On appeal from an amended judgment of conviction for possession and attempted production of child pornography entered in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge), defendant challenges his 30-year prison sentence as procedurally and substantively unreasonable.
The opinion of the court was delivered by: Reena Raggi, Circuit Judge:
United States v. Broxmeyer
JACOBS, Chief Judge, WINTER and RAGGI, Circuit Judges.
Chief Judge JACOBS dissents in a separate opinion. 1
In 2008, former high school athletic coach Todd J. Broxmeyer was found guilty after a jury trial in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) of two counts of producing child pornography, see 18 U.S.C. § 2251(a) (Counts One and Two); one count of attempting to produce child pornography, see id. § 2251(a), (e) (Count Three); one count of transporting a minor across state lines with the intent to engage in criminal sexual activity, see id. § 2423(a) (Count Four); and one count of possessing child pornography, see id. § 2252A(a)(5)(B) (Count Five). The victims of all these crimes were teenage girls under Broxmeyer's purported tutelage and care.
On Broxmeyer's first appeal, this court reversed his convictions on Counts One, Two, and Four. See United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010). As to the first two counts, the court concluded that the evidence was insufficient as a matter of law to permit the jury to find that Broxmeyer had solicited the production of--rather than simply received--the two images of child pornography at issue. See id. at 124-27. As to Count Four, the court, by a divided vote, concluded that Broxmeyer's interstate transportation of a 15-year-old girl after compelling her to engage in sodomy could not support a conviction for interstate transportation of a minor with intent to engage in criminal sexual activity, that object already having been achieved before the defendant crossed any state border. See id. at 128-30; see also id. at 130 (Wesley, J., dissenting in part). Vacating Broxmeyer's original 40-year prison sentence, this court remanded for resentencing on the remaining two counts of conviction for possession and attempted production of child pornography. See id. at 130.
Broxmeyer now appeals from so much of the amended judgment entered on December 29, 2010, as sentenced him to concurrent prison terms of 30 years on Count Three's attempted production charge and 10 years on Count Five's possession charge. He argues that the sentence is infected by various procedural errors and, in any event, that 30 years' incarceration is substantively unreasonable in his case. Indeed, Broxmeyer maintains--and our dissenting colleague agrees--that any sentence higher than the minimum 15-year prison term mandated for Count Three, see 18 U.S.C. § 2251(e), would be substantively unreasonable. We reject both arguments as without merit.
A. The Conduct Informing the Challenged Sentence
Precisely because Broxmeyer and the dissent maintain that only the mandated minimum sentence for Count Three can be substantively reasonable in this case--in short, that the district court effectively had no sentencing discretion whatsoever--it is necessary to set forth at the outset and in some detail the totality of the evidence relevant to sentencing that prompts us emphatically to reject this argument. The dissent criticizes this approach, maintaining that it unfairly reaches beyond "the offense of conviction," which "amounts to a single act of attempted sexting." Jacobs, C.J., Op. Dissenting ("Jacobs, C.J., Op."), post at 3-4. This is wrong as a matter of law. While a district court cannot sentence a defendant to more severe punishment than that prescribed for the crimes of conviction, "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence" within the prescribed range. 18 U.S.C. § 3661; see Williams v. New York, 337 U.S. 241, 247 (1949) (recognizing that sentencing judge is "not confined to the narrow issue of guilt" in determining punishment, but must act on "the fullest information possible concerning the defendant's life and characteristics"); accord Pepper v. United States, 131 S. Ct. 1229, 1240 (2011); Witte v. United States, 515 U.S. 389, 397-98 (1995); Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993).
Although the dissent cannot disavow this venerable--and codified--rule of sentencing law, see Jacobs, C.J., Op., post at 2, it can disregard it, justifying that action only with the conclusory plaint that we mischaracterize its views, see id. The dissent makes its views clear enough. It (1) minimizes evidence that Broxmeyer abused his position as a field hockey coach repeatedly to sexually abuse teenage girls; (2) criticizes the quality of that evidence while ignoring the fact that Broxmeyer carefully avoided an evidentiary hearing at which the details of events reported by the Probation Department in its Presentence Investigation Report ("PSR"), including multiple rapes, might be produced; (3) ignores Broxmeyer's statements at sentencing, which showed no remorse and blamed his victims; and most troubling, (4) proposes that sentencing judges wear blinders, confining the matters considered to the evidence supporting the crimes of conviction. We here emphasize that this view of sentencing has no place in our jurisprudence.
