United States v. Carey Ray , 831 F.3d 431 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3799 & 15-3193
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CAREY RAY,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12-CR-171 — James T. Moody, Judge.
____________________
ARGUED MARCH 29, 2016 — DECIDED JULY 27, 2016
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. When he 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
2 Nos. 14-3799 & 15-3193
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.
Ray 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.
Section 2423(a) creates a piggyback offense: The prosecu-
tion 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 viola-
tion 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 con-
duct” 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 evi-
dence 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.
Nos. 14-3799 & 15-3193 3
The judge told the jury that, to convict Ray of violating
the federal statute, it had to find that he also violated the Il-
linois statute. The instruction listed each element of each of
the two subsections of the Illinois statute on which the pros-
ecution 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 de-
fense. The instruction added that the prosecution had to ne-
gate that defense beyond a reasonable doubt.
With 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 ele-
ment, 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.
According to Ray, by calling these subjects defenses the
instructions relieved the prosecution of its burden of persua-
sion. That’s not so, because the instructions expressly pro-
vided 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
4 Nos. 14-3799 & 15-3193
most favorable to Ray by assigning the burden to the prose-
cutor. That Illinois pattern jury instructions treat these de-
fenses, once raised, as if they were elements, does not com-
pel 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 lan-
guage that jurors are likely to grasp.
Assigning 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 det-
riment, 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 In-
struction 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 Illi-
nois. 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 (In-
struction 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.
Nos. 14-3799 & 15-3193 5
We turn 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 us-
ing 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 con-
sistent with the use of force. This supports the use of the
cross-reference.
Ray calls the use of one force-specific offense characteris-
tic 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 sin-
gle 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 cas-
es 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. Prec-
edents 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.
6 Nos. 14-3799 & 15-3193
When 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).
This brings us to the appeal’s most difficult subject: the
district court’s handling of the conditions of supervised re-
lease. The district court pronounced Ray’s sentence in De-
cember 2014. Decisions in this circuit since then have an-
nounced 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 his initial
appeal, No. 14-3799, contends that some of these conditions
are inconsistent with the circuit’s more recent precedent.
Conceding that nine of the conditions were indeed either
unwarranted or poorly worded, the United States asked the
district court to fix the problem while Ray’s appeal was
pending. Circuit Rule 57 affords one way by which this
Nos. 14-3799 & 15-3193 7
might occur. It provides that if the district court is inclined to
modify a judgment during an appeal’s pendency, it may re-
quest this court’s permission to do so. This court then can
decide whether it is appropriate to remand to the district
court immediately or to resolve the appeal and then let the
district judge clean up any remaining problems.
The United States did not ask the district judge to use
Circuit Rule 57. Instead the prosecutor asked the judge to
proceed as if no appeal were pending and to modify the
conditions of supervised release under 28 U.S.C. §3583(e)(2),
which says that conditions may be modified at “any time”.
The judge then summarily changed the language of nine
conditions. Ray had asked the judge to wait for the appeal to
be resolved, but he decided to act immediately—without this
court’s consent under Circuit Rule 57, without holding a new
sentencing proceeding under Fed. R. Crim. P. 32, and with-
out receiving full briefs and argument from Ray’s lawyers.
Ray then filed a new appeal, docketed as No. 15-3193, con-
tending that the district court lacked jurisdiction to alter the
judgment while it was under review by this court, and that
four of the conditions, even after revision, remain out of
compliance with Thompson and its successors.
The district court concluded that it was entitled to disre-
gard Circuit Rule 57 and the pending appeal in light of Unit-
ed States v. Ramer, 787 F.3d 837 (7th Cir. 2015), and United
States v. Taylor, 796 F.3d 788 (7th Cir. 2015). Ramer concludes
that the “at any time” language in §3583(e)(2) supersedes the
normal rule that only one court at a time has jurisdiction.
Taylor reached the same conclusion about conditions of pro-
bation. Observing that Ramer was decided without jurisdic-
tional briefs from the parties, and that jurisdiction was not
8 Nos. 14-3799 & 15-3193
contested in Taylor, Ray has asked us to revisit the subject
and to overrule both Ramer and Taylor.
