In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1773
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P AUL B RADLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09 CR 40068—G. Patrick Murphy, Judge.
S UBMITTED S EPTEMBER 14, 2011—D ECIDED A PRIL 5, 2012
Before B AUER, W ILLIAMS, and T INDER, Circuit Judges.
P ER C URIAM. The defendant Paul Bradley pleaded
guilty to traveling in interstate commerce to engage in
sexual conduct with a minor. See 18 U.S.C. § 2423(b). He
This successive appeal has been submitted to the original
panel under Operating Procedure 6(b). After examining the
briefs and the record, we have concluded that oral argument
is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
2 No. 11-1773
has now had two sentencing proceedings. At the first,
the district court sentenced him to 240 months’ impris-
onment with ten years of supervised release, despite a
guidelines range of 57-71 months. The district court
based this sentence on presumed prior acts of the de-
fendant and an unsupported assumption of recidivism,
and for those reasons, we remanded the case for resen-
tencing. United States v. Bradley, 628 F.3d 394 (7th Cir.
2010). At Bradley’s second sentencing, the district court
again sentenced him to 240 months’ imprisonment,
despite the same guidelines range of 57-71 months and a
government recommendation of 71 months. The court
further added a lifetime term of supervised release.
Bradley appeals this sentence on the grounds that the
district court failed to provide sufficient justification for
the sentence 169 months above the guidelines range,
and because the district court did not adequately con-
sider the statutory factors in § 3553(a). For the reasons
set forth below, we once again vacate the sentence and
remand for resentencing.
I. BACKGROUND
Our previous opinion summarizes the facts of this
case, Bradley, 628 F.3d at 395-400, but we provide a sum-
mary of the facts relevant to the present appeal.
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 to
No. 11-1773 3
meeting T.S. through an adult 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. 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 uncov-
ered evidence of two child pornography images, one
of them deleted.
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 one,
yielding a guidelines imprisonment range of 57 to 71
months. The probation officer did not identify any
factor that would warrant a sentence above the guide-
lines range. The district court adopted the proposed
findings without any objections from the parties. At
the first sentencing the government requested an above-
guidelines range sentence of 87 months. The district
court imposed a sentence of 240 months’ imprisonment,
169 months above the high end of the guidelines range.
We vacated the sentence because the district court
failed to support its assumptions that Bradley had com-
mitted prior crimes and that he would likely commit
more crimes if released. The district court’s unneces-
sarily harsh and exaggerated language, in conjunction
with the lack of justification offered for the extreme
variance from the guidelines, informed our decision
4 No. 11-1773
that the sentence was unreasonable. Bradley, 628 F.3d
at 401. We also noted that the court adopted the findings
of the presentence report, but that the presentence
report contained material factual discrepancies because
Bradley’s and the victim’s accounts of the events
were incompatible. Id. We stated that the district court
as a first step to considering the appropriate sentence,
had to resolve these disputed issues of fact.1 Id.
Before Bradley’s second sentencing proceeding, the
defense filed five ex parte motions for issuance of sub-
poenas duces tecum seeking the victim’s schooling,
juvenile court, medical, and mental health records per-
taining to the victim, which the district court denied.
At sentencing, the district court stated it would only
rely on the stipulated facts, and would not give any
weight to the contested portions of the presentence
report. The court made clear that it would not, as the
first district court had, speculate as to the defendant’s
prior acts for which there was no support, nor would it
speculate as to the defendant’s likelihood of recidivism.
The district court assessed the § 3553(a) factors, finding
many of them irrelevant, except the nature and circum-
stances of the offense. Regarding that factor, the court
stated that “[i]t’s difficult to conjure up a more serious
crime than sodomizing a child.” The district court then
made a comparison of the instant offense to drug crimes
and murder, noting that “the consequences of this
1
In our previous opinion, Circuit Rule 36 applied on remand,
and the case was reassigned.
No. 11-1773 5
offense are of a different magnitude than the offense of
providing someone an intoxicating narcotic. . . . [T]he
nature and circumstances of this offense have to be
put slightly below the offense of murder.” The district
court again sentenced Bradley to 240 months’ imprison-
ment, despite the same guidelines range of 57-71 months
and the government’s recommendation of 71 months.
