[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14002

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ROMEO VALENTIN SANCHEZ, 

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:17-cr-00136-SPC-MRM-1

____________________

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Before BRANCH, GRANT, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

After a five-day trial, a jury found Romeo Valentin Sanchez 

guilty of seven counts involving sex crimes against minors. The 

district court sentenced him to his guidelines sentence of life imprisonment plus a consecutive ten-year mandatory minimum. 

That consecutive part of his sentence was based on his conviction 

for committing a felony crime involving a minor while he was already registered as a sex offender. 

He challenges the denial of his motion to suppress evidence 

obtained from his two cell phones. He also raises various challenges to his sentence. None of his challenges has merit.

I. 

In March 2017 a woman contacted the Cape Coral, Florida 

police and reported that her twenty-nine-year-old former boyfriend, Romeo Sanchez, was having sex with her little sister CP,

who was 14 years old.1 

A. 

The family had begun to suspect that something was wrong

when CP received a late-night call on her cell phone while the family was watching a movie at home. Her father answered and told 

1 This minor victim is referred to in the record by three initials, but to further 

protect her identity we have shortened it to two.

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the caller that the phone belonged to a fourteen-year-old, who 

shouldn’t be getting late-night calls. The next day, CP’s family took 

her phone and discovered that Sanchez had been the late-night 

caller. 

They also discovered pornographic photographs and videos 

of CP that she had sent to Sanchez. CP admitted to her family she 

had been communicating with him through several social media 

applications and at his request had sent him nude photographs and 

videos of herself. She also admitted that they had sex. 

After CP’s family informed the police about what was happening, a detective went to their house to investigate and to seize 

her phone as evidence. As part of the investigation, the detective 

interviewed a neighbor who said that he had seen CP leaving her 

house in the night and getting picked up by someone driving a Ford 

Mustang. That was the kind of car that Sanchez drove.

CP was interviewed at the Children’s Advocacy Center. She 

said Sanchez had asked her to send him nude pictures of herself 

using the “Kik” messenger app, and she had complied with his request. She also had agreed to meet him at her house to have sex 

while her parents weren’t home. Sanchez came to her house at 

about 9:00 at night. She lost her virginity to him. She said that the 

sex was painful, and that Sanchez had ejaculated on her face. 

Over the next seven months, Sanchez used various apps to 

ask on a daily basis for CP to send him pornographic images of herself. She complied by sending him pictures of her breasts, vagina, 

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and buttocks. He also asked her to record and send nude videos of 

herself, specifying various acts he wanted the videos to depict. She 

complied. Sanchez asked her to record herself inserting a toothbrush into her vagina. When she told him that it would be painful, 

he replied, “I like seeing you in pain.” She complied and sent him 

the video. During the time he was requesting and receiving child 

pornography from CP, Sanchez sent her two photographs of his 

penis, but he instructed her to delete those photos, and she complied. 

During her Children’s Advocacy Center interview, CP described other occasions when she and Sanchez had sex. She recounted that each time they had sex, he ejaculated on her face, in 

her mouth, or on her breasts. He told her not to tell anyone about 

them having sex or he would go to jail. One conversation that CP 

had with a friend indicated that Sanchez had impregnated CP and 

that her parents would be angry when they found out. But CP 

miscarried. 

Detectives searched CP’s cell phone and the social media 

apps on it and found that she had “friends” named “romeo Valentine” and “romeo2magic.” Under each name, they found images 

of CP’s breasts and face that had been sent to Sanchez. They also 

found evidence that she had sent sexually explicit images to “other 

males,” and she admitted that she had done so. 

The search of CP’s phone revealed that on February 26, 

2017, she had sent a Snapchat message to Sanchez, trying to end 

their “relationship,” and telling him that he made her feel like “a 

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whore where you put your dick.” Sanchez responded by sending 

her his cell phone number. Phone records showed there were incoming calls and text messages from Sanchez on CP’s phone. 

The subscriber information for the social media applications 

that CP had used to communicate with Sanchez showed that they 

were associated with an internet protocol address registered to 

Sanchez’s residence. That address matched the one for his Florida 

driver’s license and for his registration on the State Sexual Offender 

Registry. He was on the registry because in 2011, while serving in 

the Air Force, he had an Article 120 military conviction for indecent 

conduct. It involved his sending over the internet photos of his

exposed penis and of a woman’s bare breasts and buttocks to a 13-

year-old girl. 

As part of their investigation, detectives conducted a controlled call between CP and Sanchez. After she and Sanchez exchanged greetings, she told him that her parents had found out 

about their relationship. After that, “Sanchez changed his tone, appearing to be confused, claiming he believed the call was from 

someone else.” He ended the call. 

