United States Court of Appeals For the First Circuit

No. 18-1795

UNITED STATES OF AMERICA,

Appellee,

v.

DERRICK A. COFFIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Lynch, and Kayatta, Circuit Judges.

Hunter J. Tzovarras for appellant. Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

December 20, 2019 LYNCH, Circuit Judge. Derrick Coffin pled guilty to one

count of possession of child pornography and one count of accessing

child pornography with intent to view, both in violation of 18

U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court sentenced

Coffin to the statutory maximum sentence of 240 months'

imprisonment on each count, to be served concurrently.

On appeal, Coffin challenges his sentence on procedural

and substantive grounds, focusing on the enhancements given for a

pattern of activity involving the sexual abuse of minors and for

obstruction of justice, and the denial of an acceptance of

responsibility reduction. We find no error.

He also argues his Criminal History Category (CHC) was

miscalculated. We do not resolve that argument and request that

the Sentencing Commission address the lack of clarity as to how

criminal history points should be allocated when multiple prior

sentences imposed on the same day are for the same length of time,

and only one of those sentences constitutes a "crime of violence."

We do not resolve the CHC issue because the district court

explained why even if it had erred as to the CHC calculation, it

would upwardly depart to impose the same category. And an upward

departure was plainly reasonable.

I.

As this sentencing appeal follows Coffin's guilty plea,

"we draw the facts from the plea agreement, the presentence

- 2 - investigation report (PSR), and the sentencing hearing

transcript." United States v. Montalvo-Febus,

(1st Cir. 2019).

A. Facts

In March 2016, Coffin was on probation from a Maine

sexual assault conviction in 2006. Coffin's probation conditions

for his 2006 conviction for gross sexual assault made his person,

residence, vehicles, and electronic equipment subject to random

searches and prohibited him from possessing child pornography

images. On March 18, 2016, law enforcement officers conducted a

search of Coffin's residence after he appeared to be violating

probation conditions. He had been observed watching a video on

his cell phone that appeared to depict the sexual abuse of an

infant. Law enforcement officers seized a laptop computer, a cell

phone, and a digital memory card from his home.

A preliminary forensic examination of the laptop

revealed 556 child pornography image files, created on or about

March 17, 2016, depicting the sexual abuse of prepubescent children

by adult males. These images were stored under the computer's

"derrick" user account. A secondary review revealed 759 more

images of child pornography in the laptop's unallocated space.

On the cell phone, officers discovered a message sent by

Coffin on January 11, 2016, using an application called "Kik

Messenger" (the "Kik message"). Coffin does not contest the

- 3 - district court's factual finding that he wrote the Kik message.

The Kik message described how at age fifteen, Coffin had made a

six-year-old girl perform oral sex on him and how at age twenty-

three, he had made a ten-year-old boy perform oral sex on him.

The acts described in the Kik message were consistent with two

past official reports of sexual abuse committed by Coffin. First,

a January 21, 1998, Maine Department of Health and Human Services

(DHHS) report stated that Coffin, at age fifteen, had a six-year-

old girl perform oral sex on him. Coffin does not dispute that

the report stated that he forced a six-year-old girl to perform

oral sex on him when he was fifteen years old. Rather, he disputes

the factual accuracy of the incident described in the report.

Second, at age twenty-three, Coffin had been convicted in Maine

state court for gross sexual assault, burglary, and aggravated

criminal trespass after he entered a residence and then forced a

ten-year-old boy to perform oral sex on him.

On March 29, 2016, Coffin went to the Bangor police

station to discuss the return of his electronic devices. Coffin

was arrested at the station because his seized laptop contained

images depicting the sexual abuse of children. That possession

violated the probation conditions of his 2006 Maine state gross

sexual assault conviction.

In July 2016, before Coffin was federally indicted,

Coffin called his girlfriend from jail in a recorded call and asked

- 4 - her to delete his emails from her phone.1 On October 7, 2016,

state law enforcement and an agent from the federal Department of

Homeland Security (DHS) (whose assistance had been requested by

state authorities) executed a search warrant authorizing the

search and seizure of computers, cell phones, and documents related

to destruction of evidence and obstruction of justice at the

residence of Coffin's girlfriend. DHS and state law enforcement

found two letters handwritten by Coffin to his girlfriend. In the

first, Coffin wrote: "I told them when they took the computer it

belonged to you and I am sticking with that so it doesn't make me

look bad. You are fine because you have your work schedule as

proof that you could not have done this so you are ok." In the

second letter, Coffin asked his girlfriend to "talk to rebecca,

Jodi, adam, whoever they talked to and ask them what they asked

and what they said back and if anything was recorded or written

down. I need you to tell them not to speak to anyone else about

this, or me, or the computer."

