United States v. Carey Ray
2016 U.S. App. LEXIS 13668
| 7th Cir. | 2016Background
- Carey Ray, 29, met an undercover 14-year-old ("Alexia") online; transported her from Indiana to Illinois, rented a motel room, gave her marijuana and cognac, and had sexual intercourse; jury found he knew her age and used force.
- Convicted under 18 U.S.C. § 2423(a) (transporting a minor across state lines to engage in sexual activity) and indicted on Illinois aggravated criminal sexual abuse (720 ILCS 5/11-1.60) theories: force/threat and age-difference.
- Jury instructions listed Illinois statute elements but treated consent and a reasonable belief about age as defenses (with burden placed on the prosecution to disprove them beyond a reasonable doubt). Ray argued this relieved the prosecution’s burden.
- Sentencing used U.S.S.G. §2G1.3 with a cross-reference to §2A3.1 based on a finding Ray used force (invoking 18 U.S.C. §2241), producing a higher guideline range; Ray objected to the cross-reference and alleged double counting.
- After Ray appealed, the district court—without using Circuit Rule 57 or holding a new Rule 32 resentencing hearing—modified nine supervised-release conditions under 18 U.S.C. §3583(e)(2); Ray appealed that procedural course and some revised conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of intent to transport for sex across state lines | Ray: No proof he intended to have sex when crossing into Illinois | Prosecution: He discussed sex, rented a motel immediately, and forced intercourse—evidence of preexisting intent | Court: Evidence sufficient; jury could infer intent when crossing state line |
| Jury instructions treating consent and reasonable belief about age as defenses | Ray: These should be elements; calling them defenses risked confusing jury and shifting burden | Govt: Illinois law treats them as defenses; district court nonetheless required prosecution to disprove them beyond a reasonable doubt | Court: Instructions were lawful—district court put burden on prosecution; federal practice controls; no reversible confusion shown |
| Sentencing cross-reference to §2A3.1 (force) and alleged double counting | Ray: No force; using a force-based guideline plus force-specific characteristic double counts | Govt: Victim testimony and injuries support force; Vizcarra permits counting same fact under multiple guideline provisions | Court: Cross-reference justified; "double counting" not reversible under Vizcarra and guideline text |
| District court's modification of supervised-release conditions during pending appeal | Ray: District court lacked authority to change conditions during the appeal and failed to use Circuit Rule 57 or hold a Rule 32 hearing; some conditions remain improper | Govt: §3583(e)(2) allows modification “at any time,” so district court could act during appeal and promptly fix conditions | Court: Regardless of jurisdictional debate, district courts should not revise conditions while appeal pending without seeking Circuit Rule 57 permission; here modification was improper—vacated sentence and remanded for full resentencing with Rule 32 procedure |
Key Cases Cited
- United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (permits a single fact to be counted under multiple Guidelines or offense characteristics)
- United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) (requires full resentencing when supervised-release conditions are unjustified or vague)
- United States v. Kappes, 782 F.3d 828 (7th Cir. 2015) (supervised-release condition standards and need for procedural protections)
- United States v. Ramer, 787 F.3d 837 (7th Cir. 2015) (held §3583(e)(2) permits district courts to modify supervised-release conditions while appeal is pending)
- United States v. Taylor, 796 F.3d 788 (7th Cir. 2015) (applied Ramer’s reasoning to probation conditions)
- Eberhart v. United States, 546 U.S. 12 (2005) (timing rules vs. jurisdictional rules in post-trial proceedings)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (federal courts must have jurisdiction to decide merits; cannot assume hypothetical jurisdiction)