[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12996

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ABY RAUL RIVERA TORRES, 

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:21-cr-00397-MSS-JSS-1

____________________

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2 Opinion of the Court 22-12996

Before JORDAN, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

Aby Torres appeals his convictions and 110-year sentence

for production, distribution, and possession of child pornography. 

Below, he moved to suppress evidence gathered from his cell

phone, arguing that law enforcement had tasked his girlfriend’s 

child to search his boat for the phone without a warrant, in 

violation of the Fourth Amendment. The district court did not 

abuse its discretion by declining to hold an evidentiary hearing 

when the facts alleged by Torres’s motion did not entitle him to 

relief, and it did not clearly err by finding that the child was not 

acting as an agent of the government when searching his boat.

Separately, Torres argues that the district court erred by 

imposing two sentence enhancements: for engaging in a pattern of 

activity involving the sexual abuse or exploitation of a minor under 

U.S. Sentencing Guidelines § 2G2.2(b)(5), and for engaging in a 

pattern of activity involving prohibited sexual conduct under 

§ 4B1.5(b)(1). Neither enhancement constitutes reversible error. 

Accordingly, we affirm both Torres’s convictions and his sentence.

I.

Torres, his girlfriend, and his girlfriend’s two minor children 

shared a house together in Spring Hill, Florida. Law enforcement 

officials had learned from another criminal investigation that 

Torres was sharing child pornography through Kik, an instantUSCA11 Case: 22-12996 Document: 42-1 Date Filed: 03/19/2024 Page: 2 of 9
22-12996 Opinion of the Court 3

message application. Based on this information, they obtained 

warrants to search Torres, his cell phone, and the shared residence.

Torres’s motion to suppress evidence obtained from his cell 

phone alleges that on November 13, 2021, officers conducting 

surveillance observed him in a boat parked on the driveway outside 

his house. Three minor children, all under the age of thirteen, were 

standing in the yard. One was Torres’s girlfriend’s eight-year-old 

daughter. The officers arrested Torres, then asked the children if 

any of them had seen Torres with his cell phone. The children led 

the officers into the house, saying they had seen Torres use his 

phone near the living room couches and recliners.

A search of the living room did not turn anything up, but 

Torres’s girlfriend’s daughter then stated that “she knew where to 

look” next. She exited the house, entered the boat parked on the 

driveway, found the cell phone, and handed it over to the officers. 

Investigators found over 600 images of child sexual abuse material 

on the phone, including multiple images of the child who 

discovered the phone—being sexually abused by a man. When 

questioned by the police, Torres admitted that he had produced 

these images.

Before trial, Torres moved to suppress the cell phone and its 

contents, arguing that the child had acted as an agent of the 

government when searching his boat and that the cell phone was 

thus seized in an unconstitutional, warrantless search. He also 

asked for an evidentiary hearing. The district court denied the 

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4 Opinion of the Court 22-12996

motion to suppress without a hearing, finding that the child had 

not acted as the officers’ agent.

During a bench trial, Torres renewed his objections to the 

introduction of the cell phone evidence, which the court again 

denied. The court then found Torres guilty on five counts of 

producing, distributing, and possessing child pornography in 

violation of 18 U.S.C. §§ 2251(a), (e) and 2252(a), (b).

At his sentencing hearing, Torres objected to two 

sentencing enhancements recommended by his presentence 

investigation report (PSI). First, the PSI recommended an 

enhancement for engaging in a pattern of activity involving the 

sexual abuse or exploitation of a minor under U.S.S.G.

§ 2G2.2(b)(5) because, earlier in 2020, Torres had committed an 

aggravated sexual assault of a child in Galveston, Texas. Second, 

the PSI recommended a separate enhancement under U.S.S.G. 

§ 4B1.5(b)(1) for being a repeat sex offender against minors, both 

because of the Texas sexual assault and because Torres had 

distributed images depicting sexual abuse of his Florida victim on 

at least three separate occasions. Torres objected to the factual 

bases for both enhancements as unsupported by the 

preponderance of the evidence.

