United States v. Abreu
| Decision Date | 06 January 2022 |
| Docket Number | Criminal Action No. 19-10460-PBS |
| Citation | 578 F.Supp.3d 202 |
| Parties | UNITED STATES of America, v. Irvin ABREU, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Anne Paruti, Assistant US Attorney, United States Attorney's Office, Boston, MA, for United States of America.
Saris, D.J.
Irvin Abreu has been charged with one count of sexual exploitation of children, in violation of 18 U.S.C. §§ 2251(a) and (e). The parties have jointly moved for a determination prior to trial or plea as to whether, if convicted, his prior state conviction would trigger a 25-year mandatory minimum sentence, rather than the 15-year minimum sentence for those with no qualifying prior convictions, under 18 U.S.C. § 2251(e). While this request is unusual, the Court agrees that this ruling is in the interest of justice because of the ten-year difference in the potential minimum sentence. After hearing, the Court holds that the prior conviction triggers the 25-year, mandatory minimum sentencing enhancement.
On November 16, 2018, Abreu pled guilty in state court to one count of dissemination of harmful matter to a minor in violation of M.G.L. c. 272, § 28, and one count of child enticement in violation of M.G.L. c. 265, § 26C. On October 16, 2019, he was arrested and charged in state court with offenses related to the instant matter: aggravated rape, indecent assault and battery on a child under 14, distribution of child pornography, and production of child pornography. On December 5, 2019, Abreu was indicted in federal court for sexual exploitation of a child. Trial is scheduled for February 2022.
An individual convicted of sexually exploiting a minor faces a minimum sentence of 15 years and a maximum sentence of 30 years. 18 U.S.C. § 2251(e). A qualifying prior conviction will increase this mandatory minimum and maximum:
The issue before the Court is whether Abreu's prior conviction for enticement of a minor in violation of M.G.L. c. 265, § 26C is one "relating to ... sexual abuse [or] abusive sexual contact involving a minor or ward." 18 U.S.C. § 2251(e). To resolve this issue, the Court must "compare the elements of the crime of conviction ... with the elements of the generic crime." Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).
In deciding whether a prior conviction is for a generic crime enumerated as triggering a sentencing enhancement, a court must apply either the "categorical approach" or "modified categorical approach." Under the categorical approach, the prior conviction only qualifies as a predicate if "the statute's elements are the same as, or narrower than, those of the generic offense." Id. This is a "formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; see also Moncrieffe v. Holder, 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) () (cleaned up).
The modified categorical approach is, as the name suggests, a variant on this. It is only applied to "so-called ‘divisible statute[s]’ " that "set[ ] out one or more elements of the offense in the alternative." Descamps, 570 U.S. at 257, 133 S.Ct. 2276. For divisible statutes, "the modified categorical approach permits sentencing courts to consult a limited class of documents ... to determine which alternative formed the basis of the defendant's prior conviction." Id. These Shepard documents are "limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [ ] some comparable judicial record of this information." Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). After determining the crime of conviction as narrowed, the court then conducts the same analysis as in the categorical approach, comparing the elements of the crime of conviction to the generic crime, still without looking to the facts underlying the conviction.
To determine the correct sentence, the court must address four subsidiary issues: (1) whether the state statute is divisible, meriting the modified categorical approach; (2) the elements of the generic federal crime; (3) the elements of the prior crime of conviction under state law; and (4) whether those elements of the state crime "relate" to the federal generic crime.
The predicate question is whether the statute is "divisible," in that it creates "different offenses, [some] more serious than the other[s]." Mathis v. United States, 579 U.S. 500, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). A statute that does not "list[ ] multiple elements disjunctively," but rather "enumerates various factual means of committing a single element," such that a jury could convict even if individual jurors disagreed on the factual means, is not divisible and does not merit the modified approach. Id. If the language of the statute is unclear as to whether it is describing different elements or different factual means, the court can look to the record of the prior conviction for clarification. Id. at 2257. If the indictment and correlative jury instructions, or plea colloquy, charge all of the alternate means or use an umbrella term, "[t]hat is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt." Id. "Conversely, an indictment and jury instructions [or plea colloquy] could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime." Id.
The enticement statute, which forms the basis for the prior state court conviction, provides:
The government argues that the enticement statute is divisible because the enumerated crimes are different elements, each going toward a different crime. I agree. Under established state caselaw, the jury must unanimously find beyond a reasonable doubt that the defendant intended to commit at least one of the enumerated crimes; "[w]here a defendant is charged with child enticement, the Commonwealth must prove not only that the defendant enticed a person under the age of sixteen, ... but also that the defendant so acted with the intent to violate one or more of the enumerated criminal statutes." Commonwealth v. Filopoulos, 451 Mass. 234, 884 N.E.2d 514, 518 (2008) ; see also Massachusetts Criminal Model Jury Instructions for Use in the District Court, Instruction 6.560, at 4 (2011 ed.) (providing that the court should "instruct on the elements of the offense which the defendant is alleged to have intended"). The Shepard documents make clear that Abreu pleaded guilty as to specific intended crimes. The Superior Court judge asked the defendant, "And in count 2, you are charged with ... enticing a child ... with intent that you or another person will violate — it would be the rape of a child statute, correct?" Dkt. 78-2 at 17–18. The Assistant District Attorney clarified that it was either that statute "[o]r indecent assault and battery," and Abreu confirmed that he understood that. Id. at 18.
The Court can look to this plea colloquy to determine the elements of the least serious of the two alternative crimes of conviction: enticement with the intent to commit indecent assault and battery on a child. Only this crime need relate to the generic crime to trigger the sentence enhancement.
To repeat, the federal statute provides for an enhanced sentence for a person who "has one prior conviction under ... the laws of any State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward." 18 U.S.C. § 2251(e). The Court must determine the definition of the generic crimes of "sexual abuse" and "abusive sexual contact involving a minor" for comparison with the elements of the prior crime of conviction. Typically, the statutory words are given their ordinary meaning. See United States v. Sullivan, 797 F.3d 623, 636–37 (9th Cir. 2015) (); see also United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015) (same).1
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