United States v. Ray

• Decision Date: 27 July 2016
• Docket Number: Nos. 14-3799 &amp,15-3193,s. 14-3799 &amp
• Parties: United States of America, Plaintiff–Appellee, v. Carey Ray, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

831 F.3d 431

United States of America, Plaintiff–Appellee,

v.Carey Ray, Defendant–Appellant.

Nos. 14-3799 &

15-3193

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2016

Decided July 27, 2016

Rehearing and Rehearing En Banc Denied August 25, 2016

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Johanna M. Christiansen, Thomas W. Patton, Attorneys, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before Flaum, Easterbrook, and Sykes, Circuit Judges.

Easterbrook

, Circuit Judge.

When he was 29, Carey Ray started to chat over the Internet with a 14-year-old girl, called “Alexia” to protect her identity. At their first in-person meeting Ray plied Alexia with marijuana and cognac. At their second he took her to a motel (crossing from Indiana into Illinois), where marijuana and alcohol were followed by sexual intercourse. The jury in this criminal prosecution was entitled to find that Ray knew Alexia to be 14 (so that she could not legally consent to sex) and that Ray used drugs and force to overcome her resistance (so that she did not consent). Ray has been convicted of violating 18 U.S.C. § 2423(a)

(knowingly transporting a minor across state lines to engage in criminal sexual activity) and sentenced to 320 months in prison plus 15 years of supervised release.

Ray contends that the evidence is insufficient to show that, when he crossed the state border, he intended to have sex with Alexia. Yet he had raised the possibility with Alexia, and practically the first thing he did on arriving in Illinois was rent a motel room (booked for a four-hour stay). After Alexia became woozy from the marijuana and cognac, Ray forced himself on her. When she said that she was not ready, he replied: “I paid for this room. I'm gonna get what I want.” The jury was entitled to infer that Ray knew when he drove into Illinois what he wanted and planned to do.

Section 2423(a)

creates a piggyback offense: The prosecution must show that the sexual activity after crossing the state line violated some other statute. The indictment charged Ray with aggravated criminal sexual abuse, in violation of 720 ILCS 5/11-1.60, in two ways: first, that Ray used force or the threat of force to commit an “act of sexual conduct” with someone under the age of 17 (§ 5/11-1.60(c)(1)); second, that Ray committed an “act of sexual penetration or sexual conduct” with someone under the age of 17, while at least 5 years older than the victim (§ 5/11-1.60(d)). The evidence permitted a reasonable jury to find that Ray violated the Illinois statute in both of these ways. But he maintains that the instructions were defective.

The judge told the jury that, to convict Ray of violating the federal statute, it had to find that he also violated the Illinois statute. The instruction listed each element of each of the two subsections of the Illinois statute on which the prosecution relied. For example, the instruction told the jury that to find a violation of § 5/11-1.60(d) it had to find that Ray (1) committed an act of sexual conduct; (2) with a person who was at least 13 but under 17 at the time; (3) while being at least 5 years older than the other person. Ray asked the judge to add a fourth element: that he lacked a reasonable belief that Alexia was 17 or older. The district court declined to add this to the list of elements but did tell the jury that Ray's reasonable belief that Alexia was 17 or older was a defense. The instruction added that the prosecution had to negate that defense beyond a reasonable doubt.

With respect to the offense under § 5/11-1.60(c)(1), Ray wanted the judge to tell the jury that, even if he used force (or threats of force), the prosecution still had to prove that Alexia did not consent. Once again the district judge gave an instruction calling this matter a defense rather than an element, but providing that to find a violation of state law the prosecution had to negate the defense of consent by proof beyond a reasonable doubt.

According to Ray, by calling these subjects defenses the instructions relieved the prosecution of its burden of persuasion. That's not so, because the instructions expressly provided that the prosecutor bore the burden on the defenses. State law calls consent, and a reasonable belief that the other person was at least 17, defenses rather than elements. 720 ILCS 5/11-1.70

. This statute does not say which side has the burden of persuasion; the district judge adopted the position most favorable to Ray by assigning the burden to the prosecutor. That Illinois pattern jury instructions treat these defenses, once raised, as if they were elements, does not compel a federal court to follow suit. Federal practice prevails in federal court, even when state law provides the substance. This circuit's pattern criminal jury instructions likewise are not mandatory. A judge can draft instructions in multiple ways, as long as they frame the essential questions in language that jurors are likely to grasp.

