In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1080

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL R. BRADLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-40068-001-JPG—J. Phil Gilbert, Judge.

ARGUED OCTOBER 5, 2010—DECIDED DECEMBER 13, 2010

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

PER CURIAM. Paul Bradley pleaded guilty to traveling

in interstate commerce to engage in sexual conduct with

a minor. See 18 U.S.C. § 2423(b). The district court calculated a guidelines imprisonment range of 57 to 71

months, but sentenced him to 240 months. On appeal

Bradley principally argues that his sentence rests

on speculation about his prior criminal conduct and

likelihood of recidivism, and thus is unreasonable. We
2 No. 10-1080

agree and vacate the judgment and remand for

resentencing.

I. BACKGROUND

The police arrested Bradley after spotting his car

parked on the side of the road shortly after midnight and

finding him with T.S., a 15-year-old boy. Bradley, who is

from Oregon, initially told the police that he was lost

and had stopped T.S. to ask for directions, but later

he admitted meeting T.S. through a phone chat (the

equivalent of an Internet chatroom conducted over the

telephone). Bradley eventually learned that T.S. was

younger than 18 but still traveled to Illinois to meet him.

According to the probation officer, T.S. provided conflicting information during his several interviews. T.S.

asserted that he had been talking on MySpace with “Alice

Bradley,” whom he thought was a 16-year-old girl. He

told the probation officer that he and Alice first

started talking the month before the defendant’s arrest,

but later he reported in his victim-impact statement that

he and Alice had been communicating for six months.

According to T.S. they had arranged to meet in Illinois

(T.S. did not say where he thought Alice was from), but

on the appointed night Bradley showed up instead and

said that Alice was waiting at a motel. At first T.S. maintained that he never went to the motel, but later he

said that he was there with Bradley for one night only

and that Bradley had threatened to kill him if he did not

do as he was told. That statement is at least partly

false, since security cameras at the motel recorded
No. 10-1080 3

images of Bradley and T.S. the night they were discovered in the car, as well as the previous night. In his

last interview, T.S. added that Bradley had plied him

with alcohol before forcibly sodomizing him. The prosecutor would later concede that this account of a

forcible rape was undermined by DNA confirmation

that semen found on a motel blanket was from T.S., who

had denied engaging in any other sexual activity. T.S.

underwent a medical examination after the offense, but

the results were not disclosed by the probation officer.

T.S. told the probation officer that after his encounter

with Bradley he started drinking heavily in order to

feel numb and help him sleep. He also said that he no

longer felt comfortable around his father. T.S.’s mother

explained that his father had told T.S. that “he got what

he deserved, if he was going to do something like that.”

She related that T.S. had suffered harassment at school,

including a fight that resulted in a broken nose. She

also expressed worry about T.S.’s present and future

sexual behavior and the safety of her younger son

when around him. T.S. attended two sessions of counseling, but his deteriorating behavior at school resulted

in suspension and then placement in an alternative

school. In his victim-impact statement, he described a

recurring nightmare about waking up paralyzed, expressed feeling shame when interacting with peers, and

recounted the embarrassment and pain of getting

tested after the offense. T.S. also said he had suffered “a

great deal of public humiliation” when a local paper

printed details about the incident, including his name

and picture. That article is not sympathetic to T.S.; it
4 No. 10-1080

discloses that he misrepresented himself as an 18-yearold on MySpace and implies that he was a willing participant in his dealings with Bradley.

Motel records confirmed that Bradley had booked a

room for one adult and one child for both the night

he was arrested and the previous night. A search of

Bradley’s computer (presumably one he brought with

him to Illinois) uncovered evidence of two “child pornography” images, one of them deleted, as well as what

the probation officer described as two “sex-encounter

stories” about teenage boys (Bradley’s appellate

counsel describes these as “teenage boy coming of age

stories”). According to the probation officer, the

computer also contained several hundred images of

“adult pornography,” “adult homosexual pornography,”

and “adult males in lewd poses.”

