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August 28, 2012

Split Second Circuit upholds reasonableness of 30-year prison term for child porn convictions

A number of helpful readers have help make sure I did not miss today's must-read opinion from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here).  Because I expect I will have subsequent posts commenting on this Broxmeyer ruling (in which the majority opinion runs 63 pages and the dissent another 20), I will start here by just posting the start of the majority opinion:

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.

August 28, 2012 at 01:18 PM | Permalink

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Comments

The 30 years sentence is a gift. This defendant was a serial sexual abuser and rapist of teenager girls who he gained access to by being a high school field hockey coach.

This case is alsao more evidence that absolutely no good can come from giving a teenager a smart phone.

Posted by: Erika | Aug 28, 2012 4:52:10 PM

Maybe so erika! But what these continual dicisions tell me is that only a completely retarded offender would ever agree to be taken alive to face the kangaroo justice we have now in sex crimes. Better to go out swinging and take a few of the aholes with them.

Posted by: rodsmith | Aug 29, 2012 10:40:51 AM

I wish I had seen this post earlier, because I doubt it will be checked again for a response...

Erika says: "This defendant was a serial sexual abuser and rapist of teenager girls who he gained access to by being a high school field hockey coach."

Do you have knowledge of some other crimes that he has committed? Nothing has been presented in this case that indicates he is either of the two things you accuse him of.

Care to share something with the rest of the class??

Posted by: centrist | Sep 2, 2012 1:42:48 PM

oops, I meant to say "proves" rather than "indicates."

Posted by: centrist | Sep 2, 2012 1:48:27 PM

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