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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15202
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:13-cr-00514-AKK-HGD-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

KENDALL ADAM HESTER,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (October 1, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       After a jury trial, Kendall Hester appeals his convictions and sentences for

receiving child pornography (Count 1), in violation of 18 U.S.C. § 2252A(a)(2),

distributing child pornography (Count 2), in violation of 18 U.S.C. § 2252A(a)(2),

and possessing child pornography involving a minor who had not attained 12 years

of age (Count 3), in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). On

appeal, Hester challenges: (1) the denial of his motion to suppress his statements to

law enforcement agents; (2) the sufficiency of the evidence to support his

convictions; and (3) the substantive reasonableness of his 240-month total

sentence. After review, we affirm.

                               I. MOTION TO SUPPRESS

       The district court did not err in denying Hester’s motion to suppress.1

Hester moved to suppress all statements he made after he was detained by law

enforcement agents during the execution of a search warrant at his residence.

Hester claimed, inter alia, that agents continued questioning him after he requested

an attorney. 2




       1
         With respect to motions to suppress, this Court reviews the district court’s fact findings
for clear error and its application of the law to the facts de novo. United States v. Bervaldi, 226
F.3d 1256, 1262 (11th Cir. 2000). In reviewing the ruling, we construe the facts in the light most
favorable to the prevailing party. Id.
       2
        Hester also argued that his statements to the agents were involuntary because he was
intoxicated at the time. The district court discredited Hester as to his intoxication, and Hester
does not raise this claim on appeal.
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      Although Hester testified at the suppression hearing that he repeatedly told

the agents he wanted an attorney, the district court found that Hester did not

request an attorney. The district court instead credited the testimony of three

Alabama Bureau of Investigation (“ABI”) Special Agents Darryl Ott, Katherine

Stewart, and Thomas Whitten, all of whom were present during the search, as

follows:

      With regard to the defendant’s claim that he requested an attorney,
      three different agents testified that they never heard the defendant
      make such a request. While he claims to have been awakened by an
      agent armed with a shotgun pointed at him, Special Agent Whitten
      testified that there was no shotgun present in the residence because
      ABI does not use them in residential searches. Furthermore, Hester
      signed a Miranda waiver form before he was questioned and later
      signed a plea agreement [that was later withdrawn] wherein he
      admitted that, on the date of the search of his residence, he was
      advised of his Miranda rights, waived said rights, and agreed to
      voluntarily speak with law enforcement. In addition, the only other
      witness who could have corroborated Hester’s claims was his
      girlfriend, who [was present inside the residence during the search
      but] was not called as a witness.]

      The district court’s fact finding is supported by the testimony of the three

ABI agents. According to the agents’ credited testimony, Hester signed a form

waiving his Miranda rights and then gave at least two written statements, one to

Agent Ott and another to Agent Stewart. Hester never asked the agents for an

attorney during their interactions. The district court’s decision to credit the agents’

testimony over Hester’s testimony was “within the province of the factfinder,” and

Hester has not shown clear error in the district court’s credibility determination.

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See United States v. Cavallo, 790 F.3d 1202, 1227 (11th Cir. 2015) (explaining

that we will reverse a credibility finding only if the testimony “is contrary to the

laws of nature, or is so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” (quotation marks omitted)).

                              II. Sufficiency of the Evidence

       On appeal, Hester does not dispute that the laptop and CDs found in his

home contained child pornography depicting prepubescent minors or minors less

than 12 years old, that the government downloaded child pornography from his

laptop using peer-to-peer software, or that the child pornography on the laptop and

the CDs was received, distributed, and possessed using facilities in interstate

commerce. Rather Hester argues only that the government failed to prove that it

was he, rather than someone else, who knowingly received, possessed, and

distributed the child pornography. 3

       The government, however, presented ample evidence that Hester was the

person who knowingly received, possessed, and distributed the child pornography,

as charged in the indictment. The laptop and the CDs containing child

pornography were all found in Hester’s bedroom. Hester then admitted to agents

that the laptop belonged to him. Hester also admitted: (1) searching for child

       3
        This Court reviews de novo the sufficiency of the evidence to support a conviction,
viewing the evidence in the light most favorable to the government and drawing all reasonable
inferences and credibility choices in favor of the jury’s verdict. United States v. Boffil-Rivera,
607 F.3d 736, 740 (11th Cir. 2010).
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pornography using the search term “pthc,” which he knew meant “preteen

hardcore”; (2) downloading child pornography onto his laptop using Shareaza,

peer-to-peer file-sharing software, and then moving the files to a separate folder;

and (3) possibly storing some of the child pornography on CDs.

