PRECEDENTIAL

    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                    _____________

                     No. 11-3896
                    _____________

           UNITED STATES OF AMERICA

                            v.

             MICHAEL EUGENE BEGIN,
                   a/k/a Mike

                 Michael Eugene Begin,

                             Appellant
                    _____________

            On Appeal from the District Court
         for the Western District of Pennsylvania
                      (No. 10-CR-22)
     District Judge: Honorable Maurice B. Cohill, Jr.
                     _____________

                  Argued July 13, 2012

Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges

            (Opinion Filed: October 9, 2012)
Karen S. Gerlach, Esq. [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

Thomas W. Patton, Esq.
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501

      Counsel for Appellant, Michael Eugene Begin

Michael L. Ivory, Esq. [ARGUED]
Rebecca R. Haywood, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

Christian A. Trabold, Esq.
Office of United States Attorney
17 South Park Row
Room A330
Erie, PA 16501

      Counsel for Appellee, the United States of America




                              2
                OPINION OF THE COURT


FUENTES, Circuit Judge:

       Michael Eugene Begin appeals from a final judgment
of conviction and sentence on charges related to his use of the
internet and a cellular phone to send sexual messages and
photographs to a minor in order to persuade her to have sex
with him. Begin pled guilty and was sentenced to 240
months‟ imprisonment, representing a 30-month upward
departure from the top of his advisory Sentencing Guidelines
range. On appeal, Begin argues that his sentence is
unreasonable because the District Court failed to consider his
request for a downward variance based on the asserted
disparity between his sentence for attempting to induce
statutory rape and the lower maximum sentences for actually
committing statutory rape under state and federal law. We
will vacate Begin‟s sentence and remand for the District
Court to consider his request.

                               I

      In January 2010, a concerned mother contacted the
FBI regarding sexually suggestive messages that her 14-year-
old daughter had received through MySpace, a social-
networking website. These messages came from someone
named “Mike,” who described himself as a 20-year-old
Marine sniper. Both the girl and the FBI agent who
subsequently assumed her online identity repeatedly informed
Mike that she was 14 years old, but Mike was undeterred. He




                              3
continued to write her sexually explicit messages and sent
two photographs of himself to her cellular phone: one of his
face and chest, the other of his penis. Ultimately, the FBI
agent and Mike agreed to meet at a restaurant in Bradford,
Pennsylvania. Michael Eugene Begin, then 33 years old and
not a Marine, showed up for the rendezvous, and FBI agents
took him into custody. In his possession they found a knife,
handcuffs, and a condom. Waiving his Miranda rights, Begin
admitted that he had sent the sexually explicit messages and
photographs and that he had intended to take the 14-year-old
girl back to his room at the Riddle House, a boarding house in
Bradford, in order to have sex with her.

       A federal grand jury sitting in the Western District of
Pennsylvania returned a two-count indictment against Begin.
Count One charged that Begin violated 18 U.S.C. § 2422(b)
by using the internet and a cellular phone to attempt to
persuade a minor “to engage in any sexual activity for which
any person can be charged with a criminal offense, to wit,
statutory sexual assault, in violation of [18 Pa. Cons. Stat.
§ 3122.1], aggravated indecent assault, in violation of [18 Pa.
Cons. Stat. § 3125(a)(8)], and indecent assault[,] in violation
of [18 Pa. Cons. Stat. § 3126(a)(8)].” App. 17. Count Two
charged that Begin violated 18 U.S.C. § 1470 by using a
cellular phone to transfer an obscene image to a minor. Begin
pled guilty to both counts of the indictment at a change-of-
plea hearing in October 2010.

       In advance of sentencing, the United States Probation
Office conducted an investigation and prepared a pre-
sentence report (“PSR”). According to the PSR, Begin‟s
counts of conviction grouped together and carried a base
offense level of 28. He received a two-level increase for his




                              4
use of a computer to commit the offense and a three-level
decrease for his acceptance of responsibility. In addition, he
qualified as a “repeat and dangerous sex offender against
minors” under U.S.S.G. § 4B1.5(b)(1) and therefore received
a five-level increase pursuant to that section. His resulting
total offense level was 32.

