United States v. Tyrone McMillian , 777 F.3d 444 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3577
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRONE MCMILLIAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11-cr-00193-CNC-1 — Charles N. Clevert, Jr., Judge.
____________________
ARGUED DECEMBER 9, 2014 — DECIDED JANUARY 27, 2015
____________________
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
POSNER, Circuit Judge. A jury convicted the defendant af-
ter a one-week jury trial of four counts of violating 18 U.S.C.
§ 1591(a), which mainly, so far as relates to this case, pun-
ishes anyone who “knowingly—(1) in or affecting interstate
… commerce … recruits … a person … knowing, or in reck-
less disregard of the fact … that the person has not attained
the age of 18 years and will be caused to engage in a com-
mercial sex act.” If convicted the defendant is to be impris-
2 No. 13-3577
oned “for not less than 10 years or for life.” § 1591(b)(2). One
of the defendant’s recruits had attained the age of 18 (in fact
was 19), and as to her the government had also to prove, and
did prove, that the defendant used “force, threats of force,
fraud, [or] coercion … or any combination of such means”
against her. § 1591(a). The sentencing range for that offense
is 15 years to life, see id. and § 1591(b)(1), as is the range if
the victim is under 14, id., but none of the defendant’s re-
cruits was that young.
The defendant was convicted under other statutes as well
as 18 U.S.C. § 1591, but we can skip them, as they did not af-
fect his sentence. His guidelines range was life imprison-
ment (a range rather than a point because the length of a
prisoner’s life can’t be determined at the time of sentencing),
but the judge imposed a below-guideline sentence of 30
years.
The defendant had recruited a young woman—the 19-
year-old—and three girls to engage in prostitution. Two of
the girls were 16 and the third was 17. Mainly he had enticed
all four by false promises of love and money, though he also
used violence on occasion, particularly against the oldest,
Jessica, for various infractions such as disobeying him or
talking too loudly. She assumed he would be even more vio-
lent if she tried to stop working as a prostitute for him, as
she wanted to do.
He had transported all four of his recruits across state
lines to engage in prostitution and thus had operated his
prostitution ring in interstate commerce. Relying on Bond v.
United States, 134 S. Ct. 2077 (2013), he argues that section
1591 reaches only involuntary prostitution akin to slavery
and not “ordinary” pimping and pandering, but there is no
No. 13-3577 3
basis for so limited an interpretation. His further argument
that the four recruits were volunteers and thus not “caused”
by him to engage in prostitution overlooks the absence of
any evidence that had he not recruited them they would still
have become prostitutes. By enticing them, buying them
cellphones, taking photos of them and posting advertise-
ments on Craigslist for their services as prostitutes, instruct-
ing them on how to take calls and deal with Johns, and then
driving them to and from their “dates” with their customers,
the defendant caused them to engage in prostitution. He
used both force and fraud on Jessica, and his use of fraud
was alone enough to establish a violation of section 1591(a)
with respect to her, even though she was older than 18. As
for possible long-term effects on his recruits from their em-
ployment by him as prostitutes, however, the evidence is
sparse and inconclusive.
The defendant could have been sentenced to life in
prison, and, since he was only 31 when sentenced, his 30-
year sentence although very long is not even a de facto life
sentence. But he argues that it is invalid as a violation of the
ex post facto provision of the Constitution.
The defendant had begun recruiting the young woman
and the three girls into prostitution in 2006 and the first half
of 2007, and on November 1, 2007, the U.S. Sentencing
Commission revised two of the sentencing guidelines appli-
cable to his conduct, U.S.S.G. §§ 2G1.1 and 2G1.3, and those
were the guidelines that the judge used to determine his
guidelines range. He contends that their application to him
violated the Constitution’s ex post facto clause, which has
been interpreted to serve the twin purposes of ”assur[ing]
that legislative Acts give fair warning of their effect and
4 No. 13-3577
permit individuals to rely on their meaning until explicitly
changed,” and “restrict[ing] governmental power by re-
straining arbitrary and potentially vindictive legislation.”
Weaver v. Graham, 450 U.S. 24, 28–29 (1981). The sentencing
guidelines are not “legislation” or “legislative Acts,” or in-
deed “laws” in any conventional sense now that sentencing
judges are no longer bound by them. But the Supreme Court
has ruled that they are “laws” for purposes of the ex post
facto clause, Peugh v. United States, 133 S. Ct. 2072, 2078
(2013), since they influence federal sentencing. Under the old
guidelines, the ones in force before November 1, 2007, the
defendant’s guidelines range would have been, not life, but
360 months (30 years) to life. A 360-month sentence, which is
the sentence the judge imposed, would then have been a
sentence at the bottom of the guidelines range, rather than,
as the judge treated it, a sentence below the range.
