          United States Court of Appeals
                     For the First Circuit

No. 14–1105

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        TIMOTHY MAJERONI,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
              Thompson and Kayatta, Circuit Judges.



     James S. Hewes for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.




                         April 27, 2015
           KAYATTA, Circuit Judge. Convicted and sentenced for

possessing child pornography and violating supervised release,

Timothy Majeroni advances five arguments on appeal: (1) the

district court abused its discretion under Federal Rule of

Evidence     403     in    admitting    his     prior     child     pornography

conviction;        (2)    the   district      court     similarly     erred   in

admitting evidence of his supervised release; (3) the district

court erred in denying his motion to suppress evidence from

the search of his apartment; (4) the evidence was insufficient

to convict him of the charged offense; and (5) the district

court abused its discretion in sentencing him to a mid-range

prison term.        Finding that none of his arguments comes close

to the mark, we affirm his conviction and sentence.

                                I.   Background

           In 2001, Majeroni was convicted of possessing child

pornography, resulting in a prison term followed by a period

of supervised release. Majeroni twice violated the conditions

of that    supervised release, in 2004 and 2007.                   In 2008, he

was convicted of failing to register under the Sex Offender

Registration        and    Notification       Act     ("SORNA"),     18   U.S.C.

§ 2250(a),     resulting in yet another prison term followed by

another period of supervised release, the terms of which he


                                       -2-
also violated.   In January 2012, the district court sentenced

him for this third supervised release violation, imposing a

term of imprisonment followed by another period of supervised

release that began in August of 2012.

           The special conditions for that most recent period

of supervised release substantially restricted Majeroni's

freedom.   He was confined to his home and monitored by a GPS

at all times. His supervising probation officer had authority

to visit his home without warning or cause.       He was not to

access the internet or possess a computer without prior

approval from his probation officer.     Additionally, probation

officers could search and seize any computer equipment.

           This new term of supervised release, like his prior

terms of supervised release, was short-lived. On November 26,

2012, two probation officers, Kristin Cook and Laura Tait,1

visited Majeroni's home.   Upon arriving, they knocked on his

front door, but got no answer.      After three or four minutes,

Majeroni came to the door.          Alone in his apartment, he

explained his delay by claiming that he had been lying down.

He then invited them in. Upon entering, Cook noticed that the



    1
       Cook was Majeroni's primary supervisor.    Tait played a
supporting role during the visit, monitoring Majeroni's behavior
whenever Cook was out-of-sight.

                              -3-
spare bedroom, previously unfurnished, now had a desk, a

chair, and an air mattress.                Cook also noticed a burning

cigarette and a cup of coffee on the desk.              She asked Majeroni

why those items were there if he had just been lying down.

Majeroni offered no explanation.

           Cook then observed a laptop power cord, plugged into

the wall and coming out from behind the desk.                     She asked

Majeroni whether he had a laptop.             He denied having one, and

claimed that the power cord was for his television's remote

control.   Cook was not convinced.           Suspecting he had a laptop

computer, she asked whether he minded if she searched his

apartment, to which he replied, "No, I don't mind."

           Cook    then    entered     the     spare    bedroom.      Lying

immediately adjacent to the desk was an opened backpack,

covered with clothes.        Cook moved the clothes and found a

laptop computer and internet modem. She asked Majeroni why he

lied.    He said he did not know why, and further confessed to

having possessed the laptop for two months.                Cook seized the

laptop   and      modem.     Majeroni       did   not   object.     He   was

remorseful and compliant.       Majeroni said, "I don't know why I

did this, [Cook] was really good to me,                I feel badly."    The

next day, Majeroni came to Cook's office.                  He admitted to

twice having accessed the internet on that laptop computer.
                                     -4-
He indicated that his delay in answering the door on November

26 was due to his having been on the internet.

