In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 19-2522 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.
DAVID A. BRIDGEWATER, Defendant-Appellant. ____________________
Appeal from the United States District Court for the Southern District of Illinois. No. 19-cr-40012 — Staci M. Yandle, Judge. ____________________
ARGUED JANUARY 16, 2020 — DECIDED FEBRUARY 19, 2020 ____________________
Before FLAUM, MANION, and KANNE, Circuit Judges. FLAUM, Circuit Judge. David Bridgewater pleaded guilty to one count of soliciting an obscene visual depiction of a minor in violation of 18 U.S.C. § 2252A(a)(3)(B)(i). Federal law re- quired a mandatory-minimum Guidelines sentence of 60 months in prison. The district court deviated from the Guide- lines to 78 months to account for a charge of attempted entice- ment of a minor that the government dismissed in exchange for his guilty plea. That conduct, the court found, aggravated 2 No. 19-2522
the nature and circumstances of the offense of conviction. The court therefore sentenced above the Guidelines range to ho- listically address Bridgewater and his crime in a way the man- datory-minimum Guidelines range did not. Bridgewater now appeals his sentence, principally arguing that it is substan- tively unreasonable because basing it—even in part—on dis- missed conduct creates systemwide disparity. We affirm. I. Background In January 2019, David Bridgewater contacted a boy who he thought was named “Stephen” on Grindr, an online dating application. Stephen, however, was really an undercover FBI agent participating in a sting operation. The following federal child exploitation investigation and prosecution ensued. A. Investigation After exchanging some initial messages, Stephen identi- fied himself as a fifteen-year-old boy from Marion, Illinois. Bridgewater described himself as a forty-five-year-old man who lived in Anna, Illinois. Quickly, Bridgewater shifted the conversation to sexual matters and asked Stephen if he was circumcised. He also asked Stephen to send him a picture to prove he was real. The two then agreed to text via the Google voice application. During the subsequent encounter, Stephen sent a pur- ported picture of himself, to which Bridgewater replied: “[ex- plicative] you are cute.” Bridgewater told Stephen he wanted to make out and perform oral sex on him. Stephen said he would prefer “oral and hands first,” and Bridgewater agreed, on the condition that he could “see it and touch [Stephen’s] butt.” Bridgewater questioned Stephen whether he was real or not, inquiring: “You’re not an undercover cop or detective No. 19-2522 3
or law enforcement?” Stephen assured Bridgewater he was not a police officer, and the two switched to talking about Ste- phen’s living arrangements, hobbies, and interests. Bridge- water asked if Stephen would send him a “sneak peak,” re- questing a picture of his “tummy and pubic area” and penis. They agreed to carry on their conversation and meet in person the following day. As the two exchanged messages the next day, they dis- cussed meeting at a McDonald’s in Marion after Stephen got out of school. Bridgewater asked Stephen to call him when he was on his way to meet him. Later that afternoon, Stephen texted Bridgewater to tell him he was en route to the McDon- ald’s, and Bridgewater noted that he would be there in several minutes. Upon Bridgewater’s arrival, he texted Stephen that he was parked behind the McDonald’s. When agents ap- proached Bridgewater in his vehicle, he saw them and drove away from the parking lot. The agents followed Bridgewater and executed a traffic stop. The agents asked Bridgewater if he would talk to them and he agreed. Bridgewater admitted that he had met Stephen on Grindr the previous day and that he had traveled to Mar- ion to meet him. Bridgewater denied meeting Stephen for sex, although he agreed he had given Stephen that impression and it would certainly appear that way to anyone else. Bridge- water also admitted that Stephen had told him he was fifteen and that he had sent pictures of himself to Stephen. Bridge- water insisted that he was not going to perform oral sex on Stephen but was instead going to counsel him regarding his risky behavior. When questioned about the ongoing sexual nature of the communications, Bridgewater stated he only continued this way to “keep the conversation going.” When 4 No. 19-2522
