United States Court of Appeals

For the First Circuit

No. 22-1390

UNITED STATES,

Appellee,

v.

SEAN J. TRAHAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Montecalvo, Selya, and Lynch,

Circuit Judges.

William W. Fick, with whom Fick & Marx LLP was on brief, for 

appellant.

Alexia R. De Vincentis, Assistant United States Attorney, 

with whom Joshua S. Levy, Acting United States Attorney, was on 

brief, for appellee.

August 8, 2024
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MONTECALVO, Circuit Judge. In October 2021, 

defendant-appellant Sean J. Trahan pleaded guilty to possession 

and knowing access with intent to view child pornography, both in 

violation of 18 U.S.C. § 2252A(a)(5)(B). The district court later 

sentenced Trahan to 126 months' imprisonment -- applying a

sentencing enhancement based on Trahan's prior state conviction

for possession of "visual material of child depicted in sexual 

conduct" that the court determined required the imposition of a

ten-year mandatory minimum under § 2252A(b)(2).1 On appeal from 

his sentence, Trahan insists that his state conviction should not 

have triggered the ten-year mandatory minimum because the 

enhancement provision of § 2252A(b)(2) cannot cover state 

1 We note that the terminology used across the states to 

describe "child pornography" is wide-ranging and many states have 

opted to use terms other than "child pornography." See, e.g., 

Utah Code Ann. § 76-5b-201(2) (criminalizing possession of "child 

sexual abuse material"); Ala. Code § 13A-12-191 (criminalizing 

"[d]issemination or public display of obscene matter containing 

visual depiction of persons under 17 years of age involved in 

obscene acts"); Alaska Stat. Ann. § 11.61.127 (criminalizing 

"[p]ossession of child pornography"); Ariz. Rev. Stat. Ann. 

§ 13-3553 (criminalizing possession of "visual depiction" of 

"sexual exploitation of a minor"); Ark. Code Ann. § 5-27-304 

(criminalizing possession of images "depicting sexually explicit 

conduct involving a child"); Cal. Penal Code § 311.1 

(criminalizing possession of "[o]bscene matter depicting sexual 

conduct by minor"); cf. EARN IT Act of 2023, S. 1207, 118th Cong. 

§ 6 (2023) (proposing that federal statutes replace the term "child 

pornography" with "child sexual abuse material," while retaining 

"the same legal meaning"). Here, we do not attempt to reconcile 

these many terms and, for clarity's sake, use, as appropriate, the 

terminology that Congress and the Massachusetts legislature have 

adopted. 
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convictions under statutes that criminalize more conduct than 

§ 2252A(b)(2) enumerates. 

Trahan also mounts an Alleyne challenge to the district 

court's imposition of a consecutive six-month sentence pursuant to 

18 U.S.C. § 3147 for an offense he committed while on pretrial 

release. See Alleyne v. United States, 570 U.S. 99 (2013). Trahan 

argues that, because of the application of the § 2252A(b)(2) 

mandatory minimum, the additional consecutive sentence based on an 

uncharged violation violated the Sixth Amendment. For the reasons 

that follow, we reject Trahan's arguments and affirm the sentence.

I. Background

As this appeal follows a guilty plea, our recitation of 

the facts is derived from "the undisputed sections of the 

presentence investigation report [('PSR')] and the transcripts of 

the change-of-plea and sentencing hearings." United States v. 

Spinks, 63 F.4th 95, 97 (1st Cir. 2023) (cleaned up) (quoting 

United States v. Ubiles-Rosario, 867 F.3d 277, 280 n.2 (1st Cir. 

2017)).

In 2015, the Federal Bureau of Investigation ("FBI")

initiated Operation Pacifier, a nationwide investigation targeting 

online access to images of minors engaged in "sexually explicit 

conduct." 18 U.S.C. § 2256(8). As part of that investigation,

the FBI identified an internet protocol ("IP") address associated 

with Trahan that had been used to access over 400 online 
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conversations with links to child pornography. The FBI executed 

a search warrant of the home linked to the IP address and found a 

computer, which Trahan admitted having exclusive access to and 

which contained "approximately ten images of child pornography."

Following the search, FBI agents arrested Trahan.

On October 27, 2020, a grand jury indicted Trahan on one 

count of possession of child pornography (count I) and one count 

of knowing access with intent to view child pornography (count 

II), both in violation of 18 U.S.C. § 2252A(a)(5)(B).2 In 

November, Trahan pleaded not guilty and was released with pretrial 

conditions. 

On September 8, 2021, following up on information from 

an out-of-state sheriff's office regarding an online chat group 

that contained child pornography, the FBI executed another search 

warrant of Trahan's house. This search yielded a tablet computer, 

which Trahan's pretrial conditions prohibited him from possessing. 

A search of the tablet revealed online conversations in which 

another user sent Trahan videos of child pornography. Trahan was 

then arrested and held in federal custody.

2 This was the second indictment related to the 2015 arrest. 

Trahan was originally indicted in November 2015. In the first 

proceeding, the district court granted Trahan's motion to dismiss 

the indictment for violations of the Speedy Trial Act, 18 U.S.C. 

