United States v. Monson

72 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: June 26, 2023
• Docket: 21-1612
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1612

UNITED STATES OF AMERICA,

Appellee,

v.

JONATHAN MONSON,

Defendant, Appellant.

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

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Howard, Circuit Judges.

Jin-Ho King, with whom Milligan Rona Duran & King, LLC., was on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

June 26, 2023

- 1 - HOWARD, Circuit Judge. A jury convicted Jonathan Monson

on fifteen counts of an indictment charging sexual exploitation of

children and distribution, receipt, and possession of child

pornography. He was sentenced to 480 months' incarceration. On

appeal, Monson challenges the admission of certain evidence

against him at his trial, the sufficiency of the evidence against

him, and his sentence. Concluding that each challenge is

unavailing, we affirm.

I. BACKGROUND1

In 2017, while participating in an undercover capacity

in a Kik Messenger ("Kik")2 group named "Taboo Train 2.0," an FBI

agent observed not only that the group's discussion focused on

child pornography but also that one of the group's members was

distributing child pornography to the group. That user, whose

screen name consisted of four emoticons followed by the name "john

(daddauluv_r6n@talk.kik.com)," transmitted five images

constituting child pornography to the group.3 Suspicious that

In assessing the sufficiency claim, we recount the facts in 1

the light most favorable to the verdict. United States v. Burgos- Montes, 786 F.3d 92, 98 (1st Cir. 2015). For the suppression of evidence claim, we offer a balanced account. Id.; United States v. Piper, 298 F.3d 47, 50 (1st Cir. 2002). Kik is a cloud-based social media application that permits 2

users to anonymously share text and multi-media messages with one another, both one-on-one and in group chats. 3 Those five images formed the bases for Counts 5-9.

- 2 - Monson was the user distributing the child pornography, agents

obtained search warrants for Monson, his residence in Granby,

Massachusetts, and his vehicles.

In March 2018, FBI agents and local law enforcement

officers, armed and dressed in tactical gear, went to Monson's

home to execute the search warrant. During the execution of the

warrant, FBI Special Agent Ian Smythe expressed his desire to speak

with Monson, told Monson "that they perhaps would be better off

finding a place with less activity" to speak, and informed Monson

that he was neither in custody nor under arrest. Monson agreed to

accompany the agents to the Granby Public Safety Complex, a

community building which housed both the Granby police station and

fire station, and to speak with Smythe there. At the public safety

complex, Smythe and Special Agent Michael Sheehan led Monson to a

public conference room that was in the building's lobby -- not in

the section of the building designated as the police station --

where they then interviewed him. Smythe advised Monson of his

Miranda rights and Monson signed a form acknowledging that he

understood those rights and was willing to answer questions without

a lawyer present.

During the interrogation, Monson made a number of

admissions including: that he had an eleven-year-old daughter;

that he had installed Kik onto his iPhone and had used Kik to find

groups associated with incest fantasy and child pornography; that

- 3 - the Kik account with the username consisting of four emoticons and

"john (daddauluv_r6n@talk.kik.com)" belonged to him; that

"daddauluv" referred to "daddy-daughter love"; that he became

active in the group "Taboo Train 2.0" over a year earlier using an

iPhone 6 -- which he had since traded in for an iPhone 7 Plus --

and that he had posted images to that group; that he would

frequently engage in "tickle fights" with his daughter and that he

may have touched her groin area; and that he had, on one occasion,

taken his iPhone into the bathroom while his daughter was showering

and "accidentally" took pictures which might still be on his

iPhone.

Following that interrogation, the agents seized Monson's

iPhone 7 Plus. Monson then underwent a polygraph examination and

a subsequent interview with a different agent, during which Monson

made additional incriminating admissions. At the conclusion of

the second interview the agents arrested Monson. Examination of

Monson's iPhone 7 Plus revealed evidence of the sexual exploitation

of children as well as child pornography.

In a superseding indictment the government brought

fifteen criminal counts against Monson: the first four counts

alleged Sexual Exploitation of Children (18 U.S.C. § 2251(a));

counts five through twelve alleged Distribution of Child

Pornography (18 U.S.C. § 2252A(a)(2)(A)); counts thirteen and

fourteen alleged Receipt of Child Pornography (18 U.S.C.

- 4 - § 2252A(a)(2)(A)); and count fifteen alleged Possession of Child

Pornography (18 U.S.C. § 2252A(a)(5)(B)).

