PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11

- 3896

_____________

UNITED STATES OF AMERICA

v.

MICHAEL EUGENE BEGIN,

a/k/a Mike

Michael Eugene Begin,

Appellant

_____________
On Appeal from the Distric t Court
for the Western District of Pennsylvania

(No. 10

- CR

- 22 ) District Judge: Honorable Maurice B. Cohill , Jr.

_____________
Argued July 13 , 2012

Before: FUENTES, HARDIMAN

, and ROTH, Circuit Judges

(Opinion Filed: October 9, 2012 )2 Karen S. Gerlach, E sq. [ARGUED]
Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222

Thomas W. Patton, Esq.
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre Erie, PA 16501

Counsel for Appellant

, Michael E ugene Begin

Michael L. Ivory, Esq. [ARGUED] Rebecca R. Haywood, Esq. Office of the United States Attorney
700 Grant Street
Suite 4000 Pittsburgh, PA 15219

Christian A. Trabold, Esq. Office of United States Attorney
17 South Park Row
Room A330 Erie, PA 16 501

Counsel for Appellee

, the United States of America3 OPINION OF THE COURT

FUENTES, Circuit Judge :

Michael Eugene Begin appeals from a final judgment
of conviction and sentence on charges related to his use of the internet and a cellular phon e to send sexual messages and photographs to a minor in order to persuade her to have sex
with him. Begin pled guilty and was senten ced to 240 months‟ imprisonment, representing a 30

- month upward departure from the top of his advisory Sentencing Guideline s
range. On appeal, Begin argues that his sentence is
unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparit y between his sentence for attempti ng to induce statutory rape and the lower maximum sentences for actually committing statutory rap e under state and federal law. We
will vacate Begin‟s sentence and remand for the District
Cou rt to consider his request

.

I

In January 2010, a concerned mother contacted the
FBI regarding sexually suggestive messages that her 1 4

- year

old daughter had received through MyS pace, a social

networking website. These messages came from someone named “Mike,” who described himself as a 20

- year

- old Marine sniper. Both the girl and the FBI agent who subseque ntly assumed her online identity repeatedly informed Mike that she was 14 years old , but Mike was undeterred. He4 continued to write her sexually explicit messages and sent two photographs of himself to her cellular phone: one of his face and chest, the ot her of his penis. Ultimately, the FBI agent and Mike agreed to meet at a restaurant in Bradford, Pennsylvania. Michael Eugene Begin , then 33 years old and

not a M arine, showed up f o r the rendezvous, and FBI agents took him into custody. In his possessio n they found a knife, handcuffs, and a condom. Waiving his Miranda rights, Begin admitted that he had sent the sexually explicit messages and photographs and that he had intended to take the 14

- year

- old girl back to his room at the Riddle House, a boardin g house in
Bradford

, in order to have sex with her.

A federal grand jury sitting in the Western District of Pennsylvania returned a two

- count indictment against Begin

. Count One charg e d that Begin violated 18 U.S.C. § 2422(b) by using the internet and a cellular phone to attempt to persuade a minor “to engage in any sexual activity for which any person can be charged with a criminal offense, to wit, statutory sexual assault, in violation of [18 Pa. Cons. Stat. § 3122.1], aggravated indecent assault, in vi olation of [18 Pa. Cons. Stat. § 3125(a)(8)], and indecent assault[,] in violation of [18 Pa. Cons. Stat. § 3126(a)(8)].” App. 17. Count Two charged that Begin violated 18 U.S.C. § 1470 by using a cellular phone to transfer an obscene image to a minor

. Begin pled guilty t o both counts of the indictment at a change

- of

pl ea hearing in October 2010

.

In advance of sentencing, the United States Probation Office conducted an investigation and prepared a pre

sentence report (“PSR”). According to the PSR, Begi n‟s counts of conviction grouped together and carried a base
offense level of 28. He received a two

- level increase for his5 use of a computer to commit the offense and a three

- level decrease for his acceptance of responsibility. In addition, he qualified as a “repeat and dangerous sex offender against minors” under U.S.S.G. § 4B1.5(b)(1) and therefore received
a five

- level increase pursuant to that section. His resulti ng total offense level was 32.

The PSR calculated Begin‟ s criminal history category by a ssigning points to his adult criminal convictions

. In 1999, Begin committed seve ral crimes involving minor girls. He was convicted of corruption of minors after it was
discovered that he was harboring a 14

- year

- old runaway in his apartment , despite havi ng told police that he had not seen
her. He was convicted of indecent assault for having sex with

a “ mentally deficient” 16

- year

- old girl on a public park
bench. PSR p. 10

. 1 Finally, h e was convicted of indecent

exposure for mooning fou r minors in a pub lic park, asking
them whether they wanted to “scratch [ his ] balls,” and calling them “sluts.” Id. p. 11

. In 1995, Begin received a stolen bicycle and was subsequently convicted of theft by receipt of stolen property. No points were assigned to a juvenil e adjudication for Begin ‟s rape of a seven

- year

- old girl in 1993,
when he was sixteen. According to the PSR, Begin‟s criminal history category was IV.

Begin‟s Guidelines range was therefore 168 to 210 months, or 14 to 171⁄2 years

. On Count One, he faced a statutory mandatory minimum term of 1 0 years‟ imprisonment, and a statutory maximum term of life

1 The PSR recites that this conviction was for “indecent exposure,” but Begin has conceded that it was actually for “indecent assault.” App. 62.6 imprisonment. On Count Two, he faced no mandatory
minimum and a statutory maximum of 10 years

.

The Government filed a motion for an upward departure from th e advisory Guidelines range

, arguing that criminal history category IV underrepresented the severity of Begin‟s criminal history. According to the Government, Begin was a “serial s ex offender whose criminal history score represents only a fraction of his prior criminal conduct.” App. 51. In particular, the Government observed that Begin‟s criminal history score did not ta ke in to account his 1993 rape,
and the Government presente d newly obtained information that Begin had perpetrated other sexual assaults on minors in early 2010

. The Government further argued that the five

level § 4B1.5(b)(1) enhancement that Begin received as a “repeat and dangerous sex offender against minors” underrepresented Begin‟s repe at offenses. Section 4B1.5(b) applies to d efen dants with at least two prior instances of
crim inal sexual conduct with minors, and the Government
submitted that Begin had engaged in many more than two such instances and therefore deserved more punishment than
the section provided. I t was the Governmen t‟s posi tion that a range of 360 months to life imprisonment more accurately reflected Begin‟s criminal character and past.

Begin , on the other hand, sought a downward variance from the advisory Guidelines range based on the disparity
between that range a nd the sen tence that he would have faced in either state or federal court had he actually committed statutory rape. First, Begin observed that his Count One
conviction for inducement under 18 U.S.C. § 2422(b) was expressly linked to Pennsylvania state sta tutory rape offenses
that carr y a maximum penalty of 10 years‟ imprisonment.7 See 18 Pa. Cons. Stat. § 3122.1 (2000) (establishing the elements of statutory sexual assault) ; 18 Pa. Cons. Stat. § 1103 ( establishing the maximum sentences for different
classe s of felonies )

. 2 Second, he observed that the federal offense of statutory rape within the special maritime and territorial jurisdiction of the United States carries a maximum penalty of 15 years‟ imprisonment. See 18 U.S.C. § 2243(a). He argued that it would be inequi table to impose “ a longer sentence of imprisonment for using a means of interstate communication to help facilitate the commission of a crime than would apply to the crime facilitated,” and he drew an analogy to the Sentencing Guideline s fo r drug offenses, which set the penalty for a facilitation offense equal to the penalty that would have been applicable to underlying offense. App. 44 (citing U.S.S.G. § 2D1.6). Begin asked the
District Court for a sentence of 120 months, which is the

m an datory minimum under § 2422(b) and the maximum penalty he could have faced in Pennsylvania for statutory

rape

.

At Begin‟s sentencing hearing, the District Court began by observing that neither Begin nor the Government
had filed factual objections to the P SR but there was serious disagreement about the appropriate Guidelines calculation

2 After Begin was sentenced, Pennsylvania revised its statutory rape statute to classify Begin‟s at tempted conduct

— “sexual intercourse with a complainant under the age of 16 years when that person is 11 or more years older than the complainant”

— as a felony in the first degree, punishable by 20 years‟ imprisonment. 2011 Pa. Legis. Serv. Act. 2011

- 111.8 and ultimate sentence. Briefly summarizing the parties‟
written submissions

, the Court stated :

The Defendant

. . . has filed a position with respect to sentencing factors in which he argues that we should vary from the guidelines based on the disparity between the sentence the
Defendant would have received in state court had he actually committed statutory rape compared to the sentence he is facing in federal court for enga ging in the crime of attempting to induce and inducing a minor to engage in
essential ly statutory rape. The Defendant is seeking a sentence of 120 months.

App. 96. The Court determined that it should formally rule on the Government‟s motion for an upwar d departure before
it addressed B egin‟s request for a variance.

In support of its motion , t he Government presented the testimony of Bradford City Police Officer Todd Erickson who
had investigate d allegations that Begin had engaged in prohibited sexual con tact with three minors that w ere not included in the PSR

. According to Erickson, o ne of these girls told him that Begin had inappropriately touched her through her clothes and asked her over My S pace to have sex
with him

. The other two girls had been toge ther in Begin‟s
room in Riddle House on several occasions. One reported that Begin had thrust his hand down the front of her pants,
and e ach reported Begin had vaginally raped her

, though
inconsistencies between their accounts made it hard for
Officer Eri ckson to form a clear picture of exactly what had

t r a nspired.9 After Officer Erickson‟s testimony and the parties‟ oral arguments, the District Court granted the Government‟s
motion for an upward departure

. The Co urt explained that it
found

, by a preponde rance of the evidence

, that Begin had engaged in several sexual assaults that were not accounted for
in the PSR . In addition , the Court noted the “particularly egregious” details of Begin‟s juvenile rape of a seven

- year

old. App. 152. Altogether, the Co urt found that Begin‟s “lengthy, continuous” criminal history, “primarily focused on sexually assaulting minor females,” supported the conclusion that criminal history category IV substantially underrepresented the seriousness of his criminal history and

t he likelihood that he would commit other crimes. App. 152

- 53. Therefore, the Court found , pursuant to U.S.S.G. § 4A1.3, that the appropriate criminal history category for Begin was category V, making the applicable Guidelines range 188 to 235 months‟ imp risonment. In addition, the
Court found that the five

- level enhancement that Begin had received under U.S.S.G. § 4B1.5(b)(1) for his repeat sex offenses against minors did not adequately reflect the seriousness of the sexual abuse in which Begin had engag ed.
Therefore , the Court made a further upward departure and
arrived at a range of 18 8 to 240 months‟ imprisonment.

Ha ving determined the applicable advisory Guidelines range, the District Court indicated that it would next consider the sentencing factor s set forth in 18 U.S.C. § 3553(a)

, including Begin‟s request for a downward variance

. The Court heard oral argument from defense counsel and the Government but did not ask the attorneys any questions or make any comments on their presentations. Immediat ely following these arguments, the intended victim‟s mother10 made a statement concerning the impact of Begin‟s actions on her family and her daughter. The Court also heard a statement from Begin, who apologized for his actions.

The District Court then sen tenced Begin to an aggregate term of 240 months‟ imprisonment, at the top of his adjusted Guidelines range, to be followed by a life time term of supervised release with a number of special conditions

. The Court stated its belief that the sentence of 240 m onths was “sufficient but not greater than necessary” under 18 U.S.C. § 3553(a), and in light of “the nature and circumstances of this offense, as well as the history and background of the Defendant.” App. 166. The Court further explained:

In particular , the Court has taken into account that Mr. Begin is a 34

- year

- old man who has pled guilty to two counts, both of which concerned his attempt to induce a minor to engage in illegal sexual activity. The
circumstances of this case are serious and if not
for the intervention of the victim‟s mother could have resulted in serious and long

- standing harm
to the victim. We have also taken into account [that] Mr. Begin has a long criminal history that involves a disturbing amount of sex crimes against minors. We encourage Mr. Begin to participate in any available education and/or vocational training opportunities while he is
incarcerated.

. . . In imposing this sentence, w e have also considered the kind of sentences available and in the sentencing range set forth in
the g uidelines, including any relevant policy11 statements issued by the Sentencing
Commission.

