United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 22-1259

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Travis Kyle Mayer

 Defendant - Appellant

____________

Appeal from United States District Court 

for the District of Minnesota

____________ 

Submitted: December 14, 2022

Filed: March 23, 2023

____________ 

Before LOKEN, MELLOY, and KOBES, Circuit Judges. 

____________

KOBES, Circuit Judge.

Travis Mayer was convicted of several child pornography-related offenses. 

He appeals the district court’s1 denial of his pretrial suppression motion, the 

application of a sentencing enhancement, and the grouping of his counts at 

sentencing. We affirm. 

1

The Honorable Wilhelmina Wright, United States District Judge for the 

District of Minnesota.
-2- 

I. 

In 2017, police got a tip that Mayer violated his parole, prompting them to

search his residence, a motel room. Police seized Mayer’s cell phone and other 

items, including children’s underwear, a diaper, and a notebook. Mayer was arrested 

and sent back to prison for violating parole. At the time, police couldn’t access 

Mayer’s phone, so they stored it. 

In 2018, Mayer was released and got another phone. Mayer soon began an 

online relationship with a minor girl. Things between Mayer and the minor became 

hostile, and Mayer threatened to leak an explicit photo of her online. Police found 

out about Mayer’s behavior, leading to his arrest. Police seized Mayer’s new phone, 

but again couldn’t access it. 

A grand jury indicted Mayer for distributing child pornography, transferring 

obscene material to a minor, and committing a felony offense involving a minor 

while he was required to register as a sex offender. Mayer moved to suppress 

evidence derived from the Government’s searches. The Government responded that 

Mayer’s motion was moot or unripe, explaining that it had not yet collected any 

evidence from Mayer’s phones and did not, at the time, plan to use the items 

recovered from the 2017 motel room search. The Government warned, though, that 

suppression could become ripe if its case against Mayer changed. The district court 

denied Mayer’s motion as moot. 

Police got into Mayer’s phones a few months later. A couple of months after 

that, the Government filed a superseding indictment, adding counts related to the 

content of the phones. Mayer then moved to suppress evidence from the phones, 

which the district court denied. On the day trial was set to begin, Mayer moved to 

exclude the motel room evidence, citing the Government’s representation that it 

didn’t intend to use the items. The district court denied Mayer’s motion, finding it 

untimely and without good cause. 
-3- 

 A jury convicted Mayer on all counts except for one dismissed before trial. 

At sentencing, Mayer objected to an enhancement for the number of child 

pornography images connected to his offense. Mayer also objected that his counts 

were improperly grouped, affecting the Guidelines calculation. The district court 

overruled Mayer’s objections and sentenced him to life in prison. Mayer appeals. 

II. 

We first turn to the district court’s denial of leave to make an untimely pretrial 

motion, which we review for an abuse of discretion. United States v. Blanks, 985 

F.3d 1070, 1072 (8th Cir. 2021). 

 

Under Federal Rule of Criminal Procedure 12(b)(3), evidentiary suppression 

“must be raised by pretrial motion if the basis for the motion is then reasonably 

available and the motion can be determined without a trial on the merits.” Even if a

suppression motion is untimely, “a court may consider the defense, objection, or 

request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). “To show good 

cause, a party must show both cause and prejudice.” United States v. Fogg, 922 F.3d 

389, 391 (8th Cir. 2019).

Mayer argues that the district court erred when it denied his motion to exclude 

the motel room evidence. He says that the Government promised it wouldn’t use 

the evidence and the court did not hold the Government to its word. Mayer further 

argues that he was prejudiced and points to several instances where the items were 

talked about before the jury. 

As an initial matter, Mayer’s motion was untimely. In its opposition to 

Mayer’s original suppression motion, the Government expressed that “the issue of 

suppression [wa]s moot, or at a minimum w[ould] only be ripe for adjudication later, 

should the United States’ case against Mayer change.” As the district court 

suggested, the Government’s case against Mayer changed when it filed its first 

superseding indictment that charged Mayer with crimes dating back to 2017. At that 
-4- 

point, the basis for Mayer’s suppression motion was “then reasonably available 

and . . . c[ould have] be[en] determined without a trial on the merits.” Fed. R. Crim. 

P. 12(c)(3). Instead, Mayer waited until the day trial was set to begin, long after the 

superseding indictment was filed, to make his motion. 

While good cause may cure an untimely motion, Mayer has not made this 

showing. According to the Government, it gave Mayer an exhibit list that identified

the motel room items six months before trial. And about three weeks before trial, 

the Government filed its trial brief, also previewing the motel room findings. Mayer 

had ample time and notice to renew his suppression motion but did not do so until 

the first day of trial, meaning he hasn’t shown cause. Cf. Fogg, 922 F.3d at 391 

(finding no cause where “the alleged defects appeared on the face of the superseding 

indictment and in the grand jury materials provided before trial”). 

