United States Court of Appeals
                           For the Eighth Circuit
                     ______________________________

                               No. 16-2355
                     ______________________________

                           United States of America

                                      Plaintiff - Appellee

                                      v.

                            Daniel Morris Johnson

                                     Defendant - Appellant
                                ____________

                   Appeal from United States District Court
                    for the District of Minnesota - St. Paul
                                ____________

                        Submitted: November 18, 2016
                           Filed: February 17, 2017
                                ____________

Before BENTON and SHEPHERD, Circuit Judges, and EBINGER,1 District Judge.

                                ____________

EBINGER, District Judge.




      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa, sitting by designation.
       Daniel Johnson was charged with production of child pornography in violation
of 18 U.S.C. § 2251(a) and 2251(e). Johnson filed a motion to suppress evidence
obtained during a search of his residence, alleging the affidavit supporting the
warrant lacked probable cause because the information was stale and lacked a nexus
to his residence. The district court2 adopted the magistrate judge’s report and
recommendation denying Johnson’s motion to suppress. Johnson was found guilty
after a bench trial.

      At sentencing, Johnson argued his prior conviction—criminal sexual conduct
in the fifth degree in violation of Minnesota law—should not be considered a
predicate offense used to enhance his sentence. The district court applied the
enhancement and sentenced Johnson to 354 months’ imprisonment. On appeal,
Johnson argues the district court erred in denying his suppression motion and in
applying the sentencing enhancement based on his prior Minnesota conviction. We
affirm.

                                  I. Background

        Between 2009 and August 2010, Johnson was involved in a romantic
relationship with K.J., an adult female. During that time, three children lived with
K.J. in her home in Montevideo, Chippewa County, Minnesota, including her fifteen-
year-old daughter, identified here as Jane Doe. In September 2010, Jane Doe wrote
a letter to her mother disclosing Johnson sexually abused her on multiple occasions.
K.J. delivered the letter to the Chippewa County Sheriff’s Office.




      2
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, adopting the report and recommendation of the Honorable
Tony N. Leung, United States Magistrate Judge for the District of Minnesota.

                                        -2-
       On November 4, 2010, Chippewa County Sheriff’s Deputy Brian Hanson and
two victim advocates interviewed Jane Doe. Jane Doe disclosed repeated sexual
abuse by Johnson, including at least four instances of sexual intercourse and one
incident when Johnson took pictures of her during a sexual assault. After the
interview, Deputy Hanson prepared an application for a search warrant for Johnson’s
residence in Woodbury, Washington County, Minnesota, where Johnson was living
with his mother. The warrant sought evidence of sexual abuse, including “explicit
pictures or any pictures of” Jane Doe on “[c]omputers, [c]omputer [d]isks, thumb
drives,[ ]computer hardware[, c]ameras, [or c]ell [p]hones.”

       As recounted in the affidavit supporting the search warrant, Jane Doe told
Deputy Hanson that Johnson first sexually assaulted her approximately two weeks
before Christmas in 2009. Jane Doe came home from school and Johnson was the
only other person home. Johnson told Jane Doe “a friend had bought her a cell phone
and that she could not see it or have it[ ]unless [Johnson] got to see her naked.” Jane
Doe eventually acquiesced. She reported during the first assault Johnson “put his
fingers in her vagina.” She also stated Johnson took pictures of her naked and
“downloaded them on to his computer . . . at [Johnson’s] mom’s house in Woodbury.”
Jane Doe said Johnson “always downloaded all of his pictures on the computers at his
mom’s house in Woodbury” and “he would go there at least once a week.” Jane Doe
also disclosed Johnson had sexual intercourse with her on at least four occasions. The
affidavit states Jane Doe said the sexual abuse stopped after Johnson’s arrest in
February.3

      On November 10, 2010, a Minnesota state court judge signed the search
warrant for the Woodbury residence Johnson shared with his mother. Deputy Hanson
executed the warrant with the assistance of the Washington County Sheriff’s Office.


      3
        At trial, the evidence indicated Johnson was arrested in February 2010 for
failure to register as a sex offender in Chippewa County and pleaded guilty.

                                          -3-
During the search, officers found Johnson in a locked room in the basement and
arrested him. Officers seized sixteen computer towers and hard drives in addition to
USB storage devices and two digital cameras. On one of the hard drives officers
located a webcam video showing Johnson sexually assaulting Jane Doe.4

       Johnson was charged with one count of production of child pornography in
violation of 18 U.S.C. § 2251(a) and 2251(e). Johnson moved to suppress the webcam
video. After a hearing on the motion to suppress, the magistrate judge recommended
Johnson’s suppression motion be denied. The district court adopted the magistrate
judge’s report and recommendation.

