United States v. Michael Begin

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3896

_____________

UNITED STATES OF AMERICA

v.

MICHAEL EUGENE BEGIN,

a/k/a Mike

Michael Eugene Begin,

Appellant

_____________

On Appeal from the District Court

for the Western District of Pennsylvania

(No. 10-CR-22)

District Judge: Honorable Maurice B. Cohill, Jr.

_____________

Argued July 13, 2012

Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges

(Opinion Filed: October 9, 2012)

Karen S. Gerlach, Esq. [ARGUED]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Thomas W. Patton, Esq.

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre

Erie, PA 16501

Counsel for Appellant, Michael Eugene Begin

Michael L. Ivory, Esq. [ARGUED]

Rebecca R. Haywood, Esq.

Office of the United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Christian A. Trabold, Esq.

Office of United States Attorney

17 South Park Row

Room A330

Erie, PA 16501

Counsel for Appellee, the United States of America

2

OPINION OF THE COURT

FUENTES, Circuit Judge:

Michael Eugene Begin appeals from a final judgment

of conviction and sentence on charges related to his use of the

internet and a cellular phone to send sexual messages and

photographs to a minor in order to persuade her to have sex

with him. Begin pled guilty and was sentenced to 240

months‟ imprisonment, representing a 30-month upward

departure from the top of his advisory Sentencing Guidelines

range. On appeal, Begin argues that his sentence is

unreasonable because the District Court failed to consider his

request for a downward variance based on the asserted

disparity between his sentence for attempting to induce

statutory rape and the lower maximum sentences for actually

committing statutory rape under state and federal law. We

will vacate Begin‟s sentence and remand for the District

Court to consider his request.

I

In January 2010, a concerned mother contacted the

FBI regarding sexually suggestive messages that her 14-year-

old daughter had received through MySpace, a social-

networking website. These messages came from someone

named “Mike,” who described himself as a 20-year-old

Marine sniper. Both the girl and the FBI agent who

subsequently assumed her online identity repeatedly informed

Mike that she was 14 years old, but Mike was undeterred. He

3

continued to write her sexually explicit messages and sent

two photographs of himself to her cellular phone: one of his

face and chest, the other of his penis. Ultimately, the FBI

agent and Mike agreed to meet at a restaurant in Bradford,

Pennsylvania. Michael Eugene Begin, then 33 years old and

not a Marine, showed up for the rendezvous, and FBI agents

took him into custody. In his possession they found a knife,

handcuffs, and a condom. Waiving his Miranda rights, Begin

admitted that he had sent the sexually explicit messages and

photographs and that he had intended to take the 14-year-old

girl back to his room at the Riddle House, a boarding house in

Bradford, in order to have sex with her.

A federal grand jury sitting in the Western District of

Pennsylvania returned a two-count indictment against Begin.

Count One charged that Begin violated 18 U.S.C. § 2422(b)

by using the internet and a cellular phone to attempt to

persuade a minor “to engage in any sexual activity for which

any person can be charged with a criminal offense, to wit,

statutory sexual assault, in violation of [18 Pa. Cons. Stat.

§ 3122.1], aggravated indecent assault, in violation of [18 Pa.

Cons. Stat. § 3125(a)(8)], and indecent assault[,] in violation

of [18 Pa. Cons. Stat. § 3126(a)(8)].” App. 17. Count Two

charged that Begin violated 18 U.S.C. § 1470 by using a

cellular phone to transfer an obscene image to a minor. Begin

pled guilty to both counts of the indictment at a change-of-

plea hearing in October 2010.

In advance of sentencing, the United States Probation

Office conducted an investigation and prepared a pre-

sentence report (“PSR”). According to the PSR, Begin‟s

counts of conviction grouped together and carried a base

offense level of 28. He received a two-level increase for his

4

use of a computer to commit the offense and a three-level

decrease for his acceptance of responsibility. In addition, he

qualified as a “repeat and dangerous sex offender against

minors” under U.S.S.G. § 4B1.5(b)(1) and therefore received

a five-level increase pursuant to that section. His resulting

total offense level was 32.

The PSR calculated Begin‟s criminal history category

by assigning points to his adult criminal convictions. In

1999, Begin committed several crimes involving minor girls.