The next day, Detectives Hicks and Mino, Sergeant Kaye, 

and Officer Mills from the Cape Coral Police Department went to 

Sanchez’s house with a warrant to seize his phone. (We’ll call it 

Phone 1 to distinguish it from the second phone, which we’ll call 

Phone 2, that officers seized later when they arrested Sanchez at 

the restaurant where he worked.) Sanchez came out to the driveway to speak with the officers. He told them he lived at the house 

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with his parents, admitted that he had dated CP’s older sister (although he said he knew her by a different name), but he denied having had sex with CP. He denied nearly everything they asked about 

CP, including having spoken with her during the controlled call. 

He said “everyone” had access to his phone, and he didn’t lock it. 

The detectives told Sanchez that, based on their investigation, they 

thought he was lying to them. 

Sanchez asked if he was being arrested, and Detective Hicks 

said no. Sanchez asked if he needed to get a lawyer, and Hicks said 

he could not give legal advice. The detectives showed Sanchez a 

copy of the search warrant for Phone 1. When he questioned the 

electronic signature of the judge, the detectives told him that the 

warrant was valid and that they were there to seize the phone. Detective Hicks said they were going to arrest Sanchez if he didn’t 

turn over the phone. Sanchez replied, “I’m fine giving you my 

phone.” 

Sanchez “grabbed at his pocket,” causing Detective Hicks to 

think that he might have a weapon or try to “wipe” evidence from 

the phone; he patted Sanchez’s pocket to see if there was a weapon 

or the phone in it. There wasn’t.

While Sanchez was speaking with the detectives, his parents 

returned home. Sergeant Kaye approached them and told them 

that their son was being questioned as part of an investigation. 

Later, they came over to where the detectives were speaking with 

Sanchez. At that point, Sanchez and the detectives were discussing 

the warrant for seizing the phone, and Sergeant Kaye proposed that 

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Sanchez’s parents get the phone. Sanchez said that his parents 

knew where the phone was located and said it was in his room. A

transcript of the interview shows that an unidentified officer said: 

“So let’s just grab that one,” referring to the phone, “and we’ll —

I’ll go in with you [Sanchez’s mother]. That way nobody gets all 

nervous when you go in the house.” 

Sergeant Kaye later testified that Sanchez’s mother had 

agreed to get the phone from the house, and he went in with her 

to get it. The sergeant didn’t recall whether her consent was verbal 

or nonverbal, but he testified that he would not have entered the 

house without her permission. The district court found his testimony was credible. 

Sergeant Kaye testified that he accompanied Sanchez’s 

mother to get the phone “for safety purposes and to ensure that the 

phone was not tampered with.” She led him to an unlocked bedroom where the phone was located, and he could not recall who 

picked up the phone, but they were in the home just a few minutes, 

and after they had retrieved the phone, the officers left. They did 

not arrest Sanchez at that time.

A forensic search of Phone 1 revealed 27 calls between 

Sanchez and CP, ranging in length from three seconds to four 

hours. Forensic examinations of CP’s and Sanchez’s phones uncovered chat conversations about their sexual relationship as well 

as nude images and videos of CP that she had sent Sanchez. There 

was a total of 18 videos of CP, each one less than 10 seconds long. 

Some of the 18 videos depicted the young girl inserting a 

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toothbrush into her vagina, inserting a curling iron into her vagina, 

grabbing her breasts, and other acts of that sort. One video had a 

“text bar” that said, “I hate videos.” 

A few months after the officers seized Phone 1, Detective 

Hicks and another officer, who was wearing a body camera, arrested Sanchez at his workplace, Carrabba’s Italian Grill. When 

Sanchez retreated to a back room as they came in, they followed 

him. He tried to conceal his phone (Phone 2) in the kitchen and 

said it belonged to the restaurant, but after verifying that the restaurant didn’t provide Sanchez with a phone, the detective seized

it. 

B. 

The search of Phone 2 produced evidence of another childvictim, AP, a 14-year-old girl with whom Sanchez had communicated through the Kik messenger application.2 There were pornographic images of her that AP had sent to Sanchez using the app, 

including an image of AP lifting her shirt and exposing her breasts. 

The username that had received the messages was “thatboygian,” 

purportedly “Gian King,” a 13-year-old Asian boy. But it was actually Sanchez using a fake identity to communicate with AP. 

The conversations on Phone 2 between AP and Sanchez 

(posing as Gian King) started late on the night of May 26, 2017,

2 Like CP, the minor victim AP is referred to in the record by three initials, and 

to further protect her identity, we have shortened it to two. AP is not related 

to CP.

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which was after the officers had come to Sanchez’s house and told

him about the investigation involving CP and had seized Phone 1. 

In conversations over the course of a few days, Romeo Sanchez 

(posing as Gian King) told AP that “Romeo” told him she was 

“cool,” and that she wanted to talk to him (Gian). “Gian” asked 

her to send him sexually explicit videos, and she complied. 

Sanchez (as the fictitious 13-year-old Gian) said he wanted to take 

her virginity. He also said that because he had a small penis, he 

wanted AP to have sexual intercourse with Sanchez instead of him 

so that she would be “satisfied.” He asked her to record a video 

showing “everything,” and she complied. Sanchez (as Gian) said 

he liked to watch someone “he loves” having sex with another man 

and urged AP to have sex with Sanchez because “he is trusted.” 

