           Case: 13-15955   Date Filed: 09/02/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15955
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:13-cr-60166-WPD-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MIGUEL MORALES COLON,

                                                         Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 2, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
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PER CURIAM:

      Miguel Morales Colon appeals his conviction and 240-month total sentence

for receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1),

and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and

(b)(2). Colon argues that the district court erred in denying his motion to suppress

statements he made to federal agents without receiving a Miranda1 warning during

an allegedly custodial interrogation. Colon also argues that his sentence is both

procedurally and substantively unreasonable. Upon review of the record and

consideration of the parties’ briefs, we affirm.

                                               I.

      We review a district court’s denial of a motion to suppress as a mixed

question of law and fact. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir.

2014). “Whether [a defendant] was ‘in custody’ and entitled to Miranda warnings

is a mixed question of law and fact” as well. United States v. Moya, 74 F.3d 1117,

1119 (11th Cir. 1996). “[W]e review the district court’s factual findings . . . for

clear error and its legal conclusions de novo.” Id.

      Colon argues that the inculpatory statements he made to federal agents

before they advised him of his constitutional rights as required by Miranda should


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

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have been suppressed. The Supreme Court in Miranda held that the Fifth

Amendment requires “the exclusion of incriminating statements obtained during

custodial interrogation unless the suspect fails to claim the Fifth Amendment

privilege after being suitably warned of his right to remain silent and of the

consequences of his failure to assert it.” Minnesota v. Murphy, 465 U.S. 420, 430,

104 S. Ct. 1136, 1143 (1984). Miranda does not apply, however, “outside the

context of the inherently coercive custodial interrogations for which it was

designed.” Id., 104 S. Ct. at 1144 (internal quotation marks omitted). Colon was

therefore entitled to a Miranda warning only if he was in custody at the time he

made the statements at issue.

      We have explained that “although a reasonable person in the defendant’s

position may feel constrained not to leave . . . —and thus may be deemed to have

been ‘seized’ by law enforcement—he will not necessarily be considered in

‘custody’ for Fifth Amendment purposes.” United States v. Luna-Encinas, 603

F.3d 876, 881 (11th Cir. 2010). Rather, Miranda warnings are required only where

the totality of the circumstances shows that a reasonable person in the defendant’s

position “would have understood his freedom of action to have been curtailed to a

degree associated with formal arrest.” Id. (internal quotation marks omitted).

“The test is objective: the actual, subjective beliefs of the defendant and the




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interviewing officer on whether the defendant was free to leave are irrelevant.”

Moya, 74 F.3d at 1119.

      Several factors guide the determination of whether an environment is

coercive enough to be custodial. For instance, “courts are much less likely to find

the circumstances custodial when the interrogation occurs in familiar or at least

neutral surroundings, such as the [defendant]’s home.” United States v. Brown,

441 F.3d 1330, 1348 (11th Cir. 2006) (alteration and internal quotation marks

omitted). Whether a defendant was “[u]nambiguously advis[ed] . . . that he [wa]s

free to leave and [wa]s not in custody” is another “powerful factor” that “generally

will lead to the conclusion that the defendant [wa]s not in custody.” Id. at 1347.

Other relevant factors include “whether the officers brandished weapons, touched

the suspect, or used language or a tone that indicated that compliance with the

officers could be compelled,” United States v. Street, 472 F.3d 1298, 1309 (11th

Cir. 2006) (internal quotation marks omitted), as well as whether the defendant

was physically restrained and the duration of the interview. See Luna-Encinas,

603 F.3d at 881; Brown, 441 F.3d at 1349.

      Considering the totality of the circumstances, we conclude that Colon was

not in custody when he made the inculpatory statements in question. Colon was

interrogated in the familiar surroundings of his home. The district court found that

the federal agents told Colon at the outset of questioning that he was not under


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arrest and that he did not have to talk to them. The district court also found that the

agents spoke to Colon in a conversational manner and kept their weapons holstered

and that Colon was not handcuffed or otherwise physically restrained during the

interview. Further, the district court found that, although Colon was handcuffed

after the interview while being transported to the Federal Bureau of Investigation

(“FBI”) office for a polygraph test, he voluntarily agreed to go to the FBI office

and to be handcuffed during transport. Colon has not shown that these findings are

clearly erroneous,2 and they strongly support the district court’s conclusion that a

reasonable person in Colon’s position would not have felt that his freedom was

curtailed to a degree associated with formal arrest. See Brown, 441 F.3d at 1347–

49.

       We therefore agree with the district court that Colon was questioned in a

non-custodial setting and, consequently, no Miranda warnings were required.

Accordingly, the district court properly denied Colon’s motion to suppress.

                                               II.




       2
          The district court’s findings turn, in part, on the credibility of Colon and FBI Special
Agent Alexis Carpinteri, the only witnesses at the suppression hearing. The district court plainly
rejected Colon’s testimony that he was never told that he did not have to answer the agents’
questions. A district court’s credibility determination is entitled to great deference. See Brown,
441 F.3d at 1346–47. Accordingly, we will not disturb the district court’s credibility assessment
in this case, particularly because Colon has not clearly challenged the credibility assessment but
instead cites his own testimony as if the district court had believed him.

