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,

(1st Cir. 2007).

- 2 - 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

(b) (Count One), and transfer of obscene material to a minor,

in violation of

(Count Two). He pleaded guilty

to both counts. In the Presentence Investigation Report ("PSR")

prepared by the Probation Office, Procell was assigned a base

- 3 - 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

(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

- 4 - guideline range -- and a term of 120 months on Count Two, the

statutory maximum, see

, 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

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,

, 92

- 5 - (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,

, 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,

(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,

(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,

(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,

, 757 n.1 (1st Cir. 2022). There is "no practical difference" in the meaning.

- 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.

- 7 - 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,

(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."

The language does flow properly, however, if it is

- 8 - 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,

, 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.

(b). 4 Section § 2422(a) provides:

- 9 - 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.

(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

- 10 - 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).

- 11 - 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.

. 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,

.

"Clear error is present where 'we are left with the definite and

firm conviction that a mistake has been committed.'" United States

v. Austin,

(1st Cir. 2021) (quoting United States

v. Graf,

(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

- 12 - 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,

(5th Cir. 2017); United

States v. Kelley,

(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

.

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

- 13 - 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,

, 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

- 14 - "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,

(1st

Cir. 2020) (quoting United States v. Muniz,

, 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

- 15 - can revise the written judgment to specify the term of imprisonment

for Count Two.

So ordered.

- 16 -