It seems unlikely that this would have made a difference
in the sentence. A range of 30 years to life is large for a 31
year old, as he is likely to live well beyond 61 (moreover,
with good-time credit, he is likely to be released in his late
50s rather than at 61); how likely is it that the judge would
go below it? But who can know? If the range should have
been not life but 30 years to life, the district judge would
have to be asked whether that might make a difference to
the sentence he would impose, thus requiring a remand. See
United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005). The
government argues that life in prison, not 30 years to life,
was the proper range after all, but the judge did not respond
to the argument.
There is no ex post facto problem with respect to the de-
fendant’s prostituting Jessica, for she continued to work as a
No. 13-3577 5
prostitute for him after the change in the guidelines—and
possibly with respect to another of the prostitutes as well,
Cherish, who may still have been working for him in No-
vember 2007, though the record is unclear. United States v.
Vallone, 752 F.3d 690, 698–99 (7th Cir. 2014). As for the two or
possibly (given the uncertainty about Cherish) three girls
who did not work for the defendant after the guidelines
change, the government, insisting that his sentence with re-
gard to them should also be governed by the new rather
than the old guidelines, invokes U.S.S.G. § 1B1.11(b)(3). That
is the so-called “one-book rule,” according to which “if the
defendant is convicted of two offenses, the first committed
before, and the second after, a revised edition of the Guide-
lines Manual became effective, the revised edition of the
Guidelines Manual is to be applied to both offenses.”
The rule is not statutory, and so does not bind a sentenc-
ing judge. It’s true that the statute tells judges to apply the
guidelines in effect at the time of sentencing, 18 U.S.C.
§ 3553(a)(4)(A)(ii), but that requires qualification. Suppose
the defendant commits a federal crime in 2010, is sentenced
in 2014, and in between the guidelines are amended to in-
crease the sentence for his crime; to apply the later guideline
would violate the ex post facto clause.
The reason given for the one-book rule is that “applying
various provisions taken from different versions of the
Guidelines would upset the coherency and balance the
Commission achieved in promulgating the Guidelines. Such
an application would also contravene the express legislative
objective of seeking uniformity in sentencing.” United States
v. Stephenson, 921 F.2d 438, 441 (2d Cir. 1990). But whatever
the merit of the rule (actually just a policy statement, see
6 No. 13-3577
U.S.S.G. § 1B1.11, hence nonbinding, United States v. Reyes-
Medina, 683 F.3d 837, 841–82 (7th Cir. 2012)), it should not be
applied indiscriminately. For example, it should not be ap-
plied in a case in which the victim of the old offense is dif-
ferent from the victim of the new one. To apply the rule in
such a case would mean that if the defendant robbed a per-
son before the applicable guideline was increased and a dif-
ferent person after, the higher guideline would apply to the
first robbery as well as to the second. Yet there would be no
reason to punish the defendant under a guideline not in
force then. It would be different if the defendant were con-
victed not of two separate crimes, but of one, such as con-
spiracy to rob, or some other continuing offense that had
embraced both crimes. United States v. Hallahan, 756 F.3d 962,
977–79 (7th Cir. 2014). But our defendant was convicted not
of conducting a pimping enterprise but of committing four
separate violations of 18 U.S.C. § 1591(a), each violation be-
ing limited to one of the four persons whom he recruited for
the enterprise.
Two or three of the girls quit their jobs with the defen-
dant before the guidelines change; why should the defen-
dant be punished as if they had continued working for him?
But the defendant’s suggestion that the earlier guidelines
should also apply to his offense against the adult, Jessica, is
unsound. That would have made sense had Jessica quit be-
fore the guidelines change, but she had not. There was no
reason for the sentencing judge to give the defendant a break
just because he had begun his criminal activity earlier with
her than with the three girls.
The government has an alternative argument against ap-
plication of the ex post facto bar in this case. It points out
No. 13-3577 7
that closely related offenses can be “grouped,” U.S.S.G.
§ 3D1.2, and treated as one offense. But offenses against dif-
ferent people can’t, with irrelevant exceptions, be grouped.
See U.S.S.G. § 3D1.2 and the Commentary to that subsection.