asked, Bridgewater conceded that he was worried Stephen was an undercover police officer. The agents seized Bridge- water’s cell phone and released him pending further investi- gation. B. Prosecution In nearly two weeks’ time, the government charged Bridgewater with one count of attempted enticement of a mi- nor in violation of 18 U.S.C. § 2422(b) and one count of solic- iting an obscene visual depiction of a minor in violation of 18 U.S.C. § 2252A(a)(3)(B). Approximately a week later, agents arrested Bridgewater. After his arrest, the agents confronted Bridgewater with information recovered from his phone, including what ap- peared to be a thirty-second video of a thirteen to sixteen- year-old male with his genitals exposed. Bridgewater denied ever viewing the video and told the agents that he did not know where it came from. The agents also questioned Bridge- water about a picture they found on his phone of a nude male who appeared underage. Bridgewater identified the individ- ual as “Eli” but said he did not know his last name. Bridge- water said he believed Eli was eighteen years old and that they had exchanged nude photographs in the past. Bridge- water also asserted that he was not sexually attracted to mi- nors. Bridgewater eventually pleaded guilty to one count of so- liciting an obscene visual depiction of a minor. The parties en- tered into a plea agreement wherein Bridgewater waived his appeal rights except for his right to challenge the substantive reasonableness of a sentence that “is in excess of the Sentenc- ing Guidelines as determined by the Court (or any applicable No. 19-2522 5
statutory minimum, whichever is greater).” The district court accepted Bridgewater’s guilty plea, and the parties prepared for sentencing. C. Sentencing At sentencing, the district court adopted the factual find- ings and Guidelines calculations contained in the Presentence Investigation Report (PSR) prepared by a federal probation officer. Those included determinations that Bridgewater’s of- fense level was twenty-one and his criminal history category was I. Ordinarily, the court noted, a level 21-I offender would have a Guidelines range of 37–46 months imprisonment but because of the 60-month mandatory minimum sentence, Bridgewater’s Guidelines range was 60 months. Both the gov- ernment and Bridgewater recommended a sentence of 60 months. The district court disagreed and imposed a 78-month sentence. The district court thoroughly explained its reasoning for imposing an above-Guidelines sentence, indicating that its sentence took into consideration the dismissed charge of at- tempted enticement of a minor. As the court stated: Soliciting an obscene visual depiction of a minor. That is the charge. And there is a statutory minimum sen- tence that is required for that charge of five years, or 60 months. It is more than the actual calculated guideline range based on all of the other factors in the sentencing guidelines. Many times, if not most times, I have found statutory minimums and certainly sometimes maxi- mum that have been imposed by Congress, and not - - most of them or some of them not related to any em- 6 No. 19-2522
pirical study by the Sentencing Commission to be un- duly harsh and not consistent with the Section 3553(a) factors and the purposes of sentencing. That is nor- mally my judgment. But that’s not my judgment in this case. And the reason it’s not my judgment in this case is because the specific offense conduct underlying the solicitation of a visual depiction of a minor is that you made contact with someone who you believed to be a 15-year-old male and, after a little conversation or a back-and-forth, you asked him to send a picture, and that a picture in fact was sent. That pretty much is the basis for the charge that you pleaded guilty to. And if that were all that happened, if that were the only -- if those were the only relevant facts to the statutory factors and to the purposes of sentencing then I would feel that the statutory minimum was either appropriate or could -- and may actually be more than I thought was appropriate. The problem is, Mr. Bridgewater, your conduct went beyond that, and I cannot bury my head in the sand and uphold my responsibility to consider the relevant information that impacts the purposes of sentencing. There is uncharged conduct, or conduct involving a count that was dismissed in this case, that although that count was dismissed, the underlying information in the offense conduct is detailed in the Presentence In- vestigation Report. It is reliable, as set forth in the Presentence Investigation Report, and it has not been disputed. And I believe that, as a result, it’s been estab- lished by a preponderance of the evidence -- in other words, I find that the details set forth in paragraphs 10, No. 19-2522 7