Bradley initially was charged in state court, but he told

the probation officer that he had asked his lawyer to

contact federal authorities and initiate this prosecution

because he thought the state charges were inaccurate,

he wanted the case resolved quickly, and he wanted to

be incarcerated in a federal prison in California, near

his family. (After Bradley’s federal sentencing he pleaded

guilty in state court to aggravated criminal sexual abuse.

Eight other state charges, including child abduction,

unlawful restraint, and aggravated kidnapping, were

dismissed.) In a stipulated factual basis offered in

support of his guilty plea to the § 2423(b) count,

Bradley admitted traveling from Oregon to Illinois for

the purpose of engaging in sexual conduct with a person
No. 10-1080 5

he knew to be 15 years old and using his computer to

persuade the juvenile to engage in the sexual conduct.

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 I,

yielding a guidelines imprisonment range of 57 to 71

months. Under U.S.S.G. § 2G1.3(a)(4), his base offense

level was 24, but two levels were added for unduly influencing a minor, id. § 2G1.3(b)(2)(B), two more levels

were added for the commission of a sex act, id.

§ 2G1.3(b)(4)(A), and three levels were subtracted for

acceptance of responsibility, id. § 3E1.1(a), (b). 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 objection

from the parties.

At sentencing the government requested an aboverange sentence of 87 months. The prosecutor argued that

a sentence within the range would not adequately

reflect T.S.’s suffering—his removal from school and

his picture being printed in a local newspaper—and

suggested an increase equivalent to a two-level upward

adjustment for a vulnerable victim, see U.S.S.G. § 3A1.1(b).

The prosecutor, who had not met with T.S., acknowledged that some of his distress might relate to difficulties surrounding the disclosure of his sexual identity. The prosecutor also commented that he finds

it difficult to accept that convictions for possessing
6 No. 10-1080

child pornography often result in a higher imprisonment range than convictions for crimes, like Bradley’s,

that actually involve sexual contact with a minor.

Defense counsel, on the other hand, pressed the

district court to impose a 60-month sentence, highlighting Bradley’s cooperation with the federal investigation, his lack of criminal history, and the fact that

T.S. had suffered no physical injury. Defense counsel

conveyed regret about the newspaper’s identification

of T.S., but maintained that Bradley should not be punished for the paper’s actions. Defense counsel insisted

that Bradley’s actions were out of character, and he

reminded the court that until his arrest Bradley had

earned an education and worked his entire life, had

been married for nearly 32 years, was an active father

to four daughters, and volunteered at his church.

During his allocution, Bradley told the district court

that he met T.S. in a phone sex chatline for adult men,

at which time T.S. had said he was an 18-year-old

high school senior. Bradley’s assertion that he initially

thought T.S. was 18 is consistent with the newspaper

report that T.S. was misrepresenting his age on MySpace

as 18. Bradley maintained that he was upfront with

T.S. about his own age and said he began questioning

whether T.S. was 18 after seeing his picture on “Facebook”

and receiving nude pictures from T.S. (This photo of

T.S. may be the “child pornography image” found on

Bradley’s computer, but the record is not conclusive,

and apparently the lawyers for neither side looked at

the image.) Bradley admitted knowing that T.S. was
No. 10-1080 7

underage by the time they met in Illinois, but he insisted

that he never deceived T.S. about his intentions, or intimidated him, or used or threatened violence. Bradley expressed remorse and assured the court that he had

“never done anything like this before” and would “never

do anything like it again.” The court interrupted him,

asking if T.S. was “the first,” to which Bradley responded: “The first underage? Yes.” Bradley concluded

by vowing never again to use a social-networking site

or phone chat or do anything to undermine his chances

of reconnecting with his daughters or society in general.

The district court, unpersuaded by Bradley’s words,

characterized him as “Dr. Jekyll and Mr. Hyde” and a

child predator and told him: 

But in truth in fact, Mr. Bradley, you are a pathetic

person. I can’t think of a more calculated and

heinous crime upon children than this one. The only

thing worse you could have done to this child was

to have killed him. But wait a second. You did kill

him. You killed his spirit, his self-esteem, his confidence in himself, his security, and his ability to cope

with life. You have killed the person he was, for the

victim here, T.S., will never be the same. And he will

likely go through the rest of his life in living hell

because of you.