       The PSR calculated Begin‟s criminal history category
by assigning points to his adult criminal convictions. In
1999, Begin committed several crimes involving minor girls.
He was convicted of corruption of minors after it was
discovered that he was harboring a 14-year-old runaway in
his apartment, despite having told police that he had not seen
her. He was convicted of indecent assault for having sex with
a “mentally deficient” 16-year-old girl on a public park
bench. PSR p. 10.1 Finally, he was convicted of indecent
exposure for mooning four minors in a public park, asking
them whether they wanted to “scratch [his] balls,” and calling
them “sluts.” Id. p. 11. In 1995, Begin received a stolen
bicycle and was subsequently convicted of theft by receipt of
stolen property. No points were assigned to a juvenile
adjudication for Begin‟s rape of a seven-year-old girl in 1993,
when he was sixteen. According to the PSR, Begin‟s
criminal history category was IV.

       Begin‟s Guidelines range was therefore 168 to 210
months, or 14 to 17½ years. On Count One, he faced a
statutory mandatory minimum term of 10 years‟
imprisonment, and a statutory maximum term of life

1
  The PSR recites that this conviction was for “indecent
exposure,” but Begin has conceded that it was actually for
“indecent assault.” App. 62.




                              5
imprisonment. On Count Two, he faced no mandatory
minimum and a statutory maximum of 10 years.

       The Government filed a motion for an upward
departure from the advisory Guidelines range, arguing that
criminal history category IV underrepresented the severity of
Begin‟s criminal history. According to the Government,
Begin was a “serial sex offender whose criminal history score
represents only a fraction of his prior criminal conduct.”
App. 51. In particular, the Government observed that Begin‟s
criminal history score did not take into account his 1993 rape,
and the Government presented newly obtained information
that Begin had perpetrated other sexual assaults on minors in
early 2010. The Government further argued that the five-
level § 4B1.5(b)(1) enhancement that Begin received as a
“repeat and dangerous sex offender against minors”
underrepresented Begin‟s repeat offenses. Section 4B1.5(b)
applies to defendants with at least two prior instances of
criminal sexual conduct with minors, and the Government
submitted that Begin had engaged in many more than two
such instances and therefore deserved more punishment than
the section provided. It was the Government‟s position that a
range of 360 months to life imprisonment more accurately
reflected Begin‟s criminal character and past.

       Begin, on the other hand, sought a downward variance
from the advisory Guidelines range based on the disparity
between that range and the sentence that he would have faced
in either state or federal court had he actually committed
statutory rape. First, Begin observed that his Count One
conviction for inducement under 18 U.S.C. § 2422(b) was
expressly linked to Pennsylvania state statutory rape offenses
that carry a maximum penalty of 10 years‟ imprisonment.




                              6
See 18 Pa. Cons. Stat. § 3122.1 (2000) (establishing the
elements of statutory sexual assault); 18 Pa. Cons. Stat.
§ 1103 (establishing the maximum sentences for different
classes of felonies).2 Second, he observed that the federal
offense of statutory rape within the special maritime and
territorial jurisdiction of the United States carries a maximum
penalty of 15 years‟ imprisonment. See 18 U.S.C. § 2243(a).
He argued that it would be inequitable to impose “a longer
sentence of imprisonment for using a means of interstate
communication to help facilitate the commission of a crime
than would apply to the crime facilitated,” and he drew an
analogy to the Sentencing Guidelines for drug offenses,
which set the penalty for a facilitation offense equal to the
penalty that would have been applicable to underlying
offense. App. 44 (citing U.S.S.G. § 2D1.6). Begin asked the
District Court for a sentence of 120 months, which is the
mandatory minimum under § 2422(b) and the maximum
penalty he could have faced in Pennsylvania for statutory
rape.

       At Begin‟s sentencing hearing, the District Court
began by observing that neither Begin nor the Government
had filed factual objections to the PSR but there was serious
disagreement about the appropriate Guidelines calculation


2
   After Begin was sentenced, Pennsylvania revised its
statutory rape statute to classify Begin‟s attempted conduct—
“sexual intercourse with a complainant under the age of 16
years when that person is 11 or more years older than the
complainant”—as a felony in the first degree, punishable by
20 years‟ imprisonment. 2011 Pa. Legis. Serv. Act. 2011-
111.