Ray relies on the considerations presented by a separate
opinion in Taylor. Rather than paraphrase, we quote:
Ramer holds that 18 U.S.C. §3583(e)(2), which states that a district
court may modify a term of supervised release “at any time”,
implies that the district court may act while an appeal is pend-
ing, notwithstanding the norm that only one court at a time has
jurisdiction. See, e.g., Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (a notice of appeal “divests the district
court of its control over those aspects of the case involved in the
appeal”); United States v. McHugh, 528 F.3d 538 (7th Cir. 2008).
The statute governing probation, 18 U.S.C. §3563(c), says the
same thing as §3583(e)(2), so Ramer logically covers probation as
well as supervised release. But I do not find Ramer persuasive. It
does not consider the possibility that “at any time” refers to how
long after a judgment a court may act, rather than which court
has authority to act.
Before the Sentencing Reform Act of 1984, district courts could
modify sentences long after they had been imposed. See, e.g.,
United States v. Addonizio, 442 U.S. 178 (1979), discussing the old
version of Fed. R. Crim. P. 35. Until Rule 35’s adoption, “[t]he be-
ginning of the service of the sentence in a criminal case end[ed]
the power of the court even in the same term to change it.” Unit-
ed States v. Murray, 275 U.S. 347, 358 (1928). The 1984 Act moves
back toward a system of determinate sentencing, amending Rule
35 to allow a district court to modify a sentence only on remand
from a court of appeals, or in response to a motion by the prose-
cutor based on assistance in other defendants’ cases. Change also
is possible under retroactive amendments to the Guidelines, and
Rule 35 has been amended to allow correction of technical gaffes
within 14 days of a sentence’s imposition. The 1984 Act left in
place, however, the two statutes I have mentioned, which treat
probation and supervised release as special situations, because
they entail ongoing monitoring that may last long after release
from prison.
Nos. 14-3799 & 15-3193 9
To say that the 14-day limit does not apply to probation and su-
pervised release is not at all to say that a district court may act
while the same judgment is being contested on appeal. Nothing
in the text of §3563(c) or §3583(e)(2) speaks to jurisdiction, and
the Supreme Court insists that jurisdictional rules be set out in
jurisdictional terms. Rules about time for action do not affect ju-
risdiction. See Eberhart v. United States, 546 U.S. 12 (2005) (hold-
ing this about Fed. R. Crim. P. 33 in particular); see also, e.g.,
United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015); Henderson
v. Shinseki, 562 U.S. 428 (2011); Dolan v. United States, 560 U.S. 605
(2010). (The rare exceptions to this norm rest on historical prac-
tice. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130
(2008); Bowles v. Russell, 551 U.S. 205 (2007). A district court’s au-
thority to modify terms of release while an appeal is pending
does not have the support of established practice.)
The panel in Ramer did not discuss the difference between tim-
ing rules and jurisdictional rules, and that omission is under-
standable. The parties had not discussed jurisdiction in their
briefs; the panel did so on its own, without calling for submis-
sions from the parties. The parties have not briefed jurisdiction
in this appeal either. And United States v. D’Amario, 412 F.3d 253
(1st Cir. 2005), which Ramer followed, preceded Eberhart and oth-
er cases in the last decade that distinguish timing rules from ju-
risdictional rules. (D’Amario also did not cite pre-2005 decisions
about this topic. The modern doctrine begins with Zipes v. Trans
World Airlines, Inc., 455 U.S. 385 (1982).)
Nor did Ramer discuss the effect of its holding on other rules and
statutes that allow a district court to modify a judgment. Take
Fed. R. Civ. P. 60(b), some parts of which allow a judgment to be
modified years after its entry. Or take Fed. R. Crim. P. 12(b)(2)
and Fed. R. Civ. P. 12(h), both of which say that a district court
may dismiss a case “at any time” after concluding that subject-
matter jurisdiction is missing. The civil and criminal rules con-
tain many more “any time” references. (The phrase “at any
time” appears 14 times in the criminal rules and 19 times in the
civil rules.)
10 Nos. 14-3799 & 15-3193
I had supposed, until Ramer, that such rules do not affect the al-
location of jurisdiction between trial and appellate courts. In-
deed, one of the “at any time” references appears in Fed. R.