11, and 12 that encompass what your total conduct was, occurred more likely than not likely. And because of that, to the extent that it impacts the nature and cir- cumstances of the offense and, as a result, impacts the purposes of sentencing, I think it is significant and I am considering it. And I have to consider it, and that is what I am considering. I think – and not that I think – both the Supreme Court of the United States and the Seventh Circuit Court have held that it is appropriate for me to do so. The Supreme Court in the United States Versus Watts case, and the Seventh Circuit, had a chance to reconsider the same in 2017 in a case which was also a case in which I sen- tenced in this District Court, United States versus Holton. And basically, under those two cases, what they repre- sent is that the Supreme Court has authorized judges to consider at sentencing criminal conduct that is rele- vant to the offense of conviction, as long as that con- duct has been proved by a preponderance of the evi- dence. And that exercising this discretion does not vi- olate a defendant’s constitutional rights because – and this is the important distinction – sentencing enhance- ments do not punish a defendant for crimes of which he was not convicted, but rather increases sentence be- cause of the manner in which he committed the crime and conviction. It is the manner in which you committed the crime of conviction, Mr. Bridgewater, that merits and warrants a sentence above the statutory minimum in this case. The manner in which you committed the crime and those factors are detailed in paragraphs 10, 11, and 12 8 No. 19-2522
of the Presentence Investigation Report. And because that is a sealed report, I do not believe it is necessary for me to detail that and read those paragraphs out. But the parties have that information. And that manner of the criminal conduct and those de- tails of the sequence of events, which essentially amount to your attempted enticement of a minor and informing that minor of your sexual intentions, and then travelling to Marion, Illinois, to meet that minor and to carry out those intentions are aggravating fac- tors that are not accounted for not only in the calcu- lated guideline range but even the statutory minimum, in my judgment. And that is true even in light of admitted mitigating factors which I have also considered, and those in- clude: No criminal history in the past; those include factors in your upbringing that I think do have bearing on the purposes of sentencing and perhaps what brought you to this point; the fact that you never had a relationship with him; you were bullied as a child; sex- ually abused yourself; have many medical challenges, including HIV which you have battled for over 20 years; all of those things – you are an educated man; you were gainfully employed up until you suffered those injuries. And I do think those things mitigate and are mitigating factors, but they don’t outweigh the aggravating fac- tors in this case. Because of those aggravating factors, I think there is a need for me to impose a sentence which is specifically designed to and intended to deter future No. 19-2522 9
criminal conduct, conduct of this nature, of any crimi- nal nature, and that there is a need to protect the public from future crimes by you. There’s also a need to avoid unwarranted sentence disparities. And sentence dis- parities, meaning sentences for other offenders or de- fendants who have conducted themselves similarly. In other words, who have engaged in similar conduct. And the guidelines, even the statutory minimum that applies to the solicitation of an image case, don’t really address your specific conduct. And so I think that if I were not to sentence with those factors in mind, that would result in an unwarranted disparity. And so I like I said, I have arrived at this point with difficulty, but needing to be true and honest to my ul- timate duty which is to make sure that I impose a sen- tence which is sufficient, but not greater that necessary, to address the goals of sentencing and that reflect the statutory factors. I have concluded that a sentence of 78 months is warranted. And so, having considered all the information in the Presentence Investigation Report, including guideline computations and factors set forth at 18 U.S.C., Section 3553(a), and pursuant to the Sentencing Reform Act of 1984, it is the judgment of this Court that the defendant David A. Bridgewater is hereby committed to the cus- tody of the Bureau of Prisons to be imprisoned for a term of 78 months. The district court entered judgment in July 2019. This timely appeal followed. 10 No. 19-2522
