United States of America v. Mark Mitman

NOT PRECEDENTIAL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

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The District Court applied the 2002 edition of the Sentencing Guidelines manual.1
2
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). This section, which pertains to “material involving the sexual1
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.

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3
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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