He was convicted of corruption of minors after it was

discovered that he was harboring a 14-year-old runaway in

his apartment, despite having told police that he had not seen

her. He was convicted of indecent assault for having sex with

a “mentally deficient” 16-year-old girl on a public park

bench. PSR p. 10.1 Finally, he was convicted of indecent

exposure for mooning four minors in a public park, asking

them whether they wanted to “scratch [his] balls,” and calling

them “sluts.” Id. p. 11. In 1995, Begin received a stolen

bicycle and was subsequently convicted of theft by receipt of

stolen property. No points were assigned to a juvenile

adjudication for Begin‟s rape of a seven-year-old girl in 1993,

when he was sixteen. According to the PSR, Begin‟s

criminal history category was IV.

Begin‟s Guidelines range was therefore 168 to 210

months, or 14 to 17½ years. On Count One, he faced a

statutory mandatory minimum term of 10 years‟

imprisonment, and a statutory maximum term of life

1

The PSR recites that this conviction was for “indecent

exposure,” but Begin has conceded that it was actually for

“indecent assault.” App. 62.

5

imprisonment. On Count Two, he faced no mandatory

minimum and a statutory maximum of 10 years.

The Government filed a motion for an upward

departure from the advisory Guidelines range, arguing that

criminal history category IV underrepresented the severity of

Begin‟s criminal history. According to the Government,

Begin was a “serial sex offender whose criminal history score

represents only a fraction of his prior criminal conduct.”

App. 51. In particular, the Government observed that Begin‟s

criminal history score did not take into account his 1993 rape,

and the Government presented newly obtained information

that Begin had perpetrated other sexual assaults on minors in

early 2010. The Government further argued that the five-

level § 4B1.5(b)(1) enhancement that Begin received as a

“repeat and dangerous sex offender against minors”

underrepresented Begin‟s repeat offenses. Section 4B1.5(b)

applies to defendants with at least two prior instances of

criminal sexual conduct with minors, and the Government

submitted that Begin had engaged in many more than two

such instances and therefore deserved more punishment than

the section provided. It was the Government‟s position that a

range of 360 months to life imprisonment more accurately

reflected Begin‟s criminal character and past.

Begin, on the other hand, sought a downward variance

from the advisory Guidelines range based on the disparity

between that range and the sentence that he would have faced

in either state or federal court had he actually committed

statutory rape. First, Begin observed that his Count One

conviction for inducement under 18 U.S.C. § 2422(b) was

expressly linked to Pennsylvania state statutory rape offenses

that carry a maximum penalty of 10 years‟ imprisonment.

6

See 18 Pa. Cons. Stat. § 3122.1 (2000) (establishing the

elements of statutory sexual assault); 18 Pa. Cons. Stat.

§ 1103 (establishing the maximum sentences for different

classes of felonies).2 Second, he observed that the federal

offense of statutory rape within the special maritime and

territorial jurisdiction of the United States carries a maximum

penalty of 15 years‟ imprisonment. See 18 U.S.C. § 2243(a).

He argued that it would be inequitable to impose “a longer

sentence of imprisonment for using a means of interstate

communication to help facilitate the commission of a crime

than would apply to the crime facilitated,” and he drew an

analogy to the Sentencing Guidelines for drug offenses,

which set the penalty for a facilitation offense equal to the

penalty that would have been applicable to underlying

offense. App. 44 (citing U.S.S.G. § 2D1.6). Begin asked the

District Court for a sentence of 120 months, which is the

mandatory minimum under § 2422(b) and the maximum

penalty he could have faced in Pennsylvania for statutory

rape.

At Begin‟s sentencing hearing, the District Court

began by observing that neither Begin nor the Government

had filed factual objections to the PSR but there was serious

disagreement about the appropriate Guidelines calculation

2

After Begin was sentenced, Pennsylvania revised its

statutory rape statute to classify Begin‟s attempted conduct—

“sexual intercourse with a complainant under the age of 16

years when that person is 11 or more years older than the

complainant”—as a felony in the first degree, punishable by

20 years‟ imprisonment. 2011 Pa. Legis. Serv. Act. 2011-

111.

7

and ultimate sentence. Briefly summarizing the parties‟

written submissions, the Court stated:

The Defendant . . . has filed a position with

respect to sentencing factors in which he argues

that we should vary from the guidelines based

on the disparity between the sentence the

Defendant would have received in state court

had he actually committed statutory rape

compared to the sentence he is facing in federal

court for engaging in the crime of attempting to

induce and inducing a minor to engage in

essentially statutory rape. The Defendant is

seeking a sentence of 120 months.

App. 96. The Court determined that it should formally rule

on the Government‟s motion for an upward departure before

it addressed Begin‟s request for a variance.

In support of its motion, the Government presented the

testimony of Bradford City Police Officer Todd Erickson who

had investigated allegations that Begin had engaged in

prohibited sexual contact with three minors that were not

included in the PSR. According to Erickson, one of these

girls told him that Begin had inappropriately touched her

through her clothes and asked her over MySpace to have sex

with him. The other two girls had been together in Begin‟s

room in Riddle House on several occasions. One reported

that Begin had thrust his hand down the front of her pants,

and each reported Begin had vaginally raped her, though

inconsistencies between their accounts made it hard for

Officer Erickson to form a clear picture of exactly what had

transpired.

8

After Officer Erickson‟s testimony and the parties‟

oral arguments, the District Court granted the Government‟s

motion for an upward departure. The Court explained that it

found, by a preponderance of the evidence, that Begin had

engaged in several sexual assaults that were not accounted for

in the PSR. In addition, the Court noted the “particularly

egregious” details of Begin‟s juvenile rape of a seven-year-

old. App. 152. Altogether, the Court found that Begin‟s

“lengthy, continuous” criminal history, “primarily focused on

sexually assaulting minor females,” supported the conclusion

that criminal history category IV substantially

underrepresented the seriousness of his criminal history and

the likelihood that he would commit other crimes. App. 152-

53. Therefore, the Court found, pursuant to U.S.S.G.

§ 4A1.3, that the appropriate criminal history category for

Begin was category V, making the applicable Guidelines

range 188 to 235 months‟ imprisonment. In addition, the

Court found that the five-level enhancement that Begin had

received under U.S.S.G. § 4B1.5(b)(1) for his repeat sex

offenses against minors did not adequately reflect the

seriousness of the sexual abuse in which Begin had engaged.

Therefore, the Court made a further upward departure and

arrived at a range of 188 to 240 months‟ imprisonment.

Having determined the applicable advisory Guidelines

range, the District Court indicated that it would next consider

the sentencing factors set forth in 18 U.S.C. § 3553(a),

including Begin‟s request for a downward variance. The

Court heard oral argument from defense counsel and the

Government but did not ask the attorneys any questions or

make any comments on their presentations. Immediately

following these arguments, the intended victim‟s mother

9

made a statement concerning the impact of Begin‟s actions on

her family and her daughter. The Court also heard a

statement from Begin, who apologized for his actions.

The District Court then sentenced Begin to an

aggregate term of 240 months‟ imprisonment, at the top of his

adjusted Guidelines range, to be followed by a lifetime term

of supervised release with a number of special conditions.

The Court stated its belief that the sentence of 240 months

was “sufficient but not greater than necessary” under 18

U.S.C. § 3553(a), and in light of “the nature and

circumstances of this offense, as well as the history and

background of the Defendant.” App. 166. The Court further

explained:

In particular, the Court has taken into account

that Mr. Begin is a 34-year-old man who has

pled guilty to two counts, both of which

concerned his attempt to induce a minor to

engage in illegal sexual activity. The

circumstances of this case are serious and if not

for the intervention of the victim‟s mother could

have resulted in serious and long-standing harm

to the victim. We have also taken into account

[that] Mr. Begin has a long criminal history that

involves a disturbing amount of sex crimes

against minors. We encourage Mr. Begin to

participate in any available education and/or

vocational training opportunities while he is

incarcerated. . . . In imposing this sentence, we

have also considered the kind of sentences

available and in the sentencing range set forth in

the guidelines, including any relevant policy

10

statements issued by the Sentencing

Commission.

App. 166-67. Regarding the need to avoid unwarranted

sentencing disparities under § 3553(a)(6) and the need for the

sentence imposed under § 3553(a)(2), the Court stated:

This sentence also takes into account the need

to avoid unwarranted disparities in sentencing

among defendants with similar records who

have been found guilty of similar conduct. At

the same time, we find that the sentence does

reflect the seriousness of his offense and

provides just punishment for it and also will

hopefully promote respect for the law and

afford adequate deterrence to criminal conduct

while protecting the public from further crimes

by this Defendant.