In advance of trial, Monson sought to suppress the

statements that he had made during his initial interview at the

Public Safety Complex on the basis that those statements were made

during a custodial interrogation and that he had not waived his

Fifth Amendment rights before making the incriminating statements.4

Finding that Monson was not in custody at the time of the

interrogation, the district court denied the suppression motion.

Trial spanning five days was had before a jury, and at the close

of the evidence, Monson moved unsuccessfully for a judgment of

acquittal, see Fed. R. Crim. P. 29(a), on the four child

exploitation counts on sufficiency grounds.

The jury subsequently found Monson guilty on all fifteen

counts, and the district court sentenced Monson to 480 months'

incarceration.

II. DISCUSSION

On appeal, Monson brings three distinct challenges.

First, he argues that the district court erred in denying his Rule

4 At the hearing on Monson's motion to suppress, Monson's counsel clarified that the motion concerned only the admission of statements made during the initial interrogation by Smythe (and not any statements made during his polygraph examination or the second interrogation -- conducted by a different FBI agent -- which followed that examination).

- 5 - 29(a) motion because the evidence at trial was insufficient to

satisfy the jurisdictional element of the child exploitation

counts. Second, Monson argues that the court erred in denying his

suppression motion because he was interrogated while he was in

custody but had not waived his Miranda rights. Finally, he

challenges the procedural reasonableness of his sentence on the

ground that the district court incorrectly determined his

Guidelines sentencing range. We address each argument in turn.

A. THE SUFFICIENCY OF THE EVIDENCE

We begin with the challenge to the sufficiency of the

evidence on counts one through four because his success on that

score would render moot the other claims of trial and sentencing

error on those counts. United States v. Ramírez-Rivera, 800 F.3d

1, 16 (1st Cir. 2015), abrogation on other grounds recognized by

United States v. Leoner-Aguirre, 939 F.3d 310 (1st Cir. 2019).

i.

Preserved challenges to the sufficiency of the evidence

are reviewed de novo, see United States v. Ocean, 904 F.3d 25, 28

(1st Cir. 2018), and we will sustain the jury's verdict if the

record evidence -- "evaluated in the light most favorable to the

verdict . . . [and] including all plausible inferences drawn

therefrom" -- would permit a rational factfinder to find the

defendant guilty beyond a reasonable doubt. United States v.

Torres Monje, 989 F.3d 25, 27 (1st Cir. 2021) (internal quotation

- 6 - marks omitted) (quoting United States v. Santos-Rivera, 726 F.3d

17, 23 (1st Cir. 2013)).

ii.

18 U.S.C. § 2251(a) provides that "[a]ny person who

employs, uses, persuades, induces, entices, or coerces any minor

to engage in . . . any sexually explicit conduct for the purpose

of producing any visual depiction of such conduct . . . shall be

punished . . . if that visual depiction was produced or transmitted

using materials that have been mailed, shipped, or transported in

or affecting interstate or foreign commerce by any means, including

by computer." As used in § 2251(a), Congress defined "producing"

to include "producing, directing, manufacturing, issuing,

publishing, or advertising." 18 U.S.C. § 2256(3). As have several

other circuits, we have held that § 2251(a) is thus to be

understood to criminalize both the initial recording or creation

of child exploitation materials as well as the subsequent creation

of copies or subsequent reproduction of those materials. See

United States v. Poulin, 631 F.3d 17, 23 (1st Cir. 2011) ("Congress

intended a broad ban on the production of child pornography and

aimed to prohibit the varied means by which an individual might

actively create it. As such, the government did not need to

establish at what point 'production' occurred, nor produce in

evidence a recording device." (internal citations omitted));

United States v. Burdulis, 753 F.3d 255, 262 (1st Cir. 2014) ("When

- 7 - a person loads an image onto a thumb drive from the internet or

another source, that person has created a new copy of the image in

the digital memory of the thumb drive. As the Ninth Circuit put

it, '[w]hen the file containing the image is copied onto a disk,

the original is left intact and a new copy of the image is created,

so the process "produces" an image.'" (alteration in original)

(quoting United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir.

2002) (per curiam))); United States v. Lacy, 119 F.3d 742, 750

(9th Cir. 1997); United States v. Dickson, 632 F.3d 186, 189-90

(5th Cir. 2011); United States v. Caley, 355 Fed. Appx. 760, 761

(4th Cir. 2009); United States v. Maxwell, 386 F.3d 1042, 1052

(11th Cir. 2004), vacated but later reinstated in relevant part,

see 446 F.3d 1210, 1211 (11th Cir. 2006); United States v. Angle,

234 F.3d 326, 341 (7th Cir. 2000).

iii.