                              7
and ultimate sentence. Briefly summarizing the parties‟
written submissions, the Court stated:

      The Defendant . . . has filed a position with
      respect to sentencing factors in which he argues
      that we should vary from the guidelines based
      on the disparity between the sentence the
      Defendant would have received in state court
      had he actually committed statutory rape
      compared to the sentence he is facing in federal
      court for engaging in the crime of attempting to
      induce and inducing a minor to engage in
      essentially statutory rape. The Defendant is
      seeking a sentence of 120 months.

App. 96. The Court determined that it should formally rule
on the Government‟s motion for an upward departure before
it addressed Begin‟s request for a variance.

       In support of its motion, the Government presented the
testimony of Bradford City Police Officer Todd Erickson who
had investigated allegations that Begin had engaged in
prohibited sexual contact with three minors that were not
included in the PSR. According to Erickson, one of these
girls told him that Begin had inappropriately touched her
through her clothes and asked her over MySpace to have sex
with him. The other two girls had been together in Begin‟s
room in Riddle House on several occasions. One reported
that Begin had thrust his hand down the front of her pants,
and each reported Begin had vaginally raped her, though
inconsistencies between their accounts made it hard for
Officer Erickson to form a clear picture of exactly what had
transpired.




                             8
       After Officer Erickson‟s testimony and the parties‟
oral arguments, the District Court granted the Government‟s
motion for an upward departure. The Court explained that it
found, by a preponderance of the evidence, that Begin had
engaged in several sexual assaults that were not accounted for
in the PSR. In addition, the Court noted the “particularly
egregious” details of Begin‟s juvenile rape of a seven-year-
old. App. 152. Altogether, the Court found that Begin‟s
“lengthy, continuous” criminal history, “primarily focused on
sexually assaulting minor females,” supported the conclusion
that    criminal     history   category    IV     substantially
underrepresented the seriousness of his criminal history and
the likelihood that he would commit other crimes. App. 152-
53. Therefore, the Court found, pursuant to U.S.S.G.
§ 4A1.3, that the appropriate criminal history category for
Begin was category V, making the applicable Guidelines
range 188 to 235 months‟ imprisonment. In addition, the
Court found that the five-level enhancement that Begin had
received under U.S.S.G. § 4B1.5(b)(1) for his repeat sex
offenses against minors did not adequately reflect the
seriousness of the sexual abuse in which Begin had engaged.
Therefore, the Court made a further upward departure and
arrived at a range of 188 to 240 months‟ imprisonment.

       Having determined the applicable advisory Guidelines
range, the District Court indicated that it would next consider
the sentencing factors set forth in 18 U.S.C. § 3553(a),
including Begin‟s request for a downward variance. The
Court heard oral argument from defense counsel and the
Government but did not ask the attorneys any questions or
make any comments on their presentations. Immediately
following these arguments, the intended victim‟s mother




                              9
made a statement concerning the impact of Begin‟s actions on
her family and her daughter. The Court also heard a
statement from Begin, who apologized for his actions.

       The District Court then sentenced Begin to an
aggregate term of 240 months‟ imprisonment, at the top of his
adjusted Guidelines range, to be followed by a lifetime term
of supervised release with a number of special conditions.
The Court stated its belief that the sentence of 240 months
was “sufficient but not greater than necessary” under 18
U.S.C. § 3553(a), and in light of “the nature and
circumstances of this offense, as well as the history and
background of the Defendant.” App. 166. The Court further
explained:

      In particular, the Court has taken into account
      that Mr. Begin is a 34-year-old man who has
      pled guilty to two counts, both of which
      concerned his attempt to induce a minor to
      engage in illegal sexual activity.            The
      circumstances of this case are serious and if not
      for the intervention of the victim‟s mother could
      have resulted in serious and long-standing harm
      to the victim. We have also taken into account
      [that] Mr. Begin has a long criminal history that
      involves a disturbing amount of sex crimes
      against minors. We encourage Mr. Begin to
      participate in any available education and/or
      vocational training opportunities while he is
      incarcerated. . . . In imposing this sentence, we
      have also considered the kind of sentences
      available and in the sentencing range set forth in
      the guidelines, including any relevant policy




                             10
      statements  issued       by    the      Sentencing
      Commission.

App. 166-67. Regarding the need to avoid unwarranted
sentencing disparities under § 3553(a)(6) and the need for the
sentence imposed under § 3553(a)(2), the Court stated:

      This sentence also takes into account the need
      to avoid unwarranted disparities in sentencing
      among defendants with similar records who
      have been found guilty of similar conduct. At
      the same time, we find that the sentence does
      reflect the seriousness of his offense and
      provides just punishment for it and also will
      hopefully promote respect for the law and
      afford adequate deterrence to criminal conduct
      while protecting the public from further crimes
      by this Defendant.

