United States v. Abreu

106 F.4th 1

UNITED STATES, Appellee, v. Irvin ABREU, Defendant, Appellant.

No. 23-1339

United States Court of Appeals, First Circuit

June 21, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]

Joshua L. Solomon, with whom Pollack Solomon Duffy LLP was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Rikelman, Lynch, and Howard, Circuit Judges.

RIKELMAN, Circuit Judge.

After Irvin Abreu pleaded guilty to one count of sexual exploitation of a child, the district court sentenced him to 315 months in prison. It concluded that Abreu was subject to an enhanced mandatory minimum sentence of 300 months (or twenty-five years) for his federal crime because he had a prior state-law conviction "relating to" sexual abuse or "abusive sexual contact involving a minor or ward." This appeal focuses on the district court's decision to apply that mandatory minimum. In Abreu's view, his prior state-law conviction for enticement of a child under the age of sixteen could not trigger the twenty-five-year minimum for his federal crime. We agree with the district court's ruling that the enhancement does apply and affirm Abreu's sentence.

I. BACKGROUND

A. The Offense¹

In September 2019, Abreu (then thirty-four) began communicating with a twelve-year-old girl, Minor A, on the social media application Snapchat. Abreu steered their conversations toward sex, and the two began sending nude photos to one another. They later met in person on several occasions.

The relationship was revealed when Minor A's mother was out of town, and Minor A was in the care of family friends. When the family friend drove to pick up Minor A from the library, where she was supposed to be studying, Minor A was nowhere to be found and did not arrive at the library until two hours after the planned pick-up time. The family friend alerted Minor A's mother, who returned early from her trip and proceeded to search Minor A's phone. She quickly found the conversations between Minor A and Abreu, including sexually explicit photos and videos of Minor A performing oral sex on Abreu. Minor A then confessed to the relationship, and Minor A's mother reported the abuse to the Lawrence Police. After reviewing the contents of Minor A's phone and briefly interviewing Minor A, the police arrested Abreu and obtained a warrant to search his phone. The search revealed thousands of photos, videos, and text messages between Abreu and Minor A, mostly of a sexual nature, including photos of Abreu and Minor A having sexual intercourse.

At the time of the crime in this case, Abreu was serving a suspended sentence for a conviction in Massachusetts state court. That conviction followed Abreu's arrest in February 2018, after he used Snapchat to send sexually explicit text messages and a photo of his genitals to a fifteen-year-old girl and then showed up at both her school and home. Based on that conduct, Abreu later pleaded guilty to one count of dissemination of harmful matter to a child in violation of Massachusetts General Laws ch. 272, § 28, and one count of enticement of a child under the age of sixteen in violation of Massachusetts General Laws ch. 265, § 26C ("section 26C").

B. Procedural History

On December 5, 2019, Abreu was indicted in this case for one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and (e). Importantly, § 2251(e) provides that a defendant with one prior conviction for certain federal or state crimes will face a mandatory minimum sentence of twenty-five years in prison. Abreu initially pleaded not guilty to sexual exploitation of a child. On November 5, 2021, the government moved for a pre-trial determination of whether Abreu's prior state-law conviction for enticement of a child under the age of sixteen was sufficient to trigger the twenty-five-year mandatory minimum in § 2251(e). Although recognizing it was unusual to resolve a sentencing dispute during pre-trial proceedings, the district court heard the argument and found that Abreu's prior conviction did trigger § 2251(e)'s twenty-five-year mandatory minimum. See United States v. Abreu, 578 F. Supp. 3d 202, 210-211 (D. Mass. 2022). Abreu subsequently changed his plea to guilty, without reaching a plea agreement with the government.

At sentencing, the district court determined that Abreu's total offense level was thirty-five and his criminal history category was V, yielding a U.S. Sentencing Guidelines range ("GSR") of 262 to 327 months. However, after accounting for the twenty-five-year mandatory minimum sentence, the district court considered a GSR of 300 to 327 months. Ultimately, the district court sentenced Abreu to 315 months in prison. Abreu timely appealed, focusing on the district court's decision to apply the enhancement.

