United States v. Bradley

• Decision Date: 05 April 2012
• Docket Number: No. 11–1773.,11–1773.
• Citation: 675 F.3d 1021
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Paul BRADLEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

675 F.3d 1021

UNITED STATES of America, Plaintiff–Appellee,

v.Paul BRADLEY, Defendant–Appellant.

No. 11–1773.

United States Court of Appeals, Seventh Circuit.

Submitted Sept. 14, 2011.Decided April 5, 2012.*

George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff–Appellee.

Melissa A. Day, Attorney, Federal Public Defender's Office, Benton, IL, for Defendant–Appellant.

Paul R. Bradley, Coleman, FL, pro se.

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

PER CURIAM.

The defendant Paul Bradley pleaded guilty to traveling in interstate commerce to engage in sexual conduct with a minor. See 18 U.S.C. § 2423(b). He has now had two sentencing proceedings. At the first, the district court sentenced him to 240 months' imprisonment with ten years of supervised release, despite a guidelines range of 57–71 months. The district court based this sentence on presumed prior acts of the defendant and an unsupported assumption of recidivism, and for those reasons, we remanded the case for resentencing. United States v. Bradley, 628 F.3d 394 (7th Cir.2010). At Bradley's second sentencing, the district court again sentenced him to 240 months' imprisonment, despite the same guidelines range of 57–71 months and a government recommendation of 71 months. The court further added a lifetime term of supervised release. Bradley appeals this sentence on the grounds that the district court failed to provide sufficient justification for the sentence 169 months above the guidelines range, and because the district court did not adequately consider the statutory factors in § 3553(a). For the reasons set forth below, we once again vacate the sentence and remand for resentencing.

I. BACKGROUND

Our previous opinion summarizes the facts of this case, Bradley, 628 F.3d at 395–400, but we provide a summary of the facts relevant to the present appeal.

The police arrested Bradley after spotting his car parked on the side of the road shortly after midnight and finding him with T.S., a 15–year–old boy. Bradley, who is from Oregon, initially told the police that he was lost and had stopped T.S. to ask for directions, but later he admitted to meeting T.S. through an adult phone-chat (the equivalent of an Internet chatroom conducted over the telephone). Bradley eventually learned that T.S. was younger than 18 but still traveled to Illinois to meet him. Motel records confirmed that Bradley had booked a room for one adult and one child for both the night he was arrested and the previous night. A search of Bradley's computer uncovered evidence of two child pornography images, one of them deleted.

In Bradley's presentence report, the probation officer did not identify any adult or juvenile convictions, or even prior arrests, and thus assessed no criminal history points. The probation officer calculated Bradley's total offense level at 25 with a criminal history category of one, yielding a guidelines imprisonment range of 57 to 71 months. The probation officer did not identify any factor that would warrant a sentence above the guidelines range. The district court adopted the proposed findings without any objections from the parties. At the first sentencing the government requested an above-guidelines range sentence of 87 months. The district court imposed a sentence of 240 months' imprisonment, 169 months above the high end of the guidelines range.

We vacated the sentence because the district court failed to support its assumptions that Bradley had committed prior crimes and that he would likely commit more crimes if released. The district court's unnecessarily harsh and exaggerated language, in conjunction with the lack of justification offered for the extreme variance from the guidelines, informed our decision that the sentence was unreasonable. Bradley, 628 F.3d at 401. We also noted that the court adopted the findings of the presentence report, but that the presentence report contained material factual discrepancies because Bradley's and the victim's accounts of the events were incompatible. Id. We stated that the district court as a first step to considering the appropriate sentence, had to resolve these disputed issues of fact.¹ Id.