Later that afternoon, Sanchez (as himself) exchanged messages 

with AP, and she complained about “Gian King” and said Gian had 

acted “inappropriate.” Sanchez apologized for trying to set them 

up. 

On July 14, 2017, about a month after Sanchez’s arrest and 

the search of Phone 2, detectives met with AP and her family at 

their home. AP identified herself in the photos from Sanchez’s 

Phone 2. She said that she had met Sanchez on May 14, 2017, when 

she and her family dined at Carrabba’s where he was their server. 

Sanchez, who had a mobile nail service, offered to paint AP’s and 

her family’s nails at their home, and the family agreed. He came 

to their home and did their nails on May 25, 2017, which was the

day before Sanchez’ communications (as Gian King) began with 

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AP. AP’s parents agreed to let the detectives seize her phone, and 

they did. 

AP was later interviewed at the Children’s Advocacy Center. 

She disclosed that she had told Sanchez that she was attracted to 

men with Asian or Korean appearance, and he had suggested that 

she contact a family friend of Asian descent, “Gian King.” The day 

after he painted AP’s family’s nails, he convinced AP to download 

“What’sApp” and provided a screen name for “Gian.” AP’s phone

and Sanchez’s phone combined contained six photos and two videos of her engaged in sexual conduct; the videos were each less 

than 13 seconds long. AP never had sex with Sanchez. 

C. 

A grand jury returned a seven-count superseding indictment 

against Sanchez. It charged him with two counts of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) 

(count one for CP and count four for AP); 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) (count two 

for CP and count five for AP); two counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (count three involving Phone 1 and count six involving Phone 2); 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 

(count seven). 

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Sanchez filed a motion to suppress the following evidence: 

(1) all evidence obtained from the warrantless “searches [of] his 

home,” including the cellular phone seized inside the house (Phone 

1); (2) all evidence obtained from the search of the phone seized at 

the time of his arrest at the restaurant where he worked (Phone 2); 

and (3) any and all statements made to the detectives who came to 

his house.3 Sanchez argued that although the officers had a warrant to search Phone 1, they had no warrant to search his home, 

and their warrantless entry into the home violated the Fourth 

Amendment. He also argued that they had obtained a warrant to 

search Phone 2 based on the evidence they uncovered in their 

search of Phone 1. As a result, he asserted that the evidence recovered from the search of Phone 2 was fruit of the poisonous Phone 

1 tree. 

The government responded that seizure of Phone 1 was justified by consent and exigent circumstances. It alternatively argued 

that even without Phone 1’s evidence, the warrant to search Phone 

2 was supported by probable cause. 

The district court held an evidentiary hearing. The government called two witnesses: Detective Hicks and Sergeant Kaye. After their testimony, the court heard arguments from both sides. It 

later issued an order denying the motion to suppress. The court 

3 In his briefs to this Court, Sanchez did not argue that his statements to the 

detectives should be suppressed, so he has abandoned that argument. See In 

re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009).

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found that Sergeant Kaye had consent from Sanchez’s mother to 

enter the home to retrieve Phone 1. The court noted that it didn’t 

have to reach the government’s exigent circumstances argument, 

but even so, it found: 

[A] reasonable, experienced officer had legitimate reason to fear evidence on Phone 1 would be destroyed 

by wiping, remote or otherwise, before securing a 

search warrant for Sanchez’s home. Such fear is because Sanchez (1) was not in custody, (2) told the Detectives that his phone was not locked and everyone 

had access to it, (3) knew about the Detectives investigating his sexual relationship with [CP]; (4) knew 

the Detectives had a warrant for Phone 1, and (5) had 

been previously convicted of a crime for inappropriate contact with a minor. 

On the issue of consent, the court credited Sergeant Kaye’s 

testimony that Sanchez’s mother agreed to allow him to enter the 

home for the limited purpose of seizing the phone, which is what 

he did. The court explained:

At one point, Sanchez’s parents approached the garage area where the Detectives were meeting with 

their son. At that time, the Detectives were speaking 

to Sanchez about Phone 1. Sergeant Kaye suggested 

that Sanchez’s parents get the phone. Sanchez said 

that the phone was in his room. Sergeant Kaye testified that Sanchez’s mother affirmatively agreed to get 

the phone. His testimony, while lacking in the specifics of how Sanchez’s mother consented, was 

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uncontroverted and credible. He never wavered in 

his testimony that she consented to the search and 

that he would not have entered the residence without 

first obtaining consent. He followed Sanchez’s 

mother inside and into an unlocked bedroom. Once 

the phone was retrieved from the bedroom, Sergeant 

Kaye and Sanchez’s mother exited the residence. The 

entire search took minutes.

There is no evidence of intimidation or coercion; 

Sanchez’s mother was not under arrest or threatened. 

