                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                     No. 12-10067
             Plaintiff-Appellee,
                                                 D.C. No.
                  v.                       3:09-cr-00973-JSW-1

 DONALD THOMAS TOSTI,
         Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
           for the Northern District of California
         Jeffrey S. White, District Judge, Presiding

                    Argued and Submitted
          June 14, 2013—San Francisco, California

                       Filed October 1, 2013

      Before: Mary M. Schroeder, Kenneth F. Ripple*,
        and Consuelo M. Callahan, Circuit Judges.

                  Opinion by Judge Callahan




 *
   The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
2                    UNITED STATES V. TOSTI

                           SUMMARY**


                           Criminal Law

   The panel affirmed a conviction and sentence for
possessing child pornography.

    The panel held that a 2005 search of the defendant’s
computer at a CompUSA store was lawful because the police
officers who conducted it did not exceed the scope of the
permissible search already conducted by a private party, and
a 2009 search of the defendant’s home office was lawful
because the defendant’s wife had apparent authority, if not
actual authority, to consent.

    The panel also held that the district court acted within its
discretion in imposing a substantively reasonable sentence
that accounts for the defendant’s age and infirmities.


                             COUNSEL

Amitai Schwartz (argued) and Moira Duvernay, Law Offices
of Amitai Schwartz, Emeryville, California, for Defendant-
Appellant.

Melinda Haag, United States Attorney, and Barbara J.
Valliere, Assistant United States Attorney, San Francisco,
California; Julia Malkina (argued), United States Department
of Justice, Washington, D.C., for Plaintiff-Appellee.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. TOSTI                    3

                        OPINION

CALLAHAN, Circuit Judge:

    Defendant Donald Thomas Tosti (“Tosti”) was convicted
of possessing child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B). He appeals from the district court’s denial
of his multiple motions to suppress evidence derived from
both the 2005 search of his computer at a CompUSA store
and the 2009 search of his home office. Tosti also challenges
his 96-month sentence as unreasonable in light of his
advanced age and poor health. We hold that the 2005 search
was lawful because the police officers who conducted it did
not exceed the scope of the permissible search already
conducted by a private party, and the 2009 search was lawful
because Tosti’s wife had apparent authority, if not actual
authority, to consent. We also hold that the district court
properly considered Tosti’s age and physical characteristics
when it exercised its sentencing discretion. Accordingly, we
affirm Tosti’s conviction and sentence.

                             I

    In January 2005, Tosti took his computer to a CompUSA
store for service. According to Tosti, “[he] understood that
a technician at CompUSA would have temporary custody of
the computer, and would inspect it as needed to complete the
requested repairs.”

    Seiichi Suzuki was working on the machine when he
discovered pornographic images of children in a sub-folder,
which prompted him to contact the police. According to
Suzuki, he was “opening various folders and subfolders to
look for images,” and he and a technician “were randomly
4                 UNITED STATES V. TOSTI

checking what was on the drive folders when [they]
eventually encountered images that looked like child
pornography.” Pursuant to the police report, Suzuki advised
the police that “he discovered numerous photographs in the
file of naked children and adult men.” “He said the
photographs depicted many graphic sex scenes of children.”

    Two detectives, George Schikore and Ed Rudolph,
responded to Suzuki’s call. Detective Schikore arrived first.
When he got to the store, “there were numerous images
appearing on the computer monitor in a very small
‘thumbnail’ format.” According to Detective Shikore, he
“could tell by looking at the [thumbnail] pictures that they
depicted child pornography.” Detective Schikore purportedly
“directed [Suzuki] to open the images in a ‘slide show’
format so that they would appear as larger images viewable
one by one.” Suzuki “opened up the individual images in the
‘slide show’ format, using keys to move forward or backward
as requested by [Detective Schikore].”

    Detective Rudolph arrived later and scrolled through the
active images on the computer monitor. According to
Detective Rudolph, there were “more than two-dozen
[t]humbnail view graphical files maximized on the desktop.”
Detective Rudolph stated that he scrolled through the images
on the screen, but also indicated that he could tell even from
the thumbnail images that they depicted obvious sexual
activity between adults and children.

   The detectives seized Tosti’s computer. Based on Officer
Rudolph’s observations, Detective Mojib Aimaq thereafter
prepared an affidavit supporting the issuance of a search
warrant for Tosti’s computer, residence, office and two
vehicles registered to Tosti and his wife. A Marin County
                      UNITED STATES V. TOSTI                              5

magistrate judge issued the warrant, which was executed the
following day.

