UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY J. JULIAN, Defendant-Appellant.
No. 04-1574
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 4, 2005—DECIDED OCTOBER 24, 2005
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:02CR61—Rudy Lozano, Judge.
ROVNER, Circuit Judge. A jury convicted defendant-appellant Timothy Julian of conspiring to travel in foreign commerce with the intent to engage in illicit sexual conduct, in violation of
As this case comes to us following Julian’s conviction by a jury, we are obliged to view the trial evidence in a light favorable to the government. E.g., United States v. Carraway, 108 F.3d 745, 750 (7th Cir. 1997) (per curiam).
In November of 1997, Timothy Julian made the acquaintance of Robert Decker while vacationing in Acapulco, Mexico. Decker lived in Acapulco but, like Julian, hailed from the United States. Decker also shared in common with Julian a sexual interest in young boys; both men, in fact, previously had been convicted of child molestation. Julian and Decker decided to embark on an entrepreneurial vеnture in so-called “sex tourism” in Acapulco by creating a guest house and safe haven for pedophiles, who were sometimes referred to by the witnesses in this case as “boy lovers,” meaning men who liked to engage in sexual acts with male children. Julian, who was unhappy with his work and life in the United States, hoped eventually to move to Acapulco and manage the hotel full-time. Pending Julian’s relocation, the men agreed that Decker, who could read and speak Spanish, would manage the hotel, while Julian would take responsibility for funding the operations of the hotel, advertising, and booking its guests.
To get the business off the ground, the men found a mansion to rent on Privada de La Marina in Acapulco which they named Castille Vista del Mar (hereinafter, “CVM”). CVM had six bedrooms, a gymnasium, a pool, and (as its name suggests) a view of the ocean. At one time, it was part of the estate owned by William Boyd, the American actor who brought to life novelist Clarence Mulford’s cowboy hero Hopalong Cassidy on the silver screen in the 1930s and 40s. Julian helped to choose the property and negotiate the terms of the lеase but had to return to the States before the lease was ready to sign, so Decker signed the lease agreement for both of them. Decker signed the lease as Roberto
To round up customers for the hotel, Julian created a website (to which he had the sole access code), designed internet advertisements, and engaged in personal solicitation. One of the advertisements featured a 12 year-old boy along with an announcement that “escorts” were рrovided for guests of the resort. Decker testified that in paying for their visits to the resort, guests would initially make a deposit to Julian’s bank account in the United States and pay the remainder either before or upon their arrival in Mexico.
To “staff” the hotel, Decker and Julian recruited boys from the beaches and town square of Acapulco. The boys ranged in age from seven to 18 years old and were from throughout Mexico. Decker testified that it was “[e]xtremely easy” to recruit these boys. Feb. 10, 2003 Tr. (Decker excerpt) at 26. Some had run away from troubled homes, while others were altogether homeless. They were lured to CVM with promises of shelter, food, and other benefits. Soon after arriving at the hotel, however, the boys learned that they were expected to have sex with the hotel’s guests as a condition of staying there. For the most part, the boys complied, often because they had no other choice. As one of the boys explained, “Two or three things were done by force; two or three things were maybe done in order to get the things they [Julian and Decker] had promised. A lot of them
The companionship and sexual services of the boys were included in the rate Decker and Julian charged their guests. On arrival at CVM, a guest would be offered his pick of the four or five boys who were living at the hotel; if a guest was not satisfied with the selection, he might be taken to the gay beach in Acapulco to pick up another boy. Although the guests were not required to pay the boys, they sometimes gave the boys shoes, clothing, and other gifts. Decker urged the boys to swim naked in the pool when a guest was present to drum up business for themselves. One of the boys would later testify that, according to Decker, “the more naked we were, the better for us, because we would be able to get more things.” Feb. 11, 2003 Tr. (Calderon/Cesena excerpt) at 42.