In contending that the evidence was insufficient to

counts, Monson takes two tacks. He first argues that the evidence

did not establish that the image which formed the basis of count

one was produced using materials that had travelled in interstate

commerce, because that image was created with Monson's iPhone 6;

neither that iPhone 6, nor any information regarding it, were

admitted into evidence at trial; and the image was created before

Monson's iPhone 7 Plus (which was part of the evidence) was

- 8 - manufactured. Monson contends that this gap precludes any finding

that the child exploitation occurred with the purpose of creating

the reproduction of the image that was found on that iPhone 7 Plus.

He separately argues that the evidence was insufficient to

establish that his iPhone 7 Plus, which contained the four images

underlying the child exploitation counts, had travelled in

interstate commerce. Finding both arguments unavailing, for the

reasons discussed below, we affirm the district court's denial of

Monson's Rule 29 motion for acquittal.

The iPhone 6 Argument (Count One)

Monson's challenge to the sufficiency of the evidence

underlying his conviction on count one focuses on the phrase "that

visual depiction" in connection with the interstate or foreign

commerce requirement in § 2251(a). The use of the word "that,"

Monson argues, links the conduct element (the use of a minor for

the purpose of producing any sexually explicit visual depiction)

with the commerce requirement such that the same visual depiction

(that is, the same image file) constitute both the prohibited

conduct and the commerce nexus. In making this argument, Monson

relies on the Sixth Circuit's reasoning in United States v. Lively,

852 F.3d 549, 558 (6th Cir. 2017), that

The word "that" links the two parts of § 2251(a). As used here, "that" is an adjective. In the second part of § 2251(a), "that" modifies and restricts the noun "visual depiction," which is also used in the first

- 9 - part of the statute. The most natural reading of § 2251(a) is clear: "that" clarifies that the "visual depiction" in the first half of § 2251(a) is the same "visual depiction" the second jurisdictional hook addresses. Thus, to violate § 2251(a), a defendant must sexually exploit a minor for the purpose of producing a visual depiction of this exploitation, and that same visual depiction must be produced using materials that have an interstate-commerce nexus.

A jury could not find that Monson violated § 2251(a)

with respect to the image underlying count one, he argues, because

his use of a minor and his initial creation of a visual depiction

of that use occurred before the iPhone 7 Plus on which the image

was discovered had even been manufactured. Accordingly, a jury

could not find that he had "the purpose to produce" the visual

depiction that was located on the iPhone 7 Plus at the time that

he used the minor to create the initial visual depiction on his

iPhone 6, preventing the requisite link between the conduct element

and interstate commerce requirement. We reject this argument.

Even if we were to accept and apply Monson's narrowing

construction of § 2251(a), when viewed in the light most hospitable

to the verdict the evidence is nonetheless sufficient to permit a

reasonable factfinder to conclude that Monson intended to create

subsequent copies of the image (including, specifically, the copy

that was discovered on his iPhone 7 Plus) at the time that he

- 10 - created the initial depiction.5 There was evidence that, less than

a year after Monson initially captured the image on his iPhone 6,

he saved the image to his iCloud account, linked that iCloud

account to his iPhone 7 Plus, populated the image onto his iPhone

7 Plus from his iCloud account, and then continued to store the

image on his iPhone 7 Plus. From this evidence, a reasonable jury

could conclude that Monson intended, at the time the initial

depiction was created, to make and populate subsequent copies of

that image on devices linked to his iCloud account including and

especially any subsequent iPhones that he obtained to replace his

iPhone 6. See Downs, 56 F.4th at 1321-22 (finding that a

reasonable jury could conclude that the defendant had the requisite

intent to create subsequent copies at the time of initial capture

based on circumstantial evidence, including that subsequent copies

were actually created).

On this point, the Sixth Circuit's decision in Lively

does not suggest a contrary conclusion. In Lively, the court held

that the jurisdictional element in § 2251(a) was not satisfied

based on a co-defendant's subsequent copying of the images at issue

onto a hard-drive because "there [was] no reason to believe that

Lively had the purpose of producing -- or having [the co-defendant

5 To be clear, in assuming the narrow construction of § 2251(a) we do not mean to endorse it or to suggest that our prior precedent necessarily permits it.

- 11 - produce] -- the Hard-Drive images." 852 F.3d at 554. Lively thus

is properly viewed as a case in which an independent actor produced

the hard drive image, and that conduct could not priorly be imputed

to the defendant who created the previous image. Cf. Pattee, 820

F.3d at 511, n.8 ("[M]erely transferring or copying a pornographic

image that was produced by someone else is [not] tantamount to

'producing' child pornography.").

