UNITED STATES of America, Appellee, v. Bruce WERNICK, aka Userfriendly, aka BJGuy, aka Alvin J Bart, aka Bruce Wernick, aka Bart, Defendant-Appellant.
Docket No. 10-2974-cr.
United States Court of Appeals, Second Circuit.
Argued: May 14, 2012. Decided: Aug. 8, 2012.
691 F.3d 108
Accordingly, we reject Quinnipiac‘s challenge to the district court‘s finding that the school engaged in sex discrimination in violation of Title IX, and we affirm the order enjoining Quinnipiac from continuing such discrimination.
III. Conclusion
To summarize, we conclude as follows:
1. For purposes of determining the number of genuine varsity athletic participation opportunities that Quinnipiac afforded women students, the district court correctly declined to count:
a. five roster positions on the women‘s indoor track team and six roster positions on the women‘s outdoor track team because these were held by cross-country runners who (i) were required to join the indoor and outdoor track teams even though they could not compete on those teams because they were injured or red-shirted and (ii) did not receive any additional benefits from membership on the track teams beyond those received as injured or red-shirted off-season members of the cross-country team;
b. any of the 30 roster positions for women‘s competitive cheerleading because that activity was not yet sufficiently organized or its rules sufficiently defined to afford women genuine participation opportunities in a varsity sport.
2. Where the 3.62% disparity between the percentage of women students enrolled at Quinnipiac and the percentage of women listed on varsity sports teams was largely caused by Quinnipiac‘s voluntary decisions with respect to its athletics programs and reasonably remedied by the addition of more athletic opportunities for women, the district court correctly concluded that the disparity demonstrated a failure to provide substantially proportionate athletic participation opportunities as required by Title IX.
Accordingly, the district court‘s order enjoining Quinnipiac from continuing to discriminate against female students by failing to provide them with equal athletic participation opportunities is AFFIRMED.
Lara Treinis Gatz, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Before: MCLAUGHLIN, SACK, and LYNCH, Circuit Judges.
GERARD E. LYNCH, Circuit Judge:
Defendant-appellant Bruce Wernick was convicted by jury in the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) on five counts, including Counts One and Two, receiving and distributing child pornography,
We emphasize at the outset that the question presentеd is a technical one arising under the Sentencing Guidelines, which assign particular consequences to acts meeting a specific definition of “relevant conduct.” We do not suggest in any way that the sexual exploitation of young children is not “relevant” in the ordinary sense to the district court‘s consideration of an appropriate sentence for offenses involving illegal sexual enticement of older minors and redistribution of child pornography. The contrary is manifestly true, and the conduct in question can, and undoubtedly will, be properly considered by the district court on remand in assessing the factors relevant to sentencing under
BACKGROUND
I. The Crimes
Because Wernick‘s appeal is directed at the calculation of his Guidelines level for Count Five, our account focuses on the conduct constituting that offense.
Wernick came to the attention of Suffolk County police in August 2001 through a child pornography investigation of another man, BM. Police discovered that BM not оnly traded images, but had also recorded images of himself engaged in sexual activities with his own daughter. BM had also attempted to swap sexual access to his daughter for access to others’ daughters.1
Based on information from BM and from his computer, which showed that BM had chatted and traded images with Wernick, Suffolk County police arrested Wernick on September 22, 2001. In cooperation with Suffolk police, Nassau County police executed a search warrant on Wernick‘s computer and hard drives on September 28, 2001. Wernick confessed to police that he had seen pornographic images created by BM, including images of BM‘s daughter. Police also analyzed Wernick‘s computer hard drives for images and chat records; many chat transcripts were saved by his chat program. The search uncovered 2300 still images and 300 videos of child pornography.
On several occasions, Wernick chatted with minor male teenagers online and proposed meeting for sex. At trial, the government was able to prove two episodes, one in which Wernick met a male 14-year-old online and eventually persuaded him to meet in person several times to engage in oral and anal sex, and another involving a male 16-year-old. Additionally, at sentencing, prosecutors proved instances of Wernick‘s sexual conduсt with two male 15-year-olds and attempted sexual conduct with respect to another male teenager. We refer to these five individuals as the “teenagers.”
