                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4728


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONALD STEPHEN SCOTT,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00027-LHT-1)


Submitted:   June 10, 2010                    Decided:   July 6, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William C. Spaht, John C. Neiman, Jr., BRADLEY ARANT BOULT
CUMMINGS, LLP, Birmingham, Alabama, for Appellant. Edward R.
Ryan, United States Attorney, Charlotte, North Carolina; David
A. Thorneloe, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Donald      Stephen     Scott      appeals    his        conviction       and

144-month     sentence      imposed     following     his    guilty      plea      to   one

count of transmission of child pornography via a computer, in

violation of 18 U.S.C.A. § 2252(a)(1) (West Supp. 2010); twelve

counts   of       receiving     child    pornography,       in    violation        of   18

U.S.C.A.      §    2252(a)(2)    (West    Supp.     2010);       and    one   count     of

possession of materials containing                visual depictions of a minor

engaging      in    sexually     explicit       conduct,    in    violation        of   18

U.S.C.A. § 2252(a)(4)(B) (West Supp. 2010).                      Scott reserved his

right to appeal the district court’s denial of his motion to

suppress, and on appeal he challenges that denial, as well as

his sentence.        For the following reasons, we affirm.

              Scott first challenges the district court’s denial of

his motion to suppress.             This court reviews the factual findings

underlying the district court’s denial of a motion to suppress

for   clear       error   and   the   court’s     legal     conclusions       de    novo.

United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert.

denied, 130 S. Ct. 1104 (2010).                  A factual finding is clearly

erroneous if this court “on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”

United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008)

(internal quotation marks omitted).                 However, “if the district

court's account of the evidence is plausible in light of the

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record viewed in its entirety,” this court will not reverse the

district       court's     finding      even    if   it   would   have    “decided       the

fact[s] differently.”             United States v. Stevenson, 396 F.3d 538,

542 (4th Cir. 2005) (internal quotation marks and alteration

omitted).        In other words, when two views of the evidence are

permissible, “the district court’s choice between them cannot be

clearly        erroneous.”             Id.     (internal      quotation     marks        and

alteration omitted).             When a motion to suppress has been denied

by the district court, this court construes the evidence in the

light    most     favorable       to    the     Government.       United     States       v.

Farrior, 535 F.3d 210, 217 (4th Cir.), cert. denied, 129 S. Ct.

743 (2008).

               While private searches ordinarily do not offend the

Fourth        Amendment,     when       “a    private       individual    acted     as     a

Government agent,” Fourth Amendment protections are implicated.

United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010); see

United States v. Jacobsen, 466 U.S. 109, 113 (1984).

               This      court      considers         two     primary      factors        in

determining       whether     a     private        search    implicates     the     Fourth

Amendment: “(1) ‘whether the Government knew of and acquiesced

in      the      private’        individual’s         challenged         conduct;        and

(2) ‘whether       the     private       individual       intended   to     assist       law

enforcement or had some other independent motivation.’”                              Day,

591 F.3d at 683 (quoting United States v. Jarrett, 338 F.3d 339,

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344 (4th Cir. 2003)).             The first factor requires “evidence of

more    than    mere    knowledge        and       passive   acquiescence           by    the

Government before finding an agency relationship.”                          Jarrett, 338

F.3d at 345.      Scott bears the burden of proving the existence of

an agency relationship.           Id. at 344.

             Scott asserts that the Fourth Amendment was implicated

when a computer technician with whom Scott had left his computer

for    repair   opened      the    desktop         file   containing        pornographic

images in an investigator’s presence.                     Our review of the record

leads us to agree with the district court that although the

investigator was present, there was no evidence that he directed

the technician to open the file.                   Thus, Scott fails to establish

an     agency   relationship.            Accordingly,          the       district        court

properly denied the motion to suppress.

             Scott next challenges the substantive reasonableness

of     his   sentence.            This    court       reviews        a    sentence         for

reasonableness, using an abuse of discretion standard of review.

Gall v. United States, 552 U.S. 38, 51 (2007).                             In assessing

substantive     reasonableness,          we       consider   the     totality       of     the

circumstances.       Id.

             Scott     argues     that    the       district    court       should        have

disregarded     U.S.       Sentencing      Guidelines        Manual        § 2G2.2(a)(2)

(2008) in determining his sentence.                    This argument fails.                The

Supreme Court has made clear that “[a] district court should

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begin by correctly calculating the applicable Guidelines range,”

and   use   it    as    a     “starting       point   and   initial   benchmark”     in

sentencing.      Gall, 552 U.S. at 49.                After doing so in this case,

the   district        court    chose    to     vary    downward   from    that   range,

having considered the sentencing factors and the arguments of

counsel.         We    conclude        that    the     district   court’s    variance

sentence is substantively reasonable under the totality of the

circumstances.

            We therefore affirm the district court’s judgment.                      We

dispense    with       oral     argument        because     the   facts    and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                             AFFIRMED




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