In the

    United States Court of Appeals
               For the Seventh Circuit

No. 09-2791

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                                v.

C ATHARINE L. M ILLER,
                                           Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Illinois.
      No. 3:08-cr-30252-GPM-CJP-1—G. Patrick Murphy, Judge.


      A RGUED JANUARY 11, 2010—D ECIDED A PRIL 13, 2010




  Before E ASTERBROOK, Chief Judge, and K ANNE, Circuit
Judge, and K ENNELLY, District Judge.1
  K ENNELLY, District Judge. Catharine Miller pled guilty
to one count of traveling in interstate commerce to
engage in prohibited sexual conduct with a fourteen-year-



1
   Judge Matthew F. Kennelly of the United States District
Court for the Northern District of Illinois is sitting by designa-
tion.
2                                             No. 09-2791

old girl in violation of 18 U.S.C. § 2423(b). At her sen-
tencing hearing, the district court overruled Miller’s
objections to the presentence report and adopted the
report’s recommended Guidelines sentencing range of
seventy to eighty-seven months. The government argued
for a sentence above the Guidelines range. The court
sentenced Miller to a 120-month prison term. Miller has
appealed her sentence. We vacate the sentence and
remand for resentencing.


                    I. B ACKGROUND
  Miller is thirty-three years old and holds an under-
graduate degree in engineering, a graduate degree in
engineering science, and a graduate certificate in
religious studies. She was living in Cincinnati, Ohio
when, in July 2008, she initiated an on-line conversation
on an Internet forum with a K.H., a fourteen-year-old girl
from a town in southern Illinois. Within weeks, they
began communicating via telephone and e-mail. Miller
and K.H. discussed sex on at least ten occasions and
exchanged comments such as “I miss you” and “I love
you so much.” K.H. sent Miller sexually explicit photo-
graphs of herself and told Miller of her sexual encounters
with other females. On October 29, 2008, K.H. informed
Miller that she was fourteen years old. K.H. also told
law enforcement that she knew Miller was thirty-three
years old.
  Eventually, K.H. informed Miller that she wanted to
break up because she wanted to begin a relationship
with someone who lived closer to her. Miller later told
No. 09-2791                                             3

law enforcement that this prompted her to visit K.H. In
November 2008, Miller drove from Ohio to Illinois. She
met K.H. in a park and, shortly thereafter, proposed
marriage and gave K.H. a ring. Miller had already
spent three days and one night with K.H. when, on
November 17, 2008, K.H.’s stepfather discovered them
together in the back of Miller’s vehicle at a local park.
   On December 2, 2008, a federal grand jury returned a
one-count indictment charging Miller with traveling in
interstate commerce for the purpose of engaging in
illicit sexual conduct with a minor in violation of 18
U.S.C. § 2423(b). On March 25, 2009, Miller pled guilty
to the charge.
  In the presentence report, the probation office recom-
mended that the court impose an enhancement to the
Sentencing Guidelines offense level for unduly influ-
encing a minor to engage in prohibited sexual conduct.
See U.S.S.G. § 2G1.3(b)(2)(B). After taking into account
this and other enhancements and a reduction for accep-
tance of responsibility, the probation office recommended
an advisory Guidelines range of seventy to eighty-
seven months’ imprisonment. The probation office also
noted that it had not identified any factors that would
warrant a departure from the Guidelines range.
  At the sentencing hearing, Miller objected to the “undue
influence” enhancement. She presented evidence that the
victim had stated that she had been sexually active
with both male and female partners. The district court
overruled the objection and applied the enhancement. It
found, consistent with the presentence report, that the
4                                             No. 09-2791

advisory Guidelines range was seventy to eighty-seven
months.
  The government argued for a sentence above the advi-
sory range. In support, it offered evidence that Miller
had a prior relationship with another minor—a photo
album that had been seized from Miller’s home. Miller’s
counsel objected. He said that he had not previously
seen the evidence and that it had not been brought to
his attention by the government during the pendency of
the case. He argued that the defense “should have an
opportunity to see that evidence before it’s put before
the Court. And we’ve not been afforded that oppor-
tunity here.” July 13, 2009 Tr. 17. The district judge
asked what counsel would have done differently if he
had the evidence earlier. Counsel replied, “I’d have
an opportunity to confer with my client and look into
what information is actually represented.” 

judge then announced, “[W]e will take a five-minute
recess.” 

recess, the judge asked if
counsel wanted to say anything further. Counsel replied,
“No. I’m just thankful for the opportunity, your
Honor.” 

then presented arguments regarding the ap-
propriate sentence. The prosecutor said that the materials
in the photo album reflected that Miller had a relation-
ship with a high school-aged minor in 2004-2005. He
argued that Miller would be a danger to other young
girls when she got out of prison and that the court
should impose a significant prison term to incapacitate
her. The prosecutor started to say that while in prison,
No. 09-2791                                              5

Miller could get counseling. The judge interrupted, saying
that “[t]he recidivism rate of child sexual abusers is—it’s
massive. . . . Nothing seems to work.” 

counsel argued that a seventy-month sentence was suf-
ficient, noting that Miller had no prior encounters with
the criminal justice system. Counsel also noted that the
court had the authority to put Miller on supervised
release for the rest of her life and that there were mecha-
nisms that would result in her being monitored closely.
  The court reviewed the factors it was considering in
imposing sentence. It found the circumstances of the
crime to be aggravated given the difference in age
between Miller and her victim and the fact that Miller
was highly educated and intelligent and had not acted
out of ignorance. The court also discussed the severely
injurious effect of the crime on the victim and the diffi-
culty she likely would have in recovering. On the issue
of deterrence, the court said, “[D]eterrence just doesn’t
seem to have the effect that we wish that it would”
but that it had nonetheless taken this factor into account.

court stated that it considered the need
to protect the public from Miller to be “what this case
comes down to.” 

stated that “the issue here is
the protection of the public” and noted that “because of
her intelligence and training, [the defendant] is particu-
larly dangerous.” 

court imposed a 120-month
prison term, followed by a lifetime period of supervised
release, including conditions that Miller undergo sex
offender treatment and that her home and computers
would be subject to searches.
6                                                No. 09-2791

                      II. D ISCUSSION
  Miller appeals her sentence on three grounds. She
argues that the district court erred in imposing the
undue influence enhancement; by failing to give her
and her counsel an adequate opportunity to consider the
photo album offered by the government at the sen-
tencing hearing; and by imposing an unreasonably high
sentence without adequate justification. We consider
each argument in turn.


A. Undue influence enhancement
  Miller argues that the district judge erred when he
applied the enhancement for unduly influencing a
minor pursuant to U.S.S.G. § 2G1.3(b)(2)(B). We review
a district court’s legal interpretation of a Guidelines en-
hancement de novo and its factual findings for clear error.
United States v. Patterson, 

, 442 (7th Cir. 2009).
  Miller agrees that a rebuttable presumption of undue
influence applies under the Guideline because she was
at least ten years older than the minor victim. See
U.S.S.G. § 2G1.3(b)(2)(B), app. note 3(B). She argues, how-
ever, that she rebutted the presumption and that the
district court erroneously concluded that the evidence
she offered was insufficient as a matter of law.
  To attempt to rebut the presumption of undue influence,
Miller offered evidence that K.H. had told the authorities
that she had multiple sexual experiences with male and
female partners and had sought out such encounters.
Miller also pointed to evidence that she said showed K.H.
had taken the initiative at various points during their
No. 09-2791                                                7

relationship. She argues that the district court deter-
mined that this evidence did not matter, relying on
the court’s statement that “as a matter of law, the fact
that this child was sexually active is quite beside the
point. [. . .] It doesn’t go to what the defendant was
doing.” July 13, 2009 Tr. 11. According to Miller, the dis-
trict court ignored our admonition that the commentary
to U.S.S.G. § 2G1.3(b)(2)(B) “requir[es] a court to closely
consider the voluntariness of the victim’s behavior.”
United States v. Mitchell, 

, 561 (7th Cir. 2003).
   We disagree. The record reflects that despite the
passing comment Miller cites, the district court in fact
considered “the effect [of the defendant’s conduct] on the
victim,” as Mitchell requires. 

