204 F.3d 776 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Michael L. Morris,    Defendant-Appellant.
No. 99-1956
In the  United States Court of Appeals  For the Seventh Circuit
Submitted November 1, 1999Decided February 22, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 98-CR-213--Rudolph T. Randa, Judge.
Before Easterbrook, Ripple, and Diane P. Wood, Circuit  Judges.
Easterbrook, Circuit Judge.


1
When he was 44 years  old, Michael Morris enticed a 14-year-old girl to  enter into a sexual relationship with him,  showering her with promises and presents. Morris  pleaded guilty to two counts of traveling across  state lines (from Indiana, through Illinois, to  Wisconsin) for the purpose of engaging in a  sexual act with a juvenile. 18 U.S.C.  sec. 2423(b). He was sentenced to 36 months'  imprisonment. Section 2A3.2 of the Sentencing  Guidelines, which the district judge concluded is  most appropriate to Morris's crimes, prescribes  a base offense level of 15 for criminal sexual  abuse of a minor. The judge added 2 levels for  multiple counts and deducted 3 for acceptance of  responsibility, producing a final offense level  of 14. For a first offender (which Morris is) the  level 14 sentencing range is 15 to 21 months'  imprisonment. But the district court added 5  levels, imposing a sentence in the range of 30-37  months for offense level 19. Morris contends that  departure took him by surprise and that he is  entitled to a new sentencing hearing at which he  can respond more effectively to this possibility.


2
Application notes to sec. 2A3.2 say that an  upward departure may be appropriate if the  defendant either committed the sexual act in  furtherance of a commercial scheme (such as  prostitution or the production of pornography) or  has a prior conviction for similar sexual  conduct. Neither is true of Morris. The district  judge nonetheless thought departure appropriate,  for several reasons. One is that sec. 2423(b)  makes it a crime to travel across state borders  for the purpose of engaging in sexual acts; it is  possible to violate this statute by travel plus  purpose without engaging in any sexual acts.  Morris and the girl engaged in sexual intercourse  at least six times, and the judge thought that  this made his offense significantly more serious.  Whether this justifies a departure is open to  question, however, for sec. 2A3.2 covers statutory  rape. Punishment for at least one sexual act thus  is included in the Guideline, even though not in  the statute--though perhaps additional sexual  acts justify additional punishment. The district  judge also observed that documents seized from  Morris's apartment in Indiana imply that he  seduced at least one other juvenile; this led the  judge to characterize him as a sexual predator.  The judge also observed that Morris took pictures  of the girls, used email and Internet chat rooms  to entice them, and sometimes did not wear  condoms during intercourse. Nothing in the record  suggests that Morris has a disease that can be  transmitted by sexual contact, but the risk of  pregnancy and its complications remained. Compare  United States v. Shannon, 110 F.3d 382 (7th Cir.  1997) (en banc) (sexual intercourse with a girl under 14 is a "crime of violence"), with United  States v. Thomas, 159 F.3d 296 (7th Cir. 1998)  (sexual intercourse with a girl of 16 is not a  "crime of violence" because the risks are lower).  Taking pictures of undressed adolescents,  transporting such pictures across state lines,  and using computers to lure juveniles to  assignations, all are federal crimes. 18 U.S.C.  secs. 2252(a), 2252A(a), 2422(b). These  differences between Morris's deeds and a simple  violation of sec. 2423(b), coupled with his  additional but uncharged crimes, justify a  significantly higher sentence, the district court  concluded. The five extra levels just about  doubled the sentencing range, and Morris contends  that the increase is excessive even if some  departure is appropriate.


3
Before the date of sentencing, neither the  prosecutor nor the district judge suggested that  an upward departure was under contemplation. This  is the foundation of Morris's argument--for Burns  v. United States, 501 U.S. 129 (1991), holds that  notice is essential to any sentence above the  norm. When Morris's lawyer protested at  sentencing about the surprise, and his consequent  unpreparedness to meet with evidence or argument  the possibility of departure, the district judge  did not identify anything that should have put  Morris on guard. Instead the judge remarked that  counsel's lack of preparation was irrelevant  because "I don't think any argument would have  persuaded the Court any different than what its--  what its conclusion was and is."


4
The United States does not defend the view that  notice was unnecessary because the judge had made  up his mind in advance. Instead the prosecutor  submits that notice came from two sources: the  presentence report and the prosecutor's comments  at sentencing. We discount the latter, for a  recommendation at the hearing does not fulfil the  requirement of warning in advance of the hearing.  As for the presentence report: the Probation  Department neither recommended a departure  (para.119 of the report disclaimed any  recommendation) nor highlighted facts that might  support one. But para.120 of the report did say:


5
Pursuant to U.S.S.G. sec.  5K2.0, the  Sentencing Court may impose a sentence  outside the range established by the  applicable guidelines if the Court finds  that there exists an aggravating or  mitigating circumstance of a kind or to a  degree not adequately taken into  consideration by the Sentencing Commission  in formulating the guidelines that should  result in a sentence different from that  described. Pursuant to U.S.S.G. sec. 4A1.3  (e), if reliable information indicates  that prior similar adult criminal conduct,  not resulting in a criminal conviction,  exists, the Court could consider an upward  departure as the criminal history category  does not adequately reflect the  defendant's past criminal conduct or the  likelihood that the defendant will commit  other crimes.


6
This looks for all the world like boilerplate  from a word processor's glossary. It is generic  and could apply to every criminal case. Burns  requires more than this. Otherwise one might as  well say that the Guidelines Manual itself  notifies defendants about the possibility of  departure, and have done with it.