A reasonable officer standing in Sergeant Kaye’s shoes 

would have believed that Sanchez’s mother could enter her residence and retrieve the phone. When Sergeant Kaye asked Sanchez’s mother to retrieve the 

phone, she never stated that she did not have access 

to the home, the unlocked bedroom, or the phone.

Nor did Sanchez or his father indicate that she did not 

have permission to retrieve Phone 1. In fact, Sanchez 

told them where it was.

The search was limited in scope. Sergeant Kaye followed Sanchez’s mother into the home to obtain the 

phone and did not deviate from that consent. The 

only item retrieved was Phone 1. Based on a review 

of the totality of the circumstances, the Court finds 

that Sanchez’s mother gave Sergeant Kaye voluntary 

consent.

The district court rejected Sanchez’s argument that the 

search warrant for Phone 2 was tainted because it was based in part 

on the evidence found in Phone 1. The court concluded that 

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because the seizure and search of Phone 1 was lawful, and that evidence was used to secure a valid warrant to seize and search Phone 

2, Sanchez’s argument failed. 

After the jury found Sanchez guilty on all seven charges 

against him, he was sentenced to life imprisonment plus a consecutive ten-year mandatory minimum. He appeals the denial of his 

motion to suppress and raises four sentence-related challenges. 

We will first address whether the district court erred by not excluding evidence derived from the officer’s brief, warrantless entry into 

Sanchez’s home for the sole purpose of seizing a phone that he 

agreed to turn over to law enforcement. 

II. 

“A district court’s ruling on a motion to suppress presents 

mixed questions of law and fact.” United States v. Ramirez-Chilel, 

289 F.3d 744, 748–49 (11th Cir. 2002). We must accept the district 

court’s fact findings as true unless they are clearly erroneous, but

we review de novo its application of the law to the facts. Id. at 749.

A district court’s credibility determination gets special deference, 

and we accept it “unless it is contrary to the laws of nature, or is so 

inconsistent or improbable on its face that no reasonable factfinder 

could accept it.” Id. (quotation marks omitted); see also United 

States v. Castaneda, 997 F.3d 1318, 1325 (11th Cir. 2021). 

Sanchez contends that the government did not meet its burden of proving that Sergeant Kaye had consent to conduct a 

“search” of his home because the sergeant was “unable to identify 

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the consent” that his mother provided, by which he means exactly 

how she consented for him to go in with her. Sanchez also contends that because the search for and seizure of Phone 1 in the 

house was unlawful, the resulting seizure of Phone 2 and the evidence obtained from the search of it was fruit of the poisonous tree

that must be suppressed. Cf. Wong Sun v. United States, 371 U.S. 

471, 484 (1963) (explaining that “[t]he exclusionary prohibition extends as well to the indirect as the direct products of” unconstitutional searches). 

“A warrantless entry into a suspect’s home to search the 

premises is presumed to be unreasonable.” Ramirez-Chilel, 289 

F.3d at 751. Which means only that the government has the burden of proving that the defendant gave his free and voluntary consent to the search. See United States v. Massell, 823 F.2d 1503, 1507 

(11th Cir. 1987). 

Sanchez himself verbally consented to the seizure of Phone 

1 in the house. He told the officers he was “fine” with giving them 

his phone and that his parents knew where it was and that it was in 

his room. After he said that, his mother gave Sergeant Kaye at least 

nonverbal consent to follow her into the home to retrieve the 

phone. And both Sanchez’s and his mother’s consent was freely 

and voluntarily given. There was no show of force causing either 

of them to acquiesce to a show of authority. Nor did the officers

arrive in the middle of the night to conduct a search, which we’ve 

recognized can be a factor indicating coercion. Cf. Ramirez-Chilel, 

289 F.3d at 751 & n.8 (“Nighttime searches are deemed to be more 

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intrusive than daytime searches, and the assemblage of law enforcement officers at one’s door in the middle of the night has a 

tendency to be more coercive than during the day.”)

We’ve repeatedly made it clear that consent can be non-verbal; stepping aside and “‘yielding the right-of-way’” to officers at 

the front door is valid consent to enter and search. Id. at 752; Gill 

ex rel. K.C.R. v. Judd, 941 F.3d 504, 525–26 (11th Cir. 2019). Likewise, silently accepting an officer’s expressed intent to enter the 

house solely for the purpose of retrieving a phone is also valid consent. Especially when the owner of the phone, who is a co-occupant of the house, has already verbally consented to turning it over 

(pursuant to a valid warrant) and has told the officers which room 

it is in. All of these circumstances add up to voluntary consent. See

United States v. Morales, 893 F.3d 1360, 1367 (11th Cir. 2018) (explaining that a determination about whether a person’s consent to 

search was voluntary depends on the specific facts and is based on 

the “totality of the circumstances”). The district court did not err 

in finding that there was valid consent for Sergeant Kaye to enter 

the house for the sole purpose of retrieving Phone 1, which is what 

he did and all that he did. 

