APPELLATE COURT REJECTS OVER THE GUIDELINES SENTENCE IN INTERSTATE TRAVEL FOR SEX WITH A MINOR CASE

Catherine Miller plead guilty in Federal Court to crossing state lines to have sex with a minor. The presentence report recommended a within guidelines sentence of between 70 and 87 months. However the court sentenced her to 120 months.

The Sentencing Guidelines as originally passed were considered mandatory and judges had only a limited ability to deviate from them. But in United States v. Booker the Supreme Court found the guidelines to be advisory. While the courts have the ability to deviate from the Guideline deviations are limited and must be reasonable.

At sentencing and on appeal Miller objected to the courts adoption of the Probation Department’s recommendation that that the sentencing guidelines be enhanced by an undue influence enhancement. However such enhancement, while subject to rebuttal are required in cases where there is an age difference of over ten years. Neither the trial court not the Seventh Circuit found that the enhancement had been rebutted despite some evidence that the juvenile had prior sexual experiences and seemed open to a romantic relationship with Miller.

The second issue on appeal was the government’s use of surprize evidence at the sentencing hearing. Specifically, the government introduced photo albums showing Miller with other minors. When Miller’s attorney objected, the court gave him a five minute recess to talk to his client. He said thank you and did not further object. Therefore the appellate court found that Miller waived any objection on appeal.

The final issue was the fifty percent upward deviation from the guidelines. The trial court based its decision on the high rate of recidivism among sex offenders. The appellate court rejected the finding and returned the case to the trial court for resentencing. First it found that if there is a high rate of recidivism it applies to all people charged with the crime and the Sentencing Commission would have taken this into consideration in writing the guidelines. Second it found there was no evidence at the sentencing hearing that supported a belief in a high rate of recidivism and there is evidence to the contrary. Therefore it reversed the sentence.