United States v. King

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-1861

UNITED STATES OF AMERICA,

v.

RICHARD D. KING, JR.,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 04-cr-00071)

District Judge: Honorable John E. Jones, III

Argued October 27, 2009

Before: SLOVITER, FUENTES and HARDIMAN, Circuit

Judges.

(Filed: April 30, 2010)

Frederick E. Martin (Argued)

Office of United States Attorney

240 West Third Street

Suite 316

Williamsport, PA 17701-0000

Attorneys for Appellee

Ronald C. Travis (Argued)

Rieders, Travis, Humphrey, Harris,

Waters & Waffenschmidt

161 West Third Street

P.O. Box 215

Williamsport, PA 17701-0000

Attorneys for Appellant

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Richard King appeals his judgment of sentence following

a conditional guilty plea to violating 18 U.S.C. § 2241(c)

(Interstate Transportation to Engage in Sex with a Minor). The

principal question of precedential import is whether the rule of

law established in Georgia v. Randolph, 547 U.S. 103, 122-23

(2006), viz., that a present and objecting resident can override

another resident’s consent to search a home, applies to the

seizure of a computer. We hold that it does not.

I.

2

In August 2003, King was using the screen name

“ayoungbeaverluvr” when he met Angela Larkin on a website

called “CherryPoppinDaddys.” In their initial conversation,

King acknowledged that performing oral sex on his own

daughter caused his divorce. He also offered to drive over 200

miles from his home in Mohnton, Pennsylvania, to Larkin’s

home in Emporium, Pennsylvania, so he could perform oral sex

on Larkin’s two-year-old daughter, whom she called “Peanut.” 1

During the next two months, King and Larkin chatted

online about their mutual interest in watching minors engage in

sex acts with adults and shared child pornography. After Larkin

said she liked one depiction of a young child engaged in a sex

act with an adult, King responded he would “most definitely” do

the same to Peanut. In September 2003, King chatted with

others about his sexual interest in Peanut. That same month,

Larkin also sent nude pictures of Peanut to King and others.

In addition to his involvement with Larkin and her

daughter, King maintained several online relationships with

underage girls to whom he sent child pornography. As part of

his self-professed desire to “sexually initiate” them, King taught

them to masturbate and sent them pictures of his genitals.

Larkin briefly lost contact with King in October 2003

when she left her husband and moved with Peanut and her

computer to Buffalo, New York. In mid-November 2003,

1

We refer to Larkin’s daughter as “Peanut” to protect her

privacy.

3

however, Larkin contacted King through a series of e-mails and

phone calls, asking to move in with him because she was

unhappy in Buffalo. King responded by e-mail: “you know

what my fantasy is.” Soon thereafter, Larkin e-mailed King to

ask if Peanut would sexually satisfy him. Following these

internet exchanges, on Thanksgiving Day 2003, King drove to

Buffalo, where he picked up Larkin and Peanut and brought

them to his home in Mohnton, Pennsylvania.

Within a week after Larkin moved in with him, King

began performing oral sex on Peanut. Though they lived under

the same roof, King and Larkin continued corresponding via e-

mails that show King’s sexual contact with Peanut was frequent

enough to make Larkin jealous. King also helped Larkin use a

PayPal account to obtain payment for distributing pornographic

images of Peanut over the internet.

Larkin’s conduct was discovered by law enforcement

agents in mid-February 2004 after pornographic images of

Peanut were found on a computer in Texas. The Texas

authorities promptly notified the Pennsylvania State Police, who

in turn notified Special Agent James Kyle of the Federal Bureau

of Investigation, of a potential child pornography victim in

Emporium, Pennsylvania. On February 19, 2004, Agent Kyle

obtained and executed a warrant to search Larkin’s former

residence in Emporium.

Upon his arrival at Larkin’s former residence, Agent

Kyle determined that the furniture and distinctive walls matched

those depicted in the child pornography images found in Texas.

While executing the warrant, Kyle met Larkin’s ex-husband,

4

Robert McCullen, who stated that Larkin had moved to Buffalo

in the fall with Peanut and her computer. After Kyle explained

the nature of his investigation, McCullen identified the girl in

the pictures as his daughter. Because McCullen was unaware of

Larkin’s whereabouts after she left Buffalo, he sent Larkin an

instant message asking her for a phone number where she and

Peanut could be reached. Larkin responded a few hours later

with a phone number. Officers initially traced the number to a

post office box in Mohnton, but further investigation revealed

that it was connected to King’s residence at 93 Pennypacker

Road in Mohnton.

Although Larkin had no warrants in the National Crime

Information Center database, Agent Kyle called the State Police

in Reading, Pennsylvania, apprised them of the situation, and

asked them to check for local warrants. This search located an

outstanding 2002 bench warrant for Larkin’s arrest issued by the

Court of Common Pleas of Potter County. After receiving

confirmation that the arrest warrant was still active—and after

independently verifying the connection between the phone

number and 93 Pennypacker Road—State Police Troopers Coyle

and Rodriguez proceeded to King’s residence to execute the

arrest warrant.

When King answered the door, Troopers Coyle and

Rodriguez advised him of the warrant for Larkin’s arrest and

asked to see her. King led them upstairs to the hallway right

outside the kitchen where they handcuffed Larkin; for officer

safety they asked the other residents—King, his mother and his

step-father—to stay put. At some point, Peanut joined them in

5

the hall. From where they stood, the officers could not see into

the bedrooms down the hall.

While at King’s residence, Trooper Coyle received a

phone call from an officer who suggested that Coyle ask Larkin

for permission to take her computer. After Larkin consented to

the seizure, King walked the troopers to a bedroom down the

hall and disconnected the computer. Before the troopers could

seize it, however, King claimed ownership of the hard drive and

objected to its seizure. King then requested permission to

remove the hard drive, but the troopers denied his request and

seized the computer, including the hard drive. The troopers

departed King’s residence with Larkin, Peanut and the

computer.

The next day, Agent Kyle and another FBI agent

transported Larkin to the Clinton County Correctional Facility

in the Middle District of Pennsylvania. During the drive, Larkin

signed a form authorizing the FBI to assume her online identity

and disclosed all of her passwords. Upon receiving this

authorization, Agent Kyle called a colleague and requested that

Larkin’s passwords be changed to preserve the content of her e-

mails.

The following Tuesday, King contacted two of Larkin’s

other “customers,” Rod Long and Kenneth Amerine, to warn

them that the FBI was using Larkin’s screen names. King also

told Amerine that he “just threw away [three] 120 gig hard

drives” and that the only way to destroy a hard drive is by

removing it and physically destroying it with a hammer, so the

FBI cannot recover anything. There is no direct proof that King

6

or Amerine destroyed any evidence, but no child pornography

was found on Amerine’s computer even though he admitted

viewing it.

Later that week, when Agent Kyle reviewed Larkin’s e-

mails and chats, he found incriminating conversations between

Larkin and King, including the conversations about Peanut.

With this evidence in hand, on March 3, 2004, Agent Kyle

obtained and executed two search warrants—one for the seized

computer and the other for King’s home, including all

computers contained therein. Although King was not home

when Agent Kyle executed the warrant, King spoke with Kyle

over the phone and initially declined Kyle’s invitation to speak

with him in person. That night, King changed his mind and

called to arrange a meeting with Kyle at the FBI’s office in

Williamsport, Pennsylvania, which is near the Clinton County

Correctional Facility where Larkin was housed. Because King

planned to be in the area to visit Larkin the next Saturday,

March 6, 2003, he arranged to meet Kyle that day.

