United States v. Debeir ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 98-4907
GEORGES DEBEIR,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-98-251-WMN)
Argued: May 7, 1999
Decided: July 29, 1999
Before WIDENER, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Widener and Judge Traxler joined.
_________________________________________________________________
COUNSEL
ARGUED: Bonnie S. Greenberg, Assistant United States Attorney,
Baltimore, Maryland, for Appellant. Beth Mina Farber, Chief Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellant. James Wyda, Federal Public Defender, Bal-
timore, Maryland, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A grand jury indicted Georges DeBeir of one count of traveling in
interstate commerce with the intent to engage in a sexual act with a
minor, in violation of 18 U.S.C.A. § 2423(b) (West Supp. 1999).
After DeBeir pled guilty to this offense, the district court, departing
downward three levels from the applicable range set forth in the
United States Sentencing Guidelines, sentenced him to five years pro-
bation. The Government appeals. Because the circumstances and con-
sequences of this case do not render it sufficiently atypical or
extraordinary to remove it from the heartland of cases covered by the
applicable guideline, the district court abused its discretion in depart-
ing downward. Accordingly, we vacate DeBeir's sentence and
remand for resentencing.
I.
On April 1, 1998, DeBeir, a 58-year-old male, first contacted
Kathy, who represented herself as a 14-year-old girl, through an inter-
net chat room. Actually, "Kathy" is a federal agent. In their initial e-
mail conversation, DeBeir told Kathy: "I am looking to meet a teen-
age girl very discreetly once in a while strictly for oral sex."
Thereafter DeBeir and Kathy exchanged numerous sexually
explicit e-mail communications, during which he encouraged her to
keep their conversation and planned rendevous a secret because, if
exposed, he "could be in big trouble with the law." He explained "if
a man my age is caught in a motel room together with a 14-year old
girl . . . I'll go to jail for many years . . . even at age 14, I'm sure
you're smart enough to know that," and noted that he had more to
lose than Kathy if they were discovered because he"would go to jail
for a LONG time" whereas she was only "a minor."
Throughout these conversations, DeBeir discussed meeting Kathy
so that he could teach her about oral sex. He explained that he would
pay her $150 for each visit. DeBeir also explained that he had made
several prior arrangements with other teenage girls, but that when the
2
meeting times came, the girls did not appear. Expressing disappoint-
ment with these prior attempts, DeBeir repeatedly urged Kathy to fol-
low through on her commitment to meet him, and stressed the
importance of making it easy for him to pick her out of the crowd
when they were to meet. The two then discussed where and when to
meet and what they would be wearing.
On May 26, 1998, DeBeir contacted Kathy and told her that he
would come from New York to Baltimore to see her on June 3. They
agreed to meet at a mall in downtown Baltimore and, from there, to
proceed to a nearby hotel. DeBeir told Kathy that he would go to
AAA to get information on hotels in downtown Baltimore. He
expressed concern about checking in to a hotel together because of
the difference in their ages and suggested that they check in sepa-
rately in order to avoid drawing any attention to their meeting; Kathy
agreed to his plan. At DeBeir's request, Kathy also agreed to bring
her school uniform with her to the hotel in a gym bag so that they
could "play a neat little game," which would involve Kathy dressing
in the uniform without any underwear and DeBeir performing oral sex
on her while in her uniform.
On June 3, 1998, DeBeir confirmed his meeting with Kathy over
the internet and then traveled from New York to Baltimore; he arrived
at the mall to meet Kathy as scheduled. An FBI agent, dressed as
Kathy, also went to the designated spot and waited there for approxi-
mately one hour. As the agent began to leave, DeBeir approached her,
confirmed that she was "Kathy," said that he"owe[d] [her] an apol-
ogy," and asked if they could take a walk.
FBI agents then arrested DeBeir; they recovered a list of area
hotels, with phone numbers, from his pocket. The FBI later found a
transcript of the e-mail conversations with Kathy and similar tran-
scripts from conversations with other purported teenage girls in
DeBeir's car and at his home. The conversations began in the summer
of 1997 and continued through May 1998.
DeBeir pled guilty to one count of traveling interstate with intent
to engage in a sexual act with a juvenile, in violation of 18 U.S.C.A.
