In U.S. v Nagel the defendant appealed his 292 month sentence imposed after pleading guilty to a charge of enticing a minor to engage in sexual activity in violation of 18 U.S.C. section 2422(b) His appeal centered around the procedural and substantive reasonableness of his sentence specifically whether the district court was correct in not grouping count one and count two of the defendant’s conviction in accordance with section 3D1.2 of the federal sentencing guidelines because the conduct underlying each count caused a separate and distinct harm to the victim.
The facts leading to this conviction resulted from the defendant contact with the minor through Facebook leading to the defendant convincing the minor to meet him at the store where he was employed and there they had a sexual encounter on one occasion. The facts leading to the second count arose from separate sexual activity with the minor as his residence. The presentence investigation report treated counts one and two as separate and distinct groups for the purpose of determining the federal sentencing guidelines. The defendant challenge this decision arguing the counts should be grouped together. The court rejected his argument finding that if was proper for the district court to treat the two counts of enticement of a minor, which involved sexual misconduct that occurred on different days, as not subject to grouping. Nagel’s emphasis on the consensual nature of the relationship was unpersuasive and not relevant to the non-grouping language of section 3D1.2. According to the plain language of the guidelines and the accompanying commentary, the district court was correct in declining to group Nagel’s two counts of enticement. Even though the conviction involved the same minor, the sexual misconduct occurred on different days and involved separate instances of harm to the victim.