Finding that "Relevant" Conduct is not "Relevant Conduct," the Circuit Remands

United States v. Wernick, No. 10-2974-cr (2d Cir. August 8, 2012) (McLaughlin, Sack, Lynch, CJJ)

Defendant Wernick was convicted after trial of, inter alia, one count of child enticement - he persuaded two teenagers to meet with him. At his sentencing, the court factored in three other acts involving the abuse or attempted sex abuse of young children as “relevant conduct.”  The circuit concluded that the acts involving the young children, although clearly “relevant” to Wernick’s sentencing, were not “relevant conduct” under the sentencing guidelines.

The guideline under which Wenick was sentenced, § 2G1.1, has a specific offense characteristic involving the sex abuse of individuals other than those in the count of conviction:  if the “relevant conduct” to the offense of conviction includes “prohibited sexual conduct in respect to more than one victim,” regardless of whether that victim is specified in the count of conviction, each such victim should be “treated as if contained in a separate count of conviction.” Thus, a separate calculation under that guideline is undertaken for each victim - those in the count of conviction and those in the “relevant conduct ”- then each is treated as a separate “group” under the Chapter 3 "grouping" rules. Here, the acts involving the young children added four levels to Wernick’s already very high offense level.

The circuit concluded that the acts involving the young children were not “relevant conduct” in Wernick’s case and that including them in the offense level was plain error. Section 1B1.3 requires the sentencing court to determine the “relevant conduct” for purposes of applying an offense guideline's specific offense characteristics. “Relevant conduct,” includes “acts ... committed ... by the defendant” that occurred “during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” 

If these criteria are met, under § 2G1.1 conduct against victims other than those covered by the conviction can be “relevant conduct.” But here, the acts against the young children did were not covered by § 1B1.3 because they did not occur "during” the offenses against the teenagers, even though there was a “temporal overlap” between the conduct with the young children and that with the teenagers. “One criminal act does not become ‘relevant’ to a second act under the Guidelines by the bare fact of the temporal overlap.” The acts have to be connected in the same course of conduct - the example the circuit gives is a bank robber who assaults a guard during the robbery - otherwise “the second event is literally a coincidence.” The guidelines “do not define ‘relevant’ as ‘during’ in a purely temporal sense.”

Here, the government did not offer any evidence that Wernick, “for example, simultaneously engaged in sexual activities with teenagers and young children, or that he was able to use the fact of his pursuit of sex with children to persuade the teenagers to have sex with him.” The acts against the young children, as bad as they were, were not “relevant conduct” to the acts against the teenagers “in the sense contemplated by the” guidelines.

Nor was it enough that these acts could have been covered by the language of the charging instrument. That the government could have proven the conduct against the children at trial but did not did not make it relevant conduct. 

The guideline error here constituted plain error. There was an “error,” that was “plain.” It also affected Wernick’s substantial rights and called into question the fairness or integrity of the proceedings because of the serious effect it had on Wernick’s sentence: the district court used a range of 324 to 405 months’ imprisonment - it sentenced Wernick to 360 months - but absent the error the range would have been 210 to 262 . 

The court noted that a remand for resentencing, “while not costless, does not invoke the same difficulties as a reamnd for retrial.” Here, given the magnitude of the impact on the guideline calculation and the “relavitly low cost of correcting the miscalculation,” the court remanded for resentencing.

The court closed by recognizing that this decision “has an air of the academic and technical” and might be seen by some as slighting the “seriousness and obvious materiality of Wernick’s persistent pattern of abuse of minors.” But this is the “nature of guideline sentencing,” and such “technical analysis” is only part of the sentencing process. On remand, the district court “remains entitled to exercise its discretion” and “may make its own evaluation of the characteristics of the defendant” and the other § 3553(a) factors.