David Calderon was one of the boys who was recruited to live at CVM. Calderon testified that he was 16 or 17 years old when he lived at the hotel.1 Decker and Julian had told Calderon that CVM was a shelter for homeless children like himself and that they would help him. Among the responsibilities assigned to Calderon was the task of cleaning the guest rooms; and on one occasion, Julian also gave him 12,000 pesos with which to pay the monthly rent on the property to the landlord. However, Calderon quickly learned that boys staying at the resort also were expected to sexually service the guests.2 Cal
Roberto Ezekiel Guzman Cesena stayed at CVM for a period of five months. Cesena was born in 1985 and was 13 years old when he lived at the hotel. Cesena had been left without a home and means of support after his uncle, with whom he had been living, took a job in Mexico City. Cesena had met Decker on a beach in Acapulco and had traded sex with him for food, housing, and money. Cesena and a friend had been living with Decker for nine months when Julian and Decker started the hotel, and he moved to CVM on the promise of a job.3 Cesena recalled that he had met Julian for the first time when Decker took him to an Acapulco apartment or hotel (not CVM) where Julian was staying; on that occasion, Julian attempted to penetrate Cesena with his penis. Julian later told Cesena that if he did not wish to engage in this type of activity, he was always free to leave CVM. Penniless and with few options, Cesena remained at the hotel, where he was subsequently grabbed and forcibly raped by Julian and Decker. Cesena stuck it out for another two weeks after that attack, hoping that Julian and Decker would honor their promise to buy him a bus ticket to Tijuana, where his
Although Decker was responsible for the day-to-day management of CVM, Julian returned to Acapulco on several occasions to “host” the clients he had recruited to stay at the hotel. According to Decker, Julian was at CVM on a total of three or four occasions and while there also made use of the sexual services of some of the young boys.4
The advertising that Julian had prepared for CVM attracted client Richard Coon, who had been searching the World Wide Web for sex tourism sites and was first alerted to the nature of CVM by an ad’s use of the term “young guys” and by Julian’s use of the phrase “young smooth boys” in subsequent e-mail correspondence with Coon. Feb. 12, 2003 Tr. (vol. 3) at 30-31. After informing Julian of his preference for boys in the range of 14 to 16 years old, Coon booked a stay at CVM for October 14 through October 22 of 1998. Coon’s all-inclusive package, arranged through Julian, included a room, breakfasts, and an escort for seven days at a total cost of $700.5 Julian returned to Acapulco to host Coon’s visit to the hotel on October 14, 1998. Julian met Coon at the airport, and he was later present when Coon picked an escort for the week from a group of four boys. Although the boys presented to Coon were 14 to 17 years old, Coon saw a boy he believed to be as young as eight years old on the CVM premises. Coon believed his chosen escort Armando, with
Later in October, during the week of Halloween, Louis Accordini, a longtime friend of Julian’s, also came to the resort to bring Julian some of his belongings. Julian at this point was preparing to live in Acapulco full time. At Julian’s urging, Accordini had considered investing in CVM, understanding that Julian was eventually going to run the place; but Accordini had opted instead to assist Julian by depositing checks for the hotel into Julian’s bank account and ensuring that there were funds in Julian’s accounts that could be accessed at ATMs in Mexico. When Julian first mentioned CVM to Accordini, he described it as a gay resort. Later, Julian told him that it was a haven for men who were sexually interested in boys, as both Julian and Accordini were. Accordini understood that “the boy-lovers could go down there and have their choice of males they wanted.” Feb. 12, 2003 Tr. (vol. 3) at 55.
Accordini had visited CVM on two occasions prior to October 1998 and had sex with a boy named Edgar, whom he believed was 15 to 17 years old, and another named Armando, whom he believed was 17 or 18 at the time. Accordini became infatuated with Armando, and when Armando told him that he wanted to come to the United States, Accordini consulted with Julian. Julian suggested that he (Julian) could give Armando a ride to (or near) the border crossing, where Armando would meet up with a “coyote” (i.e., smuggler) to take him across into the United States. Accordini subsequently sent Julian a check for $300 to $400, assuming that Julian would use some of the proceeds to pay for gas and other expenses and that the rest would be given to Armando. Events proceeded as planned, and Armando successfully crossed the border in or around May 1999. Following the crossing, Armando telephoned Accordini from Mesa, Arizona, and instructed him
CVM never proved to be the financially successful operation that Decker and Julian had hoped it would be. By Decker’s estimate, a total of only eight guests stayed at the hotel over the life of the venture. The premises were in need of repair, at times the hotel pool was empty of water, and electrical power to the building was intermittent; and Decker himself proved to be an inept manager. Decker had expected that Julian would pay him a salary for managing the property, but Julian had other intentions. Decker took to making several bookings of his own at the hotel, the proceeds of which he kept to himself.
