In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1080
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P AUL R. B RADLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-40068-001-JPG—J. Phil Gilbert, Judge.
A RGUED O CTOBER 5, 2010—D ECIDED D ECEMBER 13, 2010
Before B AUER, W ILLIAMS, and T INDER, Circuit Judges.
P ER C URIAM. Paul Bradley pleaded guilty to traveling
in interstate commerce to engage in sexual conduct with
a minor. See 18 U.S.C. § 2423(b). The district court cal-
culated a guidelines imprisonment range of 57 to 71
months, but sentenced him to 240 months. On appeal
Bradley principally argues that his sentence rests
on speculation about his prior criminal conduct and
likelihood of recidivism, and thus is unreasonable. We
2 No. 10-1080
agree and vacate the judgment and remand for
resentencing.
I. BACKGROUND
The police arrested Bradley after spotting his car
parked on the side of the road shortly after midnight and
finding him with T.S., a 15-year-old boy. Bradley, who is
from Oregon, initially told the police that he was lost
and had stopped T.S. to ask for directions, but later
he admitted meeting T.S. through a phone chat (the
equivalent of an Internet chatroom conducted over the
telephone). Bradley eventually learned that T.S. was
younger than 18 but still traveled to Illinois to meet him.
According to the probation officer, T.S. provided con-
flicting information during his several interviews. T.S.
asserted that he had been talking on MySpace with “Alice
Bradley,” whom he thought was a 16-year-old girl. He
told the probation officer that he and Alice first
started talking the month before the defendant’s arrest,
but later he reported in his victim-impact statement that
he and Alice had been communicating for six months.
According to T.S. they had arranged to meet in Illinois
(T.S. did not say where he thought Alice was from), but
on the appointed night Bradley showed up instead and
said that Alice was waiting at a motel. At first T.S. main-
tained that he never went to the motel, but later he
said that he was there with Bradley for one night only
and that Bradley had threatened to kill him if he did not
do as he was told. That statement is at least partly
false, since security cameras at the motel recorded
No. 10-1080 3
images of Bradley and T.S. the night they were dis-
covered in the car, as well as the previous night. In his
last interview, T.S. added that Bradley had plied him
with alcohol before forcibly sodomizing him. The pros-
ecutor would later concede that this account of a
forcible rape was undermined by DNA confirmation
that semen found on a motel blanket was from T.S., who
had denied engaging in any other sexual activity. T.S.
underwent a medical examination after the offense, but
the results were not disclosed by the probation officer.
T.S. told the probation officer that after his encounter
with Bradley he started drinking heavily in order to
feel numb and help him sleep. He also said that he no
longer felt comfortable around his father. T.S.’s mother
explained that his father had told T.S. that “he got what
he deserved, if he was going to do something like that.”
She related that T.S. had suffered harassment at school,
including a fight that resulted in a broken nose. She
also expressed worry about T.S.’s present and future
sexual behavior and the safety of her younger son
when around him. T.S. attended two sessions of coun-
seling, but his deteriorating behavior at school resulted
in suspension and then placement in an alternative
school. In his victim-impact statement, he described a
recurring nightmare about waking up paralyzed, ex-
pressed feeling shame when interacting with peers, and
recounted the embarrassment and pain of getting
tested after the offense. T.S. also said he had suffered “a
great deal of public humiliation” when a local paper
printed details about the incident, including his name
and picture. That article is not sympathetic to T.S.; it
4 No. 10-1080
discloses that he misrepresented himself as an 18-year-
old on MySpace and implies that he was a willing par-
ticipant in his dealings with Bradley.
Motel records confirmed that Bradley had booked a
room for one adult and one child for both the night
he was arrested and the previous night. A search of
Bradley’s computer (presumably one he brought with
him to Illinois) uncovered evidence of two “child pornog-
raphy” images, one of them deleted, as well as what
the probation officer described as two “sex-encounter
stories” about teenage boys (Bradley’s appellate
counsel describes these as “teenage boy coming of age
stories”). According to the probation officer, the
computer also contained several hundred images of
“adult pornography,” “adult homosexual pornography,”
and “adult males in lewd poses.”