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      We ordinarily review the reasonableness of a sentence for abuse of

discretion using a two-step process. See United States v. Cubero, 754 F.3d 888,

892 (11th Cir. 2014). “First, we look at whether the district court committed any

significant procedural error, such as miscalculating the advisory [G]uidelines range

. . . or failing to adequately explain the chosen sentence.” Id. “Then, we examine

whether the sentence is substantively unreasonable under the totality of the

circumstances and in light of the [18 U.S.C.] § 3553(a) factors.” Id. When a

defendant fails to object to an alleged sentencing error before the district court,

however, we review for plain error only. See United States v. Bonilla, 579 F.3d

1233, 1238 (11th Cir. 2009).

      Colon first argues that his sentence is procedurally unreasonable because the

district court erred in failing to apply a two-level reduction under U.S.S.G.

§ 2G2.2(b)(1) for conduct limited to receipt or solicitation of child pornography.

Because he did not request this adjustment in the district court, our review is for

plain error. See id. Colon’s argument—that a defendant who used a peer-to-peer

file-sharing program to obtain child pornography and knowingly placed

pornography files in a “shared” folder accessible to the public, but who took no

“active” steps to distribute the files, is entitled to the two-level decrease described

in § 2G2.2(b)(1)—is squarely foreclosed by our recent decision in Cubero. 754

F.3d at 895–96 (holding that the district court did not err in failing apply


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§ 2G2.2(b)(1) where the defendant “used a peer-to-peer file-sharing network to

obtain hundreds of [child pornography] images, some of which he elected to make

available to other users” by placing the images in a shared folder). 3 Consequently,

the district court did not err, much less plainly err, in not giving Colon the two-

level reduction.

       Colon next contends that his sentence is procedurally unreasonable because

the district court did not adequately explain its sentence. 4 Colon admits that a

sentencing judge typically need not give a lengthy explanation for imposing a

sentence within the Guidelines range. He argues, however, that the district court in

this case should be required to give more extensive reasons for rejecting his request

for a downward variance because the U.S. Sentencing Commission recently

released a report (the “2013 report”)5 concluding that the child pornography

Guidelines warrant revision. We rejected an identical argument in Cubero, 754


       3
         The fact that the defendant in Cubero was adjudicated guilty of knowingly distributing
child pornography, whereas Colon was adjudicated guilty of knowingly receiving child
pornography, does not alter our conclusion. At the sentencing hearing, the district court found
that Colon distributed child pornography, and Colon has not challenged that determination on
appeal. See United States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (explaining that issues
not raised in an appellant’s opening brief are deemed abandoned).
       4
         Colon incorrectly characterizes this argument as a substantive reasonableness argument.
The Supreme Court has indicated that whether the district court adequately explained the chosen
sentence is a procedural reasonableness argument. See Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007).
       5
        See U.S. Sentencing Comm’n, Report to Congress: Federal Child Pornography Offenses
(Dec. 2012).

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F.3d at 901 (holding that “the 2013 report does not heighten the district court’s

statutory duty to state the reasons for imposing a particular sentence”).

Additionally, the district court here gave a detailed explanation to support its

sentencing decision. The court explained that it believed Colon committed perjury

during trial when he denied telling the FBI that he downloaded the peer-to-peer

file-sharing network on his computer and when he denied telling the FBI that he

used the search term “PTHC” 6 to search for files on the network. The court then

stated that a downward variance was not appropriate because “it would [not]

promote respect for the law” to sentence Colon below the Guidelines range “when

[he] lie[d] at a trial” and that a sentence in the middle of the Guidelines range

would serve as a sufficient deterrent. We do not believe the law requires the

district court to state its reasons more extensively.

      Finally, Colon argues that his sentence is substantively unreasonable

because it is greater than necessary to serve the sentencing purposes of 18 U.S.C.

§ 3553(a). Colon relies principally on the 2013 report’s finding that, in some cases

involving peer-to-peer file sharing, U.S.S.G. § 2G2.2 produces overly severe

sentencing ranges that may not be based on empirical evidence. Once again,

however, Colon’s argument is foreclosed by Cubero, where we held that “[w]hile a

district court may certainly consider the 2013 report in choosing the ultimate

      6
          “PTHC” is an abbreviation for “pre-teen hard core” pornography.

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sentence,” the court is not compelled by the report to vary from the § 2G2.2-based

range. 754 F.3d at 900. In other words, “the district court’s use of § 2G2.2 as an

advisory guideline does not[, without more,] render [the] sentence . . .

substantively unreasonable.” Id. Colon has not provided any reason, apart from

the 2013 report’s findings, that his within-Guidelines sentence is too severe.

Therefore, he has not met his burden to show that his sentence is substantively

unreasonable. Cf. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008) (stating that “[w]e ordinarily expect a sentence within the Guidelines range

to be reasonable, and the appellant has the burden of establishing the sentence is

unreasonable in light of the record and the § 3553(a) factors”).

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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