App. 167-68. The Court never directly addressed the

arguments raised by Begin‟s counsel nor explicitly ruled on

his request for a downward variance.

Begin timely appealed to this Court.3

II

On appeal, Begin challenges the reasonableness of his

sentence. Our review of a district court‟s sentencing

3

We have appellate jurisdiction under 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291. The District Court had original

jurisdiction under 18 U.S.C. § 3231.

11

decisions is for abuse of discretion and proceeds in two

stages. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc) (citing Gall v. United States, 552 U.S. 38, 51-

52 (2007)). First, we review for procedural error at each step

of the district court‟s sentencing process. Id.; United States v.

Wright, 642 F.3d 148, 152 (3d Cir. 2011). Thus, we ensure

that the district court (1) correctly calculated the defendant‟s

advisory Guidelines range, (2) appropriately considered any

motions for a departure under the Guidelines, and (3) gave

meaningful consideration to the sentencing factors set forth in

18 U.S.C. § 3553(a). Wright, 642 F.3d at 152. If the district

court has made a procedural error, “we will generally remand

the case for re-sentencing, without going any further.” Id.

(quoting United States v. Merced, 603 F.3d 203, 214 (3d Cir.

2010)) (internal quotation marks omitted). But, if the district

court‟s procedures pass muster, then we move forward to the

second stage, and we review the substantive reasonableness

of the sentence. Tomko, 562 F.3d at 567. Our substantive

review focuses on the totality of the circumstances and is

highly deferential. Id. at 567-68.

Our deferential substantive review of sentences is

enabled by our insistence, as part of our procedural review,

that the district court produce a record sufficient to

demonstrate its rational and meaningful consideration of the

§ 3553(a) factors. Merced, 603 F.3d at 215. The record as a

whole must make clear that the district judge “has considered

the parties‟ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” Id. at 215-16

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).

The district court need not raise every conceivable issue on its

own initiative or even make explicit findings as to each

sentencing factor if the record makes clear that the court took

12

all the factors into account. Id. at 215. “However, if a party

raises a colorable argument about the applicability of one of

the § 3553(a) factors, the district court may not ignore it.” Id.

In this, “we have stated at least one concrete requirement to

establish that the sentencing court gave meaningful

consideration to the relevant § 3553(a) factors: the court must

acknowledge and respond to any properly presented

sentencing argument which has colorable legal merit and a

factual basis.” United States v. Ausburn, 502 F.3d 313, 329

(3d Cir. 2007). A rote statement that the court has considered

each of the § 3553(a) factors is not a sufficient response to a

specific colorable argument. United States v. Jackson, 467

F.3d 834, 841 (3d Cir. 2006); United States v. Cooper, 437

F.3d 324, 329 (3d Cir. 2006), abrogated on other grounds by

Kimbrough v. United States, 552 U.S. 85 (2007).

III

Begin argues primarily that his sentence is

procedurally unsound because the District Court failed to

discuss, or even rule on, his request for a downward variance

in light of “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The

Government argues that Begin‟s request so obviously lacked

legal merit that the District Court was not required to address

it, and that, in any event, the Court did in fact give it

meaningful consideration. We address these issues in turn.

A

Before we reach Begin‟s contention that the District

Court made a procedural error by failing to respond to his

13

request for a downward variance, we must satisfy ourselves

that Begin‟s disparity arguments have colorable legal merit.

“The court need not discuss every argument made by a

litigant if an argument is clearly without merit.” Cooper, 437

F.3d at 329 (citing United States v. Cunningham, 429 F.3d

673, 678 (7th Cir. 2005)). Begin raised two distinct

§ 3553(a)(6) disparity arguments before the District Court:

first, he asked the Court to consider the 10-year maximum

sentence that could be imposed for statutory rape under

Pennsylvania state law; second, he asked it to consider the 15-

year maximum sentence that could be imposed under federal

law for statutory rape within the special and maritime

jurisdiction of the United States.

1

Begin‟s state-federal disparity argument lacks

colorable legal merit. As several of our sister circuits have

observed, “Section 3553(a)(6) addresses unwarranted

sentence disparities among federal defendants who are

similarly situated instead of disparate federal and state

sentences.” United States v. Docampo, 573 F.3d 1091, 1102

(11th Cir. 2009); see United States v. Clark, 434 F.3d 684,

687 (4th Cir. 2006) (“The sole concern of section 3553(a)(6)

is with sentencing disparities among federal defendants.”

