Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct."

 The Circuit first determined that Begin's claim that his sentence for attempting to induce statutory rape, (18 U.S.C. § 2422(b)), should not exceed the maximum penalty for actually committing (federal) statutory rape, (18 U.S.C. § 2422(b), was an argument with colorable legal merit, citing United States v. Ausburn, 502 F.3d 313 (3d Cir. 2009).   The district court here failed to make a sufficient record to demonstrate its consideration of that argument, or even specifically rule on the request for a variance. Accordingly, the sentence was procedurally unreasonable.

With respect to Begin’s state-federal disparity argument, the Circuit found that state-federal disparities are NOT relevant under § 3553(a)(6), and the district court was not required to address that part of Begin’s argument.