Bradley initially was charged in state court, but he told
the probation officer that he had asked his lawyer to
contact federal authorities and initiate this prosecution
because he thought the state charges were inaccurate,
he wanted the case resolved quickly, and he wanted to
be incarcerated in a federal prison in California, near
his family. (After Bradley’s federal sentencing he pleaded
guilty in state court to aggravated criminal sexual abuse.
Eight other state charges, including child abduction,
unlawful restraint, and aggravated kidnapping, were
dismissed.) In a stipulated factual basis offered in
support of his guilty plea to the § 2423(b) count,
Bradley admitted traveling from Oregon to Illinois for
the purpose of engaging in sexual conduct with a person
No. 10-1080 5
he knew to be 15 years old and using his computer to
persuade the juvenile to engage in the sexual conduct.
In Bradley’s presentence report, the probation officer
did not identify any adult or juvenile convictions, or
even prior arrests, and thus assessed no criminal history
points. The probation officer calculated Bradley’s total
offense level at 25 with a criminal history category of I,
yielding a guidelines imprisonment range of 57 to 71
months. Under U.S.S.G. § 2G1.3(a)(4), his base offense
level was 24, but two levels were added for unduly in-
fluencing a minor, id. § 2G1.3(b)(2)(B), two more levels
were added for the commission of a sex act, id.
§ 2G1.3(b)(4)(A), and three levels were subtracted for
acceptance of responsibility, id. § 3E1.1(a), (b). The proba-
tion officer did not identify any factor that would war-
rant a sentence above the guidelines range. The district
court adopted the proposed findings without objection
from the parties.
At sentencing the government requested an above-
range sentence of 87 months. The prosecutor argued that
a sentence within the range would not adequately
reflect T.S.’s suffering—his removal from school and
his picture being printed in a local newspaper—and
suggested an increase equivalent to a two-level upward
adjustment for a vulnerable victim, see U.S.S.G. § 3A1.1(b).
The prosecutor, who had not met with T.S., acknowl-
edged that some of his distress might relate to diffi-
culties surrounding the disclosure of his sexual iden-
tity. The prosecutor also commented that he finds
it difficult to accept that convictions for possessing
6 No. 10-1080
child pornography often result in a higher imprison-
ment range than convictions for crimes, like Bradley’s,
that actually involve sexual contact with a minor.
Defense counsel, on the other hand, pressed the
district court to impose a 60-month sentence, high-
lighting Bradley’s cooperation with the federal inves-
tigation, his lack of criminal history, and the fact that
T.S. had suffered no physical injury. Defense counsel
conveyed regret about the newspaper’s identification
of T.S., but maintained that Bradley should not be pun-
ished for the paper’s actions. Defense counsel insisted
that Bradley’s actions were out of character, and he
reminded the court that until his arrest Bradley had
earned an education and worked his entire life, had
been married for nearly 32 years, was an active father
to four daughters, and volunteered at his church.
During his allocution, Bradley told the district court
that he met T.S. in a phone sex chatline for adult men,
at which time T.S. had said he was an 18-year-old
high school senior. Bradley’s assertion that he initially
thought T.S. was 18 is consistent with the newspaper
report that T.S. was misrepresenting his age on MySpace
as 18. Bradley maintained that he was upfront with
T.S. about his own age and said he began questioning
whether T.S. was 18 after seeing his picture on “Facebook”
and receiving nude pictures from T.S. (This photo of
T.S. may be the “child pornography image” found on
Bradley’s computer, but the record is not conclusive,
and apparently the lawyers for neither side looked at
the image.) Bradley admitted knowing that T.S. was
No. 10-1080 7
underage by the time they met in Illinois, but he insisted
that he never deceived T.S. about his intentions, or intimi-
dated him, or used or threatened violence. Bradley ex-
pressed remorse and assured the court that he had
“never done anything like this before” and would “never
do anything like it again.” The court interrupted him,
asking if T.S. was “the first,” to which Bradley re-
sponded: “The first underage? Yes.” Bradley concluded
by vowing never again to use a social-networking site
or phone chat or do anything to undermine his chances
of reconnecting with his daughters or society in general.