Because the search for and seizure of Phone 1 was valid, the 

search for and seizure of Phone 2 was not tainted. No poisonous 

tree, no poisonous fruit. 

 III. 

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Sanchez also raises several challenges to his sentence. First, 

he contends that his previous conviction under Article 120 of the 

Uniform Code of Military Justice should not be classified as a qualifying offense under 18 U.S.C. § 2251(e), which triggered a 25-year 

mandatory minimum sentence of imprisonment. If he were correct about that, for his § 2251 convictions he would have been subject to a mandatory minimum of 15 years instead of 25 years, and

to a maximum of 30 years instead of 50 years. But his position is 

not correct because its central premise is that the statute doesn’t 

really mean what it clearly says. 

Sanchez’s § 2251 convictions result from his conduct inducing minors (CP and AP) to engage in sexual activity for the purpose 

of producing a “visual depiction” of that activity. The relevant part 

of the penalty provision of the statute sets a 25-year mandatory 

minimum sentence and a maximum of 50 years for violators who 

already have certain listed convictions. A conviction under Article 

120 of the Uniform Code of Military Justice is on that list, plain as 

day:

Any individual who violates . . . [§ 2251] shall be fined 

under this title and imprisoned not less than 15 years 

nor more than 30 years, but if such person has one 

prior conviction under this chapter, section 1591, 

chapter 71, chapter 109A, or chapter 117, or under 

section 920 of title 10 (article 120 of the Uniform Code 

of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex 

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trafficking of children, or the production, possession, 

receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be 

fined under this title and imprisoned for not less than 

25 years nor more than 50 years . . . .

18 U.S.C. § 2251(e) (emphasis added). The district court concluded 

that the 25-year mandatory minimum applied to Sanchez because 

it was undisputed that he had a prior conviction under section 920 

of title 10 (Article 120 of the Uniform Code of Military Justice), and 

the plain language of § 2251(e) required the 25-year minimum sentence. As the district court said, “The statute here is clear.” 

Sanchez raises arguments about congressional intent, earlier 

versions of the statute, the rule of lenity, and the absurdity doctrine. He asserts that his prior conviction for “an indecent act” 

should not trigger a 25-year mandatory minimum for his current § 

2251 convictions. He insists that it would be absurd to apply § 

2251(e)’s 25-year mandatory minimum to what he calls “minor sexual indiscretions” because “today’s definition of Article 120 includes the crimes of rape, sexual assault, aggravated sexual contact, 

and abusive sexual conduct, all of which arise to more serious offenses than those falling under indecent acts.” Reply Brief of Appellant at 12. 

Sanchez’s congressional intent argument is based on amendments to § 2251 and Article 120 of the Uniform Code of Military 

Justice. He points out that § 2251 was amended in 2003 to include 

a prior conviction under Article 120 as a trigger for higher § 2251 

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penalties. See PROTECT Act, Pub. L. No. 108–21, § 507, 117 Stat. 

650, 683 (2003). At that time, Article 120 covered what he describes as “serious sexual offenses,” such as rape. In 2006, however, 

Article 120 was amended to add, among other things, the crime of 

an “indecent act.” See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109–163, § 552(a)(1)(k), 119 Stat. 3136, 

3258 (providing that “[a]ny person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be 

punished as a court-martial may direct”). Article 120 no longer includes that provision. See 10 U.S.C. § 920 (2019) (criminalizing rape 

and sexual assault). As a result, Sanchez argues that Congress could 

not possibly have intended to include his conviction for an indecent 

act as an Article 120 conviction that would trigger an enhanced 

penalty under § 2251. The gist of his argument is that there was

only a brief period during which his conduct would have triggered 

the § 2251 enhanced penalty; he does not dispute that his conduct 

occurred during that period. 

Sanchez was convicted under Article 120 in 2011 because he 

sent pornographic photos of his exposed penis and of a woman’s 

bare breasts and buttocks to a 13-year-old girl. That conviction required Sanchez to register as a sex offender. His conduct was far 

from what he describes as a “minor sexual indiscretion.” In any 

event, the particulars of his sex crime against a child, which violated 

Article 120, are not essential to the application of § 2251(e). 

“As always with questions of statutory interpretation, our 

inquiry begins with the plain language of the statute.” United 

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States v. Townsend, 630 F.3d 1003, 1010 (11th Cir. 2011). And 

when the language of the statute is plain, “our inquiry ends where 

it began.” Id. at 1011. It ends there because “we must presume 

that Congress said what it meant and meant what it said.” CBS Inc. 

v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001)

(quotation marks omitted). Section 2251(e) requires the application of a 25-year mandatory minimum sentence if a defendant has 

a prior conviction under Article 120. Congress said that, Congress 

couldn’t have been any plainer about that, and we presume Congress meant that. It is undisputed that Sanchez has a prior conviction under Article 120 and that he had it at the time he violated 

§ 2251. The 25-year mandatory minimum and the 50-year statutory maximum apply, and the district court did not err in its application of § 2251(e). 