Even if Mayer showed cause, he wasn’t prejudiced, which is required for good

cause. See id. The Government offered significant evidence at trial that supported

Mayer’s conviction, including his incriminating admissions that he received and 

produced child pornography and explicit content recovered from his and the minor 

victim’s phones. While the motel room evidence was incriminating in the sense that 

it worked against Mayer, “[t]he desire to suppress” such evidence is “not by [itself] 

sufficient to establish good cause to justify relief from a waiver of a defense, 

objection, or request under Rule 12.” United States v. Trancheff, 633 F.3d 696, 698 

(8th Cir. 2011). 

All things considered, the district court did not abuse its discretion when it 

denied Mayer leave to make an untimely pretrial motion.

2

 

2

Mayer stylizes his pretrial ask as a motion to exclude evidence, rather than a 

suppression motion. We disagree with this characterization. In any event, this 

characterization doesn’t help Mayer because we’d review the motion to exclude for 

an abuse of discretion, and we found none for reasons stated above. United States 

v. Bowie, 618 F.3d 802, 814 (8th Cir. 2010). Still, Mayer asks us to review this issue 

de novo because it involves an alleged breach of a Government promise. See 
-5- 

III. 

We next address the sentencing enhancement for the quantity of child 

pornography images involved in Mayer’s offense. We review a district court’s 

interpretation and application of the Guidelines de novo, United States v. Kiel, 454 

F.3d 819, 822 (8th Cir. 2006), and “the factual determinations underlying the district 

court’s decision for clear error,” United States v. Sanders, 4 F.4th 672, 676 (8th Cir. 

2021), cert. denied, 142 S. Ct. 1161 (2022). 

A defendant may receive a sentencing enhancement if a court finds by a 

preponderance of the evidence that a “child pornography offense involve[d] 600 or 

more images.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009) (cleaned 

up); U.S.S.G. § 2G2.2(b)(7)(D). Under the Guidelines, images are “any visual 

depiction[s] . . . that constitute[] child pornography.” U.S.S.G. § 2G2.2 cmt. n.6(A). 

In making this determination, a court may “take account of factual matters not 

determined by a jury,” Rita v. United States, 551 U.S. 338, 339 (2007), and “rely on 

circumstantial evidence that demonstrates knowing possession of a certain number 

of images.” United States v. Nissen, 666 F.3d 486, 491 (8th Cir. 2012). 

Mayer argues that the district court clearly erred because the evidence did not 

show that his offense involved 600 or more images. But, an FBI examiner testified 

at trial that she found “several hundred” explicit images in a “kiddy porn heaven” 

folder on one of Mayer’s cell phones, specifying a “five” to “six hundred” range. 

While the examiner explained that the “majority” of the images were in the “kiddy 

porn heaven” folder, she located other folders with similarly suggestive names, like

“new kiddy porn” and “kid smut.” Other evidence also showed that the image count 

generally United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005)

(“Allowing the government to breach a promise that induced a guilty plea violates 

due process.”). Mayer cites no on-point authority for de novo review, and we 

disagree regardless. But even if this was a Government promises issue, and we 

reviewed the Government’s representation de novo, the Government broke no 

promise for reasons explained above. 
-6- 

exceeded 600, including numerous images recovered from Mayer’s 2018 cell phone, 

Mayer’s browsing history, and explicit videos of the minor victim sent to Mayer that 

were recovered from the minor’s phone. See U.S.S.G. § 2G2.2 cmt. n.6(B)(ii) 

(“Each video, video-clip, movie, or similar visual depiction shall be considered to 

have 75 images.”). Based on this, the district court did not clearly err in finding that 

Mayer’s offense involved 600 or more images. 

IV. 

We finally turn to the grouping of Mayer’s offenses. Generally, “[a] nonharmless error in calculating the guidelines range requires a remand for 

resentencing.” United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008) (citation 

omitted). Under U.S.S.G. § 3D1.2, “counts involving substantially the same harm 

should be grouped together for purposes of determining the offense level for the 

crimes.” United States v. Green, 225 F.3d 955, 958 (8th Cir. 2000) (cleaned up). 

The district court sentenced Mayer to life in prison because his combined 

offense level exceeded 43. In calculating his sentence, Mayer says that the district 

court erred when it declined to group three counts together because those counts 

involved substantially the same harm. But even if we grouped Mayer’s offenses the 

way he suggests, he would still receive a life sentence because his combined offense 

level would exceed 43, so any error was harmless.

V.

 

The judgment of the district court is affirmed. 

______________________________