In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3533
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EREK S. D AVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:06-CR-106 AS—Robert L. Miller, Jr., Chief Judge.
A RGUED O CTOBER 15, 2008—D ECIDED D ECEMBER 18, 2008
Before E ASTERBROOK, Chief Judge, and C OFFEY and W OOD ,
Circuit Judges.
W OOD , Circuit Judge. In United States v. Gladish, 536
F.3d 646 (7th Cir. 2008), this court held that explicit
sexual talk does not, by itself, amount to the kind of
“substantial step” needed to prove an attempt to violate
18 U.S.C. § 2422(b), which forbids knowingly persuading,
inducing, enticing, or coercing a person under the age of
18 to engage in criminal sexual activity. The present case
2 No. 07-3533
requires us to decide whether defendant Derek Davey’s
conduct similarly fell short of an attempt to violate
§ 2422(b), or if Davey crossed the line that demarcates
criminal conduct. Davey’s case is further complicated by
the fact that he pleaded guilty to the § 2422(b) violation
and was unsuccessful in persuading the district court
to allow him to withdraw his guilty plea. We conclude
that the district court did not abuse its discretion when
it denied the motion to withdraw, and that the factual
basis for Davey’s plea establishes that he took several
substantial steps toward completion of the offense. We
therefore affirm.
I
On August 18, 2006, Davey struck up a conversation in
an Internet chat room with someone calling herself
“blonddt.” “Blonddt” was not, however, what she
seemed to be: in real life, she was an undercover police
officer posing as a 15 1/2 year old girl. After learning that
“blonddt” was underage, Davey engaged in explicit
sexual banter with her, asking almost immediately “so u
think u might be interested in meeting for some hot sex,”
asking where he might pick her up, discussing how he
might recognize her at the rendezvous point, and arrang-
ing to call her from a pay phone. Law enforcement officials
recorded that exchange. The very same day, Davey drove
the 25 miles or so from his home in Berrien Springs,
Michigan, to South Bend, Indiana, which was where
the two had agreed to meet. As discussed, he found a pay
phone near the Kitchenette Restaurant, and he used that
No. 07-3533 3
telephone to call “blonddt” to discuss their upcoming
sexual encounter. The idea was that she would sneak him
into her house through a back alley. Investigators recorded
the telephone call, but the only copy of the recording is
almost unintelligible. Still, Davey can be heard saying
“Yep, but I can’t hang out too long. Can you come down
here so I can talk to you?” Shortly after the call ended,
law enforcement officers moved in and arrested Davey.
Davey was eventually indicted on one count of attempt-
ing to violate 18 U.S.C. § 2422(b). On March 8, 2007, while
he was represented by Attorney James Korpal, Davey
pleaded guilty before District Judge Sharp. In his written
plea agreement, he admitted the following facts, among
others:
• On or about August 18, 2006, while using the
screen name “dsd3140,” I used my computer to
engage in a chat room conversation with an indi-
vidual using the screen name, “blonddt”;
• I do not dispute that the individual using the
screen name “blonddt” told me she was a 15 1/2
year old female;
• I do not dispute that I am over 18 years of age;
• I do not dispute that after being told that
“blonddt” was a 15 1/2 year old female, I engaged
in a graphic sexual conversation with “blonddt”;
• I do not dispute that during this chat room con-
versation I knowingly attempted to persuade,
induce, entice, or coerce “blonddt” to engage in
sexual activity with me;
4 No. 07-3533
• I further do not dispute that the sexual activity
I attempted to persuade, induce, entice, or coerce
“blonddt” to engage in is sexual activity for
which an individual can be charged with a crim-
inal offense.
After the district court accepted Davey’s plea, but before
sentencing, Davey replaced Korpal with Attorney Tony
Zirkle. Zirkle immediately filed a motion under F ED . R.