Sanchez’s arguments about lenity and absurdity do not alter 

that result. The rule of lenity cannot override the clear directive of 

a statute. See Salinas v. United States, 522 U.S. 52, 66 (1997) (explaining that the rule of lenity “does not apply when a statute is 

unambiguous”); Mulhall v. Unite Here Loc. 355, 667 F.3d 1211, 

1216 (11th Cir. 2012). And there is nothing absurd about the application of § 2251(e)’s plain directive setting Sanchez’s mandatory 

minimum sentence based on his prior conviction under Article 120. 

See Logan v. United States, 552 U.S. 23, 36 (2007) (“Statutory terms

. . . may be interpreted against their literal meaning where the 

words could not conceivably have been intended to apply to the 

case at hand.”) (quotation marks omitted); see also Crooks v. 

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Harrelson, 282 U.S. 55, 60 (1930) (explaining that the judicially created absurdity doctrine will be “applied to override the literal terms 

of a statute only under rare and exceptional circumstances”).

IV. 

Sanchez also challenges four guidelines sentencing enhancements. One of them is the application of a 4-level increase under 

U.S.S.G. § 2G2.1(b)(4) for production of child pornography that 

portrays sadistic or masochistic conduct. The district court applied 

that enhancement because Sanchez had CP make videos of herself 

inserting foreign objects into her vagina. He argues that he did not 

appearin the videos and that an objective viewer would not believe 

that the pictured activity had inflicted physical pain, emotional suffering, or humiliation on CP. 

But CP told Sanchez that inserting the toothbrush would be 

painful, to which he responded that he “like[d] seeing [her] in pain.”

Which at least implicitly acknowledged it would be painful. An 

objective viewer could reasonably find that it was painful and humiliating. See United States v. Caro, 309 F.3d 1348, 1351–52 (11th 

Cir. 2002) (holding that the sadistic conduct enhancement applied 

when the images showed penetration that would be painful, including vaginal and anal penetration with foreign objects); see also 

United States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999) (explaining that “sadistic and masochistic conduct includes sexual gratification which is purposefully degrading and humiliating”); United 

States v. Starr, 533 F.3d 985, 1001 (8th Cir. 2008) (holding that a 

minor’s “self-penetration by a foreign object” justifies application 

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22 Opinion of the Court 19-14002

of the enhancement); United States v. Johnson, 784 F.3d 1070, 1075 

(7th Cir. 2015) (holding that “an image of a young girl inserting a 

screwdriver into her vagina connotes a degree of potential pain and 

violence” justifying application of § 2G2.1(b)(4)). The district 

court did not err in applying the § 2G2.1(b)(4) enhancement. 

Sanchez also challenges a 2-level increase he received under 

§ 2G2.1(b)(2)(A) for production of child pornography that involved 

committing “a sexual act or sexual contact.” He argues that he did 

not touch, penetrate, or film the two victims, and their masturbation does not amount to a sexual act or sexual contact within the 

meaning of the guidelines provision. Yes it does. United States v. 

Shafer, 573 F.3d 267, 278 (6th Cir. 2009) (upholding application of 

the § 2G2.1(b)(2)(A) enhancement where the defendant persuaded 

the young victim to “to self-masturbate”); see also United States v. 

Aldrich, 566 F.3d 976, 979 (11th Cir. 2009) (“[W]e conclude as the 

district court did that the plain meaning of ‘sexual contact’ under 

U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act 

of masturbating. The statute’s operative phrase ‘any person’ applies to all persons, including [the defendant] himself.”); accord 

United States v. Pawlowski, 682 F.3d 205, 212 (3d Cir. 2012); United 

States v. Raiburn, 20 F.4th 416, 422 (8th Cir. 2021) (“Following our 

sister circuits, we reject [the defendant’s] arguments and hold that 

the plain meaning of ‘sexual contact’ under U.S.S.G. § 

2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act of masturbating.”) (quotation marks omitted).

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Sanchez also challenges a 5-level increase he received under 

U.S.S.G. § 4B1.5(b)(1) for “engag[ing] in a pattern of activity involving prohibited sexual conduct.” He certainly did that. He sent messages to CP for months, requesting sexual images from her on a 

daily basis. The district court found that 29-year-old Sanchez had 

a “sexual relationship” with 14-year-old CP, and her testimony that 

she had sex with Sanchez on several occasions was credible. We 

give that credibility finding “great deference.” United States v. 

Clay, 376 F.3d 1296, 1302 (11th Cir. 2004). 

And when the court applied the § 4B1.5(b) enhancement, it 

explained: “Most troublesome in this case is that after the police 

confiscated Mr. Sanchez’s cell phone while investigating him for 

the relationship with [CP] he bought a new cell phone and started 

contacting yet another victim [AP]. To the Court, this is certainly 

a pattern of a repeat and dangerous predatory conduct towards minors.” 