Eventually, Julian and Decker parted ways. According to Decker, in late October or November 1998, when Julian was relocating to Acapulco, he sensed a coolness on Julian’s part. Decker did not realize until later on that this rift would become permanent. Julian soon moved to another residence in Acapulco, however, and ceased his financial support of CVM. Smith noted that when he met Julian in or
CVM remained in business following Julian’s departure and Decker hosted one or more customers whose stays Julian had booked previously. Even after he stopped visiting the hotel and communicating with Decker, Julian’s name remained on the lease of the property and Julian did nothing to extricate himself from that agreement or report Decker to the authorities; nor did he ask Decker to return his ATM card, close down CVM, or leave the property. He did, however, cease making financial contributions to the business, leaving Decker stuck with responsibility for the final monthly rental payments.
Authorities, who had begun investigating Julian in
The district court sentenced Julian pursuant to the U.S. Sentencing Guidelines in March 2004. At sentencing, the court determined that Julian was subject to an increased statutory maximum prison term of 15 years for conspiracy that had taken effect on October 30, 1998. The court reasoned that the new statutory maximum applied because the conspiracy in this case had continued beyond October 30 and Julian, as one of the conspirators, was liable for any conspiratorial acts that took place after that date.
A.
As we have noted, Count One of the indictment charged Julian with conspiring to travel in foreign commerce with the intent to engage in illicit sexual сonduct, in violation of
However, the import of the effective date of the increased statutory maximum evidently was not something that the parties or the court recognized until after the trial concluded in this case. Omitted from the jury instructions was any mention of that date. Instruction number 18 advised the jury of the elements it must find in order to convict Julian of a section 2423(b) conspiracy, but that instruction did not apprise the jury that it was under any obligation to consider whether the alleged conspiracy extended beyond October 30, 1998. R. 74, Instr. No. 18. Instruction number 35 did reference the dates specified in the indictment as marking the beginning and the end of the charged conspiracy. That instruction advised the jury that “[t]he government must prove that the offense happened reasonably close to those dates but is not required to prove that the alleged offense happened on those exact dates.” R. 74, Instr. No. 35. But the jury was nowhere told that it
At sentencing, Julian objected to use of the amended version of the statute with its enhanced maximum penalty. Julian argued that he had fallen out with Decker and withdrawn from the conspiracy before October 30, 1998 and that, because he was no longer a participant when the enhanced penalty took effect, he could not be subject to that penalty. The district court overruled Julian’s objection, finding that the conspiracy remained alive beyond October 30, 1998, and that Julian had not committed the type of affirmative aсt that would constitute a withdrawal from the conspiracy and exonerate him from liability for acts subsequently committed by his co-conspirators. March 2, 2004 Sent. Tr. at 117-19.
Although Julian contends that the district court’s findings were erroneous as a matter of fact—a contention we reject for the reasons we discuss infra at 16-17—his principal objection to those findings on appeal sounds in the Constitution. In view of the significance of the end date of the conspiracy and Julian’s participation in it, Julian argues that it was for the jury to determine whether or not the conspiracy continued beyond October 30, 1998, and whether Julian had withdrawn from the conspiracy before that date. As it was the sentencing judge rather than the jury that made these determinations, Julian argues that he was deprived of his Sixth Amendment right to a jury finding as to all essential elements of the conspiracy charge. See generally Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) (“any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt”). This constitutional argument was not one that Julian made below, so our review is solely one for plain error. See, e.g., United States v. Martinez, 289 F.3d 1023, 1027 (7th Cir. 2002);
In order to establish plain error entitling him to relief, an appellant must establish each of four elements: (1) that an error occurred, (2) that the error was plain, (3) that the error affected his substantial rights, and (4) that the error is one seriously affecting the fairness, integrity or public reputation of judicial proceedings, such that the court should exercise its discretion to correct the error. Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997); United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993); see also, e.g., United States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000). Julian can meet the first three of these elements, but not the fourth.