App. 167-68. The Court never directly addressed the
arguments raised by Begin‟s counsel nor explicitly ruled on
his request for a downward variance.

      Begin timely appealed to this Court.3

                              II

       On appeal, Begin challenges the reasonableness of his
sentence. Our review of a district court‟s sentencing

3
  We have appellate jurisdiction under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291. The District Court had original
jurisdiction under 18 U.S.C. § 3231.




                             11
decisions is for abuse of discretion and proceeds in two
stages. United States v. Tomko, 

, 567 (3d Cir.
2009) (en banc) (citing Gall v. United States, 

, 51-
52 (2007)). First, we review for procedural error at each step
of the district court‟s sentencing process. Id.; United States v.
Wright, 

, 152 (3d Cir. 2011). Thus, we ensure
that the district court (1) correctly calculated the defendant‟s
advisory Guidelines range, (2) appropriately considered any
motions for a departure under the Guidelines, and (3) gave
meaningful consideration to the sentencing factors set forth in
18 U.S.C. § 3553(a). Wright, 642 F.3d at 152. If the district
court has made a procedural error, “we will generally remand
the case for re-sentencing, without going any further.” Id.
(quoting United States v. Merced, 

, 214 (3d Cir.
2010)) (internal quotation marks omitted). But, if the district
court‟s procedures pass muster, then we move forward to the
second stage, and we review the substantive reasonableness
of the sentence. Tomko, 562 F.3d at 567. Our substantive
review focuses on the totality of the circumstances and is
highly deferential. Id. at 567-68.

       Our deferential substantive review of sentences is
enabled by our insistence, as part of our procedural review,
that the district court produce a record sufficient to
demonstrate its rational and meaningful consideration of the
§ 3553(a) factors. Merced, 603 F.3d at 215. The record as a
whole must make clear that the district judge “has considered
the parties‟ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Id. at 215-16
(quoting Rita v. United States, 

, 356 (2007)).
The district court need not raise every conceivable issue on its
own initiative or even make explicit findings as to each
sentencing factor if the record makes clear that the court took




                               12
all the factors into account. Id. at 215. “However, if a party
raises a colorable argument about the applicability of one of
the § 3553(a) factors, the district court may not ignore it.” Id.
In this, “we have stated at least one concrete requirement to
establish that the sentencing court gave meaningful
consideration to the relevant § 3553(a) factors: the court must
acknowledge and respond to any properly presented
sentencing argument which has colorable legal merit and a
factual basis.” United States v. Ausburn, 

, 329
(3d Cir. 2007). A rote statement that the court has considered
each of the § 3553(a) factors is not a sufficient response to a
specific colorable argument. United States v. Jackson, 

, 841 (3d Cir. 2006); United States v. Cooper, 

, 329 (3d Cir. 2006), abrogated on other grounds by
Kimbrough v. United States, 

 (2007).

                              III

        Begin argues primarily that his sentence is
procedurally unsound because the District Court failed to
discuss, or even rule on, his request for a downward variance
in light of “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The
Government argues that Begin‟s request so obviously lacked
legal merit that the District Court was not required to address
it, and that, in any event, the Court did in fact give it
meaningful consideration. We address these issues in turn.

                               A

      Before we reach Begin‟s contention that the District
Court made a procedural error by failing to respond to his




                               13
request for a downward variance, we must satisfy ourselves
that Begin‟s disparity arguments have colorable legal merit.
“The court need not discuss every argument made by a
litigant if an argument is clearly without merit.” Cooper, 437
F.3d at 329 (citing United States v. Cunningham, 

, 678 (7th Cir. 2005)). Begin raised two distinct
§ 3553(a)(6) disparity arguments before the District Court:
first, he asked the Court to consider the 10-year maximum
sentence that could be imposed for statutory rape under
Pennsylvania state law; second, he asked it to consider the 15-
year maximum sentence that could be imposed under federal
law for statutory rape within the special and maritime
jurisdiction of the United States.