§ 2423(b). The parties agreed that the Sentencing Guidelines provide
a base level of 15 for this offense, see 1997 U.S.S.G. § 2A3.2, and
3
that DeBeir merited a two-level downward adjustment for acceptance
of responsibility, see id. § 3E1.1, bringing the offense level to 13.
With a criminal history category of I (because DeBeir had no prior
convictions), the sentencing range for the offense, after the adjust-
ment for acceptance of responsibility, would be 12-18 months.
The district court, however, also granted DeBeir a three-level
downward departure, bringing the offense level to 10, with a sentenc-
ing range of 6-12 months. The district court departed on the basis of
a combination of factors, see id. § 5K2.0, which either singly or
together indicated that a longer sentence would have an adverse effect
on DeBeir "to an exceptional degree." The court sentenced DeBeir to
five years probation, conditioned on a six-month term of home deten-
tion with electronic monitoring. On appeal, the Government chal-
lenges only the three-level downward departure.
II.
Congress enacted the Sentencing Guidelines to eliminate inequality
in sentencing. Through the Guidelines "Congress sought reasonable
uniformity in sentencing by narrowing the wide disparity in sentences
imposed for similar criminal offenses committed by similar offend-
ers." U.S.S.G. Ch. 1, Pt. A, intro. comment 3, at 2; see also United
States v. Harriott, 976 F.2d 198, 202-03 (4th Cir. 1992).
To achieve this aim, the Guidelines dictate that in the usual case,
a court must sentence within the applicable guideline range. Thus,
ordinarily a guideline (despite its nomenclature) constitutes a mandate
that a sentencing court must adhere to, rather than simply a guide that
it may choose to follow. See 18 U.S.C.A.§ 3553(b). As the Supreme
Court recently explained, "[a] district judge now must impose on a
defendant a sentence falling within the range of the applicable Guide-
line, if the case is an ordinary one." Koon v. United States, 518 U.S.
81, 92 (1996) (emphasis added); see also Mistretta v. United States,
488 U.S. 361, 367-68 (1989).
In extraordinary cases, however, a sentencing court may permissi-
bly depart from the designated sentencing range. To do so, a court
must "find[ ] that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into consider-
4
ation by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described." Koon,
518 U.S. at 92 (quoting 18 U.S.C. § 3553(b)). In this way, the Guide-
lines "acknowledg[e] the wisdom, even the necessity, of sentencing
procedures that take into account individual circumstances." Id.The Guidelines and their commentary facilitate this limited flexi-
bility. The Guidelines do prohibit a court from taking some factors
into account in deciding whether to deviate from the prescribed sen-
tencing range, but they forbid consideration of only a handful of fac-
tors. See, e.g., U.S.S.G. § 5H1.10 (race, sex, national origin, religion,
creed, and socio-economic status). Otherwise, the Guidelines encour-
age -- but do not require -- courts to consider some factors in mak-
ing departure decisions, see, e.g., id. §§ 5K2.10 (victim provocation
as encouraged factor toward downward departure); 5K2.7 (disruption
of government function as encouraged upward departure factor), and
discourage -- but do not forbid -- consideration of other factors, see,
e.g., id. § 5H1.2 (education and vocational skills).
A court can depart on the basis of an encouraged factor if the appli-
cable guideline has not already taken that factor into account. See
Koon, 518 U.S. at 95-96. If the specific guideline at issue has already
taken an encouraged factor into account, or if the Guidelines discour-
age reliance on a factor, a court can still depart, but "only if the factor
is present to an exceptional degree or in some other way makes the
case different from the ordinary case where the factor is present." Id.
at 96; see also United States v. Hairston, 96 F.3d 102, 105-06 (4th
Cir. 1996).
