is
the "parent" of the victim; Sweeney argues he was
not T.R.'s parent after his parental rights were
terminated. And finally, he maintains that his sentence was
procedurally unreasonable for the district court's
failure to address various mitigation arguments that Sweeney
raised at sentencing.
* * *
appeal from the denial of a motion to suppress, we review the
district court's factual findings for clear error and its
legal conclusions de novo. United States v. Foster,
376 F.3d 577, 583 (6th Cir. 2004). We may overturn a district
court's denial of a motion to suppress only if the
defendant has met his burden to show "a violation of
some constitutional or statutory right justifying
suppression." United States v. Rodriguez-Suazo,
346 F.3d 637, 643 (6th Cir. 2003) (citation omitted).
Fourth Amendment protects the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend.
IV. Though "this fundamental right is preserved by a
requirement that searches be conducted pursuant to a warrant
issued by an independent judicial officer, " there are
"exceptions to the general rule that a warrant must be
secured before a search is undertaken." California
v. Carney, 471 U.S. 386, 390 (1985).
such exception allows warrantless searches so long as they
are pursuant to a constitutional state law authorizing the
warrantless searches of parolees and their residences.
See Samson v. California, 547 U.S. 843, 856 (2006).
We have already held that Ohio R.C. § 2967.131(C), the
law authorizing the warrantless search of Sweeney's
residence, is constitutional, see United States v.
Loney, 331 F.3d 516, ...