                              1

       Begin‟s state-federal disparity argument lacks
colorable legal merit. As several of our sister circuits have
observed, “Section 3553(a)(6) addresses unwarranted
sentence disparities among federal defendants who are
similarly situated instead of disparate federal and state
sentences.” United States v. Docampo, 

, 1102
(11th Cir. 2009); see United States v. Clark, 

,
687 (4th Cir. 2006) (“The sole concern of section 3553(a)(6)
is with sentencing disparities among federal defendants.”
(emphasis omitted)); United States v. Branson, 

, 1112 (10th Cir. 2006) (“Adjusting federal sentences to
conform to those imposed by the states where the offenses
occurred would not serve the purposes of § 3553(a)(6).”);
United States v. Jeremiah, 

, 808 (8th Cir. 2006)
(“Unwarranted sentencing disparities among federal
defendants remains the only consideration under
§ 3553(a)(6)—both before and after Booker.”). This is so




                              14
because the purpose of § 3553(a)(6) is to promote national
uniformity in the sentences imposed by federal courts. See
United States v. Parker, 

, 277 (3d Cir. 2006).
Indeed, “[r]educing a federal prisoner‟s sentence to accord
with that of a similarly situated state convict may decrease
one sentencing disparity but simultaneously enlarges another:
that between the federal convict and all similarly situated
federal convicts. Because penalties vary from state to state,
sentence reductions to approach state penalties similarly vary
with the state in which the federal sentencing court sits,
unjustifiably creating disparities among federal convicts.”
United States v. Wurzinger, 

, 654 (7th Cir. 2006)
(citation omitted). In other words, “[a]djusting federal
sentences to conform to those imposed by the states where the
offenses occurred would not serve the purposes of
§ 3553(a)(6), but, rather, would create disparities within the
federal system, which is what § 3553(a)(6) is designed to
discourage.” Branson, 463 F.3d at 1112.

        Begin attempts to distinguish these authorities on the
ground that the indictment in this case specifically refers to
state law. Under 18 U.S.C. § 2422(b), it is unlawful to use
means of interstate or foreign commerce to persuade or
attempt to persuade “any individual who has not attained the
age of 18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a criminal
offense.” Count One of the indictment against Begin charged
that he intended to engage in sexual relations with a 14-year-
old girl, which would support statutory rape charges under
Pennsylvania law. According to Begin, this reference to a
Pennsylvania criminal offense makes Pennsylvania criminal
penalties relevant to his federal sentencing.




                             15
       Tellingly, Begin has adduced no authorities in support
of his novel proposition that when Congress refers to state
law to define some of the elements of a federal crime, it
intends to incorporate state sentencing considerations. In
their absence, we will not follow Begin down a rabbit hole.
The federal government and the states are separate sovereigns
with concurrent jurisdiction over various offenses, and they
may therefore apply disparate punishments to similar
conduct. See Branson, 463 F.3d at 1112. State-federal
disparities are simply irrelevant under § 3553(a)(6), and the
District Court was not required to address them.

                              2

       Begin‟s federal-federal disparity argument is more
plausible. Begin argued that the sentence for his attempt to
induce statutory rape under 18 U.S.C. § 2422(b) should not
exceed the fifteen-year statutory maximum penalty for
actually committing statutory rape within the special maritime
and territorial jurisdiction of the United States under 18
U.S.C. § 2243.

       In United States v. Ausburn, we vacated a district
court‟s sentence for procedural error when the court failed to
consider or discuss the defendant‟s disparity argument under
§ 3553(a)(6). 502 F.3d at 330-31. Ausburn, like Begin, was
convicted of violating § 2422(b) by using e-mail and a
telephone to facilitate his sexual relationship with a minor.
Id. at 316. At sentencing, Ausburn argued that the district
court should consider the lenient sentences imposed in two
prior criminal cases from the same district. Id. at 317-18. In
particular, Ausburn‟s defense counsel argued that the district
court should avoid an unwarranted disparity with the 46-




                             16
month sentence imposed in the Kenrick case, id. at 320-21, in
which the defendant had violated a different statute, 18
U.S.C. § 2423(b), by traveling in interstate commerce for the
purpose of having sex with a 15-year-old. See United States
v. Kenrick, 241 F. App‟x 10, 12 (3d Cir. 2007). The district
court failed to discuss the merits of this argument, instead
merely reciting that it had considered the need to avoid
unwarranted sentencing disparities. Ausburn, 502 F.3d at
330. On appeal, we determined that the district court was
obliged to discuss, consider, and rule on the defendant‟s
§ 3353(a)(6) argument and that its failure to do so constituted
procedural error. Id. at 330-31.

       Similarly, in this case, Begin has argued that an
appropriate sentence should take into account the sentences
imposed for similar federal offenses. Under Ausburn, this
type of argument has colorable legal merit. We emphasize
that colorable legal merit is distinct from actual merit. There
is reason to believe that the predatory nature of Begin‟s
conduct and the knife and handcuffs found in his possession
distinguish his offense from a run-of-the-mill statutory rape.
Indeed, the stiff penalties under § 2422(b) are intended to
punish and deter predators who use the reach and anonymity
of the internet to perpetrate sex crimes against children. See
H.R. Rep. No. 105-557, at 11-12 (1998), as reprinted in 1998
U.S.C.C.A.N. 678, 680; see also Andriy Pazuniak, A Better
Way to Stop Online Predators: Encouraging a More
Appealing Approach to § 2422(b), 40 Seton Hall L. Rev. 691,
694-98 (2010) (reviewing the legislative history § 2422(b)).
Thus, when we say that Begin‟s claim has colorable legal
merit, we mean only that, upon appropriate findings of fact,
the District Court would be within its discretion to accept the
argument and to factor it into the ultimate sentence.




                              17
                              B

       Having concluded that Begin‟s federal-federal
disparity argument has colorable legal merit under
§ 3553(a)(6), we agree with him that the District Court failed
to make a sufficient record to demonstrate its consideration of
that argument. Though the Court summarized Begin‟s state-
federal disparity argument at the beginning of the sentencing
hearing, it did not acknowledge that he had also made a
federal-federal disparity argument. The Court asked no
questions during defense counsel‟s oral argument in favor of
downward variance on this ground and made no comments
about the issue following that presentation. Strikingly, the
Court did not even specifically rule on Begin‟s request for a
variance.

        Nevertheless, the Government submits that the District
Court‟s on-the-record explanation of its sentence
demonstrates its meaningful consideration of the § 3553(a)
factors. To be sure, the Court articulated its consideration of
several of these factors, including the nature and
circumstances of the offense and the history and
characteristics of the defendant. But we have held that “a
district court‟s failure to analyze § 3553(a)(6) may constitute
reversible procedural error, even where . . . the court engages
in thorough and thoughtful analysis of several other
sentencing factors.” Merced, 603 F.3d at 224. In this case,
the Court stated simply that its sentence “takes into account
the need to avoid unwarranted disparities in sentencing
among defendants with similar records who have been found
guilty of similar conduct.” App. 167-68. This rote recitation
of § 3553(a)(6) is insufficient to permit us to review the




                              18
Court‟s resolution of Begin‟s disparity arguments.           See
Jackson, 467 F.3d at 841.

       The Government has suggested various justifications
for denying Begin‟s request for a downward variance. But
“the question is not how we ourselves would have resolved
the factors identified as relevant by section 3553(a) . . . . We
are not sentencing judges.” Cooper, 437 F.3d at 330
(quotation marks and alteration omitted).              We have
recognized that “the sentencing judge, not the court of
appeals, „is in a superior position to find facts and judge their
import under § 3553(a) in the individual case.‟” Merced, 603
F.3d at 214 (quoting Tomko, 562 F.3d at 566)). Therefore,
“[w]here the record is inadequate, we do not fill in the gaps
by searching the record for factors justifying the sentence.”
Ausburn, 502 F.3d at 331. Instead, we vacate procedurally
unsound sentences and remand for the district court to
exercise its discretion in a way that we can evaluate, and
defer to, on appeal.

                               IV

      Accordingly, we will vacate Begin‟s sentence and
remand for resentencing.




                               19
                   United States v. Begin

                        No. 11-3896

_________________________________________________

ROTH, Circuit Judge, dissenting in part:

       I concur with the majority’s conclusion regarding the
issue of federal/state sentencing disparities. I disagree,
however, with the majority’s decision to vacate the sentence
and remand to the District Court for consideration of the
alleged federal/federal sentencing disparity. I would hold, as
a matter of law, that the disparity between the two federal
statutes raised here is irrelevant to the consideration of
sentence disparities under 18 U.S.C. § 3553(a)(6). I would,
therefore, affirm the sentence imposed.

