United States v. Ricky Patten
Filing
OPINION FILED - THE COURT: WILLIAM JAY RILEY, C. ARLEN BEAM and KERMIT E. BYE. Kermit E. Bye, Authoring Judge (PUBLISHED) [3863479] [11-2268]
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2268
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United States of America,
*
*
Plaintiff – Appellee,
*
* Appeal from the United States
v.
* District Court for the
* Northern District of Iowa.
Ricky Patten,
*
*
Defendant – Appellant.
*
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Submitted: November 17, 2011
Filed: December 28, 2011
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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
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BYE, Circuit Judge.
Ricky Patten pleaded guilty to one count of sexual exploitation and attempted
sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (e), and two
counts of possession and attempted possession of child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B) and (b)(2). However, he reserved the right to appeal the
district court’s1 denial of his motion to suppress. Patten now raises this issue on
appeal, as well as a challenge to his 480-month term of imprisonment. We affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the report and recommendations of the
Honorable Jon Stuart Scoles, United States Magistrate Judge for the Northern District
of Iowa.
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I
In 2003, Ricky Patten married H.P., who had a child from a previous
relationship, T.A. On July 12, 2010, T.A., then fifteen years old, reported to Officer
Terry Oltman of the Grundy Center, Iowa Police Department, that Patten had sexually
abused her. According to T.A., Patten took nude and sexually explicit photographs
of her beginning when she was twelve years old. She noted he used a black digital
camera, and he hid the memory disks for the camera above the furnace in the
basement. Shortly after T.A.’s thirteenth birthday, Patten began sexually abusing her,
which increased in frequency over time, and included acts of vaginal intercourse, anal
intercourse, and oral sex. In addition, T.A. reported incidents of Patten’s violent
behavior. For instance, she stated Patten became “so angry over little things” that he
would scream, throw objects, and punch walls. On one occasion, Patten shook T.A.’s
shoulders and slammed the back of her head against a wall. Patten also made various
threats about killing himself and others, and he threatened to leave the family.
Oltman, working with a deputy sheriff and an assistant county attorney,
prepared a search warrant application for Patten’s residence based on the information.
However, he excluded T.A.’s name or initials in the application, and instead he used
phrases such as “it was reported” to indicate the source of the information. After the
issuing judge interviewed Oltman about further details concerning T.A.’s location,
Patten’s location, whether the case was ongoing, and whether Oltman was familiar
with the property, the judge approved the search warrant.
During the execution of the search warrant, the officers discovered the camera
and memory cards described by T.A. Patten also admitted his sexual activity with
T.A., both at the scene and later at the police station. Two days later, the officers
obtained a second search warrant to allow for the seizure and forensic examination of
additional items. The subsequent examination of the nine memory cards, two digital
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cameras, laptop computer, and two USB drives revealed a total of 3,059 images of
T.A., including at least 1,010 files depicting child pornography.
After Patten was originally charged with one count of sexual exploitation of a
minor and five counts of possession of child pornography, he moved to suppress
evidence from the search, arguing the warrant was not supported by probable cause.
In conjunction with a report and recommendation from the magistrate judge, the
district court denied the motion. Patten then entered a conditional guilty plea to one
count of sexual exploitation and attempted sexual exploitation of a minor, and two
counts of possession and attempted possession of child pornography. After
calculating an advisory Guidelines range of 292 to 365 months, the court heard
testimony from T.A. and received two government exhibits into evidence. The court
denied Patten’s motion for a downward departure and a variance, and granted the
government’s motions for an upward departure under U.S.S.G. § 5K2.0 and 5K2.8,
and an upward variance under 18 U.S.C. § 3553(a). The court sentenced Patten to 480
months, consisting of 360 months on the sexual exploitation count and 120 months
on each of the child pornography counts, with the latter two counts running concurrent
to each other, but consecutive to the sexual exploitation count. Patten appeals.
II
Patten raises two issues, challenging the denial of his motion to suppress and
the imposition of his 480-month sentence. We examine each of these in turn.
A. Motion to Suppress
“We review the district court’s factual determinations underlying the denial of
a motion to suppress for clear error and its legal conclusions de novo.” United States
v. Cisneros-Gutierrez, 598 F.3d 997, 1003 (8th Cir. 2010). “We also review de novo
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the district court’s application of the Leon good-faith exception to the exclusionary
rule.” United States v. Clay, 646 F.3d 1124, 1127 (8th Cir. 2011).