We agree with Julian that because the alleged conspiracy spanned two different versions of the statute with different maximum penalties, the question of whether the conspiracy extended beyond the effective date of the amended version was one that had to be resolved by the jury rather than the judge. Both the old and new versions of the statute proscribed the same offense, but the newer version increased the maximum penalty to which a violator is exposed. The increase in the penalty, which took effect after the conspiracy in this case was underway, therefore implicated Julian’s ex post facto rights. Article I, section 9, clause 3 of the Constitution prohibits Congress from enacting any ex post facto law. Although the classic example of an ex post facto law is one that criminalizes conduct after it has already occurred, see Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719 (1990) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.)), it also includes a law that “ ‘changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed,’ ” Miller v. Florida, 482 U.S. 423, 429, 107 S. Ct. 2446, 2450 (1987) (quoting Calder, 3 U.S. (3 Dall.) at 390 (opinion of Chase, J.)). Thus, if a defendant completes a crime before an increased penalty takes effect, it would
Because this issue was not submitted to the jury assessing Julian’s guilt or innocence, a Sixth Amendment error occurred. This was a plain error in the sense of being an obvious mistake in retrospect. See United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998) (per curiam). It also affected Julian’s substantial rights in the sense that it exposed him to a longer sentence. See Nance, 236 F.3d at 825-26. But the question remains whether the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. at 825. If a jury, properly
Notably, there is no real dispute that the conspiracy itself continued beyond October 30, 1998. CVM remained in operation beyond that date, Decker remained in charge of the hotel, and customers continued to patronize it. The only pertinent question is whether Julian remained a member of the conspiracy after October 30. If he was, he can be held to account for the acts of the conspiracy occurring after October 30 (and thus be subject to the increased penalty), even if he himself took no actions in furtherance of the conspiracy after that date. Canino, 949 F.2d at 951-52.
Having thoroughly reviewed the record, we are satisfied that no reasonable jury would have found that Julian withdrew from the conspiracy prior to October 30. As we have pointed out before, “ ‘[i]t is not . . . all that easy to withdraw from a conspiracy.’ ” United States v. Hall, 212 F.3d 1016, 1023 (7th Cir. 2000) (quoting United States v. Bafia, 949 F.2d 1465, 1477 (7th Cir. 1991)), and it is the defendant’s burden to show that he did, id. In order for a defendant to withdraw from a conspiracy in the legal sense, he must take some affirmative act to defeat or disavow the criminal aim of the conspiracy, such as submitting himself to the authorities or announcing to his coconspirators that he is withdrawing. E.g., United States v. Wren, 363 F.3d 654, 663 (7th Cir. 2004), judgment vacated on other grounds, 125 S. Ct. 1021 (2005). “Simply ceasing to
The evidence bespeaks no such affirmative act by Julian. At the most, the evidence might support the inference that Julian had ceased to take steps in furtherance of the conspiracy by October 30, 1998. Julian emphasizes that he no longer lent his financial support to CVM after that date and was no longer involved in the conspiracy in any other way. Decker himself sensed a “coolness” from Julian in October 1998, would later realize that Julian no longer wished to be involved with him or CVM, and Decker bore responsibility for the last few months of rent on CVM himself. But these are merely passive acts of disengagement; they do not signal an overt disavowal of the conspiracy. Julian did not take any affirmative acts to shut down CVM or to signal to Decker that he no longer wanted any part of the (illegal) business. Julian’s name remained on the lease through January 1999, and Decker remained in possession of Julian’s ATM card.
Under these circumstances, no reasonable jury could have found that Julian had withdrawn from the conspiracy before October 30. Such a finding would defy the high evidentiary threshold for a finding of withdrawal. Given the evidence presented to it, the jury reasonably could only have found what the district court itself did—that Julian remained a member of the conspiracy after October 30 and that he was therefore liable for its acts, and subject to the applicable criminal penalties, after that date. Thus, although we agree with Julian that the failure to submit this question to the jury was error, it was not one that affected the fairness, integrity, or public reputation of the judicial proceedings. Nance, 236 F.3d at 826. Consequently, the error is not one that compels us to vacate Julian’s sentence.
Count Two of the indictment charged Julian with aiding and abetting a violation of
At this juncture, Julian does not dispute that he facilitated Julian’s illegal entry into the United States; rather, he challenges the notion that the purpose of Armando’s entry was prostitution. Without question, Armando’s sexual relationship with Accordini in Mexico was meretricious—Armando had been assigned to sexually service Accordini as a paying guest at CVM. Julian acknowledges that Armando and Accordini intended to remain sexual partners once Armando entered the United States. Nonetheless, Julian quarrels with the inference that the purpose behind Armando’s entry (and Julian’s intent in facilitating it) was for Armando to engage in prostitution, even though Accordini did provide Armando with shelter and spending money. As Julian sees it, this was simply a sexual relationship between two consulting adults. He points out that Armando was 19 when he crossed the border, that he was not coerced into doing so, that the idea of leaving Mexico and joining Accordini in the United States was, in fact Armando’s idea. And even if prostitution may
Of course, we are obliged to consider the evidence in the light most favorable to the government. United States v. Carraway, supra, 108 F.3d at 750. Whether Julian aided and abetted Armando’s entry into the United States with the intent that he engage in prostitution was a factual question for the jury to resolve. Stewart v. United States, 311 F.2d 109, 112 (9th Cir. 1962). A defendant’s intent may be proven through circumstantial evidence. E.g., United States v. Henningsen, 387 F.3d 585, 591 (7th Cir. 2004). Only if no reasonable jury could have found beyond a reasonable doubt that Julian intended for Armando to engage in prostitution may we reverse his conviction. See, e.g., United States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002).
