United States v. Wernick
691 F.3d 108
| 2d Cir. | 2012Background
- Wernick was convicted by jury in the EDNY on five counts: Counts 1–4 involving possession/distribution of child pornography and Count 5 for enticing minors to engage in sexual activity; sentence 360 months.
- Appeal argues district court erred by treating uncharged acts against young children as relevant conduct to Count Five to boost the offense level.
- Court vacates the sentence and remands for resentencing due to error in the relevant conduct calculation under the Guidelines.
- Factual backdrop includes BM’s child-pornography activities discovered in 2001, Wernick’s chats with teen boys, two proven teen-sex episodes, and additional uncharged conduct with three young children.
- PSR grouped Counts 1–4 together and treated young-children acts as relevant conduct to those counts; Count Five’s unit analysis added uncharged conduct as separate units, inflating the advisory range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether acts against young children were relevant conduct to Count Five | Wernick contends uncharged acts were not within § 1B1.3(a)(1)(A). | Government argues contemporaneous acts are relevant if connected in the same course. | No; they are not relevant conduct to the offense of conviction. |
| Whether the district court’s miscalculation was plain error | Error was not objected to below; but it affects the sentence. | Not objected, but guidelines misreading is ordinary error. | Plain error established; remand for resentencing. |
| Whether remand suffices or a new trial is required | Remand for resentencing should correct guideline error. | Resentencing is appropriate, not retrial. | Remand for resentencing, not retrial. |
Key Cases Cited
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc; procedural/ substantive reasonableness of sentences)
- United States v. Hsu, 669 F.3d 112 (2d Cir. 2012) (guideline miscalculation review; plain error context)
- Dorvee v. United States, 616 F.3d 174 (2d Cir. 2010) (plain-error standard in sentencing; guidelines range miscalculation)
- United States v. Williams, 399 F.3d 450 (2d Cir. 2005) (plain-error standard in sentencing; non-recorded issues)
- United States v. Ahders, 622 F.3d 115 (2d Cir. 2010) (uncharged conduct related as part of the same course of conduct not merely temporal overlap)