United States v. Jay Fredrick Nagel

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14087
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-14010-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAY FREDRICK NAGEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 1, 2016)
Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.
WILSON, Circuit Judge:
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Jay Frederick Nagel appeals his 292-month sentence, imposed after he
pleaded guilty to three counts of enticement of a minor to engage in sexual activity
under 18 U.S.C. § 2422(b). On appeal, Nagel challenges the procedural and
substantive reasonableness of his sentence. However, after review of the record
and consideration of the parties’ briefs, we determine that Nagel’s sentence is both
procedurally and substantively sound. First, the district court’s decision not to
group Count One and Count Two of Nagel’s convictions was in accordance with
§ 3D1.2 of the United States Sentencing Guidelines (the Guidelines) because the
conduct underlying each count caused a separate and distinct harm to the victim.
Next, the court gave an adequate explanation for the within-guideline sentence it
imposed. Finally, the court acted within its discretion by selecting a substantively
reasonable sentence; it did not, as Nagel argues, impose a sentence greater than
necessary to comply with the statutory goals of sentencing. Accordingly, we
affirm the district court.
I. BACKGROUND
A federal grand jury charged Nagel with three counts of using the internet to
persuade, induce, entice or coerce a minor to engage in illegal sexual activity in
violation of 18 U.S.C. § 2422(b). He was charged on Count One for his
interactions with C.R., a minor female, between December 1, 2013 and April 23,
2014. This conduct included using an alias to talk to C.R. for several weeks via
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Facebook, engaging in sexually explicit conversations and exchanging explicit
photographs, as well as convincing C.R. to meet him to engage in oral and vaginal
sex at the store where he was employed on at least one occasion. He was charged
on Count Two for his interactions with C.R. between April 27, 2014 and July 29,
2014, which culminated in oral and vaginal sex with C.R. at his residence. He was
charged on Count Three for his interactions with A.L., a different minor female,
between April 15, 2014 and August 15, 2014, during which time he, using an alias,
convinced A.L. to exchange sexually explicit pictures and engage in oral sex.
Nagel entered into a written plea agreement, in which he agreed to plead guilty to
all counts of the indictment.
The probation office prepared a presentence investigative report (PSI),
which treated each of the three counts as its own separate and distinct group. For
Group One, which consisted of his conviction on Count One, Nagel received an
offense level of 34. Nagel was also assigned an offense level of 34 for both Group
Two, which consisted of the conviction on Count Two, and Group Three, which
consisted of the conviction on Count Three. Ultimately, based on these different
offenses and related adjustments, Nagel received a total offense level of 39. Based
on this offense level and Nagel’s criminal history category of II, the guideline
imprisonment range was 292 to 365 months. For each of the three counts, there
was a 10-year statutory minimum sentence and a statutory maximum life sentence.
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Nagel objected to the PSI, arguing that Counts One and Two should be
grouped together because they involved the same victim. He asserted that, if they
were grouped together, the total offense level would be 38 and the guideline
imprisonment range would be 262 to 327 months. He renewed this objection at
sentencing and raised several arguments in favor of a lower sentence, including
that the court should consider the need to avoid unwarranted sentencing disparities
among defendants with similar conduct. The court received evidence such as
Nagel’s psychological evaluation and heard testimony from Nagel’s friend,
mother, father, and Nagel himself regarding Nagel’s character. It also considered
testimony presented by the government from Detective Jeremy Sheppard, who
worked on Nagel’s case. After hearing argument from both sides, the court
overruled Nagel’s objections and accepted the sentencing calculations in the PSI.
It imposed a sentence of 292 months’ imprisonment as to each count, to be served
concurrently. This appeal ensued.
II. DISCUSSION
Nagel challenges the sentence imposed by the district court, alleging the
district court erred by (1) refusing to group Counts One and Two of Nagel’s
convictions; (2) failing to sufficiently explain the sentence it selected; and (3)
exceeding the statutory goals of sentencing by imposing a sentence greater than
necessary to comply with those goals. We address each argument in turn.
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A.
We turn first to Nagel’s argument that the sentence imposed was
procedurally unreasonable because the court did not group Count One and Count
Two, which involved the same victim. Nagel acknowledges that, according to
commentary in the Guidelines, convictions for raping the same person on different
days are not to be grouped together. However, he contends that this non-grouping
provision does not apply to cases in which the defendant merely enticed a minor
individual to have consensual sex on more than one occasion. He argues that his
conduct is distinguishable from the rape governed by the commentary because he
did not force anyone to have sexual relations, pointing out that the Eleventh Circuit
has not yet addressed whether this provision applies to non-forcible sexual
misconduct.
We review the district court’s decisions regarding grouping de novo, but
review its findings of fact only for clear error. United States v. McClendon, 195
F.3d 598, 600 (11th Cir. 1999) (per curiam). We have not yet addressed in a
published opinion whether separate counts arising from distinct instances of non-
forcible sexual conduct with the same minor victim must be grouped for
sentencing purposes. However, we find it was proper for the district court to treat
Nagel’s two counts of enticement of a minor—which involved sexual misconduct
that occurred on different days—as not subject to grouping.