The court, having read a letter from Bradley’s 78-year-old

mother in which she quotes The Merchant of Venice in

asking the court to temper justice with mercy, responded

by paraphrasing its favorite philosopher, the Peanuts

character Snoopy, and telling Bradley: “’You are the
8 No. 10-1080

crabgrass on the lawn of life.’ And you know something,

Mr. Bradley? You are lucky that you are living in this

country and not in one of the middle eastern countries

where you would be executed for this crime.” The

court asserted that the imprisonment range was “so

inadequate under the facts of this case that to even consider a guideline sentence would be a travesty of justice,”

and instead, the court continued, the “facts of this case

present the exceptional circumstances that call for a

sentence near the top of the statutory range” of 30 years.

“In fact,” the court told Bradley, “I’ve given life sentences to people who deserved it less than the sentence

I’m going to be giving you.”

The court stated that the only factor under 18 U.S.C.

§ 3553(a) weighing in Bradley’s favor was his status as

a first-time defendant in a criminal prosecution. But the

court rejected Bradley’s assertion that he had never

before engaged in sex with a minor:

This doesn’t mean, however, that you haven’t committed other crimes. It doesn’t mean that you’ve

lived a law-abiding life. It just means you haven’t

been caught and charged with other crimes. Even

paragraph 10 of your presentence report states that

your computer had child pornography images as

well as other images of pornography on it. I can’t

help but to wonder how many other T.S.’s of yours

are out there. You, obviously, operated your criminal

activity under the radar.

The court then analyzed the other § 3553(a) factors:

Factor one of 3553(a) asks this Court to consider

the nature and circumstances of the offense, and that
No. 10-1080 9

is something I don’t think I need to repeat. For as I

said earlier, this was a heinous crime committed

against a victim here that will have a life-long lasting

impact on his family, too. Even the history and characteristics go against you when you consider what

was found on your computer. 

Factor two, the need for the sentence imposed, A, to

reflect the seriousness of the offense, to promote

respect for the law, and to promote just punishment

for the offense. Other than possibly a terrorist attack,

I can’t think of a more serious offense than what was

committed here, a crime against our children. And

whether or not, you know, he willingly, in your

mind, engaged in sexual conduct with you, the fact

is he was 15 years old and you knew better. You

should have walked away, but you didn’t. And

you’re going to pay the price for not walking away.

But to promote respect for the law and to provide

just punishment, a stiff sentence is necessary. To afford

adequate deterrence to criminal conduct, this factor

cries out for an above-guidelines sentence in order

to send a message to other pedophiles and perverts

this society will not tolerate this conduct.

Regarding the need to protect the public, the court

stated, “There is little question in my mind that the

public and society needs to be protected from Paul

Bradley for a long time, and that if released too soon, the

Court believes you would reengage in the same activity

that you are charged with here.” The court then told

Bradley: 
10 No. 10-1080

I am not a medical doctor, but you have to be a sick

individual to have done what you did. I don’t know

whether educational or medical treatment will help

you, but it’s obvious you need treatment, both educational and medical if you are ever going to be

able to live a law-abiding life once released. And considering the nature of this offense, that treatment

may take a long time. 

The court concluded by sentencing Bradley to 240

months’ imprisonment, 169 months above the high end

of the guidelines range. 

II. ANALYSIS

Bradley argues that the district court violated his right

to due process by speculating that he had committed

this type of crime before and would do it again if

released too soon. Bradley also argues that the court

overstepped by equating T.S.’s suffering to death, and

erroneously attributed his emotional distress to

Bradley’s crime rather than being outted to his family

and classmates. At oral argument, the government conceded that no evidence in the record directly supports

the court’s assumptions about Bradley’s past and his

risk of recidivism. But still, says the government, the

court adequately justified its beliefs about Bradley by

referencing the child pornography and stories of sexual encounters involving teenage boys found on his

computer and choosing to disbelieve Bradley’s declaration that his encounter with T.S. was his first with a

child. The government also argues that the court appro-
No. 10-1080 11

priately concluded that T.S.’s trauma resulted from

the offense. And in any event, the government insists,

Bradley forfeited these objections to his sentence

because he did not raise them to the district court.

