No. 21-3091 ___________________________

United States of America

Plaintiff - Appellee

v.

Kyle Garrett Soto

Defendant - Appellant ____________

Appeal from United States District Court for the District of South Dakota - Western ____________

Submitted: December 16, 2022 Filed: January 24, 2023 ____________ Before LOKEN, ERICKSON, and KOBES, Circuit Judges. ____________ ERICKSON, Circuit Judge.

A jury convicted Kyle Soto of 15 child pornography-related offenses. On appeal, Soto argues his possession and receipt of child pornography convictions violate the Double Jeopardy Clause and he contends his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000). Soto raises an additional argument in a pro se supplemental brief, challenging the sufficiency of the evidence for his convictions.1 We hold that Apprendi requires the resentencing of Soto for the possession of child pornography conviction. In all other respects, we affirm the district court’s judgment. I. BACKGROUND

In early 2018 the Federal Bureau of Investigation received a complaint that an unknown suspect, later identified as Kyle Soto, was soliciting child pornography from W.S., an 11-year-old boy. The FBI referred the matter to the Rhode Island Internet Crimes Against Children task force (“ICAC”). Detective John Nappi of the Rhode Island ICAC learned from W.S.’s guardian that Soto had offered to send W.S. money in exchange for sexually explicit videos of W.S. Soto communicated with W.S. using the email address shane118@gmail.com (the “Shane118 Account”). W.S. had already sent Soto a photograph of his genitalia. When W.S. failed to provide additional material, Soto threatened to share this photograph with W.S.’s mother. Detective Joseph Lavallee of the Rhode Island ICAC assumed W.S.’s online account and identity. Soto offered Detective Lavallee––acting as W.S.––a gift card in exchange for more sexually explicit photos, and when Detective Lavallee failed to provide material, Soto threatened to post sexually explicit material of W.S. online.

Detective Lavallee obtained a search warrant for the Shane118 Account and found numerous videos depicting child pornography. Law enforcement connected the IP Address associated with the Shane118 Account to Soto’s address in Rapid City, South Dakota, where he lived with his children and then-wife. Officers executed a search warrant at the premises and collected various electronic devices, including a Dell desktop computer (the “Dell Computer”). Officers also seized a cell phone (the “G930A Phone”) from Soto’s person.

1 Although “we typically do not consider pro se submissions when an appellant is represented by counsel,” United States v. Cheney, 571 F.3d 764, 767 n.3 (8th Cir. 2009), we granted Soto leave to file a supplemental brief. -2- Investigation revealed that Soto had, under various pseudonyms, used the internet to communicate with and receive sexually explicit material from several minors. Soto used the Shane118 Account to engage in similar tactics as he had with W.S. and receive sexually explicit material from: (1) K.A., a minor female who informed Soto she was 15 years old; (2) N.W. and A.C., minor females who informed Soto they were 13 years old; and (3) A.R., a minor female who informed Soto she was “not 18.” Soto also conducted a video chat with “Star Pants,” a minor female who engaged in sexual activity while chatting with Soto. Soto saved material depicting each victim in a Google Drive account