      Begin pled guilty to 18 U.S.C. § 2422(b), which states:

      Whoever, using the mail or any facility or
      means of interstate or foreign commerce, or
      within the special maritime and territorial
      jurisdiction of the United States knowingly
      persuades, induces, entices, or coerces any
      individual who has not attained the age of 18
      years, to engage in prostitution or any sexual
      activity for which any person can be charged
      with a criminal offense, or attempts to do so,
      shall be fined under this title and imprisoned
      not less than 10 years or for life.




                              1
18 U.S.C. § 2422(b). Begin contends that the District Court
should have considered the potential sentence he would have
faced had he actually committed statutory rape in the special
maritime or territorial jurisdiction of the United States and
been prosecuted pursuant to 18 U.S.C. § 2243, which states:

      Whoever, in the special maritime and territorial
      jurisdiction of the United States . . . knowingly
      engages in a sexual act with another person who
      (1) has attained the age of 12 years but has not
      attained the age of 16 years; and (2) is at least
      four years younger than the person so engaging;
      or attempts to do so, shall be fined under this
      title, imprisoned not more than 15 years or both.

18 U.S.C. § 2243(a).

       These are diverse statutes. Section 2422(b) was
enacted as part of the Telecommunications Act of 1996 and
subsequently rewritten by the Child Protection and Sexual
Predator Punishment Act of 1998, which was intended as “a
comprehensive response to the horrifying menace of sex
crimes against children, particularly assaults facilitated by
computers.” United States v. Tykarsky, 

, 467 &
n.4 (3d Cir. 2006) (discussing the statutory text, legislative
purpose and history). It clearly contemplates situations
involving the use of force or persuasion. See 18 U.S.C. §
2422(b) (specifying that perpetrator “knowingly persuades,
induces, entices, or coerces” the minor).

       By contrast, § 2243 was enacted as part of the Sexual
Abuse Act of 1986, which modernized federal rape statutes
by, inter alia, defining the offenses in gender neutral terms




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and expanding the offenses to reach all forms of sexual abuse
of another. H.R. Rep. No. 99-594, at 10-11 (1986), as
reprinted in 1986 U.S.C.C.A.N. 6186, 6190-91. Whereas
other sections of the Act apply to sexual abuse involving
threats or force, § 2243(a) “reaches noncoercive conduct” and
prohibits sexual acts based on the victim’s age. Id. at 16-17,
1986 U.S.C.C.C.A.N. at 6196-97. Compare 18 U.S.C. §
2243(a) (requiring only that perpetrator “knowingly engages
in a sexual act” with the victim and specifying age
requirements), with 18 U.S.C. § 2241 (requiring that the
perpetrator use force or threats to engage in sexual acts and
omitting any reference to the victim’s age). Indeed, § 2243(a)
“applies to behavior that the participants voluntarily and
willingly engage in” and “is intended to reach older, mature
persons who take advantage of younger, immature persons,
but not to reach sexual activity between persons of
comparable age.” H.R. Rep. No. 99-594, at 16, 1986
U.S.C.C.A.N. at 6197. It thus provides for a “young lovers”
exception by requiring at least a four-year age difference
between the perpetrator and the victim, thereby excluding
consensual sex between teenagers.          See 18 U.S.C. §
2243(a)(2); see also United States v. White Calf, 

, 457 (8th Cir. 2011) (explaining that § 2243(c)(1) also
provides a narrow affirmative defense that the defendant
reasonably believed that the victim had attained the age of 16,
“ostensibly to ameliorate the harsh effects of the statute in
cases of otherwise consensual teenage sex”).

       Because these two federal statutes do not address
similar conduct, the disparity in their penalties is not within
the scope of § 3553(a)(6), which is concerned only with “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty




                              3
of similar conduct.” 18 U.S.C. § 3553(a)(6). I believe it is
within this Court’s power to make this determination as a
matter of law. See, e.g., Mahmood v. Gonzales, 

, 253 (3d Cir. 2005) (“When the outcome is clear as a
matter of law, however, remand is not necessary.”); In re Ben
Franklin Hotel Assocs., 

, 306 (3d Cir. 1999)
(“Because the record has been sufficiently developed for us to
resolve this legal issue, we need not remand to the District
Court to consider it in the first instance.”). I would, therefore,
affirm the sentence that the District Court imposed.




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