UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4729

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MATTHEW JOHN WIGGINS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Parkersburg. Robert C. Chambers, 

Chief District Judge. (6:13-cr-00183-1)

Submitted: June 30, 2015 Decided: July 24, 2015

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, David R. Bungard, Assistant Federal Public 

Defender, Charleston, West Virginia, for Appellant. R. Booth 

Goodwin II, United States Attorney, Lisa G. Johnston, Assistant 

United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Matthew John Wiggins was convicted after a bench trial of two 

counts of accessing with intent to view child pornography, 18 

U.S.C. § 2252A(a)(5)(B) (2012), and tampering with a witness, 18 

U.S.C. § 1512(b)(2)(B) (2012). He was sentenced to 210 months’ 

imprisonment. Wiggins appeals, arguing: (1) that 18 U.S.C. 

§ 2252A(a)(5)(B) is unconstitutionally vague, (2) the evidence was 

insufficient to support his conviction on one of the two counts 

charging a violation of § 2252A(a)(5)(B), and (3) the district 

court erred by allowing the inclusion of privileged mental health 

records in his presentence investigation report. Finding no error, 

we affirm. 

The evidence presented at Wiggins’ trial, viewed in the light 

most favorable to the Government, see United States v. Burgos, 94 

F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows. In 

January 2013, a report generated by the West Virginia Office of 

Information Security and Controls (OISC) revealed that a computer 

located at a public library in Parkersburg, West Virginia, had 

been used to access or attempt to access websites that had been 

identified as ones containing child pornography. James Amos, an 

information security officer with OISC, testified that, in 

response to that report, he began an investigation to monitor in 

real-time the activity on the IP address identified in the report. 

Amos prepared a Network Violation Report, including the IP address 
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and physical location, which showed a list of 26 to 32 images of 

child pornography that had been accessed on that computer on 

January 16, 2013. Amos then alerted the West Virginia state police 

Internet Crimes Against Children Task Force.

Based on information provided by Amos, Detectives Travis 

Wolfe, Pat Edelen, and James Stalnaker—all members of the Task 

Force—went to the Parkersburg public library on January 17, 2013, 

and found Wiggins seated at the computer terminal identified in 

the OISC report. At the same time, Amos was monitoring the 

computer and relaying information to the detectives, via 

telephone, that it was being used to access child pornography 

sites. A search of the library computer revealed 62 images of 

child pornography that had been accessed on January 17th. Records 

also established that Wiggins’ library card was used to access the 

computer identified in the OISC report on January 16 and 17. In 

addition, a library card issued to Wiggins’ former brother-in-law, 

Jody Payne, was used to access the same computer on January 16, 

2013. Jody testified that he had moved to Ohio in November 2012 

and left his library card and PIN number for Wiggins to use. 

The Government presented extensive testimony and reports 

showing that multiple sites were visited, displaying numerous 

visual depictions of minors engaged in sexually explicit conduct. 

At the close of evidence, the district court found Wiggins guilty 
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of both counts charging a violation of § 2252A(a)(5)(B), as well 

as witness tampering. 

The presentence report recommended a total offense level of 

32 (based on evidence that Wiggins accessed 347 images of child 

pornography); with a criminal history category of IV, Wiggins’ 

advisory Guidelines range was 168 to 210 months’ imprisonment. 

The report also included information from Wiggins’ prior 

participation in the Bureau of Prison’s Sex Offender Treatment 

Program, which he had completed in March 2000, as well as a 

psychological evaluation that he underwent in 2010 as part of a 

state prosecution for failing to register as a sex offender. In 

response to Wiggins’ objection to the inclusion of these materials 

in the PSR, the district court informed the parties that it would 

not rely upon any information included in the materials in arriving 

at an appropriate sentence. The court noted, however, that the 

information at issue could assist the Bureau of Prisons as well as 

Probation to provide appropriate treatment and monitoring. The 

court denied Wiggins’ request for a variance and imposed a sentence 

at the top of the advisory Guidelines range. Wiggins now appeals. 

Wiggins argues, first, that 18 U.S.C. § 2252A(a)(5)(B) is 

unconstitutionally vague because it fails to adequately define 

“access.” The “vagueness doctrine bars enforcement of a statute 

which either forbids or requires the doing of an act in terms so 

vague that men of common intelligence must necessarily guess at 
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its meaning and differ as to its application.” United States v. 

Lanier, 520 U.S. 259, 266 (1997) (internal quotation marks 

omitted). To enforce such a statute would “violate[] the first 

essential of due process of law.” Roberts v. U.S. Jaycees, 468 

U.S. 609, 629 (1984) (internal quotation marks omitted). However, 

a criminal statute is sufficiently definite if “the commonsense 

meaning” is clear. United States v. Powell, 423 U.S. 87, 93 

(1975)). 

We hold that the district court properly concluded that, while 

there is no case law directly on point, the term “accessing” is 

sufficiently clear to apprise men of ordinary intelligence of the 

statute’s prohibition. Wiggins’ multiple visits to websites 

containing images of child pornography, and the number of images 

that he viewed during those visits, clearly satisfies the 

definition of “access.” 

Next, Wiggins asserts that the evidence was insufficent to 

support his conviction on Count 4 (relating to January 17, 2013) 

because the only files found on the library computer were in the 

temporary Internet cache. 

In order to sustain a conviction under § 2252A(a)(5)(B), the 

Government must establish that the defendant: (1) knowingly 

accessed “some proscribed material”; (2) intended to view that 

material; and (3) knew that the material contained an image of 

child pornography. United States v. Brune, 767 F.3d 1009, 1020 
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(10th Cir. 2014). Our review of the record leads us to conclude 

that the evidence was sufficient to sustain Wiggins’ conviction. 

Finally, Wiggins argues that confidential documents protected 

by the therapist/patient privilege should not have been included 

in the PSR. Although federal law generally recognizes the 

privilege protecting confidential communications between a 

psychotherapist and patient, see Jaffee v. Redmond, 518 U.S. 1 

(1996), the presentence investigation is “not limited by 

traditional rules of evidence.” United States v. Corbitt, 879 

F.2d 224, 230 (7th Cir. 1989). Specifically, the Guidelines 

provide that, in making its sentencing decision, the district court 

“may consider relevant information without regard to its 

admissibility under the rules of evidence applicable at trial, 

provided that the information has sufficient indicia of 

reliability to support its probable accuracy.” United States 

Sentencing Guidelines Manual, § 6A1.3(a), p.s. (2014). See also

United States v. Nichols, 438 F.3d 437 (4th Cir. 2006) (recognizing 

that otherwise inadmissible evidence may sometimes be considered 

for sentencing purposes). 

We find that the district court did not err by allowing the 

inclusion of the two mental health reports in Wiggins’ presentence 

report. And, in any event, any error was harmless given the 

district court’s explicit statement that the information in those

reports would not be used in arriving at an appropriate sentence. 
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Therefore, we affirm Wiggins’ conviction and sentence. We 

dispense with oral argument because the facts and legal contentions 

are adequately presented in the materials before the Court and 

argument would not aid in the decisional process. 

AFFIRMED