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District courts are instructed “to group closely related convictions according
to the rules in § 3D1.2.” United States. v. Marseille, 377 F.3d 1249, 1254 (11th
Cir. 2004). Section 3D1.2 provides that, in general, “counts involving
substantially the same harm shall be grouped together into a single [g]roup.”
U.S.S.G. § 3D1.2. Counts involve substantially the same harm when, among other
things: (1) they “involve the same victim and the same act or transaction,” or
(2) they “involve the same victim and two or more acts or transactions connected
by a common criminal objective or constituting part of a common scheme or plan.”
§ 3D1.2(a), (b). This plain language in addition to the guidance provided in the
accompanying commentary makes clear that counts based on harm to the same
victim will not be grouped if the offenses occurred on different occasions and
involved “multiple, separate instances of fear and risk of harm.” See § 3D1.2(b)
cmt. n.4. 1 In addition, according to example 5 of Application Note 4 in the
commentary, counts are not grouped together if a “defendant is convicted of . . .
raping the same person on different days.” § 3D1.2 cmt. n.4, ex. 5. These various
provisions are dispositive.
Nagel was convicted of sexual misconduct with C.R. on different occasions.
He used Facebook to entice C.R. to have sexual relations with him during two
distinct periods of time, each of which resulted in a separate instance of oral sex
1
The commentary to the Guidelines is authoritative. See U.S.S.G. § 1B1.7; see also
Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993).
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and sexual intercourse, several weeks apart. Specifically, Count One charged
Nagel with enticing minor victim C.R. to engage in sexual activity between
December 2013 and April 2014, which culminated with Nagel having oral and
vaginal intercourse with C.R. on April 22, 2014, at the store where Nagel worked.
Count Two charged Nagel with enticing C.R. to engage in sexual activity between
April 27, 2014 and July 29, 2014, which ended with Nagel having oral and vaginal
intercourse with C.R. sometime in July 2014 at his residence.
Each one of these sexual encounters with C.R.—who was unable to consent
due to her age—caused a separate harm, even though they occurred with the same
victim. See United States v. Bonner, 85 F.3d 522, 524–25 (11th Cir. 1996)
(“[M]ultiple, separate instances of fear and risk of harm, not one composite harm,
occur when the defendant robs or rapes the same victim on different occasions.”);
see also United States v. Bivens, 811 F.3d 840, 843 (6th Cir. 2016) (noting that, in
the context of “sex crimes committed by the same defendant against the same
victim over an extended period of time,” “each act usually amounts to a fresh harm
the victim must face anew”). Thus, they are not subject to grouping under §
3D1.2(a). And the counts were not part of a single course of conduct with a single
criminal objective, see § 3D1.2(b); instead, Nagel had two separate objectives, to
have sexual relations with C.R. two separate times.
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Moreover, Nagel’s emphasis on the consensual nature of the relationship is
unpersuasive. Nothing precludes the non-grouping language in § 3D1.2 and its
accompanying commentary from applying to non-violent sexual offenses. As the
Second Circuit has held, “use of force is not a requirement for placing the same
crimes against the same person in separate groups. Crimes do not necessarily
‘involve substantially the same harm,’ which is the test for grouping under [§]
3D1.2, just because force is not used.” See United States v. Vasquez, 389 F.3d 65,
77 (2d Cir. 2004); see also United States v. Wise, 447 F.3d 440, 445–47 (5th Cir.
2006) (per curiam) (refusing to group counts for sexually explicit photographs of a
minor taken on different days); United States v. Kiel, 454 F.3d 819, 822 (8th Cir.
2006); United States v. Big Medicine, 73 F.3d 994, 997 (10th Cir.1995). Further,
example 5 of Application Note 4 broadly refers to “rap[e],” a comprehensive term
which can encompass non-violent sexual offenses. Given the cross-references in
the provisions to different forms of rape, it is likely that “the Sentencing
Commission’s use of more inclusive terminology in Example 5 was intentional,”
selected in order “to cover various forms of the crime.” See United States v. Von
Loh, 417 F.3d 710, 712–14 (7th Cir. 2005) (finding that the exclusion under §
3D1.2 is not limited in coverage to forcible rape, but applies to statutory rape as
well).
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Accordingly, in line with the plain language of the Guidelines and
accompanying commentary, we find it was not erroneous for the district court to
decline to group Nagel’s two counts of enticement of a minor under § 3D1.2. Even
though the counts involved the same minor victim and no force, the sexual
misconduct occurred on different days and involved separate instances of harm to
the victim.
B.
