                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 18a0095p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 17-3768
        v.                                               │
                                                         │
                                                         │
 THOMAS A. SWEENEY,                                      │
                                Defendant-Appellant.     │
                                                         │
                                                         ┘

                         Appeal from the United States District Court
                        for the Southern District of Ohio at Columbus.
                  No. 2:16-cr-00073-1—Michael H. Watson, District Judge.

                              Decided and Filed: May 25, 2018

                  Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.

                                     _________________

                                         COUNSEL

ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
Appellant. Benjamin C. Glassman, Heather A. Hill, UNITED STATES ATTORNEY’S
OFFICE, Cincinnati, Ohio, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

       JOHN K. BUSH, Circuit Judge. Defendant Thomas Sweeney appeals his conviction and
sentence for production and receipt of child pornography, attempted enticement of a minor to
engage in sexual conduct, and commission of a sex offense against a minor while being required
 No. 17-3768                        United States v. Sweeney                              Page 2


to register as a sex offender. For the reasons explained below, we affirm his conviction and
sentence.

                                                 I

       Sweeney’s parental rights over his daughter, T.R., were terminated after he was convicted
of raping his niece, and he had no contact with T.R. during his ten-year imprisonment. Upon his
release from prison in 2013, Sweeney began contacting T.R. via Facebook and text message.
By June 2015, when T.R. was 14, their communications had turned sexual and included the
mutual sending of explicit pictures, detailed discussion of sex acts, and ultimately
unconsummated plans to meet for the purpose of engaging in sexual acts.

       T.R. alerted her adoptive parents to the nature of her conversations with Sweeney, and
they alerted officers from the Department of Homeland Security, who alerted Sweeney’s parole
officer. During a meeting with his parole officer, Sweeney indicated that he owned a cellular
telephone that he had left at the homeless shelter where he lived. The parole officer told waiting
DHS officers about this telephone and that Sweeney was planning on going to a hospital.
A parole officer, accompanied by the DHS officers, went to the homeless shelter, located the
telephone, and secured the phone’s media-storage card, which DHS officers later searched
pursuant to a warrant.

       After a jury trial at which evidence from the media-storage card was admitted, Sweeney
was convicted on all counts and received a carceral sentence of fifty-five years.

                                                II

        Sweeney makes three arguments on appeal. First, he contends that the district court
erred in admitting evidence derived from the media-storage card, which he argues was obtained
in violation of the Fourth Amendment. Second, Sweeney claims that the trial court erred by
applying a two-level enhancement under USSG § 2G2.1(b)(5), which applies when the defendant
is the “parent” of the victim; Sweeney argues he was not T.R.’s parent after his parental rights
were terminated. And finally, he maintains that his sentence was procedurally unreasonable for
 No. 17-3768                           United States v. Sweeney                            Page 3


the district court’s failure to address various mitigation arguments that Sweeney raised at
sentencing.

                                                 ***

       On appeal from the denial of a motion to suppress, we review the district court’s factual
findings for clear error and its legal conclusions de novo. United States v. Foster, 376 F.3d 577,
583 (6th Cir. 2004). We may overturn a district court’s denial of a motion to suppress only if the
defendant has met his burden to show “a violation of some constitutional or statutory right
justifying suppression.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003)
(citation omitted).

       The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
Though “this fundamental right is preserved by a requirement that searches be conducted
pursuant to a warrant issued by an independent judicial officer,” there are “exceptions to the
general rule that a warrant must be secured before a search is undertaken.” California v. Carney,
471 U.S. 386, 390 (1985).

       One such exception allows warrantless searches so long as they are pursuant to a
constitutional state law authorizing the warrantless searches of parolees and their residences. See
Samson v. California, 547 U.S. 843, 856 (2006).           We have already held that Ohio R.C.
§ 2967.131(C), the law authorizing the warrantless search of Sweeney’s residence, is
constitutional, see United States v. Loney, 331 F.3d 516, 521 (6th Cir. 2003), and Sweeney does
not contest that the search was pursuant to the requirements of that statute.

       He argues instead that we should apply an exception to the exception and disallow this
search because the parole officer who searched Sweeney’s domicile was impermissibly acting as
a “stalking horse” to help the DHS officers evade the Fourth Amendment’s warrant requirement
in their investigation into Sweeney.

