Sentence vacated for ‘rank speculation’

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Courts can’t impose above-guideline sentences on sex offenders based on speculative and unsubstantiated beliefs about their past history and likelihood to reoffend.

The 7th Circuit on Dec. 13 vacated a 240-month sentence, imposed for traveling in interstate commerce to engage in sexual conduct with a minor, despite a guideline range of only 57 to 71 months.

Paul Bradley was convicted of the offense, for traveling from Oregon to Illinois to have sex with a 15-year-old boy. He had no prior criminal record, and thus, despite some aggravating factors under the guidelines, his sentencing range was only 57-71 months.

Nevertheless, the district court sentenced him to 240 months. In the course of doing so, the court made several statements that the 7th Circuit found “unnecessarily harsh and exaggerated.”

But while those statements caused concern to the court, the reason it vacated the sentence was that the district court based in on speculation rather than reliable and accurate information.

The court relied heavily on a case it decided earlier this year that also involved an above-guideline sentence for the same offense, U.S. v. Miller, 601 F.3d 734 (7th Cir. 2010).

Miller had received a 120-month sentence, despite a guideline range of 70 to 87 months. The 7th Circuit reversed, based on the district court’s “unsubstantiated belief that recidivism rates for child sex offenders are ‘massive’ and that treatment options are bleak.” Id., 601 F.3d at 739.

Discussing the Miller opinion in the case at bar, the court observed, “On appeal we were troubled that the district court’s statements, even if true, applied to all sex offenders and were not specific to Miller.”

Here, the court found, “the district court went further out on a limb than the judge did in Miller.”

Specifically, the court cited “rank speculation” by the district court that Bradley’s lack of prior criminal history “just means you haven’t been caught and charged with other crimes. … You, obviously, operated your criminal activity under the radar.”

The court acknowledged that, in other parts of the sentencing hearing, the court considered various 18 U.S.C. 3553(a) factors. But the court found that the “skewed view” of Bradley’s history and characteristics “necessarily colored the court’s view of the remaining sec. 3553(a) factors.”

The court concluded, “Because the district court based Bradley’s sentence on its speculation about past crimes and his potential for recidivism, we vacate Bradley’s sentence and remand for resentencing.”

Analysis

Three elements of the court’s opinion stand out.

First, it demonstrates that the opinion in Miller was no fluke; district courts can’t impose above-guideline sentences based on the assumption — “even if true” — that sex offenders can’t be rehabilitated.

Second, the court detailed numerous instances of what it found troubling language by the district court.

The district court: called Bradley “a pathetic person”; glibly quoted from Snoopy, the Peanuts character; said that only a terrorist attack could be more serious; and said an above-guideline sentence was necessary “in order to send a message to other pedophiles and perverts this society will not tolerate this conduct.”

While this language was not the ultimate basis for vacating the sentence, the court did say that such inflammatory remarks can undermine the entire analysis of a sentencing judge, citing another recent case, U.S. v. Figueroa, 622 F.3d 739 (7th Cir. 2010).

Finally, the district court said that one of the reasons it was imposing such a long sentence was so that Bradley could get treatment, and that “may take a long time.”

The 7th Circuit never mentioned this factor in its analysis as an improper one for the district court to consider.

However, the propriety of this consideration is currently pending before the U.S. Supreme Court, and arguably such a statement is grounds for vacating a sentence, even in the absence of the other improper considerations here.

Just three days before the 7th Circuit’s opinion was issued, the Supreme Court granted certiorari on the following question: “May a district court give a defendant a longer prison sentence to promote rehabilitation, as the Eighth and Ninth Circuits have held, or is such a factor prohibited, as the Second, Third, Eleventh, and D.C. Circuits have held?” Tapia v. U.S., No. 10-5400 (cert. granted, Dec. 10, 2010).

The district court in Tapia imposed a longer sentence to enable the defendant to enter and complete a drug abuse treatment program.

The circuit court opinions upholding consideration of this factor are U.S. v. Duran, 37 F.3d 557, 561 (9th Cir. 1994), and U.S. v. Hawk Wing, 433 F.3d 622, 629-630 (8th Cir. 2006).

The circuit court opinions holding that this consideration runs afoul of 18 U.S.C. 3582(a) are: In re Sealed Case, 573 F.3d 844 (D.C.Cir. 2009); U.S. v. Manzella, 475 F.3d 152, 156-161 (3d Cir. 2007); U.S. v. Yehuda, 238 Fed.Appx. 712, 713 (2d Cir. 2007)(unpublished); and U.S. v. Brown, 224 F.3d 1237, 1242 (11th Cir. 2000).

Were the Supreme Court to find this a prohibited sentencing factor and vacate that sentence, then rationales such as the one given by the district court in this case would also be grounds to vacate sentences.

What the Court Held

Case: U.S. v. Bradley, No. 10-1080

Issue: Was a 240-month sentence reasonable, where the sentencing guideline was only 57 to 71 months?

Holding: No. Where the sentence was based on speculation regarding the defendant’s prior history and likelihood to reoffend, the sentence must be vacated.

David Ziemer can be reached at [email protected].