United States v. Davis , 204 F.3d 1064 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
08/18/1999
THOMAS K. KAHN
No. 98-3671 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 98-00146-CR-ORL-18C
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
versus
JOHN BRADLEY DAVIS,
Defendant-Appellee,
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(August 18, 1999)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Appellee John Bradley Davis pled guilty to possession of three or more images
of child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B). At sentencing, the
district court determined Appellant’s offense level to be 16 but granted a downward
departure because of “extraordinary circumstances” including “the absence of the
victim” and “the fact that the defendant made no use of the pornographic material
other than for personal use” and sentenced Appellant to two years probation. The
Government appeals the sentence contending the district court erred in granting a
downward departure from the applicable Sentencing Guidelines range, U.S.S.G.
§ 5K2.0. Appellee cross-appeals contending the district court plainly erred in setting
his offense level at 16. Based upon our review of the record, we conclude the district
court improperly departed downward, and thus vacate and remand for resentencing.
Additionally, the district court should clarify the calculation of Appellee’s total
offense level on remand.
We review the district court's decision to depart downward from the Sentencing
Guidelines for abuse of discretion. United States v. Rucker, 171 F.3d 1359, 1361
(11th Cir. 1999). This abuse of discretion standard “includes review to determine that
the discretion was not guided by erroneous legal conclusions.” Id. (citation omitted).
Because Appellee failed to object to his total offense level, we review this claim for
plain error. United States v. Olano, 113 S. Ct. 1770, 1776-1779 (1993).
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A sentencing court must impose a sentence within the applicable Guideline
range unless it finds there exists “a mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing Commission in formulating
the [G]uidelines that should result in a sentence different from that described.” United
States v. Willis, 139 F.3d 811, 812 (11th Cir. 1998) (quoting U.S.S.G. § 5K2.0). To
grant a departure, the court must first determine whether any factor makes a case fall
outside the “heartland” of typical cases embodying the conduct described in the
applicable guideline. See Koon v. United States, 116 S. Ct. 2035, 2046-2047 (1996).
If a case is found to be atypical, the court must consider whether the factor should
result in a different sentence. Id. To determine whether a factor should result in a
different sentence, a district court must first decide whether the factor is forbidden,
encouraged, discouraged, or unaddressed by the guidelines as a potential basis for
departure. Id. at 2045.
If a factor is forbidden, e.g., race, sex, national origin, creed, religion and
socio-economic status, a district court cannot use it to depart from the applicable
guideline. Id. at 2047. If a factor is encouraged, e.g., causing death, a court is
authorized to depart from the applicable guideline if the guideline does not already
take that factor into account. Id. at 2045. If a factor is discouraged, e.g., education
and vocational skills, or is an encouraged factor already taken into account by the
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applicable guideline, a district court may depart only if the factor is present to an
exceptional degree or in some other way makes the case distinguishable from an
ordinary case where the factor is present. Id. at 2045.
Finally, a district court may depart on the basis of a factor not addressed by the
Sentencing Commission if it finds, “after considering the ‘structure and theory of both
relevant individual guidelines and the Guidelines taken as a whole,’” that the factor
takes the case out of the applicable Guideline’s heartland. Id. at 2045 (citation
omitted).
The district court granted a downward departure because of “extraordinary
circumstances” including “the absence of the victim” and “the fact that the defendant
made no use of the pornographic material other than for personal use.” These bases
for departure are not atypical and therefore the district court abused its discretion in
granting the departure. The district court sentenced Appellant pursuant to U.S.S.G.
§ 2G2.4(s) which addresses mere possession of child pornography. Cf. U.S.S.G.
§2G2.2(a) (providing for increased offense level for one engaging in trafficking,
transporting, shipping, or advertising of child pornography). We have recently
explained that the harm resulting from possession of child pornography occurs when
one sustains a market for such pictures. United States v. Miller, 146 F.3d 1281, 1285
(11th Cir. 1998). Therefore, it is not necessary for one to derive any benefit from the
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child pornography or actively solicit the pornography, provided one’s actions play a
role in the distribution network. Id. Accordingly, the applicable Guideline adequately
takes into account Appellant’s mere possession of pornography. We therefore
conclude the district court erred in departing downward on these bases and vacate and
remand the case for resentencing.1
On remand, the district court should clarify the basis for its determination of
Appellee’s total offense level. The PSI calculated Appellee’s total offense level at 18,
representing the application of a three level reduction for acceptance of responsibility
and three sentence enhancements for use of a computer in obtaining child
pornography, possession of materials involving minors, and possession of ten or more
items containing visual depictions involving the sexual exploitation of a minor. The
district court stated at sentencing it was adopting the PSI’s application of the
Guidelines, except the sentence enhancements for possession of materials involving
minors, and possession of ten or more items containing visual depictions involving the
1
The district court may have also relied on Appellee’s lack of criminal history as a basis for
departing downward because the court noted he “never had any prior brushes with the law.” Such
a departure would be inappropriate because Appellee’s criminal history category fell within
Category I which adequately accounted for his lack of criminal history. See U.S.S.G. § 4A1.3
(stating that “a departure below the lower limit of guideline range for Criminal History Category I
on the basis of the adequacy of criminal history cannot be appropriate.”). Appellee further contends
other bases support the district court’s departure. However, “in reviewing downward departures,
[this Court only] considers the reasons for departure actually articulated by the sentencing court.”
United States v. Baker, 19 F.3d 605, 616 (11th Cir. 1994) (quotation and citation omitted).
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sexual exploitation of a minor. Accordingly, Appellee’s total offense level should
have been set at 14. The district court, however, sentenced Appellee based on a total
offense level of 16. Upon remand, the district court should clarify its calculation of
Appellee’s total offense level.
VACATED AND REMANDED.
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