       The prohibition on law-enforcement officers’ using parole officers as “stalking horses”
for their own investigations stems from a line of cases starting with Griffin v. Wisconsin,
 No. 17-3768                        United States v. Sweeney                              Page 4


483 U.S. 868 (1987). Griffin justified warrantless searches of probationers based on the “special
needs” of a state in administrating its system of probation, just as the special needs of
administering a penal system limit the requirements of the Fourth Amendment in the prison
context. Id. at 873–77. Because the exception to the warrant requirement is predicated on the
special needs inherent in a system of probation, the search must be related to those needs and not
merely an instance of law-enforcement officers’ using a parole officer as a stalking horse to
assist in an unrelated investigation. See United States v. Goliday, 145 F. App’x 502, 505 (6th
Cir. 2005).

       More recently, however, the Supreme Court has grounded this exception in the lower
expectation of privacy enjoyed by probationers, which is weighed against the promotion of
legitimate governmental interests to determine whether the search was reasonable under “the
totality of the circumstances.” Samson, 547 U.S. at 849–52. Because this justification for the
exception is not always related to the special needs of the probationary system, the reason for
conducting the search need not necessarily be related to those needs either.

       When the government relies on the “special needs” doctrine to justify a search, the
stalking horse exception may still apply, but when the government relies on the totality-of-the-
circumstances doctrine as articulated in Samson, it does not. See United States v. Lykins, 544 F.
App’x 642, 647 n.2 (6th Cir. 2013). Because the district court explicitly relied on the doctrine in
Samson, and because the state defends the search on those grounds, the stalking-horse exception
does not apply.

       Regardless, there is no reason to think that the parole officer was acting as a stalking
horse for the DHS officers. Under the “special needs” doctrine, the stalking-horse exception
only prevents probation officers from assisting law enforcement in evading the Fourth
Amendment’s warrant requirement—it allows that “police officers and probation officers can
work together and share information to achieve their objectives.” United States v. Martin,
25 F.3d 293, 296 (6th Cir. 1994).

       Here, the parole officer who searched Sweeney’s residence had every parole-related
reason to do so—he had recently been informed by DHS officers that Sweeney was exchanging
 No. 17-3768                           United States v. Sweeney                               Page 5


explicit pictures with his daughter, a clear violation of the terms of his parole, which he had been
sentenced to as a result of his conviction for raping his niece. That DHS also wanted access to
Sweeney’s phone does not detract from the parole officer’s legitimate interest in searching it.

          In short, the stalking-horse exception to the general rule allowing parole officers to search
a parolee’s residence does not apply when, as here, that search is reasonable under the totality of
the circumstances, as authorized by Samson, and even if it did apply, the parole officer was not
acting as a stalking horse.

                                                  ***

          At sentencing, the district court applied a two-level enhancement to Sweeney’s
Guidelines range under USSG § 2G2.1(b)(5), which applies if “the defendant was a parent,
relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in
the custody, care, or supervisory control of the defendant.”

          The appropriate interpretation of USSG § 2G2.1(b)(5) is a legal issue, which we review
de novo. See, e.g., United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012). The factual
findings required to determine whether Sweeney fell within USSG § 2G2.1(b)(5), appropriately
interpreted, are reviewed for clear error. United States v. Hodge, 805 F.3d 675, 678 (6th Cir.
2015) (citing United States v. Maken, 510 F.3d 654, 656–57 (6th Cir. 2007)).

          Sweeney’s position is that he is not T.R.’s parent, as the term is used in USSG
§ 2G2.1(b)(5), because his parental rights over T.R. had been terminated before the offense.

