In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1574
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY J. JULIAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:02CR61—Rudy Lozano, Judge.
____________
ARGUED MAY 4, 2005—DECIDED OCTOBER 24, 2005
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted defendant-
appellant Timothy Julian of conspiring to travel in foreign
commerce with the intent to engage in illicit sexual conduct,
in violation of 18 U.S.C. § 2423(b) and (e), and of aiding and
abetting the transportation of an individual in foreign
commerce with the intent that the individual engage in
prostitution, in violation of 18 U.S.C. §§ 2 and 2421. The
district court sentenced him to a prison term of 300 months,
the statutory maximum term. We affirm Julian’s convic-
tions and sentence.
2 No. 04-1574
I.
As this case comes to us following Julian’s conviction by
a jury, we are obliged to view the trial evidence in a light
favorable to the government. E.g., United States v.
Carraway, 108 F.3d 745, 750 (7th Cir. 1997) (per curiam).
In November of 1997, Timothy Julian made the acquain-
tance of Robert Decker while vacationing in Acapulco,
Mexico. Decker lived in Acapulco but, like Julian, hailed
from the United States. Decker also shared in common with
Julian a sexual interest in young boys; both men, in fact,
previously had been convicted of child molestation. Julian
and Decker decided to embark on an entrepreneurial
venture in so-called “sex tourism” in Acapulco by creating
a guest house and safe haven for pedophiles, who were
sometimes referred to by the witnesses in this case as “boy
lovers,” meaning men who liked to engage in sexual acts
with male children. Julian, who was unhappy with his work
and life in the United States, hoped eventually to move to
Acapulco and manage the hotel full-time. Pending Julian’s
relocation, the men agreed that Decker, who could read and
speak Spanish, would manage the hotel, while Julian would
take responsibility for funding the operations of the hotel,
advertising, and booking its guests.
To get the business off the ground, the men found a
mansion to rent on Privada de La Marina in Acapulco which
they named Castille Vista del Mar (hereinafter, “CVM”).
CVM had six bedrooms, a gymnasium, a pool, and (as its
name suggests) a view of the ocean. At one time, it was part
of the estate owned by William Boyd, the American actor
who brought to life novelist Clarence Mulford’s cowboy hero
Hopalong Cassidy on the silver screen in the 1930s and 40s.
Julian helped to choose the property and negotiate the
terms of the lease but had to return to the States before the
lease was ready to sign, so Decker signed the lease agree-
ment for both of them. Decker signed the lease as Roberto
No. 04-1574 3
Compos Lopez, a pseudonym; and Decker made a notation
next to Julian’s name indicating that he was also signing
the lease for Julian with Julian’s power of attorney. The
lease identified both Decker (as Compos) and Julian as
tenants of the property; and it was to run for a period of one
year: January 28, 1998 to January 28, 1999. Julian paid the
deposit of approximately $3,600 on the property; he also
gave Decker an ATM card for an account he held at LaSalle
Bank in Illinois to enable Decker to make rental payments
on the property and to fund the day-to-day expenses of the
resort.
To round up customers for the hotel, Julian created a
website (to which he had the sole access code), designed
internet advertisements, and engaged in personal solicita-
tion. One of the advertisements featured a 12 year-old
boy along with an announcement that “escorts” were
provided for guests of the resort. Decker testified that in
paying for their visits to the resort, guests would initially
make a deposit to Julian’s bank account in the United
States and pay the remainder either before or upon their
arrival in Mexico.
To “staff” the hotel, Decker and Julian recruited boys
from the beaches and town square of Acapulco. The boys
ranged in age from seven to 18 years old and were from
throughout Mexico. Decker testified that it was “[e]xtremely
easy” to recruit these boys. Feb. 10, 2003 Tr. (Decker
excerpt) at 26. Some had run away from troubled homes,
while others were altogether homeless. They were lured to
CVM with promises of shelter, food, and other benefits.
Soon after arriving at the hotel, however, the boys learned
that they were expected to have sex with the hotel’s guests
as a condition of staying there. For the most part, the boys
complied, often because they had no other choice. As one of
the boys explained, “Two or three things were done by force;
two or three things were maybe done in order to get the
things they [Julian and Decker] had promised. A lot of them
4 No. 04-1574
did it because they wanted to get some money to help their
parents.” Feb. 11, 2003 Tr. (Calderon/Cesena excerpt) at 44.
The companionship and sexual services of the boys were
included in the rate Decker and Julian charged their guests.
On arrival at CVM, a guest would be offered his pick of the
four or five boys who were living at the hotel; if a guest was
not satisfied with the selection, he might be taken to the
gay beach in Acapulco to pick up another boy. Although the
guests were not required to pay the boys, they sometimes
gave the boys shoes, clothing, and other gifts. Decker urged
the boys to swim naked in the pool when a guest was
present to drum up business for themselves. One of the boys
would later testify that, according to Decker, “the more
naked we were, the better for us, because we would be able
to get more things.” Feb. 11, 2003 Tr. (Calderon/Cesena
excerpt) at 42.
David Calderon was one of the boys who was recruited
to live at CVM. Calderon testified that he was 16 or 17
years old when he lived at the hotel.1 Decker and Julian had
told Calderon that CVM was a shelter for homeless children
like himself and that they would help him. Among the
responsibilities assigned to Calderon was the task
of cleaning the guest rooms; and on one occasion, Julian
also gave him 12,000 pesos with which to pay the month-
ly rent on the property to the landlord. However, Cal-
deron quickly learned that boys staying at the resort
also were expected to sexually service the guests.2 Cal
1
Although there is some allusion in the record to the possibility
that Calderon may have celebrated his 18th birthday while
staying at CVM, Calderon indicated that he was born on June 7,
1981 and that he was 16 rather than 18 years old while resid-
ing at CVM.
2
Calderon testified that, in addition to the boys who stayed at
(continued...)
No. 04-1574 5
deron himself acknowledged having engaged in sex with
Julian.
Roberto Ezekiel Guzman Cesena stayed at CVM for a
period of five months. Cesena was born in 1985 and was
13 years old when he lived at the hotel. Cesena had been
left without a home and means of support after his uncle,
with whom he had been living, took a job in Mexico City.
Cesena had met Decker on a beach in Acapulco and had
traded sex with him for food, housing, and money. Cesena
and a friend had been living with Decker for nine months
when Julian and Decker started the hotel, and he moved to
CVM on the promise of a job.3 Cesena recalled that he had
met Julian for the first time when Decker took him to an
Acapulco apartment or hotel (not CVM) where Julian was
staying; on that occasion, Julian attempted to penetrate
Cesena with his penis. Julian later told Cesena that if he
did not wish to engage in this type of activity, he
was always free to leave CVM. Penniless and with few
options, Cesena remained at the hotel, where he was
subsequently grabbed and forcibly raped by Julian and
Decker. Cesena stuck it out for another two weeks after
that attack, hoping that Julian and Decker would honor
their promise to buy him a bus ticket to Tijuana, where his
2
(...continued)
the hotel (who ranged in age from seven or eight years old to 16 or
17), there were other boys who visited the hotel while American
guests were present. Calderon said that he knew of only one such
visiting boy who would “sleep with” Americans. Feb. 11, 2003 Tr.
