United States v. Trahan – CourtListener.com

          United States Court of Appeals
For the First Circuit
No. 22-1390
UNITED STATES,
Appellee,
v.
SEAN J. TRAHAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. George A. O'Toole, Jr., U.S. District Judge)
Before
Montecalvo, Selya, and Lynch,
Circuit Judges.
William W. Fick, with whom Fick & Marx LLP was on brief, for
appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Joshua S. Levy, Acting United States Attorney, was on
brief, for appellee.
August 8, 2024
MONTECALVO,      Circuit     Judge.       In    October        2021,
defendant-appellant Sean J. Trahan pleaded guilty to possession
and knowing access with intent to view child pornography, both in
violation of 18 U.S.C. § 2252A(a)(5)(B).            The district court later
sentenced      Trahan    to   126    months'   imprisonment   --    applying     a
sentencing enhancement based on Trahan's prior state conviction
for possession of "visual material of child depicted in sexual
conduct" that the court determined required the imposition of a
ten-year mandatory minimum under § 2252A(b)(2).1                On appeal from
his sentence, Trahan insists that his state conviction should not
have       triggered    the   ten-year    mandatory   minimum      because    the
enhancement       provision     of    § 2252A(b)(2)    cannot      cover     state
1We note that the terminology used across the states to
describe "child pornography" is wide-ranging and many states have
opted to use terms other than "child pornography."       See, e.g.,

Utah Code Ann. § 76

-5b-201(2) (criminalizing possession of "child
sexual abuse material"); Ala. Code § 13A-12-191 (criminalizing
"(d)issemination or public display of obscene matter containing
visual depiction of persons under 17 years of age involved in
obscene acts"); 

Alaska Stat. Ann. § 11.61.127

 (criminalizing
"(p)ossession of child pornography"); 

Ariz. Rev. Stat. Ann.
§ 13-3553

 (criminalizing possession of "visual depiction" of
"sexual exploitation of a minor"); 

Ark. Code Ann. § 5-27-304

(criminalizing possession of images "depicting sexually explicit
conduct    involving  a   child");    

Cal. Penal Code § 311.1

(criminalizing possession of "(o)bscene matter depicting sexual
conduct by minor"); cf. EARN IT Act of 2023, S. 1207, 118th Cong.
§ 6 (2023) (proposing that federal statutes replace the term "child
pornography" with "child sexual abuse material," while retaining
"the same legal meaning"). Here, we do not attempt to reconcile
these many terms and, for clarity's sake, use, as appropriate, the
terminology that Congress and the Massachusetts legislature have
adopted.
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convictions under statutes that criminalize more conduct than
§ 2252A(b)(2) enumerates.
Trahan also mounts an Alleyne challenge to the district
court's imposition of a consecutive six-month sentence pursuant to

18 USC§ 3147

 for an offense he committed while on pretrial
release. See Alleyne v. United States, 

570 VS 99

 (2013).                  Trahan
argues that, because of the application of the § 2252A(b)(2)
mandatory minimum, the additional consecutive sentence based on an
uncharged violation violated the Sixth Amendment.                For the reasons
that follow, we reject Trahan's arguments and affirm the sentence.
I. Background
As this appeal follows a guilty plea, our recitation of
the    facts    is    derived     from   "the    undisputed    sections     of   the
presentence investigation report (('PSR')) and the transcripts of
the change-of-plea and sentencing hearings."                   United States v.
Spinks, 

63 F.4e 95

, 97 (1st Cir. 2023) (cleaned up) (quoting
United States v. Ubiles-Rosario, 

867 F.3d 277

, 280 n.2 (1st Cir.
2017)).
In 2015, the Federal Bureau of Investigation ("FBI")
initiated Operation Pacifier, a nationwide investigation targeting
online access to images of minors engaged in "sexually explicit
conduct."       

18 USC§ 2256

(8).         As part of that investigation,
the FBI identified an internet protocol ("IP") address associated
with    Trahan       that   had   been   used    to   access   over   400   online
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conversations with links to child pornography.                The FBI executed
a search warrant of the home linked to the IP address and found a
computer, which Trahan admitted having exclusive access to and
which contained "approximately ten images of child pornography."
Following the search, FBI agents arrested Trahan.
On October 27, 2020, a grand jury indicted Trahan on one
count of possession of child pornography (count I) and one count
of knowing access with intent to view child pornography (count
II),       both    in   violation   of   18   U.S.C.   § 2252A(a)(5)(B).2   In
November, Trahan pleaded not guilty and was released with pretrial
conditions.
On September 8, 2021, following up on information from
an out-of-state sheriff's office regarding an online chat group
that contained child pornography, the FBI executed another search
warrant of Trahan's house.           This search yielded a tablet computer,
which Trahan's pretrial conditions prohibited him from possessing.
A search of the tablet revealed online conversations in which
another user sent Trahan videos of child pornography.               Trahan was
then arrested and held in federal custody.
This was the second indictment related to the 2015 arrest.
2
Trahan was originally indicted in November 2015.    In the first
proceeding, the district court granted Trahan's motion to dismiss
the indictment for violations of the Speedy Trial Act, 