Before Bradley's second sentencing proceeding, the defense filed five ex parte motions for issuance of subpoenas duces tecum seeking the victim's schooling, juvenile court, medical, and mental health records pertaining to the victim, which the district court denied. At sentencing, the district court stated it would only rely on the stipulated facts, and would not give any weight to the contested portions of the presentence report. The court made clear that it would not, as the first district court had, speculate as to the defendant's prior acts for which there was no support, nor would it speculate as to the defendant's likelihood of recidivism. The district court assessed the § 3553(a) factors, finding many of them irrelevant, except the nature and circumstances of the offense. Regarding that factor, the court stated that “[i]t's difficult to conjure up a more serious crime than sodomizing a child.” The district court then made a comparison of the instant offense to drug crimes and murder, noting that “the consequences of this offense are of a different magnitude than the offense of providing someone an intoxicating narcotic.... [T]he nature and circumstances of this offense have to be put slightly below the offense of murder.” The district court again sentenced Bradley to 240 months' imprisonment, despite the same guidelines range of 57–71 months and the government's recommendation of 71 months. The court also increased his term of supervised release to life. Following the pronouncement of the sentence, the district court issued a written “Addendum to Judgment.” The court wrote that “very few crimes are more serious than the stipulated conduct involved here,” and that:

This Court regularly sentences drug offenders to 20 years in prison. Congress has said that drug offenses are serious and warrant such heavy sentences. Congress also has spoken on crimes against children. Specifically, 18 U.S.C. § 2422(b) carries a 10–year–mandatory minimum. This Court has sentenced offenders under that statute to 10–year sentences, where the conduct involved did not include having sex with the minor. In this case Paul Bradley enticed the minor victim to have sex, traveled in interstate commerce for that purpose, and completed the sexual act.

Bradley again appeals his sentence.

II. ANALYSIS

Bradley argues that his second sentence was unreasonable because the district court failed to sufficiently justify the sentence 169 months above the guidelines range, and because the district court did not adequately consider the factors in § 3553(a). We review the reasonableness of the sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

“[W]e will uphold an above-guidelines sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence.” United States v. McIntyre, 531 F.3d 481, 483 (7th Cir.2008) (citing United States v. Castro–Juarez, 425 F.3d 430, 436 (7th Cir.2005)). We have found that the guidelines regime following Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), “permits a sentencing judge to have his own penal philosophy at variance with that of the Sentencing Commission.” United States v. Higdon, 531 F.3d 561, 562 (7th Cir.2008) (gathering cases). Following Kimbrough, we have also stated that “district judges are at liberty to reject any Guideline on policy grounds,” but we have stressed that “they must act reasonably when using that power.” United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (en banc) (emphasis in original). In acting reasonably, “[a]s a matter of prudence, ... in recognition of the Commission's knowledge, experience, and staff resources, an individual judge should think long and hard before substituting his personal penal philosophy for that of the Commission.” Higdon, 531 F.3d at 562. A sentencing judge must give “respectful consideration to the judgment embodied in the guidelines range that he computes.” Id. Additionally, “the court ... needs to understand the relation between the [g]uidelines and the ultimate sentence.” United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009). In this case, the record does not suggest that the court's sentence was based on a policy disagreement with the applicable sentencing guideline. No party argued the applicable guideline was deficient, and the court did not anywhere state that its sentence was based on a rejection of U.S.S.G. § 2G1.3(a)(4). The record also does not show that the court employed a penal philosophy at odds with the applicable guidelines after respectful consideration of the guidelines range. ² “A sentencing judge is not required to ‘delve into the history of a guideline,’ ” United States v. Garthus, 652 F.3d 715, 721 (7th Cir.2011) (quoting United States v. Aguilar–Huerta, 576 F.3d 365, 368 (7th Cir.2009)), but where a sentence is so far above the guidelines range, if such a sentence is based on a policy disagreement, we would expect to be alerted to as much.

We next look to the factors set forth in 18 U.S.C. § 3553(a). United States v. Johnson, 612 F.3d 889, 896 (7th Cir.2010) (“[A] district court may impose an above-guideline sentence based on the factors set forth in § 3553(a).”). When reviewing a sentence, we must determine whether the district court offered justification “sufficiently compelling to support the degree of variance.... [A] major departure should be supported by a more significant justification than a minor one.” United States v. Miller, 601 F.3d 734, 739 (7th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). We have stated that “[i]f the sentence imposed is outside the guidelines range, the...