The iPhone 7 Plus Argument (Counts One through Four)

Monson also argues that there was a lack of evidence

that his iPhone 7 Plus travelled in interstate commerce, and thus

that there was insufficient evidence to support a conviction for

child exploitation based on the discovery of the images on that

phone.

At trial, the government sought to prove the interstate

commerce nexus for the child exploitation counts by introducing

records from Apple Inc. showing that a black iPhone 7 Plus bearing

a specific 15-digit international mobile equipment identity (IMEI)

number was manufactured in Kunshan, China in 2017 before being

shipped to the United States, and then eliciting testimony from

Smythe that Monson's iPhone 7 Plus (which Smythe had examined on

multiple occasions) bore the same IMEI number as listed in the

Apple records and thus was the phone to which those records

referred. Monson argues that this evidence was not sufficient to

establish that his iPhone was the same iPhone referred to in the

- 12 - Apple records because the evidence "forced the jury to speculate

that [Smythe] could recall the fifteen digit IMEI for Mr. Monson's

iPhone 7 Plus and accurately compare it to the IMEI listed on the

Apple records, notwithstanding that the Apple records described

the phone as 'BLACK' and the witness recalled the phone to be

'[n]ot black.'"6 According to Monson, "[t]his kind of speculation

cannot support a finding of guilt beyond a reasonable doubt." We

reject the argument.

Generally, "[i]t is the responsibility of the jury --

not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the

jury's verdict on the ground of insufficient evidence only if no

rational trier of fact could have agreed with the jury." Cavazos

v. Smith, 565 U.S. 1, 2 (2011) (emphasis added). The jury

supportably could have found the evidence to point to the iPhone

7 Plus described in the Apple records as the same iPhone that the

agents seized from Monson. While a reasonable juror could have

viewed Smythe's ability to recall the specific IMEI number or

failure to accurately describe the color of the phone with

skepticism, the record does not compel the conclusion that the

testimony was insufficient to establish that the Apple records

described Monson's iPhone 7 Plus. As we have often stated, "[w]hen

6 Smythe's report and testimony described the iPhone 7 Plus as dark gray.

- 13 - the record is fairly susceptible of two competing scenarios, the

choice between those scenarios ordinarily is for the jury." United

States v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007); see also

United States v. Seary-Colón, 997 F.3d 1, 11-12 (1st Cir. 2021)

("We need not conclude that 'no verdict other than a guilty verdict

could sensibly be reached, but must only [be] satisf[ied] . . .

that the guilty verdict finds support in a plausible rendition of

the record.'" (alterations in original) (quoting United States v.

Hatch, 434 F.3d 1, 4 (1st Cir. 2006))).

Concluding that the evidence presented at trial was

sufficient to support Monson's convictions on each of the child

exploitation counts, we affirm the district court's denial of

B. The Suppression Ruling

Monson also argues that the district court erred in

denying his motion to suppress statements, because those

statements were made during a custodial interrogation without

there having been a valid waiver of his Miranda rights. Because

we cannot upset the district court's finding that Monson was not

in custody at the time that he made the statements at issue, we

affirm the denial of the suppression motion.

"In reviewing a district court's decision on a motion to

suppress, we scrutinize findings of fact for clear error and

- 14 - conclusions of law de novo." United States v. Miles, 18 F.4th 76,

78 (1st Cir. 2021) (citing United States v. Simpkins, 978 F.3d 1,

6 (1st Cir. 2020)).

"[T]he [Supreme] Court [has] made clear that the

ultimate determination of custody is a mixed question of fact and

law. The initial examination of the 'totality of the

circumstances' is factual. The second inquiry, however -- whether,

objectively, these circumstances constitute the requisite

'restraint on freedom of movement of the degree associated with a

formal arrest' -- requires the 'application of the controlling

legal standard to the historical facts.'" United States v.

Ventura, 85 F.3d 708, 711 n.2 (1st Cir. 1996) (quoting Thompson v.

Keohane, 516 U.S. 99, 112 & n.11 (1995)); see United States v.

