U.S. v. Mallon

• Decision Date: 18 September 2003
• Docket Number: No. 03-2049.,03-2049.
• Citation: 345 F.3d 943
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John S. MALLON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

345 F.3d 943

UNITED STATES of America, Plaintiff-Appellant, v. John S. MALLON, Defendant-Appellee.

No. 03-2049.

United States Court of Appeals, Seventh Circuit.

Argued September 18, 2003.

Decided September 18, 2003.

Opinion Issued October 6, 2003.

T. Markus Funk (Argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

Cynthia Giacchetti (Argued), Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

John Mallon, a citizen of the United Kingdom residing in Northern Ireland, pleaded guilty to the crime of using the means of interstate and international communication in an effort to entice a female under the age of 18 to engage in sexual activity. See 18 U.S.C. § 2422(b). The admissions that accompanied Mallon's plea, plus uncontested facts adduced at sentencing, show that, beginning in early February 2002, he attempted to entice Marny, who represented herself to be 14 years old, into a sexual liaison. Mallon's initial contact with Marny was made by computer, through an Internet chat room, from Mallon's home in Belfast. After Marny rejected Mallon's initial overtures, he continued sending her email messages boasting of his sexual experience (including a tryst with a 15-year-old girl in Florida) and assuring Marny that he would provide both financial and psychological support, serving as a father substitute. (Marny said that her father had abandoned her.) Telephone conversations followed. Marny finally agreed to meet Mallon on March 8, 2002, and Mallon flew to Chicago for that purpose.

As the acting head of the Ulster-Scots Agency, an organization created by Northern Ireland's Good Friday Agreement, Mallon had been scheduled to be at the White House in Washington, D.C., on March 11 for an official ceremony. He came to the United States early, and via Chicago, in order to engage in sexual relations with Marny, who he called promptly after his plane touched down at O'Hare Airport. When Marny arrived at Mallon's hotel, he tried to hug and kiss her but did not get far — for "Marny" was just the assumed name of an agent, and Mallon was soon under arrest. (Both sides had been lying in the chat room and email exchanges. Mallon claimed to be a wealthy businessman, 47 years old, single, with no children. Actually he was 61 years old, married for 40 years with 5 children and 10 grandchildren, and after 24 years in the civil service had retired in 1995 to become a consultant. He volunteered for post-retirement work managing the Ulster-Scots Agency.) Mallon's hotel room contained condoms, a video camera set up to record the encounter, and a gold necklace that he had planned to give Marny. Constables who later searched Mallon's home found numerous sexually graphic communications between Mallon and other girls who represented that they had not reached the age of 16.

After all adjustments, Mallon's offense level was 22, which led to a sentencing range of 41 to 51 months' imprisonment. Nonetheless, the district judge fixed Mallon's sentence at 21 months. She gave two principal reasons for this departure from the prescribed range. First, she concluded that Mallon's heart condition had caused "a severely diminished capacity to make good judgments", justifying a four-level departure under U.S.S.G. § 5K2.13. Second, she stated that "a group of factors, including but not limited to defendant's deportable alien status," justified a further two-level reduction. That produced a new offense level of 16 and a range of 21 to 27 months' imprisonment.

The United States filed a notice of appeal; Mallon did not take a cross-appeal and does not contest the original offense level of 22 (though he stoutly defends the district court's downward departure to a level of 16). About a month before oral argument, the prosecutor learned that, with good-time credits, Mallon would be released from the 21-month sentence the day before oral argument and could be removed from the United States swiftly thereafter. The prosecutor filed a motion asking us to stay this removal. For the reasons given in Appendix A to this opinion, we denied this motion and suggested that the Department of Justice take the matter up with the Department of Homeland Security. Apparently time did not allow the issue to percolate up to senior officials, but a local immigration officer took the position that Mallon had a legal entitlement to be returned to the United Kingdom immediately after release from prison. There followed a second motion, this time seeking a brief delay in release. That motion was granted (see Appendix B), and on the afternoon following oral argument we issued a decision (see Appendix C). This opinion explains that judgment.

Mallon's principal submission is not that we must agree with the district judge as an original matter, but that we may ask only whether the judge abused her discretion. That deferential standard of appellate review is specified by Koon v. United States, 518 U.S. 81, 92-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). More recently, however — and after the district judge pronounced Mallon's sentence — Congress amended 18 U.S.C. § 3742(e)(4), the provision on which Koon relied. Until last April, that statute required appellate judges to "give due deference to the district court's application of the guidelines to the facts." Section 401(d) of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT ACT), Pub.L. No. 108-21, 117 Stat. 650, amends § 3742(e) to provide:

Upon review of the record, the court of appeals shall determine whether the sentence — ...

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline range based on a factor that — (i) does not advance the objectives set forth in section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by the facts of this case; or

(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); ....

. . .

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts.

So although resolutions of contested issues of fact stand unless clearly erroneous, with respect to departures on one of the grounds listed in § 3742(e)(3)(B) "the court of appeals shall review de novo the district court's application of the guidelines to the facts." If after independent consideration the court of appeals finds a departure justified, then the extent of the departure must be reviewed deferentially under Koon's standard; that's the effect of omitting § 3742(e)(3)(C) from the last sentence of the amended statute.

The amendment became effective on April 30, 2003, when the President signed the enrolled bill. What becoming "effective" means may depend on the nature and timing of the affected matters. For example, § 401(g) of the PROTECT ACT limits to two the number of levels a district judge may subtract for the defendant's acceptance of responsibility, unless the prosecutor consents to the subtraction of a third level. Mallon received a three-level reduction for his guilty plea, a step authorized by the Guidelines in force at the time, and the prosecutor sensibly does not contest it now. New laws presumptively operate prospectively and do not alter the legal consequences of completed acts. See, e.g., Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). But appellate review of Mallon's sentence lay in the future as of April 30, 2003, so we must apply the new standard of review. See United States v. Thurston, 338 F.3d 50, 69-72 (1st Cir.2003).

Not so, Mallon replies. He contends that application would be retroactive — indeed, would violate the Constitution's ex post facto clause — because it would alter the consequences of his completed criminal conduct. Yet § 401(d) of the PROTECT ACT does not change the statutory penalties for crime, affect the calculation of the Guidelines range, or alter the circumstances under which departures are permitted. It changes who within the federal judiciary makes a particular decision, but not the legal standards for that decision. Instead of one district judge, three appellate judges now decide whether a departure is justified. An increase in the number of judges who must consider an issue reduces the variance of decisionmaking but should not affect the mean or median outcome.

Justice Chase offered in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798), what has become the canonical definition of an ex post facto law. "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the...