UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4728

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONALD STEPHEN SCOTT,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Bryson City. Lacy H. Thornburg, 

District Judge. (2:08-cr-00027-LHT-1)

Submitted: June 10, 2010 Decided: July 6, 2010

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William C. Spaht, John C. Neiman, Jr., BRADLEY ARANT BOULT 

CUMMINGS, LLP, Birmingham, Alabama, for Appellant. Edward R. 

Ryan, United States Attorney, Charlotte, North Carolina; David 

A. Thorneloe, Assistant United States Attorney, Asheville, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Donald Stephen Scott appeals his conviction and 

144-month sentence imposed following his guilty plea to one 

count of transmission of child pornography via a computer, in 

violation of 18 U.S.C.A. § 2252(a)(1) (West Supp. 2010); twelve 

counts of receiving child pornography, in violation of 18 

U.S.C.A. § 2252(a)(2) (West Supp. 2010); and one count of 

possession of materials containing visual depictions of a minor 

engaging in sexually explicit conduct, in violation of 18 

U.S.C.A. § 2252(a)(4)(B) (West Supp. 2010). Scott reserved his 

right to appeal the district court’s denial of his motion to 

suppress, and on appeal he challenges that denial, as well as 

his sentence. For the following reasons, we affirm.

Scott first challenges the district court’s denial of 

his motion to suppress. This court reviews the factual findings 

underlying the district court’s denial of a motion to suppress 

for clear error and the court’s legal conclusions de novo. 

United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert. 

denied, 130 S. Ct. 1104 (2010). A factual finding is clearly 

erroneous if this court “on the entire evidence is left with the 

definite and firm conviction that a mistake has been committed.” 

United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) 

(internal quotation marks omitted). However, “if the district 

court's account of the evidence is plausible in light of the 
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record viewed in its entirety,” this court will not reverse the 

district court's finding even if it would have “decided the 

fact[s] differently.” United States v. Stevenson, 396 F.3d 538, 

542 (4th Cir. 2005) (internal quotation marks and alteration 

omitted). In other words, when two views of the evidence are 

permissible, “the district court’s choice between them cannot be 

clearly erroneous.” Id. (internal quotation marks and 

alteration omitted). When a motion to suppress has been denied 

by the district court, this court construes the evidence in the 

light most favorable to the Government. United States v. 

Farrior, 535 F.3d 210, 217 (4th Cir.), cert. denied, 129 S. Ct. 

743 (2008).

While private searches ordinarily do not offend the 

Fourth Amendment, when “a private individual acted as a 

Government agent,” Fourth Amendment protections are implicated.

United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010); see 

United States v. Jacobsen, 466 U.S. 109, 113 (1984). 

This court considers two primary factors in 

determining whether a private search implicates the Fourth 

Amendment: “(1) ‘whether the Government knew of and acquiesced 

in the private’ individual’s challenged conduct; and 

(2) ‘whether the private individual intended to assist law 

enforcement or had some other independent motivation.’” Day, 

591 F.3d at 683 (quoting United States v. Jarrett, 338 F.3d 339, 
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344 (4th Cir. 2003)). The first factor requires “evidence of 

more than mere knowledge and passive acquiescence by the 

Government before finding an agency relationship.” Jarrett, 338 

F.3d at 345. Scott bears the burden of proving the existence of 

an agency relationship. Id. at 344.

Scott asserts that the Fourth Amendment was implicated 

when a computer technician with whom Scott had left his computer 

for repair opened the desktop file containing pornographic 

images in an investigator’s presence. Our review of the record 

leads us to agree with the district court that although the 

investigator was present, there was no evidence that he directed

the technician to open the file. Thus, Scott fails to establish 

an agency relationship. Accordingly, the district court 

properly denied the motion to suppress.

Scott next challenges the substantive reasonableness 

of his sentence. This court reviews a sentence for 

reasonableness, using an abuse of discretion standard of review. 

Gall v. United States, 552 U.S. 38, 51 (2007). In assessing 

substantive reasonableness, we consider the totality of the 

circumstances. Id.

Scott argues that the district court should have 

disregarded U.S. Sentencing Guidelines Manual § 2G2.2(a)(2) 

(2008) in determining his sentence. This argument fails. The 

Supreme Court has made clear that “[a] district court should 
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begin by correctly calculating the applicable Guidelines range,” 

and use it as a “starting point and initial benchmark” in 

sentencing. Gall, 552 U.S. at 49. After doing so in this case, 

the district court chose to vary downward from that range, 

having considered the sentencing factors and the arguments of 

counsel. We conclude that the district court’s variance 

sentence is substantively reasonable under the totality of the 

circumstances.

We therefore affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED