U.S. v. Patterson

• Decision Date: 05 August 2009
• Docket Number: No. 08-2240.,08-2240.
• Citation: 576 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James L. PATTERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

576 F.3d 431

UNITED STATES of America, Plaintiff-Appellee, v. James L. PATTERSON, Defendant-Appellant.

No. 08-2240.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 2009.

Decided August 5, 2009.

Julie B. Ruder, Scott A. Keller, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Bradley D. Price (argued), Johnson & Bell, Chicago, IL, for Defendant-Appellant.

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge.

James Patterson appeals several issues related to his sentence for violation of 18 U.S.C. § 2423(a), which prohibits transporting a minor in interstate commerce with intent that the minor engage in prostitution. Among the issues presented is one of first impression in this circuit: whether 18 U.S.C. § 2423(a) is a "crime of violence" such that application of the career offender guideline is appropriate in this case.

For the reasons explained below, we affirm the judgment of the district court except with regard to the district court's enhancement of Patterson's sentence for "use of a computer." On that issue we reverse and remand for further proceedings consistent with this opinion.

I. Background

A. Factual Background

In 2005, James Patterson, a forty-two year old man, met a fourteen year old girl (the "victim") in Memphis, Tennessee. The victim had run away from a group home and had no money. Patterson encouraged her to engage in prostitution. The victim began working as a prostitute in a Memphis crack house for a pimp named Larry Nelson. About two weeks later, Patterson asked the victim if she would like to travel to Chicago. He told her that in Chicago, prostitution was internet-based and that she would not have to engage in "street-walking" to solicit customers. Defendant's counsel admitted to the district court that defendant "held out" internet prostitution as "something more attractive" than what the victim had been doing at the time. The victim agreed to travel with Patterson to Chicago.

On October 31, 2005, Patterson drove the victim from Memphis to Schaumburg, Illinois. For two weeks, the victim worked as a prostitute for Patterson. During this time, the victim gave Patterson all of the money she earned and stayed in his hotel. Another minor female working as a prostitute for defendant's half-brother posted prostitution advertisements for the victim on internet sites such as Craigslist. These advertisements contained naked photos of the victim. The other prostitute arranged the victim's calls to johns through the internet and drove her to calls as well.

Patterson used physical violence against the victim several times. On one occasion, Patterson shoved the victim against a wall and slapped her. On another occasion, Patterson punched the victim, knocking her off a chair, and stomped on her while she was on the floor. After this incident, Patterson told the victim to take a shower and prepare to work the street. On a call later that night, a john, who saw bruises on the victim, offered to "rescue her." The victim went to live with the man's son. From the son's house, she called her mother in Memphis. The victim's family had apparently been looking for her and had spread the word in Memphis that she was a missing and endangered child.

B. Procedural Background

Patterson was charged with knowingly transporting a minor in interstate commerce with the intent that the minor engage in prostitution in violation of 18 U.S.C. § 2423(a). Defendant pled guilty pursuant to a written plea agreement. The agreement explained that the Guidelines "in effect at the time of sentencing" were to determine Patterson's sentence. The agreement anticipated that Patterson would have an offense level of 28 and a criminal history category of IV, which resulted in an "anticipated advisory Sentencing Guidelines range [of] 110 to 137 months' imprisonment." These calculations were "based on the facts now known to the government." Additionally, the agreement stated:

Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature, and are non-binding predictions upon which neither party is entitled to rely. Defendant understands that further review of the facts or the applicable legal principles may lead the government to conclude that different or additional Guideline provisions apply in this case. Defendant understands that the Probation Office will conduct its own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court's determinations govern the final Guideline calculation. Accordingly, the validity of this Agreement is not contingent upon the probation officer's or the Court's concurrence with the above calculations and defendant shall not have a right to withdraw his plea on the basis of the Court's rejection of these calculations.

The agreement also stated, in another section, that "[d]efendant further acknowledges that if the Court does not accept the sentencing recommendation of the parties, defendant will have no right to withdraw his guilty plea."