On February 15, 2017, Coffin was federally indicted for

the crimes of receiving child pornography, possessing child

pornography, and accessing child pornography with intent to view.

1 Coffin's girlfriend admitted deleting Coffin's email accounts from her phone. She stated she did not do so at his request and that she did not recall the phone conversation with Coffin.

- 5 - On September 2, 2017, a jail employee discovered a letter

written by Coffin in a pile of magazines and books that Coffin had

asked to be placed in his property box for his girlfriend to pick

up. The letter was addressed to "Brad" and stated:

What I would like you to do is say that I stopped by your place on the 17th of March 2016. If I was in Bangor and you can vouch[] for me I could not have been home during the search. . . . I would like you to say that I stopped by your apartment on Second St. . . . It was about 3pm and I said I stopped by because I was in town to look for some pliers to work on some rocker panels. And that I didn't call to tell you I was stopping by because I had left my phone at home[.] Say I visited for a couple hours and we talked about old times, what we used to do when we were kids and I left sometime before 6pm saying I had to be home for [my girlfriend] when she got out of work. That's it. There is no way for them to disprove it trust me I have looked into it.

At sentencing, witness testimony from a government investigator

revealed that "Brad" was the name of an old friend of Coffin.

B. Proceedings as to Sentencing

As said, Coffin pled guilty to two counts2 in his

indictment. This appeal is as to his sentence.

The PSR, prepared on April 16, 2018, and revised on May

14, 2018, determined that Coffin's base offense level was eighteen.

There is no challenge to that determination. The PSR then applied

2 The United States moved to dismiss count one (receiving child pornography) on August 16, 2018, and the district court granted the motion the next day.

- 6 - several enhancements to reach a total offense level of thirty-

eight.3 Coffin challenges the application of a five-level

enhancement for engaging in a pattern of activity involving the

sexual abuse or exploitation of a minor, a two-level enhancement

for obstruction of justice, and the denial of an acceptance of

responsibility reduction.

The PSR calculated Coffin's criminal history score as

seven, resulting in a CHC of IV. In reaching a score of seven,

the PSR determined that Coffin's 2006 conviction for burglary,

committed in August 2005, (the "August burglary") warranted three

points under section 4A1.1(a) of the U.S. Sentencing Guidelines.

As for Coffin's convictions for a second 2006 burglary, committed

in September 2005 (the "September burglary"), gross sexual

assault, and aggravated criminal trespass, the PSR did not add any

points under section 4A1.1(a) but added one point for the gross

sexual assault under section 4A1.1(e).

Based on a total offense level of thirty-eight and a CHC

of IV, the PSR determined the guidelines sentencing range (GSR) to

3 Coffin does not challenge the application of the two- level enhancement because the material involved minors under the age of twelve, the four-level enhancement because the offense involved material that portrayed "sadistic or masochistic conduct or other depictions of violence" or "sexual abuse or exploitation of infants and toddlers," the two-level enhancement because the offense involved the use of a computer, or the five-level enhancement because the offense involved 1,315 images of child pornography.

- 7 - be 324 to 405 months' imprisonment. The statutory maximum term of

imprisonment was twenty years on each count. 18 U.S.C.

§ 2252A(b)(2).

At sentencing, Coffin objected to the application of the

pattern enhancement, the obstruction enhancement, the denial of an

acceptance of responsibility reduction, and the calculation of his

CHC. He argued for a sentence of about ten years.

The district court agreed with the enhancements laid out

in the PSR and rejected Coffin's challenges. The court stated

that even if it had erred in calculating Coffin's CHC, it would

nevertheless upwardly depart to reach category IV.

Significantly, the district court then articulated its

consideration of the § 3553(a) factors, stating that it considered

each factor. It focused on the history and characteristics of the

defendant, the nature and circumstances of the offenses, the need

to avoid unwarranted sentencing disparities, and the need to

protect the public from future crimes. The district court reviewed

Coffin's personal and criminal history, including the details of

the instant offense, which included over 1,300 images of child

pornography. It expressed particular concern about Coffin's

criminal history, especially the 2006 gross sexual assault of a

ten-year-old boy. The district court also noted that Coffin was

generally unrepentant and as late as January 2016, he had "bragged"

in the Kik message about his past crimes. As said, the district

- 8 - court sentenced Coffin to 240 months' imprisonment on each count,

to be served concurrently.

II.

In sentencing appeals, appellate review is bifurcated.

We analyze his appeal in two steps: first, we "determine whether

the sentence imposed is procedurally reasonable and then determine

whether it is substantively reasonable." United States v. Abreu-

García,

(1st Cir. 2019) (quoting United States v.

Ruiz-Huertas,

(1st Cir. 2015)).

In assessing preserved claims of procedural error (and

these claims are preserved), "we review questions of law de novo,

factual findings for clear error, and judgment calls for abuse of

discretion." United States v. Hinkley,

(1st Cir.

2015). We will assume favorably to Coffin that review of the

sentence's substantive reasonableness is for abuse of discretion.

A. Procedural Reasonableness

1. Criminal History Category

a. Harmless Error

We resolve the CHC argument by pointing to the district

court's alternative rationale. After calculating Coffin's CHC to

be IV, the district court stated that even if it had erred in

interpreting the Guidelines and Coffin's CHC were only III, it

would "upwardly depart under Section 4A1.3(a)(2)(B) because

- 9 - criminal history category IV seems to more accurately reflect the

seriousness of the defendant's criminal history and his risk of

recidivism than does criminal history category III."

So, in either case, the district court stated it would

have sentenced Coffin at category IV, leading to a GSR of 324 to

405 months in either scenario. See United States v. Romero-

Galindez,

(1st Cir. 2015) ("If we find an alleged

Guideline error would not have affected the district court's

sentence, we may affirm." (quoting United States v. Marsh,

(1st Cir. 2009))).

b. Sentencing Guidelines § 4A1.1 and § 4A1.2 Ambiguity

It is the interaction between sections 4A1.1 and 4A1.2

of the Guidelines which fuels Coffin's challenge to his CHC

calculation. Section 4A1.1(a) states that in calculating the

criminal history score, the district court should "[a]dd 3 points

for each prior sentence of imprisonment exceeding one year and one

month." U.S.S.G. § 4A1.1(a). But section 4A1.2(a)(2) limits

section 4A1.1(a) in situations where there is no intervening

arrest between two sets of offenses and the sentences for those

offenses were imposed on the same day. In those situations, prior

sentences are treated as one, and the "longest sentence of

imprisonment," if the sentences were imposed concurrently,

receives the three points under section 4A1.1(a). Id.

- 10 - § 4A1.2(a)(2). A "sentence of imprisonment" is defined as the

portion that was not suspended. Id. § 4A1.2(b)(2).

Here, four of Coffin's prior offenses were sentenced on

the same day, without an intervening arrest between them. The

sentences he received were the following: eight years for the

August burglary, fifteen years with all but eight years suspended

for the gross sexual assault, eight years for the September

burglary, and five years for the aggravated criminal trespass.

All four were to be served concurrently. So, under this framework,

all four are treated as one.

The Guidelines, however, do not provide a clear answer

as to which sentence constitutes the "longest sentence of

imprisonment." Although the gross sexual assault resulted in a

fifteen-year sentence, all but eight of those years were suspended,

and so under section 4A1.2(b)(2), the gross sexual assault, like

the two burglaries, amounts to an eight-year sentence.

Determining which conviction receives three points under

section 4A1.1(a) is significant because section 4A1.1(e) directs

the sentencing court to "[a]dd 1 point for each prior sentence

resulting from a conviction of a crime of violence that did not

receive any points under [subsections 4A1.1(a), (b), or (c)]

because such sentence was treated as a single sentence." Id.

§ 4A1.1(e). If one of the burglaries receives the three points,

then an additional point is warranted for the gross sexual assault

- 11 - as a crime of violence. But if the gross sexual assault receives

the three points, then no additional points are warranted because

burglary and aggravated criminal trespass are not crimes of

violence.4

We urge the Sentencing Commission to provide

clarification on how these provisions should be interpreted. See

United States v. Gordon,

(1st Cir. 2017)

(referring question of how to interpret a provision of the

Guidelines to the Sentencing Commission).

2. Enhancements

a. Pattern Enhancement

The Guidelines instruct that "[i]f the defendant engaged

in a pattern of activity involving the sexual abuse or exploitation

of a minor, increase by 5 levels." U.S.S.G. § 2G2.2(b)(5). A

"pattern of activity involving the sexual abuse or exploitation of

a minor" is defined in the commentary to the Guidelines as "any

4 A similar issue was addressed in United States v. Gilliam,

(8th Cir. 2019). There, the defendant had received two ten-year sentences, one for first-degree burglary and one for attempted first-degree robbery, and two three-year sentences, all of which were to be treated as one under the Guidelines.

. The PSR assigned him four points but did not specify which sentence received the three points under section 4A1.1(a) and which received the additional point as a crime of violence under section 4A1.1(e).

