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
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investigation report (PSR), and the sentencing hearing
transcript." United States v. Montalvo-Febus, 930 F.3d 30, 32
(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
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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
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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.
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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.
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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.
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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
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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, 933 F.3d 1, 4 (1st Cir. 2019) (quoting United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (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, 803 F.3d 85, 92 (1st Cir.
2015). We will assume favorably to Coffin that review of the
sentence's substantive reasonableness is for abuse of discretion.
Id.
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
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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, 782 F.3d 63, 70 (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, 561
F.3d 81, 86 (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.
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§ 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
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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, 852 F.3d 126, 135 (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, 934 F.3d 854 (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. Id. at 861. 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). Id. 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. Id. at 861-62.
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combination of two or more separate instances of sexual abuse or
sexual exploitation of a minor by the defendant." Id. 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
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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, 873 F.3d 330,
340 (1st Cir. 2017) (quoting United States v. Rodríguez, 336 F.3d
67, 71 (1st Cir. 2003)), and evidence considered at sentencing
does not need to be subjected to cross-examination, id.
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."
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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, 870 F.3d 11, 18 (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, 933 F.3d at 6
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(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, 930
F.3d 1, 10 (1st Cir. 2019) (quoting United States v. Stone, 575
F.3d 83, 90 (1st Cir. 2009)).
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