Mittel-Carey, 493 F.3d 36, 39 (1st Cir. 2007). Accordingly, we

review for clear error the district court's findings as to the

circumstances surrounding the interrogation, and review de novo

the court's conclusion as to whether, under those circumstances,

a reasonable person would have felt free to end the interrogation

and leave. United States v. Infante, 701 F.3d 386, 396 & n.9 (1st

Cir. 2012)

Statements made by a defendant during a custodial

interrogation are inadmissible at trial unless, in advance of the

interrogation, the defendant was advised that he "has a right to

- 15 - remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of

an attorney, either retained or appointed" and the defendant

knowingly and voluntarily waived those rights. Miranda v. Arizona,

384 U.S. 436, 444 (1966); see also Dickerson v. United States, 530

U.S. 428, 432-33 (2000).

"Accordingly, the need for a Miranda warning 'turns on

whether a suspect is in custody.'" United States v. Swan, 842

F.3d 28, 31 (1st Cir. 2016) (quoting United States v. Hughes, 640

F.3d 428, 435 (1st Cir. 2011)). A two-step inquiry is used to

determine whether a suspect is in custody. See Howes v. Fields,

565 U.S. 499, 509 (2012); United States v. Melo, 954 F.3d 334, 340

(1st Cir. 2020). First, it must be determined whether, based on

the objective circumstances surrounding the interrogation, a

reasonable person would have felt free to terminate the

interrogation and leave. Fields, 565 U.S. at 509. Second, if it

is determined that a reasonable person would not feel free to do

so, it must then be determined whether the environment in which

the interrogation occurred "present[ed] the same inherently

coercive pressures as the type of station house questioning at

issue in Miranda." Id.

Factors that we have identified previously as relevant

to the custody inquiry include the setting of the interrogation,

"the number of law enforcement officers present at the scene, the

- 16 - degree of physical restraint placed upon the suspect, and the

duration and character of the interrogation." Swan, 842 F.3d at

31 (quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir.

1987)). However, this is "by no means an exhaustive list" and a

court must consider the totality of circumstances surrounding the

interrogation to determine whether it was custodial. Mittel-

Carey, 493 F.3d at 39. Further, those circumstances are to be

evaluated objectively, "not [based] on the subjective views

harbored by either the interrogating officers or the person being

questioned." Stansbury v. California, 511 U.S. 318, 323 (1994).

Assessing the totality of the circumstances in light of

the precedents above, we conclude that a reasonable person in

Monson's position would have felt free to terminate the

interrogation and leave and thus affirm the district court's

suppression ruling.

To begin, the questioning of Monson took place in a

conference room at the Granby Public Safety Facility. While it is

true that the Granby police department was housed in that same

complex, the record reflects that Monson did not enter the police

station before or during the interrogation by Smythe, that "the

police station really had no part in this interview other than

that it was under the same roof inside this larger community

building," and that the conference room "was not designed in any

- 17 - way to be a law enforcement type room that was set up for police

purposes" but "was just an open space with a table and some chairs

and the door opened out into a common area within this building."

Accordingly, although the location of the interrogation was

unfamiliar to Monson, it was more akin to a neutral location than

a police station interview room, a factor that weighs in favor of

concluding that the interrogation was non-custodial. See Infante,

701 F.3d at 397 (questioning in a neutral setting -- a hospital

room -- weighed in favor of interrogation being non-custodial);

United States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999)

("Although the location apparently was not familiar to [the

suspect] and the area was not well-lit, a public highway is a

neutral setting that police officers are not in a position to

dominate."); United States v. Campbell, 741 F.3d 251, 267 (1st

Cir. 2013) ("The defendants were questioned in a neutral location,

a hotel parking lot.").

Next, the record reflects that two members of law

enforcement travelled with Monson to the community center and that

only two law enforcement agents were present during his

questioning. In arguing that the interrogation was custodial,

Monson highlights the fact that eight or nine agents and police

officers arrived at his home to carry out the search warrant, and

he contends that this number supports a finding that he was in

custody. However, because the focus of our inquiry is on Monson's

- 18 - interrogation, see Swan, 842 F.3d at 31 ("[I]n conducting the

Miranda analysis, we focus on the time that the relevant statements

were made"), the number of agents present when Monson made the

statements that he seeks to suppress is the relevant number for us

to consider, not the total number of agents and police officers

who participated in the investigation or search of Monson's

property. See Hughes, 640 F.3d at 436 ("[A]lthough four officers

trekked to the island, only two of them participated in the

questioning."); United States v. Crooker, 688 F.3d 1, 12 (1st Cir.

