PER CURIAM.
The defendant Paul Bradley pleaded guilty to traveling in interstate commerce to engage in sexual conduct with a minor. See 18 U.S.C. § 2423(b). He has now had two sentencing proceedings. At the first, the district court sentenced him to 240 months' imprisonment with ten years of supervised release, despite a guidelines range of 57-71 months. The district court based this sentence on presumed prior acts of the defendant and an unsupported assumption of recidivism, and for those reasons, we remanded the case for resentencing. United States v. Bradley, 628 F.3d 394 (7th Cir.2010). At Bradley's second sentencing, the district court again sentenced him to 240 months' imprisonment, despite the same guidelines range of 57-71 months and a government recommendation of 71 months. The court further added a lifetime term of supervised release. Bradley appeals this sentence on the grounds that the district court failed to provide sufficient justification for the sentence 169 months above the guidelines range, and because the district court did not adequately consider the statutory factors in § 3553(a). For the reasons set forth below, we once again vacate the sentence and remand for resentencing.
Our previous opinion summarizes the facts of this case, Bradley, 628 F.3d at 395-400, but we provide a summary of the facts relevant to the present appeal.
In Bradley's presentence report, the probation officer did not identify any adult or juvenile convictions, or even prior arrests, and thus assessed no criminal history points. The probation officer calculated Bradley's total offense level at 25 with a criminal history category of one, yielding a guidelines imprisonment range of 57 to 71 months. The probation officer did not identify any factor that would warrant a sentence above the guidelines range. The district court adopted the proposed findings without any objections from the parties. At the first sentencing the government requested an above-guidelines range sentence of 87 months. The district court imposed a sentence of 240 months' imprisonment, 169 months above the high end of the guidelines range.
We vacated the sentence because the district court failed to support its assumptions that Bradley had committed prior crimes and that he would likely commit more crimes if released. The district court's unnecessarily harsh and exaggerated language, in conjunction with the lack of justification offered for the extreme variance from the guidelines, informed our decision that the sentence was unreasonable. Bradley, 628 F.3d at 401. We also noted that the court adopted the findings of the presentence report, but that the presentence report contained material factual discrepancies because Bradley's and the victim's accounts of the events were incompatible. Id. We stated that the district court as a first step to considering the appropriate sentence, had to resolve these disputed issues of fact.
Before Bradley's second sentencing proceeding, the defense filed five ex parte motions for issuance of subpoenas duces tecum seeking the victim's schooling, juvenile court, medical, and mental health records pertaining to the victim, which the district court denied. At sentencing, the district court stated it would only rely on the stipulated facts, and would not give any weight to the contested portions of the presentence report. The court made clear that it would not, as the first district court had, speculate as to the defendant's prior acts for which there was no support, nor would it speculate as to the defendant's likelihood of recidivism. The district court assessed the § 3553(a) factors, finding many of them irrelevant, except the nature and circumstances of the offense. Regarding that factor, the court stated that "[i]t's difficult to conjure up a more serious crime than sodomizing a child." The district court then made a comparison of the instant offense to drug crimes and murder, noting that "the consequences of this offense are of a different magnitude than the offense of providing someone an intoxicating narcotic.... [T]he nature and circumstances of this offense have to be put
Bradley again appeals his sentence.