          In support of his argument, he points to the text of the enhancement, which describes
several enumerated categories—parents, relatives, and legal guardians—and also applies the
enhancement to anyone who “otherwise [has] custody, care, or supervisory control” of the
victim.     Sweeney reads the term “otherwise” as requiring that the preceding enumerated
categories be limited such that only people who have custody, care, or supervisory control count
as parents, relatives, or legal guardians for purposes of § 2G2.1(b)(5).
 No. 17-3768                              United States v. Sweeney                                        Page 6


        Additionally, Sweeney cites the “Reason for Amendment” offered by the Sentencing
Commission for § 2G2.1(b)(2),1 which tells us that this section was added “to provide an
increase for defendants who abuse a position of trust in exploiting minor children.” USSG app.
C, amend. 324 (2003). Not all parents are in a position of trust relative to their children, says
Sweeney, inviting us to imagine a biological parent who gives up his biological child for
adoption and has no subsequent relationship with that child, against whom the biological parent
then offends. Arguing that this hypothetical parent should not be subject to the enhancement,
Sweeney concludes that we should limit the definition of “parent, relative, or legal guardian” to
those who have custody, care, or supervisory control over the victim, because anyone who has
custody, care, or supervisory control over a child is in a position of trust.

        We are unconvinced that USSG § 2G2.1(b)(5) only applies to parents, relatives, or legal
guardians who have custody, care, or supervisory control over their victims. Because anyone
who has custody, care, or supervisory control over a victim is already subject to the
enhancement, this would render the terms “parent,” “relative,” and “legal guardian” superfluous,
and we are “‘reluctan[t] to treat statutory terms as surplusage’ in any setting.”2 Duncan v.
Walker, 533 U.S. 167, 174 (2001) (alteration in original) (quoting Babbitt v. Sweet Home
Chapter of Cmties. For a Great Or., 515 U.S. 687, 698 (1995)).

        What, then, is the correct definition of “parent?”3 “A fundamental canon of statutory
construction is that, unless otherwise defined, words will be interpreted as taking their ordinary,
contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). The term
“parent” is normally used to refer to the progenitors of a child, as well as anyone who has taken




        1
            USSG § 2G2.1(b)(2) later became USSG § 2G2.1(b)(5).
        2
          When confronted with very similar language in a different context, the Supreme Court came to the same
conclusion. See Taylor v. United States, 495 U.S. 575, 597 (1990). In Taylor, the Court interpreted the term
“burglary” as it appears in 18 U.S.C. § 924(e)(2)(B), which defines “violent felony” as, among other things, a crime
that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another” (emphasis added).
        3
          Because the government does not argue that Sweeney was T.R.’s relative or legal guardian, we do not
define those terms.
 No. 17-3768                                United States v. Sweeney                                            Page 7


on the role traditionally reserved for those progenitors, such as a stepfather.4 One can be a parent
in this sense without having parental rights over one’s child.

         Sweeney argues that in addition to biological parentage, the statute requires that the
defendant must have also abused a position of trust, citing the Guidelines commentary earlier
noted. He argues that, here, there was no position of trust between himself and T.R. But, as
explained below, even applying the definition that Sweeney asks us to adopt—and it seems clear
that, as used in § 2G2.1(b)(5), “parent” includes at least the child’s biological father who abuses
a position of trust—the district court did not clearly err in finding that the enhancement applies in
this case. We need not decide, therefore, whether a biological relationship alone between the
perpetrator and the victim would be sufficient for the “parent” enhancement to apply.

         The district court applied § 2G2.1(b)(5) because T.R. “saw [Sweeney] in [his] biological
father role despite the fact that she’d been adopted.” While the district court used the term
“biological,” it applied the enhancement because of the role Sweeney was playing in T.R.’s life,
not the mere fact that she was his biological daughter.5

         In determining whether the district court clearly erred in finding that Sweeney is T.R.’s
parent under § 2G2.1(b)(5), we must be mindful that the Sentencing Commission directed that
the enhancement “have broad application.” USSG § 2G2.1(b)(5), cmt. n.5. The trial transcript is
replete with testimony showing that Sweeney had reestablished his parental relationship with
T.R. and was therefore in a position of trust relative to her. The district court did not clearly err
in finding that their relationship fell within the broad application of § 2G2.1(b)(5).