King got lost on the way to Williamsport and arrived late

Saturday afternoon when the front doors were locked and the

building was relatively empty. Agent Kyle opened the door for

King and, after patting him down for weapons, led him to the

FBI office. Agent Kyle entered a code to unlock the office door,

which remained unlocked from the inside, and led King to an

interrogation room. Before asking any questions, Agent Kyle

told King he was free to leave at any time and that the interview

was voluntary. Because no other FBI agents were in the

Williamsport office at the time, an agent in the Philadelphia

office listened over the phone.

7

Over the course of several hours, King admitted

performing oral sex on Peanut and traveling to New York for

that purpose. Agent Kyle showed King the incriminating e-

mails he retrieved from Larkin’s account, and then asked King

about his online relationships with other young girls as well as

about the thousands of child pornography images found on

King’s computer. King admitted to a long-standing interest in

sexual contact with young girls that began with his own

daughter. When the interview ended, visiting hours at the

Clinton County Correctional Facility were over, so Agent Kyle

tried to arrange for King to visit Larkin, but he was

unsuccessful. King then departed.

II.

Larkin was indicted in the Middle District of

Pennsylvania on February 26, 2004. On April 8, 2004, a

superseding indictment charged King with the offense at issue

in this appeal (18 U.S.C. § 2241(c)) and he promptly

surrendered to authorities. One year later, on April 15, 2005, a

second superseding indictment added charges against King for

sending and causing the receipt of child pornographic images

through interstate commerce in violation of 18 U.S.C.

§ 2252(a)(1)(A) and conspiracy to destroy evidence and obstruct

an official proceeding under 18 U.S.C. § 1512(c).

After entering a plea of not guilty, King moved to

suppress all evidence obtained on February 19, 2004, claiming

that the entry into his home and the seizure of Larkin’s computer

violated the Fourth Amendment. King also argued that his

statements to Agent Kyle on March 6, 2004 should be

8

suppressed because the interrogation violated his Fifth

Amendment rights under Miranda v. Arizona, 384 U.S. 436,

467-68 (1966). The District Court denied the motion on April

13, 2006, finding the entry into King’s home valid because the

police had an arrest warrant and probable cause to believe that

Larkin was in the home.2 The District Court also held that

seizure of the computer was proper because Larkin consented

and King assumed the risk of Larkin’s consent by installing his

hard drive therein.3 Finally, the District Court held that the

interrogation did not violate Miranda because it was not

custodial.

Following the District Court’s denial of his motion to

suppress, on April 17, 2006, King entered a conditional guilty

plea to one count of violating 18 U.S.C. § 2241(c). In exchange

for King’s plea, the Government agreed to: (1) dismiss the other

charges; (2) recommend a two-point downward departure for

acceptance of responsibility under section 3E1.1(a) of the

2

Alternatively, the District Court held that entry was

justified by exigent circumstances because Peanut was in

danger. We do not reach this issue.

3

Alternatively, the District Court held—as does our

concurring colleague, Judge Fuentes—that the seizure was

justified by exigent circumstances. We do not reach this issue.

Although Judge Sloviter fully agrees with this opinion, she does

not disagree with Judge Fuentes’s concurrence and believes that

under either rationale there is no constitutional objection to the

seizure of the computer.

9

United States Sentencing Guidelines (USSG); and (3)

recommend a one-level downward departure for substantial

assistance under USSG § 5K1.1. During the plea colloquy,

King admitted that “one of the many reasons” he traveled to and

from Buffalo was to have sex with Peanut, a minor under the

age of twelve. The District Court accepted King’s guilty plea.

On October 15, 2006, King’s attorney moved to withdraw

as counsel and to withdraw King’s guilty plea. The District

Court appointed new counsel, who argued that King should be

allowed to withdraw his guilty plea because he was innocent and

because the Government failed to turn over various documents,

including Brady materials. The District Court denied King’s

motion on June 8, 2007, finding insufficient justification for

withdrawal of the plea because King did not assert actual

innocence and because all materials were turned over to King’s

attorneys in a timely fashion.

On October 11, 2007, King filed a second motion to

withdraw guilty plea, this time claiming that he lacked the

requisite mental capacity to enter a valid guilty plea. The

District Court denied that motion on May 16, 2008, finding King

was mentally competent based on testimony from his prior

counsel and his conduct in court. After resolving these motions,

the District Court ordered the preparation of a fourth version of

the Presentence Investigation Report, scheduled a conference for

August 25, 2008, and ultimately scheduled a presentence

hearing for October 25, 2008.

The District Court determined King’s applicable

Sentencing Guidelines range and ruled on all departure motions

10

on February 4, 2009.4 The District Court began with a base

offense level of 27 and added the following upward departures

under the Sentencing Guidelines: (1) four levels because the

victim was under the age of twelve, § 2A3.1(b)(2); (2) two

levels for care, custody or supervisory control over the victim,

§ 2A3.1(b)(3)(A); (3) two levels because a computer was used

to facilitate the travel, § 2A3.1(b)(6)(B); (4) two levels for

obstruction of justice, § 3C1.1; and (5) five levels for

aggravating circumstances, § 5K2.0(a)(1)(B). The District

Court also denied downward departures for acceptance of

responsibility under § 3E1.1 and substantial assistance under

§ 5K1.1. In the final analysis, King’s total offense level was 42

and his criminal history category was II, resulting in a

Guidelines range of 360 months to life imprisonment.

The District Court sentenced King on March 16, 2009.

The sentencing hearing included testimony from Peanut’s

guardian, which was taken in camera and sealed. In open court,

the District Court considered the 18 U.S.C. § 3553(a) factors

and sentenced King to 360 months imprisonment, supervised

release for a term of life, and the mandatory $100 special

assessment. King filed this timely appeal, claiming that the

District Court erred in: (1) denying his motion to suppress; (2)

denying his motion to withdraw guilty plea; and (3) sentencing

4

The District Court applied the 2003 version of the

Sentencing Guidelines.

11

him to 360 months in prison. We address each argument in

turn.5

III.

We begin by considering King’s motion to suppress, in

which he argued that his Fourth and Fifth Amendment rights

were violated. We “review[] the District Court’s denial of a

motion to suppress for clear error as to the underlying factual

findings and exercise[] plenary review of the District Court’s

application of the law to those facts.” United States v. Perez,

280 F.3d 318, 336 (3d Cir. 2002).

A.

King claims the police violated the Fourth Amendment

when they entered his house on February 19, 2004 and seized

his hard drive without a warrant or his consent. He does not

dispute that Larkin consented to the seizure of her computer,

which included the hard drive that King had installed. Nor does

the Government dispute that King objected to the seizure of his

hard drive and asked agents for the opportunity to remove it

from Larkin’s computer. These facts present a novel question

of law: when an owner of a computer consents to its seizure,

does that consent include the computer’s hard drive even when

it was installed by another who claims ownership of it and

objects to its seizure?

5

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291.

