09-2791 U.S. v. Miller

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Sentencing
Sexual conduct; recidivism

Unsupported opinions that sex offenders are more likely to reoffend than other defendants cannot support an above-guideline sentence.

"[N]either party presented evidence that supported the district court's views about recidivism and deterrence of sex offenders, nor did the court provide any support for them. As Miller has argued on appeal, the court's comments about the rate of recidivism may be contrary to studies we have previously cited. See United States v. McIlrath, 512 F.3d 421, 424 (7th Cir. 2008) (citing R. Karl Hanson & Kelly E. Morton-Bourgon, 'The Characteristics of Persistent Sexual Offenders: A Meta- Analysis of Recidivism Studies,' 73 J. Counseling & Clinical Psych. 1154 (2005)). And another study by one of the same authors, which Miller also cites, suggests that the recidivism rate for female sex offenders is even lower. See Franca Cortoni & R. Karl Hanson, 'A Review of the Recidivism Rates of Adult Female Sexual Offenders' (May 2005), available at http://www.csc-scc.gc.ca/text/rsrch/ reports/r169/r169_e.pdf (last visited Apr. 8, 2010). In addition, the United States Department of Justice has reported that sex offender treatment programs can be effective under appropriate circumstances to reduce, to some extent, the potential for recidivism. See Center for Sex Offender Management, U.S. Dept. of Justice, 'Myths and Facts About Sex Offenders' (Aug. 2000), available at http://csom.org/pubs/mythsfacts.html (last visited Apr. 8, 2010)."

"We do not intend by citing these studies to endorse their accuracy. And there may be reasons why, even if accurate, they do not apply to Miller's case. Our point is that the district court's comments about the likelihood of recidivism and the inefficacy of sex offender treatment, though perhaps consistent with commonly held views, are subject to debate. Given the absence of support in the record for the court's views, and for the other reasons we have cited, we conclude that the court failed to provide sufficient support for a sentence that was fifty percent above the high end of the advisory Guidelines range. '[A] sentencing judge should support an above-guidelines sentence with compelling justifications.' United States v. Gooden, 564 F.3d 887, 890-91 (7th Cir. 2009) (internal quotation marks and citation omitted). As a result, we conclude the sentence was unreasonable."

Vacated and Remanded.

09-2791 U.S. v. Miller

Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Kennelly, J.

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