             Cook transferred Majeroni's laptop to a probation

officer with computer forensics training.                  The officer's

preliminary search revealed child pornography.               The officer

then transferred the laptop to the Secret Service.                    In an

abundance of caution, agents applied for and received a

warrant prior to searching the laptop.2 They ultimately found

190 pornographic images of children.

             A grand jury charged Majeroni with possessing child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),

2256(8)(A).      Pretrial, Majeroni moved to suppress evidence

from the searches of his home and computer.                 The district

court denied that motion.            The government moved to admit

evidence of Majeroni's 2001 conviction for possessing child

pornography.       The    district    court      granted    that   motion.

Majeroni then moved to exclude any reference to the conditions

of his supervised release.         The court rejected that motion,

but   also    limited    the   government   to    showing    simply    that

Majeroni was on supervised release for a criminal offense,



      2
       The Secret Service suggested in its application that it may
"already have all necessary authority to examine the laptop" but
applied anyways "out of an abundance of caution."

                                   -5-
that he was supervised by Cook and subject to home confinement

and GPS monitoring, and that Cook seized Majeroni's laptop to

look for evidence of supervised release violations.           As it

turned out, Majeroni's attorney ultimately informed the court

that he saw no need to request a limiting instruction.

           After a two-day trial, a jury convicted Majeroni.

According to the United States Sentencing Guidelines, he faced

135–168 months for the child pornography offense, and 18–24

months for the supervised release violation.         The district

court imposed consecutive 150- and 24-month sentences and a

life term of supervised release.

                          II.   Analysis

A.   Majeroni's Prior Child Pornography Conviction

           Over   Majeroni's    objection,   the   district   court

admitted into evidence a stipulation that Majeroni pleaded

guilty in 2001 to possession of child pornography.3       Majeroni


     3
         That stipulation provided that:

     On April 25, 2001, the defendant pleaded guilty to two
     counts of possession of child pornography in the United
     States District Court for the District of Maine.      In
     connection with his guilty plea, the defendant admitted
     that he had knowingly possessed a personal desktop
     computer and a floppy computer storage disk that both
     contained images of child pornography. The defendant was
     sentenced for these offenses on July 31, 2001.

The court then promptly instructed the jury as follows:

                                 -6-
appears    to   recognize   that   Federal   Rule   of   Evidence   414

expressly grants the trial court the discretion to admit such

evidence in a case of this type.4        He nevertheless argues that

admitting the evidence in this particular case was an abuse of

that discretion, because a proper balancing of probative value

versus unfair prejudice under Rule 403 compelled the exclusion

of the evidence.5


     [Y]ou've heard evidence, the evidence being the
     stipulation, that the defendant was convicted of
     possession of child pornography in the United States
     District Court for the District of Maine in 2001. You
     may consider this evidence on any matter which you
     believe it to be relevant. However, evidence of this
     prior offense on its own is not sufficient to prove the
     defendant guilty of the crime charged in the indictment.

     Bear in mind as you consider this evidence at all times
     the Government has the burden of proving beyond a
     reasonable doubt that the defendant committed each of the
     elements that I've just described earlier in the case of
     the offense charged in the indictment. I remind you that
     the defendant is not on trial for any act, conduct, or
     offense not charged in this indictment.
     4
          Federal Rule of Evidence 414 provides that:

     In a criminal case in which a defendant is accused of
     child molestation, the court may admit evidence that the
     defendant committed any other child molestation.     The
     evidence may be considered on any matter to which it is
     relevant.

     Possession of child pornography constitutes evidence of "child
molestation,"   as    defined   under   Rule   414.       Fed.   R.
Evid. 414(d)(2)(B).
     5
        "The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the

                                   -7-
          Where, as here, objections are preserved, we review

the district court's evidentiary rulings for an abuse of

discretion.   United States v. Joubert, 778 F.3d 247, 253 (1st

Cir. 2015).   In exercising their broad discretion under Rule

403, trial judges have a feel for the evidence and the

courtroom that is difficult to replicate on the pages of a

transcript, so our deference to judgment calls of this type is

great.   See United States v. Bayard, 642 F.3d 59, 63 (1st Cir.