App. 166

- 67

. Regarding the need to avoid unwarranted sentencing disparities under § 3553(a)(6) and the need for the sentence imposed under § 3553(a)(2) , the Court s tated :

This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct. At the same time, we find that the sentence does
reflect t he seriousness of his offense and provide s just punishment for it and also will hopefully promote respect for the law and afford adequate deterrence to criminal conduct while protecting the public from further crimes by this Defendant.

App. 167

- 68. The C ourt never directly addressed the

argu ments raised by Begin‟s counsel nor explicitly ruled on
his request for a downward variance.

Begin timely appealed to this Court

. 3

II

On appeal, Begin challenges the reasonableness of his

sentence. Our review of a district court‟s sentencing

3 We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. The District Court had original jurisdiction under 18 U.S.C. § 3231.12 decisions is for abuse of discretion and proceeds in two stages. United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (citing Gall v. United States , 552 U.S. 38, 51

- 52 (2007)) . First, we review for procedural err or at each step of the district court‟s sentencing process. Id. ; United States v. Wright , 642 F.3d 148, 152 (3d Cir. 2011). Thus, we ensure
that the district court (1) correctly calculated the defendant‟s advisory Guidelines range , (2) appropriately cons idered any motions for a departure under the Guidelines, and (3) gave meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). Wright , 642 F.3d at 152

. If the district
court has made a procedural error, “ we will generally rema nd
the case for re

- sentencing, without going any further. ” Id. (quoting United States v. Merced , 603 F.3d 203, 214 (3d Cir. 2010)) (internal quotation marks omitted). But , if the district court‟s procedure s pass muster, then we move forward to the
second stage, and we review the substantive reasonableness
of the sentence. Tomko , 562 F.3d at 567. Our substantive review focuses on the totality of the circumstances and is highly deferential. Id. at 567

- 68.

Our def erential substantive review of sentence s is enabled by our insistence, as part of our procedural review,
that the district court produce a record sufficient to demonstrate its rational and meaningful consideration of the § 3553(a) factors. Merced , 603 F.3d at 215. The record as a
whole must mak e clear that the district judge “has considered the parties‟ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. ” Id. at 215

- 16 (quoting Rita v. United States , 551 U.S. 338, 356 (2007)).
The district court need not r aise every conceivable issue on its
own initiative or even make explicit find ing s as to each sentencing factor if the record makes clear that the court took13 all the factors into account

. Id. at 215. “However, if a party raises a colorable argument about the applicability of one of the § 3553(a) factors, the district court may not ignore it.” Id. In this, “we have stated at least one concrete requirement to establish that the sentencing court gave meaningful consideration to the relevant § 3553(a) factor s: the court must acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Ausburn , 502 F.3d 313, 329 (3d Cir. 2007). A rote statement that the court has considered
each of the § 3553(a) factors is not a sufficient response to a specific colorable argument. United States v. Jackson , 467 F.3d 834, 841 (3d Cir. 2006); United States v. Cooper , 437
F.3d 324

, 329 (3d Cir. 2006), abrogated on other grounds by Kimbrough v. Unite d States , 552 U.S. 85 (2007).

III

Begin argues primarily that his sentence is procedurally unsound because the District Court failed to
discuss

, or even rule on

, his request for a downward variance in light of “the need to avoid unwarranted sentence disp arities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). T he
Government argues that Begin‟s request so obviously lacked legal merit that the District Court w as not required to address
it

, and t hat , in any event, the Court did in fact give it meaningful consideration . We address these issues in turn.

A

Before we reach Begin‟s contention that the District
Court made a procedural error by failing to respond to his14 request for a downward variance , we must satisfy ourselves that Begin‟s disparity arguments ha ve colorable legal merit. “The court need not discuss every argument made by a litigant if an argument is clearly without merit.” Cooper , 437
F.3d at 329 (citing United States v. Cunningham

, 429 F.3d 673, 678 (7th Cir. 2005))

. Begin raised two distinct § 3553(a)(6) disparity arguments before the District Court: first, he asked the Court to consider the 10

- year maximum sentence that could be imposed for statutory rape under Pennsylvania state law; second, he asked it to consider the 15

- year maximum sentence that could be imposed under federal law for statutory rape within the special and maritime jurisdiction of the United States.

