March 29, 2016
from the United States District Court for the Northern
District of Indiana, Hammond Division. No. 2:12-CR-171 -
James T. Moody, Judge.
Flaum, Easterbrook, and Sykes, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
was 29, Carey Ray started to chat over the Internet with a
14-year-old girl, called "Alexia" to protect her
identity. At their first in-person meeting Ray plied Alexia
with marijuana and cognac. At their second he took her to a
motel (crossing from Indiana into Illinois), where marijuana
and alcohol were followed by sexual intercourse. The jury in
this criminal prosecution was entitled to find that Ray knew
Alexia to be 14 (so that she could not legally
consent to sex) and that Ray used drugs and force to overcome
her resistance (so that she did not consent). Ray
has been convicted of violating 18 U.S.C. §2423(a)
(knowingly transporting a minor across state lines to engage
in criminal sexual activity) and sentenced to 320 months in
prison plus 15 years of supervised release.
contends that the evidence is insufficient to show that, when
he crossed the state border, he intended to have sex with
Alexia. Yet he had raised the possibility with Alexia, and
practically the first thing he did on arriving in Illinois
was rent a motel room (booked for a four-hour stay). After
Alexia became woozy from the marijuana and cognac, Ray forced
himself on her. When she said that she was not ready, he
replied: "I paid for this room. I'm gonna get what I
want." The jury was entitled to infer that Ray knew when
he drove into Illinois what he wanted and planned to do.
2423(a) creates a piggyback offense: The prosecution must
show that the sexual activity after crossing the state line
violated some other statute. The indictment charged Ray with
aggravated criminal sexual abuse, in violation of 720 ILCS
5/11-1.60, in two ways: first, that Ray used force or the
threat of force to commit an "act of sexual
conduct" with someone under the age of 17
(§5/11-1.60(c)(1)); second, that Ray committed an
"act of sexual penetration or sexual conduct" with
someone under the age of 17, while at least 5 years older
than the victim (§5/11-1.60(d)). The evidence permitted
a reasonable jury to find that Ray violated the Illinois
statute in both of these ways. But he maintains that the
instructions were defective.
judge told the jury that, to convict Ray of violating the
federal statute, it had to find that he also violated the
Illinois statute. The instruction listed each element of each
of the two subsections of the Illinois statute on which the
prosecution relied. For example, the instruction told the
jury that to find a violation of §5/11-1.60(d) it had to
find that Ray (1) committed an act of sexual conduct; (2)
with a person who was at least 13 but under 17 at the time;
(3) while being at least 5 years older than the other person.
Ray asked the judge to add a fourth element: that he lacked a
reasonable belief that Alexia was 17 or older. The district
court declined to add this to the list of elements but did
tell the jury that Ray's reasonable belief that Alexia
was 17 or older was a defense. The instruction added that the
prosecution had to negate that defense beyond a reasonable
respect to the offense under §5/11-1.60(c)(1), Ray
wanted the judge to tell the jury that, even if he used force
(or threats of force), the prosecution still had to prove
that Alexia did not consent. Once again the district judge
gave an instruction calling this matter a defense rather than
an element, but providing that to find a violation of state
law the prosecution had to negate the defense of consent by
proof beyond a reasonable doubt.
to Ray, by calling these subjects defenses the instructions
relieved the prosecution of its burden of persuasion.
That's not so, because the instructions expressly
provided that the prosecutor bore the burden on the defenses.
State law calls consent, and a reasonable belief that the
other person was at least 17, defenses rather than elements.