And there’s more. The fact that Sanchez produced child pornography on two separate occasions means that the pattern enhancement applies. See United States v. Isaac, 987 F.3d 980, 994 

(11th Cir. 2021) (explaining that a pattern is “at least two separate 

occasions” that need not occur “during the course of the offense” 

or “involve[] the same minor”) (quoting U.S.S.G. § 4B1.5 cmt. 

n.4(B)(i) and U.S.S.G. § 2G2.2 cmt. 1). The district court properly 

applied the 5-level § 4B1.5(b)(1) increase.

Finally, Sanchez challenges a 2-level increase that was imposed under § 2G2.1(b)(3) for knowingly engaging in the

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24 Opinion of the Court 19-14002

distribution of child pornography. He argues that his solicitation 

of child pornography from the victims is not distribution, and he 

didn’t distribute that pornography after he received it from them. 

Even if the application of that enhancement was error, it was harmless because Sanchez’s total offense level would have remained the 

same regardless. See United States v. Sarras, 575 F.3d 1191, 1220 

n.39 (11th Cir. 2009) (explaining that when the total offense level 

remains unchanged, any error is harmless). Here’s why.

Sanchez scored a total offense level of 51. The highest offense level from the guidelines sentencing table that counts in sentencing is 43, and as a result 43 became Sanchez’s countable offense 

level. See U.S.S.G. Ch. 5, Pt. A, cmt. n.2 (explaining that “[a]n offense level of more than 43 is to be treated as an offense level of 

43”); Isaac, 987 F.3d at 987. A total scored offense level of 51 minus 

8 enhancement levels is 43. Any error in the district court’s application of the guidelines would have to reduce the scored offense 

level by more than 8 to be anything other than harmless because 

with any reduction of 8 levels or fewer, the countable offense level 

would remain the same: 43. If the 2-level increase that was imposed under § 2G2.1(b)(3) was erroneous, subtracting it would 

have reduced the total scored offense level to 49, but the countable 

offense level would have remained at 43. As a result, any error in 

applying a 2-level enhancement under § 2G2.1(b)(3) was harmless.

See Sarras, 575 F.3d at 1220 n.39.

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Sanchez has shown no reversible error in any of his guidelines calculations based on the enhancements that the district court 

applied. 

V. 

Sanchez contends 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 the two minors to produce child pornography. He argues that 

he should not have been sentenced for both crimes because they 

have identical elements. No, they don’t. 

The Double Jeopardy Clause guarantees that no person shall 

“be subject for the same offence to be twice put in jeopardy of life 

or limb.” U.S. Const. amend. V. The protections it affords include 

a prohibition against “multiple punishments for the same offense.” 

United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). 

“[W]here the same act or transaction constitutes a violation of two 

distinct statutory provisions, the test to be applied to determine 

whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). That’s the Blockburger test, a/k/a the “same-elements test.” Bobb, 577 F.3d at 

1374. When applying that test, we focus “on the proof necessary 

to establish the statutory elements of each offense, not the actual 

evidence presented at trial.” Id. at 1372; see also United States v. 

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Lee, — F.4th —, No. 20-13505, 2022 WL 829014, at *3 (11th Cir. 

Mar. 21, 2022) (“This strictly elemental analysis applies even where 

we are presented with two offenses based on the same factual allegations.”) (quotation marks omitted). We look at whether the two 

statutes have the same elements. See Bobb, 577 F.3d at 1372, 1374.

They don’t, as the Sixth Circuit has held. It rejected a similar 

double jeopardy challenge to sentences under § 2422 and § 2251

because the elements of the statutes are different:

Here, 18 U.S.C. § 2422(b) requires the government to 

prove that [the defendant] attempted to persuade a 

minor to engage in “sexual activity for which any person can be charged with a criminal offense.” This element is not found in 18 U.S.C. § 2251. And § 2251 

requires the government to prove that [the defendant] attempted to persuade a minor to engage in sexually explicit conduct “for the purpose of producing 

any visual depiction of such conduct.” This element 

is not contained in 18 U.S.C. § 2422(b). Because 18 

U.S.C. §§ 2422(b) and 2251 each require proof of an 

element that the other does not, [the defendant’s] 

double jeopardy argument fails.

United States v. Hart, 635 F.3d 850, 858 (6th Cir. 2011); see also

United States v. Isabella, 918 F.3d 816, 849 n.28 (10th Cir. 2019) (rejecting the defendant’s argument that the “‘activity for which any 

person can be charged with a criminal offense’ under § 2422(b) was 

the same activity [that formed the basis of] his conviction under 

§ 2251(a)” because the elements of the statutes differed). 

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We agree. The statutes have some different elements. They 

pass the Blockburger test. Sanchez’s double jeopardy argument 

fails. 

VI. 