12

Answering the pivotal question in the negative, King

relies on Georgia v. Randolph, where the Supreme Court held

that police cannot search a home based on one resident’s

consent when another resident objects to the search. 547 U.S.

at 122-23. The District Court considered this argument and

rejected it, relying on United States v. Matlock, 415 U.S. 164

(1974), where the Supreme Court held that granting a third party

“common authority” over personalty “assume[s] the risk” that

the third party will consent to its search. Id. at 170-71.

Although both Randolph and Matlock bear on our

decision in this appeal, we find neither one controlling because

the facts of this case place it somewhere between those cases.

In Matlock, the Supreme Court established that consent from

one with “common authority . . . is valid as against the absent,

nonconsenting person with whom that authority is shared.” 415

U.S. at 170-71 & n.7 (emphasis added). The Court reasoned

that when someone grants common authority to another, he

assumes the risk that the co-user will consent to a search of that

common area or item. Id. Although this rule specifically

applies to either “premises or effects,” id., the Court was not

faced with a situation—like the instant appeal and

Randolph—where another party is present and objecting to the

police action.

In Randolph, although the Supreme Court resolved the

question of an objecting resident’s ability to vitiate the consent

of his co-tenant, the Court was not presented with a

situation—like the instant appeal and Matlock—where personal

“effects” were at issue. Randolph merely held “that a

warrantless search of a shared dwelling for evidence over the

13

express refusal of consent by a physically present resident

cannot be justified as reasonable as to him on the basis of

consent given to the police by another resident.” 547 U.S. at

120 (emphasis added).

To our knowledge, the only federal appellate decision to

address this issue after Randolph is the Ninth Circuit’s alternate

holding in United States v. Murphy, 516 F.3d 1117, 1124 (9th

Cir. 2008), which was not cited by the parties. In that case,

Murphy was living in, and running a methamphetamine lab out

of, a storage unit rented by Roper. Id. at 1119. Police searched

the unit based on Roper’s consent, even though Murphy

objected. Id. at 1119-20. Citing Randolph, Murphy argued that

his objection overcame Roper’s consent. Id. at 1121. The Ninth

Circuit agreed, finding the storage unit was a dwelling, albeit an

unconventional one. Id. at 1124. In the alternative, the Ninth

Circuit opined that Randolph would apply even if the unit were

not a dwelling, because “there is no reason that the rule in

Randolph should be limited to residences.” Id. The Ninth

Circuit reasoned that Randolph is based on “common authority,”

which had been extended “well beyond residences.” Id.

As we shall explain, our reading of Randolph leads us to

disagree with the Ninth Circuit’s reasoning in Murphy.

Although the majority opinion in Randolph did not directly

address personalty, our review of three opinions filed in

Randolph leads us to conclude that the Supreme Court implicitly

limited its holding to searches and seizures of the home. To

fully understand that implication, we must begin with the

primary dissent.

14

In his dissent, Chief Justice Roberts addressed our issue

directly, explaining that Matlock provides the baseline rule for

co-user objections to searches of personal effects. Randolph,

547 U.S. at 128 (Roberts, C.J., dissenting). Co-user consent is

effective because the act of sharing property frustrates the

owner’s reasonable expectation of privacy with regard to the co-

user. Id. at 131 (“by sharing private space, privacy ‘has already

been frustrated with respect to’” the person with whom it is

shared (quoting United States v. Jacobsen, 466 U.S. 109, 117

(1984))). Consequently, once an owner shares personalty or a

secret, he assumes the risk that his confidante will share it with

the police. Id. Furthermore, after the owner relinquishes his

reasonable expectation of privacy regarding the confidante, his

presence and objection cannot undermine her consent. Id. at

128, 131. Chief Justice Roberts illustrated this rule with an

example that anticipated the facts presented here: “If two

roommates share a computer and one keeps pirated software on

a shared drive, he might assume that his roommate will not

inform the government. But that person has given up his

privacy with respect to his roommate by saving the software on

their shared computer.” Id. at 131. The dissent also argued that

this rule should extend to the home:

[J]ust as an individual who has shared illegal

plans or incriminating documents with another

cannot interpose an objection when that other

person turns the information over to the

government, just because the individual happens

to be present at the time, so too someone who

shares a place with another cannot interpose an

objection when that person decides to grant access

15

to the police, simply because the objecting

individual happens to be present.

Id. at 128.

Writing for the Court in Randolph, Justice Souter never

disagreed with Chief Justice Roberts about the rule for

personalty. In fact, Justice Souter rejected the dissent’s attempt

to equate the home with a secret as a “false equation [that]

suggests a deliberate intent to devalue the importance of the

privacy of a dwelling place.” 547 U.S. at 115 n.4. This

rejoinder strongly implies that the majority agreed with the

dissent’s rule for personalty and secrets but rejected it as to the

home because of the home’s privileged status in Fourth

Amendment jurisprudence. See, e.g., id. Furthermore, the

majority crafted its rule using terms that apply solely to

dwellings. For example, when explaining the “fine line” drawn

between Randolph and prior precedents, the Court stated that

Randolph applies “if a potential defendant with self-interest in

objecting is in fact at the door and objects.” Id. at 121. These

terms, combined with the majority’s emphasis on the sanctity of

the home, strongly imply that the Randolph rule applies only to

a dwelling place.

We also find it significant that the majority’s fifth vote in

Randolph limited his concurrence to the facts of the case. 547

U.S. at 127 (Breyer, J., concurring) (joining the majority

“[g]iven the case-specific nature of the Court’s holding”). Like

the majority, Justice Breyer used terms that apply only to a

dwelling, without making any reference to personal effects. See,

16

e.g., id. at 126-27 (referring to “officers seeking to enter the

house” and “to enter a home” (emphasis added)).

In sum, our reading of Justice Souter’s opinion for the

Court, Justice Breyer’s concurrence, and Chief Justice Roberts’s

dissent, leads us to conclude that the rule of law established in

Randolph does not extend beyond the home.6

Because Randolph does not apply to personal effects,

King’s suppression argument necessarily fails. A computer is

a personal effect, see, e.g, Andrus, 483 F.3d at 718-20

6

Contrary to the concurrence’s assertion, this rule does

not risk encroaching on Fourth Amendment rights. Computer

users can protect their files by using a password, just as one who

shares a footlocker can protect his photographs by placing them

in a locked container inside the footlocker. See, e.g., United

States v. Andrus, 483 F.3d 711, 718-20 (10th Cir. 2007); United

States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) (explaining that

consent to search an area does not include consent to search

locked containers in that area); see also Randolph, 547 U.S. at

135 (Roberts, C.J., dissenting) (“To the extent a person wants to

ensure that his possessions will be subject to a consent search

only due to his own consent, he is free to place these items in an

area over which others do not share access and control, be it a

private room or a locked suitcase under a bed.”). For example,

in Trulock v. Freeh, the Fourth Circuit found that a defendant

who protected his files with a password, had not “assumed the

risk” that his co-user “would permit others to search his files.”

275 F.3d 391, 403 (4th Cir. 2001).

17

(analogizing a computer to a container). Therefore, we apply

the Matlock rule and ask whether King relinquished his privacy

in the hard drive with respect to Larkin. Here, King placed his

hard drive inside the computer Larkin owned and that the two of

them shared, without any password protection. As a result, he

assumed the risk that Larkin would consent to its seizure.

