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United States v. McIlrath

January 10, 2008


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06-CR-182-J. P. Stadtmueller, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.


Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

The defendant pleaded guilty to the crime of traveling across state lines to have sex with a minor, in violation of 18 U.S.C. § 2423(b), and was sentenced to 46 months in prison. That is the bottom of the applicable sentencing guidelines range, but he challenges the sentence as too severe, arguing that he should have been sentenced just to home confinement.

The defendant was caught in a standard Internet sting. A detective entered a chat room pretending to be a 15-year-old girl. She received a message from the defendant ask- ing her whether she wanted to chat. When she replied affirmatively he engaged her in sex talk that led eventually to his proposing that he travel to her city (which was in a different state) to have sex with her. She agreed; he went there and was arrested. In another chat, a copy of which was found on his computer, he had persuaded a 12-year-old girl to agree to have sex with him, although apparently they never did.

The defendant was 31 years old when he committed the crime and had no criminal record. He was a loner who had not had sex until the previous year, with a woman who then rejected him, breaking his heart and (he claimed) precipitating the incidents with the 12- and (supposed) 15-year-old girls. A forensic psychologist named Eric Ostrov opined that the defendant had been driven to commit the crime after suffering for years from low self-esteem and poor body image. Dr. Ostrov estimated that there was a 9-to-13 percent risk of the defendant's repeating his crime, although he thought the risk could be reduced by counseling and psychotropic medication. He further opined that prison would be devastating for the defendant; he "would have almost no resources for coping with prison life" and would be a "target for predators." The defendant's father asked for leniency for his son because of both parents' ill health. He also noted the defendant's cooperation with the government, solid record of employment, and charitable work. The defendant echoed his father and added that he had lost his job and his savings (plus his car, forfeited as an instrumentality of the crime) as a result of his conviction.

The judge gave extended consideration to the mitigating factors urged by the defendant's lawyer. But he did not think they justified a below-guidelines sentence. He was rather dismissive of psychological evidence, remarking that persons in the defendant's position "hire very expensive psychotherapists, psychologists, psychiatrists, counselors and come into court and plead with my colleagues in other parts of the country to have a sentence of probation." He stated that the kind of preying on minors, with the aid of the Internet, that the defendant engaged in "is a deadly, deadly, serious problem that we have as a society," and "there are many, many more Marias [the detective's stage name was Maria] out there who are actual victims, who have the same emotional scars, perhaps even deeper than the scars that are confronting you on a day like today; and we as a society have found, unfortunately, no better way to deal with this serious, serious problem other than to incapacitate or remove individuals from the community for a period of time not only as a form of punishment but a form of deterrence not only to you personally but deterrence to others who may find themselves similarly situated."

These and similar remarks of the judge at sentencing discharged his duty to consider not only the sentencing guidelines, but also the sentencing factors set forth in 18 U.S.C. § 3553(a), the most important of which we quote once again:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been ...

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