§§ 3161 et seq., and dismissed the case without prejudice. 
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The government later filed a superseding information 

that realleged counts I and II and added a second count of

possession of child pornography based on the 2021 arrest (count 

III). Count III did not allege that Trahan committed the offense 

while on pretrial release nor did it reference 18 U.S.C. § 3147, 

the statute outlining the penalty for offenses committed while on 

release. Trahan waived his right to an indictment, consented to 

prosecution by information, and pleaded guilty to all three counts 

without a plea agreement. 

During the change-of-plea hearing, the government listed 

the range of possible criminal penalties, providing that each count 

"carries a mandatory minimum of ten years in prison because . . . 

Trahan has a prior state . . . conviction" for possession of visual 

material of child depicted in sexual conduct. Specifically with 

respect to count III, the government noted that Trahan committed 

the offense while on pretrial release, thus requiring additional 

imprisonment that "shall be consecutive to any other sentence of 

imprisonment" under § 3147. The government also summarized the 

facts that would support a conviction for count III. In 

particular, the government explained that when "the FBI obtained 

a search warrant for . . . Trahan's house and executed it on 

September 8, 2021," based on information regarding online child 

pornography sharing, "Trahan had been out on bail." After the 
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government provided the summary, Trahan agreed that it was a true 

description of the offenses. 

As alluded to, these were not Trahan's first offenses

involving images of children engaged in sexual conduct. In 2006, 

Trahan was convicted in Massachusetts state court of "possession 

of visual material of child depicted in sexual conduct" in 

violation of Mass. Gen. Laws ch. 272, § 29C ("§ 29C"). 

Accordingly, the PSR that the United States Probation Office for 

the District of Massachusetts ("Probation") prepared in advance of 

sentencing reflected a criminal history category of I and a 

mandatory minimum of ten years' incarceration for each count

pursuant to 18 U.S.C. § 2252A(b)(2). The PSR also noted that 

Trahan was "out on bail" when the FBI executed the September 8, 

2021 search warrant and subsequently arrested Trahan. Because 

Trahan committed the offense while on pretrial release, the PSR 

provided that § 3147 compelled an additional sentence that would 

not exceed ten years. The PSR reported a United States Sentencing 

Guidelines ("guidelines") range of 121 to 151 months. 

Trahan objected to the imposition of the mandatory 

minimum, arguing that "the prior conviction is not necessarily one 

relating to child pornography as that term is defined under federal 

law" because § 29C "criminalizes possession of images containing 

content that is not criminalized under the definitions in 18 U.S.C. 

§ 2256 governing federal child pornography offenses." In 
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response, Probation explained that it was "not aware of any First 

Circuit precedent that has found [§ 29C] to be overbroad in the 

context of . . . § 2252A" but deferred resolution of the objection 

to the court. Trahan also "object[ed] to the imposition of any 

consecutive term of imprisonment under . . . § 3147 arising from"

count III because it "would necessarily have the effect of 

increasing the mandatory minimum without a separate charge" in 

violation of Alleyne, 570 U.S. 99. Probation disagreed and made 

no change to the report. Trahan did not object to any of the 

factual allegations about the September 8, 2021 search warrant.

Also prior to sentencing, the parties filed sentencing 

memoranda for the district court's consideration. In its 

memorandum, the government agreed with Probation that the 

guidelines range was 121 to 151 months and requested a sentence of 

126 months -- "120 months concurrent for" each of the three counts 

and "6 months consecutive" for Trahan's violation of his pretrial 

release conditions. In addressing the applicability of the 

mandatory minimum, the government relied on the "relating to"

clause contained in § 2252A(b)(2), arguing that it "allows for [a]

state . . . offense to be [a] close but not necessarily exact"

match to the federal offense. As for the Alleyne challenge, the 

government emphasized that "[t]he application note for 

[guidelines] § 3C1.3 calls for using the § 3147 enhancement only 

as a means of calibrating where within the [guidelines] for the 
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underlying offense to sentence the defendant" and that it was 

recommending a sentence at the low end of the guidelines. 

For his part, Trahan agreed that the guidelines range 

was 121 to 151 months. Assuming the district court denied his 

objection to application of the mandatory minimum and his Alleyne

challenge, he requested a sentence of 121 months' imprisonment,

120 months for the three counts and one month consecutive pursuant 

to § 3147. But if the district court were to sustain his 

objections, he asked for a sixty-month sentence. He then 

reiterated his argument that § 2252A's enhancement provision could 

not apply in his case because § 29C's definition of "visual 

material of child depicted in sexual conduct" is broader than the 

federal definition of "child pornography." Thus, he argued that 

his prior § 29C conviction did not qualify as a "prior conviction" 

under § 2252A. Finally, he argued that the imposition of a 

sentence under § 3147 in addition to the mandatory minimum would 

increase the mandatory minimum absent a separate charge, thereby 

violating his Sixth Amendment rights. 