Crim. P. 36, which we held in McHugh does not permit a district
court to act while an appeal on the same subject is pending.
Ramer upsets this understanding, though perhaps accidentally. It
does not discuss any of these rules and, though it cites McHugh,
does not recognize that McHugh concerns an “at any time”
clause. So although I am content to follow Ramer today, I do not
view the issue as closed. We appear to have an intra-circuit con-
flict that needs a fresh look with the benefit of briefs.
796 F.3d at 797–98 (concurring opinion). Ray has asked us to
take the “fresh look with the benefit of briefs” for which the
concurring opinion called.
Ray wants us not only to overrule recent precedents but
also to create a conflict among the circuits. (As far as we can
see, no circuit other than the First and the Seventh has ad-
dressed the issue.) We are reluctant to do either, if an alter-
native is available. And we think that one is available. We
hold today that, whether or not it possesses jurisdiction to
revise the conditions of supervised release while an appeal is
pending, a district court should not exercise that jurisdiction
without receiving permission under Circuit Rule 57—and it
should not seek that permission in the absence of strong rea-
sons that are lacking in Ray’s case.
One important reason is that Thompson and its successors
call for full resentencing when the district court imposes un-
justified or vague conditions of supervised release. Thompson
recognized that there may be a relation between the condi-
tions of supervised release, or among the conditions them-
selves, that is best assessed by reconsidering the sentence as
a package. A change in one condition may call for another to
be strengthened—or abandoned. And changes that may
Nos. 14-3799 & 15-3193 11
make supervised release less (or more) effective as a pun-
ishment or deterrent could call for a term of imprisonment
that is longer (or shorter).
But if a district judge modifies a handful of contested
conditions while the sentence is on appeal, it is not possible
either to adjust the relation among conditions or to change
the balance between time in prison and time subject to su-
pervision. A proceeding such as the one conducted in this
case defeats the remedy devised by Thompson and its succes-
sors. If conditions of supervised release are modified under
§3583(e)(2) while the defendant is on release, the judge need
not reconsider the time in prison. But a change made at the
very beginning of imprisonment may make the process of
full resentencing important.
Sometimes it is sensible to fix problems in the super-
vised-release portion of the sentence and let the rest stand.
See, e.g., United States v. Sainz, No. 13-3585 (7th Cir. June 27,
2016); United States v. Bickart, No. 15-2890 (7th Cir. June 17,
2016); United States v. Guidry, 817 F.3d 997 (7th Cir. 2016);
United States v. Purham, 795 F.3d 761 (7th Cir. 2015). Whether
to proceed that way is a decision committed to this court,
applying the principles developed in our precedents. That
role should not be bypassed by a district judge’s unilateral
decision. Circuit Rule 57 makes sure that the right body
makes the decision.
A second reason is closely related to the first: When a full
resentencing is appropriate, the district court must comply
with Fed. R. Crim. P. 32. That means bringing the defendant
into court, considering briefs and evidence that the parties
elect to present, and allowing the defendant an opportunity
to address the judge personally to request a particular sen-
12 Nos. 14-3799 & 15-3193
tence (or just to request lenience). Our recent cases encour-
age the district court to circulate proposed conditions to the
parties before the hearing, so that they can choose which to
accept and which to contest, and formulate arguments
against those that are contested. See, e.g., United States v.
Speed, 811 F.3d 854, 859 (7th Cir. 2016); Kappes, 782 F.3d at
842–44. The district court did not afford Ray a Rule 32 hear-
ing, however, or permit him a full opportunity to challenge
the prosecutor’s proposed revisions of the nine conditions.
A defendant who asks the judge to change one or a few
conditions under §3583(e)(2) is entitled to waive his rights
under Rule 32, and a given request might be understood to
signify a desire to bypass a full hearing without the necessity
of a formal waiver. But when the prosecutor is the one who
proposes a change, no waiver by the defense can be implied.
Ray protested the procedure and did not relinquish his
rights under Rule 32.