The court also increased his term of supervised release
to life. Following the pronouncement of the sentence,
the district court issued a written “Addendum to Judg-
ment.” The court wrote that “very few crimes are more
serious than the stipulated conduct involved here,” and
that:
This Court regularly sentences drug offenders to
20 years in prison. Congress has said that drug
offenses are serious and warrant such heavy
sentences. Congress also has spoken on crimes
against children. Specifically, 18 U.S.C. § 2422(b)
carries a 10-year-mandatory minimum. This
Court has sentenced offenders under that statute
to 10-year sentences, where the conduct involved
did not include having sex with the minor. In
this case Paul Bradley enticed the minor victim
to have sex, traveled in interstate commerce for
that purpose, and completed the sexual act.
Bradley again appeals his sentence.
II. ANALYSIS
Bradley argues that his second sentence was unrea-
sonable because the district court failed to sufficiently
6 No. 11-1773
justify the sentence 169 months above the guidelines
range, and because the district court did not adequately
consider the factors in § 3553(a). We review the reason-
ableness of the sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007).
“[W[e will uphold an above-guidelines sentence so
long as the district court offered an adequate statement
of its reasons, consistent with 18 U.S.C. § 3553(a), for
imposing such a sentence.” United States v. McIntyre, 531
F.3d 481, 483 (7th Cir. 2008) (citing United States v. Castro-
Juarez, 425 F.3d 430, 436 (7th Cir. 2005)). We have
found that the guidelines regime following Kimbrough
v. United States, 552 U.S. 85, 101 (2007), “permits a sen-
tencing judge to have his own penal philosophy at
variance with that of the Sentencing Commission.” United
States v. Higdon, 531 F.3d 561, 562 (7th Cir. 2008) (gathering
cases). Following Kimbrough, we have also stated that
“district judges are at liberty to reject any Guideline on
policy grounds,” but we have stressed that “they must
act reasonably when using that power.” United States v.
Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc) (emphasis
in original). In acting reasonably, “[a]s a matter of pru-
dence, . . . in recognition of the Commission’s knowl-
edge, experience, and staff resources, an individual
judge should think long and hard before substituting
his personal penal philosophy for that of the Commis-
sion.” Higdon, 531 F.3d at 562. A sentencing judge must
give “respectful consideration to the judgment em-
bodied in the guidelines range that he computes.” Id.
Additionally, “the court . . . needs to understand the
relation between the [g]uidelines and the ultimate sen-
No. 11-1773 7
tence.” United States v. Bartlett, 567 F.3d 901, 909 (7th
Cir. 2009). In this case, the record does not suggest that
the court’s sentence was based on a policy disagree-
ment with the applicable sentencing guideline. No party
argued the applicable guideline was deficient, and the
court did not anywhere state that its sentence was
based on a rejection of U.S.S.G. § 2G1.3(a)(4). The rec-
ord also does not show that the court employed a penal
philosophy at odds with the applicable guidelines after
respectful consideration of the guidelines range.2 “A
sentencing judge is not required to ‘delve into the
history of a guideline,’” United States v. Garthus, 652 F.3d
715, 721 (7th Cir. 2011) (quoting United States v. Aguilar-
Huerta, 576 F.3d 365, 368 (7th Cir. 2009), but where a
sentence is so far above the guidelines range, if such
a sentence is based on a policy disagreement, we
would expect to be alerted to as much.
We next look to the factors set forth in 18 U.S.C.
§ 3553(a). United States v. Johnson, 612 F.3d 889, 896 (7th
Cir. 2010) (“[A] district court may impose an above-
guideline sentence based on the factors set forth in
§ 3553(a).”). When reviewing a sentence, we must deter-
mine whether the district court offered justification
“sufficiently compelling to support the degree of vari-
ance. . . . [A] major departure should be supported by a
2
We note that the same court has sentenced a defendant
under the same statutory provision to a within-guidelines
sentence after a remand from this court. See United States
v. Miller, 08-cr-30253, Dkt. No. 57 (S.D. Ill. Aug. 5, 2010).
8 No. 11-1773
more significant justification than a minor one.” United
States v. Miller, 601 F.3d 734, 739 (7th Cir. 2010) (quoting
Gall, 552 U.S. at 50). We have stated that “[i]f the sentence
imposed is outside the guidelines range, the district
court must provide a justification that explains and
supports the magnitude of the variance.” United States
v. Carter, 538 F.3d 784, 789 (7th Cir. 2008) (citing
United States v. Omole, 523 F.3d 691, 697-98 (7th Cir. 2008).