   Tosti was eventually arrested on October 16, 2009.1 A
few days later, on October 20, 2009, Tosti’s then estranged
wife, Annette Tosti, contacted FBI Special Agent Elizabeth
Casteneda. Ms. Tosti had been married to Tosti for
approximately twenty years, during the majority of which
time they maintained a residence in San Rafael, California.

    Tosti had purportedly asked Ms. Tosti to locate financial
records, which were stored in a room inside the Tosti home
that Tosti was utilizing as an office. During her search, Ms.
Tosti found documents that appeared to contain pornography.
She turned those documents and some internal and external
hard drives over to Agent Casteneda. At that time, Ms. Tosti
explained to Agent Castaneda that she lived with her husband
in the house and that she had full access throughout the
residence. Ms. Tosti also advised Agent Casteneda that she
was responsible for cleaning the office.

    Two days later, on October 22, 2009, Ms. Tosti again
contacted Agent Castaneda and asked her to take several
items from the Tosti home. That same day, Ms. Tosti turned
over a Dell computer, several external hard drives, and
numerous DVDs. None of these were password protected or
encrypted, and they appeared to contain pornography.

    Ms. Tosti signed a “Consent to Search” form authorizing
agents to search the items she turned over on October 22. On
that form, Ms. Tosti stated, “The above items both my

 1
   There is no explanation in the record for the lapse of four years without
any apparent activity.
6                 UNITED STATES V. TOSTI

husband, Donald Tosti and I use.” Agent Casteneda did not
see any “signs, extra locks or other indicia” that the home
office “was anything other than an area of the residence to
which Annette Tosti had common access as she consistently
maintained.” Tosti’s brother-in-law also declared he had not
seen any indicia that Ms. Tosti’s access to the home office
was limited. Tosti nonetheless avers that he and Ms. Tosti
had “an explicit agreement that [they] would not enter each
other’s private work areas without first announcing
[themselves] and then getting permission.”

    Tosti was prosecuted pursuant to a superseding
indictment charging him with possessing child pornography
in violation of 18 U.S.C. § 2252(a)(4)(B). He moved to
suppress the evidence seized as a result of the Government’s
2005 and 2009 searches. The district court granted in part
and denied in part Tosti’s motions, suppressing only the first
batch of evidence that Ms. Tosti had turned over to Agent
Casteneda on October 20, 2009. Tosti was subsequently
found guilty after a bench trial on stipulated facts.

    Prior to sentencing, the probation officer issued a Pretrial
Sentencing Report (“PSR”) recommending that Tosti be
sentenced to 96 months in prison and five years supervised
release and be ordered to pay $50,000 in restitution. The
guidelines sentencing range was 108–135 months.

    At sentencing, the district court engaged in a lengthy
colloquy with Tosti. The court discussed, among other things,
the guidelines and their advisory nature. The court also noted
that, in the instant case, it agreed with the applicable
guidelines, in part because “this child pornography
proliferation on the Internet and the computers, downloads,
has become an increasingly serious problem, one that
                  UNITED STATES V. TOSTI                     7

Congress properly took notice of.” The court made clear that
it understood it was required to consider the nature and
circumstances of the offense and the history and
characteristics of the individual defendant. It recognized that
its duty was to impose a sentence “sufficient but not greater
than necessary” and to “avoid unwanted disparities and to
afford adequate deterrence.”

    Tosti argued, among other things, that the district court
should exercise its discretion to apply a downward variance
from the guidelines because of his advanced age and infirm
medical condition. Tosti was 76 years old at the time of
sentencing. He had suffered four heart attacks and had
undergone stenting of his femoral arteries and other lower
extremity vessels. He suffered from diabetes, hypertension,
heart disease, thyroid disease, and kidney disease, and was
taking approximately 22 medications daily. Tosti sought to
be sentenced to time served (nine weeks), a lifetime of
supervised release, home confinement, and community
service. He also sought to pay $100,000 in restitution. The
district court addressed Tosti’s arguments at sentencing,
recognizing that Tosti was older than most defendants and
explaining that it had considered Tosti’s physical and medical
conditions in crafting its sentence.