       On April 14, 2015, Johnson proceeded to a bench trial. He stipulated that Jane
Doe was under 18 years old at the time the video was made and that the computer
equipment traveled in interstate commerce. Johnson did not stipulate to knowingly
producing the video of the sexual assault, asserting he did not know the webcam was
on or recording because the webcam was motion-activated. The district court found
Johnson guilty of production of child pornography.

       At sentencing, Johnson objected to the use of his prior conviction to enhance
the mandatory minimum and statutory maximum penalties applicable to his offense.
Johnson argued his conviction for criminal sexual conduct in the fifth degree in
violation of Minnesota Statute section 609.3451 is not a predicate offense under 18
U.S.C. § 2251(e). Johnson argued the statute is overinclusive because the offense is
not necessarily committed for sexual gratification. The district court overruled
Johnson’s objection, resulting in a 25-year mandatory minimum and a 50-year
statutory maximum. The Government sought the 50-year maximum sentence. The
court sentenced Johnson to 354 months’ imprisonment. The district court remarked


      4
       A second search warrant, not at issue here, was obtained prior to the search of
the computer equipment.

                                         -4-
he “would be imposing under . . . these 3553(a) factors, exactly the same sentence”
regardless of the predicate offense enhancement.

                                    II. Discussion

                               A. Motion to Suppress

      On appeal, Johnson argues the district court erred in denying his motion to
suppress the evidence obtained during the search of his Woodbury residence. Johnson
argues there was not probable cause supporting the search warrant application
because: 1) it set forth stale evidence; and 2) it lacked a nexus with his Woodbury
residence.

      “We review the district court’s factual determinations in support of its denial
of a motion to suppress for clear error and its legal conclusions de novo.” United
States v. Johnson, 

, 872 (8th Cir. 2010) (quoting United States v.
Harper, 

, 643 (8th Cir. 2006)). Reversal of a decision to deny a motion
to suppress is warranted “only if the district court’s decision ‘is unsupported by
substantial evidence, based on an erroneous interpretation of applicable law, or, based
on the entire record, it is clear a mistake was made.’” 

, 466 F.3d
at 643).

       The role of a reviewing court is to ensure the magistrate issuing the warrant
“had a ‘substantial basis for concluding that probable cause existed.’” United States
v. Colbert, 

, 726 (8th Cir. 2016) (quoting United States v.
Garcia–Hernandez, 

, 771 (8th Cir. 2012)); accord Illinois v. Gates, 

, 238–39 (1983). “Probable cause exists, if under the totality of the
circumstances, a showing of facts can be made ‘sufficient to create a fair probability
that evidence of a crime will be found in the place to be searched.’” United States v.
Wallace, 

, 732 (8th Cir. 2008) (per curiam) (quoting United States v.

                                          -5-
Underwood, 

, 963 (8th Cir. 2004), vacated on other grounds sub nom.
Carpenter v. United States, 

(2005)); accord 

.
The issuing court’s probable cause determination “should be paid great deference by
reviewing courts.” United States v. Brewer, 

, 1170 (8th Cir. 2009)
(quoting United States v. Hansel, 

, 845 (8th Cir. 2008)).

                                     1. Staleness

        We first examine Johnson’s contention that the warrant was obtained based on
stale information. “A warrant becomes stale if the information supporting the warrant
is not ‘sufficiently close in time to the issuance of the warrant and the subsequent
search conducted so that probable cause can be said to exist as of the time of the
search.’” 

(quoting 

). The specific
context and nature of the warrant must be examined for each case; “[t]here is no
bright-line test for determining when information in a warrant is stale.” United States
v. Lemon, 

, 614 (8th Cir. 2010) (quoting United States v. Pruneda, 

, 604 (8th Cir. 2008)). “Important factors to consider in determining whether
probable cause has dissipated . . . include the lapse of time since the warrant was
issued, the nature of the criminal activity, and the kind of property subject to the
search.” 

(omission in original) (quoting 

). A “lapse of time is least important when the suspected criminal activity is
continuing in nature and when the property is not likely to be destroyed or
dissipated.” 

(quoting United States v. Horn, 

,
786 (8th Cir. 1999)).