The court did not
simply stop after making the comment quoted earlier.
Rather, it asked whether “there [was] any evidence that
would rebut the presumption here?” July 13, 2009 Tr. 11.
The government argued that there was a significant
difference between Miller and her victim in terms
of knowledge and “the ability to manipulate [and]
the ability to groom.” 

pointed to a sample of
fifty e-mails in which Miller had repeatedly told K.H.,
whom she knew to be depressed or suicidal, that she
loved her. The government argued that these comments
“would have a profound effect on a 14 year old . . . that
somebody is saying all these things to me and validates
my worth, not as a teenager but as an adult, as an equal,
and that is the influence.” 

also noted
that material seized from Miller’s home indicated that
she was studying to be a guidance counselor, which gave
her an even greater capability to exercise undue influence.
8                                                No. 09-2791

  After hearing the arguments by counsel, the district
court concluded that the presumption of undue influence
    hasn’t been rebutted and that’s all that’s required
    under the guidelines. In other words, . . . the defendant
    hasn’t shown whatever it would be that would have
    to be shown that the ten-year differential here didn’t
    play a factor. And I think that I clearly recognized
    on the record that there might absolutely be such a
    case, but the Court couldn’t envision it. That’s two
    different things. But it certainly doesn’t exist here.
July 13, 2009 Tr. 14-15. In short, the district court acknowl-
edged that the presumption of undue influence was
rebuttable and concluded, based on the evidence pre-
sented, that Miller had failed to rebut it. The court did not
commit legal error nor, given the evidence presented,
was its finding of undue influence clearly erroneous.


B. Admission of surprise evidence
  Miller argues that the district court erred by considering
the photo album without giving her a meaningful chance
to consider and respond to the evidence. She relies on
Irizarry v. United States, 

(2008), in which
the Supreme Court said that
    [s]ound practice dictates that judges in all cases
    should make sure that the information provided to the
    parties in advance of the [sentencing] hearing, and
    in the hearing itself, has given them an adequate
    opportunity to confront and debate the relevant
    issues. We recognize that there will be some cases in
    which the factual basis for a particular sentence will
No. 09-2791                                                   9

    come as a surprise to a defendant or the Govern-
    ment. The . . . appropriate response is . . . for a district
    judge to consider granting a continuance when a
    party has a legitimate basis for claiming that the
    surprise was prejudicial.

See also United States v. Betts, 

, 744
(7th Cir. 2009) (courts are “generally prohibited from
relying on undisclosed evidence [at sentencing] as this
deprives the parties of the opportunity to rebut or
respond to the evidence.”).
  Miller has forfeited this argument. Though one might
question, in the abstract, whether a five-minute continu-
ance was sufficient, her counsel did not suggest after that
continuance that the defense needed more time. To the
contrary, defense counsel thanked the court for the op-
portunity to confer with Miller, indicating that he
was prepared to proceed.
  For this reason, we review only for plain error. See
United States v. Lemmons, 

, 267 (7th Cir. 2000).
Miller has failed to show that the district court’s con-
sideration of the photo album’s contents impaired her
substantial rights. She does not argue that the evidence
was inaccurate, unreliable, or could have been rebutted,
nor does she explain what she would have done differently
if given a continuance or a longer recess. Because an
“abstract need for more time to review the evidence”—
which is all Miller argues—is insufficient to show actual
prejudice, see United States v. Crowder, 

, 937
(7th Cir. 2009) (denial of trial continuance), she is not
entitled to a new sentencing hearing on this basis.
10                                                No. 09-2791

