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United States v. Coffin

United States Court of Appeals, First Circuit

December 20, 2019

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]

          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.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          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 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 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 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.

         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 ...

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