United States v. Begin

• Decision Date: 09 October 2012
• Docket Number: No. 11–3896.,11–3896.
• Parties: UNITED STATES of America v. Michael Eugene BEGIN, a/k/a Mike Michael Eugene Begin, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

696 F.3d 405

UNITED STATES of America

v.Michael Eugene BEGIN, a/k/a Mike Michael Eugene Begin, Appellant.

No. 11–3896.

United States Court of Appeals,Third Circuit.

Argued July 13, 2012.

Opinion Filed: Oct. 9, 2012.

Karen S. Gerlach, Esq., [Argued], Office of Federal Public Defender, Pittsburgh, PA, Thomas W. Patton, Esq., Office of Federal Public Defender, Erie, PA, for Appellant, Michael Eugene Begin.

Michael L. Ivory, Esq., [Argued], Rebecca R. Haywood, Esq., Office of the United States Attorney, Pittsburgh, PA, Christian A. Trabold, Esq., Office of United

States Attorney, Erie, PA, for Appellee, the United States of America.

Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges.

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 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 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 17 1/2 years. On Count One, he faced a statutory mandatory minimum term of 10 years' imprisonment, and a statutory maximum term of life 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. See18 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 federaloffense of statutory rape within the special maritime and territorial jurisdiction of the United States carries a maximum penalty of 15 years' imprisonment. See18 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 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.

After Officer Erickson's testimony and the parties' oral arguments, the District Court granted the Government's motion for an upward departure. The...