                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-3548
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                FITZGERALD HORTON,
                                                    Appellant
                                   ________________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D. C. No. 2-12-cr-00228-001)
                     District Judge: Honorable Mary A. McLaughlin
                                    ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                    on July 8, 2015

               Before: FUENTES, SLOVITER and ROTH, Circuit Judges

                            (Opinion filed: January 22, 2016)

                                   ________________

                                       OPINION*
                                   ________________


ROTH, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Fitzgerald Horton appeals the judgment of the District Court, claiming error in the

denial of his motion to suppress and in its application of two upward sentencing

enhancements. For the reasons that follow, we will affirm.

                                             I.

       On June 6, 2013, a grand jury in the Eastern District of Pennsylvania indicted

appellant, Fitzgerald Horton, on 11 counts of using or inducing a child to pose for child

pornography images,1 one count of distribution of child pornography,2 and one count of

possession of child pornography.3 Prior to trial, Horton moved to suppress images and

videos taken from his Motorola Blur cell phone, alleging that his cell phone did not fall

within the scope of the warrant issued. The District Court held a hearing on the motion,

and denied it.

       The case proceeded to trial and on August 23, 2013, a jury returned a verdict,

convicting Horton of 10 counts of using or inducing a child to pose for child pornography

images and one count of possession of child pornography. The District Court sentenced

Horton to 36 months on the possession count and 240 months on the remaining 10

counts, to be served consecutively, resulting in a sentence of 276 months’ imprisonment.

Horton appealed.




1
  18 U.S.C. § 2251(a).
2
  18 U.S.C. § 2252(a)(2).
3
  18 U.S.C. § 2252(a)(4)(B).
                                             2
                                             II.4

       We first address Horton’s challenge to the District Court’s denial of his motion to

suppress. The government’s warrant in Horton’s case authorized officers to search for

and seize “[a]ll computer hardware, including, but not limited to, any equipment which

can collect, analyze, create, display, convert, store, conceal, or transmit electronic,

magnetic, optical or similar computer impulses or data.” Officers were also permitted to

seize “internal and peripheral storage devices” used to store computer data. The warrant

application was supported by information gathered from an undercover investigation of

activity on ARES, an internet-based file sharing program used for sharing child

pornography. Officers were able to trace to Horton’s home address the Internet Protocol

(IP) address of a computer that had shared a file to other ARES users, containing images

of child pornography.

       Horton does not challenge the validity of the government’s warrant, nor even the

existence of probable cause to search his cell phone. His sole argument is that the plain

terms of the government’s warrant did not authorize the search and seizure of his cell

phone. Nowhere does Horton argue that his cell phone is not “computer hardware,” as it

is defined in the warrant. Rather, Horton’s argument rests on the fact that the warrant

does not specifically list Horton’s cell phone as an item to be seized. In support of this

argument, Horton treats the cell phone with the reverence of a separate dwelling, the

4
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review a District Court’s denial
of a motion to suppress for clear error as to findings of fact and exercise plenary review
over the District Court’s application of the law to those facts. United States v. Perez, 280
F.3d 318, 336 (3d Cir. 2002).
                                              3
invasion of which implicates an individual’s privacy in a more significant way than a

comparable search of “a cigarette pack, a wallet, or a purse.”5 Thus, Horton reasons that

upholding the search of his cell phone violates the requirement that a warrant

“particularly describ[e] the place to be searched and the persons or things to be seized,”6

because it amounts to a search of an entirely separate “conceptual dwelling.”

       Horton’s argument fails for several reasons. The warrant, as written, defines

“computer hardware” broadly. Horton does not and cannot argue that his cell phone is

not “computer hardware” as it is defined in the warrant, which includes “any equipment”

(emphasis added) capable of transmitting computer data. Additionally, the particularity

requirement is satisfied: the basis for probable cause in the government’s warrant

application was the existence of an electronic file containing child pornography, and

while this file may have been initially traced to Horton’s computer, the scope of a lawful

search is “defined by the object of the search and the places in which there is probable

cause to believe that it may be found.”7 The language of the warrant reflects an

awareness that, because electronic data can reside on multiple devices, a comprehensive

search would include not only Horton’s computer, but also any devices capable of storing

or transmitting computer data. Horton’s concerns about invading the privacy of a

separate “conceptual dwelling” are inapposite when there is probable cause to search the

second “dwelling” and doing so is within the plain terms of the warrant.