Moreover, a court may, at its discretion, consider factors not spe-
cifically mentioned in the Guidelines. See U.S.S.G. Ch. 1, Pt. A, intro.
comment 4(b), at 6-7 (list of factors "is not exhaustive" and "[t]he
Commission recognizes that there may be other grounds for departure
that are not mentioned"); see also United States v. Barber, 119 F.3d
276, 280 (4th Cir. 1997) (en banc). Any factor "not expressly forbid-
den" by the Guidelines "potentially may serve as a basis for depar-
ture." United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997); see also
Koon, 518 U.S. at 106-07. When faced with such an unmentioned fac-
tor, a court must consider the "`structure and theory' of the relevant
individual guideline and the Guidelines as a whole, bearing in mind
5
that departures on the basis of factors not mentioned in the Guidelines
will be `highly infrequent.'" Hairston, 96 F.3d at 106 (quoting Koon,
518 U.S. at 96).
Finally, the Guidelines "do[ ] not foreclose the possibility of an
extraordinary case that, because of a combination of. . . characteris-
tics or circumstances, differs significantly from the `heartland' cases
covered by the guidelines in a way that is important to the statutory
purposes of sentencing, even though none of the characteristics or cir-
cumstances individually distinguishes the case." U.S.S.G. § 5K2.0
(Commentary). The Sentencing Commission, however, noted that
"such cases will be extremely rare." Id .
In sum, despite the generally mandatory nature of the Guidelines,
in an atypical case a district court does enjoy significant discretion in
deciding whether to depart from a given sentencing range. In fact, the
Supreme Court made clear in Koon that, when reviewing a district
court's decision to depart from a sentencing range, an appellate court
must apply a "unitary abuse-of-discretion standard." Koon, 518 U.S.
at 100; see also Barber, 119 F.3d at 282; Hairston, 96 F.3d at 106.
Errors of law and clearly erroneous factual findings constitute abuses
of discretion, but the Court expressly rejected the use of a bifurcated
approach that would examine some portions of the sentencing court's
rationale de novo and others under an abuse of discretion standard.
See Koon, 518 U.S. at 100; see also Barber , 119 F.3d at 283.
Instead, "with due regard to the district court's institutional advan-
tage" in sentencing proceedings, a reviewing court looks to "existing
case law and the structure and theory of the Guidelines as a whole"
in order to determine whether the district court abused its discretion
in departing from the guideline range. Hairston , 96 F.3d at 106 (inter-
nal quotation marks omitted). In this way "[a]n appellate court gener-
ally gives `substantial deference' to the district court's decision to
depart, but appellate review is not an `empty exercise.'" Id. (quoting
Koon, 518 U.S. at 98).
With these principles in mind, we examine DeBeir's sentence.
III.
The Guidelines do not restrict the number of factors a court can
consider when deciding whether to depart from the prescribed sen-
6
tencing range. See Burns v. United States, 501 U.S. 129, 136-37
(1991). The district court in this case reviewed a myriad of factors
and circumstances that, taken together, assertedly warranted a three-
level downward departure. Because the district court also suggested
that several factors alone could serve as the basis for departure, we
review those factors individually before considering their cumulative
impact, together with the other circumstances relied on by the district
court. In doing so we compare the facts presented here "with the facts
of other Guidelines cases" that consider similar factors (when such
cases are available), recognizing that the issue of whether this case is
so unusual as to warrant a departure is "determined in large part by
[this] comparison." Koon, 518 U.S. at 98; Hairston, 96 F.3d at 106.
A.
The district court considered DeBeir's "unique psychological con-
dition" and unusual susceptibility to abuse in prison as a basis for
departure. DeBeir's attorney argued that, "[w]herever he goes if incar-
cerated, Mr. DeBeir will be categorized as a sexual offender and will
be subjected to heightened abuse and danger." The defense also noted
that, while DeBeir was detained in a local jail, other detainees repeat-
edly told him to "watch his back." In addition, an expert testified that
DeBeir was "extremely sensitive" and more"subject to responding to
stress than most people"; for these reasons the expert concluded that
DeBeir was "a lot more likely to be psychologically damaged by a
longer period of incarceration" than "most people." On the basis of
such evidence, the district court found that any future incarceration
would have a "devastating" effect on DeBeir.
To the extent that this conclusion boils down to a finding that, due
to the nature of DeBeir's criminal conduct, he will be harassed in
prison, we cannot see how this brings the case outside the heartland.