(Calderon/Cesena excerpt) at 9. The record is not clear as to
whether by “sleep with” Calderon meant to have sex with a guest
or rather to spend the entire night with a guest, see id.; Calderon
did not speak English and testified through an interpreter.
3
Although Decker in his own testimony was not certain that
Cesena had ever stayed at CVM, Cesena had no doubt that he
had.
6 No. 04-1574
parents lived. When the ticket was not forthcoming, Cesena
finally decided he had had enough. He left CVM, taking a
television set with him.
Although Decker was responsible for the day-to-day
management of CVM, Julian returned to Acapulco on
several occasions to “host” the clients he had recruited to
stay at the hotel. According to Decker, Julian was at
CVM on a total of three or four occasions and while there
also made use of the sexual services of some of the young
boys.4
The advertising that Julian had prepared for CVM
attracted client Richard Coon, who had been searching
the World Wide Web for sex tourism sites and was first
alerted to the nature of CVM by an ad’s use of the term
“young guys” and by Julian’s use of the phrase “young
smooth boys” in subsequent e-mail correspondence with
Coon. Feb. 12, 2003 Tr. (vol. 3) at 30-31. After informing
Julian of his preference for boys in the range of 14 to 16
years old, Coon booked a stay at CVM for October 14
through October 22 of 1998. Coon’s all-inclusive package,
arranged through Julian, included a room, breakfasts, and
an escort for seven days at a total cost of $700.5 Julian
returned to Acapulco to host Coon’s visit to the hotel on
October 14, 1998. Julian met Coon at the airport, and he
was later present when Coon picked an escort for the
week from a group of four boys. Although the boys pre-
sented to Coon were 14 to 17 years old, Coon saw a boy he
believed to be as young as eight years old on the CVM
premises. Coon believed his chosen escort Armando, with
4
On September 11, 1998, when returning to the United States
from one of his visits to Acapulco, Julian attached a business card
to his Customs form indicating his affiliation with the hotel.
5
Decker testified that the rate for a stay at the hotel some-
times included food but always included the cost of an escort.
No. 04-1574 7
whom he engaged in mutual masturbation and oral copula-
tion, was between the ages of 16 and 17.
Later in October, during the week of Halloween, Louis
Accordini, a longtime friend of Julian’s, also came to the
resort to bring Julian some of his belongings. Julian at this
point was preparing to live in Acapulco full time. At Julian’s
urging, Accordini had considered investing in CVM, under-
standing that Julian was eventually going to run the place;
but Accordini had opted instead to assist Julian by deposit-
ing checks for the hotel into Julian’s bank account and
ensuring that there were funds in Julian’s accounts that
could be accessed at ATMs in Mexico. When Julian first
mentioned CVM to Accordini, he described it as a gay
resort. Later, Julian told him that it was a haven for men
who were sexually interested in boys, as both Julian and
Accordini were. Accordini understood that “the boy-lovers
could go down there and have their choice of males they
wanted.” Feb. 12, 2003 Tr. (vol. 3) at 55.
Accordini had visited CVM on two occasions prior to
October 1998 and had sex with a boy named Edgar, whom
he believed was 15 to 17 years old, and another named
Armando, whom he believed was 17 or 18 at the time.
Accordini became infatuated with Armando, and when
Armando told him that he wanted to come to the United
States, Accordini consulted with Julian. Julian suggested
that he (Julian) could give Armando a ride to (or near) the
border crossing, where Armando would meet up with a
“coyote” (i.e., smuggler) to take him across into the United
States. Accordini subsequently sent Julian a check for $300
to $400, assuming that Julian would use some of
the proceeds to pay for gas and other expenses and that the
rest would be given to Armando. Events proceeded as
planned, and Armando successfully crossed the border in or
around May 1999. Following the crossing, Armando tele-
phoned Accordini from Mesa, Arizona, and instructed him
8 No. 04-1574
to send him $1,300 so that he could pay his debt to
the coyote. When Accordini and Armando had difficulty
dealing with the logistics of a wire transfer of cash, Julian
suggested that they contact Michael Smith, a CVM client
and friend of Julian’s who spoke Spanish, for his help.
Julian had introduced Smith to Accordini in or around
January 1999, and Smith was familiar with the plan to
get Armando into the United States. With Smith’s help, the
wire transfer was completed, the coyote was paid, and
Armando made his way to Smith’s home in Denver, where
Smith put him on a bus to the Midwest. Armando joined
Accordini in Indiana. Officials would discover him living
there in September 1999, when they stopped by Accordini’s
home to question him about Julian. Although Accordini
would later testify that he had no intentions of prostituting
Armando, he conceded that it was his intent to pro-
vide Armando with shelter, food, clothing, and spending
money in exchange for sex.
CVM never proved to be the financially successful opera-
tion that Decker and Julian had hoped it would be. By
Decker’s estimate, a total of only eight guests stayed at the
hotel over the life of the venture. The premises were in need
of repair, at times the hotel pool was empty of water, and
electrical power to the building was intermittent; and
Decker himself proved to be an inept manager. Decker had
expected that Julian would pay him a salary for manag-
ing the property, but Julian had other intentions. Decker
took to making several bookings of his own at the hotel, the
proceeds of which he kept to himself.
Eventually, Julian and Decker parted ways. According
to Decker, in late October or November 1998, when Julian
was relocating to Acapulco, he sensed a coolness on Julian’s
part. Decker did not realize until later on that this rift
would become permanent. Julian soon moved to another
residence in Acapulco, however, and ceased his financial
support of CVM. Smith noted that when he met Julian in or
No. 04-1574 9
around January 1999, Julian was no longer staying at
CVM. Daniel Owczarzak, a former co-worker of Julian’s,
had been persuaded by Julian in the summer of 1998 to
make a deposit for a week-long stay at the hotel in Febru-
ary 1999.6 In October or November of 1998, Owczarzak
received a phone call from Julian informing Owczarzak that
“he was no longer associated with the resort” and offering
Owczarzak the opportunity to apply his deposit to another
private residence in Mexico. Feb. 12, 2003 Tr. (vol. 3) at 15.
However, so far as the record reveals, Julian did not tell
Owczarzak that CVM was no longer in business or that
Owczarzak would have to cancel his trip there. Owczarzak
declined Julian’s offer and never did make the trip to CVM;
he lost his deposit as a result.
CVM remained in business following Julian’s departure
and Decker hosted one or more customers whose stays
Julian had booked previously. Even after he stopped
visiting the hotel and communicating with Decker, Julian’s
name remained on the lease of the property and Julian did
nothing to extricate himself from that agreement or
report Decker to the authorities; nor did he ask Decker
to return his ATM card, close down CVM, or leave the
property. He did, however, cease making financial contribu-
tions to the business, leaving Decker stuck with responsibil-
ity for the final monthly rental payments.
Authorities, who had begun investigating Julian in
6
Although Julian showed Owczarzak a brochure for CVM, he did
not enlighten Owczarzak, who was neither gay nor a pedophile, as
to the true nature of the hotel. Julian asked Owczarzak whether
he might be interested in some female companionship during his
stay. When Owczarzak allowed that he might be interested in
meeting a woman in her twenties or thirties, Julian replied that
he could arrange for him to meet females “a lot younger” than
that. Feb. 12, 2003 Tr. (vol. 3) at 13.
