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 District 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, Esq. [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 Eugene 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 16501

Counsel for Appellee, the United States of America
3

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 phone to send sexual messages and 

photographs to a minor in order to persuade her to have sex 

with him. Begin pled guilty and was sentenced to 240 

months‟ imprisonment, representing a 30-month upward 

departure from the top of his advisory Sentencing Guidelines 

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

disparity between his sentence for attempting to induce 

statutory rape and the lower maximum sentences for actually 

committing statutory rape under state and federal law. We 

will vacate Begin‟s sentence and remand for the District 

Court to consider his request.

I

In January 2010, a concerned mother contacted the 

FBI regarding sexually suggestive messages that her 14-yearold daughter had received through MySpace, a socialnetworking 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 

subsequently assumed her online identity repeatedly informed 

Mike that she was 14 years old, but Mike was undeterred. He 
4

continued to write her sexually explicit messages and sent 

two photographs of himself to her cellular phone: one of his 

face and chest, the other 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 Marine, showed up for the rendezvous, and FBI agents 

took him into custody. In his possession 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 boarding 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 charged 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 violation 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 to both counts of the indictment at a change-ofplea hearing in October 2010.

In advance of sentencing, the United States Probation 

Office conducted an investigation and prepared a presentence report (“PSR”). According to the PSR, Begin‟s

counts of conviction grouped together and carried a base 

offense level of 28. He received a two-level increase for his 
5

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 resulting 

total offense level was 32.

The PSR calculated Begin‟s criminal history category

by assigning points to his adult criminal convictions. In 

1999, Begin committed several 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 having 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, he was convicted of indecent 

exposure for mooning four minors in a public 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 juvenile 

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 10 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 the 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 sex 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 take into account his 1993 rape, 

and the Government presented newly obtained information 

that Begin had perpetrated other sexual assaults on minors in 

early 2010. The Government further argued that the fivelevel § 4B1.5(b)(1) enhancement that Begin received as a 

“repeat and dangerous sex offender against minors” 

underrepresented Begin‟s repeat offenses. Section 4B1.5(b)

applies to defendants with at least two prior instances of 

criminal 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. It was the Government‟s position 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 and the sentence 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 statutory rape offenses 

that carry 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 

classes 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 inequitable 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 Guidelines for 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 

mandatory 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 PSR 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 attempted 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 engaging in the crime of attempting to 

induce and inducing a minor to engage in 

essentially 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 upward departure before 

it addressed Begin‟s request for a variance.

In support of its motion, the Government presented the 

testimony of Bradford City Police Officer Todd Erickson who 

had investigated allegations that Begin had engaged in 

prohibited sexual contact with three minors that were not 

included in the PSR. According to Erickson, one of these 

girls told him that Begin had inappropriately touched her 

through her clothes and asked her over MySpace to have sex 

with him. The other two girls had been together 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 each reported Begin had vaginally raped her, though 

inconsistencies between their accounts made it hard for 

Officer Erickson to form a clear picture of exactly what had 

transpired.
9

After Officer Erickson‟s testimony and the parties‟ 

oral arguments, the District Court granted the Government‟s 

motion for an upward departure. The Court explained that it 

found, by a preponderance 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-yearold. App. 152. Altogether, the Court 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 

the 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‟ imprisonment. 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 engaged. 

Therefore, the Court made a further upward departure and 

arrived at a range of 188 to 240 months‟ imprisonment.

Having determined the applicable advisory Guidelines 

range, the District Court indicated that it would next consider 

the sentencing factors 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. Immediately 

following these arguments, the intended victim‟s mother 
10

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 sentenced Begin to an 

aggregate term of 240 months‟ imprisonment, at the top of his 

adjusted Guidelines range, to be followed by a lifetime term 

of supervised release with a number of special conditions. 