2011).    In challenges to inherently prejudicial Rule 414

evidence, we are also mindful that Rule 403 only guards

against unfair prejudice.    See United States v. Gentles, 619

F.3d 75, 87 (1st Cir. 2010). Finally, we employ no heightened

or special test for evaluating the admission of Rule 414

evidence under Rule 403. See Martinez v. Cui, 608 F.3d 54, 60

(1st Cir. 2010) (rejecting those tests that "more carefully

scrutinize district courts' decisions under Rules 413–415").6

Instead, we review such rulings under the ordinary abuse-of-

discretion standard.   Id.




jury, undue delay, wasting time, or       needlessly   presenting
cumulative evidence." Fed R. Evid. 403.
     6
       For contrary views we have rejected, see United States v.
Kelly, 510 F.3d 433, 437 (4th Cir. 2007); United States v. LeMay,
260 F.3d 1018, 1027-28 (9th Cir. 2001).

                               -8-
         Under any test, the district court in this case

clearly did not abuse its discretion.     The evidence of prior

possession of child pornography was in the form of a guilty

plea, eliminating any risk of having the issue of prior

conduct bloom into a trial within the trial, and reducing the

possibility that the admittedly prejudicial information was

inaccurate.   The fact that the prior conduct was similar to

the charged conduct enhanced its presumed probativeness.          Nor

does the fact that the prior conduct occurred over ten years

before the charged conduct compel a different result.         See,

e.g., United States v. Jones, 748 F.3d 64, 68–71 (1st Cir.

2014) (no abuse of discretion in admitting evidence of child

molestation   conviction   occurring   eighteen   years   prior    to

charged conduct); Joubert, 778 F.3d at 254–55 (no abuse of

discretion in admitting evidence of similar child molestation

acts that allegedly occurred eighteen to twenty years prior to

charged conduct).     And the court's controlled method of

introducing the information, with a limiting instruction,

speaks well of its carefully nuanced exercise of discretion.

See Jones, 748 F.3d at 71 (precautionary measures such as

limiting instructions reduce risk of unfair prejudice).

         Majeroni also argues (for the first time on appeal)

that there was no evidence to suggest that the images from the
                               -9-
prior   conviction     were    of     actual      children,      yet    Rule   414

requires an actual child victim.                But Majeroni did not raise

this argument below, so we review only for plain error.

United States v. Burdulis, 753 F.3d 255, 263 (1st Cir. 2014).

And we see no such error, plain or not, given his guilty plea

to the prior charges.

B.   Evidence of the Terms of Majeroni's Supervised Release

            In    setting    the    scene       and    context   for    both   the

discovery of the laptop and Majeroni's conversations with

Cook, the evidence revealed the existence and general nature

of Majeroni's supervised release.                     Majeroni now presses an

objection    to    that     plainly       relevant      background      evidence,

arguing that it "tainted the jury," especially without a

limiting instruction.         But Majeroni's attorney affirmatively

decided not to ask for a limiting instruction because, as he

explained, the evidence did not "seem to have a big splash

during trial," see United States v. Rodriguez, 311 F.3d 435,

437 (1st Cir. 2002) (party who identifies issue and then

waives issue cannot resurrect it on appeal), and                        Majeroni

himself   cross-examined           Cook    on    the    terms    of    supervised

release, see United States v. Munson, 819 F.2d 337, 342 (1st

Cir. 1987) (no Rule 403 violation when defendant elicited


                                      -10-
evidence that he claimed was unfairly prejudicial). Given the

properly admitted evidence of a prior conviction, and the

strong direct evidence of guilt, we have no doubt that this

evidence did not make much of a "splash."          Be that as it may,

the district court certainly did not abuse its discretion.