During the plea colloquy, Patterson was placed under oath and stated that he was fully satisfied with his attorney's representation, had reviewed the plea agreement, understood all of the agreement's terms, and understood the consequences of pleading guilty. The defendant told the district judge that he understood that the judge was not bound by the plea agreement. The court asked:

Do you understand that I will not be able to determine the actual guideline sentencing range for your case until after you have pled guilty and a presentence report has been completed; because of that, the sentence calculation that I make may be different from what you and your attorney or even what the plea agreement contains. Do you understand that?

A: Yes.

The original Presentence Investigation Report ("PSR") had not treated Patterson as a career offender under U.S.S.G. § 4B1.1 because the government and probation office did not know that Patterson's term of imprisonment for a 1983 conviction had ended within the last fifteen years, a requirement for counting an offense for the purpose of the career offender guideline. See U.S.S.G. §§ 4B1.1, cmt. n. 1; 4B1.2, cmt. n. 3; 4A1.2(e)(1). After filing the original PSR, the probation office learned from the Tennessee Department of Corrections that Patterson had been released within the last fifteen years for the 1983 conviction. Thus, after Patterson's plea colloquy, the probation office supplemented its original PSR to reflect its view that Patterson should be treated as a career offender on the basis of his conviction under 18 U.S.C. § 2423(a) and his 1983 and 1999 convictions. See U.S.S.G. § 4B1.1(a). Using the 2007 Guidelines, which were in effect at the time of Patterson's sentencing, the Supplemental PSR recommended a Guidelines range of 210 to 262 months. The Supplemental PSR also recommended applying, among others, offense characteristic enhancements for "unduly influenc[ing] a minor to engage in prohibited sexual conduct" and "use of a computer." See U.S.S.G. §§ 2G1.3(b)(2)(B); 2G1.3(b)(3).

After the probation office submitted the Supplemental PSR, defendant filed a pro se motion to withdraw his guilty plea, although he was represented by counsel at the time of the filing. In the motion, Patterson argued that his plea was not made knowingly or voluntarily. The district court held a hearing on defendant's motion. Defendant was represented by counsel at the hearing, and counsel expressed his opinion that Patterson's pro se motion had no merit.

The district court ruled that it would not consider the merits of the motion because it was not filed by counsel. The district court additionally stated that even if it had considered the merits, it would have denied it on the grounds that it "ha[d] no merit." The court informed Patterson that he could file a motion for substitution of attorneys if he wished. Despite the district court's ruling, Patterson stated at the hearing that his counsel "promised [him] a sentence that [he] didn't get" (although at the time of the hearing, he had not yet been sentenced). Defendant also said that he had only had ten minutes to look at the plea agreement before he pled guilty. However, the district court reminded Patterson that he had earlier stated under oath that he had reviewed the agreement and understood its terms, which defendant acknowledged.

The district court adopted the Supplemental PSR's Guidelines calculations and sentenced Patterson to 262 months in prison followed by five years of supervised release. The defendant did not ask the district court to vacate his plea at sentencing but did object to the Supplemental PSR's application of the career offender provision as well as the "undue influence" and "use of a computer" enhancements.

Patterson now appeals his sentence on a number of grounds.

II. Discussion

A. Evidentiary Hearing Regarding Plea Withdrawal

Patterson's first argument is that the district court should have held an evidentiary hearing with regard to his motion to withdraw his plea. The district court rejected Patterson's motion to withdraw his plea because it was filed pro se at a time when Patterson was represented by counsel; the district court also stated that the motion was meritless. The government argues that the district court was correct to reject Patterson's motion because it was never properly before the court and also because Patterson did not meet his burden of showing a fair and just reason for withdrawal of the plea.

Abuse of discretion is the standard of review for both a district court's denial of a motion filed pro se by a defendant represented by counsel, see United States v. Chavin, 316 F.3d 666, 671 (7th Cir.2002) ("[W]hether a defendant may act as co-counsel along with his own attorney, is a matter within the discretion of the district court.") (citing United States v....