[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 12295 Non

- Argument Calendar

________________________ D.C. Docket No. 8:17

- CR

- 00409

- VMC

- JSS

- 1

UNITED STATES OF AM ERICA , Plaintiff

- Appellee ,

versus JAMES ROBERT GREGG, JR., Defendant

- Appell ant

.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (May 9, 2019) Before JORDAN, BRANCH , and JULIE CARNES, Circuit Judges.
PER CURIAM: James Robert Gregg appeals his conviction for receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) & (b)( 1 ) and 18 U.S.C.

Case: 18-12295 Date Filed: 05/09/2019 Page: 1 of 112 §2252(a)(4)(B) & (b)(2) , respectively. He alleges error in the denial of his motion to suppress evidence obtained from a search of his cell phone and the denial of a

one - level sentencing reduction under U.S.S.G. § 3E1.1(b) . After careful consideration of the record and the parties’ briefs, we affirm.
I Mr. Gregg’s arrest and subsequent conviction stem from an investigation initiated by Homeland Security Investigations in October of 2015 into a n internet

based video conferencing application that was being used for sharing and viewing child pornography. T he application enabl es people to join virtual room s , in which participants can view each other via webcam and share images or videos from their personal computer desktop s . The v ideos, images, and live content are represented as small tiles on each user’s display, which can be enlarged for viewing by any individual in the room. No one user can see what any other user is viewing at a given time , but their user names are displayed, and they can communicate with one another via a chat function in the applicat ion

. In the course of the investigation, Special Agent Austin Berrier obtained and compiled detailed information about users who visited rooms where child pornography was shared, including their Internet Protocol (“IP”) addresses, the dates, frequency, and cumulative time spent visiting the rooms, the identification number of each room visited, and the na me of the user’s Internet Service Provider

Case: 18-12295 Date Filed: 05/09/2019 Page: 2 of 113 (“ISP”)

. An individual with the user name “fla , ” was observed in different rooms livestreaming himself engaged in self

- stimulation while child pornography was available for viewing. Agent Berrier established th at the user name “fla” was connected to an I S P address in the Middle District of Florida and forwarded the information he compiled to HSI Special Agent Tavey Garcia in Tampa, Florida, on September 23, 2016.
On September 30, 2016, Agent Garcia and another agent visited the apartment associated with the IP address

. Mr. Gregg resided there with his girlfriend, Allison Anderson, their young daughter , and Ms. Anderson’s teenage son. The agents interviewed Mr. Gregg , who ultimately conceded that he had incidentally viewed child pornography while searching for material involving adult men. He told Agent Garcia that he accessed the application from his laptop , and consented to an inspection of the laptop

. No child pornog raphy was found, and the agents departed without arresting Mr. Gregg. In late October of 2016, Agent Garcia spoke with Ms. Anderson , who said Mr. Gregg had moved out of the apartment several week s earlier , leaving behind
many belongings, including a cell phone and tablet. She said the laptop belonged to her and was used mostly for work , and that Mr. Gregg used the phone and tablet

. She offered to turn both ove r, and they arranged to meet the following day

. Agent Garcia showed Ms. Anders on screenshots from the application of the user “fla” and

Case: 18-12295 Date Filed: 05/09/2019 Page: 3 of 114 Ms. Anderson confirmed that it was Mr. Gregg and that he appeared to be in the living room of the ir apartment

. O n October 26, 2016, Ms. Anderson gave the cell phone and tablet to Agent Garcia and t old her that Mr. Gregg had always had them on him, but t he phone had broken months earlier and he began using a new one. After the meeting, Agent Garcia began preparing a warrant application to search the cell phone and tablet. O ver o n e month later, on December 6, 2016, Agent Garcia submitted an affidavit and application to a United States m agistrate j udge for a warrant to search Mr. Gregg’s cell phone and tablet. The magistrate signed the warrant on December 7, 2016, and it was executed the f ollowing day. On August 23, 2017, a grand jury indicted Mr. Gregg on on e count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) & (b)( 1 ) , and one count of possessi on of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Mr. Gregg filed a motion to suppress evidence obtained through the search of his cell phone

. In the suppression hearing before a m agistrate j udge , Ms. Anderson testified about the events that led up to Mr. Gregg moving out of the apartment and about her access to his cell phone , both before and after he left

. When they lived together, Mr. Gregg had n ever prohibited her from using his phone or said anything that made her believe she could not use it , alt hough she never used the phone

. W hen the phone broke, Mr. Gregg obtained a new one and placed the broken phone in his bedside

Case: 18-12295 Date Filed: 05/09/2019 Page: 4 of 115 drawer. When Ms. Anderson learned about the investigation , she told Mr. Gregg to
move out and made him leave his key behind. He packed a small duffel bag of his belongings and left, taking his new cell phone but leaving the broken one in the bedside drawer. Ms. Anderson also testified that, after he moved out, Mr. Gregg did not try to retrieve the rest of his belongings and did not ask her to return his old cell phone or tablet. She said that she had asked him to take the rest of his things out of the apartment and he said that he would, but never scheduled a time to do so