All defendants convicted of this particular offense are potentially sub-
ject to such abuse. Granting a departure based on the nature of the
crime "would eviscerate the recommended range for this crime and
undermine the goals of the Sentencing Reform Act." United States v.
Wilke, 156 F.3d 749, 754 (7th Cir. 1998). As the Eighth Circuit
recently explained, a defendant's "mere membership in a class of
offenders that may be targeted by other inmates cannot make his case
extraordinary . . . [o]therwise every [such offender] would be eligible
7
for a departure, thwarting the Guidelines' sentences for that sort of
crime." United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir. 1997)
(reversing departure for susceptibility to abuse in prison that was
based on status as child pornographer and remanding to consider
remaining valid factor alone). Indeed, if such a departure were rou-
tinely permitted, "[t]here would be no heartland of cases." Wilke, 156
F.3d at 754; see also United States v. Drew, 131 F.3d 1269, 1271 (8th
Cir. 1997) (reversing departure based "simply" on defendant's status
as child pornographer and his naivete where "there is no good reason
to believe [defendant] is exceedingly vulnerable to victimization
given his average size and good health").
To the extent the district court found that, regardless of his crime,
DeBeir's psychological makeup renders him extremely vulnerable to
abuse in prison, its ruling relied upon a permissible, though not
encouraged, basis for departure. The Guidelines do not list extreme
vulnerability as a departure factor. However, the Guidelines do dis-
courage district courts from relying solely on mental, emotional, or
physical condition in making departure decisions. See U.S.S.G.
§§ 5H1.3; 5H1.4.
In Koon, the Court upheld a departure based on susceptibility to
abuse in prison, deferring to the district court's conclusion that the
defendants -- police officers convicted of brutally beating motorist
Rodney King -- were "particularly likely to be targets of abuse dur-
ing their incarceration" because of the notoriety surrounding their
crimes. 518 U.S. at 111-12. Similarly, the Second Circuit in United
States v. Lara, 905 F.2d 599 (2d Cir. 1990), upheld the district court's
downward departure based on the "extraordinary situation because of
the defendant's particular vulnerability" in which "[t]he severity of
[the defendant's] prison term [was] exacerbated by his placement in
solitary confinement as the only means of segregating him" for his
protection. Id. at 603. In Lara, the court specifically noted that the
defendant's "diminutive size, immature appearance and bisexual ori-
entation" had already resulted in abuse, in the form of other inmates
attempting to coerce the defendant into becoming a prostitute for their
personal and financial gain. Id. at 601-03.
In United States v. Maddox, 48 F.3d 791 (4th Cir. 1995), we like-
wise concluded that extreme vulnerability in prison is a factor that the
8
Guidelines did not take into consideration and which could, in proper
circumstances, warrant departure. Id. at 798. But we cautioned that
"extreme vulnerability as a ground for departure . . . should be con-
strued very narrowly" and held that the district court's unsubstantiated
findings that the defendant was "easily led, susceptible to misuse by
others, meek and cautious in demeanor, and slight in appearance" was
not enough to bring the case outside the heartland. Id.Several of our sister circuits have reached similar conclusions. For
example, the Seventh Circuit noted that, while courts are permitted to
review this factor, it should be "reserved for extraordinary situations."
Wilke, 156 F.3d at 753. The Wilke court held that the defendant's sta-
tus as a sexual offender who targeted minors, coupled with his passive
and meek demeanor, did not provide a sufficient basis for a departure.
Id. at 752-54. The Eighth Circuit similarly found no "substantial
atypicalities" to warrant a downward departure where the defendant
was a 67-year old woman with a long history of victimization through
abuse because it found no convincing evidence that she was particu-
larly susceptible to becoming a victim in prison as well. See United
States v. Tucker, 986 F.2d 278, 279-80 (8th Cir. 1993).
