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.

- 2 -
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

- 3 -
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

- 5 -
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 "

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