Our third and final reason for insisting on the use of Cir-
cuit Rule 57 is that a change by the district court can need-
lessly prolong and complicate the appeal. Before the district
court modified the conditions of Ray’s supervised release, he
had filed his principal appellate brief. The change in the sen-
tence led to a substantial delay in appellate review as Ray
took a new appeal and filed another opening brief. Duplica-
tion of briefs may waste the time of lawyers. More seriously,
for defendants who have a good challenge to a conviction,
delay in appellate review means unjustified time in prison.
Instead of taking steps that delay appellate review, and
perhaps prolong the imprisonment of someone who should
be released quickly, a district court should wait for our deci-
sion of the appeal. Full reversal is one possible outcome.
Nos. 14-3799 & 15-3193 13
Then there would be no need for supervised release, and any
dispute about the conditions of release would become moot.
Reversal of some but not all counts is another possible out-
come. Then the whole sentencing package, including the du-
ration and conditions of supervised release, would need to
be reviewed, and changes the district court made in the in-
terim would be so much wasted motion. Still another possi-
bility is affirmance across the board—that is, we might reject
not only challenges to the conviction but also contentions
that the conditions of supervised release are improper. That
disposition would obviate a need for changes in the condi-
tions.
Waiting for the outcome of the appeal before taking up a
request under §3583(e)(2) usually is much the best course. It
isn’t as if there were a need for a speedy rewrite. Ray will
spend more than 20 years in prison before his supervised re-
lease begins. Only when the term of imprisonment is short,
and supervised release might commence before the appeal
ends, would it be prudent to modify the conditions while the
appeal is pending. And when the district judge believes that
this is so, the procedure laid out by Circuit Rule 57 would
allow this court to decide whether an expedited decision of
the appeal could be a better solution.
Because this opinion adopts a rule of practice for the cir-
cuit, it was circulated before release to all active judges. See
Circuit Rule 40(e). None favored a hearing en banc.
Our conclusion that adherence to Circuit Rule 57 makes
it unnecessary to decide whether Ramer and Taylor are cor-
rect about jurisdiction does not transgress the holding of
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93–
102 (1998), that federal courts cannot decide issues under the
14 Nos. 14-3799 & 15-3193
doctrine of “hypothetical jurisdiction.” That doctrine posited
that it did not matter whether the court had subject-matter
jurisdiction, as long as the plaintiff lost on the merits, so that
the court could just assume the existence of jurisdiction. Steel
Co. observes that jurisdiction means the authority to decide,
and a decision in favor of defendant is as much in need of
jurisdiction as a decision in favor of plaintiff. Circuit Rule 57,
by contrast, calls for no decision in the district court while
the appeal is pending (unless this court remands), and no
decision is as consistent with no jurisdiction as it is with ju-
risdiction.
In the years following Steel Co., the Justices have held that
there is no priority among the many reasons for not deciding
a case. So, for example, a court may dismiss a suit for lack of
personal jurisdiction without deciding whether it has sub-
ject-matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574 (1999). It may dismiss on the ground of forum non
conveniens without deciding whether it has subject-matter
jurisdiction. Sinochem International Co. v. Malaysia Internation-
al Shipping Corp., 549 U.S. 422 (2007). The Court stated in
Ruhrgas that a judge has leeway to “choose among threshold
grounds for denying audience to a case on the merits”. 526
U.S. at 585. And this implies that a district court may wait for
the outcome of the appeal (or for action under Circuit Rule
57) whether or not it has subject-matter jurisdiction; all the
delay does is postpone resolution of the request until a more
appropriate time.
In this case the district court jumped the gun and modi-
fied nine conditions while Ray’s original appeal was pend-
ing. The appropriate remedy is the same as in Thompson: a
remand for full resentencing. The district court should circu-
Nos. 14-3799 & 15-3193 15
late the text of all proposed conditions to the parties before
the resentencing and allow each side an opportunity to make
whatever objections and arguments the litigant deems ap-
propriate. See United States v. Bloch, No. 15-1648 (7th Cir.
June 17, 2016), slip op. 14–15. When resolving the parties’
contentions, the district judge will be able to consider the ef-
fect of appellate decisions that postdate the modification in
September 2015.
Ray’s conviction is affirmed, but the sentence is vacated
and the case is remanded for resentencing.