A divided federal appellate court has affirmed the 30-year prison sentence given to a former field hockey coach for soliciting pornographic images from a girl he coached and sharing them with another teen girl with whom he sought to have sex.

A two-judge majority of the U.S. Court of Appeals for the Second Circuit described Todd Broxmeyer as a “predator who abused his position of trust as a coach,” but their ruling drew a sharp dissent from Chief Judge Dennis Jacobs (See Profile).

Jacobs lamented that the sentencing enhancements attached to child pornography laws can create overly harsh sanctions, as he said had happened here.

Once the enhancements were included, Jacobs noted that Broxmeyer had “graded out” with a life sentence under federal sentencing guidelines—a sentence that was automatically reduced to the statutory maximum of 30 years.

“Something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence,” Jacobs wrote in United States v. Broxmeyer, 10-5283-cr. “That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them.”

Jacobs argued for the minimum sentence of 15 years in prison for Broxmeyer, 42, whom the judge said would still face a “stiff” sanction for his sexually charged behavior toward the young star players he coached in New York, Pennsylvania and New Jersey.

Yesterday’s ruling represented the second time the circuit had reviewed Broxmeyer’s conviction.

In United States v. Broxmeyer, 616 F.3d 120 (2010), the circuit threw out three of five charges on which Broxmeyer had been convicted, two of producing child pornography and one of transporting a minor across state lines with the intent to engage in sexual activity. The circuit upheld a count of producing child pornography and one count of possessing child pornography.

The appeals court vacated the 40-year prison sentence initially given Broxmeyer (NYLJ, Aug. 4, 2010). On remand, Northern District Judge Thomas McAvoy (See Profile) sentenced Broxmeyer to a minimum of 30 years on the child pornography production charge and 10 years, to run concurrently, on the possession charge.

Broxmeyer also was convicted and sentenced to four years on a state charge that is the equivalent to the federal charge of seeking to transport a minor out of state for sexual purposes, the court noted.

Broxmeyer argued that any sentence above 15 years in prison would be “substantively unreasonable” in light of his offenses.

But the majority opinion, written by Judge Reena Raggi (See Profile) and joined by Judge Ralph Winter (See Profile), held that McAvoy properly exercised his discretion to consider the “background, character and conduct” of Broxmeyer when weighing the sentence, quoting Williams v. New York, 337 U.S. 241 (1949).

Raggi said that Jacobs and the defendant would want sentencing judges to “wear blinders” and confine their consideration over a just sentence strictly to the evidence supporting the crimes of conviction.

“We here emphasize that this view of sentencing has no place in our jurisdiction,” Raggi declared.

The circuit rejected Broxmeyer’s contention that McAvoy considered untried assault accusations against him. The majority said McAvoy’s failure to hold a hearing sua sponte on the accusations was not in error and that the defense had the chance to rebut the contentions in writing or in arguments before the sentencing court.

The circuit said the aggravating circumstances surrounding Broxmeyer’s crimes—his conviction for both production of child pornography and for possession—led McAvoy to accept the sentencing enhancements that pushed his term well past the 15-year minimum for either charge.

Raggi wrote that it “cannot be deemed an abuse of discretion” for McAvoy to arrive at the 30-year sentence because four aggravating factors enumerated in sentence enhancement under 18 U.S.C. §3553(a) are present in Broxmeyer’s case.

Those factors were that Broxmeyer abused his position of trust conferred on him by parents and the community; repeatedly violated that trust; the crime of which he was convicted was part of a larger pattern of sexual abuse; and McAvoy’s finding that Broxmeyer exhibited a “disturbing lack of remorse for, or even appreciation of, the seriousness of the totality of his conduct.”

The panel said, “On this record, the district court could reasonably conclude that a sentence well above the statutory minimum was necessary to signal the seriousness of the crimes of conviction, promote respect for law, afford adequate deterrence, and protect the public from further crimes by the defendant.”

Prosecutors accused Broxmeyer of enticing girls he coached into sexual situations by praising their appearances, sending them photos of his erect penis, and requesting that they send him sexual images of themselves. Police say he also challenged girls to get their friends to send him naked photos of themselves.

He then escalated his behavior by trying to make physical advances on the girls. Authorities said he ultimately had sex with “several” of the teens.

The production of pornography charge concerned sexually explicit photos Broxmeyer coaxed a 17-year-old identified as K.T. to take of herself and the possession charge concerned several images of teen girls, including those of K.T. and another 17-year-old girl he coached.

In his dissent, Jacobs noted that “a reader of the majority opinion may find it hard to keep in mind what Broxmeyer was convicted of, and what he was sentenced for.”

Broxmeyer, Jacobs said, was given a 30-year sentence for an offense that “consisted in whole of sexting”—his receiving the photos that K.T. took at his behest.

“My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting,” Jacobs wrote. “But in imposing a sentence that can be upheld as reasonable, a court should not lose sight of the offense of conviction.”

Jacobs accused his colleagues of recounting Broxmeyer’s behavior in a way that “primes and incites the reader” to accept the enhanced sentence.

“A statutory maximum is appropriate only for the worst offenders,” he wrote. “Unfortunately, we have seen such defendants. They are people who force small children to engage in sexual and sadomasochistic acts, who photograph or video the scene, and who broadcast it to the world, leaving the children with the pain of the experience and the anguish of knowing that degenerates are gloating over their abuse and humiliation.”

Jacobs added that Broxmeyer’s offense “would seem to be at the other end of the continuum. I therefore believe that a sentence exceeding 15 years is substantively unreasonable.”

Lisa Peebles of the Federal Public Defender’s Office in Syracuse represented Broxmeyer along with James Egan.

Assistant U.S. Attorney Paul Silver argued for the prosecution. Miroslav Lovric was on the brief for the Northern District U.S. Attorney’s Office.