At the sentencing hearing, Trahan again objected to the 

imposition of the ten-year mandatory minimum and the additional

sentence under § 3147, relying on the arguments made in his 

sentencing memorandum. Through counsel, he requested "the lowest 

[sentence] the [district] court c[ould] impose legally."
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Before issuing the sentence, the district court 

determined that the ten-year mandatory minimum applied, explaining 

that it agreed with "the majority of circuits that have dealt with 

the question," and then explained that it was not persuaded by 

Trahan's Alleyne challenge. The district court then sentenced 

Trahan to a term of 120 months on each count, to be served 

concurrently, and to an additional six months pursuant to § 3147,

to be served consecutively, for a total of 126 months' 

imprisonment. Trahan timely appealed.

II. Discussion

Now, Trahan again raises his challenge to the district 

court's application of § 2252A(b)(2)'s mandatory minimum and its 

imposition of the additional § 3147 sentence. We address each in 

turn, and, for the reasons that follow, we reject both claims.

Accordingly, we affirm the district court's 126-month sentence. 

A. State-Conviction Sentence Enhancement

Trahan argues that Massachusetts' law criminalizing 

possession of "visual material of child depicted in sexual 

conduct," § 29C, is too broad to trigger the enhancement because 

"[i]t criminalizes possession of material that does not 

necessarily constitute child pornography as defined in Chapter 110 

of the U.S. Code."3 His argument largely turns on whether the 

3 In his opening appellate brief, Trahan also argued that 

§ 29C is too broad to trigger the enhancement because "it 
- 10 -

phrase "relating to" as used in the statute has a broadening effect

or not -- he argues that it does not. Thus, he contends that his 

Massachusetts state conviction cannot trigger application of the 

§ 2252A(b)(2) enhancement. The government argues that the phrase 

carries its usual broadening effect such that Trahan's 

Massachusetts conviction triggered the enhancement.

We review this preserved challenge de novo, ultimately 

agreeing with the government's interpretation. See United States

v. Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020) (holding that in 

sentencing appeals, "we review preserved claims of error for abuse 

of discretion" but "review . . . questions of law . . . de novo"); 

United States v. Kennedy, 881 F.3d 14, 19 (1st Cir. 2018) 

(explaining that whether statutory mandatory minimum applied is a 

legal question to be reviewed de novo).

We begin by setting forth the relevant statutory text. 

First, the enhancement itself. In relevant part, § 2252A(b)(2) 

provides that:

Whoever violates . . . subsection (a)(5)

[(knowing possession of access with intent to 

criminalizes an act -- purchase -- that [doe]s not necessarily 

entail one of the types of conduct enumerated in [§] 2252A(b)(2)."

However, Trahan abandoned this argument in his reply brief, 

acknowledging that "[a] prior offense for 'purchase' of [visual 

material of child depicted in sexual conduct] is, indeed, an 

offense 'relating to' the 'production, possession, receipt, 

mailing[,] sale, distribution, shipment[,] or transportation' of 

child pornography." (quoting § 2252A(b)(2)). Thus, we need not 

consider this argument or address the government's contention that 

it was not preserved for review.
- 11 -

view child pornography)] shall be fined under 

this title or imprisoned not more than [ten]

years, or both, but, . . . if such person has 

a prior conviction . . . under the laws of any 

State relating to aggravated sexual abuse, 

sexual abuse, or abusive sexual conduct 

involving a minor or ward, or the production, 

possession, receipt, mailing, sale, 

distribution, shipment, or transportation of 

child pornography, such person shall be fined 

under this title and imprisoned for not less 

than [ten] years nor more than [twenty] years.

(Emphases added). Section 2256 of Title 18, which applies to all 

of Chapter 110, including § 2252A, defines "child pornography" as 

"any visual depiction" of a minor engaged in "sexually explicit 

conduct," also specifying the types of depictions and types of 

minor involvement (i.e., actual or apparent use of a minor) that 

qualify as child pornography. See 18 U.S.C. § 2256(8). As will 

become clear, the federal provision defines "sexually explicit 

conduct," the essential component of the definition of child 

pornography, relatively narrowly. See id. Under the federal 

definition, "sexually explicit conduct" is limited to: 

[A]ctual or simulated --

(i) sexual intercourse, including 

genital-genital, oral-genital, 

anal-genital, or oral-anal, whether 

between persons of the same or opposite 

sex;

(ii) bestiality; 

(iii) masturbation; 

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the anus, 

genitals, or pubic area of any person.

Id. § 2256(2)(A).
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Section 29C prohibits the knowing purchase or possession 

of "visual material of child depicted in sexual conduct,"4

similarly specifying the types of depictions that qualify as 

prohibited material. The Massachusetts statute criminalizes 

material that depicts a minor who is actually or by simulation:

(i) . . . engaged in any act of sexual 

intercourse with any person or animal; 

(ii) . . . engaged in any act of sexual 

contact involving the sex organs of the child 

and the mouth, anus or sex organs of the child 

and the sex organs of another person or 

animal; 

(iii) . . . engaged in any act of 

masturbation; 

(iv) . . . portrayed as being the object of, 

or otherwise engaged in, any act of lewd 

fondling, touching, or caressing involving 

another person or animal;

(v) . . . engaged in any act of excretion or 

urination within a sexual context; 

(vi) . . . portrayed or depicted as bound, 

fettered, or subject to sadistic, masochistic, 

or sadomasochistic abuse in any sexual 

context; 

(vii) depicted or portrayed in any pose, 

posture or setting involving a lewd exhibition 

of the unclothed genitals, pubic area, 

buttocks or, if such person is female, a fully 

or partially developed breast of the child.