The greater the departure, the more searching our re-
view will be. Higdon, 531 F.3d at 563 (“[T]he greater
the departure, the more searching will be the appel-
late review of the judge’s exercise of his sentencing dis-
cretion.”); see also Johnson, 612 F.3d at 896 (“[a]bove-guide-
line sentences must be supported with “compelling justi-
fications”) (emphasis added); Gall, 552 U.S. at 51 (dis-
trict court must “justify the extent of the variance”) (em-
phasis added).
The main reason proffered by the district court for the
imposition of the sentence 169 months above the guide-
lines range was purportedly the nature and circumstances
of Bradley’s particular offense. The judge stated that
“the nature and circumstances of this offense have to
be put slightly below the offense of murder.” At sen-
tencing, the court addressed many of the 18 U.S.C.
§ 3553(a) factors, finding them irrelevant, but stated
that “[s]o what we’re talking about here are the nature
and circumstances of the offense.” The court continued
with this reasoning in its written addendum, stating
that “[v]ery few crimes are more serious than the stipu-
lated conduct involved here.” During the proceeding,
the judge stated that the crime was “calculated” and
No. 11-1773 9
“involved a lot of thought.” In the written addendum,
the court added that Bradley “traveled roughly 2000
miles to have sex with a boy that he knew was 15-years-
old,” and that “[t]his sentence is based on Paul Bradley’s
desire to have sex with a child, which he acted on.”
The problem with this rationale is that it provides
little more than what is implicit in the instant offense.
18 U.S.C. § 2423(b) proscribes interstate travel with
intent to engage in sexual conduct with a minor.3 And
the district court did not articulate either at sentencing
or in its addendum why Bradley’s journey required
more thought than any other person crossing a state
3
18 U.S.C. § 2423(b) states:
Travel with intent to engage in illicit sexual conduct. A
person who travels in interstate commerce or travels
into the United States, or a United States citizen or
an alien admitted for permanent residence in the
United States who travels in foreign commerce, for
the purpose of engaging in any illicit sexual conduct
with another person shall be fined under this title or
imprisoned not more than 30 years, or both.
18 U.S.C. § 2423(f) provides:
Definition. As used in this section, the term “illicit
sexual conduct” means (1) a sexual act (as defined in
section 2246) with a person under 18 years of age that
would be in violation of chapter 109A if the sexual act
occurred in the special maritime and territorial juris-
diction of the United States; or (2) any commercial sex
act (as defined in section 1591) with a person under
18 years of age.
10 No. 11-1773
border with intent to commit the instant offense. “An
above-guidelines sentence is more likely to be rea-
sonable if it is based on factors [that are] sufficiently
particularized to the individual circumstances of the
case rather than factors common to offenders with like
crimes.” United States v. Jackson, 547 F.3d 786, 792-93 (7th
Cir. 2008) (internal quotation marks and citations
ommited); see also Miller, 601 F.3d at 739. Here, it is not
clear how the individual circumstances of the offense
were used to calculate Bradley’s sentence.
The court found that “Bradley enticed the minor
victim to have sex, travelled in interstate commerce for
that purpose, and completed the sexual act.” To the
extent the district court relied on the commission of the
sexual act when calculating its sentence, an element
not required for a conviction under 18 U.S.C. § 2423(b),
Bradley’s base offense level was increased by two
points pursuant to U.S.S.G. § 2G1.3(b)(4)(A) for the
“commission of a sex act.” So what the court seemed to
rely upon for the sentence it imposed was already
factored into the properly calculated guidelines range.
It is not clear from the sentencing record how any indi-
vidual circumstances of the commission of the sex act
in this case were used in arriving at the chosen sentence.
We keep in mind that even where a judge con-
siders “normal incidents” of an offense, “if such consid-
eration is just one of many reasons the judge gave for
a sentence outside the guidelines range, the sentence
will be affirmed.” Carter, 538 F.3d at 790 (internal cita-
tions omitted); see also United States v. Aldridge, 642 F.3d
No. 11-1773 11
537, 544 (7th Cir. 2011). Here, however, the potential
additional rationales for the sentence 169 months above
the guidelines range do not provide the “sufficient justifi-
cation” required.