7
Burns stated that the "notice must specifically  identify the ground on which the district court  is contemplating an upward departure." 501 U.S.  at 138-39 (footnote omitted). Paragraph 120 does  not identify either facts or rationale with  specificity. "In the ordinary case, the  presentence report or the Government's own  recommendation will notify the defendant that an  upward departure will be at issue and of the  facts that allegedly support such a departure."  Id. at 135 (footnote omitted). Our opinions since  Burns reiterate that the notice must refer not  only to the rationale for departure but also to  the facts that support this theory of departure.  See, e.g., United States v. Ewing, 129 F.3d 430,  436-37 (7th Cir. 1997) ("a presentence report  listing specific factors that may warrant an  upward departure provides adequate notice");  United States v. Johnson, 53 F.3d 831, 834 (7th  Cir. 1995) ("The PSR cited the appropriate  Guidelines section, it detailed the exact grounds  for the departure, and it referred to facts to  support the grounds").


8
The only decision of this court that offers any  support for a belief that a generic reference  such as para.120 may be adequate is United States  v. De Angelo, 167 F.3d 1167, 1169 (7th Cir.  1999). In that case the district court concluded  that the defendant's criminal history category  did not reflect the seriousness of his prior  crimes. All the panel said when affirming this  decision was: "The PSR noted that departure may be  warranted under U.S.S.G. sec.  4A1.3. When the PSR  specifically mentions that departure may be  warranted under a specific guideline, the notice  is adequate. See United States v. Ewing, 129 F.3d  430, 436-37 (7th Cir. 1997)." This passage might  be read to say that all the presentence report  need do is mention a Guideline by number, without  making a recommendation or adverting to the facts  that would justify departure. But we doubt that  this is what the panel meant: after all, it  relied on Ewing, which entailed more concrete  notice, and did not suggest that it was changing  the law of the circuit. We know from Burns that  the notice must be specific, and it is best to  read an ambiguous opinion as compatible rather  than at odds with a decision of the Supreme  Court.


9
Because Morris did not receive notice from any  source that an upward departure would be  considered, he must be resentenced. In light of  the remarks at Morris's sentencing, Circuit Rule  36 will apply on remand. The court should  consider whether Morris's circumstances are  unlike those of other persons covered by  sec. 2A3.2. See Koon v. United States, 518 U.S. 81  (1996). If the court again elects to depart, it  should carefully consider the extent of  departure. Morris contends that a five-level  addition transgresses the principle that a  departure based on uncharged criminal conduct may  not exceed the sentence that would have been  appropriate had the defendant been convicted of  that conduct. See United States v. Ferra, 900  F.2d 1057, 1062-63 (7th Cir. 1990). The  prosecutor replies that, because the juvenile was  under 16 years old, analogy to U.S.S.G.  sec. 2G1.1(b)(2) implies a base offense level of  21, and carrying the pictures across state lines  might warrant an adjustment to level 27 under  sec. 2G2.1. We do not pursue this subject except  to say that it deserves attention by the district  court.


10
Before returning the case to the district  court, we need to tie up a loose end. Lew A.  Wasserman represented Morris in the district  court by appointment under the Criminal Justice  Act and briefed the appeal on his behalf. More  than a month after the briefing had been  completed (and only three weeks before the date  set for oral argument), Morris sought to file a  supplemental pro se brief. This was rejected by  an order noting that a defendant represented by  counsel must communicate only through counsel.  Responding to this order, Morris sought to have  Wasserman dismissed and a new lawyer appointed--  presumably a lawyer who would brief all of the  issues Morris wanted addressed. Because briefing  had been completed, this was far too late. But  the court did permit Morris to dismiss Wasserman,  so that Morris could file his supplemental brief.  The case was then submitted for decision without  oral argument.


11
In retrospect, this order was mistaken, for two  reasons. First, although a defendant is  constitutionally entitled to represent himself at  trial in order to speak directly to those who  will determine his fate, matters are otherwise on  appeal. Courts may, and generally should, ensure  that defendants enjoy legal representation even  if the appellant would prefer to act on his own  behalf. Martinez v. California Court of Appeal,  120 S. Ct. 684 (2000). Had Martinez been issued  before we responded to Morris's request, we would  have been inclined to deny his motion outright.  Second, it is likely that Morris did not want to  represent himself. Instead he preferred a more  compliant lawyer. He was not entitled to pick and  choose among appointed lawyers, see Morris v.  Slappy, 461 U.S. 1 (1983), but may not have  understood this. Had we made it clear to Morris  that no lawyer would be appointed to replace  Wasserman, perhaps Morris would have withdrawn  his request.


12
Happily, Morris was not adversely affected by  our misstep. He did not receive the benefit of  counsel's oral argument, but we found his  lawyer's written argument persuasive. Wasserman  will be reappointed, providing Morris with the  benefit of counsel on remand. And we have  reviewed Morris's pro se filing, so he has had  the best of both worlds. Morris contends that the  district judge erred by failing to suppress  statements made to the FBI, and evidence that he  maintains was located by using this improperly  obtained information. But Morris pleaded guilty  unconditionally, so all contentions other than  those related to sentencing have been waived.  United States v. Galbraith, 200 F.3d 1006, 1010 (7th Cir.  Jan. 11,2000). Attorney  Wasserman's reluctance to brief these points is  understandable. Morris's objections to his fine  and term of supervised release are insubstantial,  and his "notice of intent to withdraw guilty  plea" has no bearing on any issue before this  court. He did not seek such relief in the  district court, and his contention that the  prosecution has not kept its part of the bargain  is unsupported. For example, Morris contends that  the United States "agreed to return all seized  property" (presumably including the child  pornography) and "to move me immediately after  entering the plea to MCC Chicago" yet has done  neither. But the written plea agreement does not  contain any promise along these lines. If some  terms of the agreement are subject to specific  performance, Morris is free to request  appropriate relief in the district court.

Vacated and Remanded
