United States v. Wernick, No. 10-2974 (2d Cir. 2012)Annotate this Case
Wernick was convicted on five counts, including receiving and distributing child pornography, 18 U.S.C. 2252A(a)(2)(A); reproducing child pornography for distribution by computer, 18 U.S.C. 2252A(a)(3)(A); possessing materials containing images of child pornography, 18 U.S.C. 2252A(a)(5)(B); and persuading, inducing and enticing minors to engage in sexual activity, 18 U.S.C. 2422(b). Wernick appealed his 360-month sentence, but not his conviction, arguing that the district court erred by considering certain sexual conduct directed at young children, not charged in the indictment or proven at trial, as “relevant conduct” that increased his offense level with respect to Count Five. The Second Circuit vacated and remanded. The court erred in considering the sexual acts with young children as effectively part of one offense of conviction (the enticement of teenagers), relevant to calculating the seriousness of that offense under the Guidelines, rather than as separate criminal acts to be considered at a different stage of the sentencing process.