II. Discussion Bridgewater argues his sentence is substantively unrea- sonable considering its disparity with other sentences and the lack of evidence that he would recidivate. He additionally contends that the district court’s reliance on dismissed con- duct violated his rights to due process and a jury trial. The government retorts that Bridgewater waived his argument that his sentence was disparate with others, but in any event, his sentence was reasonable. Further, the government points out that Supreme Court and Circuit precedent foreclose Bridgewater’s constitutional claim. Because the parties dis- pute the standard of review, we begin there, before turning to the challenge to the district court’s analysis of the statutory sentencing factors and ending with the constitutional claim. A. Standard of Review The parties contest the appropriate standard we should apply to review the substantive reasonableness of Bridge- water’s sentence. Bridgewater asserts that we should apply abuse of discretion, while the government counters in the main that we should not review the claim at all because Bridgewater waived his disparity argument. We agree with Bridgewater that he did not waive his challenge to the sub- stantive reasonableness of his sentence, and we thus review it for abuse of discretion. In support of its position, the government cites United States v. Modjewski, 783 F.3d 645, 654–55 (7th Cir. 2015) and United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013). In Garcia-Segura, we “encourage[d] sentencing courts [after imposing sentence] to inquire of defense counsel whether No. 19-2522 11
they are satisfied that the court has addressed their main ar- guments in mitigation. If the response is in the affirmative, a later challenge for failure to address a principal mitigation ar- gument … would be considered waived.” 717 F.3d at 569. In the last sentence of that very paragraph, however, we noted that “[a]n affirmative answer … would not waive an argu- ment as to the merits or reasonableness of the court’s treat- ment of the issue.” Id. Here, Bridgewater conceded in his sentencing memoran- dum that a 60-month mandatory minimum sentence would not result in unwarranted disparities. At the hearing, the dis- trict court justified its 78-month sentence in part by attempt- ing to avoid sentencing disparities. The court then asked de- fense counsel whether counsel was “satisfied that the Court addressed your main arguments in mitigation?” Counsel re- sponded: “Yes, your honor,” without raising any other issues. The government views this exchange as the court specifically inquiring whether Bridgewater had any additional un- addressed sentencing mitigation arguments. The government’s position runs afoul of our guidance in Garcia-Segura that a reply that the court has addressed the de- fense’s main mitigation arguments does not “waive an argu- ment as to the merits or reasonableness of the court’s treat- ment of the issue.” 717 F.3d at 569. If there was ever any con- fusion, we recently clarified—albeit in a nonprecedential dis- position—that “[a]rguments about the ‘merits or reasonable- ness of the court’s treatment’ of mitigating factors are not waived by a defendant affirming that the court had addressed 12 No. 19-2522
those factors.” United States v. Cosby, 746 F. App’x 556, 559 (7th Cir. 2018) (quoting Garcia-Segura, 717 F.3d at 569). On any reading of the record, that was all Bridgewater was doing by confirming the court had addressed unwarranted sentencing disparities and the lack of evidence of his recidi- vism. When a defendant acknowledges that a court addressed an argument, it means the court considered the issue. It does not necessarily follow that the defendant agrees with how the court resolved the matter. So, Bridgewater preserved his chal- lenge to the reasonableness of his sentence based on the mer- its of the court’s disparity analysis. This conclusion aligns with our long line of precedent that we review the substantive reasonableness of a sentence for abuse of discretion. See, e.g., United States v. Porraz, 943 F.3d 1099, 1104 (7th Cir. 2019). In United States v. Castro-Juarez, we held that a defendant need not object to a sentence as unrea- sonable after its pronouncement to preserve appellate review. 