The district court noted the 10-year mandatory mini-
mum sentence under 18 U.S.C. § 2422(b). The court stated
that “[t]his Court has sentenced offenders under that
statute to 10-year sentences, where the conduct involved
did not include having sex with the minor.” Under 18
U.S.C. § 2422(b), “[w]hoever, using the mail or any
facility or means of interstate or foreign commerce . . .
knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to
engage in prostitution or any sexual activity for which
any person can be charged with a criminal offense, or
attempts to do so,” faces a 10-year mandatory minimum.
But because the statute imposed a 10-year mandatory
minimum, the judge was required to sentence the defen-
dants in those cases to at least ten years (and apparently
sentenced them to no more). We cannot tell from the
record whether the judge considered that the sentences
in the cited § 2422(b) cases were no greater than neces-
sary to serve the goals of sentencing, and accordingly,
cannot tell why a sentence that is twice the mandatory
minimum mandated by 18 U.S.C. § 2422(b) is the appro-
priate sentence in this case.4
4
The court also noted that drug offenders often received 20-
year sentences, and that “the consequences of this offense are
of a different magnitude than the offense of providing
(continued...)
12 No. 11-1773
Bradley raises other objections to the sentence as well.
First, he argues that the sentencing court violated the
command of § 3553(a)(6) to take into account the need
to avoid unwarranted sentencing disparities among
defendants with similar records who were found guilty
of similar conduct. In the court’s written addendum,
it dismissed Bradley’s argument that the court should
avoid a disparity with the 46-month sentence the defen-
dant received in United States v. McIlrath, 512 F.3d 421
(7th Cir. 2008). In that case involving a “sting,” the defen-
dant believed he was chatting with a 15-year-old girl,
who in fact did not exist. No sex act was completed in
McIlrath, the main distinction drawn by the sentencing
judge in this case. So the judge was correct to find the
conduct dissimilar for § 3553(a)(6) purposes. However,
Bradley cited cases at sentencing in which the defendant
did engage in sexual contact with the victim, and where
the defendants received far lower sentences, cases left
unaddressed by the district court. See, e.g., United States
v. Kenrick, 306 Fed. Appx. 794, 795 (3d Cir. 2009) (46-
month sentence where defendant had sexual contact
with 13-year-old victim); United States v. Miller, 08-CR-
30254 (S.D. Ill. Aug. 2, 2010) (imposing a sentence of
87 months’ incarceration where the defendant traveled
in interstate commerce for the purpose of engaging
in sexual conduct and did engage in sexual conduct
4
(...continued)
someone an intoxicating narcotic.” Again, however, such a
finding was not made individually with respect to the cir-
cumstances of this case or Bradley in particular.
No. 11-1773 13
with a 14-year-old-girl and where the government pre-
sented evidence that defendant had a prior relationship
with another minor). “A sentencing court need not re-
spond expressly to every argument a defendant makes,
but it must address all of a defendant’s principal argu-
ments that are not so weak as to not merit discussion.”
United States v. Johnson, 643 F.3d 545, 549 (7th Cir.
2011) (citations and internal quotations omitted). Section
3553(a)(6) requires a court to consider such disparities,
and in this context, reference solely to one dissimilar
case without even referencing those cited cases involving
conduct that is in fact similar does not satisfy that re-
quirement. Cf. United States v. Kirkpatrick, 589 F.3d 414,
415 (7th Cir. 2009) (“Whenever a court gives a sentence
substantially different than the Guidelines’ range, it
risks creating unwarranted sentencing disparities, in
violation of 18 U.S.C. § 3553(a)(6), for most other judges
will give sentences closer to the norm.”).
The Government urges us to affirm Bradley’s sentence
because other courts have affirmed sentences above
the guidelines for cases involving sexual exploitation of
children. However, in these cases the sentences were
justified with individualized factors, such as the very
young age of the victim, a history of past abuse, the
severity of abuse, or that the victim was in the care and
custody of the defendant. See, e.g., United States v.
Henzel, ___ F.3d ___, 2012 WL 523523, at *7 (7th Cir. Feb.