Bradley argues that his second sentence was unreasonable because the district court failed to sufficiently justify the sentence 169 months above the guidelines range, and because the district court did not adequately consider the factors in § 3553(a). We review the reasonableness of the sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
"[W]e will uphold an above-guidelines sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence." United States v. McIntyre, 531 F.3d 481, 483 (7th Cir.2008) (citing United States v. Castro-Juarez, 425 F.3d 430, 436 (7th Cir. 2005)). We have found that the guidelines regime following Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), "permits a sentencing judge to have his own penal philosophy at variance with that of the Sentencing Commission." United States v. Higdon, 531 F.3d 561, 562 (7th Cir.2008) (gathering cases). Following Kimbrough, we have also stated that "district judges are at liberty to reject any Guideline on policy grounds," but we have stressed that "they must act reasonably when using that power." United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (en banc) (emphasis in original). In acting reasonably, "[a]s a matter of prudence, ... in recognition of the Commission's knowledge, experience, and staff resources, an individual judge should think long and hard before substituting his personal penal philosophy for that of the Commission." Higdon, 531 F.3d at 562. A sentencing judge must give "respectful consideration to the judgment embodied in the guidelines range that he computes." Id. Additionally, "the court... needs to understand the relation between the [g]uidelines and the ultimate sentence." United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009). In this case, the record does not suggest that the court's sentence was based on a policy disagreement with the applicable sentencing guideline. No party argued the applicable guideline was deficient, and the court did not anywhere state that its sentence was based on a rejection of U.S.S.G. § 2G1.3(a)(4). The record also does not show that the court employed a penal philosophy at odds with the applicable guidelines after respectful consideration of the guidelines range.
We next look to the factors set forth in 18 U.S.C. § 3553(a). United States v. Johnson, 612 F.3d 889, 896 (7th Cir.2010) ("[A] district court may impose an above-guideline sentence based on the factors set forth in § 3553(a)."). When reviewing a sentence, we must determine whether the district court offered justification "sufficiently 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. Miller, 601 F.3d 734, 739 (7th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). We have stated that "[i]f the sentence imposed is outside the guidelines range, the district court must provide a justification that explains and supports the magnitude of the variance." United States v. Carter, 538 F.3d 784, 789 (7th Cir.2008) (citing United States v. Omole, 523 F.3d 691, 697-98 (7th Cir.2008)). The greater the departure, the more searching our review will be. Higdon, 531 F.3d at 563 ("[T]he greater the departure, the more searching will be the appellate review of the judge's exercise of his sentencing discretion."); see also Johnson, 612 F.3d at 896 ("[a]bove-guideline sentences must be supported with "compelling justifications") (emphasis added); Gall, 552 U.S. at 51, 128 S.Ct. 586 (district court must "justify the extent of the variance") (emphasis added).
The main reason proffered by the district court for the imposition of the sentence 169 months above the guidelines range was purportedly the nature and circumstances of Bradley's particular offense. The judge stated that "the nature and circumstances of this offense have to be put slightly below the offense of murder." At sentencing, the court addressed many of the 18 U.S.C. § 3553(a) factors, finding them irrelevant, but stated that "[s]o what we're talking about here are the nature and circumstances of the offense." The court continued with this reasoning in its written addendum, stating that "[v]ery few crimes are more serious than the stipulated conduct involved here." During the proceeding, the judge stated that the crime was "calculated" and "involved a lot of thought." In the written addendum, the court added that Bradley "traveled roughly 2000 miles to have sex with a boy that he knew was 15-years-old," and that "[t]his sentence is based on Paul Bradley's desire to have sex with a child, which he acted on."
The problem with this rationale is that it provides little more than what is implicit in the instant offense. 18 U.S.C. § 2423(b) proscribes interstate travel with intent to engage in sexual conduct with a minor.
The court found that "Bradley enticed the minor victim to have sex, travelled in interstate commerce for that purpose, and completed the sexual act." To the extent the district court relied on the commission of the sexual act when calculating its sentence, an element not required for a conviction under 18 U.S.C. § 2423(b), Bradley's base offense level was increased by two points pursuant to U.S.S.G. § 2G1.3(b)(4)(A) for the "commission of a sex act." So what the court seemed to rely upon for the sentence it imposed was already factored into the properly calculated guidelines range. It is not clear from the sentencing record how any individual circumstances of the commission of the sex act in this case were used in arriving at the chosen sentence.
We keep in mind that even where a judge considers "normal incidents" of an offense, "if such consideration is just one of many reasons the judge gave for a sentence outside the guidelines range, the sentence will be affirmed." Carter, 538 F.3d at 790 (internal citations omitted); see also United States v. Aldridge, 642 F.3d 537, 544 (7th Cir.2011). Here, however, the potential additional rationales for the sentence 169 months above the guidelines range do not provide the "sufficient justification" required.
The district court noted the 10-year mandatory minimum sentence under 18 U.S.C. § 2422(b). The court stated that "[t]his Court has sentenced offenders under that statute to 10-year sentences, where the conduct involved did not include having sex with the minor." Under 18 U.S.C. § 2422(b), "[w]hoever, using the mail or any facility or means of interstate or foreign commerce .. . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a ciminal offense, or attempts to do so," faces a 10-year mandatory minimum. But because the statute imposed a 10-year mandatory minimum, the judge was required to sentence the defendants in those cases to at least ten years (and apparently sentenced them to no more). We cannot tell from the record whether the judge considered that the sentences in the cited § 2422(b) cases were no greater than necessary to serve the goals of sentencing, and accordingly, cannot tell why a sentence that is twice the mandatory minimum mandated by 18 U.S.C. § 2422(b) is the appropriate sentence in this case.
The Government urges us to affirm Bradley's sentence because other courts have affirmed sentences above the guidelines for cases involving sexual exploitation of children. However, in these cases the sentences were justified with individualized factors, such as the very young age of the victim, a history of past abuse, the severity of abuse, or that the victim was in the care and custody of the defendant. See, e.g., United States v. Henzel, 668 F.3d 972, 978 (7th Cir.2012) (affirming 135-month sentence where the judge's reasons were "sufficiently particularized to [the defendant] and his offense," including his directing a 12-year-old girl to ingest drugs and alcohol, coercing her into sexual activity despite her obvious fear and repeated protests, and where the judge found that the defendant was selfish, immature, and failed to grasp the consequences of his actions); United States v. Jordan, 435 F.3d 693, 697 (7th Cir.2006) (upholding sentence 103 months above the guidelines range, citing severity of the offenses, past conviction for abusing his three-year-old daughter, and risk of recidivism); United States v. Sanchez, 440 Fed. Appx. 436, 441-42 (6th Cir.2011) (unpublished) (court found sentence that was five years above the mandatory minimum to be justified due to the duration of the abuse, past abuses of the defendant, and his behavior in the community); United States v. Vowell, 516 F.3d 503, 512 (6th Cir.2008) (upholding sentence that was 242% beyond the top of the guidelines range based on
Bradley also argues that the district court gave insufficient consideration to his history and characteristics. We note that we do not require that the § 3553(a) factors be comprehensively "canvass[ed]" in order to justify a sentence. McIntyre, 531 F.3d at 483 (citation omitted). However, in this case, the court did reference Bradley's history and characteristics in a sympathetic manner, noting that Bradley "lived and functioned at a fairly high level under extremely difficult circumstances for most of his life," so it is puzzling from the record how "the § 3553(a) factors, on a whole, justify the extent of the variance." Gall, 552 U.S. at 51, 128 S.Ct. 586 (emphasis added); see also United States v. Roberson, 474 F.3d 432, 435-36 (7th Cir.2007) (finding below-guidelines sentence unreasonable where, among other errors, discussion of the § 3553(a) factors were more likely to push the defendant's sentence upward).
To be sure, the sentencing transcript is not bare, and the district court took care to avoid particular errors that occurred during Bradley's first sentencing. But the district judge's discussion made more apparent what he did not consider in fashioning Bradley's sentence than what was considered in determining that a 240-month sentence and a lifetime term of supervised release was sufficient, but not greater than necessary to serve the goals of sentencing. In reversing the sentence, we do not question that "we will uphold an above-guidelines sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence." McIntyre, 531 F.3d at 483 (citation omitted). We only emphasize that "the court ... needs to understand the relation between the [g]uidelines and the ultimate sentence," Bartlett, 567 F.3d at 909, and that a "major departure," like the one in this case, "should be supported by a more significant justification than a minor one." Miller, 601 F.3d at 739 (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). We find that the district judge failed to provide a "more significant justification" to support a 240-month sentence and a lifetime term of supervised release, and so we once again reverse.
For the reasons set forth above, Bradley's sentence is VACATED, and the case REMANDED for resentencing consistent with this opinion. Circuit Rule 36 shall apply on remand.
18 U.S.C. § 2423(f) provides: