PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4557

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AUGUSTIN DANTE EZEQUIEL ARCE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:18-cr-00121-AWA-LRL-1)

Argued: March 8, 2022 Decided: September 8, 2022

Before AGEE and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge Richardson wrote the opinion, in which Judge Agee and Senior Judge Floyd joined.

ARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. Daniel Patrick Shean, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. USCA4 Appeal: 20-4557 Doc: 47 Filed: 09/08/2022 Pg: 2 of 25

RICHARDSON, Circuit Judge:

After confessing and consenting to the search of his cellphone, Augustin Arce was

convicted at a bench trial of receiving and possessing child pornography found on his

phone. 1 He appeals, making six arguments.

He first argues that his confession was obtained in violation of his Miranda rights

because he was in custody when questioned. Second, he argues that introducing a report

detailing items downloaded from his phone violated his Sixth Amendment right to confront

witnesses because the report included testimonial statements that certain images were

likely child pornography. Third, he argues that evidence of other child-pornography

downloads associated with him—and testimony about this evidence—should not have been

admitted as improper character evidence. Fourth, he argues that testimony from Detective

Simpson offered improper lay-opinion testimony matching thumbnail photos to videos.

Fifth, he claims that the district court wrongly ordered restitution to a child-pornography

victim. And finally, he claims that the district court erroneously imposed certain

supervised release conditions, including a lifetime ban on internet and computer usage.

1 In this opinion, we use the conventional phrase “child pornography” to describe the sexually explicit images of children. See 18 U.S.C. §2256(8). We do so even though “child-sexual-abuse images” might be more accurate. Cf. Paroline v. United States, 572 U.S. 434, 440 (2014) (noting that the production of child pornography “involves child abuse” and that child pornography is a permanent record of “the depicted child’s abuse”). Our use of the more common phrase, child pornography, should not be taken to obscure the fact that many of Arce’s images reflect the brutal sexual abuse of very young children. See J.A. 1038 (describing images as prepubescent males and females engaged in sexually explicit conduct, including sadistic and masochistic conduct along with bestiality). 2 USCA4 Appeal: 20-4557 Doc: 47 Filed: 09/08/2022 Pg: 3 of 25

The totality of the circumstances of Arce’s questioning show Arce was not in

custody, so his Miranda rights were not violated. Although admitting the cellpho