. When he
return ed in November to collect his belonging s, Mr. Gregg did not ask about his cell phone or tablet but was upset when she told him that she had given them to Agent Garcia. He asked her why she had turned the devices over but did not question her authority to do so. Ms. Anderson gave him Agent Garcia’s phone number and told
him to direct any of his questions to her. Ms. Anderson said that she had communicated with Mr. Gregg in the following days, but he never mentioned the phone and tablet again.
The m agistrate judge r ecommended denial of Mr. Gregg’s motion to suppress , concluding in relevant part that Mr. Gregg had abandoned his cell phone and tablet and therefore did not have an expectation of privacy in them. T he district court adopted the magistrate judge’s report in its entirety , o ver Mr. Gregg’s objectio ns.

Case: 18-12295 Date Filed: 05/09/2019 Page: 5 of 116 Mr. Gregg entered a waiver of his right to trial by jury and a notice of stipulated facts for a bench trial. The bench trial resulted in a guilty verdict and the
district court sentenced Mr. Gregg to 168 months ’ imprisonment and 20 years of supervised release. Mr. Gregg sought a one

- level downward adjustment to his sentence for acceptance of responsibility under U.S.S.G. § 3E1.1, which the district
court denied on the grounds that such a request must be initiate d by the government. The judgment and sentence were entered on May 3 0, 2018, and Mr. Gregg filed this timely appeal. 1
II The district court denied Mr. Gregg’s motion to suppress evidence recovered from his cell phone , finding that he lacked standing to challenge the search because he had abandoned the phone when he moved out of the apartment and made no subsequent effort to recover it. We affirm. 2

1 Mr. Gregg stipulated in the bench trial that more than 150 images of child pornography and 70 videos involving child pornography were found on his cell phone. He also stipulated that agents had found several downloaded applications, one of which was asso ciated with the username “jimmythulu.” He stipulated that he used that online persona and that “ j immythulu” had sent Dropbox, video, and image links to other chat participants . C ommunications between that user name and other participa nts indicated that t hey were sending and receiving images and videos of child pornography. He admitted that he had obtained or viewed child pornography via the application and via the Kik Messenger Service. 2 Mr. Gregg raise s several other claims that were argued before the district court, including (1) that Ms. Anderson lacked authority to consent to the search of the cell phone; (2) that law enforcement’s 42

- day delay between the seizing the cell phone and obtaining the warrant unreasonably interfered with his possessory i nterests; (3) that the warrant was unsupported by probable cause; and (4) that the “good faith” exception would not apply to justify the unlawful search. Because we affirm the district court’s finding that Mr. Gregg abandoned the cell phone, we need not c onsider his remaining arguments.

Case: 18-12295 Date Filed: 05/09/2019 Page: 6 of 117 “ We review a district court’s denial of a motion to suppress evidence as a mixed question of law and fact, with rulings of law reviewed de novo and findings of fact reviewed for clear error, in the light most favorable to the prevailing party in district court.” U nite d States v. Lindsey , 482 F.3d 1285, 1290 (11th Cir. 2007). “Because the issue of abandonment ‘involves a factual issue,’ a district court’s finding of abandonment is reviewed under the clearly erroneous standard.” United
States v. Ramos , 12 F.3d 1019, 10 22 (11th Cir. 1994) (citation omitted). The Fourth Amendment of the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures

. . . .” U.S. Cons t. amend. IV. These protections extend to cellular phones

. See Riley v. California , 573 U.S. 373, 386 (2014). To have standing to challenge the search of a cell phone , a defendant bears the burden of establishing “both a subjective and an objective expectation of privacy” in its
contents. United States v. Segura

- Baltazar , 448 F.3d 1281, 1286 (11th Cir. 2006)

. But a person lacks Fourth Amendment standing to challenge the “search or seiz ure of property that he has voluntarily abandoned.” United States v. Sparks , 806 F.3d 1323, 1341 (11th Cir. 2018). To determine whether property has been abandoned, we ask whether the individual “voluntarily discarded, left behind, or otherwise relinquis hed his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.”

