By Jessica Dye
NEW YORK, Feb 6 (Reuters) - A divided federal appeals court
on Tuesday declined to reconsider the 30-year sentence handed to
a former coach convicted of asking a 17-year-old player to take
a nude picture on her cellphone and send it to him.
The majority of the 2nd U.S. Circuit Court of Appeals voted
not to review en banc an appeal brought by Todd Broxmeyer.
U.S. Circuit Judge Reena Raggi said that the former hockey
coach's conduct was part of a "much larger pattern of sexual
exploitation" of the teenage athletes under his supervision and
could be considered in imposing his sentence, even if it went
beyond the actual crimes for which he was convicted.
Chief Judge Dennis Jacobs broke from the majority, calling
Broxmeyer's sentence "grossly disproportionate to the harm
attributable to the offense of conviction."
Broxmeyer was convicted in 2008 on five charges related to
sexual relations with girls aged 15 to 17 years old between 2005
The court record said he engaged in consensual and
non-consensual sexual activity with several players.
He was sentenced to 40 years in prison in April 2009. The
statutory sentencing range is a minimum of 15 years and a
maximum of 40 years.
On appeal, the 2nd Circuit threw out three of the charges
and directed Broxmeyer to be resentenced for attempted
production of child pornography and possession of child
The two charges stemmed from Broxmeyer's attempt in 2007 to
persuade a 17-year-old student to take a nude picture of herself
and send it to him in a text message. She declined but later
sent him a picture of herself in her underwear, the ruling said.
Broxmeyer was ultimately sentenced to 30 years in prison by
U.S. District Judge Thomas McAvoy in the Northern District of
New York. Broxmeyer appealed again to the 2nd Circuit, arguing
15 years was an appropriate sentence.
The appeal was denied in August by a split three-judge panel
from the 2nd Circuit. In a dissent, Chief Judge Dennis Jacobs
said the sentence was too harsh given that the offense
"consisted in the whole of sexting."
On Tuesday, a 2nd Circuit panel rejected Broxmeyer's request
for an en banc rehearing before the full court.
"Just as possession of burglary tools might be viewed as a
more serious crime when committed by a defendant who had already
targeted locations, solicited confederates and committed past
burglaries, so the attempted production and possession of child
pornography might be viewed as more serious when committed by a
defendant pursuant to a pattern of sexual exploitation that
violated a position of trust and included criminal assaults,"
Raggi wrote for the majority.
She was joined by U.S. Circuit Judges Jose Cabranes, Richard
Wesley and Debra Ann Livingston.
Jacobs, joined by U.S. Circuit Judge Rosemary Pooler, said
in a dissenting opinion that the district court had "piled on
enhancements" under the U.S. Sentencing Guidelines. The 30-year
sentence, Jacobs said, illustrated "the phenomenon of sentencing
overkill" and deserved to be reviewed by the full court.
Lawyers for both sides did not immediately return requests
for comment Tuesday evening.
The case is U.S. v. Broxmeyer, 2nd U.S. Circuit Court of
Appeals, No. 10-5283.
For Broxmeyer: Lisa Peebles and James Egan of the Federal
Public Defender's Office.
For the U.S.: Paul Silver and Miroslav Lovric of the U.S.
Attorney's Office for the Northern District of New York.
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