And even if they could be, we would have some hesitation
about relying on this argument. United States v. Fletcher, 763
F.3d 711, 717 (7th Cir. 2014), and cases cited there, hold that
grouping should be permitted to circumvent the ex post
facto clause because the grouping rules provide notice to the
defendant that should he commit a fresh crime after the
guidelines range for that crime is raised he can be sentenced
under the new range for a crime he committed before the
change, provided it is grouped with the crime he committed
after the change. The government contends that a criminal,
and indeed everyone else, is charged with detailed and pre-
cise knowledge of every edition of the guidelines manual,
including the nigh-unintelligible provisions relating to
grouping, and therefore acts at his peril, so far as his poten-
tial sentence is concerned, in engaging in any criminal act
without careful prior study of the applicable edition. There
are cases that support the government’s position, see, e.g.,
United States v. Vivit, 214 F.3d 908, 919 (7th Cir. 2000); United
States v. Pagán-Ferrer, 736 F.3d 573, 597–99 (1st Cir. 2013);
United States v. Siddons, 660 F.3d 699, 707 (3d Cir. 2011);
United States v. Weiss, 630 F.3d 1263, 1276–78 (10th Cir. 2010),
but they can be criticized as carrying the proposition that ig-
norance of the law is no defense to a preposterous extreme.
Cf. Lambert v. California, 355 U.S. 225, 228–30 (1957). But that
is an issue for another day. Because the victims of the defen-
dant’s four offenses were different, the offenses were not
“groupable.” The old (pre-November 1, 2007) guidelines
8 No. 13-3577
manual was therefore applicable to the crimes that the de-
fendant completed before November 2007.
The district judge seems not to have realized that the
guidelines range had changed over the course of the defen-
dant’s illegal activity. So far as appears, he thought that the
guidelines range when the defendant committed the of-
fenses that were completed before the range changed was
life, which it wasn’t; it was lower (30 years to life). Had he
known this, he might have imposed a lower sentence than
he did. The defendant is therefore entitled to be resentenced.
Several more issues remain to be addressed. The defen-
dant argues that the court improperly increased his guide-
lines range because of his use of a computer. See
U.S.S.G.§ .3(b)(3)(B). He points out that Application Note 4
states that “Subsection (b)(3) is intended to apply only to the
use of a computer or an interactive computer service to
communicate directly with a minor or with a person who
exercises custody, care, or supervisory control of the minor.
Accordingly, the enhancement in subsection (b)(3) would
not apply to the use of a computer or an interactive com-
puter service to obtain airline tickets for the minor from an
airline’s Internet site.” But the note is wrong. The guideline
section provides a 2-level enhancement whenever the defen-
dant uses a computer to “entice, encourage, offer, or solicit a
person to engage in prohibited sexual conduct with the mi-
nor,” which the defendant did when he created Craigslist
pages on which to advertise Jessica’s and the girls’ services
as prostitutes. When an application note clashes with the
guideline, the guideline prevails. Stinson v. United States, 508
U.S. 36, 38 (1993).
No. 13-3577 9
It’s true that United States v. Patterson, 576 F.3d 431, 443
(7th Cir. 2009), applied the application note, despite its in-
consistency with the guideline, without attempting to dis-
tinguish, or even citing, Stinson. But Patterson is distinguish-
able from the present case, because the government there
had conceded, albeit erroneously, that the application note
controlled; we had no reason to reject a party’s concession
regarding an issue raised by its opponent.
Moreover, any doubt about the applicability of Stinson to
the computer-use guideline is dispelled by the lengthy
analysis of the issue in United States v. Pringler, 765 F.3d 445,
451–55 (5th Cir. 2014). And as pointed in that opinion, “the
[computer-use] enhancement would not have been applica-
ble [in Patterson], irrespective of application note 4,” because
“neither the defendant nor someone part of the same crimi-
nal activity used a computer to solicit patrons,” id. at 454 n.
4, as was done in both Pringler and our case today. Essen-
tially, then, the statement in Patterson about the application
note is dictum.
The defendant argues that the judge erroneously applied
U.S.S.G. § 2G1.3(b)(2)(B), which imposes a two-level en-
hancement if the defendant “unduly influenced a minor to
engage in prohibited sexual conduct.” He argues that there
was not enough evidence that he unduly influenced Jade
(one of the girls who worked for him as prostitutes). But he
made false promises to her (that they’d be together, rich and
famous, etc.), which are forms of undue influence, especially
over a minor.
The final issue is the conditions of supervised release.
The required term of supervised release, given the defen-
dant’s prison sentence, was five years. As is typical of the
10 No. 13-3577
insouciance with which the bar and the bench treat super-
vised release, only the probation service made any recom-
mendations regarding conditions of supervised release to
impose on the defendant. The recommendations are per-
functory, probably because the probation service was rec-
ommending life imprisonment and therefore pointed out
that “it seems disingenuous to recommend a term of super-
vised release when recommending a sentence of life impris-
onment.” (See United States v. Vance, 764 F.3d 667 (7th Cir.