425 F.3d 430, 433–34 (7th Cir. 2005). We reasoned that to de- cide otherwise “would create a trap for unwary defendants and saddle busy district courts” with an overly formalistic procedure. Id. Indeed, “we fail[ed] to see how requiring the defendant to then protest the term handed down as unreason- able [would] further the sentencing process in any meaning- ful way.” Id. at 434. Since Castro-Juarez, we have explained that when a de- fendant argues for a lower sentence and gives reasons for it, we do not require the defendant to “object again and make the same arguments.” Cosby, 746 F. App’x at 560 (citations omitted); see also, e.g., United States v. Snyder, 635 F.3d 956, 962 (7th Cir. 2011) (highlighting that “we have repeatedly held that the rules do not require a defendant to complain about a No. 19-2522 13
judicial choice after it has been made so long as the defendant argued for a lower sentence before the court imposed the sen- tence.”). For good reason, too: it would be bordering on the absurd to demand that a defendant have the foresight to an- ticipate a court’s legal conclusions and the justifications for them. Cf. United States v. Collins, 939 F.3d 892, 897 (7th Cir. 2019) (refusing to require defendants to predict future legal errors). That is especially true in this case because, before the dis- trict court ruled, Bridgewater’s disparity argument was nei- ther aggravating nor mitigating given that he requested a Guidelines sentence. It was only after the court notified him that it was increasing his sentence above the Guidelines range that he would have known to disagree with the decision be- cause now, in his view, there was an unwarranted disparity. But by that time, the court had already assessed the issue—in fact, the court relied on it in part as one of the grounds for the sentence—and there was no need for Bridgewater to voice his “exception” to a judgment already reached. United States v. Lewis, 823 F.3d 1075, 1082 (7th Cir. 2016); see also, e.g., United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (“[The de- fendant’s] sentence was the subject of extensive argument and evidence; his lawyer did not need to argue with the judge once the sentence had been pronounced.”). What is more, Bridgewater’s plea agreement expressly re- served his right to appeal the substantive reasonableness of his sentence if it exceeded “the Sentencing Guidelines as de- termined by the Court (or any applicable statutory minimum, whichever is greater).” Again, before the district court im- posed its sentence, Bridgewater had no reason to make a dis- 14 No. 19-2522
parity argument as a Guidelines sentence—which he ex- pected to receive—could not have resulted in disparity. He therefore preserved his substantive challenge to the reasona- bleness of his sentence on appeal. B. Statutory Sentencing Factors Bridgewater chiefly contends that his above-Guidelines sentence is substantively unreasonable because it creates un- warranted disparities among defendants who have similar convictions and similar records. He also tacks on his point that the district court erroneously reasoned that he would re- cidivate when it had no evidence to support that conclusion. We disagree. “We uphold a sentence so long as the judge offers an ade- quate statement of his reasons consistent with the sentencing factors enumerated in 18 U.S.C. § 3553(a).” Porraz, 943 F.3d at 1104 (citation omitted). We review the district court’s above- Guidelines deviation—like all reasonableness challenges— for abuse of discretion. See United States v. Pietkiewicz, 712 F.3d 1057, 1060 (7th Cir. 2013) (citation omitted). We do not pre- sume a sentence outside the Guidelines range is unreasona- ble. See United States v. Henshaw, 880 F.3d 392, 396 (7th Cir. 2018). “As long as the sentencing judge gives an adequate jus- tification, the judge may impose a sentence above the guide- lines range if he believes the range is too lenient.” United States v. Hayden, 775 F.3d 847, 849 (7th Cir. 2014) (citations omitted). During our inquiry, we “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Henshaw, 880 F.3d at 396 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Although there is no precise formula for deciding whether the basis for exceeding No. 19-2522 15
