It’s easy to be disgusted by the crime for which Todd Broxmeyer was convicted. A former high school field hockey coach, Broxmeyer was convicted of attempting to persuade a 17 year old female student to “sext” him pictures and possession of the image.  He had been convicted of a number of other counts, but they were dismissed in a prior appeal because the evidence was legally insufficient to support the conviction. 

Still, the two counts are enough, even if 17 is the age of consent in New York.  After all, he was her coach. 

But when he stood for sentence the second time, he was sentenced for everything, every wrong he did, every disgusting allegation, even those for which his convictions were reversed as insufficient. Everything. 

Welcome to relevant conduct, a trick under the United States Sentencing Guidelines that bootstraps one conviction, no matter what it’s for, into a funnel where every wrong claimed goes into the hole and comes out as a sentence of monumental proportions.  So what if it’s ridiculously disproportionate to the crime of conviction, as long as the relevant conduct, all the bad stuff he wasn’t convicted of, supports it.

By 2-1, the 2d Circuit was cool with a life sentence (reduced to the statutory max of 30 years) for one count of attempted sexting and one count of possession of the image.  Judge Reena Raggi, writing for the majority, then went on to provide the details of every alleged, disgusting, unproven, unconvicted wrong.  Just so the reader of the decision would be as repulsed by the defendant as she was, which was extremely persuasive but for one shortcoming: He hadn’t been convicted of any of it.

But as Judge Raggi notes,

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.

As expressly noted, each “set” of “information” was larger than the one before it, the first one being the evidence of the crime for which he was convicted. It only gets worse from there.
 
In dissent, Chief Judge Dennis Hurley would remand for the defendant to be sentenced to the statutory minimum of 15 years.  This is important: the lowest sentence he could get is 15 years. Fifteen. That’s a long time. A very, very long time. It’s not like he could get a quick and easy ten, or even a slap of five, but fifteen years. 

Broxmeyer’s attempt consisted of inducing a 17-year old to take a lewd photo of herself. Under New York law, a 17-year old (such as the victim, K.T.) is of the age of consent. See N.Y. Penal Law § 130.05(3)(a); see also id. §§ 130.25, 130.40. She and Broxmeyer could do with each other whatever consenting adults may do behind closed doors in New York. True, the federal statute treats a 17-year old as a minor, 18 U.S.C. § 2256(1), so that a lewd photograph of her must be classified as child pornography. But surely it is an arresting irony that the only thing forbidden between Broxmeyer and K.T. was photography.

Yes, under federal law, sometimes photography is a crime, even when actually doing what the photography suggests would be perfectly lawful. Go figure.

And the sentence was stiffened by reason of “distribution” because after she took the picture of herself, she transmitted it to Broxmeyer. In short, the offense of conviction for which he was sentenced to thirty years imprisonment consisted in whole of sexting.

But then, Judge Hurley was only thinking about the crime of conviction, rather than all the unconvicted bad things that fall under the relevant conduct rubric. What about the children?

I start there because a reader of the majority opinion may find it hard to keep in mind what Broxmeyer was convicted of, and what he was sentenced for…

My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be upheld as reasonable, a court should not lose sight of the offense of conviction.

And therein lies the problem with relevant conduct. When the crime of conviction becomes nothing more than a peg on which to hang every wrong, real or imagined, for which a defendant wasn’t convicted, and to then sentence him for his “comprehensive moral accounting,” we’ve utterly reduced the notion of conviction to a farce, and excuse to pay a defendant back for everything we hate about him, convicted or not.  And here, the crime of conviction itself is, frankly, puny compared to the relevant conduct. 

And after the relevant conduct enhancements that guys with a grid decided would make federal sentencing truly fair and standardized, Judge Hurley sums up the results:

That calculation–if not actually procedural error–is sound only as a matter of arithmetic and accounting. But it proves too much: something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence. That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them. 

As disgusting as one might find a high school field hockey coach’s conduct here, and indeed it was disgusting, he’s no Jeffrey Dahmer.  Except under the federal Sentencing Guidelines by reliance on relevant conduct.  And as Judge Raggi correctly holds, this is exactly what the law allows, no matter how unreasonable it may be.