When we compare the facts of these cases with the facts of the case
at hand, we cannot conclude that DeBeir has demonstrated such
severe susceptibility to abuse in prison or unique psychological fragil-
ity as to warrant a departure based on this factor. Although DeBeir
allegedly was taunted while briefly in the Baltimore City Jail, his situ-
ation does not come close to the abuse actually suffered by the defen-
dant in Lara, upon which DeBeir heavily relies. See 905 F.2d at 601-
03. Nor do the circumstances here create a potential for abuse akin to
that found in Koon. See 518 U.S. at 111-12. Even DeBeir's own
expert, although noting the likely impact of future incarceration on
DeBeir, determined that he did not suffer any post-traumatic stress
disorder from his stay in the local jail. We find nothing atypical about
a defendant with no prior experience with incarceration finding such
an incident stressful. Because "[e]xcept under truly extraordinary cir-
cumstances, prisons exist for those who commit crimes, not just for
tough criminals," Maddox, 48 F.3d at 798, and because DeBeir has
not shown that his is such an extraordinary case, this factor cannot
support the departure on its own.
9
The district court also examined DeBeir's status as a resident alien
and its potential impact on his incarceration. Specifically, the court
noted that if DeBeir were considered a deportable alien, he might be
ineligible for certain less restrictive confinement alternatives.
Although the Guidelines prohibit reliance on national origin, see
U.S.S.G. § 5H1.10, they do not mention alienage as a departure fac-
tor; it therefore serves as a potential basis for departure. Indeed,
courts have much debated the question of the extent to which they can
consider alienage in departure decisions.
Initially, the Second Circuit concluded that courts could consider
alienage when "its effect[s] [are] beyond the ordinary," but deter-
mined that certain factors associated with alienage, including
unavailability of preferred confinement options, additional detention
prior to deportation, deportation itself, and separation from family in
the United States, could never serve as the basis for departure. United
States v. Restrepo, 999 F.2d 640, 644-47 (2d Cir. 1993). It therefore
held that nothing in the case before it -- a drug importation and pos-
session case in which the defendant was a legal alien with an Ameri-
can wife, three children and several siblings residing in the United
States -- was so unusual as to bring it outside the heartland. Id. Sev-
eral other circuits followed this reasoning. See United States v.
Veloza, 83 F.3d 380 (11th Cir. 1996); United States v. Nnanna, 7 F.3d
420 (5th Cir. 1993); United States v. Mendoza-Lopez, 7 F.3d 1483(10th Cir. 1993).
All of these cases, however, pre-date Koon, which clarified that a
district court is free to consider any factor not prohibited by the
Guidelines. See Koon, 518 U.S. at 106-07. With this newly articulated
directive in mind, the Seventh Circuit recently concluded that "[t]he
district court is . . . free to consider whether[defendant's] status as
a deportable alien has resulted in unusual or exceptional hardship in
his conditions of confinement." United States v. Farouil, 124 F.3d
838, 847 (7th Cir. 1997); see also United States v. Charry Cubillos,
91 F.3d 1342 (9th Cir. 1996). Similarly (albeit prior to Koon), the
D.C. Circuit ruled that a defendant's alienage could serve as the basis
for departure "where the defendant's status as a deportable alien is
likely to cause a fortuitous increase in the severity of his sentence."
United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (directing
district court to review factor on remand).
10
Several district courts have granted a departure based on alien sta-
tus in cases where that status caused the increased severity in punish-
ment. For example, in United States v. Bakeas , 987 F. Supp. 44 (D.
Mass. 1997), the court granted a downward departure to a permanent
resident alien who had lived in the United States for 20 years. Id. at
51-52. The court reasoned that the case was unusual and outside the
heartland because while Bakeas, an alien, would have to serve his
time in a medium security facility in another state, judges routinely
sentence citizens convicted of the same offense (bank embezzlement)
to minimum security prison camps or local community treatment cen-
ters for their entire confinement period. Id. at 46-52. In United States
v. Simalavong, 924 F. Supp. 610 (D. Vt. 1995), the court granted a
departure based on alienage because of the "extraordinary" fact that
the only reason defendants were subjected to imprisonment (as
opposed to probation or home detention) was their status as aliens. Id.
at 612-13; see also United States v. Bioyo, 1998 WL 850815, at *3
(N.D. Ill. Dec. 2, 1998) (memorandum). But cf. United States v.
Angel-Martinez, 988 F. Supp. 475, 482-84 (D.N.J. 1997) (no basis for
departure where defendant simply argued that, as a general matter,
deportable aliens are treated more harshly than citizens in sentencing).
