Sunday, September 9th, 2012

The Thirty Years’ War

United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)

Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial – a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period – and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual explicitness of some of the photographs he made the girls send him, and shifting blame back to the victims. At the resentencing, at which Broxmeyer failed to pursue or ask for a hearing on his factual objections, the district court sentenced him to concurrent terms of 10 years’ imprisonment on Count Three, , a child pornography charge,  and 30-years imprisonment on the Count Five, an attempted production count. This count had a 15-year mandatory minimum, which is the sentence Broxmeyer had sought.

To the majority, this was an easy case – the sentence was both procedurally and substantively sound. As to procedure, although he pursued on appeal some of his factual quibbles, Broxmeyer had waived them in the district court by not pursuing them there. The court also found no error in the guideline calculations. Most pertinent to this appeal was the “pattern of activity” enhancement in § 4B1.5(b)(1), which applies if the defendant committed prohibited sexual conduct with a minor on at least two separate occasions.  The enhancement applies even if the conduct was neither part of the offense of conviction nor occurred during the same course of conduct. Here, the majority found that the acts underlying one of the counts of conviction qualified, and that other evidence of Broxmeyer’s sex abuse of a 15-year-old girl also qualified, even though that conduct was part of one of the counts the court had previously reversed. It was particularly appropriate to consider it at Broxmeyer’s resentencing, since that count had been reversed only for failure to establish federal jurisdiction, and not for a defect in the trial proof as to whether the act occurred.

The majority also approved of the district court’s consideration of Broxmeyer’s “extensive history of sexually abusing children” in imposing sentence, and did not see this comment as constituting an error in applying the pattern enhancement. This was part of the district court’s general explanation for the sentence and properly included more than sexual assaults; Broxmeyer had a long history of encouraging minors to engage with him in sexually suggestive communications and to send him pornographic images of themselves and others. 

The majority also found the 30-year sentence to be substantively reasonable. Broxmeyer argued that a proper assessment of the totality of the circumstances should have produced a 15-year sentence.  Fifteen years is the legal minimum and was not an abuse of discretion for the sentencing court to assign weight to the aggravating factors in going above that minimum.  Here, the additional count of conviction alone provided a basis for imposing a sentence above the mandatory minimum. Similarly, the guidelines recommended a sentence above that, and it would be “unwarranted” to give no weight at all to that recommendation.  

The majority identified were “at least four” statutory aggravating factors: Broxmeyer’s pervasive abuse of the trust that the girls, their parents and the community had placed in him; the repetitiveness of the conduct; the abuse was “part of a larger pattern of sexual abuse”; and Broxmeyer’s “disturbing lack of remorse,” a circumstance warranting particular attention to the needs for specific deterrence and to protect the public.

Finally, the majority discounted Broxmeyer’s mitigation arguments. He argued primarily that since, some of the girls were 17, and could consent to sexual acts with him in under New York law, it was unreasonable to use their age to enhance his sentence for having them send him sexually explicit photographs, which was illegal under federal law because the girls were under 18. The majority speculated that the fact that a child pornography victim had passed the age of sexual consent might be a mitigating factor on some set of facts, but it was not an abuse of discretion for the sentencing judge, who saw and heard them, to conclude otherwise. Nor was the majority impressed with Broxmeyer’s citation to a study about the prevalence of “sexting” between and among teenagers themselves; as their coach, Broxmeyer was supposed to help them “develop good judgment.” That he instead encouraged this behavior hardly made him less culpable.

In dissent, Chief Judge Jacobs saw the case quite differently.  He first noted that it was an “arresting irony” that, while Broxmeyer and the 17-year-old victim of Count Five would be treated as consenting adults in New York, the “only thing forbidden between [them] was photography.” He also found it ironic that the sentence was increased for “distribution” – the girl took a picture of herself to send to Broxmeyer. Thus, the offense of convicton was “a single act of attempted sexting.” 

To him, the majority’s opinion was “crude caricature of my views.” As he put it: “My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be  upheld as reasonable, a court should not lose sight of the offense of conviction.” 

In very brief, the Chief Judge saw the sentence as extending so far beyond the bounds of the offense of conviction as to be unreasonable, particularly since much of the activity was for conduct that could not be charged in federal court. He also worried that much of the majority’s view of the case had been premised on findings that might not have been “actually made by the district court” at all.

He carefully catalogs five separate reasons for finding the 30-year sentence to be error. Those are: (1) the statutory range form 15 to 30 years calls for a calibration according to severity of the offense; (2) the ehnancements to base offense level do not bear the weight assigned to them; (3) the pattern ehnancement is unsustainable a a matter of law, (4) the sentence is substantively unreasonable, and (v) the sentence is not supported by the statutory factors.

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