Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Harvey

United States District Court, W.D. Virginia, Charlottesville Division

February 2, 2018

United States of America
v.
Bruce A. Harvey, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.

         Judge Norman K. Moon Pursuant to a Rule 11(c)(1)(C) plea agreement, Defendant Bruce Harvey (“Defendant”) pled guilty to three counts of Transportation to Engage in Criminal Sexual Activity; three counts of Travel with Intent to Engage in a Sex Act with a Juvenile; and one count of Possession of Child Pornography. (Dkt. 72-73). The plea agreement stipulated a range of between 120 and 276 months incarceration. (Dkt. 71 at ECF 4). On January 25, 2018, taking into account the factors set forth in 18 U.S.C. § 3553, I sentenced Defendant to a total of 276 months incarceration. (Dkt. 101). Prior to the sentencing, the parties filed extensive briefing pertaining to the calculation of Defendant's sentence under the Sentencing Guidelines. While the Court accepted, and was bound by, the Rule 11(c)(1)(C) plea agreement, I still wished to address in a separate opinion the non-frivolous arguments made by both parties before the Court. See Rita v. United States, 551 U.S. 338, 357 (2007); United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). To the extent that I did not address those arguments at the sentencing hearing, they will be addressed below. For the foregoing reasons, I will reject them all.

         I

         Under U.S.S.G. § 3D1.2, “[a]ll counts involving substantially the same harm shall be grouped together into a single Group.” Counts involving the “same harm” occur:

(a) When counts involve the same victim and the same act or transaction.
(b) When counts 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.

U.S.S.G. § 3D1.2(a)-(b). Application Note 4 to § 3D1.2 remarks that subsection (b) “does not authorize the grouping of offenses that cannot be considered to represent essentially one composite harm (e.g., robbery of the same victim on different occasions involves multiple, separate instances of fear and risk of harm, not one composite harm).” U.S.S.G. § 3D1.2, Application Note 4 (emphasis added). Further, the Guidelines provide the following example: “The defendant is convicted of two counts of rape for raping the same person on different days. The counts are not to be grouped together.” Id.

         Here, the Court has grouped together Counts Three and Four (Group 2) and Counts Six and Seven (Group 3) under § 3D1.2. These two groups both involve the second victim (“V2”) and violations of 18 U.S.C. §§ 2423(a), (b). However, the similarities stop there. Counts Three and Four involve the transportation of V2 from Virginia to Maryland and back between 2004 and 2007. Counts Six and Seven involve the transportation of V2 from Virginia to California and back in or around March 2007. Although there is overlap in time, the violations are separate and distinct-much akin to the rape example in the Guidelines. U.S.S.G. § 3D1.2, Application Note 4.

         Defendant's transportation of V2 from Virginia to two separate states, at two separate times, to engage in similar illegal conduct, constitute two “separate harms” that should be grouped separately-not together. See, e.g., United States v. Nagel, 835 F.3d 1371, 1375 (11th Cir. 2016) (holding that not grouping two counts of enticement of a minor was appropriate, notwithstanding that “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”); United States v. Crowe, 106 F.3d 392 (Table) (4th Cir. 1997) (finding that a single group was inappropriate for eleven counts of mailing threatening communications to the defendant's ex-wife when each mailing “inflicted a separate psychological harm”).

         Defendant disagrees. He makes a narrow factual distinction with the rape example in the Guidelines and contends that he was not convicted of rape, but rather had unlawful relationships with the victims. Further, he argues that what took place was more akin to a scheme to distribute controlled substances. Such a scheme involves numerous sales, over separate days, which the Guidelines state should be grouped together to avoid double counting. See U.S.S.G. § 3D1.2, Application Note 4.

         This argument, however, is unconvincing. While Defendant is correct that both transporting a minor with intent to engage in criminal sexual activity and travel with intent to engage in a sexual act with a juvenile are not rape-such offenses are closely analogous. Moreover, the rape example in the Guidelines contemplates the same victim and the same offense committed on different days. This is what we have here. By focusing on Defendant's alleged “relationship” with V2, which he analogizes to a common scheme, Defendant misses the unique and separate harms inflicted by each offense on V2 when he crossed state lines en route to Maryland and in another instance to California. Moreover, the concerns for double counting or aggregating drug weights, present in a scheme to distribute controlled substances, are absent here. Therefore, I find this argument to be without merit, and the grouping of offenses to be correct.

         II

         Under U.S.S.G. § 2G1.3(b)(2)(B), the base offense level for a violation of 18 U.S.C. § 2423(a) is increased by 2 levels if “a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct.” Here, Defendant was given a 2-level increase because of his difference in age, his position as the victims' karate instructor and mentor, and his position as a police officer in the community. (PSR at 7, 8). Application Note 3 to § 2G1.3(b)(2)(B) states that a rebuttable presumption that the enhancement applies is created in a case involving a minor at least 10 years younger than the offender.

         Defendant argues that there should be no presumption that the enhancement applies in the case of the first victim (“V1”) for the offenses contained in Group 1. Defendant cites for support a Ninth Circuit case that found the undue influence enhancement rebutted when “there was no evidence that [the defendant] did or said anything to procure the victim's consent to conduct ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.