Unlike Bakeas, Simalavong, and Bioyo, DeBeir's alien status was
not the basis for his ineligibility for less restrictive confinement.
Rather, the record before us reflects (and DeBeir concedes) that his
inability to find a halfway house willing to take him stemmed from
the nature of his offense and not from his alien status. With no evi-
dence that DeBeir's alien status had a direct adverse impact on his
incarceration, this factor can hardly provide a basis for separating his
case from the norm. See United States v. Martinez-Villegas, 993 F.
Supp. 766, 781 (C.D. Cal. 1998) (declining to depart downward based
on alienage in part because no evidence that ineligibility for halfway
house was due to alien status rather than offense category); see also
United States v. Pozzy, 902 F.2d 133, 139-40 (1st Cir. 1990)
(unavailability of a halfway house not enough in itself to bring case
outside heartland because Guidelines nowhere indicate that the Com-
mission intended or expected that such a facility would be available
in every case).
In addition, the district court reviewed the collateral consequences
of incarceration on DeBeir's employment opportunities. The court
11
found that sentencing would have an "exponentially adverse effect"
on DeBeir because of the difficulty that someone his age (58) would
have in obtaining employment in his field of international education
following a prison sentence. As with vulnerability in prison, although
the Guidelines do not mention adverse impact on employment, the
Koon court recognized that it can potentially provide a valid basis for
departure. See Koon, 518 U.S. at 109-10.
In Koon, the Court rejected the Government's argument that impact
on employment was an impermissible factor because it too closely
tracked socio-economic status, a prohibited factor. Id. The Court,
however, went on to conclude that the challenged sentences did not
so severely impact the defendants' careers (in law enforcement) as to
take their cases outside the heartland. Id. Specifically, the Court
explained that "it is not unusual for a public official who is convicted
of using governmental authority to violate a person's rights to lose his
or her job and to be barred from future work in that field." Id. at 110.
Similarly, it would not be unusual for an educator, convicted of trav-
eling interstate to engage in a sexual act with a minor, to be barred
from future employment in education. Applied here, we find nothing
atypical or extraordinary about the consequences of incarceration on
DeBeir's employment.
We suspect, however, that the district court did not base its ruling
as to this factor solely on the employment consequences of DeBeir's
incarceration. To the extent that the court relied on DeBeir's age and
suspected inability to find a position "in keeping with his prior
employment and expertise," we note that the Guidelines prohibit reli-
ance on socio-economic status and discourage, but do not forbid, reli-
ance on age and employment record for purposes of departure
determinations. See U.S.S.G. §§ 5H1.1; 5H1.5; 5H1.10; see also
5H1.2 (educational level as discouraged factor).
With respect to age, the Tenth Circuit in United States v. Bowser,
941 F.2d 1019 (10th Cir. 1991), upheld a departure from the applica-
ble criminal history category based in part on the defendant's age (20)
at the time of the prior offenses. Id. at 1024-26. Explaining that age
alone would have been an insufficient basis for departure, the Bowser
court permitted the departure because of a "unique combination of
factors," including the close proximity in time of the prior offenses
12
and the fact that the defendant had served concurrent sentences for
those convictions, which combined such that the applicable criminal
history category "significantly over-represented the seriousness of
[defendant's] criminal history." Id. With regard to employment his-
tory as a factor, the Eighth Circuit in United States v. Big Crow, 898
F.2d 1326 (8th Cir. 1990), upheld a downward departure based in part
on consideration of the defendant's exceptional 7-year steady employ-
ment record in "not too pleasant of a job," which enabled him to pro-
vide adequately for his family on an Indian Reservation with 72%
unemployment and an estimated per capita income of $1,042. Id. at
1331-32. DeBeir, a well-educated, mature man with a strong (but not
extraordinary) employment record did not offer evidence in any way
equivalent to that presented in these cases; the record here cannot sup-
port a departure based on either age or employment history alone.
The district court also examined the impact of the negative public-
ity DeBeir received concerning his arrest, indictment, and guilty plea.
