699 F.3d 265 (2nd Cir. 2012), 10-5283-cr, United States v. Broxmeyer

Docket Nº:10-5283-cr.
Citation:699 F.3d 265
Opinion Judge:REENA RAGGI, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Todd J. BROXMEYER, Defendant-Appellant.
Attorney:Lisa Peebles (James P. Egan, on the brief), Federal Public Defender's Office, Syracuse, NY, for Defendant-Appellant. Paul D. Silver (Miroslav Lovric, on the brief), on behalf of Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Appellee.
Judge Panel:Before: JACOBS, Chief Judge, WINTER and RAGGI, Circuit Judges. Chief Judge JACOBS dissents in a separate opinion. JACOBS, Chief Judge, dissenting:
Case Date:August 28, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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699 F.3d 265 (2nd Cir. 2012)

UNITED STATES of America, Appellee,


Todd J. BROXMEYER, Defendant-Appellant.

No. 10-5283-cr.

United States Court of Appeals, Second Circuit.

August 28, 2012

Argued: Feb. 2, 2012.

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Lisa Peebles (James P. Egan, on the brief), Federal Public Defender's Office, Syracuse, NY, for Defendant-Appellant.

Paul D. Silver (Miroslav Lovric, on the brief), on behalf of Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Appellee.

Before: JACOBS, Chief Judge, WINTER and RAGGI, Circuit Judges.

Chief Judge JACOBS dissents in a separate opinion.

REENA RAGGI, Circuit Judge:

In 2008, former high school athletic coach Todd J. Broxmeyer was found guilty after a jury trial in the United States District Court for the Northern District of

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New York (Thomas J. McAvoy, Judge ) of two counts of producing child pornography, see 18 U.S.C. § 2251(a) (Counts One and Two); one count of attempting to produce child pornography, see id. § 2251(a), (e) (Count Three); one count of transporting a minor across state lines with the intent to engage in criminal sexual activity, see id. § 2423(a) (Count Four); and one count of possessing child pornography, see id. § 2252A(a)(5)(B) (Count Five). The victims of all these crimes were teenage girls under Broxmeyer's purported tutelage and care.

On Broxmeyer's first appeal, this court reversed his convictions on Counts One, Two, and Four. See United States v. Broxmeyer, 616 F.3d 120 (2d Cir.2010). As to the first two counts, the court concluded that the evidence was insufficient as a matter of law to permit the jury to find that Broxmeyer had solicited the production of— rather than simply received— the two images of child pornography at issue. See id. at 124-27. As to Count Four, the court, by a divided vote, concluded that Broxmeyer's interstate transportation of a 15-year-old girl after compelling her to engage in sodomy could not support a conviction for interstate transportation of a minor with intent to engage in criminal sexual activity, that object already having been achieved before the defendant crossed any state border. See id. at 128-30; see also id. at 130 (Wesley, J., dissenting in part). Vacating Broxmeyer's original 40-year prison sentence, this court remanded for resentencing on the remaining two counts of conviction for possession and attempted production of child pornography. See id. at 130.

Broxmeyer now appeals from so much of the amended judgment entered on December 29, 2010, as sentenced him to concurrent prison terms of 30 years on Count Three's attempted production charge and 10 years on Count Five's possession charge. He argues that the sentence is infected by various procedural errors and, in any event, that 30 years' incarceration is substantively unreasonable in his case. Indeed, Broxmeyer maintains— and our dissenting colleague agrees— that any sentence higher than the minimum 15-year prison term mandated for Count Three, see 18 U.S.C. § 2251(e), would be substantively unreasonable. We reject both arguments as without merit.

I. Background

A. The Conduct Informing the Challenged Sentence

Precisely because Broxmeyer and the dissent maintain that only the mandated minimum sentence for Count Three can be substantively reasonable in this case— in short, that the district court effectively had no sentencing discretion whatsoever— it is necessary to set forth at the outset and in some detail the totality of the evidence relevant to sentencing that prompts us emphatically to reject this argument. The dissent criticizes this approach, maintaining that it unfairly reaches beyond " the offense of conviction," which " amounts to a single act of attempted sexting." Jacobs, C.J., Op. Dissenting (" Jacobs, C.J., Op." ), post at 298. This is wrong as a matter of law. While a district court cannot sentence a defendant to more severe punishment than that prescribed for the crimes of conviction, " [n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence" within the prescribed range. 18 U.S.C. § 3661; see Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (recognizing that sentencing judge is " not confined

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to the narrow issue of guilt" in determining punishment, but must act on " the fullest information possible concerning the defendant's life and characteristics" ); accord Pepper v. United States, __ U.S. __, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011); Witte v. United States, 515 U.S. 389, 397-98, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); Wisconsin v. Mitchell, 508 U.S. 476, 485, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993).