After taking testimony from the mother of the victim 

involved in Torres’s 2020 sexual assault, the court overruled 

Torres’s objection to both enhancements. The court sentenced 

Torres to the statutory maximum for each count to be served 

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22-12996 Opinion of the Court 5

consecutively, for a total imprisonment term of 110 years. Torres 

appeals.

II.

On appeal, Torres argues that the district court erred when 

it found that his motion to suppress had not raised a genuine factual 

dispute as to whether the child who found the phone in the boat 

was acting as the government’s agent when she did so. He claims 

that he is entitled to both an evidentiary hearing on the issue, as 

well as to outright reversal of the denial of his suppression motion. 

We disagree on both counts.

A district court “may refuse a defendant’s request for a 

suppression hearing and motion to suppress if the defendant fails 

to allege facts that, if proved, would require the grant of relief.” 

United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985). We

review a district court’s refusal to hold an evidentiary hearing for 

abuse of discretion. United States v. Hill, 643 F.3d 807, 874 (11th Cir. 

2011).

When reviewing a denial of a motion to suppress, we review 

the court’s factual determinations for clear error and questions of 

law de novo, construing the facts in the light most favorable to the 

prevailing party below. United States v. Thomas, 818 F.3d 1230, 1239 

(11th Cir. 2016). Clear error review is deferential, and we will not 

invalidate a district court’s findings unless we are left with a 

“definite and firm conviction” that it made a mistake. Id. 

(quotation omitted).

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6 Opinion of the Court 22-12996

The Fourth Amendment applies only to governmental 

action; a “search by a private person does not implicate the Fourth 

Amendment unless he acts as an instrument or agent of the 

government.” United States v. Steiger, 318 F.3d 1039, 1045 (11th Cir. 

2003). In this Circuit, for a private person to be considered an agent 

of the government for Fourth Amendment purposes, we look to 

two factors: “(1) whether the government knew of and acquiesced 

in the intrusive conduct, and (2) whether the private actor’s 

purpose was to assist law enforcement efforts rather than to further 

his own ends.” Id.1 This is a factual inquiry, subject to review only 

for clear error on appeal. See United States v. Ford, 765 F.2d 1088, 

1090 (11th Cir. 1985).

The district court did not clearly err by finding that, under 

the facts as alleged by Torres, the officers neither knew of nor 

acquiesced to the child’s search of Torres’s boat. Torres’s motion 

to suppress alleges that while the three children and the officers 

were inside the house, one child “verbally stated to law 

enforcement officers she knew where to look for the Target 

1 The government argues that in order to meet the first prong of knowledge 

and acquiescence, the government agent must “affirmatively encourage, 

initiate or instigate” the private person’s search. In support of this 

requirement, the government’s brief cites only an unpublished case from this 

Circuit and a published case from the Tenth Circuit. See United States v. Emile, 

618 F. App’x 953, 955 (11th Cir. 2015) (unpublished); United States v. Smythe, 84 

F.3d 1240, 1243 (10th Cir. 1996). Neither is binding on this Court. Because we 

find that Torres has not met even the comparatively less demanding standard 

of knowledge and acquiescence, we need not address whether the 

government’s stricter standard applies.

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22-12996 Opinion of the Court 7

Cellphone next, left the Target Residence, entered the boat that 

was parked in the driveway outside of the Target Residence, and 

located and seized the Target Cellphone inside the boat near the 

helm.” He does not allege either that the officers asked the child 

to search the boat or that the officers knew the child intended to 

search the boat when she left the house.