Again, although the Guidelines do not mention publicity as a depar-
ture factor, the Koon Court recognized that this factor could contrib-
ute to a valid departure. 518 U.S. at 111-12. In Koon, the defendants
encountered "widespread publicity and emotional outrage . . . from
the outset," including detailed national coverage, repeated airing of a
videotape of the crime, and violent riots surrounding their initial
acquittal on state charges. Id. at 85-88, 112. The Supreme Court con-
sidered the impact of this negative publicity as a factor leading to the
defendants' extreme vulnerability to abuse in prison, which in turn
served as a proper basis for a downward departure. Id. at 112.
Newspapers in Baltimore, New York, and Belgium reported on
DeBeir's case. The media coverage in this case, however, does not
approach the extent of negative publicity at issue in Koon. Id. at 111-
12. In United States v. Blount, 982 F. Supp. 327 (E.D. Pa. 1997), the
court considered the publicity received by a corrections officer con-
victed of conspiracy to distribute drugs, which"made quite a little
stir," and determined that it "bears little resemblance to Koon." Id. at
336. The facts require a similar conclusion here. Certainly it is not
atypical for news organizations in the area where an arrest occurred,
in the area where the defendant resides, and even in the area where
the defendant was raised to cover such an incident. DeBeir has not
shown anything extraordinary about this case in terms of media atten-
13
tion or its impact on his potential incarceration that brings it outside
the heartland.
Additionally, the district court found that DeBeir is not a pedophile
and relied on this factor in departing downward. The Guidelines gen-
erally do not mention this as a departure factor. Nor does the guide-
line applicable to DeBeir anywhere suggest, let alone require, that its
provisions apply only to pedophiles or other sexual deviants. See
U.S.S.G. § 2A3.2. Although the consideration of DeBeir's lack of
psychological pathology is not forbidden and so provides a possible
basis for departure, it does seem to us, at least in this case, an exceed-
ingly odd basis for granting a downward departure. In order to depart
downward on this factor, a court would have to conclude that, in the
heartland of cases, all defendants convicted of traveling interstate to
engage in a sexual act with a minor technically qualify as pedophiles.
Without any evidence of this, we are unwilling to so conclude. Cf.
United States v. Wind, 128 F.3d 1276, 1278 (8th Cir. 1997) (refusing
to make such an assumption with respect to defendants who violate
child pornography statutes); United States v. Studley, 907 F.2d 254,
258-59 (1st Cir. 1990) (reversing downward departure because "noth-
ing exceptional" about defendant convicted of possessing child por-
nography, despite fact that "he was not a child molester and [he] kept
his deviancy to himself").
Finally, the district court considered the "victimless" nature of
DeBeir's crime due to the fact that "Kathy" was actually an FBI
agent. Again the Guidelines do not forbid consideration of this factor
and so it is a potential basis for departure. In this case, however, we
find nothing unusual about the fact that the intended victim of
DeBeir's actions was a federal agent. See United States v. Costales,
5 F.3d 480, 485-87 (11th Cir. 1993) (denying a downward departure
based on mitigating role, and noting that the Guidelines contemplate
that in some cases all the other actors will be undercover agents).
Indeed, such covert or "sting" operations are not uncommon. See, e.g.,
Wind, 128 F.3d at 1277; Drew, 131 F.3d at 1270; United States v.
Morin, 80 F.3d 124, 126, 129 (4th Cir. 1996); Bowser, 941 F.2d at
1021; Studley, 907 F.2d at 256; United States v. Deane, 914 F.2d 11,
12 (1st Cir. 1990).
Furthermore, the statute that DeBeir violated and to which the
guideline applies punishes traveling interstate with the intent to
14
engage in a sexual act with a minor. See 18 U.S.C.A. § 2423(b). Thus
the relevant concern is DeBeir's intent rather than the true age or
identity of his intended victim. As we noted in a case involving an
agent posing as a hired assassin, the fact that a major player in the
crime was a federal agent is "simply irrelevant to whether a particular
defendant falls within the heartland of" the applicable guideline.
Morin, 80 F.3d at 129.
Thus, none of these factors in and of itself justifies the court's
three-level downward departure.
B.
We must now examine whether this is one of the rare situations in
which the cumulative effect of all of the circumstances in the case
brings it outside the heartland. See U.S.S.G. § 5K2.0 (Commentary).