10 No. 04-1574
1997 or 1998 for possible involvement with child pornog-
raphy, eventually learned of his involvement with CVM. On
August 22, 2002, a grand jury returned an indictment
charging Julian with two offenses. Count One of the
indictment charged that Julian had conspired with others
to travel in foreign commerce for the purpose of engaging in
illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) and
(e). The illicit sexual conduct alleged in this case was sexual
activity with a person or persons under the age of 18 under
circumstances that would constitute an offense under
Chapter 109A of the U.S. Criminal Code if the activity had
taken place within the special maritime and territorial
jurisdiction of the United States. See 18 U.S.C. §§ 2423(f)(1)
(defining “illicit conduct”); 2246(2) (defining “sexual act”).
Knowingly engaging in a sexual act with a person under the
age of 18 amounts to a crime within the maritime or
territorial jurisdiction of the United States when the
juvenile is incapable of appraising the nature of the act, see
18 U.S.C. § 2242(2)(A), or when the juvenile is 12 to 15
years old and at least four years younger than the person
engaging in sex with him, see 18 U.S.C. § 2243(a). Count
Two of the indictment charged Julian with aiding and
abetting the transportation of a Mexican national into the
United States with the intent that the individual engage in
prostitution, in violation of 18 U.S.C. §§ 2 and 2421. A petit
jury convicted Julian on both charges at the conclusion of a
trial in February 2003.
The district court sentenced Julian pursuant to the U.S.
Sentencing Guidelines in March 2004. At sentencing, the
court determined that Julian was subject to an increased
statutory maximum prison term of 15 years for conspiracy
that had taken effect on October 30, 1998. The court
reasoned that the new statutory maximum applied be-
cause the conspiracy in this case had continued beyond
October 30 and Julian, as one of the conspirators, was liable
for any conspiratorial acts that took place after that date.
No. 04-1574 11
The court also made a number of factual determinations
that had the effect of increasing the sentencing range called
for by the Guidelines. These included findings that Julian’s
offense involved the use of threat or force, see U.S.S.G.
§ 2A3.1(b)(1) (Nov. 2003), that the crime involved victims
under the age of 12, see § 2A31.1(b)(2)(A), and that it also
involved victims who were otherwise vulnerable because
they were homeless and destitute, see § 3A1.1(b)(1). The
court’s sentencing findings resulted in a total offense level
of 41, which coupled with Julian’s criminal history called for
a sentence in the range of 324 to 405 months. However, the
maximum penalties provided for by statute totaled 300
months—15 years on Count One and 10 years on Count
Two. In sentencing Julian to that maximum term, the court
observed that the case called for “a very significant sen-
tence” because it dealt with children, whom the court
described as “probably the most important asset we have in
this country”. March 2, 2004 Sent. Tr. at 149-50. The court
added that the sentence must be one that would, among
other things, deter similar crimes, allow the defendant a
sufficient period of rehabilitation, and fulfill the court’s duty
to protect society, and reflect Julian’s lack of remorse or
regret. In the court’s view, a sentence at the statutory
maximum fulfilled these purposes.
12 No. 04-1574
II.
A.
As we have noted, Count One of the indictment charged
Julian with conspiring to travel in foreign commerce with
the intent to engage in illicit sexual conduct, in violation of
18 U.S.C. § 2423(b) and (e). Pursuant to section 103(2) of
the Protection of Children from Sexual Predators Act
of 1998, which took effect on October 30 of that year,
Congress amended section 2423 to increase the maximum
penalty for violating the statute from 10 to 15 years. P.L.
No. 105-314, 112 Stat. 2974. The indictment in this case
alleged that the conspiracy began on or about January 28,
1998 and continued until February 1999. R. 1 at 1. There-
fore, the conspiracy allegedly began before the enhanced
penalty took effect; and only if the conspiracy continued
beyond the effective date, as the indictment alleged, could
Julian be subject to the enhanced penalty. See United States
v. Torres, 901 F.2d 205, 226-27 (2d Cir. 1990).
However, the import of the effective date of the increased
statutory maximum evidently was not something that
the parties or the court recognized until after the trial
concluded in this case. Omitted from the jury instructions
was any mention of that date. Instruction number 18
advised the jury of the elements it must find in order to
convict Julian of a section 2243(b) conspiracy, but that
instruction did not apprise the jury that it was under any
obligation to consider whether the alleged conspiracy
extended beyond October 30, 1998. R. 74, Instr. No. 18.
Instruction number 35 did reference the dates specified in
the indictment as marking the beginning and the end of the
charged conspiracy. That instruction advised the jury that
“[t]he government must prove that the offense happened
reasonably close to those dates but is not required to prove
that the alleged offense happened on those exact dates.” R.
74, Instr. No. 35. But the jury was nowhere told that it
No. 04-1574 13
must find beyond a reasonable doubt that the conspiracy
extended beyond the effective date of the amended version
of the statute.
At sentencing, Julian objected to use of the amended
version of the statute with its enhanced maximum penalty.
Julian argued that he had fallen out with Decker and
withdrawn from the conspiracy before October 30, 1998 and
that, because he was no longer a participant when the
enhanced penalty took effect, he could not be subject to that
penalty. The district court overruled Julian’s objection,
finding that the conspiracy remained alive beyond October
30, 1998, and that Julian had not committed the type of
affirmative act that would constitute a withdrawal from the
conspiracy and exonerate him from liability for acts subse-
quently committed by his co-conspirators. March 2, 2004
Sent. Tr. at 117-19.
Although Julian contends that the district court’s findings
were erroneous as a matter of fact—a contention we reject
for the reasons we discuss infra at 16-17—his principal
objection to those findings on appeal sounds in the Consti-
tution. In view of the significance of the end date of the
conspiracy and Julian’s participation in it, Julian argues
that it was for the jury to determine whether or not the
conspiracy continued beyond October 30, 1998, and whether
Julian had withdrawn from the conspiracy before that date.
As it was the sentencing judge rather than the jury that
made these determinations, Julian argues that he was
deprived of his Sixth Amendment right to a jury finding as
to all essential elements of the conspiracy charge. See
generally Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.
Ct. 2348, 2362-63 (2000) (“any fact that increases the
penalty for a crime beyond the prescribed statutory maxi-
mum must be submitted to a jury and proven beyond a
reasonable doubt”). This constitutional argument was not
one that Julian made below, so our review is solely one for
plain error. See, e.g., United States v. Martinez, 289 F.3d
14 No. 04-1574
1023, 1027 (7th Cir. 2002); Fed. R. Crim. P. 52(b).
In order to establish plain error entitling him to relief, an
appellant must establish each of four elements: (1) that an
error occurred, (2) that the error was plain, (3) that
the error affected his substantial rights, and (4) that the
error is one seriously affecting the fairness, integrity or
public reputation of judicial proceedings, such that the court
should exercise its discretion to correct the error. Johnson
v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544,
1548-49 (1997); United States v. Olano, 507 U.S. 725, 732,
113 S. Ct. 1770, 1776 (1993); see also, e.g., United States v.
Nance, 236 F.3d 820, 825-26 (7th Cir. 2000). Julian can
meet the first three of these elements, but not the fourth.