The broad range of information that the district court was here entitled to consider in imposing sentence might usefully be thought to fall into three sets, each larger than the one before: (1) evidence establishing Broxmeyer's guilt for the crimes of conviction, (2) evidence supporting particular Sentencing Guidelines enhancements, and (3) evidence properly informing the court's exercise of its ultimate sentencing discretion under 18 U.S.C. § 3553(a). While the second set defeats Broxmeyer's claim that procedural error in the application of the Guidelines renders his sentence unreasonable, it is the third, largest set that compels rejection of the claim that his sentence is substantively unreasonable. See generally United States v. Wernick, --- F.3d ---, 2012 WL 3194244, at *8 (2d Cir. 2012)
(distinguishing between specified facts relevant to Guidelines application and broad range of information properly considered in district court's determination of sentence under § 3553(a)).
That evidence, developed at trial and reported in the PSR, which the district court adopted, showed that, at the time of his December 22, 2007 arrest, the then-37-year-old Broxmeyer had worked for many years as a field hockey coach training female high school athletes in New York, New Jersey, and Pennsylvania. Broxmeyer's interaction with the girls he coached frequently escalated from the athletic to the flirtatious to the overtly--and coarsely--sexual. For example, Broxmeyer sent several teenage girls an image of his erect penis, requesting that they provide him with sexually explicit images of themselves or others in return. He maintained such pictures in an electronic album and on two computers eventually seized pursuant to a warrant. Broxmeyer sometimes distributed these pictures to other teenagers to encourage them to produce similar images of themselves or other girls. Broxmeyer also engaged several teenage girls in a range of sexual conduct, including intercourse and sodomy. The sodomy, necessarily criminal because the girl involved was only 15, was proved to a jury's satisfaction at Broxmeyer's trial in this case. In addition, the adopted PSR recounts five rapes, two of them statutory, as well as other sexual assaults on teenage girls. The district court properly considered Broxmeyer's crimes of conviction in this context, see 18 U.S.C. §§ 3553(a)(1), 3661, and reasonably recognized that they could neither be dismissed as only "sexting," see Jacobs, C.J., Op., post at 2, nor justified as "just joking around," Resentencing Tr. at 19:4-5 (quoting defendant's characterization of conduct).
1. Convicted Conduct a. Count Three: Attempted Production of Child Pornography
Broxmeyer's conviction for attempted production of child pornography was based on his November 2007 procurement of an image of 17-year-old K.T. posing suggestively in her underwear.*fn1 K.T. testified that, while Broxmeyer served as her field hockey coach, he routinely sent her text messages in which he told her that she was beautiful and had a nice body, which made her feel special. In the course of their electronic communications, Broxmeyer sent K.T. a picture of his penis, and asked her to provide him with sexually explicit images of herself. In one communication admitted into evidence at trial, Broxmeyer told K.T. she could take such pictures in a bathroom using her cell phone, thereafter using the phone to transmit the images to him. K.T. eventually sent Broxmeyer the image of herself in her underwear. Because the image was suggestive, but not sexually explicit, Count Three charged Broxmeyer with attempted, rather than actual, production of child pornography.*fn2
Upon receipt of the underwear picture, Broxmeyer praised K.T.'s effort, but demanded more. When K.T. sent him other non-pornographic images, Broxmeyer rebuked her, stating, "you know that's not what I was talking about." Trial Tr. at 255:14-15.
Eventually, in December 2007, K.T. sent Broxmeyer a pornographic picture in which she appeared nude, inserting a finger into her vagina.
b. Count Five: Possession of Child Pornography
K.T.'s aforementioned pictures were among dozens of nude and semi-nude images of adolescent females found in Broxmeyer's possession when law enforcement officers seized his online photo album and two personal computers. Among the images qualifying as child pornography were two depicting 17-year-old A.W., another field hockey player coached by Broxmeyer. In one, the girl is shown inserting a finger into her vagina; in the other she sprays water from a hand-held shower head toward her nude genital area.*fn3
Broxmeyer had met A.W. in 2005 when, at age 15, she attended a field hockey camp at which he was coaching. Broxmeyer began flirting with the girl and, by 2007, had engaged her in sexual relations not only in New York, but also in California when he escorted the field hockey team on which A.W. played to a competition in that state.*fn4 Broxmeyer and A.W. sometimes used cell phones to photograph themselves engaged in sexual acts. Broxmeyer also sent A.W. lewd and pornographic images of other teenage field hockey players, including the underwear and vagina images he had received from K.T. He challenged A.W. to obtain such images of other field hockey players for him, which A.W. did on several occasions.
