United States v. Procell
1:17-cr-10337
D. Mass.
Apr 12, 2022

Background

  • Procell, a Louisiana high‑school teacher, exchanged sexually explicit messages and images with an 11‑year‑old in Massachusetts and pleaded guilty to coercion/enticement (18 U.S.C. § 2422(b)) and transfer of obscene material to a minor (18 U.S.C. § 1470).
  • The PSR set a base offense level of 28 and applied enhancements: +2 undue influence (U.S.S.G. § 2G1.3(b)(2)(B)), +2 for use of a computer (U.S.S.G. § 2G1.3(b)(3)(A)), and +8 because the victim was under 12 (U.S.S.G. § 2G1.3(b)(5)); after a -3 acceptance reduction, total offense level = 37 (GSR 210–262 months); mandatory minimum on Count One = 120 months.
  • At sentencing the court imposed 135 months on Count One (above the mandatory minimum but below the Guidelines range) and 120 months on Count Two, to run concurrently; restitution and a $5,000 special assessment under 18 U.S.C. § 3014 were also imposed.
  • On appeal Procell raised three procedural challenges: (1) the +2 computer enhancement was improper; (2) the $5,000 special assessment was wrongly imposed because he is indigent; and (3) his sentence on Count Two exceeded the statutory 120‑month maximum.
  • The appeals court reviewed the unpreserved computer‑enhancement claim for plain error and reviewed the indigency finding for clear error; it affirmed the sentence but remanded only to clarify the written judgment to reflect the oral pronouncement.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether U.S.S.G. § 2G1.3(b)(3)(A) two‑level enhancement for use of a computer applies Procell: the clause applies only when the computer use facilitates the minor's travel; no travel here, so enhancement not authorized Government/District Court: the guideline covers (a) use of a computer to persuade/induce/entice/coerce a minor to engage in sexual conduct, or (b) use of a computer to facilitate the minor's travel; either triggers the enhancement Affirmed — plain‑error review: enhancement proper; comma and statute context show travel is one alternative, not the sole object of the verbs
Whether the $5,000 special assessment under 18 U.S.C. § 3014 should have been imposed Procell: the court erred in finding him non‑indigent by over‑relying on his degree and future earning potential while ignoring debt, disabilities, and status as a sex offender Government/District Court: courts may consider present ability and future earning potential; here degree, prior salary, work history, family support and youth support a finding of non‑indigence Affirmed — clear‑error review: district court’s inference that Procell is non‑indigent on this record was reasonable
Whether the sentence on Count Two exceeded the statutory 120‑month maximum due to a silent written judgment Procell: written judgment omitted per‑count specification and could be read as imposing 135 months on each count (illegal on Count Two) Government/District Court: oral pronouncement clearly imposed 120 months on Count Two concurrent; appellate practice favors oral pronouncement over clerical omissions in the written judgment Affirmed — no resentencing; remand limited to clerical clarification of written judgment to reflect the oral sentence

Key Cases Cited

  • United States v. Jiminez, 498 F.3d 82 (1st Cir. 2007) (use of plea colloquy/PSR for factual record following guilty plea)
  • Gall v. United States, 522 U.S. 38 (U.S. 2007) (standards for procedural reasonableness in sentencing)
  • United States v. Leahy, 668 F.3d 18 (1st Cir. 2012) (standards for reviewing Guideline calculations and sentencing judgments)
  • United States v. Arsenault, 833 F.3d 24 (1st Cir. 2016) (plain‑error review for unpreserved sentencing claims)
  • United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) (four‑part plain‑error test)
  • United States v. Watkins, 667 F.3d 254 (2d Cir. 2012) (construing §2G1.3(b)(3)(A) punctuation and meaning)
  • United States v. Graves, 908 F.3d 137 (5th Cir. 2017) (endorsing consideration of future earning potential when assessing indigency under §3014)
  • United States v. Kelley, 861 F.3d 790 (8th Cir. 2017) (similar endorsement regarding §3014 indigency analysis)
  • United States v. Olivero, 552 F.3d 34 (1st Cir. 2009) (clear‑error review when facts permit competing inferences)
  • United States v. Morales‑Negrón, 974 F.3d 63 (1st Cir. 2020) (oral sentencing pronouncement controls over inconsistent or silent written judgment)
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