We agree with Julian that because the alleged conspiracy
spanned two different versions of the statute with different
maximum penalties, the question of whether the conspiracy
extended beyond the effective date of the amended version
was one that had to be resolved by the jury rather than the
judge. Both the old and new versions of the statute pro-
scribed the same offense, but the newer version increased
the maximum penalty to which a violator is exposed. The
increase in the penalty, which took effect after the conspir-
acy in this case was underway, therefore implicated Julian’s
ex post facto rights. Article I, section 9, clause 3 of the
Constitution prohibits Congress from enacting any ex post
facto law. Although the classic example of an ex post facto
law is one that criminalizes conduct after it has already
occurred, see Collins v. Youngblood, 497 U.S. 37, 42, 110 S.
Ct. 2715, 2719 (1990) (quoting Calder v. Bull, 3 U.S. (3
Dall.) 386, 390 (1798) (opinion of Chase, J.)), it also includes
a law that “ ‘changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime when
committed,’ ” Miller v. Florida, 482 U.S. 423, 429, 107 S. Ct.
2446, 2450 (1987) (quoting Calder, 3 U.S. (3 Dall.) at 390
(opinion of Chase, J.)). Thus, if a defendant completes a
crime before an increased penalty takes effect, it would
No. 04-1574 15
violate his right not to be subject to ex post facto legislation
to impose the increased penalty upon him. E.g., Torres, 901
F.2d at 226-27. If, on the other hand, the defendant was
engaged in a continuing crime, such as a conspiracy, that
did not conclude until after the new penalty took effect, it
would not amount to an ex post facto violation to subject
him to the higher penalty. Id. For “[i]t is well established
that a statute increasing a penalty with respect to a
criminal conspiracy which commenced prior to, but was
continued beyond the effective date of the statute, is not ex
post facto as to that crime.” United States v. Campanale,
518 F.2d 352, 365 (9th Cir. 1975) (per curiam); accord
United States v. Canino, 949 F.2d 928, 951-52 (7th Cir.
1991). As it is the lifespan of the conspiracy that determines
whether, consistent with the Ex Post Facto Clause, the
defendant may be subject to the enhanced penalty, the
question whether the alleged conspiracy continued beyond
the effective date of the new penalty is one that must be
submitted to the jury. E.g., United States v. Kramer, 955
F.2d 479, 484-86 (7th Cir. 1992); Torres, 901 F.2d at 227; see
also Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63; cf.
United States v. Thomas, 284 F.3d 746, 755-56 (7th Cir.
2002) (where charged conspiracy terminated as a matter of
law on a particular date, jury had to be instructed to
consider whether defendant joined conspiracy before that
date).
Because this issue was not submitted to the jury assess-
ing Julian’s guilt or innocence, a Sixth Amendment error
occurred. This was a plain error in the sense of being an
obvious mistake in retrospect. See United States v. Thomas,
150 F.3d 743, 745 (7th Cir. 1998) (per curiam). It also
affected Julian’s substantial rights in the sense that it
exposed him to a longer sentence. See Nance, 236 F.3d at
825-26. But the question remains whether the error seri-
ously affected the fairness, integrity, or public reputation of
the judicial proceedings. Id. at 825. If a jury, properly
16 No. 04-1574
instructed on this point, might have found that the conspir-
acy had come to an end before the increased penalty took
effect or that Julian had withdrawn from the conspiracy
before that date, then the error is one that implicates the
fairness, integrity, or public reputation of the judicial
process. If, on the other hand, a reasonable jury could only
have concluded that the conspiracy continued beyond the
effective date of the new statute and that Julian remained
a member of the conspiracy beyond that date, then this
fourth element of the plain error test has not been satisfied.
Nance, 236 F.3d at 826.
Notably, there is no real dispute that the conspiracy itself
continued beyond October 30, 1998. CVM remained in
operation beyond that date, Decker remained in charge of
the hotel, and customers continued to patronize it. The only
pertinent question is whether Julian remained a member of
the conspiracy after October 30. If he was, he can be held to
account for the acts of the conspiracy occurring after
October 30 (and thus be subject to the increased penalty),
even if he himself took no actions in furtherance of the
conspiracy after that date. Canino, 949 F.2d at 951-52.
Having thoroughly reviewed the record, we are satisfied
that no reasonable jury would have found that Julian
withdrew from the conspiracy prior to October 30. As we
have pointed out before, “ ‘[i]t is not . . . all that easy to
withdraw from a conspiracy.’ ” United States v. Hall, 212
F.3d 1016, 1023 (7th Cir. 2000) (quoting United States
v. Bafia, 949 F.2d 1465, 1477 (7th Cir. 1991)), and it is
the defendant’s burden to show that he did, id. In order
for a defendant to withdraw from a conspiracy in the
legal sense, he must take some affirmative act to defeat or
disavow the criminal aim of the conspiracy, such as submit-
ting himself to the authorities or announcing to his co-
conspirators that he is withdrawing. E.g., United States v.
Wren, 363 F.3d 654, 663 (7th Cir. 2004), judgment vacated
on other grounds, 125 S. Ct. 1021 (2005). “Simply ceasing to
No. 04-1574 17
participate even for extended periods of time is not suffi-
cient to show withdrawal.” Id.; see also Hall, 212 F.3d at
1023.
The evidence bespeaks no such affirmative act by Julian.
At the most, the evidence might support the inference that
Julian had ceased to take steps in furtherance of the
conspiracy by October 30, 1998. Julian emphasizes that
he no longer lent his financial support to CVM after that
date and was no longer involved in the conspiracy in any
other way. Decker himself sensed a “coolness” from Julian
in October 1998, would later realize that Julian no longer
wished to be involved with him or CVM, and Decker bore
responsibility for the last few months of rent on CVM
himself. But these are merely passive acts of disengage-
ment; they do not signal an overt disavowal of the conspir-
acy. Julian did not take any affirmative acts to shut down
CVM or to signal to Decker that he no longer wanted any
part of the (illegal) business. Julian’s name remained on the
lease through January 1999, and Decker remained in
possession of Julian’s ATM card.
Under these circumstances, no reasonable jury could have
found that Julian had withdrawn from the conspiracy
before October 30. Such a finding would defy the high
evidentiary threshold for a finding of withdrawal. Given the
evidence presented to it, the jury reasonably could only
have found what the district court itself did—that Julian
remained a member of the conspiracy after October 30 and
that he was therefore liable for its acts, and subject to the
applicable criminal penalties, after that date. Thus, al-
though we agree with Julian that the failure to submit
this question to the jury was error, it was not one that
affected the fairness, integrity, or public reputation of the
judicial proceedings. Nance, 236 F.3d at 826. Consequently,
the error is not one that compels us to vacate Julian’s
sentence.
18 No. 04-1574
B.