The Court stated its belief that the sentence of 240 months 

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, we 

have also considered the kind of sentences 

available and in the sentencing range set forth in 

the guidelines, including any relevant policy 
11

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 stated: 

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 the seriousness of his offense and 

provides 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 Court never directly addressed the 

arguments 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 error 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 considered 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 remand 

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 procedures 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 deferential substantive review of sentences 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 make 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 raise every conceivable issue on its 

own initiative or even make explicit findings as to each 

sentencing factor if the record makes clear that the court took 
13

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) factors: 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. United 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 disparities 

among defendants with similar records who have been found 

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The 

Government argues that Begin‟s request so obviously lacked 

legal merit that the District Court was not required to address 

it, and that, 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 his 
14

request for a downward variance, we must satisfy ourselves 

that Begin‟s disparity arguments have 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 legal 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 section 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 sentencing disparities among federal 

defendants remains the only consideration under 

§ 3553(a)(6)—both before and after Booker.”). This is so 
15

because the purpose of § 3553(a)(6) is to promote national 

uniformity in the sentences imposed by federal courts. See

United 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 the 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 disparities 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 purposes 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-yearold girl, which would support statutory rape charges under

Pennsylvania law. According to Begin, this reference to a 

Pennsylvania criminal offense makes Pennsylvania criminal 

penalties relevant to his federal sentencing.
16

Tellingly, Begin has adduced no authorities in support 

of his novel proposition that when Congress refers to state 

law to define some of the elements of a federal crime, it 

intends to incorporate state sentencing considerations. In 

their absence, we will not follow Begin down a rabbit hole. 

The federal government and the states are separate sovereigns

with concurrent jurisdiction 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 

plausible. Begin argued that the sentence for his attempt to 

induce statutory rape under 18 U.S.C. § 2422(b) should not 

exceed the fifteen-year statutory maximum penalty 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 defendant‟s disparity argument under 

§ 3553(a)(6). 502 F.3d at 330-31. Ausburn, like Begin, 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 from the same district. Id. at 317-18. In 

particular, Ausburn‟s defense counsel argued that the district 

court should avoid an 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-old. 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 330-31. 

Similarly, in this case, Begin has argued that an

appropriate sentence should take into account the sentences 

imposed for similar federal offenses. Under Ausburn, this 

type of argument 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 deter predators who use the reach and 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 Predators: Encouraging a More 

Appealing Approach to § 2422(b), 40 Seton Hall L. Rev. 691, 

694-98 (2010) (reviewing the legislative history § 2422(b)). 

Thus, when 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 demonstrate its consideration of 

that argument. Though the Court summarized Begin‟s statefederal disparity argument at the beginning of the sentencing 

hearing, 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. Strikingly, the 

Court did 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 these factors, including the nature and 

circumstances of the offense and the history and 

characteristics of the defendant. But we have held that “a 

district court‟s failure to analyze § 3553(a)(6) may constitute 

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 similar conduct.” App. 167-68. This rote recitation 

of § 3553(a)(6) is insufficient to permit us to review the 
19

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 relevant 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 their 

import under § 3553(a) in the individual case.‟” Merced, 603 

F.3d at 214 (quoting Tomko, 562 F.3d at 566)). Therefore, 

“[w]here the record is inadequate, we do not fill in the gaps 

by searching the record for factors justifying the sentence.” 

Ausburn, 502 F.3d at 331. Instead, we vacate procedurally 

unsound sentences 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 resentencing.
1

United States v. Begin

No. 11-3896

_________________________________________________

ROTH, Circuit Judge, dissenting in part:

I concur with the majority’s conclusion regarding the 

issue of federal/state sentencing disparities. I disagree, 

however, with the 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 irrelevant 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 for 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 potential 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 territorial 

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 terms 
3

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 older, 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 at 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 these 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 have been found guilty 
4

of similar conduct.” 18 U.S.C. § 3553(a)(6). I believe it is 

within this Court’s power to make this determination 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 consider it in the first instance.”). I would, therefore, 

affirm the sentence that the District Court imposed.