The district court, unpersuaded by Bradley’s words,
characterized him as “Dr. Jekyll and Mr. Hyde” and a
child predator and told him:
But in truth in fact, Mr. Bradley, you are a pathetic
person. I can’t think of a more calculated and
heinous crime upon children than this one. The only
thing worse you could have done to this child was
to have killed him. But wait a second. You did kill
him. You killed his spirit, his self-esteem, his confi-
dence in himself, his security, and his ability to cope
with life. You have killed the person he was, for the
victim here, T.S., will never be the same. And he will
likely go through the rest of his life in living hell
because of you.
The court, having read a letter from Bradley’s 78-year-old
mother in which she quotes The Merchant of Venice in
asking the court to temper justice with mercy, responded
by paraphrasing its favorite philosopher, the Peanuts
character Snoopy, and telling Bradley: “’You are the
8 No. 10-1080
crabgrass on the lawn of life.’ And you know something,
Mr. Bradley? You are lucky that you are living in this
country and not in one of the middle eastern countries
where you would be executed for this crime.” The
court asserted that the imprisonment range was “so
inadequate under the facts of this case that to even con-
sider a guideline sentence would be a travesty of justice,”
and instead, the court continued, the “facts of this case
present the exceptional circumstances that call for a
sentence near the top of the statutory range” of 30 years.
“In fact,” the court told Bradley, “I’ve given life sen-
tences to people who deserved it less than the sentence
I’m going to be giving you.”
The court stated that the only factor under 18 U.S.C.
§ 3553(a) weighing in Bradley’s favor was his status as
a first-time defendant in a criminal prosecution. But the
court rejected Bradley’s assertion that he had never
before engaged in sex with a minor:
This doesn’t mean, however, that you haven’t com-
mitted other crimes. It doesn’t mean that you’ve
lived a law-abiding life. It just means you haven’t
been caught and charged with other crimes. Even
paragraph 10 of your presentence report states that
your computer had child pornography images as
well as other images of pornography on it. I can’t
help but to wonder how many other T.S.’s of yours
are out there. You, obviously, operated your criminal
activity under the radar.
The court then analyzed the other § 3553(a) factors:
Factor one of 3553(a) asks this Court to consider
the nature and circumstances of the offense, and that
No. 10-1080 9
is something I don’t think I need to repeat. For as I
said earlier, this was a heinous crime committed
against a victim here that will have a life-long lasting
impact on his family, too. Even the history and charac-
teristics go against you when you consider what
was found on your computer.
Factor two, the need for the sentence imposed, A, to
reflect the seriousness of the offense, to promote
respect for the law, and to promote just punishment
for the offense. Other than possibly a terrorist attack,
I can’t think of a more serious offense than what was
committed here, a crime against our children. And
whether or not, you know, he willingly, in your
mind, engaged in sexual conduct with you, the fact
is he was 15 years old and you knew better. You
should have walked away, but you didn’t. And
you’re going to pay the price for not walking away.
But to promote respect for the law and to provide
just punishment, a stiff sentence is necessary. To afford
adequate deterrence to criminal conduct, this factor
cries out for an above-guidelines sentence in order
to send a message to other pedophiles and perverts
this society will not tolerate this conduct.
Regarding the need to protect the public, the court
stated, “There is little question in my mind that the
public and society needs to be protected from Paul
Bradley for a long time, and that if released too soon, the
Court believes you would reengage in the same activity
that you are charged with here.” The court then told
Bradley:
10 No. 10-1080
I am not a medical doctor, but you have to be a sick
individual to have done what you did. I don’t know
whether educational or medical treatment will help
you, but it’s obvious you need treatment, both educa-
tional and medical if you are ever going to be
able to live a law-abiding life once released. And con-
sidering the nature of this offense, that treatment
may take a long time.
The court concluded by sentencing Bradley to 240
months’ imprisonment, 169 months above the high end
of the guidelines range.
II. ANALYSIS
Bradley argues that the district court violated his right
to due process by speculating that he had committed
this type of crime before and would do it again if
released too soon. Bradley also argues that the court
overstepped by equating T.S.’s suffering to death, and
erroneously attributed his emotional distress to
Bradley’s crime rather than being outted to his family
and classmates. At oral argument, the government con-
ceded that no evidence in the record directly supports
the court’s assumptions about Bradley’s past and his
risk of recidivism. But still, says the government, the
court adequately justified its beliefs about Bradley by
referencing the child pornography and stories of sex-
ual encounters involving teenage boys found on his
computer and choosing to disbelieve Bradley’s dec-
laration that his encounter with T.S. was his first with a
child. The government also argues that the court appro-
No. 10-1080 11
priately concluded that T.S.’s trauma resulted from
the offense. And in any event, the government insists,
Bradley forfeited these objections to his sentence
because he did not raise them to the district court.