(emphasis omitted)); United States v. Branson, 463 F.3d

1110, 1112 (10th Cir. 2006) (“Adjusting federal sentences to

conform to those imposed by the states where the offenses

occurred would not serve the purposes of § 3553(a)(6).”);

United States v. Jeremiah, 446 F.3d 805, 808 (8th Cir. 2006)

(“Unwarranted sentencing disparities among federal

defendants remains the only consideration under

§ 3553(a)(6)—both before and after Booker.”). This is so

14

because the purpose of § 3553(a)(6) is to promote national

uniformity in the sentences imposed by federal courts. See

United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).

Indeed, “[r]educing a federal prisoner‟s sentence to accord

with that of a similarly situated state convict may decrease

one sentencing disparity but simultaneously enlarges another:

that between the federal convict and all similarly situated

federal convicts. Because penalties vary from state to state,

sentence reductions to approach state penalties similarly vary

with the state in which the federal sentencing court sits,

unjustifiably creating disparities among federal convicts.”

United States v. Wurzinger, 467 F.3d 649, 654 (7th Cir. 2006)

(citation omitted). In other words, “[a]djusting federal

sentences to conform to those imposed by the states where the

offenses occurred would not serve the purposes of

§ 3553(a)(6), but, rather, would create disparities within the

federal system, which is what § 3553(a)(6) is designed to

discourage.” Branson, 463 F.3d at 1112.

Begin attempts to distinguish these authorities on the

ground that the indictment in this case specifically refers to

state law. Under 18 U.S.C. § 2422(b), it is unlawful to use

means of interstate or foreign commerce to persuade or

attempt to persuade “any individual who has not attained the

age of 18 years, to engage in prostitution or any sexual

activity for which any person can be charged with a criminal

offense.” Count One of the indictment against Begin charged

that he intended to engage in sexual relations with a 14-year-

old girl, which would support statutory rape charges under

Pennsylvania law. According to Begin, this reference to a

Pennsylvania criminal offense makes Pennsylvania criminal

penalties relevant to his federal sentencing.

15

Tellingly, Begin has adduced no authorities in support

of his novel proposition that when Congress refers to state

law to define some of the elements of a federal crime, it

intends to incorporate state sentencing considerations. In

their absence, we will not follow Begin down a rabbit hole.

The federal government and the states are separate sovereigns

with concurrent jurisdiction over various offenses, and they

may therefore apply disparate punishments to similar

conduct. See Branson, 463 F.3d at 1112. State-federal

disparities are simply irrelevant under § 3553(a)(6), and the

District Court was not required to address them.

2

Begin‟s federal-federal disparity argument is more

plausible. Begin argued that the sentence for his attempt to

induce statutory rape under 18 U.S.C. § 2422(b) should not

exceed the fifteen-year statutory maximum penalty for

actually committing statutory rape within the special maritime

and territorial jurisdiction of the United States under 18

U.S.C. § 2243.

In United States v. Ausburn, we vacated a district

court‟s sentence for procedural error when the court failed to

consider or discuss the defendant‟s disparity argument under

§ 3553(a)(6). 502 F.3d at 330-31. Ausburn, like Begin, was

convicted of violating § 2422(b) by using e-mail and a

telephone to facilitate his sexual relationship with a minor.

Id. at 316. At sentencing, Ausburn argued that the district

court should consider the lenient sentences imposed in two

prior criminal cases from the same district. Id. at 317-18. In

particular, Ausburn‟s defense counsel argued that the district

court should avoid an unwarranted disparity with the 46-

16

month sentence imposed in the Kenrick case, id. at 320-21, in

which the defendant had violated a different statute, 18

U.S.C. § 2423(b), by traveling in interstate commerce for the

purpose of having sex with a 15-year-old. See United States

v. Kenrick, 241 F. App‟x 10, 12 (3d Cir. 2007). The district

court failed to discuss the merits of this argument, instead

merely reciting that it had considered the need to avoid

unwarranted sentencing disparities. Ausburn, 502 F.3d at

330. On appeal, we determined that the district court was

obliged to discuss, consider, and rule on the defendant‟s

§ 3353(a)(6) argument and that its failure to do so constituted

procedural error. Id. at 330-31.