2012) ("[A]lthough [numerous] officers were present inside and

around [the suspect's] house, no more than two agents were in

direct conversation with [the suspect] at one time."); cf. Mittel-

Carey, 493 F.3d at 40 (presence of eight officers in suspect's

home weighed towards custodial nature of interrogation because

interrogation took place at the home with all eight officers

present). That only two agents were present for Monson's

interrogation weighs in favor of a conclusion that the

interrogation was non-custodial. See Hughes, 640 F.3d at 436;

Crooker, 688 F.3d at 12; Swan, 842 F.3d at 32; see also United

States v. Quinn, 815 F.2d 153, 157 (1st Cir. 1987) ("[W]e do not

believe the physical presence of two more officers, besides the

three who were there when the two suspects first arrived, could

have led to a reasonable inference that a de facto arrest had

occurred.").

- 19 - Third, the record reflects that there was no physical

restraint placed upon Monson at any time during the interrogation.

The district court found that Monson "was not restrained in any

way," and that "[the interrogation] occurred in this community

room that clearly was not confining him. . . . There was no degree

of restraint. There was no indication that he was put in a corner

and an agent sat next to him and he couldn't move. There was no

indication of locking doors or any type of other restraint." We

have previously explained that among the factors relevant to the

custodial inquiry, "the element that carries the most weight is

the level of physical control that the agents exercised over the

defendant during the search and interrogation," Mittel-Carey, 493

F.3d at 40, and that a lack of any physical control, contact or

restraint weighs heavily in favor of a conclusion of no-custody.

See United States v. Nishnianidze, 342 F.3d 6, 14 (1st Cir. 2003);

Swan, 842 F.3d at 33; Infante, 701 F.3d at 398; Hughes, 640 F.3d

at 436 ("[W]e think it significant that no meaningful physical

restraint was applied to the defendant.").

Monson argues that, despite the absence of any physical

restraint, he lacked "true freedom of movement" because "the agents

dictated when and how [he] moved." In support, Monson highlights

that he was transported to the public safety complex by the agents

and told that they would drive him back home when they were

finished. But the force of this point is undermined by the fact

- 20 - that Monson went to the police station with the agents voluntarily.

See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (no custody

where, inter alia, the suspect "came voluntarily to the police

station"); McCown v. Callahan, 726 F.2d 1, 6 (1st Cir. 1984)

(explaining that "we d[id] not see how one could say, as a matter

of law, that [the suspect] was in custody when he was questioned"

because, in addition to other factors, he "c[a]me to the station

voluntarily"); Quinn, 815 F.2d at 160 ("Even when questioning

occurs in the stationhouse, a suspect need not be given Miranda

warnings if he went there voluntarily and there was no such

restriction on his freedom as to render him in 'custody.'"

(emphasis added) (quoting California v. Beheler, 463 U.S. 1121,

1125 (1983))); United States v. Ellison, 632 F.3d 727, 730 (1st

Cir. 2010) (Souter, J.) (fact that suspect was the one who

suggested the interview was a relevant factor to our conclusion of

no-custody). Indeed, we have previously explained that where a

suspect was "not ordered to ride with [the officers]" but that

instead transportation by the police "was merely a suggestion to

which [the suspect] agreed," this further undermines any

suggestion of custody or a lack of freedom of movement. Swan, 842

F.3d at 31.

Fourth, the duration and character of the interrogation

suggest that Monson was not in custody. The interrogation lasted

- 21 - for approximately one hour,7 a factor which weighs against the

custodial nature of the interrogation. We have previously

characterized interrogations that were ninety minutes as

"relatively short" and held that the length of those interrogations

did not suggest custody. Hughes, 640 F.3d at 437; Swan 842 F.3d

at 33. Further, the district court found that the "[t]he character

of the questioning was conversational," and that it "was not

aggressive at all or adversarial." These too are findings which

suggest that the interrogation was non-custodial. See Swan, 842

F.3d at 33; Infante, 701 F.3d at 397 ("The atmosphere was non-

confrontational."); Hughes, 640 F.3d at 437 ("[T]he ambiance was

relaxed and non-confrontational throughout the interview. The

7 Monson argues that we should consider the time that he spent undergoing the post-interrogation polygraph examination and the second, post-polygraph, round of questioning when assessing the total length of his interrogation and, accordingly, that we should consider the over five total hours Monson spent at the complex to constitute a "lengthy" interrogation. However, to the extent that Monson means to suggest that the district court's factual finding that the interrogation lasted one hour was clearly erroneous, this argument is undeveloped and thus waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). Moreover, as discussed above, supra note 4, Monson explicitly represented to the district court that his motion to suppress focused solely on the initial interrogation by Smythe, precluding Monson from now arguing that the motion concerned the whole of his interactions with law enforcement on the date he was arrested. See United States v. Chen, 998 F.3d 1, 6 (1st Cir. 2021) ("An issue may be waived when a party purposefully abandons it, either expressly or by taking a contrary position at trial. A party who waives an issue at trial cannot later complain on appeal by pressing a position that was not taken at trial." (internal citations omitted)).

