                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 05-1625 & 05-1899
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                                              Cross-Appellant,
                               v.

LANCE PISMAN,
                                         Defendant-Appellant,
                                              Cross-Appellee.
                        ____________
          Appeals from the United States District Court
                for the Central District of Illinois.
          No. 04 CR 10028—Joe Billy McDade, Judge.
                        ____________

   ARGUED SEPTEMBER 26, 2005—DECIDED APRIL 7, 2006
                   ____________



 Before EASTERBROOK, RIPPLE, and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. In March 2004, a federal
grand jury returned an indictment against Lance Pisman
and Jacob Wilkerson. Counts 1 and 2 charged both men
with conspiracy to travel for sexual conduct with a minor in
violation of 18 U.S.C. §§ 2423(b) and (e), and interstate
travel for sexual conduct with a minor in violation of
18 U.S.C. § 2422(b). A third count charged Wilkerson
with the use of interstate commerce to entice a minor to
engage in illicit sex, in violation of 18 U.S.C. § 2422(b).
2                                    Nos. 05-1625 & 05-1899

Wilkerson subsequently pled guilty to Counts 1 and 2, and
on June 16, 2004, the grand jury returned a superceding
indictment mirroring the original two counts but adding
Pisman as a defendant to Count 3.
   At trial, Wilkerson testified against Pisman, and the
government introduced into evidence 25 internet chats
between Pisman and Wilkerson. That testimony and the
internet communications established that Pisman and
Wilkerson had a sexual relationship, and that the two made
plans for Pisman to travel from his residence in Iowa to
Illinois in order to meet with Wilkerson and others to
engage in sex. Wilkerson was communicating with the other
persons who would meet with them, and the internet
correspondence and testimony also provided evidence that
Pisman was aware that one or more of those persons were
teenage boys who were minors. Because Wilkerson, rather
than Pisman, was the one who made contact with the
minors, Pisman’s liability under count 3 was premised upon
the existence of a conspiracy with Wilkerson as charged in
Count 1. Under the doctrine set forth in Pinkerton v. United
States, 328 U.S. 640 (1946), a defendant may be found
guilty of a substantive offense committed by a co-conspira-
tor if the offense was committed in furtherance of the
conspiracy at the time the defendant was a member of the
conspiracy, even if the defendant neither participated in nor
had knowledge of the substantive offense. Relying on that
theory, the government argued that Pisman and Wilkerson
were members of a conspiracy in Count 1 to travel for
sexual conduct with a minor, and that Wilkerson as a
member of that conspiracy, used interstate commerce (the
internet) to entice a minor to engage in illicit sex. The court
accordingly issued the Pinkerton instruction with respect to
Count 3, which stated that:
    A conspirator is responsible for offenses committed by
    his fellow conspirators if he was a member of the
    conspiracy when the offense was committed and if the
    offense was committed in furtherance of and as a
Nos. 05-1625 & 05-1899                                       3

    foreseeable consequence of the conspiracy. Therefore, if
    you find the defendant guilty of the conspiracy charged
    in Count I and if you find beyond a reasonable doubt
    that while he was a member of the conspiracy, his
    fellow conspirator committed the offense in Count III in
    furtherance of and as a foreseeable consequence of that
    conspiracy, then you should find him guilty of Count
    III.
Although the government’s argument essentially tied
liability under Count 3 to guilt on the conspiracy charge of
Count 1, the jury had other ideas. The jury acquitted
Pisman of Counts 1 and 2, and found him guilty of Count 3.
Pisman now argues that the conspiracy acquittal forecloses
a conviction on Count 3 under the Pinkerton doctrine, and
that the district court erred in denying his motion for
judgment of acquittal on that count.
   Despite Pisman’s extensive efforts to characterize it
otherwise, this situation is one of inconsistent verdicts, and
the Supreme Court has made clear that the mere inconsis-
tency is not a basis for judgment of acquittal. In United
States v. Powell, 469 U.S. 57 (1984), the Court addressed a
situation analogous to the one presented here. In that case,
a jury acquitted the defendant of conspiracy to possess
cocaine and of possession of cocaine, but nevertheless found
her guilty of using the telephone to facilitate those offenses.
The appellate court reversed the conviction, holding that
the acquittal on the predicate felony necessarily indicated
that there was insufficient evidence to support the tele-
phone facilitation conviction and mandated acquittal on
that count as well. Id. at 61. The Court rejected that
reasoning and reiterated its established ruling that the
inconsistency in jury verdicts is not a basis for reversal
except in the situation in which two guilty verdicts cannot
coexist. Id. at 68-69. In reaching that conclusion, the Court
reiterated that each count in an indictment is regarded as
if it were a separate indictment. Id. at 62. Quoting a prior
opinion, the Court stated that where a jury returns an
4                                     Nos. 05-1625 & 05-1899