Similarly, in this case, Begin has argued that an

appropriate sentence should take into account the sentences

imposed for similar federal offenses. Under Ausburn, this

type of argument has colorable legal merit. We emphasize

that colorable legal merit is distinct from actual merit. There

is reason to believe that the predatory nature of Begin‟s

conduct and the knife and handcuffs found in his possession

distinguish his offense from a run-of-the-mill statutory rape.

Indeed, the stiff penalties under § 2422(b) are intended to

punish and deter predators who use the reach and anonymity

of the internet to perpetrate sex crimes against children. See

H.R. Rep. No. 105-557, at 11-12 (1998), as reprinted in 1998

U.S.C.C.A.N. 678, 680; see also Andriy Pazuniak, A Better

Way to Stop Online Predators: Encouraging a More

Appealing Approach to § 2422(b), 40 Seton Hall L. Rev. 691,

694-98 (2010) (reviewing the legislative history § 2422(b)).

Thus, when we say that Begin‟s claim has colorable legal

merit, we mean only that, upon appropriate findings of fact,

the District Court would be within its discretion to accept the

argument and to factor it into the ultimate sentence.

17

B

Having concluded that Begin‟s federal-federal

disparity argument has colorable legal merit under

§ 3553(a)(6), we agree with him that the District Court failed

to make a sufficient record to demonstrate its consideration of

that argument. Though the Court summarized Begin‟s state-

federal disparity argument at the beginning of the sentencing

hearing, it did not acknowledge that he had also made a

federal-federal disparity argument. The Court asked no

questions during defense counsel‟s oral argument in favor of

downward variance on this ground and made no comments

about the issue following that presentation. Strikingly, the

Court did not even specifically rule on Begin‟s request for a

variance.

Nevertheless, the Government submits that the District

Court‟s on-the-record explanation of its sentence

demonstrates its meaningful consideration of the § 3553(a)

factors. To be sure, the Court articulated its consideration of

several of these factors, including the nature and

circumstances of the offense and the history and

characteristics of the defendant. But we have held that “a

district court‟s failure to analyze § 3553(a)(6) may constitute

reversible procedural error, even where . . . the court engages

in thorough and thoughtful analysis of several other

sentencing factors.” Merced, 603 F.3d at 224. In this case,

the Court stated simply that its sentence “takes into account

the need to avoid unwarranted disparities in sentencing

among defendants with similar records who have been found

guilty of similar conduct.” App. 167-68. This rote recitation

of § 3553(a)(6) is insufficient to permit us to review the

18

Court‟s resolution of Begin‟s disparity arguments. See

Jackson, 467 F.3d at 841.

The Government has suggested various justifications

for denying Begin‟s request for a downward variance. But

“the question is not how we ourselves would have resolved

the factors identified as relevant by section 3553(a) . . . . We

are not sentencing judges.” Cooper, 437 F.3d at 330

(quotation marks and alteration omitted). We have

recognized that “the sentencing judge, not the court of

appeals, „is in a superior position to find facts and judge their

import under § 3553(a) in the individual case.‟” Merced, 603

F.3d at 214 (quoting Tomko, 562 F.3d at 566)). Therefore,

“[w]here the record is inadequate, we do not fill in the gaps

by searching the record for factors justifying the sentence.”

Ausburn, 502 F.3d at 331. Instead, we vacate procedurally

unsound sentences and remand for the district court to

exercise its discretion in a way that we can evaluate, and

defer to, on appeal.

IV

Accordingly, we will vacate Begin‟s sentence and

remand for resentencing.

19

United States v. Begin

No. 11-3896

_________________________________________________

ROTH, Circuit Judge, dissenting in part:

I concur with the majority’s conclusion regarding the

issue of federal/state sentencing disparities. I disagree,

however, with the majority’s decision to vacate the sentence

and remand to the District Court for consideration of the

alleged federal/federal sentencing disparity. I would hold, as

a matter of law, that the disparity between the two federal

statutes raised here is irrelevant to the consideration of

sentence disparities under 18 U.S.C. § 3553(a)(6). I would,

therefore, affirm the sentence imposed.