       We conclude the information used to establish probable cause was not stale.
As the district court noted in denying Johnson’s motion to suppress, “[t]he affidavit
alleges a number of very detailed occurrences of sexual assault against a minor over
a period of time” with “specific details regarding photographs.” The search warrant
was issued approximately eleven months after Johnson took the pictures, nine months

                                          -6-
after the last sexual assault, and at most three months after Jane Doe told her mother
about the sexual assaults. Given the nature of the crime and type of evidence sought,
the execution of the warrant in November 2010 did not render the warrant deficient
based on stale information. See 

(holding the evidence demonstrated
probable cause for a search warrant despite the eighteen-month gap between the
defendant’s last exchange of child pornography and the application for the warrant);
United States v. Morales–Aldahondo, 

, 119 (1st Cir. 2008) (holding the
warrant’s information was not stale where there was a three-year lapse between the
defendant’s purchase of child pornography and the warrant application).

       Johnson urges this Court to rely upon the Third Circuit’s reasoning in United
States v. Zimmerman to reach a contrary conclusion. 

(3d Cir. 2002). At
issue in Zimmerman was a search warrant for the home of a high school teacher and
coach. 

The affidavit supporting the warrant “recounted various
incidents in which [the defendant] allegedly sexually accosted students at the high
school or on athletic road trips, with only brief mention made of [adult]
pornography.” 

The Zimmerman court found the warrant lacked probable
cause to search the defendant’s home for child pornography because the affidavit did
“not even allege much less demonstrate that [the defendant] was engaged in a
‘continuing offense’ of acquiring pornography and keeping it in his home.” 

The court emphasized the warrant did not indicate the defendant “ever possessed
child pornography” and the information about adult pornography was stale because
the pornography was viewed six months prior via the Internet. 

      Zimmerman is inapposite. In Zimmerman there was no evidence the defendant
possessed child pornography, and there was no connection between the victim and
the pornography or the evidence sought. In contrast, this search warrant sought
evidence of sexual abuse, including naked photographs Johnson took of Jane Doe
during a sexual assault. The affidavit stated Johnson downloaded the photographs of
Jane Doe onto a computer at his mother’s residence in Woodbury—the location of the

                                         -7-
intended search. Cf. 

The affidavit supporting the search warrant also
detailed Johnson’s sexual assaults of Jane Doe over several months, including sexual
intercourse. These facts established a link between Johnson and Jane Doe, and the
photographs sought. Unlike in Zimmerman, where there was no evidence the issuing
court could rely upon to presume the defendant retained any relevant images (let
alone any child pornography), here the issuing court could reasonably rely upon the
presumption that Johnson would retain images of evidentiary value (including child
pornography) in finding probable cause supported the warrant. See United States v.
Summage, 

, 1078 (8th Cir. 2007) (presuming the defendant “would
maintain in his possession the video and photographs that he made of the sexual
encounter”); see also 

(“Possession of child pornography is
a crime that is continuing in nature . . . .”). Thus, the warrant, issued eleven months
after Johnson took the naked photographs of Jane Doe, was not based upon stale
information.

                                       2. Nexus

      We next turn to the issue of the nexus between the sexual assaults in
Montevideo and the search of Johnson’s residence in Woodbury. In order to support
an application for a search warrant, “[t]here must be evidence of a nexus between the
contraband and the place to be searched.” 

(quoting United
States v. Tellez, 

, 550 (8th Cir. 2000)). Factors to consider in
determining if a nexus exists include “the nature of the crime and the reasonable,
logical likelihood of finding useful evidence.” 

States v. Etheridge,

, 657 (8th Cir. 1999)). Johnson contends the affidavit lacked reliable
information to sufficiently bolster or corroborate Jane Doe’s knowledge about
Johnson’s Woodbury residence.

    We conclude the information in the affidavit established a search of Johnson’s
Woodbury residence would likely result in discovery of evidence of sexual assault.

                                          -8-
The affidavit supporting the search warrant included information specifically tying
the sexual assault with evidence at the Woodbury residence Johnson shared with his
mother. Jane Doe said Johnson took nude pictures of her during the first sexual
assault. She said Johnson “downloaded the pictures [of her naked] on his computer
that he has at his mom’s house in Woodbury.” The affidavit states Johnson “always
downloaded all his pictures on the computers at his mom’s house in Woodbury” and
returned to Woodbury “at least once a week.” These facts provided a substantial basis
for the issuing court’s conclusion there was a reasonable likelihood evidence of
Johnson’s sexual assault of Jane Doe would be found in Johnson’s Woodbury
residence. Therefore, we hold the district court did not err in denying Johnson’s
motion to suppress.

