United States v. Jay Fredrick Nagel
2016 U.S. App. LEXIS 16161
| 11th Cir. | 2016Background
- Jay Frederick Nagel pleaded guilty to three counts of enticement of a minor under 18 U.S.C. § 2422(b) based on online contacts that led to sexual acts with two different minor females.
- Counts One and Two involved the same minor (C.R.) on separate occasions (April 22, 2014 at a store and later in July 2014 at his residence); Count Three involved a different minor (A.L.).
- The PSR treated each count as a separate group, yielding a total offense level of 39 and a Guidelines range of 292–365 months (criminal-history category II); statutory range per count was 10 years to life.
- Nagel objected that Counts One and Two should be grouped (which would lower the guideline range) and sought a downward variance based on age, history, and disparity arguments.
- The district court overruled the grouping objection, adopted the PSR calculations, heard mitigating testimony and statements, and imposed concurrent sentences of 292 months on each count.
- Nagel appealed, arguing (1) improper refusal to group Counts One and Two; (2) inadequate explanation of the sentence under § 3553(c); and (3) substantive unreasonableness (greater than necessary and disproportionately harsh).
Issues
| Issue | Nagel's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Counts One and Two must be grouped under U.S.S.G. § 3D1.2 | Counts One and Two involved the same victim and should be grouped, reducing the guideline range | The offenses occurred on different occasions causing separate harms, so they need not be grouped | Not grouped; offenses on different days caused separate harms and separate objectives, so § 3D1.2 did not require grouping |
| Whether the district court gave an adequate § 3553(c) explanation for the sentence | Court’s brief summary was insufficient and did not address mitigating factors adequately | Court recited materials considered and § 3553 factors; applying the Guidelines need not produce a lengthy record | Adequate explanation; court showed it considered arguments, materials, and § 3553 factors and gave sufficient reasons for applying the Guidelines |
| Whether the 292-month sentence is substantively unreasonable | Sentence is greater than necessary, disproportionate compared to other defendants, and overweights offense severity | Sentence is within the Guidelines, at the low end of the range, and appropriately accounts for seriousness and deterrence | Substantively reasonable; district court acted within its discretion and the sentence falls within the reasonable range |
| Whether consensual (non-forcible) repeated sexual conduct with the same minor alters grouping analysis | Non-forcible nature means counts should be grouped | Non-forcible status does not prevent separate harms from separate occasions; grouping rules and commentary apply to repeated sexual conduct | Non-forcible repeated sexual conduct can still produce separate harms; non-grouping is proper when acts occur on different days and cause fresh harms |
Key Cases Cited
- McClendon v. United States, 195 F.3d 598 (11th Cir.) (de novo review of grouping legal questions; clear-error for factual findings)
- Marseille v. United States, 377 F.3d 1249 (11th Cir. 2004) (district courts should group closely related convictions under § 3D1.2)
- Bonner v. United States, 85 F.3d 522 (11th Cir. 1996) (multiple separate instances against same victim create separate harms)
- Vasquez v. United States, 389 F.3d 65 (2d Cir. 2004) (use of force not required to find distinct harms for grouping)
- Wise v. United States, 447 F.3d 440 (5th Cir. 2006) (refusing to group counts for repeated sexual misconduct on different days)
- Irey v. United States, 612 F.3d 1160 (11th Cir. 2010) (abuse-of-discretion standard for substantive reasonableness of sentences)
- Gall v. United States, 552 U.S. 38 (2007) (procedural reasonableness requires consideration of § 3553(a) factors and adequate explanation)
- Rita v. United States, 551 U.S. 338 (2007) (applying Guidelines may not require lengthy explanation if court indicates consideration of § 3553(a) factors)