Accordingly, the District Court did not err in holding that the

seizure of Larkin’s computer did not violate the Fourth

Amendment and evidence derived therefrom was admissible

against King.

B.

We next turn to King’s claim that Troopers Coyle and

Rodriguez violated the Fourth Amendment when they entered

93 Pennypacker Road to execute the arrest warrant on Larkin.

Officers may enter a third party’s residence to arrest the subject

of an arrest warrant if they have probable cause to believe she is

inside. United States v. Agnew, 407 F.3d 193, 196 (3d Cir.

2005). In assessing “whether the police had probable cause to

believe a suspect was residing and present in a home, we apply

a common sense approach and consider the facts and

circumstances within the knowledge of the law enforcement

agents, when viewed in the totality.” United States v. Veal, 453

F.3d 164, 167-68 (3d Cir. 2006) (internal quotation omitted).

King claims the State Police lacked probable cause to

enter his residence because the phone number initially was

traced to a post office box and they failed to stake out King’s

home to determine whether Larkin was inside. King correctly

notes that the phone number Larkin gave to McCullen was

18

initially traced to a post office box. As the District Court noted,

however, the Government quickly traced the phone number to

93 Pennypacker Road after determining that the number quite

obviously could not apply to a post office box. Accordingly, the

District Court committed no error—much less clear

error—when it found that the telephone number “was ultimately

traced” to King’s home.

The District Court did commit one factual error which, to

its credit, the Government acknowledges. The District Court

found that McCullen told the officers Larkin moved to the Berks

County area. In fact, McCullen told Agent Kyle that he did not

know where Larkin went after she left Buffalo. Therefore, we

evaluate whether probable cause existed to believe that Larkin

was in King’s residence without considering this errant fact.

Applying plenary review to the properly found facts, we

hold the State Police had probable cause to believe Larkin was

in King’s residence. The State Police knew not merely that

Larkin had left Buffalo; they knew that a few hours earlier

Larkin said she and Peanut could be reached at a phone number

traced to 93 Pennypacker Road. Under the totality of the

circumstances, these facts provided probable cause for the State

Police to believe Larkin was at King’s residence when they went

there to execute the arrest warrant.

C.

King also claims a violation of his Fifth Amendment

rights on March 6, 2004, when Agent Kyle interviewed him at

the Williamsport FBI office without administering Miranda

19

warnings. The disposition of this question turns on whether that

interview constituted a “custodial interrogation.”

Miranda applies to those “in custody.” Miranda, 384

U.S. at 467-68. One is “in custody” when the authorities say or

do something objectively indicating “they would not have

heeded a request to depart or to allow the suspect to do so.”

United States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006).

We consider five factors to determine whether King was

objectively free to leave:

(1) whether the officers told the suspect he was

under arrest or free to leave; (2) the location or

physical surroundings of the interrogation; (3) the

length of the interrogation; (4) whether the

officers used coercive tactics such as hostile tones

of voice, the display of weapons, or physical

restraint of the suspect’s movement; and (5)

whether the suspect voluntarily submitted to

questioning.

Id. at 359-60.

Applying the five factors to the facts of this case, some

favor King’s position and some favor the Government’s

position. The second and third factors—the location of the

interrogation and its length—favor King. The FBI office is

inherently more intimidating than most locations such as a

business office, an automobile, or a public street. Likewise, the

interrogation was fairly long, lasting several hours. On the other

hand, the first, fourth, and fifth factors all favor the

20

Government. Agent Kyle specifically told King he was not

under arrest, the office door was not locked from the inside,

King could have exited at any time, and there is no evidence that

Agent Kyle used any coercive tactics. Finally, King voluntarily

submitted to the questioning after previously refusing, and

departed when he chose to do so. Therefore, it was objectively

reasonable for King to think he was free to leave.

Our conclusion is supported by the factual similarity

between this appeal and the interrogation that the Supreme

Court held to be non-custodial in Oregon v. Mathiason, 429

U.S. 492 (1977). In that case, “Mathiason (1) had come to the

station voluntarily, (2) was informed that he was not under

arrest, and (3) left the interview without hindrance.” United

States v. Jacobs, 431 F.3d 99, 106 (3d Cir. 2005) (citing

Mathiason, 429 U.S. at 495). Accordingly, we hold that King

was not “in custody” for purposes of Miranda, so the District

Court did not err in finding no violation of King’s Fifth

Amendment rights.

IV.

We next address King’s challenge to the District Court’s

denial of his motion to withdraw guilty plea. King bore a

“substantial” burden, United States v. Jones, 336 F.3d 245, 252

(3d Cir. 2000), of showing a “fair and just reason” for the

withdrawal of his plea. Fed. R. Crim. P. 11(d)(2). We review

the District Court’s denial of a motion to withdraw guilty plea

for abuse of discretion. United States v. Brown, 250 F.3d 811,

815 (3d Cir. 2001).

21

In determining whether a “fair and just reason” existed

for withdrawal of a defendant’s plea, district courts consider

whether: (1) the defendant “asserts his innocence;” (2) the

defendant proffered strong reasons justifying the withdrawal;

and (3) the government would be prejudiced by the withdrawal.

United States v. Martinez, 785 F.2d 111, 114 (3d Cir. 1986).

King claims to have satisfied all three factors.

King purports to have asserted innocence when he argued

to the District Court that he was “factually innocent in the

Middle District” because all of his sexual contact with Peanut

occurred at his home in the Eastern District of Pennsylvania.

This argument, first proffered in the motion to withdraw, fails

for several reasons.

First, King waived this issue. He tries to avoid waiver by

framing his claim of actual innocence as a non-waivable

jurisdictional defect, but his effort fails because all federal

courts have jurisdiction to hear criminal cases arising under

federal statutes such as 18 U.S.C. § 2241(c). 18 U.S.C. § 3231;

see also United States v. Polin, 323 F.2d 549, 556 (3d Cir.

1963). As we have explained, challenges to the appropriate

district court are actually challenges to venue. United States v.

Robinson, 167 F.3d 824, 829 (3d Cir. 1999). By pleading guilty

in the United States District Court for the Middle District of

Pennsylvania, King waived any claim of improper venue. See

Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007)

(holding entry of a guilty plea waives all non-jurisdictional

issues).

22

Second, even had King preserved the argument, venue

was proper in the Middle District of Pennsylvania because it

was a “district wherein the crime shall have been committed.”

U.S. Const. amend. VI. The offense of interstate transportation

to engage in sex with a minor contains three elements: (1)

crossing interstate lines; (2) with the intent to engage in a sexual

act with a minor; and (3) either performing or attempting to

perform the act. 18 U.S.C. § 2241(c); see also United States v.

Cryar, 232 F.3d 1318, 1321-22 (10th Cir. 2000). Because this

a continuing offense, venue is appropriate in any district where

King transported or abused Peanut. 18 U.S.C. § 3237(a)

(“[A]ny offense against the United States . . . committed in more

than one district, may be inquired of and prosecuted in any

district in which such offense was begun, continued, or

completed.”); see also Cryar, 232 F.3d at 1321-22 (applying 18

U.S.C. § 3237(a) to prosecutions under 18 U.S.C. § 2241(c)).

