Second Circuit Holds that Certain Acts Involving Children are not Relevant Conduct for Sentencing Purposes

In U.S. v. Wernick, No. 10-2974 (2d Cir. August 8, 2012), Defendant was convicted by jury in the United States District Court for the Eastern District of New York on five counts of receiving and distributing child pornography, reproducing child pornography for distribution by computer, possessing materials containing images of child pornography, and persuading, inducing, and enticing minors to engage in sexual activity.

From chat records on Wernick’s computer, the Government introduced evidence showing that on several occasions, Wernick chatted with minor male teenagers online and proposed meeting for sex. At trial, the government was able to prove two episodes, one in which Wernick met a male 14-year-old online and eventually persuaded him to meet in person several times to engage in oral and anal sex, and another involving a male 16-year-old. Additionally, at sentencing, prosecutors proved instances of Wernick’s sexual conduct with two male 15-year-olds and attempted sexual conduct with respect to another male teenager.

Defendant argued the district court erred by considering some of that sexual conduct directed at young children, not charged in the indictment or proven at trial, as relevant conduct that increased his U.S. Sentencing Guidelines Manual offense level. The Appellate Court agreed, stating, “We agree with Wernick that the offenses against the young children are not relevant conduct because these offenses did not “occur[] during the commission of” or “in preparation for” the crimes against the teenagers in the sense contemplated by the Guidelines.” Wernick at 14.

The Appellate court did not suggest the sexual exploitation of young children was not relevant in the ordinary sense to the district court’s consideration of an appropriate sentence for offenses involving illegal sexual enticement of older minors and redistribution of child pornography. It noted that the conduct in question could and undoubtedly would, be properly considered on remand in assessing the factors relevant to sentencing under 18 U.S.C.S. § 3553(a).

The sentence was vacated and the case was remanded for resentencing.

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