C.   Denial of Majeroni's Motion to Suppress

           In a convoluted argument, Majeroni suggests that he

had not agreed to the condition of his supervised release that

allowed a search based on "a reasonable basis" to believe the

search would discover a violation, and that Cook otherwise

lacked probable cause for a warrantless search.               The simple

answer    to   this   challenge    is    that   Cook   took   the   added

precaution of securing Majeroni's express consent to the

search.    See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)

(prohibition against warrantless searches does not apply "to

situations in which voluntary consent has been obtained"). We

could go on, but we need not.           There was no Fourth Amendment

violation.

D.   Sufficiency of Evidence

           Majeroni    claims     that    the   record   evidence    was

insufficient to support his conviction because there was no

evidence that the illicit images were of actual children.


                                  -11-
Alternatively, he argues that there was no evidence that he

knew there was child pornography on his laptop.       Majeroni

forfeited these arguments by not renewing his motion for a

judgment of acquittal after the defense rested. United States

v. Reynoso, 276 F.3d 101, 102 (1st Cir. 2002) (per curiam)

(failure to renew motion for judgment of acquittal after

defense rests constitutes forfeiture). So we review for plain

error.   United States v. Christi, 682 F.3d 138, 140 (1st Cir.

2012).

          The jurors examined the photos and the district court

specifically instructed them that, in order to convict, they

needed to find that the images were of actual children. There

is nothing about those images or the technical evidence to

which Majeroni points that would make the pictures plainly

other than what the jury found them to be.

          As for Majeroni's own supposed lack of knowledge

about the photos, he points only to the fact that his romantic

partner claimed that she had never seen him use a laptop.   She

also testified that other people visited his apartment "all

the time."    The jury apparently did not agree that this

testimony gave rise to reasonable doubt.      Given Majeroni's

behavior on the day of the search (much less his admission to

Cook), there is no cause for us to second guess such a
                             -12-
judgment that "is supported by a plausible rendition of the

record." United States v. Wilder, 526 F.3d 1, 8 (1st Cir.

2008) (internal quotation marks omitted); see United States v.

Mena-Robles, 4 F.3d 1025, 1031 (1st Cir. 1993) (jury is

"empowered to accept or reject, in whole or in part, any

testimony").

E.     Sentencing Challenge

               Finally,      Majeroni     challenges       the       substantive

reasonableness of his 174-month prison sentence, contending

that     the    district      court     abused   its    discretion      by    not

downwardly varying.           Majeroni claims that the district court

should have done so in light of the extensive abuse he

suffered as a child, his distinguished military service, his

mental health issues, his post-offense rehabilitation, and the

harshness of the child pornography sentencing guidelines.

               We   review    the     substantive      reasonableness        of   a

sentence for an abuse of discretion.                   Joubert, 778 F.3d at

256.        "The hallmarks of a substantively reasonable sentence

are    'a    plausible       sentencing    rationale      and    a   defensible

result.'"       United States v. Zapata-Vazquez, 778 F.3d 21, 24

(1st Cir. 2015) (quoting United States v. Martin, 520 F.3d 87,

96 (1st Cir. 2008)).


                                        -13-
          The district court here explicitly weighed Majeroni's

mitigating and aggravating circumstances.                The court was

mindful of his military service and the horrible abuse he

suffered as a child.          The court similarly considered the

unlikelihood of Majeroni reforming his behavior.                 Familiar

with Majeroni from his prior run-ins, the district court had

little   faith   in   his    ability      to   reform,   given   previous

supervised release violations.            "That the sentencing court

chose not to attach to certain of the mitigating factors the

significance that the appellant thinks they deserved does not

make the sentence unreasonable."           United States v. Clogston,

662 F.3d 588, 593 (1st Cir. 2011).               There is "a range of

reasonable sentences" for any defendant, and Majeroni's mid-

range sentence here does not "fall[] outside the expansive

boundaries of that universe." Martin, 520 F.3d at 92.

                            III.   Conclusion

          For the aforementioned reasons, we affirm Majeroni's

conviction and sentence in all respects.




                                   -14-