Mass. Gen. Laws ch. 272, § 29C.

Though the parties agree that § 29C covers "a broader 

swath of conduct" than § 2252A, we specifically note the main area 

4 Trahan seems to think that there is something significant 

about the Massachusetts General Assembly's decision to refrain 

from using the term "child pornography," but he fails to explain 

how this should impact our analysis. 
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of divergence between the two laws: the descriptions in subsections 

(iv), (v), and (vii) of § 29C clearly cover depictions that would 

not be covered by § 2252A (per the definitions provided in 

§ 2256(2)(A)). Thus, we accept Trahan's contention that § 29C is 

broader than its federal counterpart. 

Thus, we turn to the question before us, which is, at 

its core, what role the phrase "relating to" plays when it comes 

to determining whether a state conviction triggers the federal 

sentence enhancement. We conclude that the phrase here takes on 

its usual broad meaning and its inclusion means that a state 

definition need not be a perfect match with the federal definition

of child pornography in order to trigger application of the 

mandatory minimum. Rather, the state crime must merely be "related 

to" the federal definition of child pornography. In so concluding,

we join four of the six circuits to have already considered this 

question.5 See United States v. Bennett, 823 F.3d 1316, 1322 (10th 

Cir. 2016) (concluding that "the offense need only stand in some 

relation to, pertain to, or have a connection with" child 

pornography to trigger § 2252A(b)(2)'s enhancement (cleaned up)); 

5 As indicated in each case's parenthetical, many of these 

circuit opinions addressed 18 U.S.C. § 2252's identically worded 

enhancement for "certain activities relating to material involving 

the sexual exploitation of minors." 18 U.S.C. § 2252 (emphasis 

added); see id. § 2252(b)(1). Given the identical operative 

language, we assume that those circuits would apply the same 

analysis to § 2252A's enhancement.
- 14 -

United States v. Liestman, 97 F.4th 1054, 1065 (7th Cir. 2024) 

(analyzing identical provision in 18 U.S.C. § 2252 and concluding 

"that 'relating to' . . . brings within the ambit of the 

enhancement any prior offense that categorically bears a 

connection with . . . 'the production, possession, receipt, 

mailing, sale, distribution, shipment, or transportation of child 

pornography'"); United States v. Portanova, 961 F.3d 252, 256 (3d 

Cir. 2020) (analyzing § 2252's enhancement and concluding that 

"the phrase 'relating to' must be read expansively and encompasses 

crimes other than those specifically listed in the federal 

statutes" (cleaned up)); United States v. Mayokok, 854 F.3d 987, 

992-93 (8th Cir. 2017) (analyzing § 2252's enhancement and 

concluding that "'relating to' carries a broad ordinary meaning"

and that state and federal statutes need not "criminalize exactly 

the same conduct"). But see United States v. Reinhart, 893 F.3d 

606, 616 (9th Cir. 2018) (analyzing § 2252 and concluding that 

"relating to" must be read narrowly and requiring a categorical 

match between state definition and federal definition of child 

pornography); United States v. Davis, 751 F.3d 769, 776-77 (6th 

Cir. 2014) (concluding that state conviction did not trigger 

§ 2252's enhancement because state's definition was broader than 

federal definition of child pornography).

At first, Trahan asked us to conclude that, in order for 

a state crime to "relate to" child pornography, there must be an 
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exact match between the state definition and the federal definition 

of child pornography -- or that the state definition cover no more 

than the federal definition of child pornography. Seeming to 

realize that this construction would be problematic because it 

wholly ignores the "relating to" phrase that Congress included in 

the provision, Trahan shifted gears in his reply. Trahan argued 

there that "relating to" referred only to the actions listed in 

§ 2552A(b)(2) -- "production, possession, receipt, mailing, sale, 

distribution, shipment, or transportation" -- and not to the object 

-- the federal definition of child pornography. Thus, in this 

formulation, the action a state law criminalizes need not match 

the actions listed in § 2252A(b)(2), but the state definition 

cannot be more expansive than the federal definition of child 

pornography. Neither argument is availing. 