The evidence in this case readily supports the inference that Julian facilitated Armando’s migration to the United States with the intent that Julian engage in prostitution. Armando аnd Accordini had become acquainted at what was, in essence, a house of prostitution at which Accordini had paid for the privilege of engaging in sex with Armando. Accordini himself agreed that the plan was for him to provide food, shelter, and spending money to Armando in exchange for Armando’s continued willingness to engage in sex with him once he arrived in the United States. As a co-owner of CVM, Julian obviously knew how it was that Armando and Accordini had come to know one another and he was fully aware of the illicit nature of their relationship in Mexico. Having assisted Decker in recruiting boys like Armando to work as sexual servants at the hotel, Julian would have known that Armando was unable to support himself financially. Under these circumstances, the jury could reasonably infer that Julian knew and intended that
We reject Julian’s contention that prostitution must have been the sole or dominant (in the sense of being the most important) purpose of Armando’s entry into the United States, and that the jury was not accurately instructed on this point. The jury was properly advised that Julian must have intended for Armando to engage in prostitution, and the evidence, as we have just stated, supports the inference that Julian did have that intent. R. 74, Instr. No. 27. That Armando may have had other reasons for wishing to enter the United States, and that prostitution may not have been Julian’s sole or most important reason for helping Armando do so, does not undermine his conviction. A defendant need not facilitate someone’s interstate or foreign travel with the sole or principal intent that he engage in prostitution in order to be liable under section 2421, so long as prostitution was a significant motive. United States v. Snow, 507 F.2d 22, 24 (7th Cir. 1974) (Stevens, J.); see also United States v. Vang, 128 F.3d 1065, 1071-72 (7th Cir. 1997). The evidence supports the inference that prostitution was a significant reason for Armando’s entry into the United States.
C.
Julian challenges the admission into evidence of his prior conviction for sexual assault of a minor. In 1988, Julian pleaded guilty to having sexually molested his stepson in 1986. The child was 11 years old at the time of the assault. Over Julian’s objection, the district court allowed the government to introduce evidence concerning this conviction pursuant to Federal Rule of Evidence 413, concluding that the prior offense was relevant to Julian’s knowledge and intent vis-à-vis his involvement with CVM. Feb. 11, 2003
Julian contends that the court abused its discretion in admitting evidence of this prior assault. Because the assault occurred 12 years prior to the events underlying the charges in this case, involved his stepson, and did not take place in foreign commerce, the probative value of this evidence was, in Julian‘s view, slight as compared to the likelihood that the evidence prejudiced him unfairly in the eyes of the jury. See
In criminal prosecutions charging the defendant with “an оffense of sexual assault,”
Based on the special treatment that
As we have already suggested, however,
We cannot say that the district court abused its discretion in admitting evidence of the 1986 assault in view of the defense that Julian pursued at trial. Although Julian did not dispute his involvement with CVM, the defense posited that Julian understood CVM simply to be a legitimate hotel that was friendly to gay tourists rather than an illegitimate enterprise making children available to pedophiles. See, e.g., February 10, 2003 Tr. (Decker excerpt) at 64, 66-67; February 11, 2003 Tr. (Decker excerpt) at 12-13. Against the backdrop of the defense theory, the district court thought that the 1986 molestation of Julian‘s stеpson was relevant as to his knowledge of CVM‘s invidious nature and his intent. February 11, 2003 Tr. (vol. 2) at 139-40. We
D.
