Appeal from the United States District Court for the Southern District of Illinois. No. 09-40068-001-JPG-J. Phil Gilbert, Judge.
Before BAUER, WILLIAMS, and TINDER, Circuit Judges.
Paul Bradley pleaded guilty to traveling in interstate commerce to engage in sexual conduct with a minor. See 18 U.S.C. § 2423(b). The district court calculated a guidelines imprisonment range of 57 to 71 months, but sentenced him to 240 months. On appeal Bradley principally argues that his sentence rests on speculation about his prior criminal conduct and likelihood of recidivism, and thus is unreasonable. We agree and vacate the judgment and remand for resentencing.
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 meeting T.S. through a 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.
According to the probation officer, T.S. provided conflicting information during his several interviews. T.S. asserted that he had been talking on MySpace with "Alice Bradley," whom he thought was a 16-year-old girl. He told the probation officer that he and Alice first started talking the month before the defendant's arrest, but later he reported in his victim-impact statement that he and Alice had been communicating for six months. According to T.S. they had arranged to meet in Illinois (T.S. did not say where he thought Alice was from), but on the appointed night Bradley showed up instead and said that Alice was waiting at a motel. At first T.S. maintained that he never went to the motel, but later he said that he was there with Bradley for one night only and that Bradley had threatened to kill him if he did not do as he was told. That statement is at least partly false, since security cameras at the motel recorded images of Bradley and T.S. the night they were discovered in the car, as well as the previous night. In his last interview, T.S. added that Bradley had plied him with alcohol before forcibly sodomizing him. The prosecutor would later concede that this account of a forcible rape was undermined by DNA confirmation that semen found on a motel blanket was from T.S., who had denied engaging in any other sexual activity. T.S. underwent a medical examination after the offense, but the results were not disclosed by the probation officer.
T.S. told the probation officer that after his encounter with Bradley he started drinking heavily in order to feel numb and help him sleep. He also said that he no longer felt comfortable around his father. T.S.'s mother explained that his father had told T.S. that "he got what he deserved, if he was going to do something like that." She related that T.S. had suffered harassment at school, including a fight that resulted in a broken nose. She also expressed worry about T.S.'s present and future sexual behavior and the safety of her younger son when around him. T.S. attended two sessions of counseling, but his deteriorating behavior at school resulted in suspension and then placement in an alternative school. In his victim-impact statement, he described a recurring nightmare about waking up paralyzed, expressed feeling shame when interacting with peers, and recounted the embarrassment and pain of getting tested after the offense. T.S. also said he had suffered "a great deal of public humiliation" when a local paper printed details about the incident, including his name and picture. That article is not sympathetic to T.S.; it discloses that he misrepresented himself as an 18-year-old on MySpace and implies that he was a willing participant in his dealings with Bradley.
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 (presumably one he brought with him to Illinois) uncovered evidence of two "child pornography" images, one of them deleted, as well as what the probation officer described as two "sex-encounter stories" about teenage boys (Bradley's appellate counsel describes these as "teenage boy coming of age stories"). According to the probation officer, the computer also contained several hundred images of "adult pornography," "adult homosexual pornography," and "adult males in lewd poses."
Bradley initially was charged in state court, but he told the probation officer that he had asked his lawyer to contact federal authorities and initiate this prosecution because he thought the state charges were inaccurate, he wanted the case resolved quickly, and he wanted to be incarcerated in a federal prison in California, near his family. (After Bradley's federal sentencing he pleaded guilty in state court to aggravated criminal sexual abuse. Eight other state charges, including child abduction, unlawful restraint, and aggravated kidnapping, were dismissed.) In a stipulated factual basis offered in support of his guilty plea to the § 2423(b) count, Bradley admitted traveling from Oregon to Illinois for the purpose of engaging in sexual conduct with a person he knew to be 15 years old and using his computer to persuade the juvenile to engage in the sexual conduct.
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 I, yielding a guidelines imprisonment range of 57 to 71 months. Under U.S.S.G. § 2G1.3(a)(4), his base offense level was 24, but two levels were added for unduly influencing a minor, id. § 2G1.3(b)(2)(B), two more levels were added for the commission of a sex act, id. § 2G1.3(b)(4)(A), and three levels were subtracted for acceptance of responsibility, id. § 3E1.1(a), (b). The probation officer did not identify any factor that would war-rant a sentence above the guidelines range. The district court adopted the proposed findings without objection from the parties.
At sentencing the government requested an above-range sentence of 87 months. The prosecutor argued that a sentence within the range would not adequately reflect T.S.'s suffering-his removal from school and his picture being printed in a local newspaper-and suggested an increase equivalent to a two-level upward adjustment for a vulnerable victim, see U.S.S.G. § 3A1.1(b). The prosecutor, who had not met with T.S., acknowledged that some of his distress might relate to difficulties surrounding the disclosure of his sexual identity. The prosecutor also commented that he finds it difficult to accept that convictions for possessing child pornography often result in a higher imprisonment range than convictions for crimes, like Bradley's, that actually involve sexual contact with a minor.
Defense counsel, on the other hand, pressed the district court to impose a 60-month sentence, highlighting Bradley's cooperation with the federal investigation, his lack of criminal history, and the fact that T.S. had suffered no physical injury. Defense counsel conveyed regret about the newspaper's identification of T.S., but maintained that Bradley should not be punished for the paper's actions. Defense counsel insisted that Bradley's actions were out of character, and he reminded the court that until his arrest Bradley had earned an education and worked his entire life, had been married for nearly 32 years, was an active father to four daughters, and volunteered at his church.
During his allocution, Bradley told the district court that he met T.S. in a phone sex chatline for adult men, at which time T.S. had said he was an 18-year-old high school senior. Bradley's assertion that he initially thought T.S. was 18 is consistent with the newspaper report that T.S. was misrepresenting his age on MySpace as 18. Bradley maintained that he was upfront with T.S. about his own age and said he began questioning whether T.S. was 18 after seeing his picture on "Facebook" and receiving nude pictures from T.S. (This photo of T.S. may be the "child pornography image" found on Bradley's computer, but the record is not conclusive, and apparently the lawyers for neither side looked at the image.) Bradley admitted knowing that T.S. was underage by the time they met in Illinois, but he insisted that he never deceived T.S. about his intentions, or intimi-dated him, or used or threatened violence. Bradley ex-pressed remorse and assured the court that he had "never done anything like this before" and would "never do anything like it again." The court interrupted ...