First, Trahan's argument that "relating to" applies only 

to the listed actions and not to "child pornography" is both 

forfeited and waived because he did not raise the argument below, 

see In re Redondo Const. Corp., 678 F.3d 115, 121 (1st Cir. 2012) 

("It is black-letter law that arguments not presented to the trial 

court are, with rare exceptions, forfeit on appeal."), and because 

he raised it for the first time in his reply brief, see United 

States v. Casey, 825 F.3d 1, 12 (1st Cir. 2016) ("[A]rguments 

raised for the first time in an appellate reply brief [are]
- 16 -

ordinarily deemed waived.").6 However, even affording Trahan the 

benefit of plain error review, his argument cannot prevail. To 

succeed under that standard, Trahan must establish "four elements: 

'(1) that an error occurred (2) which was clear or obvious and 

which not only (3) affected the defendant's substantial rights, 

but also (4) seriously impaired the fairness, integrity, or public 

reputation of judicial proceedings.'" United States v. Lessard, 

35 F.4th 37, 42 (1st Cir. 2022) (quoting United States v. Duarte, 

246 F.3d 56, 60 (1st Cir. 2001)). Trahan cannot shoulder this 

heavy burden.

Indeed, we can quickly dismiss Trahan's contention that 

"relating to" applies only to the actions listed in § 2252A(b)(2) 

("production, possession, receipt, mailing, sale, distribution, 

shipment, or transportation") and not the federal definition of

child pornography. There is no textual indication that "relating 

to" refers exclusively to the listed actions, and Trahan has 

provided no compelling explanation as to why we should so conclude. 

In any event, the series-qualifier canon of statutory 

6 At oral argument, Trahan's counsel contended that this was 

simply an "expansion" of his arguments below and a natural response 

to the government's responsive brief. We disagree with this 

description as this argument was self-evident from the beginning 

and is not a natural counter to the government's position. Nor is 

it a reframing or expansion of his arguments presented below. 

Trahan's reply brief presents a wholly new construction of § 2252A 

that rests on the abandonment of an earlier argument. See supra

note 3.
- 17 -

interpretation is instructive here. See Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 147 (2012). 

Per that canon, "[w]hen there is a straightforward, 

parallel construction that involves all nouns or verbs in a series, 

a prepositive or postpositive modifier normally applies to the 

entire series." Id. at 147. As with any canon of statutory 

interpretation, the series-qualifier canon aims to capture "the 

most natural reading of a sentence," Facebook, Inc. v. Duguid, 592 

U.S. 395, 403 (2021), but the reading resulting from the canon "is 

not an absolute and can assuredly be overcome by other indicia of 

meaning," Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Using this 

canon, we naturally read § 2252A(b)(2) as providing that the 

enhancement is triggered by a prior conviction "relating to" each 

and every one of the listed actions in the statute. The result is

any conviction that is related to the production of child 

pornography or related to the possession of child pornography (and 

so on with respect to the receipt of child pornography, the mailing 

of child pornography, the sale of child pornography, the 

distribution of child pornography, the shipment of child 

pornography, or the transportation of child pornography) would 

call for applying the sentencing enhancement. As we will explain, 

the statutory context and legislative history likewise compel us 

to conclude that "relating to" modifies both the listed action and 

the statutorily defined noun (child pornography). 
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Thus, we turn to Trahan's original argument and the focus 

of this appeal: does "relating to" retain its ordinary broad 

meaning? Here, we begin with the important presumption of 

statutory construction that "unless otherwise defined, words will 

be interpreted as taking their ordinary, contemporary, and common 

meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). It is 

well established that the phrase "relating to" has a broad meaning. 

See Silva v. Garland, 27 F.4th 95, 103 (1st Cir. 2022) ("[T]he 

ordinary meaning of the phrase 'relating to' is 'a broad one

. . . .'" (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 

374, 383-84 (1992))); United States v. Winczuk, 67 F.4th 11, 17 

(1st Cir. 2023) ("[W]hen asked to interpret statutory language 

including the phrase 'relating to,' . . . [the Supreme] Court has 

typically read the relevant text expansively." (quoting Lamar, 

Archer & Cofrin, LLP v. Appling, 584 U.S. 709, 717 (2018)) 

(alterations in original)). 

In Mellouli v. Lynch, however, the Supreme Court 

explained that "relating to" does not always have a broadening 

effect and that statutory context and history can counsel in favor 

of a narrow reading of the phrase. See 575 U.S. 798, 811-12

(2015). Trahan relies in part on Mellouli, arguing that contextual 

indicia require construing "relating to" narrowly here. In 

Mellouli, the Supreme Court analyzed a statute that subjected a

non-citizen to deportation based on a "convict[ion] of a violation 
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of . . . any law or regulation of a State, the United States, or 

a foreign country relating to a controlled substance (as defined 

in [the federal Controlled Substances Act])." Id. at 801 (emphasis 

added) (quoting 8 U.S.C. § 1227(a)(2)(B)(i)). The petitioner was 

convicted of a state offense for possession of drug paraphernalia 

-- specifically, a sock that concealed a substance categorized as 

a controlled substance under state law but not federal law. See

id. at 803-04. The Court held that § 1227's use of "relating to"

did not have its ordinary broad meaning but instead warranted 

application of the strict categorical approach such that a state 

crime must criminalize no more than the federal law in order to 

trigger removal. See id. at 803. In particular, the Court pointed 

to the statute's "historical background" as evidence that 

"Congress and the [Board of Immigrations Appeals] have long 

required a direct link between [a non-citizen's] crime of 

conviction and a particular federally controlled drug." Id. at 

812. Without such a link in the petitioner's case, the Court 

concluded that removal was only appropriate where a non-citizen 

had been convicted of a drug offense for a drug listed in the 

federal Controlled Substances Act. See id. at 813. 