Case: 18-12295 Date Filed: 05/09/2019 Page: 7 of 118 Ramos , 12 F.3d at 1022 (11th Cir. 1994). This is a “question of intent which may be inferred from acts, words, and other objective facts.” Id. at 102 2

– 23. Mr. Gregg primarily relies on United States v. Sparks , 806 F.3d 1323 (11th Cir. 2015) , t o support the assertion that his devices were never abandoned . In Sparks , t wo defendants moved to suppress evidence of child pornography obtained from the search of a phone they lost in a Walmart store. A store employee found it and called the number left in a text message on the phone seeking its return. The defendants arrange d for the return of the phone , but in the interim, the employee discovered what appeared to be pornographic images of a very young child. She confirmed the questionable nature of the photos with another employee, who submitted the phone to the police. We held that the defendants had abandoned the phone because, despite initially trying to retrieve it , they very quickly ceased those
efforts even though it would have been easy to do so, obtained new phones within a few days, and filed an insurance claim for the lost phone

. See i d. at 1349.
In Ramos , by contrast, we held that the defendant retained full interest in his property whe re , after he failed to timely vacate a rented room at the end of the lease
term , a cleaning company prepping the room for the next tenant packed his belongings into garbage bags pursuant to the management company’s policy. See
Ramos , 12 F.3d at 1026

. T he cleaners s potted apparent drug paraphernalia in the

room and inside a partially closed and locked briefcase . They contacted the police,

Case: 18-12295 Date Filed: 05/09/2019 Page: 8 of 119 who obtained positive results from a field test on a powdery substance found inside the case . They obtained a warrant to expand the search of the defendant’s room. We
held that the property was not abandoned because t he defe ndant had retained a key to the unit where everything was stored and had called the management company the next day to try and recover his belongings. Moreover, the search occurred on the same day and within a few hours of when the government alleged he h ad abandoned his property. See i d. The facts of Mr. Gregg’s case fall somewh at between those of Sparks and
Ramos

. Like the defendants in Sparks , Mr. Gregg’s devices were left in a known
location and in the control of a person with whom he could readily communicate. And , also like the defendants in Sparks , Mr. Gregg did not take advantage of any opportunity to retrieve the devices , although it would have been relatively easy to
do so

. Mr. Gregg’s case bears one similarity to Ramos in that there is some evidence that Ms. Anderson and Mr. Gregg shared at least an initial understanding that he had
not fully abandoned the property he left behind . Indeed, Ms. Anderson bagged everything up and told Mr. Gregg to collect it at a later dat e. She also told Agent Garcia that Mr. Gregg intended to get his property later. [Doc. 35
- 2 at 10

– 11] But unlike the defendant in Ramos , Mr. Gregg did not retain a key to the premises and took no affirmative steps

— for several weeks

— towards retrieving an y of his belongin gs , despite Ms. Anderson’s requests for him to do so. Even if Mr. Gregg

Case: 18-12295 Date Filed: 05/09/2019 Page: 9 of 1110 possessed an initial subjective belief that he had not abandoned his property, his subsequent actions were consistent with abandonment. On this record, we hold that the district court did not err in finding that Mr. Gregg abandoned his cell phone

. See Cooper v. Harris , 137 S. Ct. 1455, 1465 (2017) (explaining the clear error standard)

. Thus, it was not error to hold that Mr. Gregg
lacked standing to contest the constitutionality of the phone’s subsequent acquisition and search by police.
I II Mr. Gregg also argues that the district court erred in denying him a n additional

one - level reduction for acceptance of responsibility

. The Sentencing Guidelines permit a one - level reduction of a sentence pursuant to § 3E1.1(b) if, among other conditions, “the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” “Because the Government is in the best position to determine whether the defendant has assiste d authorities in a manner that avoids preparing for trial,” a § 3E1.1(b) reduction may only be granted upon the government’s motion at sentencing. U.S.S.G. § 3E1.1(b), cmt. n.6. See also United States v. Wade , 458 F.3d 1273, 1282 (11th Cir. 2006). This principle is subject to the limitation in Amendment 775 to §

Case: 18-12295 Date Filed: 05/09/2019 Page: 10 of 1111 3E1.1(b) , which provides that “[t]he government should not withhold [a § 3E1.1(b) motion] based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her ri ght to appeal.” U.S.S.G. § 3E1.1(b) cmt. 6. Because the sentencing court is in a unique position to determine whether a defendant has accepted responsibility, we review such determinations for clear error and with great deference. See United States v. M cPhee , 108 F.3d 287, 289 (11th Cir. 1997). See also U.S.S.G. § 3E1.1(b) , cmt. n.5. Citing to case law from other circuits, Mr. Gregg argues that a § 3E1.1(b) reduction may not be withheld solely because the defendant mov ed for suppression of evidence. T he government explain s that it declined to move for a § 3E1.1(b) reduction in part because of the “significant resources” expended in the litigation of the suppression motion , but also because it engaged in trial preparation during the three weeks between the district court’s denial of the suppression motion and when
Mr. Gregg agreed to stipulate to facts for the bench trial. Given the deference we afford the district court and the government to assess whether a § 3E1.1(b) r eduction is warranted , we see no reason to question the result here.
I V For the for e going reasons , we affirm

. AFFIRMED. Case: 18-12295 Date Filed: 05/09/2019 Page: 11 of 11