Begin pled guilty to 18 U.S.C. § 2422(b), which states:

Whoever, using the mail or any facility or

means of interstate or foreign commerce, or

within the special maritime and territorial

jurisdiction of the United States knowingly

persuades, induces, entices, or coerces any

individual who has not attained the age of 18

years, to engage in prostitution or any sexual

activity for which any person can be charged

with a criminal offense, or attempts to do so,

shall be fined under this title and imprisoned

not less than 10 years or for life.

1

18 U.S.C. § 2422(b). Begin contends that the District Court

should have considered the potential sentence he would have

faced had he actually committed statutory rape in the special

maritime or territorial jurisdiction of the United States and

been prosecuted pursuant to 18 U.S.C. § 2243, which states:

Whoever, in the special maritime and territorial

jurisdiction of the United States . . . knowingly

engages in a sexual act with another person who

(1) has attained the age of 12 years but has not

attained the age of 16 years; and (2) is at least

four years younger than the person so engaging;

or attempts to do so, shall be fined under this

title, imprisoned not more than 15 years or both.

18 U.S.C. § 2243(a).

These are diverse statutes. Section 2422(b) was

enacted as part of the Telecommunications Act of 1996 and

subsequently rewritten by the Child Protection and Sexual

Predator Punishment Act of 1998, which was intended as “a

comprehensive response to the horrifying menace of sex

crimes against children, particularly assaults facilitated by

computers.” United States v. Tykarsky, 446 F.3d 458, 467 &

n.4 (3d Cir. 2006) (discussing the statutory text, legislative

purpose and history). It clearly contemplates situations

involving the use of force or persuasion. See 18 U.S.C. §

2422(b) (specifying that perpetrator “knowingly persuades,

induces, entices, or coerces” the minor).

By contrast, § 2243 was enacted as part of the Sexual

Abuse Act of 1986, which modernized federal rape statutes

by, inter alia, defining the offenses in gender neutral terms

2

and expanding the offenses to reach all forms of sexual abuse

of another. H.R. Rep. No. 99-594, at 10-11 (1986), as

reprinted in 1986 U.S.C.C.A.N. 6186, 6190-91. Whereas

other sections of the Act apply to sexual abuse involving

threats or force, § 2243(a) “reaches noncoercive conduct” and

prohibits sexual acts based on the victim’s age. Id. at 16-17,

1986 U.S.C.C.C.A.N. at 6196-97. Compare 18 U.S.C. §

2243(a) (requiring only that perpetrator “knowingly engages

in a sexual act” with the victim and specifying age

requirements), with 18 U.S.C. § 2241 (requiring that the

perpetrator use force or threats to engage in sexual acts and

omitting any reference to the victim’s age). Indeed, § 2243(a)

“applies to behavior that the participants voluntarily and

willingly engage in” and “is intended to reach older, mature

persons who take advantage of younger, immature persons,

but not to reach sexual activity between persons of

comparable age.” H.R. Rep. No. 99-594, at 16, 1986

U.S.C.C.A.N. at 6197. It thus provides for a “young lovers”

exception by requiring at least a four-year age difference

between the perpetrator and the victim, thereby excluding

consensual sex between teenagers. See 18 U.S.C. §

2243(a)(2); see also United States v. White Calf, 634 F.3d

453, 457 (8th Cir. 2011) (explaining that § 2243(c)(1) also

provides a narrow affirmative defense that the defendant

reasonably believed that the victim had attained the age of 16,

“ostensibly to ameliorate the harsh effects of the statute in

cases of otherwise consensual teenage sex”).

Because these two federal statutes do not address

similar conduct, the disparity in their penalties is not within

the scope of § 3553(a)(6), which is concerned only with “the

need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty

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of similar conduct.” 18 U.S.C. § 3553(a)(6). I believe it is

within this Court’s power to make this determination as a

matter of law. See, e.g., Mahmood v. Gonzales, 427 F.3d

248, 253 (3d Cir. 2005) (“When the outcome is clear as a

matter of law, however, remand is not necessary.”); In re Ben

Franklin Hotel Assocs., 186 F.3d 301, 306 (3d Cir. 1999)

(“Because the record has been sufficiently developed for us to

resolve this legal issue, we need not remand to the District

Court to consider it in the first instance.”). I would, therefore,

affirm the sentence that the District Court imposed.

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