2. Trial Evidence of Broxmeyer's Criminal Sexual Assault of 15-Year-Old
In reversing Broxmeyer's conviction on Count Four, this court identified no sufficiency problem in the evidence that Broxmeyer intended to--and did--engage a 15- year- old field hockey player, K.M., in criminal sexual activity, specifically, sodomy.*fn5 The court concluded only that the evidence was insufficient to satisfy federal jurisdiction because the sodomy occurred before rather than after Broxmeyer took the girl across a state line. See United States v. Broxmeyer, 616 F.3d at 128-30; see also 18 U.S.C. § 2423(a). In these circumstances, although the proved sodomy could not qualify on remand as convicted conduct, it could still be considered in the district court's Guidelines calculation and in its ultimate determination of sentence under § 3553(a). Accordingly, we summarize this evidence here.
Beginning in September 2007, K.M.'s parents arranged for their daughter to travel on weekends from her home in Pennsylvania to New York or New Jersey to attend field hockey practices conducted by Broxmeyer. When, in early December 2007, a scheduling problem arose with respect to transporting K.M. home after a weekend practice in New York, Broxmeyer advised the girl's parents that he himself would drive their daughter back to Pennsylvania.
On December 9, 2007, at the outset of the return trip, Broxmeyer stopped in Johnson City, New York, at a community sports center that he managed called the Sportsplex and insisted that K.M. accompany him inside. There, Broxmeyer grabbed the girl, began kissing her, and removed his pants. Broxmeyer made K.M. sit in a chair, and holding the girl's head in his hand, had her perform oral sex on him. Broxmeyer then drove K.M. home, admonishing her never to tell anyone what had happened, an instruction the girl followed until she heard of Broxmeyer's arrest later in December, whereupon she told her parents of the sexual assault.
Law enforcement authorities contacted K.M. and her family after learning of the assault from a New York field hockey player, J.B., in whom K.M. had confided. When investigators interviewed K.M., she revealed that her sexual assault had a familiar prelude: Broxmeyer had sent the girl a picture of his penis, solicited sexually explicit images of her in return, and engaged the girl in sexually explicit text messages, which in fact continued after the assault.
3. Broxmeyer's Sexual Assaults on Other Teenagers
The PSR detailed numerous other sexual assaults by Broxmeyer on teenage field hockey players.
The PSR reported that K.T., the same 17-year-old whose transmittal of a suggestive underwear picture supported defendant's Count Three conviction for attempted production of child pornography, see supra Part I.A.1.a, claimed that Broxmeyer had raped her at the Sportsplex on the night of December 21, 2007. The girl reported the assault that same night when she went with her parents to a Binghamton hospital to seek treatment. There, she told police that, earlier that day, she had asked Broxmeyer to pick her and a friend up at a local mall.*fn6 Broxmeyer took K.T. and her friend J.B., another 17-year-old field hockey player, to the Sportsplex, the site of the assault on K.M. a few weeks earlier, claiming he had work to do there. Soon after their arrival, Broxmeyer started tickling K.T. and tried to remove her pants. K.T. protested that she was not consenting to any sexual activity and threatened to report Broxmeyer to the police. Broxmeyer persisted, ultimately penetrating K.T.'s vagina with his penis.*fn7 According to K.T., the assault ended when she bit Broxmeyer and kicked him in the groin. Nevertheless, K.T. and her friend allowed Broxmeyer to take them home, and soon after, Broxmeyer sent K.T. repeated apologetic text messages.*fn8
When police questioned Broxmeyer in the early hours of the next morning, he admitted being at the Sportsplex the night before with K.T. and J.B. and to tickling K.T. He denied ever having any sexual contact with K.T., or any other girls, although he admitted sending K.T. nude pictures of himself and receiving pictures from her in return.
