United States v. Bridgewater, 19-2522

• Decision Date: 19 February 2020
• Docket Number: No. 19-2522,19-2522
• Citation: 950 F.3d 928
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David A. BRIDGEWATER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

950 F.3d 928

UNITED STATES of America, Plaintiff-Appellee,

v.David A. BRIDGEWATER, Defendant-Appellant.

No. 19-2522

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2020

Decided February 19, 2020

James M. Cutchin, Thomas E. Leggans, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL, for Plaintiff-Appellee.

Melissa A. Day, Angela J. Hill, Attorneys, FEDERAL PUBLIC DEFENDER'S OFFICE, Benton, IL,

Before Flaum, Manion, and Kanne, Circuit Judges.

Flaum, Circuit Judge.

David Bridgewater pleaded guilty to one count of soliciting an obscene visual depiction of a minor in violation of 18 U.S.C. § 2252A(a)(3)(B)(i). Federal law required a mandatory-minimum Guidelines sentence of 60 months in prison. The district court deviated from the Guidelines to 78 months to account for a charge of attempted enticement of a minor that the government dismissed in exchange for his guilty plea. That conduct, the court found, aggravated the nature and circumstances of the offense of conviction. The court therefore sentenced above the Guidelines range to holistically address Bridgewater and his crime in a way the mandatory-minimum Guidelines range did not. Bridgewater now appeals his sentence, principally arguing that it is substantively unreasonable because basing it—even in part—on dismissed conduct creates systemwide disparity. We affirm.

I. Background

In January 2019, David Bridgewater contacted a boy who he thought was named "Stephen" on Grindr, an online dating application. Stephen, however, was really an undercover FBI agent participating in a sting operation. The following federal child exploitation investigation and prosecution ensued.

A. Investigation

After exchanging some initial messages, Stephen identified himself as a fifteen-year-old boy from Marion, Illinois. Bridgewater described himself as a forty-five-year-old man who lived in Anna, Illinois. Quickly, Bridgewater shifted the conversation to sexual matters and asked Stephen if he was circumcised. He also asked Stephen to send him a picture to prove he was real. The two then agreed to text via the Google voice application.

During the subsequent encounter, Stephen sent a purported picture of himself, to which Bridgewater replied: "[explicative] you are cute." Bridgewater told Stephen he wanted to make out and perform oral sex on him. Stephen said he would prefer "oral and hands first," and Bridgewater agreed, on the condition that he could "see it and touch [Stephen’s] butt." Bridgewater questioned Stephen whether he was real or not, inquiring: "You’re not an undercover cop or detective or law enforcement?" Stephen assured Bridgewater he was not a police officer, and the two switched to talking about Stephen’s living arrangements, hobbies, and interests. Bridgewater asked if Stephen would send him a "sneak peak," requesting a picture of his "tummy and pubic area" and penis. They agreed to carry on their conversation and meet in person the following day.

As the two exchanged messages the next day, they discussed meeting at a McDonald’s in Marion after Stephen got out of school. Bridgewater asked Stephen to call him when he was on his way to meet him. Later that afternoon, Stephen texted Bridgewater to tell him he was en route to the McDonald’s, and Bridgewater noted that he would be there in several minutes. Upon Bridgewater’s arrival, he texted Stephen that he was parked behind the McDonald’s. When agents approached Bridgewater in his vehicle, he saw them and drove away from the parking lot. The agents followed Bridgewater and executed a traffic stop.

The agents asked Bridgewater if he would talk to them and he agreed. Bridgewater admitted that he had met Stephen on Grindr the previous day and that he had traveled to Marion to meet him. Bridgewater denied meeting Stephen for sex, although he agreed he had given Stephen that impression and it would certainly appear that way to anyone else. Bridgewater also admitted that Stephen had told him he was fifteen and that he had sent pictures of himself to Stephen. Bridgewater insisted that he was not going to perform oral sex on Stephen but was instead going to counsel him regarding his risky behavior. When questioned about the ongoing sexual nature of the communications, Bridgewater stated he only continued this way to "keep the conversation going." When asked, Bridgewater conceded that he was worried Stephen was an undercover police officer. The agents seized Bridgewater’s cell phone and released him pending further investigation.

