United States v. Tassin
| Docket Number | 21-12017 |
| Decision Date | 06 July 2022 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MATTHEW TASSIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:19-cr-80064-RAR-1 Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
After pleading guilty, Matthew Tassin appeals his two convictions and sentences for distribution and possession of child pornography. On appeal, Tassin argues that the district court (1) abused its discretion by not sua sponte inquiring into his competence; (2) erred by determining that it lacked authority to consider new sentencing objections when the district court resentenced him; (3) plainly erred by imposing a procedurally unreasonable sentence because it applied two unnecessary enhancements; (4) abused its discretion by imposing a substantively unreasonable sentence and (5) plainly erred by applying certain special conditions of supervised release. After review, we affirm the district court's rulings.
In January 2019, an undercover agent working with the FBI Child Exploitation Task Force was on "KiK," an online social networking chat application, in a chatroom by and for people who wanted to trade and access child pornography. The agent identified a user, "Mike T," who was later revealed to be Tassin. The agent observed another KiK user tell Tassin that he would be removed if he did not post "material." Because Tassin did not post anything, he was subsequently removed from the room. When Tassin re-entered the room, he posted a hyperlink to a separate website, which had a folder titled "Cindy" that included six subfolders, each containing images and videos of child pornography.
Through KiK and Comcast, the FBI located Tassin's residence in Palm Beach Gardens, Florida, and agents executed a search warrant in April 2019. In an interview with law enforcement, Tassin admitted (1) he shared and received child pornography; (2) he generally searched for girls 12 years old and younger; (3) he would use those images to trade with other KiK users in the group; (4) he was addicted to child pornography and beer; and (5) he would watch child pornography and communicate with other KiK users about child pornography in his "beer room" or "man cave," a room in his house with a television and thousands of empty beer cans piled several feet high.
An examination of Tassin's phone identified hundreds of communications with other KiK users as well as child pornography images and videos sent and received in a group called "Tween Share Safe Room." Specifically, Tassin distributed three videos of a 12- to 13-year-old girl being sexually abused by an adult male. His phone contained 123 child pornography videos, 21 child pornography photographs, 1 video containing child pornography bondage, and 2 videos of child pornography where the victims were under the age of 5. Two of the victims in the videos and photographs on Tassin's phone were identified by the National Center for Missing and Exploited Children. Further, Tassin's custom computer tower discovered at his residence also contained child pornography.
A grand jury charged Tassin with (1) 2 counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) (Counts 1 and 2); and (2) 1 count of possession of material involving the sexual exploitation of minors under 12 years old, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count 3). Pursuant to a written plea agreement, Tassin pled guilty to Counts 2 and 3, in exchange for the dismissal of Count 1.
During the plea colloquy and while Tassin was under oath, Tassin confirmed that he (1) had never been treated for any mental illness or alcohol addiction; (2) was not under the influence of any drugs or alcohol; (3) had not ingested any drugs or alcohol in the last 48 hours; and (4) was not currently under the care or treatment of any physician, psychologist, or psychiatrist. The district court then inquired into Tassin's ability to understand the plea colloquy:
The district court also confirmed that Tassin had reviewed and discussed the indictment with his attorney and that Tassin was fully satisfied with his attorney's representation.
The government read the elements of Counts 2 and 3, and defense counsel agreed that the government correctly stated the elements of both charges. Tassin confirmed that he and his counsel went through the charges, the elements of those charges, and the possible penalties and sentencing guidelines-including the five-year mandatory minimum sentence for Count 2.
The district court went over the written plea agreement with Tassin, who confirmed that he understood it in its entirety and had discussed it with his attorney. Tassin also stated that he understood the statutory penalties and maximum prison terms for each count. The district court also confirmed that Tassin had signed and reviewed the factual proffer, which Tassin agreed was an adequate recitation of the facts.
Having concluded that Tassin was fully competent and capable of entering into the plea agreement and aware of the nature of the charges and consequences of his plea, the district court accepted Tassin's guilty plea to Counts 2 and 3 of the indictment.
Tassin's presentence investigation report ("PSI") grouped Counts 2 and 3. Tassin's PSI calculated a total offense level of 37, using: (1) a base level offense of 22 under U.S.S.G. § 2G2.2(a)(2) because the offense involved the distribution of child pornography; (2) a two-level increase under § 2G2.2(b)(2) because the material involved a minor under 12 years old; (3) a five-level increase under § 2G2.2(b)(3)(B) because Tassin distributed child pornography in exchange for valuable consideration-i.e., access to certain chatrooms and other child pornography; (4) a four-level increase under § 2G2.2(b)(4)(A) because the offense involved material that portrayed sadistic or masochistic conduct; (5) a two-level increase under § 2G2.2(b)(6) because the offense involved the use of a computer for the possession, transmission, receipt, or distribution of the material; (6) a five-level increase under § 2G2.2(b)(7)(D) because the offense involved 600 or more images; and (7) a three-level decrease under § 3E1.1(a)-(b) for acceptance of responsibility.
Because Tassin had no criminal history, he had a criminal history category of I. Based on a total offense level of 37 and a criminal history category of I, the advisory guidelines imprisonment range was 210 to 262 months. For Count 2, the statutory range of imprisonment was 5 to 20 years, and for Count 3, the statutory maximum term of imprisonment was 20 years. The statutory requirements and guidelines range for supervised release was five years to life for both counts.
The PSI also recommended special conditions for Tassin's supervision. In relevant part, the PSI recommended that Tassin (1) submit to periodic unannounced examinations of his computer equipment; (2) be prohibited from possessing or using any data encryption technique or program; (3) be prohibited from possessing or using a computer that contained an internal, external, or wireless modem without court approval; (4) allow his computer related restrictions to be disclosed to any employer or potential employer; and (5) be prohibited from possessing or exchanging any visual depictions of minors or adults engaged in sexually explicit conduct.
The PSI also noted that Tassin had reported that he was healthy, had no history of mental or emotional problems, and was not taking any prescription medication. The PSI reported that Tassin (1) began drinking at the age of 16; (2) was drinking at least a 12 pack of beer every day for the past 5 years; and (3) had no history of prior substance abuse treatment but was interested in treatment while incarcerated.
Tassin filed no objections to the PSI. Rather, Tassin filed a written motion for a downward departure in the offense level calculation on the basis that the two-level enhancement for his offenses involving the use of a computer was cumulative and unnecessary because possessing and distributing child pornography cannot be accomplished without a computer.
At sentencing, the district court noted and both parties confirmed that there were no objections to the advisory guidelines range calculations of 210 to 262 months' imprisonment. The district court adopted the PSI "without objections."
As to Tassin's downward departure motion, the district court acknowledged that the vast majority of these child pornography offenses are committed by computer but denied the motion because the offense could be committed without the use of a computer.
Tassin also orally requested a downward variance because he had no criminal history, his family supported him, and he cooperated with the government. Moreover, Tassin noted that he would be amenable to mental health counseling. The government responded that its recommendation was on the low end of the guidelines followed by at least 20 years of supervised release. Turning to the § 3553(a) factors, the government pointed out that Tassin had well over 100 photos and videos...
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