1

Begin‟s state

- federal disparity argument lacks colorable leg al merit. As several of our sister circuits have observed, “Section 3553(a)(6) addresses unwarranted sentence disparities among federal defendants who are similarly situated instead of disparate federal and state
sentences.” United States v. Docampo , 573 F.3d 1091, 1102 (11th Cir. 2009); see United States v. Clark , 434 F.3d 684, 687 (4th Cir. 2006) (“The sole concern of s ection 3553(a)(6) is with sentencing disparities among federal defendants.” (emphasis omitted )); United States v. Branson , 463 F.3d
1110 , 1112 (10th Cir. 2006) (“Adjusting federal sentences to conform to those imposed by the states where the offenses occurred would not serve the purposes of § 3553(a)(6).”);
United States v. Jeremiah , 446 F.3d 805, 808 (8th Cir. 2006) (“Unwarranted sentenci ng disparities among federal defendants remains the only consideration under § 3553(a)(6)

—

both before and after Booker .”). This is so15 because the purpose of § 3553(a)(6) is to promote national uniformity in the sentences imposed by federal courts. See
Un ited States v. Parker

, 462 F.3d 273, 277 (3d Cir. 2006)

. Indeed, “ [r] educing a federal prisoner‟ s sentence to accord with that of a similarly situated state convict may decrease one sentencing disparity but simultaneously enlarges another:
that between th e federal convict and all similarly situated
federal convicts. Because penalties vary from state to state, sentence reductions to approach state penalties similarly vary with the state in which the federal sentencing court sits, unjustifiably creating dis parities among federal convicts.” United States v. Wurzinger , 467 F.3d 649, 654 (7th Cir. 2006) (citation omitted). In other words, “[a]djusting federal sentences to conform to those imposed by the states where the offenses occurred would not serve the p urposes of § 3553(a)(6), but, rather, would create disparities within the federal system, which is what § 3553(a)(6) is designed to discourage.” Branson , 463 F.3d at 1112

.

Begin attempts to distinguish these authorities on the ground that the indictment in this case specifically refers to state law. Under 18 U.S.C. § 2422(b), it is unlawful to use means of interstate or foreign commerce to persuade or attempt to persuade “any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense.” Count One of the indictment against Begin charged that he intended to engage in sexual relations with a 14

- year

old girl, which would support statutory rape charges under Pennsylvania law. According to Begin, this reference to a Pennsylvania criminal of fense makes Pennsylvania criminal penalties relevant to his federal sentencing.16 Tellingly, Begin has adduced no authorities in support of his novel proposition that when C ongress refers to state
law to define some of the elements of a federal crime, it intends to incorporate st ate sentencing considerations. In
their ab sence, we will not follow Begin down a rabbit hole. The federal government and the states are separate so vereign s with concurrent jur isdiction over various offenses, and they

may therefore apply disparate punishments to similar
conduct. See Branson , 463 F.3d at 1112. State

- federal disparities are simply irrelevant under § 3553(a)(6), and the
District Court was not required to address them.

2

Begin‟s federal

- federal disparity argument is more plausib le

. Begin argued that the sentence for his attempt to induce statutory rape under 18 U.S.C. § 2422(b) should no t exceed the fifteen

- year statutory maximum pena lty for actually committing statutory rape within the special maritime
and territorial jurisdiction of the United States under 18 U.S.C. § 2243.

In United States v. Ausburn , we vacated a district court‟s sentence for procedural error when the court failed to consider or discuss the defendan t‟s disparity argument under § 3553(a)(6). 502 F.3d at 330

- 31 . Ausburn

, like Begi n, was convicted of violating § 2422(b) by using e

- mail and a telephone to facilitate his sexual relationship with a minor.
Id. at 316. At sentencing, Ausburn argued that the district
court should consider the lenient sentences imposed in two prior criminal cases f

rom the same district

. Id. at 317

- 18 . In particular, Ausburn‟s defense counsel argued that the district
court should avoid a n unwarranted disparity with the 46

-17 month sentence imposed in the Kenrick case, id. at 320

- 21, in
which the defendant had violated a different statute, 18 U.S.C. § 2423(b), by traveling in interstate commerce for the purpose of having sex with a 15

- year

- ol d

. See United States
v. Kenrick , 241 F. App‟x 10, 12 (3d Cir. 2007). The district

court failed to discuss the merits of this argument

, instead merely reciting that it had considered the need to avoid unwarranted sentencing disparities. Ausburn , 502 F.3d at 330. On appeal, we determined that the district court was obliged to discuss, consider, and rule on the defendant‟s § 3353(a)(6) argument and that its failure to do so constituted procedural error. Id. at 330

- 3 1

.

