United States v. Procell ( 2022 )

United States Court of Appeals
For the First Circuit
No. 19-1924
UNITED STATES OF AMERICA,
Appellee,
v.
LOGAN PROCELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Elizabeth A. Billowitz on brief for appellant.
Andrew E. Lelling, United States Attorney, and Anne Paruti,
Assistant United States Attorney, on brief for appellee.
April 12, 2022
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
1"Because this appeal follows a guilty plea, we draw the
relevant facts from the change-of-plea colloquy, the presentence
investigation report, and the transcript of the disposition
hearing." United States v. Jiminez, 498 F.3d 82, 84 (1st Cir.
2007).
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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
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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
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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
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(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, 522 U.S. 38, 51 (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).
2 As we have previously noted, courts sometimes phrase this
step in the disjunctive ("clear or obvious") and sometimes phrase
it in the conjunctive ("clear and obvious"). See, e.g., United
States v. Mulero-Vargas, 24 F.4th 754, 757 n.1 (1st Cir. 2022).
There is "no practical difference" in the meaning. Id.- 6 -
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.
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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
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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 contain the
persuade/induce/entice/coerce language that is found in the
guideline provision. Subsection (b) -- the basis for Procell's
conviction -- targets the use of the mail or other "means of
interstate or foreign commerce" to "persuade[], induce[],
entice[], or coerce[]" unlawful sexual activity,3 while subsection
(a) targets "persuad[ing], induc[ing], entic[ing], or coerc[ing]"
an individual to travel for the purpose of unlawful sexual
activity.4 It is thus unsurprising that § 2G1.3(b)(3)(A) -- which
3 Section 2422(b) provides:
Whoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
years, to engage in prostitution or any sexual
activity for which any person can be charged
with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned
not less than 10 years or for life.
18 U.S.C. § 2422(b).
4 Section § 2422(a) provides:
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applies to § 2422 in its entirety -- includes facilitating travel
by means of a computer among the triggering activities. By
contrast, we can imagine no reason why the Sentencing Commission
would have limited the enhancement to computer-based behaviors
involving only the facilitation of travel, a result at odds with
the breadth of the underlying statute's two subsections. For that
additional reason, Procell's narrow interpretation of the
enhancement is unsound.
Procell offers several other arguments that we find
without merit. The only one that warrants our response centers on
a related guideline provision, U.S.S.G. § 2G2.1(b)(6)(B),5 which
Whoever knowingly persuades, induces,
entices, or coerces any individual to travel
in interstate or foreign commerce, or in any
Territory or Possession of the United States,
to engage in prostitution, or in any sexual
activity for which any person can be charged
with a criminal offense, or attempts to do so,
shall be fined under this title or imprisoned
not more than 20 years, or both.
18 U.S.C. § 2422(a).
5 In full, the child pornography guideline provides:
If, for the purpose of producing sexually
explicit material or for the purpose of
transmitting such material live, the offense
involved (A) the knowing misrepresentation of
a participant's identity to persuade, induce,
entice, coerce, or facilitate the travel of,
a minor to engage [in] sexually explicit
conduct; or (B) the use of a computer or an
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enhances the sentences of those who sexually exploit minors through
the production of explicit material. Procell notes that this
provision repeats the list of activities contained in
§ 2G1.3(b)(3) but adds text pertaining to solicitation. He asserts
that an interpretation of "persuade induce, entice, coerce, or
facilitate the travel of" other than the one he advances would
render the additional language in U.S.S.G. § 2G2.1(b)(6)(B)
superfluous. We disagree that the addition of the "catch-all"
solicitation phrase in § 2G2.1(b)(6)(B) reinforces Procell's
construction of § 2G1.3(b)(3)(A). The added text -- "or to
otherwise solicit participation by a minor in such conduct" --
simply ensures that any form of solicitation not specified by the
terms that precede it is covered in the context of child
pornography. The inclusion of that text in § 2G2.1(b)(6)(B) does
not change the natural reading of the guideline applicable to
Procell's offense.
In sum, neither the plain language of U.S.S.G.
§ 2G1.3(b)(3)(A) nor the text of any related Guidelines provision
interactive computer service to (i) persuade,
induce, entice, coerce, or facilitate the
travel of, a minor to engage in sexually
explicit conduct, or to otherwise solicit
participation by a minor in such conduct; or
(ii) solicit participation with a minor in
sexually explicit conduct, increase
by 2 levels.
U.S.S.G. § 2G2.1(b)(6).
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supports Procell's argument that his preferred interpretation
"fits more rationally in the overall framework of the Government's
interests in sentencing for sex crimes" than a straightforward,
grammatical reading of the provision. Thus, the district court
did not err -- let alone commit plain error -- by imposing the
two-level enhancement pursuant to U.S.S.G. § 2G1.3(b)(3)(A).