Because King drove through the Middle District of

Pennsylvania on his way to and from Buffalo, New York, venue

was appropriate there.

Apart from his venue argument, King advances the

specious claim that although he intended to transport Peanut and

intended to have sex with her, he asserted innocence because he

did not admit to having the requisite intent while crossing state

lines. But the requisite intent may be formed at any point during

the “interstate travel” as long as the defendant traveled “for the

purpose of engaging in the unlawful sexual act.” United States

v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006) (citing United

States v. Hayward, 359 F.3d 631, 638 (3d Cir. 2004)); see also

Cryar, 232 F.3d at 1324 (pointing to evidence from before the

23

drive, including conversations expressing sexual interest in the

attempted victim).

Furthermore, the evidence shows that having sex with

Peanut was the purpose of King’s travel and that he formed this

purpose before he drove to Buffalo, not a week later, as he

claims. A bald assertion of innocence is inadequate; it must be

supported by the facts. Brown, 250 F.3d at 818. Here, e-mails

and instant messages King sent to Larkin and others demonstrate

that he intended to have sex with Peanut. For example, while

discussing Larkin’s request to move in, King reminded her of

his “fantasy” and Larkin asked King if Peanut “would be

enough” to satisfy him. King also told others of his sexual

interest in Peanut. Finally, King admitted to Agent Kyle that

when he left for Buffalo he knew he would have sex with

Peanut, and he admitted engaging in sex acts with Peanut

multiple times during her first week in Mohnton. For all these

reasons, the District Court did not abuse its discretion when it

found that King did not assert actual innocence.

As for the second prong—reasons justifying the

withdrawal—King simply rehashes his “factual innocence”

argument, claiming lack of jurisdiction is the most compelling

reason to allow withdrawal of his guilty plea. King was

required, however, to explain why he changed his mind

following his guilty plea. United States v. Jones, 336 F.3d 245,

253 (3d Cir. 2003). King could have objected to venue much

sooner and cites no reason for his belated change of heart. The

absence of any explanation is strong support for the District

Court’s finding that King suffered from “pleader’s remorse”

once he learned of the proposed Guidelines range in his

24

Presentence Investigation Report.7 But changing one’s mind is

not a sufficient reason to justify withdrawal of a guilty plea.

E.g., United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998).

Therefore, the District Court did not abuse its discretion when

it found that King failed to proffer strong reasons justifying the

withdrawal of his plea.

We cannot find a “fair and just reason” to justify

withdrawal of King’s guilty plea because he failed to satisfy

either the first or second prong of the test. Therefore, we hold

that the District Court did not abuse its discretion when it denied

King’s motion to withdraw guilty plea.8

7

The District Court made King aware during the plea

colloquy that it could impose punishments up to the statutory

maximum punishment of life imprisonment, $250,000 in fines,

a $100 special assessment, and a life term of supervised release,

in addition to restitution. And King specifically acknowledged

that potential maximum sentence. But as of that date, the initial

proposed Guidelines range, not including the § 5K1 motion, was

151 to 168 months. King first moved to withdraw his guilty

plea less than two months after he received the Presentence

Investigation Report, which proposed a Guidelines range of 360

months to life.

8

King also challenges his competence to enter the guilty

plea but as the District Court found, King was competent. In

addition to King’s attorneys testifying that he was competent,

King alertly caught a nuanced mistake during the plea colloquy,

which shows that he understood the proceeding and the rights he

25

V.

We now turn to King’s appeal of his sentence. King

acknowledges that the District Court properly calculated his

initial Guidelines range, but claims it erred when ruling on

various departure motions and failed to grant him a downward

variance under 18 U.S.C. § 3553(a).

At step two of the test we established in United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006), the District Court

denied the Government’s motion for a downward departure for

acceptance of responsibility under USSG § 3E1.1, while

imposing a five level upward departure for aggravating

circumstances under § 5K2.0. King appeals both of those

decisions, which we review for abuse of discretion.9 United

States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

A.

was waiving.

9

King also appeals the denial of the Government’s

motion for a downward departure for substantial assistance

under § 5K1.1. But we lack jurisdiction to review such a denial

unless the District Court was unaware of its discretion to grant

the motion, United States v. Cooper, 437 F.3d 324, 332-33 (3d

Cir. 2006), abrogated on other grounds by Kimbrough v. United

States, 552 U.S. 85 (2007), and King does not argue that the

District Court lacked such knowledge.

26

The District Court denied the Government’s motion for

a two-level reduction for acceptance of responsibility under

§ 3E1.1 because King obstructed the investigation, subsequently

denied elements of the crime, and blamed his crime on others,

including the victim. King claims he is entitled to the departure

because he saved taxpayers the cost of a trial, assisted the FBI,

and surrendered promptly. The Guidelines require a defendant

to “clearly demonstrate[] acceptance of

responsibility,”§ 3E1.1(a), and we give the District Court “great

deference on review,” because “the sentencing judge is in a

unique position to evaluate the defendant’s acceptance of

responsibility.” Id. App. Note 5; see also United States v.

Dullum, 560 F.3d 133, 142 (3d Cir. 2009).

The District Court based its decision on the Guidelines

Application Notes, which outline some of the appropriate

factors to consider in determining whether a defendant “clearly

demonstrate[d]” acceptance of responsibility. These factors

include admitting all elements of the offense and “relevant

conduct,” voluntarily assisting in the investigation, surrendering

to authorities promptly and voluntarily, and timely accepting

responsibility. See § 3E1.1 App. Note 1(a), (d), (e) & (h). In

contrast, factors that show lack of acceptance include “falsely

den[ying], or frivolously contest[ing], relevant conduct that the

court determines to be true,” Id. App. Note 1(a), and receiving

an upward departure under § 3C1.1 for obstruction. § 3E1.1

App. Note 4 (the obstruction enhancement “ordinarily indicates

that the defendant has not accepted responsibility for his

conduct”).

27

Although King promptly surrendered to police, admitted

his criminal conduct to the FBI, and pleaded guilty, the record

is replete with other evidence that he did not accept

responsibility. First, King’s initial admissions and guilty plea

were undermined when he recanted some of those admissions

and later sought to withdraw his guilty plea, claiming he was not

guilty. Second, after admitting criminal intent during his plea

colloquy, King later raised specious arguments denying as

much. Third, King received a § 3C1.1 upward departure for

obstruction of justice because he destroyed three hard drives

containing evidence and taught Amerine how to destroy a

computer’s hard drive. Finally—and most remarkably—King

has consistently attempted to blame others for his reprehensible

conduct. He blamed Larkin for pressuring him to have sex with

Peanut, claiming he declined her offers for a few days. Most

disturbingly, King even blamed his two-year-old victim,

claiming she initiated some sexual encounters by climbing on

his lap.

For all the foregoing reasons, ample evidence supports

the District Court’s denial of the Government’s motion for

downward departure for acceptance of responsibility.10

10

King also argues that entering a guilty plea, by itself,

automatically entitles him to a one-level departure under

Dullum. As the District Court explained, however, entering a

guilty plea does not entitle a defendant to the § 3E1.1 adjustment

“as a matter of right.” § 3E1.1 App. Note 3. We did not reverse

the District Court’s grant of such a one-level downward

departure in Dullum because the issue was not raised on appeal.

