Third Circuit Remands Case for Consideration of Unreasonable Sentence Argument – U.S. v. Begin

October 15, 2012 by David S. Seltzer

Sentences for sex crimes involving children have become a kind of political football. Because there’s strong public sentiment against this kind of defendant, political candidates who want to do something popular and seemingly tough on crime frequently propose legislation that would increase sentencing. The result, as some have noted, is a sentencing scheme that sometimes hands down longer sentences for people who attempt to seduce a minor online than for people who actually succeed in having unlawful sex with a minor. That situation was the basis for the Third U.S. Circuit Court of Appeals decision in United States v. Begin. Michael Eugene Begin successfully argued that his sentence for online solicitation of a minor should be reconsidered because it was above the maximum for actual statutory rape.

In 2010, a mother contacted the FBI about sexual messages her 14-year-old daughter received through MySpace. “Mike” said he was a 20-year-old Marine sniper; both the girl and the FBI agent who assumed her online identity told him she was 14. Nonetheless, he continued sending the sexually explicit messages, as well as a picture of his penis. He agreed to meet the “girl” in western Pennsylvania, and of course met FBI agents instead. After his arrest, he admitted his intention to have sex with her. He was charged with attempting to solicit a minor via Internet and phone. Due to several previous convictions, Begin had a high sentence range under the sentencing guidelines. However, the government argued for an upward departure because of several other incidents without convictions; Begin argued for a downward departure based on the disparity between the guidelines range and the actual maximum for statutory rape. The court ultimately departed upward by 30 months, for a total sentence of 20 years.

Begin appealed only the reasonableness of his sentence, arguing that the district court failed to take into account or rule on his arguments. The Third Circuit started its analysis by ruling that there was no merit to his argument that there was a disparity between the state sentence for statutory rape and the federal sentence for soliciting a minor. However, it did find some colorable legal merit in his arguments on federal-federal disparity. An appropriate sentence should take into account sentences for similar offenses, in order to prevent unwarranted disparities. In this case, the appeals court said, the district court failed to consider the issue; it merely recited that it had considered the need to avoid unwarranted sentencing disparities. The Third emphasized that colorable merit is not the same as actual merit; it suggested that Begin’s choice to bring a knife and handcuffs to the meeting may make him more than a run-of-the-mill statutory rapist. But because the record showed no attempt to consider his arguments, it remanded with orders to do so.

As a criminal attorney with substantial experience in cyber crimes defense, I appreciate that the appeals court took this argument seriously. While Begin may well be a candidate for an upward departure, the district court owes it to him (and defendants like him) to seriously consider arguments with some legal merit. Perhaps even more importantly, the justice system should consider whether there’s a problem when the sentence for an attempted crime is substantially higher than the sentence for a completed version of the same crime. A dissent in this case argued that statutory rape is unlike online enticement of a minor because statutory rape includes consensual encounters with an age disparity, but I do not agree. Both statutes criminalize conduct that would be legal for consenting adults; it is only our belief that minors cannot consent that makes these acts illegal.

Seltzer Law, P.A., focuses its practice on defending people accused of serious crimes involving computers and the Internet. Our lead attorney, David Seltzer, is an experienced former prosecutor from the cyber crimes division of the Miami-Dade prosecutor’s office. To learn more about your rights and your options, call us 24 hours a day at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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