Second Circuit denies en banc review in CP case; Chief Judge dissents with six arguments for review

Early last month, the Second Circuit denied en banc review in United States v. Broxmeyer (original case, en banc denial). Second Circuit Chief Judge Jacobs had dissented in the original (re-)appeal and also now dissented in the denial of en banc review.

The case involved a high school coach convicted of possessing, producing, and attempting to produce child pornography, and transporting a minor across state lines with the intent to engage in criminal sexual activity. For some time, he harassed one of the students on his hockey team asking for sexually explicit images of the girl. Ultimately, dozens of such images of adolescent females were found on the defendant's computers. The defendant was also accused of raping several of his students.

The chief's arguments are in the least at least interesting to read. I won't belabor the background if for no other reason than the lack of importance of these arguments given the procedural posture.

• The district court piled on enhancements under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") that were arguably applicable to this case only in a hyper-technical (almost perverse) way. For example, the sentence was enhanced for use of a minor to produce child pornography because the 17-year old photographed herself. It cannot be procedurally reasonable to apply enhancements when the conduct giving rise to those enhancements does not alter the "evil of the offense." United States v. Broxmeyer (Broxmeyer II), 699 F.3d 265, 300 (2d Cir. 2012) (Jacobs, J., dissenting).

• The majority opinion holds that two instances suffice to form a "pattern" of sexual misconduct, and that one such instance can be the offense of conviction itself. Id. at 285. The Guidelines do allow for the pattern to emerge by counting an act that "occurred during the course of the instant offense," U.S.S.G. § 4B1.5 cmt. n.4(B)(ii), but it would seem a step beyond (and a tautology) to discern a "pattern"—with a severe impact on sentencing—based on adding a single instance to the conduct underlying the conviction.

• I dissented because the offense of conviction cannot justify a sentence that exceeds the statutory minimum of 15 years. The majority disagreed: "This is not a case in which a defendant succumbed to temptation on one occasion to use one girl in an attempt to produce one image of child pornography, conduct that would nevertheless have required a 15-year sentence." Broxmeyer II, 699 F.3d at 292. The natural reading of this language is to reserve the mandatory minimum for borderline offenses, and thereby altogether foreclose meaningful review for substantive reasonableness for all but the least culpable instances.

• Compared to cases with similar facts, Broxmeyer's sentence is disproportionately longer. See, e.g., United States v. Puglisi, 458 F. App'x 31 (2d Cir. 2012) (affirming sentence of fifteen years where defendant had sexual relationship with sixteen-year-old girl and solicited lewd pictures of her via text message). Moreover, crimes far worse involving children much younger have resulted in sentences significantly shorter. See United States v. Beardsley, 691 F.3d 252 (2d Cir. 2012) (reducing fifteen year sentence for receiving and possessing child pornography); United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (vacating a twenty-year sentence as substantively unreasonable where defendant possessed thousands of images of child pornography and attempted to meet in person with someone he thought was a fourteen-year-old boy); United States v. Pulsifer, 469 F. App'x 41 (2d Cir. 2012) (affirming 121-month sentence for distributing child pornography). Enforcing this punishment would therefore impair the purpose and consistency of sentencing. As my dissent points out, the Guidelines range arrived at in this case yielded the same sentence (life) imposed on Jeffrey Dahmer, who killed people, and ate them. Broxmeyer II, 699 F.3d at 303 (Jacobs, J., dissenting).

• The offense of conviction for which Broxmeyer was sentenced was a single instance of attempted sexting. In explaining its reasoning at the resentencing, the district court did not rely on any specific conduct underlying the convictions at issue here. Instead, the district court leaned on Broxmeyer's "extensive history of sexually abusing children," (Resentencing Tr., 24, Dec. 22, 2010)— conduct for which Broxmeyer was not convicted in this case. Thus the district court and the majority opinion decouple the sentence from the offense of conviction and premise a 30-year sentence on a sort of comprehensive moral accounting. See Broxmeyer II, 699 F.3d at 298 (Jacobs, J., dissenting).

• The majority opinion allows a federal court to inflict punishment overwhelmingly on account of conduct that would be purely state offenses. It is not the role of the federal courts to exact punishment for conduct that has escaped state prosecution or that (it is thought) the state has punished inadequately, and thereby augment federal sentencing policy with a bit of Dexter.