Trahan contends that Mellouli is controlling here. But 

unlike 29 U.S.C. § 1227, the statute at issue in Mellouli, the 

text and context of § 2252A are entirely consistent with "relating 

to" having a broadening effect rather than a narrowing one.
- 20 -

To begin, the Court in Mellouli acknowledged that the 

phrase "relating to" generally has a broadening effect, but the 

Court also made clear that "relating to" does not have a static 

statutory definition; rather, context, which includes legislative

history, may dictate the extent to which the term broadens or 

narrows the statute's coverage. See id. at 811–12. So Trahan is 

incorrect to read Mellouli as establishing a new definition of the 

phrase. 

Here, the context of § 2252A points toward using the 

term's usual broadening effect. First, the history of § 2252A and 

surrounding statutes evinces Congress's intent to expand criminal 

liability for child-pornography offenses and to widen the breadth

of conduct that can trigger mandatory minimums for federal crimes

involving child pornography. See, e.g., Child Protection Act of 

1984, Pub. L. No. 98-292, §§ 2-5, 98 Stat. 204, 204-05 (1984) 

(removing "for the purpose of sale or distribution for sale" and 

"for pecuniary profit" from § 2252 to ensure both commercial and 

noncommercial conduct covered); Crime Control Act of 1990, Pub. L. 

No. 101-647, § 323(a)(4), 104 Stat. 4789, 4818-19 (1990) (adding 

simple possession to § 2252); Violent Crime Control and Law 

Enforcement Act of 1994, Pub. L. No. 193-322, § 160001(e), 108 
- 21 -

Stat. 1796, 2036-37 (1994) (adding attempt and conspiracy to 

§ 2252).7 

In part, these efforts sought to address the 

"misconception" that child-pornography offenses "are not serious"

and are, accordingly, subject to lenient sentences. See, e.g., 

H.R. Rep. No. 108-66, at 51 (2003). An expansive reading of 

§ 2252A(b)(2)'s "relating to" neatly aligns with Congress's intent

to dispel such a misconception. Indeed, Trahan's reading of the 

statute makes little sense given that, at the time this provision 

became law, a majority of states had broader definitions of what 

constitutes child pornography than the then-newly-enacted federal 

definition of child pornography.8 Trahan's approach would thus 

7 We note here that "the difference [between § 2252 and 

§ 2252A] is that the former statute is directed only to depictions 

of actual minors while the latter includes [minors] but extends 

also to those who only appear to be minors or are fictitious 

creations but appear real." United States v. Hilton, 257 F.3d 50, 

57 (1st Cir. 2001). 

8 When the pertinent language was added to § 2252A(b)(2) in 

1996, at least thirty-one states had definitions of material 

depicting children engaged in sexual conduct that were broader 

than the federal definition of child pornography. See

§ 2252A(b)(2) (1996) (adding state conviction "relating to" child 

pornography to enhancement provision); § 2256(8) (current version

substantially similar to that in effect in 1996). See also 1990 

Alaska Sess. Laws Ch. 161, § 1 (including "lewd touching of" a 

person or child's "breast"); 1996 Ariz. Legis. Serv. 601 (including 

"defecation or urination"); 1995 Ark. Acts 5803 (including "[l]ewd

exhibition of . . . the breast of a female"); 1996 Cal. Stat. 7372

(including "[d]efecation or urination"); 1979 Colo. Sess. Laws 

737-39 (including "touching . . . clothed or unclothed . . . 

buttocks [or] breasts"); 61 Del. Laws 575 (1977) (including 

"nudity"); 1991 Fla. Laws 262 (including "contact with . . . 

clothed or unclothed . . . buttocks[] or . . . breast"); 1987 Ga. 
- 22 -

Laws 1165 (including "[p]hysical contact . . . with . . . 

buttocks[] or . . . nude breasts"); 1992 Idaho Sess. Laws 440

(including touching of buttocks or breasts and display of breasts);

1994 Ill. Laws 2818 (including "lewd exhibition of the unclothed 

. . . buttocks[] or . . . breast"); 1995 Ind. Acts 2377 (including 

"any fondling or touching of a child . . . intended to arouse or 

satisfy the sexual desires of either the child or the other 

person"); 1989 Iowa Acts 538 (including "nudity of a minor"); 1986 

Ky. Acts 1147 (including "excretion" and "exposure . . . of the 

unclothed or apparently unclothed . . . buttocks[] or the female 

breast"); 1988 Mass. Acts 755-58 (including "exhibition in a state 

of nudity"); 1994 Mich. Pub. Acts 2150(including "touching . . . 

clothed or unclothed . . . buttocks[] or . . . breasts" and 

"passive sexual involvement"); 1983 Minn. Laws 540 (including 

"[p]hysical contact or simulated physical contact with the clothed 

or unclothed . . . buttocks . . . or the breasts"); 1995 Miss. 