      Corroborating Hester’s admissions, Agent Whitten testified, based on his

forensic examination of Hester’s laptop and the CDs, that: (1) Shareaza was

installed on the laptop and was used to find child pornography using the search

term “pthc”; (2) child pornography files were downloaded using Shareaza and

moved from the downloads folder to other folders; and (3) child pornography

videos on the CDs were played on the laptop using a media player program.

Further, Agent Stewart testified that as part of her investigation she successfully

downloaded child pornography videos from the shared folder on Hester’s laptop

using Shareaza, and Agent Whitten testified that, given the process necessary to

install Shareaza, Hester would have known he was sharing files from particular

folders.

      Finally, Gus Dimitrelos, the government’s expert witness in computer

forensics, testified that he had no doubt that Hester was the person who used the

laptop to download and share child pornography. Dimitrelos based his expert

opinion on the “digital evidence,” the physical evidence of the hard drives and the

computers found in Hester’s home, and Hester’s statements. With respect to the


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digital evidence, Dimitrelos pointed to finding “digital sandwiches” on Hester’s

hard drive showing that Hester engaged in other activities (such as storing pictures

of himself) just before and after accessing images of child pornography.

Dimitrelos further explained that he found no evidence that a virus, a remote

operator, or a person other than Hester was responsible for the child pornography

found on Hester’s laptop.

       Contrary to Hester’s contention, Dimitrelos’s testimony was not incredible

as a matter of law. That is, Dimitrelos did not testify to facts that he could not

possibly have observed or that could not have occurred under the laws of nature. 4

See United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985). Rather,

Dimitrelos testified as an expert witness about his opinions based on all the

evidence in the case, including the digital evidence revealed from the forensic

evaluation and Hester’s statements. In sum, the government’s trial evidence was

more than sufficient for a reasonable jury to conclude beyond a reasonable doubt

that Hester was the person who received, possessed, and distributed the child

pornography found on his laptop. See United States v. Rodriguez, 732 F.3d 1299,

1303 (11th Cir. 2013) (explaining that a jury’s verdict “cannot be overturned if any

       4
         In the portion of his counseled brief devoted to the sufficiency of the evidence, Hester
makes passing references to the district court’s failure to exclude Dimitrelos’s expert testimony
or to instruct the jury to disregard Dimitrelos’s expert testimony, but he offers no meaningful
argument as to these claims. Accordingly, these claims are abandoned. See United States v.
Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012) (explaining that a defendant abandons an
issue when he merely makes a passing reference in his brief and fails to develop any argument
with respect to an alleged error).
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reasonable construction of the evidence would have allowed the jury to find the

defendant guilty beyond a reasonable doubt”).

                       III. SUBSTANTIVE REASONABLENESS

       Finally, Hester has not shown that his 240-month total sentence, 22 months

below his advisory guidelines range of 262 to 327 months’ imprisonment, is

substantively unreasonable.5 This Court reviews the substantive reasonableness of

a sentence under a deferential abuse of discretion standard of review. Gall v.

United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party who

challenges the sentence bears the burden to show that the sentence is substantively

unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). 6

       Hester’s only reasonableness argument is a Kimbrough7-type argument.

Specifically, Hester contends the district court was required to vary further

downward because the child pornography guidelines used to calculate his advisory



       5
       Hester does not argue that his sentence is procedurally unreasonable or raise any
procedural error as to his sentencing.
       6
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
       7
           Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007).
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guidelines range are not supported by empirical evidence. This Court, however,

already addressed the argument Hester now makes and concluded that the district

court has the discretion to consider a Kimbrough-type challenge to the child

pornography guidelines, but is not required to vary downward based on those

arguments. See United States v. Cubero, 754 F.3d 888, 898-900 (11th Cir. 2014).

      Here, the district court listened to Hester’s extensive argument about

criticisms of the child pornography guidelines. The district court denied Hester’s

request for a variance based on those criticisms, but concluded that a downward

variance was warranted based on Hester’s history and family support. The district

court noted, however, that it could not “overlook the severity of the conduct.” The

district court stated that it had considered the § 3553(a) factors and highlighted the

nature and circumstances of Hester’s offenses, which it found were egregious. The

district court further found, due to the type of material Hester possessed, that

Hester’s case was not a “normal” possession of child pornography case. We note

that Hester’s laptop and CDs contained 342 videos of child pornography, some

involving very young children, children being raped, and other sadomasochistic

conduct and that Hester not only sought out and possessed these videos, he also

shared them with others using a peer-to-peer file-sharing program. The district

court also stated that the 240-month sentence was needed to afford adequate

deterrence and protect the public from further crimes by Hester.


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      In light of the record and the § 3553(a) factors, we cannot say the district

court abused its discretion when it declined to vary any further downward.

      AFFIRMED.




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