         4
           See, e.g., Oxford English Dictionary, Parent, http://www.oed.com/view/Entry/137816?rskey=h61fNd&res
ult=1&isAdvanced=false#eid (“A person who is one of the progenitors of a child; a father or mother. Also, in
extended use: a woman or man who takes on parental responsibilities towards a child, e.g. a stepmother, an adoptive
father.”).
         5
           Further supporting our view that the district court’s application of the enhancement was not predicated
solely on the biological relationship between Sweeney and T.R., the district court invited “the Circuit to clarify
whether a biological father is an appropriate application of this guideline, but I believe it is in this case.” Had the
district court been of the opinion that being the biological father of the victim was sufficient simpliciter, it would not
have said that it was sufficient in this case. In the context of the sentencing transcript, clearly the district court
thought that it was sufficient in this case because of the familial relationship that had developed between Sweeney
and T.R. beyond their biological relationship.
 No. 17-3768                              United States v. Sweeney                                        Page 8


         Sweeney and T.R. were in periodic contact for approximately two and a half years. T.R.
described their relationship immediately prior to the criminal activity as “good, like friendly, like
trying to see if we could be like father/daughter again.” As the following example shows, the
text-message conversations between the two support T.R.’s characterization of the relationship.

         T.R.:            “Leave me alone and forget about being lovers because it’s not
                          going to happen.”
         Sweeney:         “What! What did I do, love?”
         T.R.:            “I don’t want to be lovers. I just want you to be my dad, nothing
                          more than a father.”

         The record makes it clear that Sweeney had re-entered T.R.’s life as a father figure, even
if he did not have custody, care, or supervisory control over her. The district court did not
clearly err in finding that this was sufficient to show that Sweeney was T.R.’s parent for
purposes of § 2G2.1(b)(5).

                                                       ***

         Finally, Sweeney argues that his sentence is procedurally unreasonable because the
district court failed to address various mitigating arguments he presented at sentencing.6 In
passing sentence, district courts must address legitimate mitigating arguments raised by the
defendant. See, e.g., United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (“When a
defendant raises a particular[, nonfrivolous] argument in seeking a lower sentence, the record
must reflect both that the district judge considered the defendant’s argument and that the judge
explained the basis for rejecting it.” (alteration in original) (quoting United States v. Gapinski,
561 F.3d 467, 474 (6th Cir. 2009))). But we have been clear that district courts need not engage
in a formulaic point-by-point refutation of a defendant’s mitigation arguments; the district court
discharges its duty so long as it “conduct[s] a meaningful sentencing hearing and truly
consider[s] the defendant’s arguments.” United States v. Gunter, 620 F.3d 642, 646 (6th Cir.
2010).


         6
          Sweeney also cursorily argues that his sentence is procedurally unreasonable because the district court
“did not review or address on the record in any meaningful way [the] 18 U.S.C. § 3553(a) factors,” although he fails
to mention which factors he believes were inadequately reviewed or why their review was inadequate. Reviewing
the record has convinced us that the district court considered the § 3553(a) factors adequately.
 No. 17-3768                            United States v. Sweeney                                    Page 9


        Sweeney admits we review this issue under the deferential plain-error standard. We are
not convinced that the district court plainly failed to consider or adequately explain its rejection
of any of the arguments Sweeney presented at sentencing.

        Sweeney claims that the district court failed to address his argument that “the Sentencing
Guidelines for these type [sic] of offenses themselves were skewed, and not commiserate [sic]
with actual offense conduct,” that “the instant offense was less appalling than some other
offenses prosecuted under the statute,” that “there would be a sentencing disparity if the court
imposed a 45 year sentence,” and that “a 30 year sentence was in effect a life sentence.”

        The district court, however, clearly considered these arguments. It granted that “this does
seem to be a category of cases where there is growing agreement that perhaps the punishments
are treated more harshly under the guidelines than with other types of criminal offenses” and
indicated that it was “mindful of the need to avoid unwarranted sentencing disparities.” It agreed
with Sweeney that “this is not the worst offense the Court has seen.” And it recognized that
“[a] 35-year sentence may in fact be a life sentence.”

        While the district court did not engage in a point-by-point explanation of why each of the
mitigation arguments did not further influence its decision,7 the record shows that it considered
each of these arguments and rejected each after a careful consideration of the appropriate
§ 3553(a) factors.

                                                    III

        For the foregoing reasons, we AFFIRM.




        7
         The district court was moved, at least, by Sweeney’s argument that more appalling offenses have been
committed, crediting this fact with its having “chosen a sentence below the statutory maximum range.”