B. Special Assessment
District courts are required by statute to "assess an
amount of $5,000 on any non-indigent person" convicted of various
enumerated offenses related to human trafficking and sexual
exploitation, including coercion and enticement. 18 U.S.C.
§ 3014. Pursuant to that provision, the district court ordered
Procell to pay the mandatory special assessment after finding that
he was not indigent, a finding that Procell now challenges on
appeal. As Procell objected to the assessment below, we review
the indigency finding for clear error. See Leahy, 668 F.3d at 21.
"Clear error is present where 'we are left with the definite and
firm conviction that a mistake has been committed.'" United States
v. Austin, 991 F.3d 51, 57 (1st Cir. 2021) (quoting United States
v. Graf, 784 F.3d 1, 6 (1st Cir. 2015)).
In finding that Procell is a "non-indigent person"
within the meaning of § 3014, the district court looked at "both
Mr. Procell's present ability to pay [the special assessment] as
well as his future earning potential." The statute does not
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specify how sentencing courts are to assess indigence in this
context, and we have not provided guidance on that issue. We note,
however, that the district court's focus on future earning
potential has been endorsed by other circuits. See, e.g., United
States v. Graves, 908 F.3d 137, 142-43 (5th Cir. 2017); United
States v. Kelley, 861 F.3d 790, 802 (8th Cir. 2017).
In explaining its determination, the district court
observed that Procell has a bachelor of arts degree in engineering;
was previously employed as a high school science teacher with an
annual salary of $59,000; had work history prior to teaching; has
a supportive family willing to house him upon his release from
prison; and, at age 25 when sentenced, has years of earning
potential following his incarceration. The court acknowledged
defense counsel's argument that Procell will not be able to work
as a teacher in the future but concluded that, upon consideration
of all of the facts, Procell is "non-indigent" for the purposes of
18 U.S.C. § 3014.
Procell contends that the district court over-relied on
his possession of a bachelor's degree in engineering, a field in
which he has never held a job. He further asserts that the court
gave insufficient consideration to his educational debt, which
will accrue during his incarceration; his newly diagnosed autism
and anxiety spectrum disorders; and the various future impediments
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to gainful employment that he may encounter once released from
prison as a federal sex offender.
Even accepting Procell's argument that his future
inability to work as a teacher and other financial liabilities may
impact his capacity to pay the assessment, we cannot say that the
district court clearly erred in finding, on the present record,
that his education level and family support, among other factors,
indicate sufficient future earning potential to render him non-
indigent. Where "the facts plausibly support competing
inferences, as here, a sentencing court cannot clearly err in
choosing one." United States v. Olivero, 552 F.3d 34, 39–40 (1st
Cir. 2009). We thus discern no clear error in the district court's
decision to impose upon Procell the $5,000 special assessment.
C. Sentence Length
Finally, Procell argues that the district court actually
sentenced him in excess of the 120-month statutory maximum on Count
Two, despite the court's indication that it was sentencing him to
the statutory maximum on that count. At the sentencing hearing,
the district court stated that the 135-month term it imposed
consisted of "135 months on Count One and a term of 120 months on
Count Two to be served concurrently." In its written judgment,
the court reiterated the 135-month period of incarceration, but it
did not specify the separate sentences for each count. Based on
that silence, Procell concludes that the district court improperly
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"sentenced [him] to 135 months' imprisonment on each charge."
Thus, he asserts, the case must be remanded for resentencing on
Count Two to a term of "120 months or less."
There is no error here that requires resentencing. To
the extent that there is a discrepancy between a court's oral
sentencing pronouncement and its written judgment, "'appellate
courts have tended to honor the former at the expense of the
latter.'" United States v. Morales-Negrón, 974 F.3d 63, 68 (1st
Cir. 2020) (quoting United States v. Muniz, 49 F.3d 36, 42 n.5
(1st Cir. 1995)). Here, the court's oral pronouncement of the
sentence on Count Two -- the statutory maximum of 120 months --
was unambiguous and lawful. Moreover, heeding the district court's
oral pronouncement is especially appropriate here because the
written judgment arguably does not vary at all -- let alone
materially -- from the court's oral statement. It simply fails to
specify that the lower sentence on Count Two is subsumed within
the total 135-month term of imprisonment.
As Procell has failed to demonstrate error in the
sentence he received on Count Two, we necessarily reject his
request that we remand the case for re-sentencing. However, we
think it appropriate for the written judgment to be clarified so
that it aligns with the oral sentencing pronouncement. We thus
affirm the sentence imposed and remand only so the district court
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can revise the written judgment to specify the term of imprisonment
for Count Two.
So ordered.
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