C RIM. P. 11(d)(2)(B) to withdraw Davey’s guilty plea. In
that motion, Davey argued that there was an insufficient
factual basis for the plea, because he never admitted to
facts sufficient to establish an attempted encounter. The
Government opposed the motion, and the district court
held a hearing on it on July 9, 2007.
At that hearing, Davey submitted for the court’s con-
sideration a letter that he had written. The letter
indicated that Davey’s purpose in traveling to South
Bend on August 18, 2006, was simply to warn “blonddt” of
the potential danger of meeting in person adults whom
she had encountered on the Internet. Davey also com-
mented that he doubted that the Government could prove
that Davey thought that “blonddt” was underage. He
pointed out that people often lie online, and that “blonddt”
was in an adult chat room that required users to pay
by credit card and be at least 18 as a condition of access.
Davey also said that he had consulted three other attor-
neys before he pleaded guilty. One of them (allegedly a
man named Peter Johnson, who never filed an appearance)
told Davey that the best strategy would be to plead guilty
and then hire a new lawyer to withdraw the plea.
No. 07-3533 5
The court also heard evidence from Korpal, who said
that he had been working hard on Davey’s case because he
thought the likely sentence would be very harsh. Korpal
also testified that he believed that entrapment was the
only possible defense that Davey had, but that, in his
professional judgment, the facts did not merit an entrap-
ment instruction. Korpal testified that he told Davey
that the Government would have to prove beyond a rea-
sonable doubt that Davey knew (or at least was aware of
a high probability) that “blonddt” was a minor. Finally,
Korpal noted that he and Davey had discussed the
possible consequences for Davey if he did not plead
guilty—most importantly, the risk of losing credit for
acceptance of responsibility, which Korpal thought
would imperil Davey’s chances of keeping his sentence
close to the statutory minimum of 120 months. (The
maximum sentence authorized for violations of § 2422(b)
is life in prison.) After hearing this evidence, the
district court denied the motion to withdraw.
Davey’s sentencing hearing took place before Chief
Judge Miller on October 11, 2007. At the hearing, the
district court asked Davey whether he had reviewed the
presentence report prepared by the Probation Office, and
Davey indicated that he had done so and had also re-
viewed the report with his attorney. The only objection
Davey raised to the report was to a recommendation in
paragraph 30 for a two-level enhancement to his offense
level for attempting to influence a minor to engage in a
sexual act. Importantly, he did not object to the descrip-
tion of the offense contained in the report. On that point,
Attorney Zirkle said only that Davey had “some doubt”
6 No. 07-3533
about whether he knew that “blonddt” was really 15 1/2
years old, because he never saw her. The district court
asked Zirkle if he was arguing that Davey was innocent
because he lacked the requisite intent to commit the
crime, but Zirkle never squarely answered the question.
In the end, the district court sentenced Davey to 126
months’ imprisonment, just over the ten-year statutory
minimum.
II
Davey’s primary argument on appeal is that the district
court abused its discretion by denying his motion to
withdraw the guilty plea. We note that the plea agreement
also includes a waiver of appeal. Although the Govern-
ment moved to dismiss the appeal on that basis, a motions
panel of this court denied the motion after Davey
clarified that he intended to challenge the voluntariness of
the plea as a whole, including the appeal waiver. The
Government has dropped the point, probably because it
recognizes that the waiver is enforceable only if it was
made as part of a voluntary guilty plea, see United States
v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005), and so we
proceed to the merits.
To the extent that Davey is arguing that his plea was
involuntary because he realized too late that he may have
had a better factual defense to the charge than he realized,
we have no trouble rejecting the claim. A plea can be
perfectly voluntary in the face of incomplete informa-
tion. Indeed, such pleas are common; defendants make a
rational decision to assume a certain amount of risk, and
No. 07-3533 7
they realize that they must be prepared to live with
the consequences of error.