Count Two of the indictment charged Julian with aiding
and abetting a violation of 18 U.S.C. § 2421, which in
relevant part proscribes the knowing transportation of
an individual in foreign commerce with the intent that such
individual engage in prostitution. This charge was based on
the efforts that Julian made, at the behest of Accordini, to
help Armando covertly cross the Mexican border into the
United States. The principal step that Julian took in
furtherance of that goal was to drive Armando to (or part of
the way to) the border. Later, when Accordini and Armando
needed help in completing a wire transfer of the money that
Armando needed to pay the coyote who had smuggled him
across the U.S.-Mexico border, Julian put them in touch
with Smith.
At this juncture, Julian does not dispute that he facili-
tated Julian’s illegal entry into the United States; rather,
he challenges the notion that the purpose of Armando’s
entry was prostitution. Without question, Armando’s sexual
relationship with Accordini in Mexico was
meretricious—Armando had been assigned to sexually
service Accordini as a paying guest at CVM. Julian ac-
knowledges that Armando and Accordini intended to remain
sexual partners once Armando entered the United States.
Nonetheless, Julian quarrels with the inference that the
purpose behind Armando’s entry (and Julian’s intent in
facilitating it) was for Armando to engage in prostitution,
even though Accordini did provide Armando with shelter
and spending money. As Julian sees it, this was simply
a sexual relationship between two consulting adults. He
points out that Armando was 19 when he crossed the
border, that he was not coerced into doing so, that the idea
of leaving Mexico and joining Accordini in the United States
was, in fact Armando’s idea. And even if prostitution may
No. 04-1574 19
have been an incidental purpose of Armando’s entry to this
country, it was not, in Julian’s view, the dominant purpose,
and as such it does not support his conviction under section
2421.
Of course, we are obliged to consider the evidence in the
light most favorable to the government. United States v.
Carraway, supra, 108 F.3d at 750. Whether Julian aided
and abetted Armando’s entry into the United States with
the intent that he engage in prostitution was a factual
question for the jury to resolve. Stewart v. United States,
311 F.2d 109, 112 (9th Cir. 1962). A defendant’s intent may
be proven through circumstantial evidence. E.g., United
States v. Henningsen, 387 F.3d 585, 591 (7th Cir. 2004).
Only if no reasonable jury could have found beyond a
reasonable doubt that Julian intended for Armando
to engage in prostitution may we reverse his conviction. See,
e.g., United States v. Tadros, 310 F.3d 999, 1006 (7th Cir.
2002).
The evidence in this case readily supports the inference
that Julian facilitated Armando’s migration to the United
States with the intent that Julian engage in prostitution.
Armando and Accordini had become acquainted at what
was, in essence, a house of prostitution at which Accordini
had paid for the privilege of engaging in sex with Armando.
Accordini himself agreed that the plan was for him to
provide food, shelter, and spending money to Armando in
exchange for Armando’s continued willingness to engage in
sex with him once he arrived in the United States. As a co-
owner of CVM, Julian obviously knew how it was that
Armando and Accordini had come to know one another and
he was fully aware of the illicit nature of their relationship
in Mexico. Having assisted Decker in recruiting boys like
Armando to work as sexual servants at the hotel, Julian
would have known that Armando was unable to support
himself financially. Under these circumstances, the jury
could reasonably infer that Julian knew and intended that
20 No. 04-1574
upon Armando’s arrival in the United States, Accordini
would continue to pay for Armando’s sexual services by
sheltering and supporting him.
We reject Julian’s contention that prostitution must
have been the sole or dominant (in the sense of being the
most important) purpose of Armando’s entry into the United
States, and that the jury was not accurately instructed on
this point. The jury was properly advised that Julian must
have intended for Armando to engage in prostitution, and
the evidence, as we have just stated, supports the inference
that Julian did have that intent. R. 74, Instr. No. 27. That
Armando may have had other reasons for wishing to enter
the United States, and that prostitution may not have been
Julian’s sole or most important reason for helping Armando
do so, does not undermine his conviction. A defendant need
not facilitate someone’s interstate or foreign travel with the
sole or principal intent that he engage in prostitution in
order to be liable under section 2421, so long as prostitution
was a significant motive. United States v. Snow, 507 F.2d
22, 24 (7th Cir. 1974) (Stevens, J.); see also United States v.
Vang, 128 F.3d 1065, 1071-72 (7th Cir. 1997). The evidence
supports the inference that prostitution was a significant
reason for Armando’s entry into the United States.
C.
Julian challenges the admission into evidence of his prior
conviction for sexual assault of a minor. In 1988, Julian
pleaded guilty to having sexually molested his stepson in
1986. The child was 11 years old at the time of the assault.
Over Julian’s objection, the district court allowed the
government to introduce evidence concerning this conviction
pursuant to Federal Rule of Evidence 413, concluding that
the prior offense was relevant to Julian’s knowledge and
intent vis-à-vis his involvement with CVM. Feb. 11, 2003
No. 04-1574 21
Tr. (vol. 2) at 139-40; Feb. 12, 2003 (vol. 3) Tr. at 5.
Julian contends that the court abused its discretion in
admitting evidence of this prior assault. Because the
assault occurred 12 years prior to the events underlying the
charges in this case, involved his stepson, and did not take
place in foreign commerce, the probative value of this
evidence was, in Julian’s view, slight as compared to the
likelihood that the evidence prejudiced him unfairly in the
eyes of the jury. See Fed. R. Evid. 403. Julian also com-
plains that the government was permitted to rely on this
evidence, and the jury was permitted to consider it, as proof
of his propensity to commit the type of crimes charged in
the indictment.7 This would be an improper purpose under
Evidence Rule 404(b), as Julian points out. See, e.g., United
States v. Puckett, 405 F.3d 589, 595-96 (7th Cir. 2005), cert.
7
In contrast to cases in which evidence of a defendant’s prior acts
is admitted pursuant to Rule 404(b), the jury was not instructed
to limit its consideration of that evidence to one or more purposes
allowed by that rule. Cf. Seventh Circuit Federal Criminal Jury
Instruction No. 3.04 (1999). Thus, as Julian argues, the jury was
free to consider it for any and all purposes. However, we note that
insofar as the government relied on this evidence in its final
arguments to the jury, it urged the jury to consider the evidence
for the light it shed on Julian’s intent vis-à-vis CVM. Counsel for
the government made the following point in her summation to the
jury:
Throughout the cross-examination of [the] government’s
witnesses, defense counsel has sought to establish or reply
that this was nothing more than a gay resort. It was never
intended, certainly by his client, that this would be a boy-
lover haven. But is that reasonable to believe when the
defendant himself picks as his partner a convicted—twice-
convicted child molester, when the defendant himself is a
convicted child molester?
Feb. 13, 2003 Tr. (vol. 4) at 29.
22 No. 04-1574
denied, 2005 WL 1786615 (U.S. Oct. 3, 2005). But the
evidence of the prior assault was admitted not under Rule
404(b) but Rule 413, and the latter rule alters the legal
landscape with respect to a defendant’s prior crimes in
cases like this one.
