                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             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Precedential or Non-Precedential: Non-Precedential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.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1313


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                                                             NOT PRECEDENTIAL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
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).1 This section, which pertains to “material involving the sexual

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.



   1
       The District Court applied the 2002 edition of the Sentencing Guidelines manual.

                                              2
       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.




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