Assigning the burden of a defense to the prosecution may confuse lay jurors, but almost any legal language has that potential. Ray says that his jury was confused, to his detriment, about these defenses, but the two notes from the jury show a different kind of confusion. The jury's first question asked: “Does No. 18 define No. 17 Question 3? Or is this a separate or additional charge?” The second read: “No 18 Can we find defendant guilty or not guilty of Section (d), (c)(1), or both? Because indictment doesn't separate them.” Instruction 17 told the jury the elements of § 2423(a)

and Instruction 18 the elements of the Illinois statute. It is evident from these notes that the jury did not initially grasp that Ray was charged with only one crime (a violation of federal law), but that to prove the violation of federal law the prosecution had to show that Ray violated a state law after entering Illinois. That kind of confusion may be inherent in piggyback statutes and has nothing to do with the separation of the state statute into elements (Instruction 18) and defenses (Instruction 20, which the jury did not ask about). Ray does not complain about the answers the judge gave to the jury's questions, so we must assume that the verdict was reached with the necessary understanding.

We turn to sentencing. The presentence report (seconded by the judge) started with U.S.S.G. § 2G1.3

, which applies to convictions under § 2423. Guideline 2G1.3 has a cross-reference: “If the offense involved conduct described in 18 U.S.C. § 2241 or § 2242, apply § 2A3.1”. The presentence report concluded that Ray had used force, bringing his conduct within the scope of 18 U.S.C. § 2241(a)(1), which forbids using force to accomplish a sexual act. Guideline 2A3.1 has a higher base offense level (30, compared to 28 under § 2G1.3 ), plus offense characteristics that add more levels than the characteristics under § 2G1.3. Ray insists that he did not use force, but Alexia testified that Ray pushed her, climbed on top of her, and penetrated her even though she was trying to resist. A medical exam found scratches on her body consistent with the use of force. This supports the use of the cross-reference.

Ray calls the use of one force-specific offense characteristic in § 2A3.1 “double counting” because the § 2241(a)

offense itself entails force. But we held in United States v. Vizcarra , 668 F.3d 516 (7th Cir. 2012), that the Guidelines permit a single fact to count under more than one Guideline or offense characteristic. There is no general rule against “double counting”; there is only a need for the judge to count as the Guidelines themselves count. Ray relies on a number of cases in this circuit that precede Vizcarra, which was circulated to the full court under Circuit Rule 40(e), see 668 F.3d at 519, because it was cleaning up inconsistency in circuit law.

Precedents inconsistent with the outcome of a Rule 40(e) decision have no continuing force. There is no problem under Vizcarra

and the language of § 2A3.1.

When pronouncing sentence, the district judge did not say anything in particular about three of Ray's arguments for a lower sentence: that this was his first offense, that he had an extensive work history, and that he is a devoted father. Ray calls this silence an error. But the first of his points is built into the Guidelines (he had a criminal history level of I) and did not require further comment, and the other two are the sort of stock arguments that may be passed in silence. See, e.g., United States v. Ramirez-Fuentes , 703 F.3d 1038, 1047–48 (7th Cir. 2013)

. We held in United States v. Young , 590 F.3d 467, 474 (7th Cir. 2009), that being a devoted parent does not require specific discussion in sentencing. See also United States v. Tahzib , 513 F.3d 692, 695 (7th Cir. 2008). We treated work history the same way in United States v. Chapman , 694 F.3d 908, 916 (7th Cir. 2012) ; United States v. Russell , 662 F.3d 831, 854 (7th Cir. 2011) ; and United States v. Allday , 542 F.3d 571, 572–73 (7th Cir. 2008).

This brings us to the appeal's most difficult subject: the district court's handling of the conditions of supervised release. The district court pronounced Ray's sentence in December 2014. Decisions in this circuit since then have announced both procedural and substantive requirements for permissible conditions of supervised release. See, e.g., United States v. Thompson , 777 F.3d 368 (7th Cir. 2015)

; United States v. Kappes , 782 F.3d 828 (7th Cir. 2015). Ray's brief in his initial appeal, No. 14–3799, contends that some of these conditions are inconsistent with the circuit's more recent precedent.

Conceding that nine of the conditions were indeed either unwarranted or poorly worded, the United States asked the district court to fix the problem while Ray's appeal was pending. Circuit Rule 57 affords one way by which this might occur. It provides that if the district court is...