Similarly, in this case, Begin has argued that an appropriate sentence should take into account th e sentences imposed for similar federal offenses. Under Ausburn

, this type of argum ent has colorable legal merit . We emphasize
that colorable legal merit is distinct from actual merit. There
is reason to believe that the predatory nature of Begin‟s
conduct and the knife and handcuffs found in his possession distinguish his offense from a run

- of

- the

- mill statutory rape. Indeed, the stiff penalties under § 2422(b) are intended to punish and de ter predators who use the reach an d anonymity of the internet to perpetrate sex crimes against children. See H.R. Rep. No. 105

- 557, at 11

- 12 (1998), as reprinted in 1998 U.S.C.C.A.N. 678, 680; see also Andriy Pazuniak, A Better Way to Stop Online Predator s: Encouraging a More Appealing Approach to § 2422(b) , 40 Seton Hall L. Rev. 691,
694

- 98 (2010) (reviewing the legislative history § 2422(b)). Thus, w hen we say that Begin‟s claim has colorable legal merit, we mean only that, upon appropriate findings of fact, the District Court would be within its discretion to accept the argument and to factor it into the ultimate sentence.18 B

Having concluded that Begin‟s federal

- federal disparity argument has colorable legal merit under § 3553(a)(6) , we agree with him that the District Court failed
to make a sufficient record to dem onstrate its consideration of that argument

. T hough the Court summarized Begin‟s state

federal disparity argument at the beginning of the sentencing
he aring, it did not acknowledge that he had also made a
federal

- federal disparity argument. The Court asked no questions during defense counsel‟s oral argument in favor of
downward variance on this ground and made no comments about the issue following that presentation. Striking ly , the
Court d id not even specifically rule on Begin‟s request for a
variance.

Nevertheless, the Government submits that the District
Court‟s on

- the

- record explanation of its sentence demonstrates its meaningful consideration of the § 3553(a) factors. To be sure, the Court articulated its consideration of
several of the se factors, including the nature and
circumstances of the offense and the history and

c haracteristics of the defendant. B ut we have held that “a district court‟s failure to analyze § 3553(a)(6) may cons titute reversible procedural error, even where

. . . the court engages in thorough and thoughtful analysis of several other sentencing factors.” Merced , 603 F.3d at 224. In this case,
the Court stated simply that its sentence “ takes into account
the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of simi lar conduct.” App. 167

- 68. This rote recitation
of § 3553(a)(6) is in sufficient to permit us to review the19 Court‟s resolution of Begin ‟s disparity arguments

. See
Jackson , 467 F.3d at 841

.

The Government has suggested various justifications for denying Begin‟s request for a downward variance. But “the question is not how we ourselves would have resolved
the factors identified as releva nt by section 3553(a)

. . . . We are not sentencing judges.” Cooper , 437 F.3d at 330 (quotation marks and alteration omitted). We have recognized that “the sentencing judge, not the court of appeals, „is in a superior position to find facts and judge th eir import under § 3553(a) in the individual case. ‟” Merced , 603
F .3d at 214 ( quoting Tomko , 562 F .3d at 56 6 )). Therefore, “[w]here the record is inadequate, we do not fill in the gaps by searching the record for factors justifying the sentence.”
Ausbur n , 502 F.3d at 331. Instead, we vacate procedurally
unsound sentence s and remand for the district court to exercise its discretion in a way that we can evaluate, and defer to, on appeal.

IV

Accordingly, we will vacate Begin‟s sentence and
remand for res entencing.1 United States v. Begin

No. 11

- 3896

________________________ _________________________

ROTH

, Circuit Judge

, dissenting in part :

I concur with the majority’s co nclusion regarding the
issue of federal/s tate sentencing disparities . I disagree, however, with t he majority’s decision to vacate the sentence
and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal
statutes raised here is irre levant to the consideration of

sentence disparities under 18 U.S.C. § 3553(a)(6) . I would, therefore, affirm the sentence imposed.