The government’s forfeiture argument fails, as we
have made clear that a defendant need not “complain
about a judicial choice after it has been made.” United
States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009), cert.
denied, 130 S. Ct. 1137 (2010); see United States v. Paul, 542
F.3d 596, 599 (7th Cir. 2008); United States v. Cunningham,
429 F.3d 673, 679-80 (7th Cir. 2005). As for Bradley’s
complaint that the district court overstated T.S.’s
suffering, the only evidence of T.S.’s distress comes from
his own shifting accounts given to the probation officer.
No reports from T.S.’s counseling sessions or from
any physician or psychologist were presented. The gov-
ernment points out that “negative emotional conse-
quences” naturally result from this type of offense, and
surely this is true. But the question here is one of
degree, and nothing in the record suggests consequences
of the magnitude the district court described.
In our view, however, the greater concern is the
absence of support for the district court’s assumptions
that Bradley had committed undiscovered crimes and
thus was likely to commit more if released. Bradley
rightly questions the propriety of the court’s disparaging
comments, particularly the glib response to his
mother’s plea for mercy. We recently observed that a
“litany of inflammatory remarks” can undermine the
entire analysis of a sentencing judge. United States v.
12 No. 10-1080
Figueroa, 622 F.3d 739, 743-44 (7th Cir. 2010); see United
States v. Lopez, 974 F.2d 50, 52 (7th Cir. 1992); United States
v. Schneider, 910 F.2d 1569, 1571 (7th Cir. 1990). Here, the
court’s unnecessarily harsh and exaggerated language
by itself gives us pause, but when we also consider the
speculation underlying the court’s reasons for the
extreme variance from the guidelines range, we simply
cannot conclude that the court imposed a reasonable
sentence.
Appellate courts review the reasonableness of sen-
tences for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007). We must first ensure that the sen-
tencing court made “no significant procedural error,”
including “selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence.” Id. A defendant has a due process
right to be sentenced based on accurate information,
and the threshold for accuracy is whether the informa-
tion has “sufficient indicia of reliability to support its
probable accuracy.” United States v. Pulley, 601 F.3d 660,
665 (7th Cir. 2010). Sentencing judges necessarily have
“discretion to draw conclusions about the testimony
given and evidence introduced at sentencing,” but
“due process requires that sentencing determinations
be based on reliable evidence, not speculation or un-
founded allegations.” United States v. England, 555 F.3d
616, 622 (7th Cir. 2009), cert. denied, 2010 WL 3153546
(2010); see United States v. Mays, 593 F.3d 603, 608 (7th Cir.
2010), cert. denied, 130 S. Ct. 3340 (2010); Pulley, 601 F.3d
at 665; United States v. Rollins; 544 F.3d 820, 838 (7th
Cir. 2008); United States v. Barker, 467 F.3d 625, 629-30 (7th
No. 10-1080 13
Cir. 2006); United States v. Jones, 454 F.3d 642, 652 (7th Cir.
2006).
A conclusion is more likely to be sustainable if the
underlying analysis is “sufficiently particularized to the
individual circumstances of the case rather than factors
common to offenders with like crimes.” United States
v. Miller, 601 F.3d 734, 739 (7th Cir. 2010). For example,
we affirmed an above-guidelines sentence when the
district court detailed ten specific reasons supporting
its conclusion that the defendant posed a particular risk
for recidivism. United States v. Jordan, 435 F.3d 693, 697
(7th Cir. 2006). On the other hand, we recently
remanded for resentencing where the district court
relied upon its unsupported beliefs about recidivism
rates for child sex offenders as a reason to sentence the
defendant above the guidelines. Miller, 601 F.3d at 740.
