     Case: 16-40068      Document: 00513833503         Page: 1    Date Filed: 01/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-40068                                   FILED
                                  Summary Calendar                          January 12, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL H. ALEMAN, II,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:15-CR-425-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Daniel H. Aleman was convicted following a stipulated bench trial of two
counts of sexual exploitation of a child. The district court sentenced him above
the guidelines range to the statutory maximum sentence of a total of 720
months of imprisonment and a lifetime term of supervised release. He contests
the denial of his motion to suppress evidence that officers found on his digital




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-40068

devices and disputes the procedural and substantive reasonableness of his
sentence.
      Aleman maintains that the district court should have granted his motion
to suppress because the affidavit filed in support of the initial search warrant
contained stale information and, therefore, lacked indicia of probable cause.
He also argues that the search warrant authorized only the seizure of his
digital devices but did not authorize a forensic search of their contents; he
suggests that the search warrant failed to meet the particularity requirement
and state that a search of the devices was permitted. We review de novo the
denial of the suppression motion and examine the underlying factual findings
for clear error. United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014).
      The contention that the information set forth in the affidavit was stale
is unavailing. Aleman was suspected to have committed an offense involving
the recording of voyeuristic videos, i.e., “Invasive Visual Recording” in violation
of Texas Penal Code § 21.15, and the warrant application identified that the
evidence of that offense – i.e., the videos – was suspected to be on the recording
device or on electronic media to which the videos were downloaded. Because
digital images can be stored indefinitely, a reasonable officer could believe that
the videos recorded by Aleman would be recoverable less than two months after
their production. See United States v. Robinson, 741 F.3d 588, 597 (5th Cir.
2014); United States v. Allen, 625 F.3d 830, 842-43 (5th Cir. 2010).
      Further, Aleman’s claim that the warrant was insufficiently particular
because it authorized only a seizure of the digital items found in his home but
not a forensic search of those items is unavailing. A reasonable officer could
have understood the warrant to permit a review of Aleman’s electronic media.
See United States v. Leon, 468 U.S. 897, 922 n.23 (1984); United States v.
Woerner, 709 F.3d 527, 533 (5th Cir. 2013). Given the crime at issue – and the



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type of evidence needed to prove that crime – a reasonable officer could believe
that examining the contents of the devices would not exceed the scope of, or
probable cause underlying, the search warrant and was the only way to obtain
evidence of Aleman’s criminal conduct and effectuate the warrant. See Leon,
468 U.S. at 922 n.23. Moreover, the description in the warrant of the property
being sought – i.e., devices capable of storing electronic data and the materials
necessary to access and to view that data – supported that the objective of the
warrant was to review the electronic media. The warrant especially authorized
officers to remove and take any evidence seized pursuant to the warrant to any
location needed for purposes of “complet[ing] [ ] any investigation or proceeding
related to the activities” described in the affidavit; that instruction reasonably
would permit a search of the devices to ascertain whether they contained the
recordings at issue. Further, the circumstances surrounding the execution of
the warrant support that officers were objectively reasonable in relying upon
it. See Woerner, 709 F.3d at 533. Accordingly, the good-faith exception to the
exclusionary rule applies, and no further analysis is required. See Allen, 625
F.3d at 834.
      Aleman contends that, because the initial warrant was invalid, two later
obtained warrants – which uncovered, inter alia, images of child pornography
– also were invalid. Because, as detailed, the good-faith exception applies as
to the execution of the first warrant, and the evidence collected pursuant to
that warrant was validly obtained, Aleman’s “fruit of the poisonous tree” claim
is unavailing. See United States v. Payne, 341 F.3d 393, 399-402 (5th Cir.
2003).
      Further, Aleman contests his sentence. Generally, we review a district
court’s sentencing decision for reasonableness, under the abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 50-51 (2007). To the extent that



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Aleman seeks to challenge his sentence on grounds different from those raised
in the district court, those claims would be subject to plain error review. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Nevertheless,
because Aleman cannot establish that the district court committed error, plain
or otherwise, we need not resolve the standard of review. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      He maintains that the district court procedurally erred by misapplying
U.S.S.G. § 5G1.2(d) and sentencing him to consecutive terms of 360 months of
imprisonment; he argues that, under § 5G1.2, the district court could order the
sentences to run consecutively only to the extent needed to reach the high-end
of the advisory guidelines range, i.e., 405 months of imprisonment in this case.
However, Aleman’s claim relies upon a false premise: the district court did not
impose a Guidelines-based sentence under § 5G1.2(d), but instead found that
an upward variance was warranted. Section § 5G1.2 does not limit the district
court’s discretion to vary upwardly from the guidelines range based upon the
18 U.S.C. § 3553(a) factors and impose consecutive sentences. See 18 U.S.C.
§ 3584; United States v. Conlan, 768 F.3d 380, 394-95 & n.46 (5th Cir. 2015);
United States v. Saldana, 427 F.3d 298, 308-09 n.41 (5th Cir. 2005).
      Aleman also contends that the reasons provided by the district court in
support of its decision to vary upwardly – i.e., the impact of his crimes on the
victims and their families and his commission of other criminal conduct with
which he was not charged in this case – did not address the § 3553(a) factors
that may justify a variance. However, the record establishes that the district
court referred to specific facts and § 3553(a) factors in explaining its sentencing
decision. There is no indication that victim impact, which generally is relevant
to sentencing, see 18 U.S.C. § 3771(a)(4), and implicates the § 3553(a) factors,
may not be considered; rather, we have noted that the impact of a crime on the



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victims and their families is a proper sentencing factor and may warrant an
upward variance. See United States v. Diehl, 775 F.3d 714, 725 (5th Cir.), cert.
denied, 136 S. Ct. 213 (2015). Also, the district court could consider Aleman’s
other criminal conduct, which was related to the offenses of conviction, proven
by specific reliable evidence, and relevant to the analysis of the § 3553(a)
factors. The district court could evaluate whether the other conduct suggested
that the guidelines range were inadequate and that Aleman should receive a
more severe sentence than a defendant who did not engage in such conduct.
      To the extent that Aleman asserts that his sentence represents an error
by the district court in balancing the § 3553(a) factors, and that a 405-month
sentence would have been sufficient, his claim lacks merit. The record reflects
that the district court made an individualized assessment and found that the
guidelines range did not account for particular § 3553(a) factors that the court
especially noted. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
Aleman asks us to reweigh the § 3553(a) factors, which is outside the scope of
our review. See Gall, 552 U.S. at 51. Given the deference given to a district
court’s assessment of the § 3553(a) factors and the reasons for its sentencing
decision, Aleman has not shown that his sentence is unreasonable. See id. at
50-53; United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012).
      AFFIRMED.




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