In criminal prosecutions charging the defendant with
“an offense of sexual assault,” Rule 413(a) permits a court to
admit evidence concerning a prior sexual assault committed
by the defendant. The rule goes on to define an “offense of
sexual assault” as a crime under federal law that “involved,”
among other conduct, “any contact, without consent,
between any part of the defendant’s body or an object and
the genitals or anus of another person” and “any contact,
without consent, between the genitals or anus of the
defendant and any part of another person’s body,” or an
attempt or conspiracy to engage in such conduct. Rule
413(d)(2), (3), and (5). As we have discussed previously,
Count One of the indictment in this case charged Julian
with conspiring to travel in foreign commerce for the
purpose of engaging in illicit sexual conduct with children
under the age of 18, including conduct that would constitute
“sexual abuse” and “sexual abuse of a minor” if they
occurred in the special maritime and territorial jurisdiction
of the United States. R. 1 at 1; see 18 U.S.C. §§ 2242(2)(A),
2243(a)(1); supra at 9-10. The government’s proof at trial
established that the acts in furtherance of the conspiracy
included the forcible rape of Cesena by Julian and Decker.
The government argued to the district judge, and defense
counsel conceded, that Cesena’s testimony regarding the
rape, if believed, was sufficient to establish that Julian was
charged with an offense that involved the type of involun-
tary sexual conduct described in Rule 413(d)(2), (3), and (5).
Feb. 11, 2003 Tr. (vol. 2) at 131; see also id. at 139.8
8
We are not asked in this appeal to address how broadly the
(continued...)
No. 04-1574 23
Rule 413 thus permitted the admission of evidence of the
prior sexual assault committed by Julian. Moreover, in
contrast to Rule 404(b), Rule 413(a) permits the consider-
ation of a prior sexual assault “for its bearing on any matter
to which it is relevant.” The legislative history reveals that
by “any matter to which it is relevant” Congress intended to
include the defendant’s propensity to engage in the offense
of sexual assault with which he has been charged. See 137
Cong. Rec. 6032 (section-by-section analysis of Comprehen-
sive Violent Crime Control Act of 1991, in which adoption
of Rules 413-415 was initially proposed); 140 Cong. Rec.
23603 (statement of Rep. Molinari); see United States v.
Sioux, 362 F.3d 1241, 1244 (9th Cir. 2004); United States v.
Gabe, 237 F.3d 954, 959 (8th Cir. 2001); see also United
States v. Cunningham, 103 F.3d 553, 556 (7th Cir. 1996).
Additionally, the legislative history indicates that Congress
intended for the lapse of time between the prior and
charged offenses to pose no categorical bar to the admission
of the prior assault, but rather that it represent a factor
that the jury may consider in assessing the probative force
of the prior assault. See 137 Cong. Rec. 6034 (section-by-
section analysis) (“[t]here is no magic line in time beyond
which similar crimes evidence generally ceases to be
relevant to the determination of a pending charge”); 140
Cong. Rec. 23603 (statement of Rep. Molinari); see also, e.g.,
Gabe, 237 F.3d at 960 (sustaining admission under compan-
ion Rule 414 of sexual abuse that occurred 20 years prior to
trial); United States v. Meacham, 115 F.3d 1488, 1494-95
(10th Cir. 1997) (sustaining the admission under Rule
8
(...continued)
term “involved” should be construed for purposes of Rule 413. The
parties assumed that an offense involved non-consensual sexual
contact if such contact occurred during the course of the offense,
even if the defendant has not been charged with a non-consensual
act per se.
24 No. 04-1574
414 of prior molestation of stepdaughters that occurred
roughly 30 years before charged offense). The text of the
rule therefore establishes no time limit on the admissibility
of prior offenses, cf. Fed. R. Evid. 609(b) (establishing
presumption against admission of a witness’s prior con-
viction if more than 10 years old), nor does the rule direct
the court to consider the lapse of time between the prior and
charged offenses in weighing the admissibility of the prior
offense. That said, the date of the prior offense remains a
factor for a court to consider in weighing the possibility that
the risk of unfair prejudice to the defendant posed by
evidence of his prior offense might counsel against admis-
sion pursuant to Rule of Evidence 403. See Johnson v. Elk
Lake School Dist., 283 F.3d 138, 156 (3d Cir. 2002) (quoting
United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.
1998)); Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence, § 162, at 54 (2d ed. Supp. 2005).
Based on the special treatment that Rule 413 accords to
prior sexual assault offenses in prosecutions charging
a defendant with sexual assault, Julian suggests that
the rule deprives him of equal protection of the law in
violation of the Due Process Clause of the Fifth Amend-
ment. See generally Gillespie v. City of Indianapolis, 185
F.3d 693, 708 (7th Cir. 1999). However, Rule 413 implicates
neither a fundamental right nor a suspect class. United
States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998). Conse-
quently, the more sweeping rule of admissibility that the
rule creates for a defendant’s prior acts in cases involving
sexual assault does not violate equal protection principles
so long as the rule has a rational basis. Id. As the legisla-
tive history reveals, Congress enacted Rule 413 because
sexual assault cases, especially cases involving victims who
are juveniles, often raise unique questions regarding the
credibility of the victims which render a defendant’s prior
conduct especially probative. Id.; see also Cunningham, 103
F.3d at 556. Its reasoning in this regard cannot be described
No. 04-1574 25
as irrational. See Mound, 149 F.3d at 801; United States v.
Castillo, 140 F.3d 874, 883 (10th Cir. 1998) (rejecting equal
protection challenge to Rule 414); United States v. Enjady,
134 F.3d 1427, 1433-34 (10th Cir. 1998) (under plain error
review, rejecting equal protection challenge to Rule 413); see
also United States v. LeMay, 260 F.3d 1018, 1026-27 (9th
Cir. 2001) (rejecting due process challenge to Rule 414).
As we have already suggested, however, Rule 413 does
not displace the court’s authority pursuant to Rule 403 to
exclude evidence of a prior assault if its probative value
is substantially outweighed by the danger of unfair prej-
udice. See 140 Cong. Rec. 23603 (statement of Rep.
Molinari); Johnson, 283 F.3d at 155; Mound, 149 F.3d at
800-01; Guardia, 135 F.3d at 1330; see also United States v.
Larson, 112 F.3d 600, 604 (2d Cir. 1997) (Rule 414). Thus,
the door remains open to Julian’s argument that evidence
of the 1986 assault was so limited in probative worth and at
the same time so prejudicial to him in the eyes of the jury
that the court was wrong to admit it. Of course, the district
court enjoys wide discretion in admitting or excluding
evidence, and our review of its evidentiary rulings is highly
deferential. E.g., United States v. Duran, 407 F.3d 828, 834
(7th Cir. 2005).
We cannot say that the district court abused its discretion
in admitting evidence of the 1986 assault in view of the
defense that Julian pursued at trial. Although Julian did
not dispute his involvement with CVM, the defense posited
that Julian understood CVM simply to be a legitimate hotel
that was friendly to gay tourists rather than an illegitimate
enterprise making children available to pedophiles. See,
e.g., February 10, 2003 Tr. (Decker excerpt) at 64, 66-67;
February 11, 2003 Tr. (Decker excerpt) at 12-13. Against
the backdrop of the defense theory, the district court
thought that the 1986 molestation of Julian’s stepson was
relevant as to his knowledge of CVM’s invidious nature and
his intent. February 11, 2003 Tr. (vol.2) at 139-40. We
26 No. 04-1574
cannot say that the court was off the mark in this analysis.