- 22 - troopers' demeanor remained calm. . . . The troopers were polite

and never hectored the defendant.").

Finally, among the totality of the circumstances

surrounding the interrogation are additional factors that support

the conclusion that the interrogation was non-custodial. These

include the facts that (1) the agents informed Monson that he was

neither in custody nor under arrest, see Infante, 701 F.3d at 398

(emphasizing such statements as relevant to conclusion that

suspect was not in custody); (2) Monson was never pat frisked or

physically searched and maintained his cell phone on him throughout

the interrogation, see Swan, 842 F.3d at 33 (suspect's ability to

access her cell-phone during the interrogation weighed against

finding of custody); (3) the interrogation took place in the middle

of the afternoon,8 see Infante, 701 F.3d at 398 (questioning of

suspect "occurred in the late morning and early afternoon, as

opposed to a time that might have appeared more menacing," weighing

in favor of no-custody); and (4) although the law enforcement

representatives were armed, their weapons were holstered and were

8 Monson argues that, because he worked evenings, "the time was effectively an early hour" and we should treat it as such when assessing whether he was in custody. This argument, however, runs directly contrary to our obligation to evaluate the circumstances objectively and "not [based] on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury, 511 U.S. at 323. Objectively, a reasonable person would not consider the early afternoon to constitute an early hour and would not view the decision to conduct the search and interrogation at that time as particularly menacing.

- 23 - not pointed at Monson. See Hughes, 640 F.3d at 435-36 (no custody

where visible weapons remained holstered throughout the

interaction); cf. Crooker, 688 F.3d at 11 (no custody where the

"officers holstered their guns after the entry team cleared the

house and left them holstered throughout the afternoon-long

search").

To be sure, not all of the facts weigh in favor of a

conclusion that the interrogation was not custodial. The record

reflects that the agents made it clear to Monson that he was the

focus of their investigation, and that they never told Monson that

he was free to leave. However, neither of these facts are

determinative, nor do they outweigh the many facts suggesting that

Monson was not in custody. See United States v. Lanni, 951 F.2d

440, 443 (1st Cir. 1991) (holding that the district court did not

commit clear error in finding that the suspect was not in custody

despite fact that officers never told suspect he was free to leave

or terminate the interrogation); Mathiason, 429 U.S. at 494-95

(holding suspect was not in custody despite fact that he was told

he was a suspect in a theft and, falsely, that the officers had

evidence incriminating him).

Accordingly, considering the totality of the

circumstances attending the interrogation, we uphold the district

court's determination that Monson was not in custody, and thus

that a Miranda warning was not required, at the time of his

- 24 - interrogation by Smythe because a reasonable person in Monson's

position would have felt free to terminate the interrogation and

leave.

C. THE SENTENCE

Finally, Monson levies two challenges against the

district court's calculation of his Guidelines sentencing range,

contending that, because of the alleged miscalculation, his

incarcerative sentence of 480 months is procedurally unreasonable.

Because we conclude that any error in calculating the Guidelines

range did not affect the district court's sentencing and thus was

harmless, we affirm the sentence imposed.

i. Because Monson did not raise an objection to either the

Guidelines calculation or to the sentence in the district court,

we review his challenge only for plain error. United States v.

Taylor, 848 F.3d 476, 496 (1st Cir. 2017). To succeed under that

standard, Monson must show "(1) that an error occurred (2) which

was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

- 25 - ii.

"'[F]ailing to calculate (or improperly calculating) the

Guidelines range' is a 'significant procedural error.'" United

States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (alteration in

original) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

That said, in order to succeed on a plain-error challenge to

sentencing, it is the defendant's burden to demonstrate a

reasonable likelihood that, absent the court's error, the district

court would have imposed a more favorable sentence than it did.

See United States v. Marchena-Silvestre, 802 F.3d 196, 200 (1st

Cir. 2015). "In most cases a defendant who has shown that the

district court mistakenly deemed applicable an incorrect, higher

Guidelines range has demonstrated a reasonable probability of a

different outcome." Molina-Martinez v. United States, 578 U.S.