Finally, Sanchez contends that his guidelines-range life sentence (plus a 10-year consecutive mandatory minimum one) is substantively unreasonable. He argues that it would have been 

enough to impose the mandatory minimum sentence of 35 years 

(25 years on the child pornography production counts plus 10 years 

consecutive on count 7, the felony offense involving a minor while

he was already registered as a sex offender). Sanchez points to the 

sentence hearing testimony of defense witness psychologist Dr. Imhof. He testified to his opinion that Sanchez’s risk of recidivism 

would be greatly reduced after he served a 35-year sentence, at 

which time Sanchez would be in his mid-sixties. Sanchez also argues that “the court unreasonably placed no weight on the many, 

many mitigating factors here — that [he] served his country in the 

United States Air Force, which included deployments overseas; 

[his] vulnerability in prison; and no evidence of intent to actually 

distribute the images sent to him.” 

We review the reasonableness of a sentence only for abuse 

of discretion. United States v. Irey, 612 F.3d 1160, 1188–89 (11th 

Cir. 2010) (en banc). We will “vacate the sentence if, but only if, 

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we are left with the definite and firm conviction that the district 

court committed a clear error of judgment in weighing the 

§ 3553(a) factors by arriving at a sentence that lies outside the range 

of reasonable sentences dictated by the facts of the case.” Id. at 

1190 (quotation marks omitted). 

The district court did not improperly weigh the factors or 

commit a clear error of judgment. See id. The court stated that it 

had taken into account the § 3553(a) factors and mitigating facts, 

such as Sanchez’s consistent employment history, his military service, and Dr. Imhof’s testimony that Sanchez suffers from bipolar 

disorder and depression. The court considered a lower sentence 

but decided it would not be appropriate under the circumstances. 

At the sentence hearing, the court explained in detail its findings and conclusion about the appropriate sentence. In weighing 

the § 3553(a) factors, the court considered the fact that Sanchez was 

already a registered sex offender when he committed the seven 

crimes for which he had most recently been convicted in this case. 

It noted that after his prior sex offense crime, which he committed 

while he was in the military, he was “confined” and was “sentenced 

to treatment.” A problem was, as the court found, that “[c]learly, 

the treatment that [Sanchez] received did not alleviate the urges 

that [he] regularly experienced in regard to contact that [he] had 

with minors.” The court pointed out that Sanchez’s own witness, 

Dr. Imhof, stated that the prior conviction “was a shot over the 

bow, but [Sanchez] didn’t get the message.” He failed to get the 

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message, the court found, even after his prior confinement and 

treatment.

Instead of getting the message, the court said, Sanchez 

“sought” CP as one of his victims and even “befriended her family.” 

The court had heard testimony from CP during the trial that 

Sanchez had sex with the fourteen-year-old girl on multiple occasions. At sentencing, the court spoke directly to Sanchez:

By [CP’s] own admission, she was a shy, insecure 14-

year-old. During the course of the offense, you not 

only took her virginity, but you took her dignity as 

well in all of the messages you sent her, the barrage 

of phone calls, of contact, of sexual contact with her. 

And all through that, when confronted during the 

course of the search warrant you continued to deny 

any allegations that she made against you. In fact, 

during the controlled call you acted like you didn’t 

even know her, her family or her sister. And you continued to lie to law enforcement about all of those 

contacts.

The court found it “[p]articularly troubling” that after law enforcement seized Sanchez’s phone, he “still didn’t stop.” Instead, he 

“sought another victim.” It appeared that he was “always looking 

for another victim, always looking for another conquest.” 

To that end, the court explained, after law enforcement took 

Sanchez’s phone, he got another one and found another young victim by preying on a family who came to eat at the restaurant where 

he worked. About the crimes he had committed against that other 

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child victim, AP, the court said that Sanchez “demand[ed]” that the 

girl “send [him] photographs of herself, repeatedly, constantly texting her, sending messages,” all the while pretending that he was a 

13-year-old boy. The court wondered how Sanchez “kept up with 

the barrage of text messages, changing [him]self and [his] identity 

from [13-year-old fictional] Gian King to [him]self and then texting 

[AP].” The court said it “barely could keep up” while “reading the 

messages, and [Sanchez was] changing [his] identity after every 

text.” Even when he was arrested, the court pointed out, Sanchez 

tried to hide his phone, which was the “second phone that [he] got 

after [his] first phone was confiscated.” The district court explained 

that it had considered both the mitigating factors and the fact that 

again and again Sanchez was undeterred in his conduct of committing sex crimes against children. 

In light of all those considerations, the court imposed the 

guidelines sentence of life imprisonment plus a consecutive tenyear mandatory minimum, which was required because Sanchez 

had committed felony crimes involving minors while he was already registered as a sex offender. 

“We’ve upheld time and again sentences that will outlast a 

child pornographer’s life.” Isaac, 987 F.3d at 996 (citing four decisions that also cite others). And the life sentence here was within 

the guidelines range. See id. at 994 (“Though we don’t automatically presume a sentence within the guidelines range is reasonable, 

we ordinarily expect it to be.”) (quotation marks omitted). The 

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district court did not abuse its discretion. The sentence it imposed 

on Sanchez is not substantively unreasonable. 

AFFIRMED.

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