17, 2012) (affirming 135-month sentence where the
judge’s reasons were “sufficiently particularized to
[the defendant] and his offense,” including his directing
a 12-year-old girl to ingest drugs and alcohol, coercing
14 No. 11-1773
her into sexual activity despite her obvious fear and
repeated protests, and where the judge found that the
defendant was selfish, immature, and failed to grasp the
consequences of his actions); United States v. Jordon, 435
F.3d 693, 697 (7th Cir. 2006) (upholding sentence 103
months above the guidelines range, citing severity of
the offenses, past conviction for abusing his three-year-
old daughter, and risk of recidivism); United States v.
Sanchez, 440 Fed. Appx. 436, 441-42 (6th Cir. 2011) (unpub-
lished) (court found sentence that was five years above
the mandatory minimum to be justified due to the
duration of the abuse, past abuses of the defendant, and
his behavior in the community); United States v. Vowell,
516 F.3d 503, 512 (6th Cir. 2008) (upholding sentence
that was 242% beyond the top of the guidelines range
based on defendant’s past convictions for statutory
rape, the impact on the victim, and that the defendant
was in a position to care for the victim). In this case, no
similar aggravating individual findings were made, and
the court did not dispute that Bradley had no criminal
history, showed remorse, and faced emotional and
family difficulties.
Bradley also argues that the district court gave insuffi-
cient consideration to his history and characteristics. We
note that we do not require that the § 3553(a) factors
be comprehensively “canvass[ed]” in order to justify a
sentence. McIntyre, 531 F.3d at 483 (citation omitted).
However, in this case, the court did reference Bradley’s
history and characteristics in a sympathetic manner,
noting that Bradley “lived and functioned at a fairly
high level under extremely difficult circumstances for
No. 11-1773 15
most of his life,” so it is puzzling from the record how “the
§ 3553(a) factors, on a whole, justify the extent of the vari-
ance.” Gall, 552 U.S. at 51 (emphasis added); see also
United States v. Roberson, 474 F.3d 432, 435-36 (7th Cir.
2007) (finding below-guidelines sentence unreasonable
where, among other errors, discussion of the § 3553(a)
factors were more likely to push the defendant’s sen-
tence upward).
To be sure, the sentencing transcript is not bare, and
the district court took care to avoid particular errors
that occurred during Bradley’s first sentencing. But the
district judge’s discussion made more apparent what he
did not consider in fashioning Bradley’s sentence than
what was considered in determining that a 240-month
sentence and a lifetime term of supervised release
was sufficient, but not greater than necessary to serve
the goals of sentencing. In reversing the sentence, we
do not question that “we will uphold an above-
guidelines sentence so long as the district court offered
an adequate statement of its reasons, consistent with
18 U.S.C. § 3553(a), for imposing such a sentence.”
McIntyre, 531 F.3d at 483 (citation omitted). We only
emphasize that “the court . . . needs to understand the
relation between the [g]uidelines and the ultimate sen-
tence,” Bartlett, 567 F.3d at 909, and that a “major depar-
ture,” like the one in this case, “should be supported by
a more significant justification than a minor one.” Miller,
601 F.3d at 739 (quoting Gall, 552 U.S. at 50). We find
that the district judge failed to provide a “more sig-
nificant justification” to support a 240-month sentence
16 No. 11-1773
and a lifetime term of supervised release, and so we
once again reverse.5
III. CONCLUSION
For the reasons set forth above, Bradley’s sentence is
V ACATED , and the case R EMANDED for resentencing con-
sistent with this opinion. Circuit Rule 36 shall apply
on remand.
5
The district court denied the defendant’s motions for sub-
poenas duces tecum seeking the victim’s records in part
because it found the records irrelevant since the sentence
was to be based only on the stipulation of facts, and because
it did not find that exceptional circumstances existed to
forgo notice to the victim under Fed. R. Crim. P. 17(c)(3). We
do not find this to be an abuse of discretion, to the extent that
the court only relied upon the stipulation of facts. Bradley
argues that the court erred in finding that the stipulation of
facts allowed for a finding that “sodomy” occurred, since the
stipulation of facts only stated that there was “illicit sexual
contact.” The government responds that Bradley pled guilty
to “aggravated criminal sexual abuse of a child,” in the
Illinois state court which forecloses this argument, but since
that record of conviction was not presented to the district court
or on appeal, we decline to address it. The parties should
address on remand the relevance of the state court conviction
to this issue.
4-5-12