Although the 1986 incident was distinguishable from the
charged offense in a number of respects, a jury might
reasonably infer from the prior conviction that Julian was
a pedophile and in turn surmise that his involvement with
Decker and CVM was not as innocent as the defense made
it out to be. We add that the government did not dwell on
the prior assault: The evidence was limited to a certified
copy of Julian’s prior conviction and brief testimony from
the police officer who investigated Julian for the underlying
offense, who confirmed that Julian had been convicted of
criminal sexual assault and that the victim was 11 years old
at the time of the offense. February 11, 2003 Tr. (vol.3) at
22-25.
D.
We come finally to Julian’s sentence. As we noted earlier,
the district court made various factual findings
at sentencing that boosted Julian’s offense level and the
resulting sentencing range under the Sentencing Guide-
lines. Julian opposed the enhancements to his offense
level on the merits in the district court, arguing that they
were not warranted on the evidence before the court. He did
not, however, challenge the court’s authority to determine
the facts that resulted in the enhancements. On appeal,
Julian again asserts, in passing, that several of
the enhancements are not warranted on the evidence.
His principal contention, however, is that the district
court violated his Sixth Amendment right to have a jury,
rather than a judge, make any findings that exposed him to
a lengthier sentence under the Guidelines. See United
States v. Booker, 125 S. Ct. 738 (2005). Before turning to the
Booker argument, we shall first consider whether the
district court’s sentencing determinations were correct in
view of the evidence and the relevant provisions of the
No. 04-1574 27
Guidelines. See United State v. Dean, 414 F.3d 725, 727 (7th
Cir. 2005).
The district court selected as the offense guideline for use
in calculating Julian’s sentence Guidelines section 2A3.1,
which applies to offenses of criminal sexual abuse. Subsec-
tion (b)(1) of that guideline calls for a four-level increase to
the base offense level where the offense involved conduct
described in 18 U.S.C. § 2241(a) or (b). Those provisions of
the federal criminal code make it a crime for someone
within the special maritime or territorial jurisdiction of the
United States to knowingly cause another person to engage
in a sexual act by use of force, threat, or other means
(including drugging the victim or rendering him uncon-
scious). For purposes of the guideline, then, an offense
“involved” conduct of the type described in the statute if the
defendant forced the victim to engage in a sexual act.
U.S.S.G. § 2A3.1, comment. (n.1) (Nov. 2003). Based on the
evidence presented at trial, the district court found that
Julian and Decker had forcibly raped Cesena. March 2,
2004 Sent. Tr. at 122-24. Although Julian contended below
that Cesena was “mistaken,” see February 13, 2003 Tr. (vol.
4) at 38, the district court credited Cesena’s testimony that
Julian and Decker had forcibly assaulted him. This was a
factual determination, and in the wake of Booker, we
continue to review the district court’s factual findings at
sentencing for clear error. E.g., United States v. Blaylock,
413 F.3d 616, 618 (7th Cir. 2005). We find no such error in
the court’s determination.
The district court found further that Julian’s offense had
involved victims who were younger than 12 years old and,
based on that finding, increased the offense level by an
additional four levels. March 2, 2004 Sent. Tr. at 138-40,
143; see U.S.S.G. § 2A3.1(b)(2)(A) (Nov. 2003). None of
the CVM guests who testified acknowledged having engaged
in sexual relations with children below the age of 12, and
neither of the two young witnesses who had engaged in sex
28 No. 04-1574
with CVM guests were that young when they stayed at
CVM. In fact, no witness had identified a boy below the age
of 12 who engaged in sexual activity with CVM guests. But
multiple witnesses had testified that boys younger than 12
years old (some as young as seven or eight) stayed at CVM,
e.g., Feb. 11, 2003 Tr. (Calderon/Cesena excerpt) at 8; Feb.
11, 2003 Tr. (vol. 2) at 77; Feb. 12, 2003 Tr. (vol. 3)at 39,
and there was ample testimony that the street children
recruited to stay at CVM were expected to acquiesce in the
sexual appetites of CVM guests in exchange for the food,
shelter, and other things that Decker and Julian promised
them, see Feb. 11, 2003 Tr. (Calderon/ Cesena excerpt) at 9,
14-15, 27, 42-43. As David Calderon testified, “you don’t get
nothing for nothing.” Id. at 27. We find no clear error in this
finding.
Finally, the district court found that Julian and Decker
knew or should have known that the children whom he and
Decker had recruited to stay at CVM to satisfy the sexual
appetites of their guests were vulnerable victims, and the
court enhanced Julian’s offense level by two levels based on
that finding. March 2, 2004 Sent. Tr. at 130-31; see U.S.S.G.
§ 3A1.1(b)(1) (Nov. 2003). Julian asserts that the finding of
vulnerability necessarily was based on the age of the
children involved, and because his offense level was sepa-
rately increased based on the age of his victims, see §
2A3.1(b)(2), Julian contends that the vulnerable victim
enhancement amounts to impermissible double counting.
“ ‘[D]ouble counting occurs when identical conduct is
described in two different ways so that two different
adjustments apply.’ ” United States v. Parolin, 239 F.3d 922,
928 (7th Cir. 2001) (quoting United States v. Haines, 32
F.3d 290, 293 (7th Cir. 1994)); see also United States v.
Schmeilski, 408 F.3d 917, 919 (7th Cir. 2005). The Guide-
lines themselves recognize that the vulnerable victim
enhancement may be inappropriate if the defendant’s
offense level has already been enhanced based on the
No. 04-1574 29
same circumstances that would support a finding of vulner-
ability:
Do not apply subsection (b) if the factor that makes the
person a vulnerable victim is incorporated in the
offense guideline. For example, if the offense guideline
provides an enhancement for the age of the victim, this
subsection would not be applied unless the victim was
unusually vulnerable for reasons unrelated to age.
§ 3A1.1(b)(1), comment. (n.2).
