United States v. Procell

31 F.4th 32

UNITED STATES of America, Appellee,

v.Logan PROCELL, Defendant, Appellant.

No. 19-1924

United States Court of Appeals, First Circuit.

April 12, 2022

Elizabeth A. Billowitz on brief for appellant.

Andrew E. Lelling, United States Attorney, and Anne Paruti, Assistant United States Attorney, on brief for appellee.

Before Lynch, Lipez, and Thompson, Circuit Judges.

LIPEZ, Circuit Judge.

Logan Procell, a former Louisiana high school teacher, pleaded guilty to crimes arising from his sexually explicit virtual contact with an eleven-year-old in Massachusetts and was sentenced to a term of 135 months' imprisonment. Procell appeals his sentence on three grounds, arguing that the district court erred by (1) improperly applying a two-level sentence enhancement for use of a computer; (2) improperly applying a $5,000 mandatory assessment; and (3) sentencing him to a term in excess of the statutory maximum on one of the counts. We affirm.

I.

A. Factual Background¹

While working as a high school teacher in Louisiana, Procell saw a video posted by an eleven-year-old Massachusetts girl ("Minor A") who was using an internet application that allows users to stream live videos of themselves. Procell then became Minor A's "friend" through another application that allows users to share self-destructing text, photo, and video content. He eventually made direct contact with Minor A via text messaging. In September 2017, Minor A's mother alerted law enforcement upon discovering sexually explicit textual and visual content in text messages stored on Minor A's tablet, all part of an exchange of messages with a phone number that local and federal law enforcement agents determined to be Procell's.

Law enforcement authorities ultimately discovered a cache of over 1,600 text messages exchanged between Procell and Minor A over a five-week period. These messages included, inter alia, Procell's requests that Minor A send him nude pictures of herself, explicit pictures of his own body, and logistical discussions of how he might be able to visit her when her mother would not be present so that they could engage in sexual activity. In the course of his communication with Minor A, Procell acknowledged the illegality of his conduct, stating that he was "taking advantage" of Minor A and that his sexual interest in her "makes [him] a pedophile," and instructing Minor A not to tell anyone about the explicit pictures exchanged between them or he would "get in SERIOUS trouble."

B. Procedural Background

Procell was charged in a two-count indictment with coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b) (Count One), and transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470 (Count Two). He pleaded guilty to both counts. In the Presentence Investigation Report ("PSR") prepared by the Probation Office, Procell was assigned a base offense level of 28. The PSR then applied three sentencing enhancements. First, pursuant to U.S.S.G. § 2G1.3(b)(2)(B), two points were added to Procell's offense level because he had unduly influenced Minor A to engage in prohibited sexual contact. Second, two points were added because his conduct involved the use of a computer to "persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct." U.S.S.G. § 2G1.3(b)(3)(A). Third, eight points were added because Minor A was under the age of twelve at the time of the offense. See U.S.S.G. § 2G1.3(b)(5). After applying a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, the PSR calculated a Total Offense Level ("TOL") of 37. As Procell had no criminal history, the resulting advisory guideline sentencing range ("GSR") was 210 to 262 months' imprisonment, with a mandatory minimum of 120 months' incarceration on Count One, pursuant to 18 U.S.C. § 2422(b). Neither party objected to the PSR's calculation, either in writing or at the subsequent sentencing hearing. In advance of sentencing, the government recommended a sentence at the low end of the guideline range, and Procell asked to be sentenced to the mandatory minimum term of imprisonment.

At the sentencing hearing, the district court imposed a term of 135 months' imprisonment on Count One -- specifying that such sentence was above the mandatory minimum but below the guideline range -- and a term of 120 months on Count Two, the statutory maximum, see 18 U.S.C. § 1470, with the two terms to be served concurrently. The court also sentenced Procell to concurrent terms of five and three years' supervised release, respectively, on each count. Upon submission of further briefing by the parties and two additional hearings, the district court imposed restitution in the amount of $55,439.58. The court also imposed a $5,000 special assessment, finding that the assessment was mandatory under 18 U.S.C. § 3014 because Procell, with his future earning potential, was not indigent. Although Procell objected to the special assessment, he did not otherwise object to the sentence imposed.