18 USC
§§ 3161

 et seq., and dismissed the case without prejudice.
- 4 -
The government later filed a superseding information
that realleged counts I and II and added a second count of
possession of child pornography based on the 2021 arrest (count
III).   Count III did not allege that Trahan committed the offense
while on pretrial release nor did it reference 

18 USC§ 3147

,
the statute outlining the penalty for offenses committed while on
release.   Trahan waived his right to an indictment, consented to
prosecution by information, and pleaded guilty to all three counts
without a plea agreement.
During the change-of-plea hearing, the government listed
the range of possible criminal penalties, providing that each count
"carries a mandatory minimum of ten years in prison because . . .
Trahan has a prior state . . . conviction" for possession of visual
material of child depicted in sexual conduct.            Specifically with
respect to count III, the government noted that Trahan committed
the offense while on pretrial release, thus requiring additional
imprisonment that "shall be consecutive to any other sentence of
imprisonment" under § 3147.          The government also summarized the
facts   that   would   support   a    conviction   for   count   III.   In
particular, the government explained that when "the FBI obtained
a search warrant for . . . Trahan's house and executed it on
September 8, 2021," based on information regarding online child
pornography sharing, "Trahan had been out on bail."              After the
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government provided the summary, Trahan agreed that it was a true
description of the offenses.
As alluded to, these were not Trahan's first offenses
involving images of children engaged in sexual conduct.                      In 2006,
Trahan was convicted in Massachusetts state court of "possession
of   visual    material     of   child     depicted     in    sexual    conduct"   in
violation      of   Mass.    Gen.        Laws    ch.   272,     § 29C      ("§ 29C").
Accordingly, the PSR that the United States Probation Office for
the District of Massachusetts ("Probation") prepared in advance of
sentencing reflected a criminal history category of I and a
mandatory minimum of ten years' incarceration for each count
pursuant to 18 U.S.C. § 2252A(b)(2).                   The PSR also noted that
Trahan was "out on bail" when the FBI executed the September 8,
2021 search warrant and subsequently arrested Trahan.                         Because
Trahan committed the offense while on pretrial release, the PSR
provided that § 3147 compelled an additional sentence that would
not exceed ten years.        The PSR reported a United States Sentencing
Guidelines ("guidelines") range of 121 to 151 months.
Trahan   objected     to    the    imposition     of   the    mandatory
minimum, arguing that "the prior conviction is not necessarily one
relating to child pornography as that term is defined under federal
law" because § 29C "criminalizes possession of images containing
content that is not criminalized under the definitions in 

18 USC

§ 2256

   governing      federal     child        pornography     offenses."        In
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response, Probation explained that it was "not aware of any First
Circuit precedent that has found (§ 29C) to be overbroad in the
context of . . . § 2252A" but deferred resolution of the objection
to the court.       Trahan also "object(ed) to the imposition of any
consecutive term of imprisonment under . . . § 3147 arising from"
count   III    because    it   "would       necessarily       have   the   effect    of
increasing the mandatory minimum without a separate charge" in
violation of Alleyne, 

570 VS 99

.                  Probation disagreed and made

no change to the report.              Trahan did not object to any of the
factual allegations about the September 8, 2021 search warrant.
Also prior to sentencing, the parties filed sentencing
memoranda     for   the   district         court's     consideration.        In     its
memorandum,      the   government          agreed     with    Probation    that     the
guidelines range was 121 to 151 months and requested a sentence of
126 months -- "120 months concurrent for" each of the three counts
and "6 months consecutive" for Trahan's violation of his pretrial
release   conditions.          In    addressing       the    applicability    of    the
mandatory minimum, the government relied on the "relating to"
clause contained in § 2252A(b)(2), arguing that it "allows for (a)
state . . . offense to be (a) close but not necessarily exact"
match to the federal offense.               As for the Alleyne challenge, the
government      emphasized          that     "