United States v. Wilcher

91 F.4th 864

UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. WILCHER, Defendant-Appellant.

No. 22-1400

United States Court of Appeals, Seventh Circuit

Argued May 23, 2023

Decided January 25, 2024

Appeal from the United States District Court for the Central District of Illinois. No. 20-CR-40069-001 — James E. Shadid, Judge.

W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Bryan Theron Mette, Attorney, Foley & Lardner LLP, Madison, WI, for Defendant-Appellant.

Before Sykes, Chief Judge, and Brennan and Pryor, Circuit Judges.

Pryor, Circuit Judge.

In explaining Joseph Wilcher's sentence, which included both a custodial prison term and a supervised release term, the district court discussed only the seriousness of Wilcher's offense and not any of his mitigating arguments. Wilcher appeals, arguing that his sentence is procedurally unreasonable. Because the court failed to adequately explain the chosen sentence, precluding meaningful appellate review, we remand for resentencing.

I. BACKGROUND

Joseph Wilcher drove across state lines to have sex with who he thought was a fifteen-year-old girl but who was really a federal agent. A jury accordingly convicted him of attempted enticement of a minor and travel with intent to engage in illicit sexual activity. 18 U.S.C. §§ 2422(b), 2423(b).

Before sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR"). The probation officer who prepared the PSR calculated an offense level of 30, based on the attempted enticement of a minor conviction, and a two-level enhancement for using a computer to complete the crime. See U.S.S.G. § 2G1.3(a)(3), (b)(3). With no criminal history points, Wilcher's offense level yielded an advisory guideline range of 120 to 121 months' imprisonment on the attempted enticement of a minor conviction and 97 to 121 months' imprisonment on the traveling with the intent to engage in illicit sexual activity conviction.¹ The PSR also explained that the statutory range for Wilcher's term of supervised release was five years to life. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b)(2).

At sentencing, the district court discussed the PSR with the parties. After ruling on an objection that Wilcher's counsel made to a condition of release related to alcohol, which is not relevant to this appeal, the court calculated the same ranges as the PSR for both Wilcher's term of imprisonment and term of supervised release. Neither party objected.

Next, the district court heard argument on the appropriate sentence. The government requested 121 months in prison and a lifetime term of supervised release. It focused on the seriousness of Wilcher's offense and the lengths to which he went to meet the supposed minor. Wilcher, on the other hand, sought 120 months' imprisonment followed by five years of supervised release. Wilcher's counsel argued that this was warranted because Wilcher had already spent a year on home incarceration, which would not count toward his sentence. He also maintained that a lifetime of supervised release was unwarranted in light of Wilcher's limited criminal history, and instead argued that five years was a long enough test run to see if Wilcher would offend again.

After hearing argument, the district court announced the sentence. Apart from confirming that it had read the parties' submissions and that the sentence was sufficient but not greater than necessary, the only explanation the court gave—for either the custodial prison term or supervised release—was the seriousness of the offense:

THE COURT: [T]he Court having considered all the information before it . . . [under] the factors in 3553, I believe the following sentence is sufficient but not greater than necessary to comply with the purpose of the Act.

The seriousness of this offense is evident, and actually driving a considerable distance to meet who he thought was a minor child, so the Court will impose a sentence of 120 months as mandated on each of Counts I and II to be served concurrently with each other.

I'll find no ability to pay a fine, and no fine is imposed.

Following your release from custody, serve a ten-year term of supervised release on each of Counts I and II to be served concurrent with each other.

At the end of the hearing, the court asked if it should address "anything else," and Wilcher's counsel responded in the negative. Wilcher now appeals.

II. DISCUSSION

Wilcher argues that the district court procedurally erred at sentencing for two reasons. First, Wilcher contends that the district court failed to adequately explain its reasons for imposing a ten-year term of supervised release. Second, Wilcher says that the court failed to consider his principal mitigation arguments.