the range is proportional to the sentence’s deviation from the range, a district court must seriously consider the degree of its deviation and explain why “an unusually lenient or an un- usually harsh sentence is appropriate in a particular case with sufficient justifications.” Id. (quoting Gall, 552 U.S. at 46). It follows that a “major departure should be supported by a more significant justification than a minor one.” Id. (quoting Gall, 552 U.S. at 50). 1. Unwarranted Sentence Disparities As Bridgewater reminds us, “in determining the particular sentence to be imposed, [the court] shall consider … the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). “But sentencing is never ab- stract: the district court is required by [§ 3553] to tailor its sen- tence to the particular defendant before it.” United States v. Solomon, 892 F.3d 273, 279 (7th Cir. 2018); see also United States v. Lockwood, 840 F.3d 896, 904 (7th Cir. 2016) (“In our legal tra- dition, each defendant is treated as a unique individual and ‘every case as a unique study in the human failings that some- times mitigate, sometimes magnify, the crime and the punish- ment to ensue.’” (citation omitted)). It makes sense, then, that the disparity provision “leaves plenty of room for differences in sentences when warranted under the circumstances.” United States v. Brown, 732 F.3d 781, 788 (7th Cir. 2013) (citation omitted); see also, e.g., United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (observing that “§ 3553(a)(6) disallows ‘unwarranted sentence disparities’ … , not all sentence differences.”). For instance, differences in types of charges or other differences among defendants often justify disparate sentences. See United States v. Scott, 631 F.3d 16 No. 19-2522
401, 404–05 (7th Cir. 2011), as amended (Jan. 28, 2011); see also United States v. Duncan, 479 F.3d 924, 929 (7th Cir. 2007) (“‘A sentencing difference is not a forbidden ‘disparity’ if it is jus- tified by legitimate considerations, such as rewards for coop- eration,’ or is the result of statutory authorization.” (citations, brackets, and emphasis omitted)). Unwarranted disparities, however, “result when the court relies on things like alienage, race, and sex to differentiate sentence terms.” United States v. Gonzalez, 765 F.3d 732, 739 (7th Cir. 2014) (citation omitted). Indeed, “[t]here is always some risk of disparities with any sentence, whether above, below, or within the guideline range. The key word is ‘unwarranted.’” United States v. Castaldi, 743 F.3d 589, 597–98 (7th Cir. 2014); see also Snyder, 635 F.3d at 961 (“‘Whenever a court gives a sentence substan- tially different from the Guidelines’ range, it risks creating un- warranted sentencing disparities, in violation of 18 U.S.C. § 3553(a)(6), for most other [courts] will give sentences closer to the norm.’” (citation omitted)); Boscarino, 437 F.3d at 638 (“Sentencing disparities are at their ebb when the Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly. That was the main goal of the Sen- tencing Reform Act. The more out-of-range sentences that judges impose after Booker, the more disparity there will be.”). As always, a district court must carefully consider the Guide- lines range before deviating above it. But so long as the court does this, it “necessarily gives significant weight and consid- eration to the need to avoid unwarranted disparities.” Lock- wood, 840 F.3d at 904 (quoting Gall, 552 U.S. at 54 (brackets omitted)). In this case, the district court gave ample weight to the Guidelines but ultimately concluded they failed to properly No. 19-2522 17
reflect the scope of Bridgewater’s conduct. 1 It reasoned, in part, that were it not to deviate above the Guidelines to ac- count for the dismissed enticement charge, the sentence would not reflect the totality of the circumstances of his of- fense and thus would differ from others like it. That is a rea- sonable inference after considering attempted enticement of a minor carries with it a ten-year mandatory-minimum sen- tence. See 18 U.S.C. § 2422(b). Bridgewater focuses on three cases as comparators, but only one, United States v. Heath, is an arguable candidate. No. 18-cr-40032 (S.D. Ill. June 7, 2018). Even if Bridgewater’s of- fense conduct and record is like the defendant’s in that case, such that they received disparate sentences, that does not nec- essarily mean that the disparity is unwarranted. See Brown, 732 F.3d at 789 (“[A] different sentence for the same charge does not alone raise any concern about unwarranted dispari- ties under § 3553(a)(6).”). When the government dismisses the conduct underlying a charge based on a plea agreement, it may put the defendant in a different situation from most other