The government also introduced evidence at sentencing documenting Wernick‘s efforts to molest four young children, all age five or younger. These included BM‘s daughter and the daughter of a man in Westchester County. Wernick met these fathers and their daughters in person and may have had sexual contact with the daughters. The other two children were the sons of a man in West Virginia. Although Wernick and the father extensively discussed the possibility of Wernick‘s traveling to West Virginia to have sex with the children, Wernick did not actually travel there. We refer collectively to the three children other than BM‘s daughter as the “young children.”2
II. Sentencing Proceedings
One of the most complicated aspects of the Sentencing Guidelines is the set of rules governing the calculation of a sentence for individuals accused of multiple distinct or overlapping offenses. When a defendant has committed more than one crime, or when a single criminal act vio-
As relevant to this appeal, the presentence investigation report (“PSR“) found that Wernick‘s offenses fell primarily into two groups for sentencing purposes. The first category, comprising Counts One through Four, related to Wernick‘s possession and distribution of child pornography. The parties agreed that under
The second group comprised only Count Five, Wernick‘s conviction for “knowingly and intentionally persuad[ing], induc[ing] and entic[ing] individuals who had not yet attained the age of 18 years to engage in sexual activity for which a person could be charged with a criminal offense” in violation of
The final PSR also included under Count Five the three completed or attempted acts of molestation against the young children.5 The PSR determined that these were “relevant conduct” to Count Five under
The PSR‘s unit analysis under
The recommended sentence range corresponding to a level 41 offense for a defendant who, like Wernick, had no prior criminal record, was 324 to 405 months. Following a sentencing hearing in which the court discussed the severity of Wernick‘s conduct, the court imposed a sentence of 360 months.
DISCUSSION
I. Standard of Review
We review a district court‘s sentencing decisiоn for procedural and substantive reasonableness. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc). “A district court commits procedural error where it makes a mistake in its Guidelines calculation, does not consider the
We review errors not raised in the district court under the plain error standard of
II. “Relevant Conduct”
Wernick argues that his attempts to have sex with the young children were not relevant conduct to Count Five, and that on this basis the district court erred in its calculation of his advisory guidelines range. While a sentencing court is not required to follow the recommendations of the Sentencing Guidelines, see United States v. Booker, 543 U.S. 220 (2005), the Guidelines recommendation is a factor to be considered by the court in determining an appropriate sentencing. See
To analyze Wernick‘s claim, we turn first to the text of the relevant Guidelines. Guideline
Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ...
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
A separate provision that applies to this type of crime states:
If the offense involved more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if the promoting of prostitution or prohibited sexual conduct in respect to each victim had been contained in a separate count of conviction.
directs that if the relevant conduct of an offense of conviction includes the promoting of prostitution or prohibited sexual conduct in respect to more than one victim, whether sрecifically cited in the count of conviction, each such victim shall be treated as if contained in a separate count of conviction.
We thus agree with the government that conduct against victims other than those charged in the indictment may constitute “relevant conduct” and, if such conduct qualifies, should be treated for sentencing purposes as though it occurred in a separate count of conviction. The question, then, is whether Wernick‘s conduct involving the young children qualifies as “relevant conduct” under the Guidelines to Wernick‘s conviction for abusing the teenagers. That, in turn, depends on whether the offense against the young children “occurred during thе commission of” the crimes against the teenagers, “in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
First, the government argues that the acts against the young children occurred “during” the offense against the teenagers. The government points out that Wernick‘s conduct involving the teenagers occurred during 1999 against one victim and from March through September of 2001 (an extended period of attempt, inducement, and persuasion) against another. Wernick also engaged in misconduct against all of the young children during this same time period.7 The government argues that this
This argument cannot be correct. One criminal act does not become “relevant” to a second act under the Guidelines by the bare fact of temporal overlap. If a bank robber assaults a guard in the course of robbing a bank, the assaultive conduct occurs during the robbery and is “relevant conduct” that may be used to enhance the seriousness of the robbery offense for purposes of the Sentencing Guidelines because it is a part of the activity constituting the crime of conviction. But if a bank executive is engaged in embezzling money from her company from February to September, and she assaults a coworker at an office party in July, this does not become “relevant” to raise the offense level of the embezzlement merely because it occurred “during” the same period of time as the embezzlement. Without proof of a connection between the acts, the second event is literally a coincidеnce.
This conclusion would hold true even if the crimes were more similar. Suppose a bank robber spends months executing an elaborate scheme to rob Bank A, but opportunistically robs Bank B on a particular day during that period. Without more—for example, proof that robbing Bank B was done as practice (“in preparation for“) for the robbery of Bank A—the crimes would be treated separately as unrelated acts. As we stated in United States v. Ahders, a case cited by both sides:
The words “relevant conduct” suggest [that] more is required than mere temporal proximity, as the other conduct must be “relevant” and it must occur “during the commission of the offense of conviction, in preparation for thаt of-fense, or in the course of attempting to avoid detection or responsibility for that offense.”
622 F.3d 115, 122 (2d Cir.2010), quoting
Ahders is instructive and consistent with our view. In that case, the defendant pled guilty to a charge of producing child pornography, and he appealed his 580-month sentence. Id. at 117. On appeal, we addressed two relevant conduct issues. First, Ahders had sexually abused his stepson, EM, and recorded the abuse; he also molested two other children, VB and BB, at a sleepover аnd recorded images of those acts. Id. at 119. Ahders argued that the sentencing court had improperly considered the acts against BB and VB, which were not charged in the indictment, as conduct relevant to his abuse of his stepson, which was the sole charge. Id. at 119. We rejected that argument, finding that
[t]he conduct involving BB and VB occurred “during the commission of the offense of conviction,” as it occurred during the period that Ahders was producing pornographic images and film of EM. Ahders exploited and abused all three children, including abusing EM and BB together, during Mother‘s Day weekend in 2007 when VB and BB were staying with EM for a sleepover. During this weekend, Ahders produced pornographic images of all three children. Clearly, then, the abusе of VB and BB was “relevant conduct,” and it was properly considered by the district court.
