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Enhanced sentence imposed for sexual encounters with the same minor on separate occasions


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.

The defendant challenged the sentence as procedurally unreasonable because the court did not give sufficient reason to justify the 292 month sentence as required by 18 U.S.C. section 3553(c) arguing that several circuits have held that a summary statement similar to the one given by the court is no sufficient for appellate review. The court rejected the argument because it found the district did meet the requirements of 3553 and the Supreme Court’s decisions in Gall and Rita by stating that is took into account the PSI, Nagel’s psychological evaluation, his objections to the PSI, his request for a downward variance, letter filed on his behalf, the testimony at sentencing, the factors in 3553 and the arguments of the parties. Therefor the court found the record and the district court’s explanations supports the sentence.

The defendant also challenged the 292-month sentence as substantively unreasonable because it is beyond what was necessary to fulfill sentencing goals under 3553 by violating the congressional policy of proportionality behind the federal criminal guidelines because it was more severe than the sentence received by many defendants who commit far more egregious acts. The appeals court rejected this argument. The district court imposed a sentence that was within the reasonable range of federal criminal sentences warranted by the facts. The district court was entitled to give more weight to the harmful nature of the offense and the need to deter such behavior than the factors which Nagel evidence focused at sentencing such as his age, immaturity, and the fact that different defendants had received lower sentences.

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