inconsistent verdict, “ ‘[t]he most that can be said in such
cases is that the verdict shows that either in the acquittal
or the conviction the jury did not speak their real conclu-
sions, but that does not show that they were not convinced
of the defendant’s guilt. We interpret the acquittal as no
more than the assumption of a power which they had no
right to exercise, but which they were disposed through
lenity.’ ” Id. at 63, quoting Dunn v. United States, 284 U.S.
390, 393 (1932). Thus, although the inconsistency in the
verdicts certainly reflected an “ ‘error’ in the sense that the
jury has not followed the court’s instruction . . . it is unclear
whose ox has been gored.” Id. at 65. A number of factors
weighed against allowing review of verdicts based solely on
inconsistency, including the difficulty in determining in
whose favor the “error” was made, the inability of the
government to invoke review of the acquittal, and the
reluctance to inquire into the inner workings of the jury. Id.
at 68-69. Moreover, a defendant was protected from jury
irrationality as to an individual count by the independent
review of the sufficiency of the evidence, which would
ensure that the evidence supported a rational determina-
tion of guilt beyond a reasonable doubt as to that count. Id.
at 67.
   In this case, Pisman does not contest that the government
presented sufficient evidence to support a determination of
guilt beyond a reasonable doubt as to Count 3. The only
contention is that the jury could not find that guilt without
first determining that he was guilty of the predicate offense
of Count 1, and therefore that the finding of guilt cannot
stand. The Powell Court, however, explicitly rejected the
argument that an exception should be made to the inconsis-
tent verdict rule where the jury acquits a defendant of a
predicate felony but convicts on the compound felony. The
Court noted that the argument for such an exception
misunderstands the nature of the inconsistent verdict
problem, and suffers from the same defect in that it as-
Nos. 05-1625 & 05-1899                                      5

sumes that the acquittal was the right verdict—the one the
jury “ ‘really meant.’ ” Id. at 68. Accordingly, the Court
rejected the invitation to create an exception to the incon-
sistent verdict rule.
  We similarly rejected such an argument recently in
United States v. McGee, 408 F.3d 966 (7th Cir. 2005). In
that case, a defendant, Harold McKinzie, argued that his
conviction was improper because the jury acquitted him of
the underlying conspiracy charge but convicted him of the
compound offense of use of a telephone to facilitate the
conspiracy. We held that his argument was precluded by
Powell, noting that reversal as a matter of course in such
situations was improper, especially considering that the
acquittal may have been the result of juror mistake,
compromise or lenity. Id. at 985. See also United States v.
Flaschberger, 408 F.3d 941, 943 (7th Cir. 2005) (holding
that inconsistent verdicts do not entitle the defendant to
relief, and noting that an inconsistent acquittal may
demonstrate mercy or confusion rather than innocence);
United States v. Dykes, 406 F.3d 717 (D.C. Cir.
2005). The nature of this case as one involving the
Pinkerton co-conspirator theory does not differentiate it
from those cases, as Pisman’s theory ultimately rests on the
same assumption that the acquittal rather than the convic-
tion is the “right” jury verdict. Pisman’s situation is factu-
ally indistinguishable from the cases above in which a jury
acquitted on the predicate offense and convicted on the
compound offense that necessarily incorporated that
predicate offense. See United States v. Gallo-Chamorro, 48
F.3d 502 (11th Cir. 1995) (noting that inconsistent verdicts
are not a ground for reversal in a case in which the jury
convicted the defendant of importation under the Pinkerton
co-conspirator theory but acquitted him of the conspiracy
count.) Accordingly, the district court properly denied
Pisman’s motion for judgment of acquittal.
  That does not end this appeal, however, because the
government cross-appealed as to the sentence imposed by
6                                   Nos. 05-1625 & 05-1899