28

B.

King received a five level upward departure under

§ 5K2.0(a)(1)(B), which applies when “there exists an

aggravating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines.” The District Court

found two aggravating circumstances: (1) subsequent statutory

and Guidelines amendments show that the applicable Guidelines

do not sufficiently punish the crime; and (2) King’s pattern of

sexually abusing minors, including his own daughter, places his

conduct outside the heartland and warrants greater punishment

than the ordinary case.

King first argues that the District Court violated the

Guidelines’ mandate to apply the lower level when there has

been an amendment, by relying on Guidelines amendments that

post-dated his conduct. USSG § 1B1.11. Contrary to King’s

argument, the District Court did not apply the subsequent

amendment. Rather, it considered the Congressional finding

behind those amendments to ascertain whether the applicable

Guidelines punish his crime adequately. Given Congress’

significant role in sentencing, its finding on the adequacy of the

Guidelines is an appropriate consideration. “It is, after all,

Congress-not the judiciary-[which] is vested with the authority

to define, and attempt to solve . . . societal problems.” United

States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008) (internal citations

560 F.3d at 142 n.8. We did, however, deny that the departure

was required. Id.

29

and quotations omitted). Although King correctly notes that the

District Court’s reliance on Congressional findings was based

on decisions of the First, Fourth and Seventh Circuits, rather

than this Court, we now join those courts in holding that such

reliance is proper. See id.; United States v. Grigg, 442 F.3d 560,

564-65 (7th Cir. 2006); United States v. Hecht, 470 F.3d 177,

182 (4th Cir. 2006).

King also claims the District Court did not have an

adequate basis for finding his conduct outside the heartland

because it failed to cite statistics. But we have never required a

District Court to cite statistics in support of its § 5K2.0

determinations. Instead, we have established the following three

steps: (1) “identify the factor or factors that potentially take the

case outside the Guidelines’ ‘heartland’ and make it special or

unusual”; (2) “determine whether the Guidelines forbid

departures based on the factor, encourage departures based on

the factor, or do not mention the factor at all”; and (3) follow the

rule from step two and, if unmentioned, “the court must, after

considering the structure and theory of both relevant individual

guidelines and the Guidelines taken as a whole, decide whether

[the factor] is sufficient to take the case out of the Guideline’s

heartland.” United States v. Iannone, 184 F.3d 214, 226 (3d Cir.

1999) (citing and quoting Koon v. United States, 518 U.S. 81,

94-96 (1996)). In addition to the abuse of discretion standard

applied to sentencing determinations, the District Court’s

§ 5K2.0 determination is entitled to heightened deference

because district courts “see many more Guidelines cases than

appellate courts do,” which give them an “institutional

advantage . . . over appellate courts in determining whether the

facts of a given case take it out of the ‘heartland’ of Guidelines

30

cases.” Iannone, 184 F.3d at 227 (citing and quoting Koon, 518

U.S. at 98).

The District Court identified King’s pattern of repeated

sexual abuse as the factor that takes his conduct outside the

heartland of the offense. The Guidelines under which the

District Court enhanced King’s advisory sentencing range

account for the victim’s age, the defendant’s responsibility for

the victim’s care and the use of a computer in the offense.

§§ 2A3.1(a), (b)(2)(A), (3), (6). But those Guidelines do not

take into account King’s repeated abuse of his daughter or his

online predation of minors.

Although King was not criminally charged for abusing

his daughter, it was proved relevant conduct. See United States

v. Watts, 519 U.S. 148, 156 (1997). In addition to the damning

e-mails, King admitted to Agent Kyle, and later Probation

Officer Noll, that he performed oral sex on his daughter,

explaining that it started when she had a diaper rash at six

months old and continued because “it made her feel good.”

In addition to sexually abusing his daughter, King spent

“countless hours” online talking to young girls to, in his words,

“sexually initiate” them and to satisfy his desires. He taught

them how to masturbate and sent them pictures of child

pornography and his own genitals. King requested pictures of

them and asked for their addresses to arrange encounters. He

even bragged to others with similar predilections about how

many girls he engaged online. Thus, a plethora of evidence

supports the District Court’s finding that King repeatedly

31

sexually abused minors and that such abuse was not covered by

the applicable Guidelines.

The Guidelines listing encouraged and discouraged

factors for departures do not mention repeated abuse. §§ 5H1.1-

1.12, 5K2.0-2.23. Consequently, at step three the District Court

determined that King’s pattern of sexual abuse was sufficient to

take his case outside the heartland in light of similar Guidelines

that contain enhancements for recurring abuse. See Iannone,

184 F.3d at 228-29 (making this determination based on “two

areas of the Guidelines [that] provide specific bases for upward

departures based on conduct similar” to the defendant’s). For

example, some child pornography offenses warrant a five-level

upward departure for “a pattern of activity involving the sexual

abuse or exploitation of a minor.” § 2G2.2(b)(4).11 The

Application Notes explain that “pattern” means “two or more

separate instances” of the conduct, regardless of whether they

“(A) occurred during the course of the offense; (B) involved the

same or different victims; or (C) resulted in a conviction for

such conduct.” Id. App. Note 1. Even though that

“enhancement does not apply to [King’s] conduct, its rationale

does.” Iannone, 184 F.3d at 228. He repeatedly sexually abused

both his daughter and Peanut. As § 2G2.2(b)(4) shows, this

11

That Guideline also provides a five-level upward

departure for distributing child pornography to a minor, §

2G2.2(b)(2)(C), and seven levels for distributing with intent to

persuade, induce or facilitate the minor’s traveling for sexual

conduct. § 2G2.2(b)(2)(D). Both of those offenses are

analogous to King’s online prowling.

32

repeated abuse creates social harm that is not addressed by a

Guideline that applies to a single instance of abuse. Therefore,

the District Court did not abuse its discretion in departing based

on King’s repeated abuse.

Once the District Court found that a departure was

appropriate, it was also required to set the amount of the

departure by “analogizing to existing Guidelines provisions.”

Iannone, 184 F.3d at 229. Importantly, “[w]e are dealing here

with analogies to the guidelines, which are necessarily more

open-textured than applications of the guidelines.” United

States v. Baird, 109 F.3d 856, 872 (3d Cir. 1997) (citation

omitted). Here, § 2G2.2(b)(5) provides a five-level upward

departure for “a pattern of activity involving the sexual abuse or

exploitation of a minor,” which is consistent with King’s

conduct. The analogous Guidelines contain departures of five,

seven, and eleven levels. Here, the District Court adopted the

lowest of those, which was not an abuse of discretion.

C.

After establishing King’s Guidelines imprisonment range

as 360 months to life, the District Court applied the factors of 18

U.S.C. § 3553(a) and determined that 360 months incarceration

was just and reasonable. King claims his sentence was

procedurally and substantively unreasonable.

As a matter of procedure, the sentencing court must give

“rational and meaningful consideration” to the § 3353(a) factors.

United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en

banc). We do not require the District Court to address every

33

factor, as long as “the record makes clear” that it considered

each factor. Tomko, 562 F.3d at 568. Additionally, the District

Court may decide how much discussion each factor warrants.

United States v. Rita, 551 U.S. 338, 356-57 (2007). As a

substantive matter, the District Court must reasonably apply the

§ 3553(a) factors based on the totality of the circumstances.