                                            III.

5
  Riley v. California, 134 S. Ct. 2473, 2488-89 (2014).
6
  U.S. Const. amend. IV.
7
  United States v. Ross, 456 U.S. 798, 824 (1982).
                                             4
       We next turn to Horton’s contention that the District Court wrongfully imposed

two upward sentencing enhancements.8 Horton’s ten inducement counts and one

possession count are governed by separate sections of the Federal Sentencing Guidelines,

and thus are eligible for separate enhancements. Horton challenges two of these

enhancements in particular. The first, “the vulnerable victim” enhancement,9 was applied

to Horton’s ten inducement counts. The enhancement may apply if the defendant knew

or should have known that a victim of the offense was “unusually vulnerable due to age,

physical or mental condition, or who is otherwise particularly susceptible to the criminal

conduct.”10 Horton’s counts of using or inducing a child to pose for child pornography

images stem from pictures Horton took of his 12-year-old stepdaughter’s genitals while

she was asleep. The government sought the vulnerable victim enhancement here because

the victim, being asleep, was “particularly susceptible to the criminal conduct.” Horton

argues that because the victim was asleep, she must not be vulnerable, reasoning that the

victim’s lack of awareness of Horton’s crime prevents her from being “vulnerable” as

defined in the Guidelines.

       We apply a three-step analysis to a decision to apply the vulnerable victim

enhancement:

       The enhancement may be applied where: (1) the victim was particularly
       susceptible or vulnerable to the criminal conduct; (2) the defendant knew or
       should have known of this susceptibility or vulnerability; and (3) this

8
  We review a District Court’s application of the Sentencing Guidelines de novo and its
application of facts for clear error. United States v. Richards, 674 F.3d 215, 218-20 (3d
Cir. 2012).
9
  U.S.S.G. § 3A1.1.
10
   Id. cmt. n.2.
                                             5
       vulnerability or susceptibility facilitated the defendant’s crime in some
       manner; that is, there was ‘a nexus between the victim’s vulnerability and
       the crime’s ultimate success.’11

       While she was asleep, the victim was unable to object to or halt any criminal

conduct. Horton was aware that the victim was asleep, and he was able to more easily

photograph the victim’s genitals because she was asleep. Thus, we find the District Court

properly applied the vulnerable victim enhancement.

       The second enhancement Horton challenges is an enhancement to his possession

count for engaging in a pattern of abusive or coercive sexual activity with a child.12 A

“pattern” of activity consists of “any combination of two or more separate instances of

sexual abuse or exploitation of a minor,” whether or not these instances occurred during

the course of the charged offense or resulted in a conviction.13 Using or inducing a child

to pose for child pornography images—the offense of which Horton was convicted on ten

counts—is explicitly included in the definition of “sexual abuse or exploitation” in the

Guidelines,14 and provided the basis for the enhancement to Horton’s possession count.

Horton argues that the enhancement was improperly applied because the application of

the enhancement was triggered by a possession offense, rather than a distribution offense,

and the enhancement was designed to punish behavior more serious than mere

possession. However, the Guidelines themselves specifically list “possessing material

involving the sexual exploitation of a minor” as one of the base offenses to which the

11
   United States v. Iannone, 184 F.3d 214, 220 (3d Cir. 1999) (quoting United States v.
Monostra, 125 F.3d 183, 190 (3d Cir. 1997).
12
   U.S.S.G. § 2G2.2.
13
   Id. cmt. n.1.
14
   Id.
                                             6
enhancement can be applied. The apparent rationale of the enhancement—to discourage

repeated instances of abuse or exploitation of minors—is no less relevant to an offender

convicted of a possession offense than to one convicted of distributing child

pornography. We therefore find that the District Court properly applied this

enhancement.

                                            IV.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                             7