Under Torres’s recounting, all the officers knew was that the 

child voluntarily left the house, not that she intended to search the 

boat. With no suggestion “that the Government had any preknowledge of the search nor that the agents openly encouraged or 

cooperated in the search,” Torres cannot meet the knowledge and 

acquiescence prong of the inquiry. Ford, 765 F.2d at 1090. The

district court therefore did not clearly err by denying the motion to 

suppress.2 And because Torres’s allegations, even if true, would 

2 We pause to note that our predecessor Circuit has held that a search warrant 

identifying a property is “sufficient to embrace the vehicle parked in the 

driveway on those premises.” United States v. Napoli, 530 F.2d 1198, 1200 (5th 

Cir. 1976); see also Brooks v. United States, 416 F.2d 1044, 1050 (5th Cir. 1969) (a 

search warrant for a “lot and the cabin” authorizes search of an automobile 

“parked in the lot and very close to the cabin”); Bonner v. City of Prichard, 661 

F.2d 1206, 1207 (11th Cir. 1981) (en banc) (decisions by the former Fifth Circuit 

handed down before October 1, 1981 are binding on this Court). In this case, 

officers had a warrant to search Torres’s property, identified by both its street 

address and its physical characteristics, including a “two-car driveway.” The 

warrant even includes a picture of the house clearly depicting Torres’s boat 

parked in the driveway, immediately next to the residence. Therefore, even 

if the child’s search could be attributed to the government, the officers’ 

warrant to search the property appears to have authorized a search of Torres’s 

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8 Opinion of the Court 22-12996

not have warranted suppression, the court also did not abuse its 

discretion by declining to hold an evidentiary hearing. See 

Richardson, 764 F.2d at 1527. Finally, Torres is not entitled to a 

judgment of acquittal because he stipulated during the bench trial

that, provided the evidence from the cell phone was properly 

admitted, there was sufficient evidence to convict him at all counts.

III.

Torres next argues that the district court erred by applying 

sentencing enhancements for a pattern of sexual misconduct 

against minors under U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5(b)(1). The 

government bears the burden of proving the facts underlying a

Guidelines enhancement by a preponderance of the evidence. 

United States v. Alberts, 859 F.3d 979, 982 (11th Cir. 2017). We 

review the district court’s factual findings underlying an 

enhancement for clear error. Id.

Both parties agree that even if Torres’s enhancement under 

U.S.S.G. § 2G2.2(b)(5) were eliminated, his total offense level 

would be unchanged. Any error with respect to its application was 

therefore harmless at worst, rendering remand and resentencing

unnecessary. See United States v. Sanchez, 30 F.4th 1063, 1076–77

(11th Cir. 2022).

The U.S.S.G. § 4B1.5(b)(1) sentencing enhancement applies 

if the defendant engaged in a “pattern of activity involving 

boat as well. Because no party raised this issue, however, we do not decide it 

here.

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22-12996 Opinion of the Court 9

prohibited sexual conduct.” A defendant engaged in a “pattern” 

under § 4B1.5(b)(1) if he engaged in prohibited conduct “on at least 

two separate occasions.” Id. cmt. n.4(B)(i). Multiple offenses 

against the same victim may count for the enhancement. United 

States v. Fox, 926 F.3d 1275, 1279–80 (11th Cir. 2019).

Below, Torres stipulated that on two separate days in July 

2021, he distributed images through his Kik messenger account 

depicting an adult man sexually abusing his Florida victim. These

images depicted the same child, but wearing different clothing. 

Torres also stipulated that in August 2021, he had used the “live” 

function on his Kik messenger account to distribute an image of an 

adult man raping his Florida victim.

The district court did not err by finding that these stipulated 

facts amounted to a showing that Torres had engaged in multiple 

instances of prohibited sexual conduct on different occasions. That 

the images lacked metadata definitively confirming their date of 

creation is immaterial—the fact that the images were distributed 

on different dates, that the child was wearing different clothing in 

the images, and that the August image was distributed via Kik’s 

“live” feature (suggesting it could not have been produced earlier 

at the time of the July images) all more than adequately support 

the inference that Torres sexually abused his victim on multiple, 

separate days. The enhancement was proper.

* * *

AFFIRMED.

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