1 We agree with the government that Bridgewater’s effective Guide- lines range was sixty months because of the statutorily imposed manda- tory minimum sentence. See U.S.S.G. 5G1.1(b) (“Where a statutorily re- quired minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). To the extent it is relevant to measure the degree of the district court’s deviation (from 60 months to 78 months, so an 18- month or 30% increase), we use the 60-month number. Assuming for the sake of argument that we should instead utilize the pre-mandatory mini- mum Guidelines range of 37–46 months to conduct our disparity analysis, we conclude Congress authorized most of the disparity when it required a mandatory minimum sentence of 60 months. Cf. United States v. Ramirez- Ibarra, 182 F. App’x 591, 593 (7th Cir. 2006). A congressionally authorized disparity cannot be “unwarranted.” 18 No. 19-2522
defendants sentenced for their crime of conviction. See United States v. Lucas, 670 F.3d 784, 797 (7th Cir. 2012). In those circumstances, like the ones here, it is the parties’ plea agreement that potentially creates a disparity, not the court. See United States v. Gill, 889 F.3d 373, 378 n.2 (7th Cir. 2018) (citing Scott, 631 F.3d at 404–06, for the proposition that when the government decides to dismiss some charges for some defendants but none for others, it does not create a sen- tence disparity for the court to consider). Consequently, if some courts refuse to account for dismissed conduct in sen- tencing—unlike the court here—that does not mean the dis- parities are unwarranted. See United States v. Horne, 474 F.3d 1004, 1007 (7th Cir. 2007). To hold otherwise would mean that all sentences would have to model the ones that do not consider dismissed con- duct, and the courts that imposed them would control sen- tencing nationwide. See id. Such a result runs contrary to the purposes and goals of sentencing in the advisory Guidelines regime. Federal law authorizes a court to raise (or reduce) one defendant’s sentence based on another’s lenient (or harsh) sentence “not because of § 3553(a)(6), but despite it.” United States v. Prado, 743 F.3d 248, 252 (7th Cir. 2014) (quoting Bart- lett, 567 F.3d at 908); see also United States v. Blagojevich, 854 F.3d 918, 921 (7th Cir. 2017) (explicating that a court “is never compelled by § 3553(a)(6) in order to avoid unwarranted dis- parities”). Our concern with the risk of unwarranted disparities would be greater if the district court’s sentence approached the statutory maximum imprisonment term (here, twenty years). See United States v. Kirkpatrick, 589 F.3d 414, 415 (7th Cir. 2009). In that situation, for example, it may be “wise [for No. 19-2522 19
the district court] to see how much incremental punishment the Sentencing Commission recommends.” Id. at 416. That said, we have only suggested as much when it comes to an unusually high sentence on account of an additional crime that is already factored into the Guidelines range. See United States v. Hallahan, 756 F.3d 962, 981 (7th Cir. 2014); see also United States v. Woods, 375 F. App’x 600, 602 (7th Cir. 2010) (clarifying it is a recommendation, not a requirement). Here, by contrast, the Guidelines did not contemplate this conduct completely, and the amount of the deviation is not so great that the district court had a corresponding heightened duty to tie its sentence to the Guidelines more than it already did. See United States v. Faulkner, 885 F.3d 488, 499–500 (7th Cir. 2018), reh’g denied (Apr. 11, 2018), cert. denied sub nom., Sykes v. United States, 139 S. Ct. 260, (2018), and cert. denied, 139 S. Ct. 388 (2018) (finding an 18% deviation substantively rea- sonable based on affirmances of sentences with 50, 35, and 50% deviations above the applicable Guidelines ranges); see also United States v. Alvarado, 480 F. App’x 852, 855 (7th Cir. 2012) (calling an 11-to-17 month difference between a 7-to-13 month Guidelines range and a 24-month imprisonment term “minor”). The court’s 18-month (or 30%) deviation in this case did not introduce unwarranted sentence disparities among similar defendants. 2. Recidivism As to recidivism, we note that the district court never spe- cifically mentioned it or that Bridgewater himself was prone to commit crimes again. Maybe Bridgewater is thinking of the court’s statement that it was imposing an above-Guidelines sentence in part “to deter future criminal conduct, conduct of this nature, of any criminal nature, and that there is a need to 20 No. 19-2522
