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Sentencing — mitigating factors

United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — mitigating factors

Where the defendant failed to argue mitigating factors at sentencing, the sentence is affirmed.

“We are not persuaded that the district court overlooked any mitigating factor requiring a response. Chapman’s ‘low risk’ of reoffending, the first of the grounds cited in his brief, cannot be characterized as a principal argument at sentencing. Although this ground is mentioned in Chapman’s sentencing memorandum, he did not even mention it at the sentencing hearing. More importantly, the court was not required to discuss Chapman’s purportedly low risk of recidivism because there is no factual basis in the record to support the contention. In Chapman’s sentencing memorandum his lawyer asserted that the defendant’s age along with ‘[s]cientific recidivism studies, his minimal criminal history, strong work ethic, and firm acceptance of responsibility indicate that any risk of recidivism is extremely low.’ But a lawyer’s ‘unsupported statements are, of course, not evidence,’ Diaz, 533 F.3d 578, and here counsel did not submit reports or affidavits from experts, or any other evidence, to demonstrate a causal relationship between Chapman’s criminal history, employment history, and acceptance of responsibility and his individual likelihood of reoffending. See Tahzib, 513 F.3d at 695 (explaining that defendant bears burden of proving mitigating factors); cf. Mantanes, 632 F.3d at 375; Coopman, 602 F.3d at 817-18; Curby, 595 F.3d at 796-98; United States v. Nurek, 578 F.3d 618, 626 (7th Cir. 2009). In her sentencing memorandum counsel cited to recidivism studies as support for the assertion that the rate of reoffending ‘for sex offenders is low,’ yet those studies concern ‘sex offenders’ generally. We have called it “a mistake to lump together different types of sex offender” and emphasized that a pedophilic sex offender like Chapman ‘who has committed both a child-pornography offense and a hands-on sex crime is more likely to commit a future crime, including another hands-on offense, than a defendant who has committed only a child-pornography offense.’ United States v. Garthus, 652 F.3d 715, 720 (7th Cir. 2011), cert. denied, 132 S. Ct. 2373 (2012).”

Affirmed.

11-3619 U.S. v. Chapman

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Per curiam.


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