                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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




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