The serious question is whether Davey can show that
his plea was not “a voluntary and intelligent choice
among the alternative courses of action open” to him. See
Hays v. United States, 397 F.3d 564, 570 (7th Cir. 2005)
(citations omitted). As the Supreme Court pointed out in
Bradshaw v. Stumpf, 545 U.S. 175 (2005):
[a] guilty plea would indeed be invalid if [the defen-
dant] had not been aware of the nature of the charges
against him, including the elements of the aggravated
murder charge to which he pleaded guilty. A guilty
plea operates as a waiver of important rights, and is
valid only if done voluntarily, knowingly, and intelli-
gently, “with sufficient awareness of the relevant
circumstances and likely consequences.” Brady v.
United States, 397 U.S. 742, 748 (1970). Where a defen-
dant pleads guilty to a crime without having been
informed of the crime’s elements, this standard is
not met and the plea is invalid.
545 U.S. at 182-83. Davey proposes to meet that standard
by showing that Korpal, his lawyer at the time of the
plea, rendered ineffective assistance of counsel. See United
States v. Lundy, 484 F.3d 480, 484 (7th Cir. 2007).
Davey now suggests that Korpal was ineffective
because he pressured Davey into pleading guilty based on
a faulty assessment of the likely sentence. The record,
however, does not bear this out. First, Davey testified at
the plea colloquy that he was satisfied with Korpal’s
representation and that no one had coerced his plea. Such
8 No. 07-3533
statements, given under oath, are entitled to a presump-
tion of correctness. United States v. Bowlin, 534 F.3d 654, 660
(7th Cir. 2008). More importantly, there is nothing to
suggest that Korpal’s predictions were mistaken.
Davey also argues that the other attorneys he con-
sulted gave him bad advice, and that but for this advice, he
never would have pleaded guilty. We may assume, for the
sake of the argument (and contrary to the district court’s
finding), that Davey did retain Johnson, because Davey
proffered evidence indicating that he paid Johnson $1,000.
But this is of no help to Davey. As we noted, Johnson
never entered an appearance, and he may not even have
been admitted to practice in the Northern District of
Indiana. In order to accept this line of argument, we
would have to find that Davey committed perjury when
he swore to the district court that no one else had
promised him anything or influenced his decision to
plead guilty. There is no reason to make such an assump-
tion. To the contrary, the alleged advice was irresponsible
enough that the district court was entitled to insist on
better proof than Davey’s word for it that this was what
Johnson had said. Whatever these absentee lawyers
may have said was not something that compelled the
district court to permit Davey to withdraw his plea.
Davey’s strongest argument is the one that implicates
Gladish: that is, that he pleaded guilty to something that
is not an offense under § 2422(b), and that this fact alone
is enough to invalidate his plea. Before we reach that
issue, however, we must decide whether he forfeited
this argument. In supplemental briefs filed at our request
No. 07-3533 9
after oral argument, Davey argues that counsel’s mention
of the “substantial step” requirement for an attempted
crime and the failure of the Government specifically to
identify that step are enough to avoid forfeiture, especially
given the fact that Gladish had yet to be decided. The
Government, not surprisingly, emphasizes the fact that
Davey’s arguments in the district court focused on the
factual aspect of the “substantial step” requirement, not
the legal criteria. Whether or not forfeiture exists on this
record is a close call, in our view. It appears to us, however,
that he and his counsel said just enough to permit us to
continue. (The difference for Davey is subtle: it means that
we use the deferential abuse of discretion standard of
review, instead of the even more deferential plain error
standard.)
In Gladish, the defendant was caught in an Internet sting
operation much like the one that ensnared Davey. Gladish
encountered a government agent impersonating a 14 year
old girl called “Abagail” in an Internet chat room. The
exchanges were graphic, and Gladish went so far as to
send her a video of himself masturbating. “Abagail”
agreed to have sex with Gladish, but the two never
settled on anything more specific. Gladish lived in the
southern part of Indiana, and “Abagail” purported to
live in the northern part of the state. The two discussed
a meeting, but they made no arrangements for one.