720 ILCS 5/11-1.70. This statute does not say which side has
the burden of persuasion; the district judge adopted the
position most favorable to Ray by assigning the burden to the
prosecutor. That Illinois pattern jury instructions treat
these defenses, once raised, as if they were elements, does
not compel a federal court to follow suit. Federal practice
prevails in federal court, even when state law provides the
substance. This circuit's pattern criminal jury
instructions likewise are not mandatory. A judge can draft
instructions in multiple ways, as long as they frame the
essential questions in language that jurors are likely to
the burden of a defense to the prosecution may confuse lay
jurors, but almost any legal language has that potential. Ray
says that his jury was confused, to his detriment,
about these defenses, but the two notes from the jury show a
different kind of confusion. The jury's first question
asked: "Does No. 18 define No. 17 Question 3? Or is this
a separate or additional charge?" The second read:
"No 18 Can we find defendant guilty or not
guilty of Section (d), (c)(1), or both? Because indictment
doesn't separate them." Instruction 17 told the jury
the elements of §2423(a) and Instruction 18 the elements
of the Illinois statute. It is evident from these notes that
the jury did not initially grasp that Ray was charged with
only one crime (a violation of federal law), but that to
prove the violation of federal law the prosecution had to
show that Ray violated a state law after entering Illinois.
That kind of confusion may be inherent in piggyback statutes
and has nothing to do with the separation of the state
statute into elements (Instruction 18) and defenses
(Instruction 20, which the jury did not ask about). Ray does
not complain about the answers the judge gave to the
jury's questions, so we must assume that the verdict was
reached with the necessary understanding.
to sentencing. The presentence report (seconded by the judge)
started with U.S.S.G. §2G1.3, which applies to
convictions under §2423. Guideline 2G1.3 has a
cross-reference: "If the offense involved conduct
described in 18 U.S.C. §2241 or §2242, apply
§2A3.1". The presentence report concluded that Ray
had used force, bringing his conduct within the scope of 18
U.S.C. §2241(a)(1), which forbids using force to
accomplish a sexual act. Guideline 2A3.1 has a higher base
offense level (30, compared to 28 under §2G1.3), plus
offense characteristics that add more levels than the
characteristics under §2G1.3. Ray insists that he did
not use force, but Alexia testified that Ray pushed her,
climbed on top of her, and penetrated her even though she was
trying to resist. A medical exam found scratches on her body
consistent with the use of force. This supports the use of
calls the use of one force-specific offense characteristic in
§2A3.1 "double counting" because the
§2241(a) offense itself entails force. But we held in
United States v. Vizcarra, 668 F.3d 516 (7th Cir.
2012), that the Guidelines permit a single fact to count
under more than one Guideline or offense characteristic.
There is no general rule against "double counting";
there is only a need for the judge to count as the Guidelines
themselves count. Ray relies on a number of cases in this
circuit that precede Vizcarra, which was circulated
to the full court under Circuit Rule 40(e), see 668 F.3d at
519, because it was cleaning up inconsistency in circuit law.
Precedents inconsistent with the outcome of a Rule 40(e)
decision have no continuing force. There is no problem under
Vizcarra and the language of §2A3.1.
pronouncing sentence, the district judge did not say anything
in particular about three of Ray's arguments for a lower
sentence: that this was his first offense, that he had an
extensive work history, and that he is a devoted father. Ray
calls this silence an error. But the first of his points is
built into the Guidelines (he had a criminal history level of
I) and did not require further comment, and the other two are
the sort of stock arguments that may be passed in silence.
See, e.g., United States v. Ramirez-Fuentes, 703
F.3d 1038, 1047- 48 (7th Cir. 2013). We held in United
States v. Young, 590 F.3d 467, 474 (7th Cir. 2009), that
being a devoted parent does not require specific discussion
in sentencing. See also United States v. Tahzib, 513
F.3d 692, 695 (7th Cir. 2008). We treated work history the
same way in United States v. Chapman, 694 F.3d 908,
916 (7th Cir. 2012); United States v. Russell, 662
F.3d 831, 854 (7th Cir. 2011); and United States v.
Allday, 542 F.3d 571, 572-73 (7th Cir. 2008).
brings us to the appeal's most difficult subject: the
district court's handling of the conditions of supervised
release. The district court pronounced Ray's sentence in
December 2014. Decisions in this circuit since then have
announced both procedural and substantive requirements for
permissible conditions of supervised release. See, e.g.,
United States v. Thompson, 777 F.3d 368 (7th Cir.
2015); United States v. Kappes, 782 F.3d 828 (7th
Cir. 2015). Ray's brief in ...