II. DISCUSSION

Like the district court, we start by evaluating the critical language in § 2251(e). That provision states:

Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years . . . .

18 U.S.C. § 2251(e) (emphases added).

Section 2251(e) provides for what is known as a sentencing enhancement, and the potential enhancement is triggered by certain previous offenses (also referred to as predicates or predicate offenses). The parties agree that a method called "the categorical approach" applies when determining whether Abreu's prior conviction triggered the § 2251(e) sentencing enhancement. For the limited purpose of resolving this appeal, we accept the parties' position. We review de novo whether the district court correctly applied the categorical approach here and conclude that it did. See United States v. Mohamed, 920 F.3d 94, 99 (1st Cir. 2019).

Our previous decisions have laid out the details of the categorical approach, see, e.g., United States v. Starks, 861 F.3d 306, 315-17 (1st Cir. 2017), so we only briefly reiterate the basics of this method. Under the traditional categorical approach, we first examine the sentencing enhancement provision at issue (here § 2251(e)) and identify the crimes that would be sufficient to trigger the enhancement. United States v. Crocco, 15 F.4th 20, 21-22 (1st Cir. 2021) (citing Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Next, we compare the "generic" versions of those crimes, meaning the crimes as "commonly understood," to Abreu's prior conviction. Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). We conduct this comparison in a "categoric" manner, without looking at the specific facts of Abreu's prior offense, by comparing the elements of the generic crimes in § 2251(e) with the elements of the state child-enticement statute under which Abreu was convicted. See id. Abreu's prior offense can trigger the enhancement if his statute of conviction (1) has the same elements as a generic crime discussed in § 2251(e), or (2) "defines the crime more narrowly" than the generic crime in § 2251(e). Id. at 261, 133 S.Ct. 2276. Thus, Abreu's 2018 conviction for child enticement will trigger the enhancement "only if every possible violation of [the Massachusetts child-enticement statute] (putting aside truly outlandish hypotheticals) fits within" one of the generic crimes listed in § 2251(e). Crocco, 15 F.4th at 22. However, if the Massachusetts child-enticement statute "sweeps more broadly than the generic crime[s]" in § 2251(e), Abreu's prior conviction cannot serve as a basis for enhancement "even if [Abreu] actually committed the offense in its generic form." Descamps, 570 U.S. at 261, 133 S.Ct. 2276.

A "variant" of the above analysis -- the "modified categorical approach" -- applies when a defendant's prior offense is part of a "divisible" statute. Id. at 257, 133 S.Ct. 2276. A divisible statute defines multiple potential crimes. Mathis v. United States, 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). It "sets out one or more elements of the offense in the alternative -- for example, stating that burglary involves entry into a building or an automobile." United States v. Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015) (quoting Descamps, 570 U.S. at 257, 133 S.Ct. 2276). By "list[ing] elements in the alternative," divisible statutes "define multiple crimes," Mathis, 579 U.S. at 505, 136 S.Ct. 2243, so burglarizing a building would be understood as a different crime than burglarizing an automobile, Serrano-Mercado, 784 F.3d at 843. However, "[n]ot all crimes that can be committed in multiple different ways are divisible"; instead, some statutes list various ways or means of committing a single crime. Starks, 861 F.3d at 316. For instance, if a statute criminalized assault with a "deadly weapon" and specified that a "knife, gun, bat, or similar weapon" were all examples of a "deadly weapon," using these different weapons would create alternative means of accomplishing the same crime, not alternative crimes. Mathis, 579 U.S. at 506, 136 S.Ct. 2243 (first citing Descamps, 570 U.S. at 271, 133 S.Ct. 2276; and then citing Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)).

Under the modified categorical approach, we...