2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-26-2005

USA v. Mitman

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1845

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Recommended Citation

"USA v. Mitman" (2005). 2005 Decisions. Paper 1313.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-1845

 

UNITED STATES OF AMERICA

v.

MARK MITMAN,

 Appellant

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Crim. No. 03-cr-00618

District Judge: The Honorable Robert B. Kugler

 

Submitted Under Third Circuit LAR 34.1(a)

April 7, 2005 

 

Before: BARRY, AMBRO, and GREENBERG, Circuit Judges

 

(Opinion Filed: April 26, 2005)

 

OPINION

 

BARRY, Circuit Judge

Mark Mitman pled guilty to two counts of receiving and possessing child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and § 2252A(a)(5)(B). During
 The District Court applied the 2002 edition of the Sentencing Guidelines manual. 1

2

his plea colloquy, Mitman admitted to clandestinely videotaping his two stepsons, ages 9

and 11, while they were naked in the bathroom of their home. Mitman further admitted to

engaging in an email correspondence with an undercover agent, in which he agreed to

exchange a copy of the videotape of his stepsons for another videotape of child

pornography. Mitman was arrested before he was able to send the videotape of his

stepsons to the undercover agent.

At sentencing, the District Court imposed an enhancement pursuant to U.S.S.G.

§2G2.2(b)(2)(B). This section, which pertains to “material involving the sexual 1

exploitation of a minor,” provides for a 5-point increase in the offense level where the

offense involved the “distribution for the receipt, or expectation of receipt, of a thing of

value, but not for pecuniary gain.” At sentencing, Mitman argued that he had no intention

of actually sending the videotape of his stepsons to the undercover agent. Instead, he

contended that he had merely promised to send his tape in order to induce the undercover

agent to send him child pornography. Moreover, Mitman argued that for purposes of

applying the enhancement, the term “sexual exploitation of a minor” should be construed

as that term is defined in 18 U.S.C. § 2256, which arguably would exclude his conduct. 

The District Court rejected Mitman’s arguments, and applied the 5-point

enhancement, which resulted in a Guidelines range of 46-57 months imprisonment. The

Court imposed a sentence of 51 months.
3

On appeal, Mitman does not challenge any aspect of his conviction, challenging

only the enhancement that was imposed and arguing that he is entitled to resentencing in

light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). Having determined

that issues with respect to Booker are best determined by the District Court in the first

instance, we will vacate the sentence and remand for resentencing in light of that opinion. 

The judgment of conviction will be affirmed.