Although the dissent cannot disavow this venerable— and codified— rule of sentencing law, see Jacobs, C.J., Op., post at 298, it can disregard it, justifying that action only with the conclusory plaint that we mischaracterize its views, see id. The dissent makes its views clear enough. It (1) minimizes evidence that Broxmeyer abused his position as a field hockey coach repeatedly to sexually abuse teenage girls; (2) criticizes the quality of that evidence while ignoring the fact that Broxmeyer carefully avoided an evidentiary hearing at which the details of events reported by the Probation Department in its Presentence Investigation Report (" PSR" ), including multiple rapes, might be produced; (3) ignores Broxmeyer's statements at sentencing, which showed no remorse and blamed his victims; and most troubling, (4) proposes that sentencing judges wear blinders, confining the matters considered to the evidence supporting the crimes of conviction. We here emphasize that this view of sentencing has no place in our jurisprudence.

The broad range of information that the district court was here entitled to consider in imposing sentence might usefully be thought to fall into three sets, each larger than the one before: (1) evidence establishing Broxmeyer's guilt for the crimes of conviction, (2) evidence supporting particular Sentencing Guidelines enhancements, and (3) evidence properly informing the court's exercise of its ultimate sentencing discretion under 18 U.S.C. § 3553(a). While the second set defeats Broxmeyer's claim that procedural error in the application of the Guidelines renders his sentence unreasonable, it is the third, largest set that compels rejection of the claim that his sentence is substantively unreasonable. See generally United States v. Wernick, 691 F.3d 108, 117-18 (2d Cir.2012) (distinguishing between specified facts relevant to Guidelines application and broad range of information properly considered in district court's determination of sentence under § 3553(a)).

That evidence, developed at trial and reported in the PSR, which the district court adopted, showed that, at the time of his December 22, 2007 arrest, the then-37-year-old Broxmeyer had worked for many years as a field hockey coach training female high school athletes in New York, New Jersey, and Pennsylvania. Broxmeyer's interaction with the girls he coached frequently escalated from the athletic to the flirtatious to the overtly— and coarsely— sexual. For example, Broxmeyer sent several teenage girls an image of his erect penis, requesting that they provide him with sexually explicit images of themselves or others in return. He maintained such pictures in an electronic album and on two computers eventually seized pursuant to a warrant. Broxmeyer sometimes distributed these pictures to other teenagers to encourage them to produce similar images of themselves or other girls. Broxmeyer also engaged several teenage girls in a range of sexual conduct, including intercourse and sodomy. The sodomy, necessarily criminal because the girl involved was only 15, was proved to a jury's satisfaction at Broxmeyer's trial in this case. In addition, the adopted PSR recounts five rapes, two of them statutory, as well as other sexual assaults on teenage girls. The district court properly considered

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Broxmeyer's crimes of conviction in this context, see 18 U.S.C. §§ 3553(a)(1), 3661, and reasonably recognized that they could neither be dismissed as only " sexting," see Jacobs, C.J., Op., post at 298, nor justified as " just joking around," Resentencing Tr. at 19:4-5 (quoting defendant's characterization of conduct).

1. Convicted Conduct

a. Count Three: Attempted Production of Child Pornography

Broxmeyer's conviction for attempted production of child pornography was based on his November 2007 procurement of an image of 17-year-old K.T. posing suggestively in her underwear.1 K.T. testified that, while Broxmeyer served as her field hockey coach, he routinely sent her text messages in which he told her that she was beautiful and had a nice body, which made her feel special. In the course of their electronic communications, Broxmeyer sent K.T. a picture of his penis, and asked her to provide him with sexually explicit images of herself. In one communication admitted into evidence at trial, Broxmeyer told K.T. she could take such pictures in a bathroom using her cell phone, thereafter using the phone to transmit the images to him. K.T. eventually sent Broxmeyer the image of herself in her underwear. Because the image was suggestive, but not sexually explicit, Count Three charged Broxmeyer with attempted, rather than actual, production of child pornography.2

Upon receipt of the underwear picture, Broxmeyer praised K.T.'s effort, but demanded more. When K.T. sent him other non-pornographic images, Broxmeyer rebuked her, stating, " you know that's not what I was talking about." Trial Tr. at 255:14-15. Eventually, in December 2007, K.T. sent Broxmeyer a pornographic...

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