Before moving to the analysis, we offer a word on the standard of review. When evaluating a procedural challenge to a sentence, we apply de novo review, assuming the arguments on appeal are preserved. United States v. Annoreno, 713 F.3d 352, 356-57 (7th Cir. 2013). In doing so, we assess whether the district court committed any significant error, such as by failing to adequately explain a sentence. United States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).² If the district court erred, we apply the doctrine of harmless error to determine whether resentencing is necessary. United States v. Morris, 775 F.3d 882, 885 (7th Cir. 2015). Sentencing errors are considered harmful unless the government proves that they did not affect the district court's choice of sentence. United States v. Clark, 906 F.3d 667, 671 (7th Cir. 2018).

Even though Wilcher argues that the district court procedurally erred by failing to explain the sentence, the government maintains that we should review for plain error because he did not raise these arguments at the end of the sentencing hearing, when the district court offered his counsel a chance to speak. We disagree. As we recently confirmed in United States v. Wood, our review is de novo in this circumstance. 31 F.4th 593 (7th Cir. 2022); see also Morris, 775 F.3d at 886.

Federal Rule of Criminal Procedure 51 governs the preservation of errors. Rule 51(a) applies when an error is "created by" the ruling itself. Wood, 31 F.4th at 597-98; see also United States v. Bingham, 88 F.4th 1220, 1223-25 (7th Cir. 2023). A party need not take "exception" to one of these errors, which means that a party need not complain about the ruling after it has been made.³ Wood, 31 F.4th at 597-98; Morris, 775 F.3d at 886 (citing United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009)). A party can waive such an error only if, after the ruling, the district court asks if the party has an objection about the specific issue in question, and the party says that it does not. See, e.g., United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013).

On the other hand, Rule 51(b) applies when the grounds for appeal exist "prior to and separate from the ruling," meaning a party had a chance to formulate a position beforehand. Wood, 31 F.4th at 597-98. In this circumstance, a party must either inform the district court of its position before the ruling or object to the court's action, assuming it has an opportunity to do so. Id. at 598.

In this case, as in Wood, the district court gave Wilcher's counsel a chance to speak at the end of the hearing, asking if he wanted to address "anything else." So did counsel have to take exception to the ruling under Rule 51(a) or make an objection under Rule 51(b) to preserve the arguments that Wilcher now raises on appeal?

The answer is no. In Wood, we explained that "[a] district court's explanation of its sentencing decision, regardless of whether it precedes or follows the announcement of the sentence itself, is a ruling to which an exception is not required." Id. at 597. So the first claimed error—that the district court relied on an improper consideration while explaining the sentence—was created by the ruling itself. Rule 51(a) thus applies, meaning Wilcher did not need to protest the error to preserve it for appeal.

The same is also true of Wilcher's second argument. Recall, prior to the district court's ruling, Wilcher made several mitigation arguments. Wilcher asserts on appeal that the second procedural error occurred when the district court passed over these principal arguments in mitigation while explaining the sentence. Wilcher therefore did not need to take exception to the judge's decision to preserve this argument on appeal. See Morris, 775 F.3d at 886; Bartlett, 567 F.3d at 910 ("[W]hen an issue is argued before the judicial ruling, counsel need not take exception once the court's decision has been announced.").

As discussed, a defendant can sometimes waive an argument concerning an error created by a ruling based on his response to the district court's questioning after the ruling. The district court's question at the end of the hearing here, however, was not specific enough to require Wilcher to say anything more. We have held, for instance, that if a district court asks a defendant whether it has addressed his main arguments in mitigation, a defendant's affirmative response can waive an appellate argument to the contrary. Garcia-Segura, 717 F.3d at 569. But the same does not go for a generic inquiry, such as the "anything else?" asked by the court at the end of Wilcher's hearing. Morris, 775 F.3d at 886. This sort of question cannot lead to waiver or forfeiture because it does not put a defendant on notice that he must do anything further to preserve a particular sentencing argument. United States v. Esposito, 1 F.4th 484, 486 (7th Cir. 2021); Morris, 775 F.3d at 886.

Our review of each of Wilcher's procedural challenges to his sentence is de novo.

A. Adequacy of Sentencing Explanation

We turn now to Wilcher's first argument. He contends that the district court relied on...