Given the evidence before the court, the vulnerable victim
enhancement did not constitute double counting. The
district court itself recognized that the enhancement could
not be imposed based on the age of the victims. March 2,
2004 Sent. Tr. at 131. When it imposed the enhancement,
the court did so on the basis of the economic vulnerability
of the victims, finding that “[Julian] purposefully pr[e]yed
on desperate street children without housing and food,
taking advantage of the poor and homeless children by
offering shelter, housing and food.” Id. at 130-31. The trial
testimony lends ample support to this factual assessment,
which in turn makes clear that the court applied the
vulnerable victim enhancement based on factors other than
the children’s age. See Schmeilski, 408 F.3d at 919 (“When
two enhancements address distinct aspects of the defen-
dant’s conduct, the application of both does not constitute
double counting.”) We note that young victims of sexual
assault are not invariably vulnerable because they are
homeless or without financial support, see, e.g., United
States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005) (eight year-
old victim molested by common-law husband of family
member during overnight stays); United States v. Reyes
Pena, 216 F.3d 1204 (10th Cir. 2000) (10 year-old victim of
sexual assault was stepdaughter of defendant), nor are
homeless and otherwise financially vulnerable victims of
sex-related crimes invariably young children, e.g., United
30 No. 04-1574
States v. Sabatino, 943 F.2d 94 (1st Cir. 1991) (women
recruited by defendants to serve as prostitutes were
otherwise out of work and in some cases had young chil-
dren).9
Having found no error in any of the court’s Guidelines
calculations, we turn to the subject of Booker error. Julian
made no kind of Booker objection below, so our review is
again confined to one for plain error. Booker, 125 S. Ct. at
769; see also United States v. Paladino, 401 F.3d 471, 481
(7th Cir. 2005), cert. denied, 2005 WL 1304753 (U.S. Oct. 3,
2005). The upshot of Booker is that it would be a violation
of a defendant’s Sixth Amendment rights for a judge rather
than a jury to make factual findings under a sentencing
regime in which the provisions that establish the sentencing
range are mandatory. 125 S. Ct. at 749-51. But the Su-
preme Court in Booker solved the Sixth Amendment
problem posed by the federal Sentencing Guidelines by
excising the provision of the enabling statute that compelled
courts to impose a sentence within the Guidelines range
except in the relatively small number of cases that met the
criteria for a departure. 125 S. Ct. at 764-65. District courts
remain obliged to determine the sentencing range specified
by the Guidelines based on the facts of the case and to
consider imposing a sentence within that range, but the
Guidelines are now advisory rather than mandatory and
9
No argument has been made that the victims of so-called “sex
tourism” cases like this one are typically vulnerable to exploita-
tion in the same ways that the victims of Julian’s offense were
vulnerable, such that Julian’s victims cannot be described as
“unusually vulnerable” for purposes of this enhancement. See
§ 3A1.1, comment. (n.2); United States v. Castaneda, 239 F.3d 978,
981-83 (9th Cir. 2001); Sabatino, 943 F.2d at 103; United States
v. Footman, 66 F. Supp. 2d 83, 94-96 (D. Mass. 1999), judgment
aff’d, 215 F.3d 145 (1st Cir. 2000). We express no opinion on that
potential argument.
No. 04-1574 31
sentencing judges enjoy broader discretion to impose a
sentence outside the Guidelines range. See Dean, 414 F.3d
at 727; United States v. Williams, 410 F.3d 397, 403 (7th
Cir. 2005). Because Julian was sentenced well before the
Supreme Court decided Booker, however, the district court
understandably treated the Guidelines as binding. In that
sense, an error occurred at sentencing that, in retrospect, is
obvious in light of Booker. But we must determine whether
Julian’s substantial rights were affected in the sense that
he was prejudiced by that error. See Paladino, 401 F.3d
at 482-83; United States v. Lee, 399 F.3d 864, 866 (7th
Cir. 2005). If the district court might have imposed a lesser
sentence on Julian had it realized that it had the author-
ity to do so, then he was prejudiced by the Booker error.
Williams, 410 F.3d at 404; Paladino, 401 F.3d at 483.
Often the sentencing record does not give us adequate
clues as to what the district court might have done had
it sentenced the defendant with the benefit of the Booker
decision. In those cases, we order a limited remand so
that the district court may consider and answer that ques-
tion. See id. at 483-84. If the district court on remand
indicates that it likely would have imposed a sentence
below the Guidelines range, then we proceed to vacate the
sentence and remand for resentencing. Id. at 484.
In this case, however, the sentencing record is more
illuminating. Based on the district court’s findings as to the
pertinent Guidelines factors, the Guidelines called for a
sentence within a range from 324 to 405 months. However,
the maximum sentence allowed by statute was 300 months,
and so the court ordered Julian to serve a total prison term
of that length. See U.S.S.G. § 5G1.2(d). The sentence
imposed, then, was two years below the bottom of the range
specified by the Guidelines. After Booker, the district court
would have the authority to impose a sentence even further
below the Guidelines range. But, in sentencing Julian, the
district court made remarks indicating that it would not be
32 No. 04-1574
inclined to impose a lesser term even if had the ability to do
so. In the course of calculating Julian’s adjusted offense
level, the court had applied a number of Guidelines en-
hancements (such as the three we have discussed) over
Julian’s objections. When the court later imposed the 300-
month sentence on Julian, it observed that the sentence
was a fair one. March 2, 2004 Sent. Tr. at 153. More to the
point, the court also noted that, had it sustained Julian’s
objections to certain of the enhancements to his offense
level, the Guidelines would have called for a sentence from
235 to 327 months. Had the sentencing range been that low,
the court observed, it still would have sentenced Julian to
a term of 300 months. Id. at 145.
We can therefore be confident that the district court
would not be inclined to re-sentence Julian in view of
Booker. As it was, the sentence imposed on Julian was a full
two years below the bottom of the Guidelines range by
virtue of the statutory maximums, and the court noted that
even if it had resolved the parties’ disputes over the Guide-
lines calculations more favorably to Julian, it would not
have been inclined to impose a lesser term. range. That
declaration makes clear that Julian was not prejudiced by
the Booker error in the sense that the error caused the court
to impose a lengthier sentence than it otherwise might
have. There is no need for a Paladino remand. See
Paladino, 401 F.3d at 482-83; Lee, 399 F.3d at 866-67.
The only remaining question is whether the sentence
is reasonable. See Booker, 125 S. Ct. at 765; Paladino,
401 F.3d at 484. A sentence imposed in accord with the
provisions of the Guidelines is presumptively reasonable.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). “The defendant can rebut this presumption only
by demonstrating that his or her sentence is unreason-
able when measured against the sentencing factors set forth
in [18 U.S.C.] § 3553(a).” Id. These include such factors as
the nature and circumstances of the offense, the history and
No. 04-1574 33
characteristics of the defendant, and the need for a sentence
that will reflect the gravity of the offense, deter criminal
conduct and promote respect for the law, provide just
punishment for the offense, protect the public from further
crimes by the defendant, and provide the defendant with
appropriate care and rehabilitative services. § 3553(a)(1) &
(2). “[I]t will be a rare Guidelines sentence that is unreason-
able,” Mykytiuk, 415 F.3d at 608, and Julian’s is not one of
them. The district court itself considered the sentencing
factors set forth in section 3553(a) and concluded that they
supported a sentence at the statutory maximum, March 2,
2004 Sent. Tr. at 149-50, 153, and we cannot disagree with
its assessment. As it is, Julian’s sentence is two years
outside of the Guidelines range by virtue of the statutory
maximums, and the record reveals no circumstance suggest-
ing that reason would demand an even lower sentence.
Julian committed a horrific crime that took advantage of
extremely young, vulnerable victims in a calculated fashion
and went so far as to use force when one of the boys was not
as cooperative as Julian and Decker wished. A lengthy
sentence is required to account for the gravity of the offense
and the fact that this is not the first time that Julian has
victimized a child, to deter Julian and other pedophiles from
engaging in this type of offense, to protect the public, and to
establish a correctional environment that in the short run
will prevent Julian from victimizing additional children and
in the long run help him (hopefully) to build the self-
restraint not to re-offend when he is released. See § 3553(a).
III.
For the reasons we have discussed, we AFFIRM Julian’s
conviction and sentence.
A true Copy:
Teste:
34 No. 04-1574
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-24-05