The government’s forfeiture argument fails, as we

have made clear that a defendant need not “complain

about a judicial choice after it has been made.” United

States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009), cert.

denied, 130 S. Ct. 1137 (2010); see United States v. Paul, 542

F.3d 596, 599 (7th Cir. 2008); United States v. Cunningham,

429 F.3d 673, 679-80 (7th Cir. 2005). As for Bradley’s

complaint that the district court overstated T.S.’s

suffering, the only evidence of T.S.’s distress comes from

his own shifting accounts given to the probation officer.

No reports from T.S.’s counseling sessions or from

any physician or psychologist were presented. The government points out that “negative emotional consequences” naturally result from this type of offense, and

surely this is true. But the question here is one of

degree, and nothing in the record suggests consequences

of the magnitude the district court described.

In our view, however, the greater concern is the

absence of support for the district court’s assumptions

that Bradley had committed undiscovered crimes and

thus was likely to commit more if released. Bradley

rightly questions the propriety of the court’s disparaging

comments, particularly the glib response to his

mother’s plea for mercy. We recently observed that a

“litany of inflammatory remarks” can undermine the

entire analysis of a sentencing judge. United States v.
12 No. 10-1080

Figueroa, 622 F.3d 739, 743-44 (7th Cir. 2010); see United

States v. Lopez, 974 F.2d 50, 52 (7th Cir. 1992); United States

v. Schneider, 910 F.2d 1569, 1571 (7th Cir. 1990). Here, the

court’s unnecessarily harsh and exaggerated language

by itself gives us pause, but when we also consider the

speculation underlying the court’s reasons for the

extreme variance from the guidelines range, we simply

cannot conclude that the court imposed a reasonable

sentence.

Appellate courts review the reasonableness of sentences for abuse of discretion. Gall v. United States, 552

U.S. 38, 51 (2007). We must first ensure that the sentencing court made “no significant procedural error,”

including “selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the

chosen sentence.” Id. A defendant has a due process

right to be sentenced based on accurate information,

and the threshold for accuracy is whether the information has “sufficient indicia of reliability to support its

probable accuracy.” United States v. Pulley, 601 F.3d 660,

665 (7th Cir. 2010). Sentencing judges necessarily have

“discretion to draw conclusions about the testimony

given and evidence introduced at sentencing,” but

“due process requires that sentencing determinations

be based on reliable evidence, not speculation or unfounded allegations.” United States v. England, 555 F.3d

616, 622 (7th Cir. 2009), cert. denied, 2010 WL 3153546

(2010); see United States v. Mays, 593 F.3d 603, 608 (7th Cir.

2010), cert. denied, 130 S. Ct. 3340 (2010); Pulley, 601 F.3d

at 665; United States v. Rollins; 544 F.3d 820, 838 (7th

Cir. 2008); United States v. Barker, 467 F.3d 625, 629-30 (7th
No. 10-1080 13

Cir. 2006); United States v. Jones, 454 F.3d 642, 652 (7th Cir.

2006).

A conclusion is more likely to be sustainable if the

underlying analysis is “sufficiently particularized to the

individual circumstances of the case rather than factors

common to offenders with like crimes.” United States

v. Miller, 601 F.3d 734, 739 (7th Cir. 2010). For example,

we affirmed an above-guidelines sentence when the

district court detailed ten specific reasons supporting

its conclusion that the defendant posed a particular risk

for recidivism. United States v. Jordan, 435 F.3d 693, 697

(7th Cir. 2006). On the other hand, we recently

remanded for resentencing where the district court

relied upon its unsupported beliefs about recidivism

rates for child sex offenders as a reason to sentence the

defendant above the guidelines. Miller, 601 F.3d at 740.