        Even if the affidavit was insufficient to establish probable cause, the Leon
good-faith exception prevents suppression of the seized evidence. See United States
v. Leon, 

(1984). The evidence is admissible alternatively under the Leon
good-faith exception because “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. Hudspeth, 

,
676 (8th Cir. 2008) (quoting United States v. Grant, 

, 632 (8th Cir.
2007)). “In assessing whether the officer relied in good faith on the validity of a
warrant, we consider the totality of the circumstances, including any information
known to the officer but not included in the affidavit . . . .” 

.
“It is the magistrate, and not the affiant, that is responsible for” determining whether
probable cause exists. 

–78.

       At the time he requested the warrant, Deputy Hanson was aware Johnson was
a registered sex offender. Deputy Hanson knew Johnson was required to register as
a sex offender for the underlying offense of criminal sexual conduct in the fifth
degree. He knew Johnson was arrested in February 2010 for failure to register as a
sex offender. Deputy Hanson knew Johnson lived with K.J., Jane Does’s mother,

                                          -9-
during the time Jane Doe alleged Johnson sexually abused her. Deputy Hanson also
knew Johnson occasionally resided with his mother in Woodbury, Minnesota. Based
on these additional facts, along with those contained in the warrant affidavit, it was
reasonable for Deputy Hanson to have relied in good faith on the judge’s
determination there was probable cause to issue the warrant. See 

. Moreover, there is no reason not to apply the good-faith exception. See United
States v. Jackson, 

, 1231 (8th Cir. 2015) (listing “four situations when
the good-faith exception would not apply”). Therefore, even if probable cause was
lacking, the district court’s order denying Johnson’s motion to suppress would be
affirmed.

                        B. Predicate Offense Enhancement

      Johnson’s presentence investigation report recommended his sentence be
enhanced pursuant to § 2251(e) based on his prior conviction for criminal sexual
conduct in the fifth degree. The district court agreed and applied the enhancement
despite Johnson’s objection. The court sentenced Johnson to 354 months’
imprisonment.

       “We review de novo the district court’s use of prior convictions for sentencing
enhancement purposes.” United States v. Lockwood, 

, 827 (8th Cir.
2006). Section 2251 criminalizes the production of child pornography. It provides for
a minimum sentence of 15 years (180 months) and a maximum sentence of 30 years
(360 months). 18 U.S.C. § 2251(e). The minimum and maximum penalties are
enhanced when the defendant has one prior state conviction “relating to aggravated
sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward.” 

sentence becomes 25 years (300 months) and the maximum sentence
becomes 50 years (600 months). 

§ 2251(e) is inapplicable because
his prior conviction does not relate to the sexual abuse of a minor.



                                        -10-
       We need not reach the issue of whether the district court properly enhanced
Johnson’s sentence based on his prior Minnesota conviction because any error in
applying the enhancement was harmless. Under Federal Rule of Criminal Procedure
52(a), “[a]ny error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” The burden is on the government to prove an error was
harmless. See United States v. Bah, 

, 430 (8th Cir. 2006). The
government may meet its burden by showing the district court “specifically
contemplated the possible error” and itself engaged in contemplation about “the
potential impact of the specific error involved.” United States v. Henson, 

, 741–42 (8th Cir. 2008) (considering a procedural error).

       In this case, we conclude the Government met its burden to show any error by
the district court in applying the sentencing enhancement was harmless. The district
court’s 354-month sentence is less than the unenhanced statutory maximum (360
months) and within the enhanced statutory sentencing range (300 to 600 months). See
18 U.S.C. § 2251(e). The sentencing-hearing transcript demonstrates the district court
“specifically contemplated” an error in applying the enhancement. 

. The district court stated it would have imposed the same sentence regardless
of whether Johnson’s prior Minnesota conviction qualified as a predicate offense
under § 2251(e). The district court said “anything less than [the sentence the Court
imposed] would not promote sufficient respect for the law.” The district court
determined the consequences of an error, if any, would not impact the sentence
imposed; any purported error was harmless. We affirm the district court’s imposition
of a 354-month sentence.

                                   III. Conclusion

      The judgment of the district court is affirmed.
                     ______________________________



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