protect the public from future crimes by you.” Although spe- cific deterrence and the likelihood of recidivism are typically related, we have referred to them as independent reasons for an upward deviation. See United States v. Johns, 732 F.3d 736, 742 (7th Cir. 2013); see also United States v. Huffstatler, 571 F.3d 620, 624 (7th Cir. 2009). More importantly, the district court described on the rec- ord and at length the facts and circumstances of Bridgewater’s case, with emphasis on the severity of the dismissed conduct. The court explained in considerable detail why the dismissed conduct aggravated Bridgewater’s offense and hence war- ranted his above-Guidelines sentence. We require nothing more. See, e.g., United States v. Jordan, 435 F.3d 693, 698 (7th Cir. 2006) (concluding that the district court adequately ex- plained its sentence by sufficiently linking it to the § 3553(a) factors). Bridgewater’s history and characteristics—when combined with the nature and circumstances of his offense— made it entirely reasonable for the district court to fashion its sentence to quash any residual impulse or desire to recidivate. Cf. United States v. Beier, 490 F.3d 572, 574 (7th Cir. 2007) (“The more difficult it is for a person to resist a desire for sexual con- tact with children, the more likely he is to recidivate, and this is an argument for a longer prison sentence.”). C. Constitutionality of Considering Dismissed Conduct Moving to the merits of the constitutional claim, Bridge- water maintains that the district court’s reliance on dismissed conduct to increase his sentence violates his rights to due pro- cess and a jury trial. He recognizes, however, that Supreme Court and Circuit precedent squarely foreclose this argument. See United States v. Watts, 519 U.S. 148, 157 (1997); see also United States v. Holton, 873 F.3d 589, 591–92 (7th Cir. 2017) (per No. 19-2522 21
curiam); Lucas, 670 F.3d at 790 (“A district court may consider a wide range of conduct at sentencing, including acquitted conduct and dismissed offenses.”). Usually, we would just leave it at that. But because this issue was the premise for Bridgewater’s statutory arguments, we add two observations in closing. First, it is not just judicial opinions that preclude Bridge- water’s constitutional claim; Congress and the Sentencing Commission compelled our view. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sen- tence.”); U.S.S.G. 5K2.21 (“The court may depart upward to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the appli- cable guideline range.”). Second, and as explained above, we have affirmed above- Guidelines sentences after determining it was substantively reasonable to weigh dismissed conduct in sentencing deci- sions. See United States v. Weathers, 744 F. App’x 947, 948–49 (7th Cir. 2018) (collecting cases involving sentences that were 30, 33, and 75 months above the respective Guidelines ranges); see also United States v. Mays, 593 F.3d 603, 609–10 (7th Cir. 2010). Sometimes, the Guidelines just do not quite cap- ture the nature of a defendant’s crimes or the wide range of a defendant’s conduct. See United States v. Mejia, 859 F.3d 475, 22 No. 19-2522
478–79 (7th Cir. 2017); see also United States v. Gill, 824 F.3d 653, 665–66 (7th Cir. 2016). Similarly, Bridgewater did not simply solicit an obscene picture of a minor, which is all that his conviction required. He did much more than that: he attempted to entice that mi- nor to meet with him in person for sex. The court’s sentence appropriately reflects that conduct. After all, we want district courts to particularize their sentences to offenders and their offenses. That, in turn, means sentences must account for ex- acerbating circumstances when the Guidelines do not. See United States v. Henzel, 668 F.3d 972, 978 (7th Cir. 2012). For that reason, district courts must often address dismissed con- duct to adequately consider the “seriousness of the offense” under 18 U.S.C. § 3553(a)(2). See Lucas, 670 F.3d at 797. This case fits that mold. III. Conclusion For the reasons given, we AFFIRM Bridgewater’s sentence as substantively reasonable.