Appeal from the United States District Court for the Southern District of Illinois. No. 3:08-cr-30252-GPM-CJP-1-G. Patrick Murphy, Judge.
The opinion of the court was delivered by: Kennelly, District Judge.
Before EASTERBROOK, Chief Judge, and KANNE, Circuit Judge, and KENNELLY, District Judge.*fn1
Catharine Miller pled guilty to one count of traveling in interstate commerce to engage in prohibited sexual conduct with a fourteen-year- old girl in violation of 18 U.S.C. § 2423(b). At her sentencing hearing, the district court overruled Miller's objections to the presentence report and adopted the report's recommended Guidelines sentencing range of seventy to eighty-seven months. The government argued for a sentence above the Guidelines range. The court sentenced Miller to a 120-month prison term. Miller has appealed her sentence. We vacate the sentence and remand for resentencing.
Miller is thirty-three years old and holds an undergraduate degree in engineering, a graduate degree in engineering science, and a graduate certificate in religious studies. She was living in Cincinnati, Ohio when, in July 2008, she initiated an on-line conversation on an Internet forum with a K.H., a fourteen-year-old girl from a town in southern Illinois. Within weeks, they began communicating via telephone and e-mail. Miller and K.H. discussed sex on at least ten occasions and exchanged comments such as "I miss you" and "I love you so much." K.H. sent Miller sexually explicit photographs of herself and told Miller of her sexual encounters with other females. On October 29, 2008, K.H. informed Miller that she was fourteen years old. K.H. also told law enforcement that she knew Miller was thirty-three years old.
Eventually, K.H. informed Miller that she wanted to break up because she wanted to begin a relationship with someone who lived closer to her. Miller later told law enforcement that this prompted her to visit K.H. In November 2008, Miller drove from Ohio to Illinois. She met K.H. in a park and, shortly thereafter, proposed marriage and gave K.H. a ring. Miller had already spent three days and one night with K.H. when, on November 17, 2008, K.H.'s stepfather discovered them together in the back of Miller's vehicle at a local park.
On December 2, 2008, a federal grand jury returned a one-count indictment charging Miller with traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor in violation of 18 U.S.C. § 2423(b). On March 25, 2009, Miller pled guilty to the charge.
In the presentence report, the probation office recom-mended that the court impose an enhancement to the Sentencing Guidelines offense level for unduly influencing a minor to engage in prohibited sexual conduct. See U.S.S.G. § 2G1.3(b)(2)(B). After taking into account this and other enhancements and a reduction for acceptance of responsibility, the probation office recommended an advisory Guidelines range of seventy to eighty-seven months' imprisonment. The probation office also noted that it had not identified any factors that would warrant a departure from the Guidelines range.
At the sentencing hearing, Miller objected to the "undue influence" enhancement. She presented evidence that the victim had stated that she had been sexually active with both male and female partners. The district court overruled the objection and applied the enhancement. It found, consistent with the presentence report, that the advisory Guidelines range was seventy to eighty-seven months.
The government argued for a sentence above the advisory range. In support, it offered evidence that Miller had a prior relationship with another minor-a photo album that had been seized from Miller's home. Miller's counsel objected. He said that he had not previously seen the evidence and that it had not been brought to his attention by the government during the pendency of the case. He argued that the defense "should have an opportunity to see that evidence before it's put before the Court. And we've not been afforded that opportunity here." July 13, 2009 Tr. 17. The district judge asked what counsel would have done differently if he had the evidence earlier. Counsel replied, "I'd have an opportunity to confer with my client and look into what information is actually represented." Id. 18. The judge then announced, "[W]e will take a five-minute recess." Id. Following the recess, the judge asked if counsel wanted to say anything further. Counsel replied, "No. I'm just thankful for the opportunity, your Honor." Id. 19.
Counsel then presented arguments regarding the appropriate sentence. The prosecutor said that the materials in the photo album reflected that Miller had a relationship with a high school-aged minor in 2004-2005. He argued that Miller would be a danger to other young girls when she got out of prison and that the court should impose a significant prison term to incapacitate her. The prosecutor started to say that while in prison, Miller could get counseling. The judge interrupted, saying that "[t]he recidivism rate of child sexual abusers is-it's massive. . . . Nothing seems to work." Id. 23. Defense counsel argued that a seventy-month sentence was sufficient, noting that Miller had no prior encounters with the criminal justice system. Counsel also noted that the court had the authority to put Miller on supervised release for the rest of her life and that there were mechanisms that would result in her being monitored closely.
The court reviewed the factors it was considering in imposing sentence. It found the circumstances of the crime to be aggravated given the difference in age between Miller and her victim and the fact that Miller was highly educated and intelligent and had not acted out of ignorance. The court also discussed the severely injurious effect of the crime on the victim and the difficulty she likely would have in recovering. On the issue of deterrence, the court said, "[D]eterrence just doesn't seem to have the effect that we wish that it would" but that it had nonetheless taken this factor into account. Id. 27-28. The court stated that it considered the need to protect the public from Miller to be "what this case comes down to." Id. 28. It stated that "the issue here is the protection of the public" and noted that "because of her intelligence and training, [the defendant] is particularly dangerous." ...