Laws 488 (including "[f]ondling or other erotic touching of the 

. . . buttocks . . . or breast"); 1994 Mo. Laws 1133 (including 

"any touching of . . . the breast . . . [or any such touching 

through the clothing]" (alteration in original)); 1995 Mont. Laws 

533 (including "lewd exhibition of the . . . breasts . . . or other 

intimate parts" and "defecation [and] urination"); 1986 Neb. Laws 

1018 (including "display of . . . the human female breasts"); 1995

Nev. Stat. 950 (including "excretion"); 1995 N.J. Laws 599

(including "[n]udity"); 1993 N.C. Sess. Laws 587 (including 

"[u]ncovered, or less than opaquely covered . . . buttocks[] or 

the nipple or any portion of the areola of the human female 

breast"); 1996 Ohio Laws 5001 (including "any touching of an 

erogenous zone of another, including without limitation the thigh, 

genitals, buttock, pubic region, or, if the person is a female, a 

breast, for the purpose of sexually arousing or gratifying either 

person"); 1984 Okla. Sess. Laws 336 (including "any act of 

excretion in the context of sexual activity"); 1995 Pa. Legis. 

Serv. 991 (including "nudity"); 1987 S.C. Acts 1137 (including 

"touching . . . of the clothed or unclothed . . . buttocks . . . 

or the clothed or unclothed breasts"); 1990 Tenn. Pub. Acts 940 

(including "physical contact with or touching of . . . clothed or 

unclothed . . . buttocks[] or breasts"); 1995 Va. Acts 1775

(including "nudity") & 1976 Va. Acts 593 (defining "nudity" to 

include "a state of undress so as to expose the . . . buttocks 

with less than a full opaque covering[] or the showing of the 

female breast with less than a fully opaque covering of any portion 

thereof below the top of the nipple"); 1989 Wa. Sess. Laws 161 

(including "defecation or urination"); 1986 W. Va. Acts 1359 

(including "[e]xcretory functions in a sexual context").
- 23 -

preclude the government from applying the enhancement in any 

instance where the state law included a broader definition than 

the federal statute -- flying in the face of clear congressional 

intent.

Finally, unlike Mellouli, "a broad reading of the 

enhancement provision does not stretch [§ 2552A] 'to the breaking 

point.'"9 Bennett, 823 F.3d at 1323 (quoting Mellouli, 575 U.S. 

at 811). Thus, Mellouli does not require a narrow reading of 

§ 2252A(b)(2)'s "relating to," and we conclude that it carries its 

usual broad meaning. We thus join the other courts of appeals 

that have read Mellouli as turning not on the definition of 

"relating to" but on the particular removal statute's surrounding 

9 Other courts have found significant that § 2252A has no 

"link" to § 2256's definition of child pornography. In other

words, courts have emphasized that § 2252A(b)(2) does not cite to 

the specific subsection of § 2256 that defines child pornography. 

See, e.g., United States v. Bennett, 823 F.3d 1316, 1323 (10th 

Cir. 2016). In Bennett, the Tenth Circuit emphasized that the 

statute at issue in Mellouli explicitly "linked" to the federal 

definition, thereby creating an explicit limiting principle for

the phrase "relating to" vis-à-vis federal drug regulations. Id.

(citing Mellouli v. Lynch, 575 U.S. 798, 808 n.9 (2015))). We 

find little to no significance in the fact that § 2252A(b)(2) does 

not specifically cite to § 2256 as § 2256 makes clear that it 

applies to all statutes within Chapter 110 (where § 2252A also 

appears). The statute at issue in Mellouli, however, was the 

Immigration and Nationality Act (contained in Title 8) and the 

referenced statute, the Controlled Substances Act (contained in 

Title 21), was in an entirely different title. Mellouli, 575 U.S. 

at 801-02. Thus, the statute had to provide a direct "link" to 

the controlling definition. Here, the federal child pornography

definition similarly provides a controlling definition, but that 

does not counsel in favor of a narrower reading of the phrase 

"relating to" especially given the text and context of the statute.
- 24 -

text and history. See United States v. Kraemer, 933 F.3d 675, 681 

(7th Cir. 2019); United States v. Sullivan, 797 F.3d 623, 639-40 

(9th Cir. 2015); Bennett, 823 F.3d at 1322-23. 

Thus, having decided that § 2252A(b)(2)'s enhancement 

can be triggered by a broader state law because the phrase 

"relating to" has a broadening effect, we turn to whether § 29C's 

definition of "visual material of child depicted in sexual conduct"

categorically relates to "child pornography" as defined by federal 

law. We need not spend much time on whether the Massachusetts 

definition of "visual material of child depicted in sexual conduct" 

relates to the federal definition of "child pornography" as the

core purposes of the statutes are the same -- both address the 

market for images of sexual abuse of children. Furthermore, Trahan 

makes no argument that the Massachusetts definition is not related 

to the federal definition -- he relies only on his argument that 

"relating to" does not extend past the listed actions and does not 

carry its usual broadening effect. 