We come finally to Julian‘s sentence. As we noted earlier, the district court made various factual findings at sentencing that boosted Julian‘s offense level and the resulting sentencing range under the Sentencing Guidelines. Julian opposed the enhancements to his offense level on the merits in the district court, arguing that they were not warranted on the evidence before the court. He did not, however, challenge the court‘s authority to determine the facts that resulted in the enhancements. On appeal, Julian again asserts, in passing, that several of the enhancements are not warranted on the evidence. His principal contention, however, is that the district court violated his Sixth Amendment right to have a jury, rather than a judge, make any findings that exposed him to a lengthier sentence under the Guidelines. See United States v. Booker, 125 S. Ct. 738 (2005). Before turning to the Booker argument, we shall first consider whether the district court‘s sentencing determinations were correct in view of the evidence and the relevant provisions of the
The district court selected as the offense guideline for use in calculating Julian‘s sentence Guidelines section 2A3.1, which applies to offenses of criminal sexual abuse. Subsection (b)(1) of that guideline calls for a four-level increase to the base offense level where the offense involved conduct described in
The district court found further that Julian‘s offense had involved victims who were younger than 12 years old and, based on that finding, increased the offense level by an additional four levels. March 2, 2004 Sent. Tr. at 138-40, 143; see
Finally, the district court found that Julian and Decker knew or should have known that the children whom he and Decker had recruited to stay at CVM to satisfy the sexual appetites of their guests were vulnerable victims, and the court enhanced Julian‘s offense level by two levels based on that finding. March 2, 2004 Sent. Tr. at 130-31; see
Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.
Given the evidence before the court, the vulnerable victim enhancement did not constitute double counting. The district court itself recognized that the enhancement could not be imposed based on the age of the victims. March 2, 2004 Sent. Tr. at 131. When it imposed the enhancement, the court did so on the basis of the economic vulnerability of the victims, finding that “[Julian] purposefully preyed on desperate street children without housing and food, taking advantage of the poor and homeless children by offering shelter, housing and food.” Id. at 130-31. The trial testimony lends ample support to this factual assessment, which in turn makes clear that the court applied the vulnerable victim enhancement based on faсtors other than the children‘s age. See Schmeilski, 408 F.3d at 919 (“When two enhancements address distinct aspects of the defendant‘s conduct, the application of both does not constitute double counting.“) We note that young victims of sexual assault are not invariably vulnerable because they are homeless or without financial support, see, e.g., United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005) (eight year-old victim molested by common-law husband of family member during overnight stays); United States v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000) (10 year-old victim of sexual assault was stepdaughter of defendant), nor are homeless and otherwise financially vulnerable victims of sex-related crimes invariably young children, e.g., United States v. Sabatino, 943 F.2d 94 (1st Cir. 1991) (women recruited by defendants to serve as prostitutes were otherwise out of work and in some cases had young children).9
Often the sentencing record does not give us adequate clues as to what the district court might have done had it sentenced the defendant with the benefit of the Booker decision. In those cases, we order a limited remand so that the district court may consider and answer that question. See id. at 483-84. If the district court on remand indicates that it likely would have imposed a sentence below the Guidelines range, then we proceed to vacate the sentence and remand for resentencing. Id. at 484.
In this case, however, the sentencing record is more illuminating. Based on the district court‘s findings as to the pertinent Guidelines factors, the Guidelines called for a sentence within a range from 324 to 405 months. However, the maximum sentence allowed by statute was 300 months, and so the court ordered Julian to serve a total prison term of that length. See
We can therefore be confident that the district court would not be inclined to re-sentence Julian in view of Booker. As it was, the sentence imposed on Julian was a full two years below the bottom of the Guidelines range by virtue of the statutory maximums, and the court noted that even if it had resolved the parties’ disputes over the Guidelines calculations more favorably to Julian, it would not have been inclined to impose а lesser term range. That declaration makes clear that Julian was not prejudiced by the Booker error in the sense that the error caused the court to impose a lengthier sentence than it otherwise might have. There is no need for a Paladino remand. See Paladino, 401 F.3d at 482-83; Lee, 399 F.3d at 866-67.
The only remaining question is whether the sentence is reasonable. See Booker, 125 S. Ct. at 765; Paladino, 401 F.3d at 484. A sentence imposed in accord with the provisions of the Guidelines is presumptively reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). “The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable when measured against the sentencing factors set forth in [18 U.S.C.] § 3553(a).” Id. These include such factors as the nature and circumstances of the offense, the history and
III.
For the reasons we have discussed, we AFFIRM Julian‘s conviction and sentence.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—10-24-05
Notes
Feb. 13, 2003 Tr. (vol. 4) at 29.Throughout the cross-examination of [the] government‘s witnesses, defense counsel has sought to establish or reply that this was nothing more than a gay resort. It was never intended, certainly by his client, that this would be a boy-lover haven. But is that reasonable to believe when the defendant himself picks as his partner a convicted—twice-convicted child molester, when the defendant himself is a convicted child molester?