the judge in this case. The Guidelines range for Pisman’s
sentence was 108-135 months. Of course, the district court
has discretion to sentence above or beyond that range, but
in determining the appropriate sentence the district court
must take into consideration the Guidelines recommenda-
tion as well as the sentencing factors in 18 U.S.C. § 3553(a).
Those factors include the nature and circumstances of the
offense, the history and characteristics of the defendant,
and the need for the sentence to: reflect the seriousness of
the offense, promote respect for the law, provide just
punishment, afford adequate deterrence, protect the public,
provide the defendant with needed educational or voca-
tional training, and avoid unwarranted sentence disparities
among defendants. The issue in this case concerns the last
factor, the need to avoid unwarranted sentence disparities
among defendants.
  The district court in this case determined that a sentence
of 60 months was appropriate, which was the statutory
minimum but was 48 months below the Guidelines range.
In reaching that conclusion, the court expressed its con-
cerns that Pisman’s sentence be reconciled with the sen-
tence provided to his co-defendant Wilkerson. The trial
evidence indicated that Wilkerson was the primary actor in
the offense, and the one that the public at least would view
as the more culpable. Wilkerson pled guilty to the offenses,
however, and cooperated with the government in its
prosecution of Pisman. As a result of the cooperation,
Wilkerson was sentenced to only 68 months imprisonment.
  The district court noted that Pisman’s predatory activity
was not nearly as substantial as Wilkerson’s, and at-
tempted to fashion a sentence that reflected that difference.
Accordingly, the court sentenced Pisman to 60 months. The
district court made clear that the 60-month sentence was
directly related to the perceived disparity with Wilkerson’s
sentence, stating:
Nos. 05-1625 & 05-1899                                      7

    [H]ad Jake Wilkerson’s sentence been more, the defen-
    dant’s sentence would be more, but those who knew of
    both Mr. Wilkerson’s and Mr. Pisman’s conduct proba-
    bly would not understand if Mr. Pisman got a higher
    sentence than Jake Wilkerson, and they probably would
    not appreciate the complexities of the guidelines that
    knock off something for acceptance of responsibility.
Sent. Tr. at 97. That comparison of co-defendants, however,
is not a proper application of the § 3553(a) mandate that a
court minimize unwarranted disparities in sentences. First,
the lower sentence for Wilkerson was attributable to his
decision to plead guilty to the offense and his cooperation
with the government, which is a legally appropriate consid-
eration. The corresponding reduction in his sentence as
compared to a non-cooperating defendant is not an “unwar-
ranted” disparity. United States v. Boscarino, 437 F.3d 634,
637-38 (7th Cir. 2006). Moreover, the § 3553(a) concern with
sentence disparity is not one that focuses on differences
among defendants in an individual case, but rather is
concerned with unjustified difference across judges or
districts. Id. at 638. In fact, the focus on the differences
among defendants in an individual case in which one
defendant cooperates could actually increase sentence
disparity, because the resulting lower sentence for the
offense to redress that disparity will be out of sync with
sentences in similar cases nationwide in which there were
not multiple defendants or in which one did not cooperate.
Id. As we noted in Boscarino, it makes no sense that one
culprit should receive a lower sentence than an otherwise-
similar offender, “just because the first is ‘lucky’ enough to
have a confederate turn state’s evidence.” Id. The district
court’s approach does nothing to eliminate unwarranted
disparity in sentences, and therefore is an improper
application of the § 3553(a) factor. That is not to say that
the district court could not impose the 60-month sentence;
we express no opinion on that. Our holding is simply that
8                                  Nos. 05-1625 & 05-1899

the district court’s sentence was based in part on an
improper application of one factor of § 3553(a), and accord-
ingly we vacate the sentence and remand for resentencing.
The conviction is AFFIRMED, the sentence is VACATED, and
the case is REMANDED for resentencing.
A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—4-7-06