In fact, Broxmeyer subsequently acknowledged other sexual activity with K.T., but maintained that it was consensual. That other activity, which K.T. had already disclosed in her December 22 police interview, occurred on December 7, 2007. K.T. told police that on that day Broxmeyer had invited her and J.B. to his apartment, purportedly to discuss college. There, Broxmeyer took K.T. into his bedroom, where, after kissing and fondling the girl, he took off his pants and had K.T. stimulate him with her hand until he ejaculated.*fn9
On December 23, 2007, police questioned J.B., who corroborated elements of K.T.'s account of the events of December 21, but stated that she had not seen the reported assault--purportedly because she had her eyes closed--although K.T. had told her of its occurrence. Nevertheless, J.B. advised police that she had herself been a victim of Broxmeyer's assaults as had other teenage girls.
Specifically, J.B. stated that sometime in November 2007, she had been at Broxmeyer's apartment watching a movie with his girlfriend. While driving J.B. home, Broxmeyer stopped his car and started moving his hand up the girl's leg, teasing her by saying "chicken." The girl told him to stop and refused Broxmeyer's instruction to undo her belt buckle. At that point, he drove her home.
Although J.B. purported to be frightened by the November encounter, on December 1, 2007, she returned to Broxmeyer's apartment to watch another movie, this time in the company of her 17-year-old friend J.C. During the movie, Broxmeyer led J.C. by the hand into his bedroom. J.C. emerged a short time later with a shocked look on her face, prompting
J.B. to ask what had happened. Broxmeyer said he would show J.B., and proceeded to lead her into the bedroom, where he had forcible sexual intercourse with her. The next day, J.C. told J.B. that Broxmeyer had similarly assaulted her.
Asked if she knew of any other minors whom Broxmeyer had sexually abused, J.B. identified K.M., a disclosure that, as noted earlier, led investigators to locate K.M. in Pennsylvania, resulting in her testifying against Broxmeyer at trial with respect to Count Four.
Investigators also subsequently interviewed J.C., who confirmed being at Broxmeyer's apartment with J.B. on December 1, 2007. She stated that, after Broxmeyer took her into a bedroom, he removed her pants and, over her protests, had sexual intercourse with her. He then instructed her not to tell anyone about what had occurred.
Similarly, police interviewed M.G., a girl whom A.W. had identified as the person depicted in a suggestive photograph that Broxmeyer had shown her. M.G. testified at trial that Broxmeyer had been the coach of her club field hockey team for high-school age girls, during which time, he repeatedly flattered her appearance, sent her a photograph of his penis, and badgered her to send him "sexy" photographs of herself. Trial Tr. at 121:8. Eventually, M.G., who was 17 at the time, sent him a photograph of herself clad in underwear which Broxmeyer later showed to A.W. M.G. further testified that on one occasion when Broxmeyer had driven her home from a field hockey practice, he had stopped his car and sexually assaulted her by putting his finger inside her vagina.
After Broxmeyer's 2007 arrest, an adult woman identified in the PSR only as M.L. came forward and reported to investigators that some 15 years earlier, in 1991-92, when she was a 13-year-old field hockey player, defendant had subjected her to three escalating sexual assaults. On the first occasion, when the girl was in Broxmeyer's car, he ran his hand up her thigh and said "chicken" before putting his hand into her pants and fondling her. On the second occasion, Broxmeyer forced the girl to perform oral sex on him. Finally, after a school dance in February 1992, Broxmeyer got the girl intoxicated and had sexual intercourse with her, after which he told her not to tell anyone as he could go to jail.
B. Broxmeyer's Sentencing
1. The PSR Guidelines Calculation and the Statutory Sentencing Ranges
Broxmeyer's Sentencing Guidelines calculation, as reported in the PSR, reflected a total offense level of 43 and a criminal history category of I, resulting in an advisory Guidelines sentence of life incarceration.*fn10 Because life imprisonment exceeded the
statutorily authorized maximum sentence of 40 years--which could be achieved by sentencing Broxmeyer to the maximum 30-year prison term for attempted production of child pornography, see 18 U.S.C. § 2251(e), and a consecutive maximum 10-year term for possession of child pornography, see id. § 2252A(b)(2)--the statutorily authorized maximum became the Guidelines sentence. See U.S.S.G. § 5G1.1(a); United States v. Dorvee, 616 F.3d 174, 180-81 (2d Cir. 2010). While the district court was not required to sentence Broxmeyer to a Guidelines sentence of 40 years' incarceration, see United States v. Booker, 543 U.S. 220, 245 ...