    The district court noted that Tosti “hit the jackpot” and
“pushed the[] aggravating sentencing factors to the limit”
based on (a) the sheer volume of pornography he had
collected, (b) his interaction with and manipulation of the
images, and (c) the sadistic nature of the images.
Nonetheless, the court varied downward from the guidelines
and imposed the below-guidelines sentence of 96-months
recommended in the PSR. Tosti filed a timely notice of
appeal from his conviction and sentence.
8                 UNITED STATES V. TOSTI

                              II

    We review de novo the denial of a motion to suppress
brought on Fourth Amendment grounds. United States v.
Hill, 459 F.3d 966, 970 (9th Cir. 2006). Factual findings are
reviewed for clear error. United States v. Gorman, 314 F.3d
1105, 1110 (9th Cir. 2002). Sentencing decisions are
reviewed for an abuse of discretion. United States v. Rangel,
697 F.3d 795, 800 (9th Cir. 2012).

                             III

                              A.

    We first consider Tosti’s argument that the warrantless
searches of his computer at CompUSA were unlawful and
that the fruits of those searches must therefore be suppressed.
We disagree with his contention.

    The 2005 searches derive from Suzuki’s original private
search of Tosti’s computer after Tosti voluntarily
relinquished it to CompUSA. The Fourth Amendment’s
proscriptions on searches and seizures are inapplicable to
private action. See United States v. Jacobsen, 466 U.S. 109,
113–14 (1984). “Once frustration of the original expectation
of privacy occurs, the Fourth Amendment does not prohibit
governmental use of the now-nonprivate information.” Id. at
117. Instead, the Fourth Amendment “is implicated only if
the authorities use information with respect to which the
expectation of privacy has not already been frustrated.” Id.
“The additional invasions of respondents’ privacy by the
government agent must be tested by the degree to which they
exceeded the scope of the private search.” Id. at 115; see also
id. at 119 (“The agent’s viewing of what a private party had
                  UNITED STATES V. TOSTI                       9

freely made available for his inspection did not violate the
Fourth Amendment.”).

    In Jacobsen, employees of a private freight carrier were
inspecting a damaged package when they observed a white
powdery substance. Id. at 111. They opened the package and
found a tube containing a series of plastic bags filled with that
powder. Id. The employees called the Drug Enforcement
Administration (the “DEA”), placed the bags back into the
tube, and then placed the tube back into the box. Id. The first
federal agent on the scene saw that the tube was slit open,
removed the bags and saw the white powder. Id. He then
field tested the powder, identifying it as cocaine. Id. at 112.

    The Court held that, among other things, “the removal of
the plastic bags from the tube and the agent’s visual
inspection of their contents enabled the agent to learn nothing
that had not previously been learned during the private
search.” Id. at 120. Since the DEA’s search “infringed no
legitimate expectation of privacy” it “was not a ‘search’
within the meaning of the Fourth Amendment.” Id.

    Pursuant to Jacobsen, neither Detectives Schikore nor
Rudolph “searched” Tosti’s photos for Fourth Amendment
purposes because Suzuki’s prior viewing of the images had
extinguished Tosti’s reasonable expectation of privacy in
them. Tosti admitted that by voluntarily taking his computer
to CompUSA for repairs he “understood that a technician at
CompUSA would have temporary custody of the computer,
and would inspect it as needed to complete the requested
repairs.” Indeed, Tosti appears to concede that he had no
reasonable expectation of privacy in the thumbnail version of
the pictures that Suzuki had already viewed. Tosti instead
argues that detectives exceeded the scope of Suzuki’s private
10                UNITED STATES V. TOSTI

search when: (1) Detective Shikore directed Suzuki to enlarge
the images and then viewed the photos in slideshow format;
and (2) Detective Rudolph scrolled through the thumbnail
photos.

    The district court explicitly found that Detective Shikore
had viewed only those photos Suzuki had already viewed.
Tosti does not contest that conclusion here, nor does the
record contradict it. The only question with respect to
Detective Shikore, then, was whether Tosti was entitled to
suppression because Detective Shikore purportedly viewed
those pictures not just as thumbnails, but also as enlarged
pictures in a slideshow format.

    Even assuming that Detective Shikore viewed enlarged
versions of the thumbnails, he still did not exceed the scope
of Suzuki’s prior search because Suzuki and both detectives
testified that they could tell from viewing the thumbnails that
the images contained child pornography. That is, the police
learned nothing new through their actions. Since Suzuki – a
private individual to whom Tosti had voluntarily delivered his
computer with the explicit understanding that he would
inspect the system to complete the repairs – could discern the
content of the photos, any expectation of privacy Tosti had in
those pictures was extinguished. Whether detectives later
enlarged them (or the size of the enlargements, for that
matter) is thus irrelevant.