189, 200 (2016). However, "[t]here may be instances when, despite

application of an erroneous Guidelines range, a reasonable

probability of prejudice does not exist" such as when the record

demonstrates "that the district court thought the sentence it chose

was appropriate irrespective of the Guidelines range" or where the

district court's explanation "make[s] it clear that the judge based

the sentence he or she selected on factors independent of the

Guidelines." Id. Accordingly, the government is permitted to

counter the presumption that a Guidelines calculation error was

prejudicial by pointing to a clear statement from the sentencing

- 26 - court providing "an indication that the trial court 'intended to

untether' the sentence from the Guidelines range." Taylor, 848

F.3d at 498 (quoting United States v. Hudson, 823 F.3d 11, 19 (1st

Cir. 2016)).

Monson's procedural challenge to the district court's

calculation of the applicable Guidelines range at sentencing is

two-fold: first, he contends that the district court incorrectly

determined his total offense level due to a grouping error; second,

he argues that the district court incorrectly calculated his

Guidelines sentence due to the court's misapplication of U.S.S.G.

§5G1.1. However, both of these challenges fail for the same

reason: the record demonstrates that the sentence imposed by the

district court was independent of, and based on factors unrelated

to, the Guidelines sentence and that the district court explicitly

stated its intent to uncouple the sentence from the Guidelines by

noting that they were inapplicable in a case such as this. Because

the district court's sentence was not based on a Guidelines range,

any error that the court may have made in calculating that

Guidelines range (through either its determination of Monson's

total offense level or its application of U.S.S.G. §5G1.1) had no

effect. Each of Monson's challenges thus fails on the third prong

of our plain error review, because he cannot demonstrate that he

- 27 - would have received a lesser sentence but for the district court's

alleged errors.

The district court opened Monson's sentencing hearing by

stating "the Court accepts the presentence report guideline

calculation as being accurate" but noted that it "recognized that

the numbers are extraordinarily high and generally inapplicable in

a situation like this because of how the numbers come out." The

court thus clarified that its acceptance of the Guidelines range

was a mere technicality, indicating that its sentencing

determination was independent of that Guidelines calculation. The

court discussed at length the various factors that it considered

in determining an appropriate sentence including the seriousness

of the offense, the impact of the offense on the victims, and

Monson's background (including his lack of prior criminal history,

his military service, his steady record of employment, and his

amenability to rehabilitation). The record thus reflects that it

was these factors, and not the Guidelines calculation (which the

court expressly indicated was inapplicable here) that drove the

court's sentencing determination.

Monson argues that the court nonetheless used the

Guidelines as a starting point to determine his sentence, and thus

its erroneous calculation of the applicable Guidelines range led

to a higher sentence than would have been imposed but for the

errors. In support of this argument, he points to the fact that

- 28 - the court mentioned the higher Guidelines range that was applied

in a different case concerning similar conduct as a means of

differentiating the defendant in that other case from Monson.

However, read in the context of the sentencing hearing as a whole,

we do not view the court's brief mention of that higher Guidelines

range as demonstrating that the court used Monson's Guidelines

range as a starting point in determining an applicable sentence.

The court discussed the other case -- United States v. Deordio,

No. 3:18-cr-30056-MGM (D. Mass. Feb. 4, 2021) -- in response to

the government's recommendation that the court impose the same

sentence on Monson that it had imposed on the defendant in Deordio

(720 months). The court responded to this suggestion by noting

that there was "a much different criminal history between [Monson

and Deordio], much different in life circumstances, and much

different in amenability to rehabilitation, but very different

with respect to prior criminal history." The court then proceeded

to note the different Guidelines ranges in the two cases -- 5,040

months for Deordio compared to 4,080 months for Monson -- while

again explaining that "the use of the Guidelines in these types of

cases . . . falls by the wayside a little." Read in this context,

we construe the district court's mention of the Guidelines ranges

as merely intended to further illustrate that the very different

backgrounds and criminal histories of the two defendants rendered

them differently situated at sentencing. We do not, however, read

- 29 - that reference to the Guidelines as indicating that the court used

either defendant's Guidelines range as a starting point in

determining the applicable sentence for Monson, especially given

that the court repeatedly and explicitly disclaimed the

applicability of the Guidelines to its sentencing determination.

Because we conclude that the sentence imposed by the

district court was not tethered to the Guidelines range, any error

that the district court may have made in calculating that range

did not affect Monson's rights or result in a higher sentence than

would have been imposed in the absence of the alleged errors.

III. CONCLUSION For the foregoing reasons, the convictions and sentence are

affirmed.

- 30 -