USA v. Morris, 99-1956

• Decision Date: 22 February 2000
• Docket Number: No. 99-1956,99-1956
• Citation: 204 F.3d 776
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Michael L. Morris, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 776

204 F.3d 776 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Michael L. Morris, Defendant-Appellant.

No. 99-1956

In the United States Court of Appeals For the Seventh Circuit

Submitted November 1, 1999

Decided February 22, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-CR-213--Rudolph T. Randa, Judge.

Before Easterbrook, Ripple, and Diane P. Wood, Circuit Judges.

Easterbrook, Circuit Judge.

When he was 44 years old, Michael Morris enticed a 14-year-old girl to enter into a sexual relationship with him, showering her with promises and presents. Morris pleaded guilty to two counts of traveling across state lines (from Indiana, through Illinois, to Wisconsin) for the purpose of engaging in a sexual act with a juvenile. 18 U.S.C. sec. 2423(b). He was sentenced to 36 months' imprisonment. Section 2A3.2 of the Sentencing Guidelines, which the district judge concluded is most appropriate to Morris's crimes, prescribes a base offense level of 15 for criminal sexual abuse of a minor. The judge added 2 levels for multiple counts and deducted 3 for acceptance of responsibility, producing a final offense level of 14. For a first offender (which Morris is) the level 14 sentencing range is 15 to 21 months' imprisonment. But the district court added 5 levels, imposing a sentence in the range of 30-37 months for offense level 19. Morris contends that departure took him by surprise and that he is entitled to a new sentencing hearing at which he can respond more effectively to this possibility.

Application notes to sec. 2A3.2 say that an upward departure may be appropriate if the defendant either committed the sexual act in furtherance of a commercial scheme (such as prostitution or the production of pornography) or has a prior conviction for similar sexual conduct. Neither is true of Morris. The district judge nonetheless thought departure appropriate, for several reasons. One is that sec. 2423(b) makes it a crime to travel across state borders for the purpose of engaging in sexual acts; it is possible to violate this statute by travel plus purpose without engaging in any sexual acts. Morris and the girl engaged in sexual intercourse at least six times, and the judge thought that this made his offense significantly more serious. Whether this justifies a departure is open to question, however, for sec. 2A3.2 covers statutory rape. Punishment for at least one sexual act thus is included in the Guideline, even though not in the statute--though perhaps additional sexual acts justify additional punishment. The district judge also observed that documents seized from Morris's apartment in Indiana imply that he seduced at least one other juvenile; this led the judge to characterize him as a sexual predator. The judge also observed that Morris took pictures of the girls, used email and Internet chat rooms to entice them, and sometimes did not wear condoms during intercourse. Nothing in the record suggests that Morris has a disease that can be transmitted by sexual contact, but the risk of pregnancy and its complications remained. Compare United States v. Shannon, 110 F.3d 382 (7th Cir. 1997) (en banc) (sexual intercourse with a girl under 14 is a "crime of violence"), with United States v. Thomas, 159 F.3d 296 (7th Cir. 1998) (sexual intercourse with a girl of 16 is not a "crime of violence" because the risks are lower). Taking pictures of undressed adolescents, transporting such pictures across state lines, and using computers to lure juveniles to assignations, all are federal crimes. 18 U.S.C. secs. 2252(a), 2252A(a), 2422(b). These differences between Morris's deeds and a simple violation of sec. 2423(b), coupled with his additional but uncharged crimes, justify a significantly higher sentence, the district court concluded. The five extra levels just about doubled the sentencing range, and Morris contends that the increase is excessive even if some departure is appropriate.

Before the date of sentencing, neither the prosecutor nor the district judge suggested that an upward departure was under contemplation. This is the foundation of Morris's argument--for Burns v. United States, 501 U.S. 129 (1991), holds that notice is essential to any sentence above the norm. When Morris's lawyer protested at sentencing about the surprise, and his consequent unpreparedness to meet with evidence or argument the possibility of departure, the district judge did not identify anything that should have put Morris on guard. Instead the judge remarked that counsel's lack of preparation was irrelevant because "I don't think any argument would have persuaded the Court any different than what its-- what its conclusion was and is."

The United States does not defend the view that notice was unnecessary because the judge had made up his mind in advance. Instead the prosecutor submits that notice came from two sources: the presentence report and the prosecutor's comments at sentencing. We discount the latter, for a recommendation at the hearing does not fulfil the requirement of warning in advance of the hearing. As for the presentence report: the Probation Department neither recommended a departure (para.119 of the report disclaimed any recommendation) nor highlighted facts that might support one. But para.120 of the report did say:

Pursuant to U.S.S.G. sec. 5K2.0, the Sentencing Court may impose a sentence outside the range established by the applicable guidelines if the Court finds that there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. Pursuant to U.S.S.G. sec. 4A1.3 (e), if reliable information indicates that prior similar adult criminal conduct, not resulting in a criminal conviction, exists, the Court could consider an upward departure as the criminal history category does not adequately reflect the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes.

This looks for all the world like boilerplate from a word processor's glossary. It is generic and could apply to every criminal case. Burns requires more than this. Otherwise one might as well say that the Guidelines Manual itself notifies defendants about the possibility of departure, and have done with it.

Burns stated that the "notice must specifically identify the ground on which the district court is contemplating an upward departure." 501 U.S. at 138-39 (footnote omitted). Paragraph 120 does not identify either facts or rationale with specificity. "In the ordinary case, the presentence report or the Government's own recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support such a departure." Id. at 135 (footnote omitted). Our opinions since Burns reiterate that the notice must refer not only to the rationale for departure but also to the facts that support this theory of departure. See, e.g., United States v. Ewing, 129 F.3d 430, 436-37 (7th Cir. 1997) ("a presentence report listing specific factors that may warrant an upward departure provides adequate notice"); United States v. Johnson, 53...