Patten first contends the search warrant was not supported by probable cause
because the application contained no finding of reliability concerning the source of
the information, no indication of who the source was, and no statement as to the
source’s credibility or why the officer believed the information was trustworthy.
Patten asserts there was no corroboration of the allegations, and, taken together, this
was a bare bones application for a search warrant in violation of the Fourth
Amendment.
“‘We may consider the applicability of the good-faith exception to the
exclusionary rule before reviewing the existence of probable cause.’” Id. (quoting
United States v. Warford, 439 F.3d 836, 841 (8th Cir. 2006)). Employing this
approach here, we conclude the district court properly denied Patten’s motion to
suppress based on the good faith exception, regardless of whether the affidavit was
sufficient to establish probable cause. “Under the Leon good-faith exception, disputed
evidence will be admitted if it was objectively reasonable for the officer executing a
search warrant to have relied in good faith on the judge’s determination that there was
probable cause to issue the warrant.” United States v. El-Alamin, 574 F.3d 915, 924
(8th Cir. 2009) (internal quotation marks and citation omitted). However, among
other circumstances, the good faith exception is inapplicable “when the affidavit in
support of the warrant is so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable. United States v. Fiorito, 640 F.3d 338,
345 (8th Cir. 2011). Patten claims this is the case here, rendering Oltman’s reliance
on the warrant entirely unreasonable. We disagree.
Guided by our recent decision in Clay, we conclude three factors support
Oltman’s objective reasonableness. First, Oltman consulted with the assistant county
attorney in drawing up the application. See Clay, 646 F.3d at 1127 (“One relevant
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circumstance to consider when determining whether an officer’s actions were
objectively reasonable is whether the officer consulted with an attorney prior to
seeking the warrant.”); United States v. Perry, 531 F.3d 662, 666 n.6 (8th Cir. 2008)
(noting the prosecutor’s determination the affidavit provided probable cause for the
search supported the officer’s reasonable belief). Second, Oltman interviewed T.A.
in person, and thus he had a greater opportunity to assess T.A.’s credibility. See Clay,
646 F.3d at 1127 (“[The officer] also interviewed the CI in person, a circumstance
further supporting [the officer’s] good-faith reliance on the warrant[.]”). Third, T.A.
had first-hand knowledge of the sexual abuse and photographs, as she was the subject
of the abuse. See United States v. Kattaria, 553 F.3d 1171, 1178 (8th Cir. 2009)
(“There is an inherent indici[um] of reliability in the richness and detail of a first hand
observation.”) (internal quotation marks and citation omitted). Based on these factors,
we conclude the district court properly applied the good faith exception. Accordingly,
“we need not reach the underlying question of probable cause.” Clay, 646 F.3d at
1128.
B. Patten’s Sentencing Challenge
Patten next contends his 480-month sentence is excessive and runs afoul of the
Eighth Amendment’s ban on cruel and unusual punishment. He argues the sentence
went far beyond what was necessary to accomplish the sentencing goals. Patten
frames his appeal as a challenge to an illegal sentence in light of the plea agreement
he entered wherein he waived his appeal rights.
To the extent Patten challenges the reasonableness of his sentence, his claim is
barred by the appeal waiver contained in the plea agreement. “We will enforce a
defendant’s appeal waiver against all issues that fall within the scope of the waiver if
the defendant entered the plea agreement and appeal waiver ‘knowingly and
voluntarily’ and enforcement of the waiver would not cause a ‘miscarriage of
justice.’” United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011) (quoting
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United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)). Patten’s attack on the
reasonableness of his sentence falls within the scope of his appeal waiver, and there
is nothing to show the plea agreement and waiver were not entered into knowingly
and voluntarily or that a miscarriage of justice would result. Id.
While Patten waived his reasonableness challenge, we may still consider his
Eighth Amendment argument. This court reviews challenges based on the Eighth
Amendment de novo. United States v. Neadeau, 639 F.3d 453, 456 (8th Cir. 2011).
“[T]his Court has never held that a sentence within the statutory range violates the
Eighth Amendment.” Id.; see also United States v. Collins, 340 F.3d 672, 679 (8th
Cir. 2003) (“It is well settled that a sentence within the range provided by statute is
generally not reviewable by an appellate court.”). After careful review, we conclude
this is not “the rare case in which a threshold comparison of the crime committed and
the sentence imposed leads to an inference of gross disproportionality.” United States
v. Spires, 628 F.3d 1049, 1054 (8th Cir. 2011) (internal quotation marks and citation
omitted).
We affirm.
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