In United States v. Sanchez, No. 19-14002 (Apr. 5, 2022) (Branch, Grant, Ed Carnes), the Court affirmed Mr. Sanchez’s convictions and sentence.

Mr. Sanchez was charged with two counts of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); two counts of enticing a minor to engage in sexually explicit conduct in order to produce child pornography, in violation of 18 U.S.C. § 2251(a); two counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); and one count of having committed a felony offense involving a minor while already a registered sex offender, in violation of 18 U.S.C. § 2260A.  He was found guilty after trial of all counts and sentenced to life imprisonment plus a consecutive ten-year mandatory minimum.

Mr. Sanchez appealed the district court’s denial of his motion to suppress.  More specifically, whether the district court erred by not excluding evidence derived from the officer’s brief, warrantless entry into Mr. Sanchez’s home for the sole purpose of seizing a phone for which the officers had obtained a search warrant.  Officers arrived at Mr. Sanchez’s home, which he shared with his parents, with a warrant to seize his phone.  They encountered Mr. Sanchez out on his driveway.  He did not have his cellphone on his body; it was inside the home, in his bedroom.  Officers testified that they obtained consent from Mr. Sanchez’s mother to enter the home with her to retrieve the cellphone.  Mr. Sanchez challenged the officers’ contention that they obtained his mother’s consent to enter the home because the officers could not remember exactly how the mother consented–verbally, nonverbally, etc.

The Court found that Mr. Sanchez consented to the seizure of his phone, that his mother gave officers at least nonverbal consent to follow her into the home to retrieve the phone, and that their consent was voluntarily given–there was no show of force causing either of them to acquiesce to a show of authority, nor was the search conducted in the middle of the night.  Additionally, consent can be nonverbal.  Likewise, silently accepting an officer’s expressed intent to enter the house solely for the purpose of retrieving the phone is also valid consent.

Mr. Sanchez also challenged his sentence.  First, he argued that his previous conviction under Article 120 of the Uniform Code of Military Justice for indecent conduct should not be a qualifying offense under 18 U.S.C. § 2251(e), which triggered a 25-year mandatory minimum sentence of imprisonment.  The Court rejected this argument because the plain language of § 2251(e) requires the application of a 25-year mandatory minimum sentence if a defendant has a prior conviction under Article 120.

Mr. Sanchez next challenged four guidelines sentencing enhancements–a 4-level increase under U.S.S.G.  § 2G2.1(b)(4); a 2-level increase under  § 2G2.1(b)(2)(A); a 5-level increase under § 4B1.5(b)(1); and a 2-level increase under § 2G2.1(b)(3).  As to the first three, the Court found no error in their application.  As to the fourth–a 2-level increase under § 2G2.1(b)(3) for knowingly engaging in the distribution of child pornography–the Court reasoned that even if Mr. Sanchez was correct that his solicitation of child pornography is not distribution, any error was harmless because his total offense level would have remained the same.

The Court also rejected Mr. Sanchez’s contention that his rights under the Double Jeopardy Clause were violated because he was sentenced for violating both 18 U.S.C. § 2251 and § 2422 based on his criminal conduct of enticing two minors to produce child pornography.  The Court held that because the two statutes do not have the same elements, there is no double jeopardy issue.

Finally, the Court rejected Mr. Sanchez’s challenge to the substantive reasonableness of his sentence.