For these reasons, we affirm the district court's 

application of § 2252A(b)(2)'s 10-year mandatory minimum.

B. Alleyne Challenge

Trahan next argues that, if we affirm the district 

court's imposition of the mandatory minimum, the sentencing 

court's additional imposition of the six-month consecutive 

sentence for the offense Trahan committed while on release violated 
- 25 -

his Sixth Amendment rights. See Alleyne, 570 U.S. at 117. Under 

Alleyne, "any fact leading to the imposition of a mandatory minimum 

sentence must be found by a jury beyond a reasonable doubt." 

Butterworth v. United States, 775 F.3d 459, 461 (1st Cir. 2015)

(emphasis added). 

Trahan contends that, because he was not charged with 

violating § 3147 -- but was instead charged with an additional

possession charge -- the district court's decision to impose an 

additional six-month sentence pursuant to § 3147 violated Alleyne. 

It is not clear whether Trahan is arguing that § 3147, the 

enhancement statute, had to be included as a separate charge in 

the information or whether he is arguing that the mere fact that 

he committed the second possession violation while on pretrial 

release had to be charged. To the extent Trahan seeks to argue 

the former, his argument fails on its face. Alleyne deals with 

uncharged facts, not uncharged enhancement statutes. Moreover, 

Trahan has failed to support or fully explain this argument, and, 

so, we treat it "as insufficiently developed and, thus, waived." 

United States v. Boudreau, 58 F.4th 26, 32 (1st Cir. 2023). To 

the extent Trahan seeks to argue the latter, we conclude that any 

error was harmless.10

10 For the purposes of harmless error review, we assume without 

deciding that the additional sentence violated Alleyne. Further, 

we need not decide whether, as the government contends, that, even 

assuming that § 3147 effectively raised the mandatory minimum, 
- 26 -

Preserved Alleyne challenges are reviewed de novo. See

United States v. Gonzalez, 981 F.3d 11, 16 (1st Cir. 2020). In 

this Circuit, it is well established that Alleyne challenges are 

subject to harmless error review. See United States v. McIvery, 

806 F.3d 645, 649-50 (1st Cir. 2015); see also Erlinger v. United 

States, 602 U.S. --, 144 S. Ct. 1840, 1860 (2024) (Roberts, C.J., 

concurring); id. at 1866 (Jackson, J., dissenting).

Where, as here, the [claimed] error is of 

constitutional dimension and has been 

preserved below, the harmless error standard 

requires the government to "prove that the 

error was harmless beyond a reasonable doubt, 

or, put another way, that it can fairly be 

said beyond any reasonable doubt that the 

assigned error did not contribute to the 

result of which the appellant complains."

McIvery, 806 F.3d at 650 (quoting United States v. Pérez-Ruiz, 353 

F.3d 1, 17 (1st Cir. 2003)). When reviewing Alleyne challenges 

for harmless error, "overwhelming evidence" of the uncharged fact 

at issue "generally serves as a proxy for determining whether the 

Alleyne error contributed to the result." Id. at 650-51 (quoting 

United States v. Morris, 784 F.3d 870, 874 (1st Cir. 2015)). Put 

simply, the question under harmless error is whether there is 

"overwhelming evidence," id. at 650, of the uncharged fact -- here, 

whether Trahan committed count III while on pretrial release.11 If 

Almendarez-Torres v. United States, 523 U.S. 244 (1998), provides 

an exception to Alleyne. 

11 Trahan argues that any error could not be harmless because 

he received six additional months of incarceration pursuant to 
- 27 -

there is overwhelming evidence of that fact, Trahan suffered no 

violation of his Sixth Amendment rights. 

Here, the government has established overwhelming 

evidence that Trahan committed count III while on pretrial release. 

Specifically, at Trahan's change-of-plea hearing, the government 

stated that Trahan was "out on bail" during the September 8, 2021 

search, which resulted in count III of the information, and Trahan 

agreed that this allegation was true. Cf. United States v. 

Jiminez, 498 F.3d 82, 87 (1st Cir. 2007) (concluding that there 

was "sufficient factual basis" for defendant's guilty plea where 

he "conceded" " government's proffered facts . . . to be true"). 

Further, the PSR also provided that Trahan was "out on bail" when 

the FBI executed the September 8, 2021 search, and Trahan did not 

object to that statement either. See United States v. Bregnard, 

951 F.2d 457, 460 (1st Cir. 1991) ("Time and again we have held 

that facts stated in presentence reports are deemed admitted if 

they are not challenged in the district court."). These two 

admissions constitute "overwhelming evidence" that Trahan 

committed count III while on pretrial release. Therefore, any 

error was harmless. 

§ 3147, arguing that the additional sentence constitutes harm. 

This misconstrues the focus of the harmlessness inquiry in Alleyne

challenges. As the government points out, Trahan's argument on 

harmlessness only addresses whether there was an Alleyne error, 

not whether any Alleyne error was harmless. 
- 28 -

III. Conclusion

For the forgoing reasons, we affirm Trahan's sentence.