United States of America v. Robert Townsend

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2875
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT TOWNSEND,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:21-CR-30043 — James E. Shadid, Judge.
____________________
A RGUED J UNE 5, 2024 — DECIDED J ULY 2, 2024
____________________
Before EASTERBROOK, BRENNAN , and JACKSON -A KIWUMI ,
Circuit Judges.
EASTERBROOK, Circuit Judge. After his conviction for at-
tempted enticement of a minor, 18 U.S.C. §2422(b), Robert
Townsend was sentenced to 10 years’ imprisonment, to be fol-
lowed by 10 years’ supervised release. Townsend contends
that the district judge erred by allowing his crime’s serious-
ness to affect the length of supervision.

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2 No. 23-2875
“The court, … in determining the length of the term and
the conditions of supervised release, shall consider the factors
set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. §3583(c). Section
3553, to which §3583 refers, sets out criteria relevant to the
length of imprisonment. The list in §3583 omits
§3553(a)(2)(A), which reads: “to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense” (retribution). This led the court
to hold in United States v. Wilcher, 91 F.4th 864 (7th Cir. 2024),
that the duration of supervised release may not rest solely on
the seriousness of the crime. Townsend wants us to extend
that holding to say that seriousness of an offense may not be
considered at all.
The problem with that proposed extension is easy to see.
Look again at the list of criteria in §3553 that apply through
§3583. One is “the nature and circumstances of the offense”
(§3553(a)(1)). Another is deterrence (§3553(a)(2)(B)). A third is
public protection (incapacitation of dangerous persons)
(§3553(a)(2)(C)). Yet the nature of the offense, the need for de-
terrence, and the need to protect the public all correlate with
the seriousness of the offense. The more serious the crime, the
greater the need to deter it and the more important it is to
protect the public from a repetition. Not even Thomas Reed
Powell, who famously defined the legal mind as one that can
think of something that is inextricably connected to some-
thing else without thinking about what it is connected to,
could contemplate deterrence and incapacitation without giv-
ing some thought to the crime’s seriousness.

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No. 23-2875 3
The district judge’s explanation was short and direct:
You’re a danger to the public. You were willing, in a very short
amount of time, to locate a minor child online, to persuade that
child to engage in sexual conduct, and then to attempt to do so.
You confirmed the minor was alone. You drove to the address pro-
vided. You brought condoms which the child had requested, as
well as a cellular phone you had been communicating with to the
minor.
Danger to the public is a permissible consideration no matter
its relation to the crime’s seriousness. See §3583(c), incorpo-
rating §3553(a)(2)(C). The district court’s observations sum up
“the nature and circumstances of the offense”, which likewise
are permissible criteria.
Wilcher was clear that its problem lay in making serious-
ness the “sole justification” for the length of supervision (91
F.4th at 872), relying “expressly and exclusively” (ibid.) on
that factor, and making “the seriousness of the offense … the
sole thing the district court mentioned” (id. at 873). In Town-
send’s case, by contrast, the district judge stressed permissible
considerations. See Ibid.; United States v. Clay, 752 F.3d 1106,
1108–09 (7th Cir. 2014). The more dangerous the behavior, the
greater the need for supervision to protect the public from a
recurrence. That’s the judgment of Congress, with which
Wilcher does not disagree. We held in Wilcher, and stress again
today, that the omissions from the list in §3583(c) must be re-
spected—and the inclusions also must be honored.
A FFIRMED

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