Background
FBI task-force officer Jillian Yeager created an undercover profile on a fetish-oriented social-networking site, posing as a mother interested in adults having sexual contact with her purported daughters, ages 11 and 13. Alan J. Disomma, Jr., contacted the profile and, over approximately a year, exchanged about 2,000 messages and participated in phone calls involving graphic discussions of sexual activity with the fictitious children.
Disomma also communicated directly with personas he believed were the daughters, mailed them a PlayStation console and games, and described a room prepared for them at his Arizona home. He later flew from Arizona to West Virginia to meet them and was arrested at the airport. His luggage contained Sildenafil, which he had previously discussed using during sexual activity with the girls.
At trial, Disomma admitted participating in the communications but testified that he was investigating the supposed mother and trying to stop her. The district court declined to give an entrapment instruction, and the jury convicted him on two counts under 18 U.S.C. § 2422(b) and one count under § 2423(b). The court imposed concurrent life sentences on the § 2422(b) counts and a concurrent 30-year sentence on the § 2423(b) count.
The Court’s Holding
The Fourth Circuit affirmed in an unpublished per curiam opinion. It held that the investigation did not constitute outrageous government conduct because the officer broadly presented a criminal opportunity online and Disomma initiated contact and pursued it. The court characterized the investigation as a classic sting operation and concluded that nothing about it met the exceedingly high standard for outrageous conduct.
The court also held that Disomma was not entitled to an entrapment instruction. Government agents merely offered an opportunity, which Disomma promptly accepted; he repeatedly restarted communications, steered them toward sexual activity with the children, and took steps to gain their trust.
The court found no plain error in applying the enhancement associated with an offense involving a minor under age 12 because Fourth Circuit law has never recognized sentencing entrapment or sentencing manipulation as viable theories. It also rejected Disomma’s sentencing-disparity claim for lack of a meaningful comparison to similarly situated defendants and held that his passing assertion under 18 U.S.C. § 3553(a)(2) did not overcome the presumption that his within-Guidelines life sentence was reasonable. Because he was represented by counsel and the appeal was not proceeding under Anders, the court denied his motions to file pro se supplemental briefs.
Key Takeaways
- An online sting does not amount to outrageous government conduct merely because an officer creates and presents an opportunity to commit a crime.
- An entrapment instruction is unwarranted when the government merely offers an opportunity and the defendant promptly and voluntarily pursues it.
- An unpreserved sentencing-manipulation claim cannot establish plain error where settled circuit law does not recognize the asserted theory.
- A sentencing-disparity argument requires meaningful evidence that the defendant’s sentence differs from nationwide sentences imposed for similar conduct.
Why It Matters
The decision reinforces the Fourth Circuit’s demanding standards for challenging undercover sex-crime investigations on outrageous-conduct or entrapment grounds. A defendant’s initiation of contact, repeated pursuit of the proposed conduct, and concrete preparations can demonstrate predisposition even when the supposed victims are fictitious.
The opinion also illustrates the difficulty of overturning a within-Guidelines sentence through unpreserved or minimally developed arguments. Defendants asserting unwarranted disparities must do more than list sentences from other prosecutions; they must establish that those cases involved similarly situated offenders and comparable conduct.