The Eighth Circuit concluded that the defendant had not shown error, much less plain error, because the PSR could have attributed three points to the first- degree burglary and an additional one point to the attempted first- degree robbery as a crime of violence.

.

- 12 - combination of two or more separate instances of sexual abuse or

sexual exploitation of a minor by the defendant."

cmt. n.1.

Coffin does not dispute that his 2006 gross sexual assault

conviction qualifies as one incident involving the sexual abuse of

a minor.

Coffin argues that the district court "erred in applying

the pattern enhancement because there was insufficient evidence"

to establish a second incident of sexual abuse of a minor. The

district court concluded that the government had met its burden in

showing it was "more likely than not that the defendant forced the

six-year-old girl to perform oral sex on him when he was 15 in

1998," as described in the Maine DHHS report. Coffin argues that

the district court should not have relied on the report because it

was based on hearsay, it lacked indicia of reliability, he had no

opportunity to test its accuracy through cross-examination, and,

he asserts, it was inaccurate.

The defendant's argument misses the point, a point not

missed by the district court: that Coffin's own Kik message stated

that at age fifteen, he forced a six-year-old girl to perform oral

sex on him, an act recorded in the 1998 report. The Kik message

was also an admission by Coffin of a pattern in its statement that

Coffin also forced a ten-year-old boy to perform oral sex on him.

Further, Coffin does not specify why the report could not be found

to be trustworthy. The admission reinforces the reliability of

- 13 - the report. So, we conclude that his objections do not undermine

the district court's finding.

Coffin's arguments challenging the Maine DHHS report for

being hearsay and not being subject to cross-examination also fail.

Sentencing courts may consider hearsay evidence that "has

sufficient indicia of trustworthiness to warrant a finding of

probable accuracy," United States v. Acevedo-López,

(1st Cir. 2017) (quoting United States v. Rodríguez,

(1st Cir. 2003)), and evidence considered at sentencing

does not need to be subjected to cross-examination,

b. Obstruction of Justice Enhancement and Denial of Acceptance of Responsibility Reduction

The obstruction of justice enhancement was abundantly

supported. Section 3C1.1 provides for a two-level enhancement if

"the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to

the investigation, prosecution, or sentencing of the instant

offense of conviction" and the obstructive conduct related to the

offense of conviction or a closely related offense. U.S.S.G.

§ 3C1.1.

Coffin asserts that he "never influenced or attempted to

influence a witness." As to the "Brad" letter, he argues that

"Brad was not . . . a witness in the case" and "the letter never

reached Brad, or anyone else."

- 14 - There was ample evidence to support the district court's

application of the obstruction enhancement. Coffin's letter asked

Brad to corroborate Coffin's false alibi, which plainly

constitutes an attempt to "unlawfully influenc[e] a . . .

witness." Id. cmt. n.4(A) (providing a list of examples of conduct

warranting the obstruction enhancement). Coffin's arguments that

Brad never got the letter so Coffin did not obstruct justice lack

merit because obstruction under the Guidelines encompasses attempt

to obstruct. See United States v. O'Brien,

(1st

Cir. 2017) ("Attempting to influence a witness not to cooperate

with the government . . . is just the type of conduct covered by

§ 3C1.1.").

Coffin does not argue that he should have received the

acceptance of responsibility reduction if the other challenged

enhancements were correctly applied. So, Coffin has conceded that

the acceptance of responsibility reduction was properly denied.

B. Substantive Reasonableness

The district court's imposition of the statutory maximum

sentence was substantively reasonable. Coffin unconvincingly

argues that the seriousness of his offense, the need for

deterrence, and the need to protect the public all require no more

than a ten-year sentence. A sentence is substantively reasonable

when the sentencing court gave a "plausible sentencing rationale

and reached a defensible result." Abreu-García,

- 15 - (internal quotation marks omitted). Here, Coffin's criminal

history was of particular concern to the district court. Given

that history, the district court reasonably concluded that Coffin

represented "a clear and present danger" to society, in particular

to young children. This was a plainly plausible rationale and a

twenty-year sentence was a defensible result.5

Affirmed. We direct the Clerk to send a copy of this

opinion to the Sentencing Commission.

5 Coffin also challenges the Guidelines themselves, asserting that they are harsher than necessary, not supported by social science research, and many of the enhancements apply for "conduct present in virtually all cases." But "[t]he district court's broad discretion obviously includes the power to agree with the guidelines." United States v. Hassan-Saleh-Mohamad,

(1st Cir. 2019) (quoting United States v. Stone,

(1st Cir. 2009)).

- 16 -