The defendant in Miller was a 33-year-old female who,

like Bradley, had no criminal record. Id. at 735-36. She

pleaded guilty to traveling in interstate commerce to

engage in prohibited sexual activity with a 14-year-old

she met online. Id. Miller’s imprisonment range was 70

to 87 months, but the court sentenced her to 120

months based, at least in part, on an unsubstantiated

belief that recidivism rates for child sex offenders are

“massive” and that treatment options are bleak. Id. at

739. Neither the government nor the court had identified

any supporting evidence about recidivism, either in

general or about Miller in particular, though the government presented a photo album cataloging Miller’s

previous relationship with another young teenage girl.

Id. at 736, 739. On appeal we were troubled that the
14 No. 10-1080

district court’s statements, even if true, applied to all sex

offenders and were not specific to Miller. Id. at 739.

Miller provided us with studies indicating lower recidivism rates for females and the availability of effective sexoffender treatment. Id. at 739-40. After considering

these studies and the dearth of evidence specific to

Miller’s recidivism in the record, we concluded that the

district court’s beliefs were, at best, subject to debate

and therefore inadequate to justify the above-guidelines

sentence. Id. at 740.

Bradley argues that the district court, as in Miller,

improperly speculated that he would recidivate. The

government counters that in this case the district court

made an individualized determination based upon

“specific evidence” that Bradley needed a lengthy

sentence to prevent him from committing the same

crime again. But that contention is not supported by

the record. In fact the district court went further out on

the limb than the judge did in Miller: instead of making

a questionable prediction about future behavior based

on a single episode of deviant conduct, the judge in

this case made a prediction about future conduct based

on rank speculation about other, multiple instances of

deviant behavior. Indeed, in Miller the defendant’s

photo album confirmed the existence of a prior underage victim, but no similar evidence is present here. Moreover, any individualized determination appears limited

to the court considering Bradley’s possession of child

pornography, lack of criminal history, and assertion that

he had never done this before and concluding that he

was a below-the-radar pedophile who would recidivate.
No. 10-1080 15

Possession of child pornography is a separate offense

that the court properly considered, Mays, 593 F.3d at 609-

10, but it is unclear how the court connected the possession of child pornography with the conclusion that

Bradley had committed this crime before and would

commit it again.

This conclusion suffers from the same defect as in

Miller—the district court relied on its unsubstantiated

belief that possessors of child pornography inevitably

are child sex offenders. Such speculation cannot survive

due process challenge. See United States v. Newman, 614

F.3d 1232, 1238-39 (11th Cir. 2010) (remanding

when sentencing court concluded without support in

record that defendant brought his son to Middle East

because it would be difficult for anyone to find him

there); England, 555 F.3d at 623 (remanding when preponderance of evidence failed to support district

court’s finding that defendant would have attempted

murder had he been out on bond). The government

argues that, despite the speculation, the district court

still imposed a reasonable sentence and provided an

adequate explanation by discussing the sentencing

factors listed in 18 U.S.C. § 3553(a). But the evaluation

of those factors was flawed from the inception because

the court’s assessment of the very first factor—the

nature and circumstances of the offense and Bradley’s

history and characteristics, see id. § 3553(a)(1)—rests on

speculation rather than evidence bearing “sufficient

indicia of reliability.” Pulley, 601 F.3d at 665. And this

skewed view of the first factor necessarily colored the

court’s view of the remaining § 3553(a) factors. Because
16 No. 10-1080

the district court based Bradley’s sentence on its speculation about past crimes and his potential for recidivism,

we vacate Bradley’s sentence and remand for resentencing.

On a final note, Bradley also argues that the district

court did not explicitly adopt a version of the disputed

facts surrounding the offense. The government responds

that the court adopted the findings in the presentence

report. Yet material factual discrepancies abound in

the presentence report. The bottom line is the same—

Bradley engaged in illegal sexual conduct—but the

journey there remains largely up to debate, as Bradley’s

and T.S.’s accounts are wholly incompatible. The

district court, then, as a first step to considering the

appropriate sentence, will need to resolve these disputed

issues of fact. See FED. R. CRIM. P. 32(i)(3)(B); United

States v. Dean, 414 F.3d 725, 727 (7th Cir. 2005).

III. CONCLUSION

Bradley’s sentence is VACATED, and this case is

REMANDED for further proceedings consistent with

this opinion. Circuit Rule 36 shall apply on remand.

12-13-10