District judges do not need to consider disparities in punishment provided by analogous state and federal laws when sentencing criminal defendants, even when the federal offense uses state law to define some of its elements. However, judges must address colorable arguments regarding sentencing disparities between related federal offenses, the Third Circuit ruled this week.
The decision in United States v. Begin, --- F.3d ---, No. 11-3896, 2012 WL 4784362 (3d Cir. Oct. 9, 2012), helps to clarify the Third Circuit's view of 18 U.S.C. § 3553(a)(6), a provision that requires sentencing judges to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Michael Begin, 33, sent sexually suggestive messages to a 14-year-old girl. The girl's mother alerted the FBI. Then an agent, posing as the girl, set up a meeting with Begin at a local restaurant. Begin showed up at the restaurant with a knife, handcuffs and a condom. He was arrested and later indicted on two charges: using the internet and a cell phone to persuade a minor to engage in illegal sexual activity (in this case, statutory rape), in violation of 18 U.S.C. § 2422(b); and using a cell phone to send an obscene image to a minor, in violation of 18 U.S.C. § 1470. He pleaded guilty to both charges.
Under the Federal Sentencing Guidelines, Begin's imprisonment range was 168 to 210 months. Begin argued for a sentence of 120 months, the statutory minimum for a violation of § 2422(b). He pointed out that the Pennsylvania statutory rape law he would have violated if he had sex with the girl, 18 Pa. Cons. Stat. § 3122.1, at the time carried a maximum penalty of 10 years imprisonment (the maximum penalty is now 20 years). He also noted that the federal statutory rape law, 18 U.S.C. § 2243(a), which applies in the maritime and territorial jurisdiction of the United States, carries a maximum 15 year sentence. Begin contended that a sentence of more than 10 years would lead to an unwarranted disparity under § 3553(a)(6) because he would receive a greater punishment for attempting to induce an offense than for actually committing it.
The district judge sentenced Begin to 240 months and did not address Begin's arguments regarding state-federal and federal-federal disparities.
The Third Court's Decision
On appeal, the Third Circuit concluded that Begin's state-federal argument lacked "colorable legal merit" and therefore required no response from the district judge. Citing with approval cases from the Fourth, Seventh, Eighth, Tenth and Eleventh Circuits, the court wrote that § 3553(a)(6) was meant to address disparities only among federal defendants. The court rejected Begin's argument that § 2422(b)'s incorporation of state law in defining its elements distinguished his case. Given the absence of authority in his favor, the Third Circuit declined Begin's invitation to follow him "down a rabbit hole."
The court found Begin's federal-federal argument more compelling because of the similarity between § 2422(b) and § 2243(a). The court wrote, Begin's argument that the judge should consider disparities between sentences under the two statutes was at least colorable. The court cautioned that "colorable legal merit is distinct from actual merit" and left open the possibility that the judge would reject the argument on remand. Nonetheless, because the judge had failed to even consider the federal-federal argument, the court vacated Begin's sentence and remanded for further proceedings.
State and federal law often provide wildly divergent penalties for similar conduct, but those disparities do not give rise to colorable arguments regarding disparate punishment under § 3553(a)(6). On the other hand, disparities between federal statutes, even those aimed at somewhat different evils, may provide fertile ground for sentencing arguments.