C. Reasonableness of the sentence
  The district court imposed a sentence that was fifty
percent above the high end of the advisory Guidelines
range. Miller argues that the sentence is unreasonable
and was based on the district court’s unsupported (and,
she argues, erroneous) assumption that recidivism for
sex offenders is “massive” and that there is no way to
prevent a sex offender from re-offending. We review the
substantive reasonableness of the sentence for abuse of
discretion. Gall v. United States, 

, 51 (2007).
  When a judge sentences a defendant outside the
advisory Guidelines range, “he must consider the extent
of the deviation and ensure that the justification is suffi-
ciently compelling to support the degree of variance. . . .
[A] major departure should be supported by a more
significant justification than a minor one.” 

; United States v. Presbitero, 

, 707 (7th Cir.
2009). The judge must give a justification that explains
and supports the magnitude of the variance. United
States v. Eubanks, 

, 656 (7th Cir. 2010).
  There is no question that Miller committed a very
serious crime under aggravating circumstances and that
she caused significant harm to her victim. The record
reflects, however, that the court based its above-Guide-
lines sentence at least partly on its belief that sex offenders
have a higher-than-normal rate of recidivism, specific
deterrence does not work for them, and as a result,
lengthy incapacitation is the only way to protect the
public. Those factors, assuming their accuracy, would
apply to all sex offenders, not just Miller. “An above-
No. 09-2791                                                11

guidelines sentence is more likely to be reasonable if it
is based on factors [that are] sufficiently particularized
to the individual circumstances of the case rather than
factors common to offenders with like crimes.” United
States v. Jackson, 

, 792 (7th Cir. 2008) (internal
quotation marks and citations omitted).
  Just as importantly, neither party presented evidence
that supported the district court’s views about recidivism
and deterrence of sex offenders, nor did the court
provide any support for them. As Miller has argued on
appeal, the court’s comments about the rate of recidivism
may be contrary to studies we have previously cited. See
United States v. McIlrath, 

, 424 (7th Cir. 2008)
(citing R. Karl Hanson & Kelly E. Morton-Bourgon, “The
Characteristics of Persistent Sexual Offenders: A Meta-
Analysis of Recidivism Studies,” 73 J. Counseling &
Clinical Psych. 1154 (2005)). And another study by one
of the same authors, which Miller also cites, suggests
that the recidivism rate for female sex offenders is even
lower. See Franca Cortoni & R. Karl Hanson, “A Review
of the Recidivism Rates of Adult Female Sexual Offenders”
(May 2005), available at http://www.csc-scc.gc.ca/text/rsrch/
reports/r169/r169_e.pdf (last visited Apr. 8, 2010). In
addition, the United States Department of Justice has
reported that sex offender treatment programs can be
effective under appropriate circumstances to reduce, to
some extent, the potential for recidivism. See Center for
Sex Offender Management, U.S. Dept. of Justice, “Myths
and Facts About Sex Offenders” (Aug. 2000), available
at http://csom.org/pubs/mythsfacts.html (last visited
Apr. 8, 2010).
12                                             No. 09-2791

   We do not intend by citing these studies to endorse
their accuracy. And there may be reasons why, even if
accurate, they do not apply to Miller’s case. Our point
is that the district court’s comments about the likelihood
of recidivism and the inefficacy of sex offender treat-
ment, though perhaps consistent with commonly held
views, are subject to debate. Given the absence of support
in the record for the court’s views, and for the other
reasons we have cited, we conclude that the court failed
to provide sufficient support for a sentence that was
fifty percent above the high end of the advisory Guide-
lines range. “[A] sentencing judge should support an
above-guidelines sentence with compelling justifica-
tions.” United States v. Gooden, 

, 890-91 (7th
Cir. 2009) (internal quotation marks and citation omitted).
As a result, we conclude the sentence was unreasonable.


                    III. C ONCLUSION
  For the foregoing reasons, we vacate Miller’s sentence
and remand her case to the district court for resentencing.
We express no view on what a proper sentence would be.




                          4-13-10