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United States v. Sweeney

United States Court of Appeals, Sixth Circuit

May 25, 2018

United States of America, Plaintiff-Appellee,
v.
Thomas A. Sweeney, Defendant-Appellant.

          Appeal 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.

         ON BRIEF:

          KEVIN M. SCHAD, FEDERAL PUBLIC DEFENDER, CINCINNATI, OHIO, FOR APPELLANT.

          BENJAMIN C. GLASSMAN, HEATHER A. HILL, UNITED STATES ATTORNEY'S OFFICE, CINCINNATI, OHIO, FOR APPELLEE.

          Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.

          OPINION

          JOHN K. BUSH, Circuit Judge.

         Defendant 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.

         I

         Sweeney's 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.

         T.R. 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.

         After a 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.

         II

         Sweeney 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.

         * * *

         On 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).

         The 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).

         One 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, ...


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