    Similarly, Tosti is not entitled to suppression on the basis
that Detective Rudolph scrolled through the thumbnails.
Again, scrolling through the images Suzuki had already
viewed was not a search because any privacy interest in those
images had been extinguished. Moreover, Detective Rudolph
did not view any more photos than Suzuki had viewed. Tosti
                    UNITED STATES V. TOSTI                         11

agreed that: (1) there was no “evidence in the record to
suggest that either Detective Shikore . . . or Detective
Rudolph viewed any file folder or images other than the file
folder and images opened by Mr. Suzuki”; and (2) the “crux
of Dr. Tosti’s argument [was] that the detectives allegedly
asked Mr. Suzuki to enlarge the images and subsequently
scroll[ed] through the file folder.” The district court
explicitly held “that on the facts presented, this is not a
situation where the Detectives reviewed more file folders or
images than Mr. Suzuki had viewed.” The district court’s
factual finding is not clearly erroneous.2

    The cases on which Tosti relies, Walter v. United States,
447 U.S. 649, 662 (1980), and United States v. Young,
573 F.3d 711, 713 (9th Cir. 2009), are not to the contrary.
First, in Walter, private employees of a firm that received a
misdirected shipment called the FBI after they opened the
boxes and found containers suggestive of sexually explicit
films. 447 U.S. at 651–52. Without a warrant, agents
extracted the films from the containers and viewed them on
a projector. Id. at 652. The Supreme Court reversed the
district court’s denial of a motion to suppress because the FBI
was not entitled to search the films, which had not been
viewed by the private individuals, without a warrant. Id. at
658–60.

    That case is distinguishable for at least two reasons. First,
the private individuals inspecting the package in Walter were
not its intended recipients. Rather, they were employees of
a third-party entity that the defendant never intended to have


 2
    We need not, and do not, reach the question whether examining more
files within the same electronic folder already searched by a private
individual would constitute a search for Fourth Amendment purposes.
12                UNITED STATES V. TOSTI

access to his films. Here, to the contrary, Tosti voluntarily
turned over his computer to CompUSA with the
understanding that its employees would inspect the system in
furtherance of its repair. Second, the content of the films in
Walter was not apparent from the private inspection. In that
case no private individual had viewed the films; nor could
they have done so without a projector. Given the small size
of the film strips, their subject matter could not be determined
with the naked eye. In the instant case, by contrast, when
Suzuki initially viewed Tosti’s pictures, their content was
discernable, and any expectation of privacy Tosti had in those
photographs was extinguished.

    Young also provides no support for Tosti’s position. In
Young, a private security guard discovered a gun in the
defendant’s backpack, which the defendant had left in his
hotel room. 573 F.3d at 714. Security contacted the police
and took an officer to the defendant’s room. Id. at 715. The
guard then held open the backpack so that police could see
the weapon. Id. A panel of this court affirmed the
suppression of that evidence after analogizing the hotel room
to a home and reasoning that “[a] guest has a legitimate and
significant privacy interest in the room’s contents, and does
not lose his expectation of privacy against unlawful
government intrusions into his closed briefcase or the
contents of his computer hard drive when hotel staff sees the
briefcase, laptop, or other belongings while cleaning the room
or changing a light bulb.” Id. at 721. Unlike Tosti, who
voluntarily took his computer to CompUSA to be inspected,
the defendant in Young had not voluntarily relinquished his
backpack to a third party and had not consented to any such
third party inspecting his property.
                   UNITED STATES V. TOSTI                       13

                                B.

    We also reject Tosti’s assertion that the district court
erred in failing to suppress the evidence seized from his home
office and computer media in 2009. Tosti contends that Ms.
Tosti had neither actual nor apparent authority to consent to
those searches. Regardless of whether Ms. Tosti had actual
authority, the district court properly determined that she had
the apparent authority to grant the police access to the
materials.

      “It is well established that a person with common
authority over property can consent to a search of that
property without the permission of the other persons with
whom he shares that authority.” United States v. Murphy,
516 F.3d 1117, 1122 (9th Cir. 2008). “Under the apparent
authority doctrine, a search is valid if the government proves
that the officers who conducted it reasonably believed that the
person from whom they obtained consent had the actual
authority to grant that consent.” United States v. Welch,
4 F.3d 761, 764 (9th Cir. 1993). “To establish apparent
authority, the Government must show that: (1) [officers]
believed an untrue fact that they used to assess . . . control
. . . ; (2) it was objectively reasonable for [officers] to believe
that the fact was true; and (3) if the fact was true, [the third
party] would have had actual authority to consent.” United
States v. Enslin, 327 F.3d 788, 793–94 (9th Cir. 2003).
“[T]he doctrine is applicable only if the facts believed by the
officers to be true would justify the search as a matter of
law.” Welch, 4 F.3d at 764.