2014), where we discussed “Lazarus” conditions—
conditions of supervised release to take effect upon the
completion of a sentence of life imprisonment—after the
man reported in chapter 11 of the Gospel of John to have risen
from the dead.)
The probation service recommended 6 conditions of su-
pervised release (actually 5, two of the conditions being es-
sentially duplicates of each other), all mandatory for sex of-
fenders but one seemingly irrelevant to our defendant—a
requirement of mental health treatment even though the mo-
tive for his pimping was financial rather than sexual.
The judge was casual about the conditions. His printed
judgment imposes on the defendant 5 mandatory conditions
of supervised release, 13 standard conditions, and 6 addi-
tional conditions of which 3 duplicate the listed mandatory
or standard conditions. The additional conditions that are
not duplicates require the defendant to register with state
and local authorities as a convicted sex offender, participate
in a mental health assessment and treatment program for sex
offenders, and provide his probation officer with access to
financial information. (The registration requirement is super-
fluous, since it is a matter for state and local authorities to
No. 13-3577 11
determine.) That makes a total of 21 conditions of supervised
release excluding the duplicates, all to go into effect when
the defendant is released from prison, when he will be as we
said about 60 years old.
At the sentencing hearing the judge imposed the stan-
dard conditions without naming any of them, without giv-
ing a reason for any of them, and without attempting to cor-
rect any of the ambiguities in the standard conditions that
we noted in United States v. Siegel, 753 F.3d 705 (7th Cir.
2014); cf. United States v. Goodwin, 717 F.3d 511, 524–25 (7th
Cir. 2013). He did recite several of the mandatory conditions,
as well as the three nonduplicative additional conditions.
Why the judge mentioned these conditions of supervised re-
lease and not the others is unexplained.
All components of a sentence must be stated in the oral
sentence. This is apparent from Fed. R. Crim. P. 35(c), which
states: “’Sentencing’ Defined. As used in this rule, ‘sentenc-
ing’ means the oral announcement of the sentence.” See also
the 2004 advisory committee note to the rule; cf. United States
v. Johnson, 765 F.3d 702, 710–11 (7th Cir. 2014); United States
v. Baker, 755 F.3d 515, 523–24 (7th Cir. 2014); United States v.
Alburay, 415 F.3d 782, 788 (7th Cir. 2005). Failure to disam-
biguate ambiguous conditions is another error. United States
v. Siegel, supra, 753 F.3d at 714–16; United States v. Goodwin,
supra, 717 F.3d at 524–25. However, the defendant’s lawyer
chose not to challenge any of the conditions of supervised
release.
We’ll mention just one of the ambiguities. Standard con-
dition 9 states that “the defendant shall not associate with
any persons engaged in criminal activity, and shall not asso-
ciate with any person convicted of a felony, unless granted
12 No. 13-3577
permission to do so by the probation officer.” There is no
stated requirement that the defendant know, believe, or even
suspect that he is associating with a criminal or a felon.
Many criminals try to conceal their criminal activity; many
persons with a felony conviction try to conceal the convic-
tion; and many convicted felons go straight after being con-
victed and serving their sentence—what is the danger of as-
sociating with them? Also, the word “associate” in the condi-
tion is vague.
The standard conditions are not mandatory; a sentencing
judge needn’t impose them, or may if he prefers impose
them in modified form. A sensible alternative to the lan-
guage of standard condition 9 would be: “the defendant
shall not meet, communicate, or otherwise interact with a
person whom he knows to be engaged, or planning to be en-
gaged, in criminal activity.”
In addition to considering the proper wording of the
conditions he imposes, a sentencing judge must (as we said)
include all the conditions he is imposing in his oral sentence,
must give reasons for imposing them, and must consider the
propriety of imposing them in light of the sentencing factors
listed in 18 U.S.C.§ 3553(a), which apply to all nonmanda-
tory aspects of the sentence, including conditions of super-
vised release. United States v. Goodwin, supra, 717 F.3d at 523–
26; United States v. Monteiro, 270 F.3d 465, 472–73 (7th Cir.
2001). None of that was done in this case.
To summarize, the defendant’s conviction is affirmed,
but his sentence is vacated and the case is remanded for re-
sentencing. We trust that on remand the district judge will
not only reconsider the prison sentence in light of the appli-
cable guidelines range, but also reconsider the conditions of
No. 13-3577 13
supervised release in light of our discussion in this and our
previous opinions.