II.

On appeal, Procell challenges three aspects of his sentence. First, he asserts that the two-point enhancement for the use of a computer was improperly applied and that, accordingly, his TOL should have been 35 rather than 37 -- which would have resulted in a lower GSR. Second, he contends that the district court incorrectly assessed his future earning potential and thus improperly imposed the $5,000 mandatory assessment. Third, he argues that his sentence on Count Two was actually in excess of the statutory maximum.

These claims target the procedural reasonableness of Procell's sentence. See United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (noting that procedural sentencing errors include improperly calculating the Guidelines range and "selecting a sentence based on clearly erroneous facts" (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) )). Review for procedural reasonableness "is multi-faceted. Within it, we review factual findings for clear error, arguments that the sentencing court erred in interpreting or applying the guidelines de novo, and judgment calls for abuse of discretion[.]" United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012) (citations omitted).

However, if the appellant failed to raise a claim of sentencing error in the district court, we review that issue for plain error. See United States v. Arsenault, 833 F.3d 24, 28 (1st Cir. 2016). To demonstrate plain error, the appellant must show that (1) the district court erred, (2) the error was clear or obvious,² (3) the error affected the substantial rights of the defendant, and (4) the error "seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

A. Enhancement for Use of a Computer

Procell argues for the first time on appeal that the district court erroneously applied the two-level sentencing enhancement for use of a computer pursuant to U.S.S.G. § 2G1.3(b)(3)(A). We therefore review this claim for plain error.

Guidelines section 2G1.3(b)(3)(A) states that a two-level enhancement should be applied to the offense level for specified sexual offenses if

the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct[.]

The PSR applied this enhancement based on Procell's communications via computer with Minor A, including sending her images of his own genitalia "in an effort to coerce Minor A to send a similar photograph."

Procell, however, reads the guideline to apply only when the defendant's computer use is connected to travel of the minor. In other words, he maintains that all of the specified computer uses -- i.e., to "persuade, induce, entice, coerce, or facilitate" -- refer solely to influencing or assisting the minor to "travel ... to engage in prohibited sexual conduct." He thus argues that, because there was no finding that he used a computer to influence or assist Minor A to travel, the enhancement should not have been applied to him.

Although we have not previously construed U.S.S.G. § 2G1.3(b)(3)(A), we readily conclude that Procell's interpretation is untenable. In asserting that the phrase "the travel of" should be viewed as the object of the verbs "persuade, induce, entice, coerce, or facilitate," Procell ignores the comma that separates the phrase "facilitate the travel of" from the latter part of the sentence referring to the minor and "prohibited sexual conduct." Rather than setting forth a series of separate activities all related to the minor's potential travel -- i.e., persuading, inducing, enticing, coercing, and facilitating that travel -- the guideline, through placement of the comma following "or facilitate the travel of," plainly includes "facilitat[ing] ... travel" as one of five alternative means by which the use of a computer to engage a minor in prohibited sexual contact will trigger the enhancement. As the Second Circuit has observed, "[t]he comma after ‘of’ makes clear that ‘the travel of’ is not the object of all of the preceding verbs." United States v. Watkins, 667 F.3d 254, 262 (2d Cir. 2012).

The meaning derived from the provision's punctuation is reinforced by its semantics. As the Watkins court observed, "it is linguistically awkward (at best) to refer to ‘the use of a computer ... to ... persuade ... the travel of [a] minor to engage in prohibited sexual conduct.’ A person does not ‘persuade’ travel." Id. The language does flow properly, however, if it is read to apply the enhancement when a defendant uses a computer to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct, or uses a computer to facilitate the travel of a minor for that purpose.

Furthermore, we note that the underlying statute, 18 U.S.C. § 2422, has two subsections, both of which...