United States v. Miller, No. 09-2791 (7th Cir. 04/13/2010)

Catharine Miller pled guilty to one count of traveling in interstate commerce to engage in prohibited sexual conduct with a fourteen-year- old girl in violation of 18 U.S.C. § 2423(b). At her sentencing hearing, the district court overruled Miller's objections to the presentence report and adopted the report's recommended Guidelines sentencing range of seventy to eighty-seven months. The government argued for a sentence above the Guidelines range. The court sentenced Miller to a 120-month prison term. Miller has appealed her sentence.

We vacate the sentence and remand for resentencing.

In the presentence report, the probation office recommended that the court impose an enhancement to the Sentencing Guidelines offense level for unduly influencing a minor to engage in prohibited sexual conduct. See U.S.S.G. § 2G1.3(b)(2)(B). After taking into account this and other enhancements and a reduction for acceptance of responsibility, the probation office recommended an advisory Guidelines range of seventy to eighty-seven months' imprisonment. The probation office also noted that it had not identified any factors that would warrant a departure from the Guidelines range.

The government argued for a sentence above the advisory range. In support, it offered evidence that Miller had a prior relationship with another minor-a photo album that had been seized from Miller's home. Miller's counsel objected. He said that he had not previously seen the evidence and that it had not been brought to his attention by the government during the pendency of the case.

Counsel then presented arguments regarding the appropriate sentence. The prosecutor said that the materials in the photo album reflected that Miller had a relationship with a high school-aged minor in 2004-2005. He argued that Miller would be a danger to other young girls when she got out of prison and that the court should impose a significant prison term to incapacitate her. The prosecutor started to say that while in prison, Miller could get counseling. The judge interrupted, saying that "[t]he recidivism rate of child sexual abusers is-it's massive. . . . Nothing seems to work."

The court reviewed the factors it was considering in imposing sentence.  On the issue of deterrence, the court said, "[D]eterrence just doesn't seem to have the effect that we wish that it would" but that it had nonetheless taken this factor into account. The court stated that it considered the need to protect the public from Miller to be "what this case comes down to." It stated that "the issue here is the protection of the public" and noted that "because of her intelligence and training, [the defendant] is particularly dangerous." The court imposed a 120-month prison term, followed by a lifetime period of supervised release.

A.  REASONABLENESS OF THE SENTENCE

The district court imposed a sentence that was fifty percent above the high end of the advisory Guidelines range.

When a judge sentences a defendant outside the advisory Guidelines range, "he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance. . . .[A] major departure should be supported by a more significant justification than a minor one." Gall, 552 U.S. at 50; United States v. Presbitero, 569 F.3d 691, 707 (7th Cir. 2009). The judge must give a justification that explains and supports the magnitude of the variance. United States v. Eubanks, 593 F.3d 645, 656 (7th Cir. 2010).

The record reflects that the court based its above-Guidelines sentence at least partly on its belief that sex offenders have a higher-than-normal rate of recidivism, specific deterrence does not work for them, and as a result, lengthy incapacitation is the only way to protect the public. Those factors, assuming their accuracy, would apply to all sex offenders, not just Miller. "An above- guidelines sentence is more likely to be reasonable if it is based on factors [that are] sufficiently particularized to the individual circumstances of the case rather than factors common to offenders with like crimes." United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008) (internal quotation marks and citations omitted).

Neither 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.

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 Guide-lines 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

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