B. Prosecution

In nearly two weeks’ time, the government charged Bridgewater with one count of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b) and one count of soliciting an obscene visual depiction of a minor in violation of 18 U.S.C. § 2252A(a)(3)(B). Approximately a week later, agents arrested Bridgewater.

After his arrest, the agents confronted Bridgewater with information recovered from his phone, including what appeared to be a thirty-second video of a thirteen to sixteen-year-old male with his genitals exposed.

Bridgewater denied ever viewing the video and told the agents that he did not know where it came from. The agents also questioned Bridgewater about a picture they found on his phone of a nude male who appeared underage. Bridgewater identified the individual as "Eli" but said he did not know his last name. Bridgewater said he believed Eli was eighteen years old and that they had exchanged nude photographs in the past. Bridgewater also asserted that he was not sexually attracted to minors.

Bridgewater eventually pleaded guilty to one count of soliciting an obscene visual depiction of a minor. The parties entered into a plea agreement wherein Bridgewater waived his appeal rights except for his right to challenge the substantive reasonableness of a sentence that "is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater)." The district court accepted Bridgewater’s guilty plea, and the parties prepared for sentencing.

C. Sentencing

At sentencing, the district court adopted the factual findings and Guidelines calculations contained in the Presentence Investigation Report (PSR) prepared by a federal probation officer. Those included determinations that Bridgewater’s offense level was twenty-one and his criminal history category was I. Ordinarily, the court noted, a level 21-I offender would have a Guidelines range of 37–46 months imprisonment but because of the 60-month mandatory minimum sentence, Bridgewater’s Guidelines range was 60 months. Both the government and Bridgewater recommended a sentence of 60 months. The district court disagreed and imposed a 78-month sentence.

The district court thoroughly explained its reasoning for imposing an above-Guidelines sentence, indicating that its sentence took into consideration the dismissed charge of attempted enticement of a minor. As the court stated:

Soliciting an obscene visual depiction of a minor. That is the charge. And there is a statutory minimum sentence that is required for that charge of five years, or 60 months. It is more than the actual calculated guideline range based on all of the other factors in the sentencing guidelines. Many times, if not most times, I have found statutory minimums and certainly sometimes maximum that have been imposed by Congress, and not -- most of them or some of them not related to any empirical study by the Sentencing Commission to be unduly harsh and not consistent with the Section 3553(a) factors and the purposes of sentencing. That is normally my judgment. But that’s not my judgment in this case. And the reason it’s not my judgment in this case is because the specific offense conduct underlying the solicitation of a visual depiction of a minor is that you made contact with someone who you believed to be a 15-year-old male and, after a little conversation or a back-and-forth, you asked him to send a picture, and that a picture in fact was sent. That pretty much is the basis for the charge that you pleaded guilty to.

And if that were all that happened, if that were the only -- if those were the only relevant facts to the statutory factors and to the purposes of sentencing then I would feel that the statutory minimum was either appropriate or could -- and may actually be more than I thought was appropriate.

The problem is, Mr. Bridgewater, your conduct went beyond that, and I cannot bury my head in the sand and uphold my responsibility to consider the relevant information that impacts the purposes of sentencing. There is uncharged conduct, or conduct involving a count that was dismissed in this case, that although that count was dismissed, the underlying information in the offense conduct is detailed in the Presentence Investigation Report. It is reliable, as set forth in the Presentence Investigation Report, and it has not been disputed. And I believe that, as a result, it’s been established by a preponderance of the evidence -- in other words, I find that the details set forth in paragraphs 10, 11, and 12 that encompass what your total conduct was, occurred more likely than not likely. And because of that, to the extent that it impacts the nature and circumstances of the offense and, as a result, impacts the purposes of sentencing, I think it is significant and I am considering it. And I have to consider it, and that is what I am considering.

I think – and not that I think – both the Supreme Court of the United States and the Seventh Circuit Court have held that it is appropriate for me to do so. The Supreme Court in the United States Versus Watts case, and the Seventh Circuit, had a chance to reconsider the same in 2017 in a case which was also a case in which I sentenced in this District Court, United States versus Holton .

And basically, under those two cases, what they represent is that the Supreme Court has authorized judges to consider at sentencing criminal conduct that is relevant to the offense of

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