Cooper, 437 F.3d at 329-30; Tomko, 562 F.3d at 567.

We review both procedural and substantive

determinations for abuse of discretion. Tomko, 562 F.3d at 567.

If there are no procedural errors, our substantive review is

highly deferential and we will affirm “unless no reasonable

sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.”

Id. at 568.

King claims the District Court failed to give meaningful

consideration to his “history and characteristics,” 18 U.S.C.

§ 3553(a)(1), because it did not consider that he came from a

“broken home” and was himself a victim of sexual abuse. The

Government concedes that the District Court’s discussion of

King’s history and characteristics did not mention those facts,

but notes that the District Court addressed King’s history of

abuse in the context in which it was raised.

During the sentencing hearing, King’s attorney briefly

outlined King’s childhood abuse as a basis for the District Court

to find him mentally incompetent, or at least “a damaged

person.” Counsel concluded that point by saying “the identified

problems that Mr. King has are not . . . genetic . . . and therefore

something had to happen to him.” The District Court addressed

34

King’s mental heath issues, “agree[ing] with [defense counsel]

that there are myriad mental health questions that arise from the

testimony that this court has received” but concluded that King

was competent. After King’s attorney discussed the abuse in

only one sentence, the District Court was not required to address

the issue in detail, especially given its considerable discretion.

Therefore, the District Court committed no procedural error at

King’s sentencing. See Rita, 551 U.S. at 356-57.

Absent a procedural error, we review King’s substantive

challenges for abuse of discretion to determine whether the

§ 3553(a) “factors were reasonably applied to the circumstances

of the case.” Cooper, 437 F.3d at 330. We will affirm if a

“reasonable sentencing court would have imposed the same

sentence on that particular defendant for the reasons the district

court provided.” Tomko, 562 F.3d at 568. King raises several

substantive challenges, none of which overcomes this high

hurdle.12

12

King argues that the District Court improperly counted

the severity of the crime, his failure to accept responsibility and

his obstruction when deciding both departures and

reasonableness under § 3553(a). Such double counting is

allowed, however. Tomko, 562 F.3d at 583 (“[U]nder § 3553(a),

the District Court was permitted to give further weight to a

factor covered by a specific Guidelines provision.”); United

States v. Greenidge, 495 F.3d 85, 103 (3d Cir. 2007) (“We

emphasize that a sentencing court is not prohibited from

considering the factual basis underlying a defendant’s sentence

enhancement [in the § 3553(a) analysis], and indeed, should

35

First, King claims his sentence is unreasonable because

his conduct was not more severe than other abusers of Peanut

who received shorter sentences and because his conduct was less

severe than Larkin’s, who also was sentenced to 360 months

imprisonment. Although King admits that his conduct was

severe, he argues that another perpetrator inflicted worse harm

by infecting Peanut and her older sister with a sexually

transmitted disease. Similarly, King argues that his conduct was

less severe than Larkin’s because she sought out men to abuse

her own daughter. We are unpersuaded by these comparisons

because sentencing disparities are unreasonable only when the

defendants are similarly situated. 18 U.S.C. § 3553(a)(6)

(requiring the sentencing court to consider “the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct”); see

also United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006)

(citing 18 U.S.C. § 3553(a)(6)).

The District Court properly distinguished King’s conduct

from that of Larkin and the other perpetrators. The only

perpetrator convicted of the same crime as King received a

lower sentence because, unlike King, he accepted responsibility,

provided substantial assistance, did not obstruct the

investigation and had a lower criminal history. The other

perpetrators were sentenced for lesser crimes, did not have

regular contact with Peanut, and did not exercise care or control

over her. As for Larkin, she pleaded guilty to a lesser crime

consider those facts in order to tailor the sentence to the

defendant’s individual circumstances.”).

36

than King.13 Those differences justify King’s term of

incarceration. See Parker, 462 F.3d at 278 (holding co-

defendants were not similarly situated because one had a less

extensive criminal history).

Second, King claims that the District Court’s sentence

was substantively unreasonable because it did not consider the

significance of the abuse King suffered as a child. As we noted

previously, that issue was considered and addressed in the

context in which King’s counsel presented it. The District Court

did not abuse its discretion in this regard.

Third, King claims his sentence was substantively

unreasonable because the District Court lost focus on the

offender because of the appalling nature of the conduct and

ignored his mental health issues. This argument is based on our

decision in United States v. Olhovsky, where the defendant was

18 years old when arrested and presented substantial expert

testimony that he had a uniquely low chance of recidivism. 562

F.3d 530, 547-50 (3d Cir. 2009). For example, the expert

testified that the defendant, who had “subnormal social

development,” was succeeding in treatment and learning to

engage in age-appropriate relationships. Id. at 543, 549-51. The

13

We call it a “lesser crime” because at all relevant times

the maximum sentence for King’s crime of conviction was life

imprisonment, 18 U.S.C. § 2241(c) (both before and after the

2006 amendment), whereas the maximum sentence for Larkin’s

crime of conviction was 30 years imprisonment. 18 U.S.C. §

2251 (amended in 2003 from 20 to 30 years).

37

district court in Olhovsky completely ignored that expert

testimony, even erroneously finding that the defendant was not

responding to treatment. Id. at 548. Furthermore, it committed

procedural error by ignoring several § 3553(a) factors and

focusing solely on “incapacitation, deterrence, and punishment.”

Id. at 547 & 550 n.18. Although it is true that we found

Olhovsky’s sentence substantively unreasonable, id. at 549-51,

our decision must be read in light of the district court’s

procedural errors, which “necessarily raise questions about the

substantive reasonableness of [the] sentence.” Id. at 553.

We disagree that King’s case is analogous to Olhovsky.

Here, the District Court committed no procedural error and its

descriptions of King’s conduct as “almost nausea inducing” and

“disturbingly serious” were not erroneous. Quite to the contrary,

the District Court aptly described the nature of King’s crime of

conviction and relevant conduct. Accordingly, we will affirm

King’s sentence.14

14

King also argues that the District Court erred by

considering the subsequent statutory and Guidelines

amendments during its § 3553(a) determination. Like our

analysis regarding departures, it was within the District Court’s

discretion to consider subsequent amendments, without applying

them, during its § 3553(a) determination. See United States v.

Goff, 501 F.3d 250, 257 n.12 (3d Cir. 2007) (relying on a

subsequent amendment to bolster its holding the District Court’s

sentence was unreasonable: the defendant’s “sentence appears

even more unreasonable when measured against the sentencing

range provided in subsequent versions of the Sentencing

38

VI.

For the foregoing reasons, we find no error in the District

Court’s decisions to deny King’s motion to suppress or his

motion to withdraw guilty plea. We also hold that the District

Court’s departure rulings were free of error and its application

of the § 3553(a) factors were neither procedurally nor

substantively unreasonable. We will therefore affirm the

judgment of the District Court in all respects.

Guidelines”).

39

FUENTES, Circuit Judge, concurring.