Begin pled guilty to 18 U.S.C. § 2422(b), which states:

Whoever, using the mail or any facility or
means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity f or which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned

not less than 10 years or for life.2 18 U.S.C. § 2422(b). Begin contends that the District Court
should have considered the po tential sentence he would have faced had he actually committed statutory rape in the special maritime or territorial jurisdiction of the United States and been prosecuted pursuant to 18 U.S.C. § 2243, which states:

Whoever, in the special maritime and ter ritorial jurisdiction of the United States . . . knowingly engages in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging;

or attempts to do so, shall be fined under this title, imprisoned not more than 15 years or both.

18 U.S.C. § 2243 (a)

.

These are diverse statutes. Section 2422(b) was enacted as part of the Telecommunications Act of 1996 and subsequently rewritten by the Child Protection and Sexual
Predator Punishment Act of 1998 , which was intended as “a comprehensive response to the horrifying menace of sex crimes against children, particularly assaults facilitated by computers.” United States v. Tykarsky , 446 F.3d 458 , 467 & n.4 (3d Cir. 2006) (discussing the statutory text, legislative purpose and history ). It clearly contemplates situations involving the use of force or persuasion

. See 18 U.S.C. § 2422(b ) (specifying that perpetrator “knowingly persuades, induces, entices, or coerces” the minor).

By contrast, § 2243 was enacted as part of the Sexual Abuse Act of 1986, which modernized federal rape statutes by, inter alia , defining the offenses in gender neutral terms3 and expanding the offenses to reach all forms of sexual abuse of another. H.R. Rep. No. 99

- 594 , at 10

- 11 (1986), as reprinted in 1986 U.S.C.C.A.N. 6186, 6190

- 91. Whereas other sections of the Act apply to sexual abuse involving threats or force, § 2243(a) “reaches noncoercive conduct” and prohibits sexual acts based on the victim’s age. Id. at 16

- 17,
1986 U.S.C.C.C.A.N. at 6196

- 97. Compare 18 U.S.C. § 2243(a) (requiring only that perpetrator “knowingly engages in a sexual act” with the victim and specifying age requirements), with 18 U.S.C. § 2241 (requiring that the perpetrator use force or threats to engage in sexual acts and omitting any reference to the victim’s age). Indeed, § 2243(a) “applies to behavior that the participants voluntarily and willingly engage in” and “is intended to reach olde r, mature persons who take advantage of younger, immature persons, but not to reach sexual activity between persons of comparable age.” H.R. Rep. No. 99

- 594, at 16, 1986
U.S.C.C.A.N. at 6197. It thus provides for a “young lovers” exception by requiring a t least a four

- year age difference between the perpetrator and the victim, thereby excluding consensual sex between teenagers. See 18 U.S.C. § 2243(a)(2); see also United States v. White Calf , 634 F.3d 453, 457 (8th Cir. 2011) (explaining that § 2243(c)(1 ) also provides a narrow affirmative defense that the defendant reasonably believed that the victim had attained the age of 16, “ostensibly to ameliorate the harsh effects of the statute in cases of otherwise consensual teenage sex”).

Because th ese two federal statutes do not address similar conduct, the disparity in their penalties is not within the scope of § 3553(a)(6), which is concerned only with “the need to avoid unwarranted sentence disparities among
defendants with similar records who ha ve been found guilty4 of similar conduct.” 18 U.S.C. § 3553(a)(6)

. I believe it is within this Court’s power to make this determi nation as a
matter of law. See, e.g.

, Mahmood v. Gonzales , 427 F.3d 248, 253 (3d Cir. 2005) (“When the outcome is clear as a matter of law, however, remand is not necessary.”) ; In re Ben
Franklin Hotel Assocs. , 186 F.3d 301, 306 (3d Cir. 1999) (“Because the record has been sufficiently developed for us to resolve this legal issue, we need not remand to the District
Court to cons ider it in the first instance.”)

. I would, therefore,
affirm the sentence that the District Court imposed.