We decided that this did not add up to the kind of
“substantial step” needed for a criminal conviction
based on attempt. In so doing, we contrasted the “usual
prosecution,” in which “the defendant after obtaining the
10 No. 07-3533
pretend girl’s consent goes to meet her and is arrested
upon arrival,” 536 F.3d at 648, with a case that involves
only explicit sex talk (coupled with the video), id. at 649-50.
In the usual case, “there is a sufficient likelihood that
[the defendant] would have completed [the crime] to
allow a jury to deem the visit to meet the pretend girl a
substantial step toward completion.” Id. at 649. We then
offered some additional thoughts about where the bound-
ary lies:
Travel is not a sine qua non of finding a substantial
step in a section 2422(b) case. . . . The substantial step
can be making arrangements for meeting the girl, as by
agreeing on a time and place for the meeting. . . . It can
be taking other preparatory steps, such as making a
hotel reservation, purchasing a gift, or buying a bus
or train ticket, especially one that is nonrefundable.
Id. (citations omitted).
Davey’s admissions in the plea agreement, set forth
above, go a long way toward meeting the “substantial
step” criteria established in Gladish. He made arrange-
ments for meeting “blonddt,” and he drove to the rendez-
vous point, putting him squarely within the typical
pattern we described. The one element that he may
have avoided addressing is the question whether he
believed that “blonddt” was a minor. As the Government
pointed out at oral argument, however, F ED. R. C RIM. P.
11(b)(3) requires only that “the court must determine that
there is a factual basis for the plea” “[b]efore entering
judgment on a guilty plea.” Both the district court and
we are entitled to take into account not only Davey’s
No. 07-3533 11
admissions in the plea agreement, but also other factual
assertions that he either adopted or did not object to. The
letter that he submitted at the hearing on his motion to
withdraw the plea is one such piece of evidence. This
letter, he argued, showed that his purpose in meeting
“blonddt” was to warn her of the dangers of Internet-
initiated liaisons. It makes no sense to infer that he
thought he needed to warn an adult posing as a child
of these risks; this part of his defense was premised on
the notion that he genuinely thought that “blonddt” was
a child, as he was driving to South Bend from Michigan.
In addition, the presentence report contains factual asser-
tions to which Davey did not object that support the
finding that Davey believed he was about to have a tryst
with a minor.
III
By the time the district court entered judgment on
Davey’s guilty plea, there was a firm factual basis for
finding that he had attempted to entice a person under
the age of 18 to engage in unlawful sexual activity, in
violation of 18 U.S.C. § 2422(b). The district court there-
fore did not abuse its discretion when it refused to
permit Davey to withdraw his guilty plea. Davey has also
argued that his sentence of 126 months violates the
Eighth Amendment. Since we have concluded that his
guilty plea was knowingly, intelligently, and voluntarily
entered, the waiver of appeal rights contained in his plea
agreement bars our consideration of this point. (We see
no reservation in that waiver for constitutional argu-
12 No. 07-3533
ments.) In any event, under the narrow proportionality
rule that applies to noncapital sentences, see Ewing v.
California, 538 U.S. 11, 20 (2003), there was no violation
here. It is up to Congress to decide how severely different
crimes should be punished. Congress has prescribed a
minimum of ten years for violations of § 2422(b), and this
sentence is not out of line with those imposed for
various other offenses relating to sexual abuse of children.
See 18 U.S.C. § 2251(e) (sentence of 15 to 30 years for first-
time offenders of statute prohibiting sexual exploitation
of children); 18 U.S.C. § 2252(b) (sentences ranging from
5 to 20 years for first-time offenders for various activities
relating to visual depictions of minors engaging in
sexually explicit conduct). Even if Davey’s Eighth Amend-
ment argument somehow escapes his appeal waiver,
therefore, we would reject it.
The judgment of the district court is A FFIRMED.
12-18-08