I concur with Judge Hardiman’s well-crafted and

thorough opinion. I agree with the majority’s conclusion in Part

III.A that the District Court properly denied King’s motion to

suppress the evidence found on the computer seized from his

home. I write separately, however, because I believe that the

seizure of King’s computer hard drive was more properly

justified on the well-settled ground of exigent circumstances and

that the majority need not have adopted a new rule of

constitutional law restricting Georgia v. Randolph to searches

of the home. 547 U.S. 103, 122–23 (2006). In Randolph, the

Supreme Court held that a present cotenant could refuse consent

to a police search, regardless of the consent of a fellow

occupant.

The exigent circumstances exception to the warrant

requirement is well-established. See, e.g., Illinois v. McArthur,

531 U.S. 326, 337 (2001) (Souter, J., concurring) (noting that

the likelihood that property can be destroyed “in anticipation of

a warrant exemplifies the kind of present risk that undergirds the

accepted exigent circumstances exception to the general warrant

requirement”); Couden v. Duffy, 446 F.3d 483, 496 (3d Cir.

2006); accord Schmerber v. California, 384 U.S. 757, 770–71

(1966). Importantly for this case, exigent circumstances include

the prevention of the “imminent destruction of evidence.”

Couden, 446 F.3d at 496 (internal quotation marks & citation

omitted); accord Schmerber, 384 U.S. at 770–71. In the context

of the destruction of evidence, we have described the exigent

circumstances inquiry as follows:

When Government agents . . . have probable

-1-

cause to believe contraband is present and, in

addition, based on the surrounding circumstances

or the information at hand, they reasonably

conclude that the evidence will be destroyed or

removed before they can secure a search warrant,

a warrantless search is justified.

United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973).

A review of the record in our case demonstrates that the

seizure of the computer was clearly justified under the exigent

circumstances exception. As the District Court found, “King

would have possessed the opportunity to tamper with or dispose

of the [computer] in the interim” before the officers retrieved a

search warrant. (App. at 28.) This finding is reviewed for clear

error. United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006)

(citation omitted). The officers possessed probable cause to

believe that the computer contained evidence of a crime, namely

images of child pornography. When Officer Kyle entered the

trailer in Emporium, Pennsylvania, he recognized it as the

location where the pornographic video of Larkin’s daughter was

made. McCullen told Kyle that when Larkin left, she took her

daughter and her computer with her, giving the officers probable

cause to believe that the computer contained evidence of child

pornography and that it would be found at Larkin’s residence.

The officers could also reasonably conclude that the evidence on

the computer would be destroyed or removed by King before

they could return with a warrant. Computer-based evidence is

readily tampered with, and, given Larkin’s arrest, King had a

motivation to destroy any incriminating evidence on the

computer. Accordingly, the District Court’s finding that King

had the opportunity to tamper with the computer was not clear

-2-

error, and the warrantless seizure was justified based on

exigency. I would affirm the denial of the suppression motion

on this ground.

Rather than affirming the District Court on the basis of

exigent circumstances, the majority adopts a narrow

interpretation of Randolph that limits the Supreme Court’s

holding in that case to residences and does not include personal

effects. I respectfully disagree with this approach. Prudential

principles counsel in favor of deciding the instant case on the

basis of well-established precedent rather than reaching a novel

question of Fourth Amendment law. As we can uphold the

seizure of the computer as necessary to prevent the destruction

of evidence, I would do just that. Moreover, this approach

would not substantially hinder law enforcement. The presence

of an objecting co-owner is relevant to the determination of

whether “the evidence will be destroyed or removed before

[officers] can secure a search warrant.” Rubin, 474 F.2d at 268.

The Supreme Court noted as much in Randolph:

Sometimes, of course, the very exchange of

information . . . in front of the objecting

inhabitant may render consent irrelevant by

creating an exigency that justifies immediate

action on the police’s part; if the objecting tenant

cannot be incapacitated from destroying easily

disposable evidence during the time required to

get a warrant, a fairly perceived need to act on the

spot to preserve evidence may justify entry and

search . . . .

547 U.S. at 117 n.6 (internal citations omitted). As anticipated

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by the Supreme Court, King’s presence in the home, his

objection to the seizure, and the ease with which he could have

tampered with the evidence created a “need to act on the spot”

that justified the officers’ actions.

Finally, I am concerned that the rule crafted by the

majority has the potential to permit an encroachment on Fourth

Amendment rights in circumstances in which society would

recognize a reasonable expectation of privacy. Randolph

instructs that “[t]he constant element in assessing Fourth

Amendment reasonableness in the consent cases . . . is the great

significance given to widely shared social expectations.” 547

U.S. at 111. I do not agree with the majority that, by sharing

ownership in personal property, an individual who is present at

the time that officers seek to search or seize that property has

lost his or her right to refuse consent.

Take, for example, the situation in which two co-

inhabitants share a footlocker inside their common residence.

Both individuals have access to, and store items inside, the

footlocker. For safekeeping and privacy purposes, one

individual has placed inside of the footlocker photographs

depicting him engaging in compromising, but legal, conduct.

The police arrive at the shared residence, and the other co-

inhabitant consents to the seizure of the footlocker and the

search of its contents. The person depicted in the photographs

objects, fearing that disclosure of the photographs could

humiliate him and harm his reputation. Under the approach

taken by the majority, by sharing the footlocker, he has forfeited

his expectation of privacy in the photographs and his right to

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shield them from view.1 An analogous scenario involving a

shared computer on which one user has stored compromising

digital photographs can be easily imagined.

The majority relies heavily on the principal dissenting

opinion in Randolph, in which Chief Justice Roberts emphasized

that “in cases of shared information, papers, containers, or

places . . . privacy has been shared with another. Our common

social expectations may well be that the other person will not, in

turn, share what we have shared with them with

another—including the police—but that is the risk we take in

sharing.” 547 U.S. at 131. Positing examples that appear to be

directly applicable to the instant case, the Chief Justice

concluded that by sharing a locker or a computer, one co-owner

has given up his privacy with respect to the other and

“assume[s] the risk that those who have access to and control

over his shared property might consent to a search.” Id. at 134

(internal quotation marks omitted) (alteration in original). As

the Randolph majority clarified, however, the cases on which

Chief Justice Roberts relied were inapposite in one key

aspect—“the potential objector[ was] nearby but not invited to

take part in the threshold colloquy.” Id. at 121. Acknowledging

that it was “drawing a fine line,” the Court nonetheless held that

“a physically present inhabitant’s express refusal of consent to

1

The situation would be very similar with respect to a

self-storage unit leased by two individuals, both of whom are

present when police request consent to search the unit. Keeping

personal effects segregated in such a storage unit through the

use of locks or other barriers would be impractical.

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a police search is dispositive as to him, regardless of the consent

of a fellow occupant.” Id. at 121, 123 (emphasis added).

My colleagues further argue that, in writing for the Court,

Justice Souter declined to expressly disagree with Chief Justice

Roberts’s approach as it applied to personalty; they cite this as

evidence that the Court’s intention was to restrict its holding to

the home. As Randolph involved the search of a home, and

not the search or seizure of personal effects, I hesitate to find

such meaning in Justice Souter’s silence, particularly where,

under prudential principles, we should not be addressing the

issue in the first instance.

As I discuss above, we need not resolve this

constitutional issue of first impression to affirm the District

Court’s denial of King’s suppression motion. Instead, I would

simply hold that the warrantless seizure of the computer was

justified based on the exigent need to prevent the destruction of

evidence.

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