    The Tostis were married and had resided in their shared
residence for over twenty years. Ms. Tosti advised Agent
Casteneda that both she and Tosti used the computer and
14                    UNITED STATES V. TOSTI

storage devices located in their home. Even if Ms. Tosti’s
representations were not true, there were no objective
indications that Ms. Tosti’s access to the office was limited.
There were no locks or other signs that Tosti tried to keep his
wife out of the office. Also, the computer and electronic
media were neither password protected nor encrypted. The
fact that Tosti now contests Ms. Tosti’s actual authority does
not undermine the district court’s finding of apparent
authority. There was no indication at the time of the search
that Agent Casteneda was on notice that Ms. Tosti might not
have the authority to consent.3 All objective indicia
supported Agent Casteneda’s conclusion that Ms. Tosti’s
consent was sufficient, and the district court properly denied
Tosti’s motion to suppress.

                                    C.

    Finally, we address Tosti’s claim that the district court
abused its discretion by imposing a substantively
unreasonable sentence that failed to account for his advanced
age and infirmities. According to Tosti, his situation is
extraordinary and unusual because he is 76 years old, in poor
health, and poses little or no risk to either reoffend or to act
on his impulses. Tosti argues that it was within the court’s
discretion to impose minimal prison time.

    Although the district court could have decided on a lesser
sentence, it nonetheless acted within its discretion in


  3
    Even if Agent Casteneda knew that the couple were estranged – a
matter that is not clear from the record – Ms. Tosti continued to live in the
home and to have access to the devices she turned over to the
Government. Accordingly, Agent Casteneda reasonably believed Ms.
Tosti had authority.
                  UNITED STATES V. TOSTI                   15

imposing the below-guidelines sentence that it did. “A
substantively reasonable sentence is one that is ‘sufficient,
but not greater than necessary’ to accomplish § 3553(a)(2)’s
sentencing goals.” United States v. Crowe, 563 F.3d 969, 977
n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). “The
touchstone of ‘reasonableness’ is whether the record as a
whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” United States v.
Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc).

   The sentencing guidelines provide:

       Age . . . may be relevant in determining
       whether a departure is warranted, if
       considerations based on age, individually
       or in combination with other offender
       characteristics, are present to an unusual
       degree and distinguish the case from the
       typical cases covered by the guidelines. Age
       may be a reason to depart downward in a case
       in which the defendant is elderly and infirm
       and where a form of punishment such as home
       confinement might be equally efficient as and
       less costly than incarceration.

U.S.S.G. § 5H1.1. “An extraordinary physical impairment
may be a reason to depart downward; e.g., in case of a
seriously infirm defendant, home detention may be as
efficient as, and less costly than, imprisonment.” U.S.S.G.
§ 5H1.4.

   The district court properly considered Tosti’s age and
physical condition at sentencing and imposed a below-
guidelines sentence based on the totality of all circumstances
16                UNITED STATES V. TOSTI

specific to Tosti’s case. The district court weighed the
various competing considerations with which it was
confronted, and it expressly factored in Tosti’s physical
condition among all of those circumstances. It ultimately
acted within its discretion in imposing a reasonable sentence.
See United States v. Green, 592 F.3d 1057, 1072 (9th Cir.
2010) (“We . . . reject Green’s argument that her sentence
was unreasonable in light of her age and background; the trial
judge expressly took those circumstances into account when
imposing her sentence.”); United States v. Seljan, 547 F.3d
993, 1007 (9th Cir. 2008) (“Seljan argues that the district
court did not adequately consider his advanced age. This
argument is meritless. The district court acknowledged that
Seljan’s age and health reduced the likelihood of recidivism,
and it addressed Seljan’s concern that the 20-year sentence at
age 87 was tantamount to life imprisonment.”).

                             IV

    The district court properly denied Tosti’s motions to
suppress. The agents did not exceed the scope of the prior
authorized private search, and Ms. Tosti had apparent
authority to consent to the subsequent searches of her
residence and Tosti’s computer. Moreover, the district court
acted within its discretion in imposing a substantively
reasonable sentence that accounts for Tosti’s age and
infirmities.

     AFFIRMED.