Nagel also argues that his sentence is procedurally unreasonable because the
court did not give sufficient reasons to justify the 292-month sentence. He alleges
that the court failed to state its reasons for imposing his sentence as required by 18
U.S.C. § 3553(c). He further asserts that the court’s explanation was particularly
inadequate when considering the factors in favor of a downward variance, which
include his age, his criminal history, and the fact that the guideline sentence was
heavily enhanced because of the nature of his crime. He also contends that several
circuits have held that a summary statement like the one given by the court is not
sufficient for appellate review.
A sentence can be procedurally unreasonable if the district court errs by,
inter alia, “failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall v.
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United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). Considering the
requirements for procedural reasonableness, the Supreme Court has instructed:
The sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his
own legal decision making authority. Nonetheless, when
a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require
lengthy explanation.
Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007) (citation
omitted).
Here, the district court met these requirements. Before imposing the
sentence, the court stated that it took into account the PSI, Nagel’s psychological
evaluation, Nagel’s objection to the PSI, Nagel’s request for a downward variance,
the letters filed on Nagel’s behalf, the testimony presented at sentencing, the
statements of the parties, and the statutory factors set out in § 3553, indicating that
it gave adequate consideration to the parties’ arguments. See id. at 356, 127 S. Ct.
at 2468; United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (“In general,
the district court is not required to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” (internal quotation marks omitted)).
And, after stating that it “had no doubt” that it could consider all of the §
3553(a) factors, the district court emphasized the severity of Nagle’s crimes,
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referring to them as “one of the most serious ones you can possibly have.” Even
though the court did not repeat Nagel’s arguments, it is clear from the record that
the court had a reasoned basis for imposing the sentence, as it found that other
countervailing factors, specifically the need to “provide sufficient punishment and
deterrence,” outweighed Nagel’s concerns. While Nagel relies on opinions from
other circuits to argue that more of an explanation was required, the district court’s
explanation sufficiently complies with precedents from the Supreme Court and this
circuit. See Rita, 551 U.S. at 356, 127 S. Ct. at 2468; Sanchez, 586 F.3d at 936.
That is to say, the record supports that the district court “consider[ed] the
defendant’s arguments at sentencing and state[d] that it [took] the § 3553(a) factors
into account.” See Sanchez, 586 F.3d at 936. Therefore, we find that the district
court’s explanation of the sentence it imposed was sufficient.
C.
Nagel finally argues that his 292-month sentence is substantively
unreasonable because it is beyond what was necessary to fulfill the statutory goals
of sentencing. Nagel also contends that his sentence violates the congressional
policy of proportionality behind the Guidelines because it is more severe than the
sentences received by many defendants who committed far more egregious acts.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard of review. United States v. Irey, 612 F.3d 1160, 1188–89 (11th
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Cir. 2010) (en banc). The district court must impose a sentence “sufficient, but not
greater than necessary to comply with the purposes” listed in §3553(a)(2), such as
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct and protect the
public from the defendant’s future criminal conduct. See 18 U.S.C. §3553(a)(2).
We will only vacate a sentence if we are convinced the sentence is outside the
reasonable range of sentences for a given case. See Irey, 612 F.3d at 1189–90;
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).
In light of the record and the § 3553 factors, Nagel’s sentence is
substantively reasonable. At the sentencing hearing, the district court noted that
the nature of Nagel’s crimes was extremely severe and specifically stated that it
selected a sentence it believed would “provide sufficient punishment and
deterrence.” The seriousness of the offense, the provision of just punishment, and
the need for deterrence are all § 3553(a) factors that support a sentence within the
guideline range. Nagel’s argument—that his sentence was unreasonable because
other defendants who have committed crimes more heinous than his own have
received lighter sentences—lacks merit because, even if we would have
determined a different sentence to be more appropriate, the district court’s imposed
sentence was within the reasonable range of sentences warranted by the facts. See
Irey, 612 F.3d at 1190. The district court was entitled to give more weight to the
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harmful nature of Nagel’s offense and the need to deter such behavior than to the
factors Nagel presented, such as his age, immaturity, and the fact that different
defendants had received lower sentences. See United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007) (the weight given to any § 3553(a) factor is “committed to the
sound discretion of the district court” (internal quotation mark omitted)).
Additionally, the reasonableness of the sentence is supported by its position
at the lowest end of the applicable guideline range. See United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008) (commenting that the imposition of a sentence
within the advisory guidelines range is ordinarily expected to be reasonable). The
sentence is also significantly less than the applicable statutory maximum of life in
prison, which points strongly to reasonableness. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (noting that the reasonableness
of a sentence may be indicated where the sentence imposed is well below the
statutory maximum sentence). Given these factors and the deference afforded
district court decisions under abuse of discretion review, we find no error as to the
substantive reasonableness of Nagel’s sentence.
III. CONCLUSION
Having considered the record on appeal and the parties’ arguments
contained in the briefs, we find no reversible error. Therefore, the district court is
hereby
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AFFIRMED.
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