The defendant in Miller was a 33-year-old female who,
like Bradley, had no criminal record. Id. at 735-36. She
pleaded guilty to traveling in interstate commerce to
engage in prohibited sexual activity with a 14-year-old
she met online. Id. Miller’s imprisonment range was 70
to 87 months, but the court sentenced her to 120
months based, at least in part, on an unsubstantiated
belief that recidivism rates for child sex offenders are
“massive” and that treatment options are bleak. Id. at
739. Neither the government nor the court had identified
any supporting evidence about recidivism, either in
general or about Miller in particular, though the govern-
ment presented a photo album cataloging Miller’s
previous relationship with another young teenage girl.
Id. at 736, 739. On appeal we were troubled that the
14 No. 10-1080
district court’s statements, even if true, applied to all sex
offenders and were not specific to Miller. Id. at 739.
Miller provided us with studies indicating lower recidi-
vism rates for females and the availability of effective sex-
offender treatment. Id. at 739-40. After considering
these studies and the dearth of evidence specific to
Miller’s recidivism in the record, we concluded that the
district court’s beliefs were, at best, subject to debate
and therefore inadequate to justify the above-guidelines
sentence. Id. at 740.
Bradley argues that the district court, as in Miller,
improperly speculated that he would recidivate. The
government counters that in this case the district court
made an individualized determination based upon
“specific evidence” that Bradley needed a lengthy
sentence to prevent him from committing the same
crime again. But that contention is not supported by
the record. In fact the district court went further out on
the limb than the judge did in Miller: instead of making
a questionable prediction about future behavior based
on a single episode of deviant conduct, the judge in
this case made a prediction about future conduct based
on rank speculation about other, multiple instances of
deviant behavior. Indeed, in Miller the defendant’s
photo album confirmed the existence of a prior under-
age victim, but no similar evidence is present here. More-
over, any individualized determination appears limited
to the court considering Bradley’s possession of child
pornography, lack of criminal history, and assertion that
he had never done this before and concluding that he
was a below-the-radar pedophile who would recidivate.
No. 10-1080 15
Possession of child pornography is a separate offense
that the court properly considered, Mays, 593 F.3d at 609-
10, but it is unclear how the court connected the pos-
session of child pornography with the conclusion that
Bradley had committed this crime before and would
commit it again.
This conclusion suffers from the same defect as in
Miller—the district court relied on its unsubstantiated
belief that possessors of child pornography inevitably
are child sex offenders. Such speculation cannot survive
due process challenge. See United States v. Newman, 614
F.3d 1232, 1238-39 (11th Cir. 2010) (remanding
when sentencing court concluded without support in
record that defendant brought his son to Middle East
because it would be difficult for anyone to find him
there); England, 555 F.3d at 623 (remanding when pre-
ponderance of evidence failed to support district
court’s finding that defendant would have attempted
murder had he been out on bond). The government
argues that, despite the speculation, the district court
still imposed a reasonable sentence and provided an
adequate explanation by discussing the sentencing
factors listed in 18 U.S.C. § 3553(a). But the evaluation
of those factors was flawed from the inception because
the court’s assessment of the very first factor—the
nature and circumstances of the offense and Bradley’s
history and characteristics, see id. § 3553(a)(1)—rests on
speculation rather than evidence bearing “sufficient
indicia of reliability.” Pulley, 601 F.3d at 665. And this
skewed view of the first factor necessarily colored the
court’s view of the remaining § 3553(a) factors. Because
16 No. 10-1080
the district court based Bradley’s sentence on its specula-
tion about past crimes and his potential for recidivism,
we vacate Bradley’s sentence and remand for resentencing.
On a final note, Bradley also argues that the district
court did not explicitly adopt a version of the disputed
facts surrounding the offense. The government responds
that the court adopted the findings in the presentence
report. Yet material factual discrepancies abound in
the presentence report. The bottom line is the same—
Bradley engaged in illegal sexual conduct—but the
journey there remains largely up to debate, as Bradley’s
and T.S.’s accounts are wholly incompatible. The
district court, then, as a first step to considering the
appropriate sentence, will need to resolve these disputed
issues of fact. See F ED. R. C RIM. P. 32(i)(3)(B); United
States v. Dean, 414 F.3d 725, 727 (7th Cir. 2005).
III. CONCLUSION
Bradley’s sentence is V ACATED , and this case is
R EMANDED for further proceedings consistent with
this opinion. Circuit Rule 36 shall apply on remand.
12-13-10