Second, Ahders challenged the district court‘s determination that his possession of sadomasochistic images of children was “relevant conduct” to his abuse. We remanded for further factfinding, instructing the district court to consider, among other factors, whether Ahders had used the images as models in the creation of the images of EM; whether Ahders had shown the images to EM to “teach” him what to do; and whether Ahders had been aroused by the images and this induced him to abuse EM. Id. at 122-23. Only such stronger connections would support a finding that the images were relevant to the abuse; the fact that Ahders possessed the sadomasochistic images at the same time that he was еngaged in abusing the children was not by itself sufficient. Id. at 123. This holding similarly exemplifies the rule that mere contemporaneity of uncharged conduct is not sufficient to render the uncharged conduct “relevant” to the offense of conviction.8
In light of the weakness of the argument from pure temporal overlap, the government next argues that Wernick‘s conduct against the young children bore some relationship to the crimes against the teenagers by pointing out that Wernick bragged about his exploits with various adolescent boys in an effort to arouse or entice BM, and that this was part of his efforts to obtain sexual access to BM‘s daughter. However, this argument, to the extent accurate, proves the converse of what is necessary. Uncharged acts must be relevant to “the offense of conviction” under
Finally, the government argues that the conduct is actually part of the оffense of conviction because it fits within the charging language of Count Five, which alleged that
between December 1, 1999 and September 28, 2001, ... [Wernick] did knowingly and intentionally persuade, induced and entice individuals who had not yet attained the age of 18 years to engage in sexual activity for which a person could be charged with a criminal offense....
This argument too misapprehends the scope of “relevant conduct.” Perhaps the government could have proven at trial that Wernick‘s conduct against the young children violated Count Five. But in fact, it did not introduce evidence of these acts at trial, and relied solely on the two instances of abuse of teеnaged boys outlined above to prove Count Five. At sentencing, the question is whether the abuse of the young children is relevant conduct to what the government did prove, that is to “the offense of conviction,”
We thus conclude that the district court‘s inclusion of the acts against the young children as “relevant conduct” in calculating the offense level for Count Five was error.
III. Plain Error
Because we agree with the government that Wernick did not raise the “relevant conduct” argument below, the question remains whether the error we have identified constitutes plain error. We conclude that it does. Even under the now-advisory Sentencing Guidelines regime, an unobjected-to miscalсulation of a defendant‘s Guidelines range constitutes procedural error under Cavera, thereby satisfying the first plain error prong (that there is error). See, e.g., Dorvee, 616 F.3d at 180-81. Here, the district court certainly erred, satisfying the first prong. Although the Guidelines are intricate, we also find the error—a misreading of a frequently applied Guideline—sufficiently clear to satisfy the second prong.
An unobjected-to error in Guidelines calculation may satisfy the third prong (that the error affects substantial rights) and fourth prong (that failure to notice the error would call into question the fairness or public integrity of proceedings) of the traditional test because a “district court‘s miscalculation of the Guidelines sentencing rangе carrie[s] serious consequences for the defendant.” Id. at 181-82; see also Gamez, 577 F.3d at 400-01. The Guidelines range, after all, “serves as the district court‘s ‘starting point’ in selecting a sentence,” Dorvee, 616 F.3d at 182, quoting Kimbrough v. United States, 552 U.S. 85, 108 (2007), and when a sentencing court miscalculates the Guidelines, we “cannot be sure that the court has adequately considered the
We are mindful that a remand for resentencing, while not costless, does not invoke the same difficulties as a remand for retri-
IV. Resentencing
We are aware that our discussion of this issue has an air of the academic and technical, and does not appear to engage with the seriousness and obvious materiality of Wernick‘s persistent pattern of abuse of minors. That, however, is the nature of guideline sentencing, which attempts to reduce the human dimensions of sentencing to a series of verbal formulas and mathematical calculations. Such calculations by their nature cannot perfectly capture the infinite variety of wrongdoing that comes before the courts.
Fortunately, such technical analysis is only a part, and not the whole, of our sentencing law. Even under the prior “mandatory” guideline regime, a sentencing court had the power to “depart” from the guideline sentence in the presence of an “aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”
Wernick does not and cannot argue that the sentence imposed fell outside the permissible statutory range for his crimes.10
Wernick does not attack the substantive reasonableness of the sentence, and our holding that the district court erred in applying the Guidelines should not be taken as reflecting any view on the sentence appropriate to Wernick‘s loathsome acts. In any event, it is not ours to say: The task of determining the proper sentence rests in the substantial discretion of the district court. See Cavera, 550 F.3d at 188-89.11
CONCLUSION
Because we conclude that the district court erred in its Guidelines calculation, we VACATE the sentence and REMAND the case for resentencing consistent with this opinion.