United States v. Michael Begin

696 F.3d 405, 2012 WL 4784362, 2012 U.S. App. LEXIS 20913
CourtCourt of Appeals for the Third Circuit
DecidedOctober 9, 2012
Docket11-3896
StatusPublished
Cited by61 cases

This text of 696 F.3d 405 (United States v. Michael Begin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Begin, 696 F.3d 405, 2012 WL 4784362, 2012 U.S. App. LEXIS 20913 (3d Cir. 2012).

Opinions

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 [408]*408sex offender against minors” under U.S.S.G. § 4B1.5(b)(l) 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 YT% 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 pri- or 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)(l) 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. See 18 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 fed[409]*409eral offense of statutory rape within the special maritime and territorial jurisdiction of the United States carries a maximum penalty of 15 years’ imprisonment. See 18 U.S.C.

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Bluebook (online)
696 F.3d 405, 2012 WL 4784362, 2012 U.S. App. LEXIS 20913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-begin-ca3-2012.