In so doing, we first review several additional factors that the district
court found could not serve as the basis for a departure alone but
nonetheless contributed to its decision to grant the departure.
The first of these additional factors is DeBeir's post-offense reha-
bilitation effort. The Guidelines direct courts to take this factor into
account when determining whether a defendant is entitled to a down-
ward adjustment for acceptance of responsibility. See U.S.S.G.
§ 3E1.1 (Commentary). As an encouraged factor already taken into
account -- and, in this case, already the basis for a two-level down-
ward adjustment -- "post-offense rehabilitation may provide an
appropriate ground for departure only when present to such an excep-
tional degree that the situation cannot be considered typical of those
circumstances in which an acceptance of responsibility adjustment is
granted." Brock, 108 F.3d at 35; see also Barber, 119 F.3d at 281 n.4.
After his indictment, DeBeir attended approximately 32 counseling
sessions; the district court noted his efforts but determined that they
were not extraordinary.
The court also considered DeBeir's asserted extreme remorse.
Although recognizing the evidence of remorse in the record, including
DeBeir's statements that he felt remorse and his attorney's comments
concerning the shame and guilt confronting DeBeir as a result of his
15
behavior, the court concluded that such evidence was not atypical or
extraordinary and did not warrant a departure on its own.
Finally, the court found that DeBeir's behavior could not be con-
sidered legally aberrant. See United States v. Glick, 946 F.2d 335 (4th
Cir. 1991). In Glick, we explained that, because the Guidelines
already take into account a defendant's criminal history, aberrant
behavior must "mean[ ] something more than merely a first offense";
instead "[a] single act of aberrant behavior suggests a spontaneous
and seemingly thoughtless act rather than one which was the result of
substantial planning." Id. at 338 (internal quotation marks omitted).
The district court noted that the offense conduct in this case included
"an aspect of aberrant behavior," in that it did not seem to be chronic
or even habitual over an extended period. The court acknowledged,
however, that DeBeir's actions did not fit the Glick definition and, for
this reason, the "aberrant" nature of the conduct alone could not pro-
vide a proper basis for departure.
As an appellate court we lack authority to review the district
court's decision that departure on the basis of these factors taken indi-
vidually was not warranted. See Brock, 108 F.3d at 32; see also
United States v. Bayerle, 898 F.2d 28 (4th Cir. 1990). But we can, of
course, review the court's ultimate decision to depart from the Guide-
lines range. We therefore evaluate these additional factors only in
connection with the factors outlined above to determine whether this
case, considered as a whole, is so extraordinary as to fall outside the
heartland. See U.S.S.G. § 5K2.0 (Commentary).
As noted above, the Guidelines clearly contemplate that even if
none of the factors at issue taken individually warrants a departure,
the cumulative effect of all of the circumstances of the case may, in
some instances, bring it outside the heartland. This, however, is not
such a case. We have studied the record thoroughly, including the
parties' fine briefs, and have reviewed the entire complement of fac-
tors and circumstances contributing to the district court's departure
decision and cannot conclude that any factor or group of factors
brings this case outside the norm. The circumstances of this case are
far removed from those found exceptional in existing case law; even
when taken together, they cannot justify a departure.
16
The crux of the district court's contrary finding seems to be its con-
clusion that DeBeir is not the "type of offender that the guideline is
really aimed at targeting." We cannot agree. In fact, offenses of this
nature are increasingly committed with the help of the internet, and
in such cases the offender must necessarily have had access to and the
skills to use a computer. See, e.g., United States v. Johnson, ___ F.3d
___, 1999 WL 335318 (10th Cir. May 27, 1999); United States v.
Byrne, 171 F.3d 1231 (10th Cir. 1999); United States v. Young, 131
F.3d 138, 1997 WL 745826 (4th Cir. 1997) (unpublished). Thus we
find nothing extraordinary about the particular factual landscape of
this case -- i.e., that DeBeir is an intelligent and well-educated adult,
has a strong employment history, had no prior exposure to life in
prison, is neither a chronic offender nor a pedophile, was caught in
a sting operation, received coverage in the media, later attempted
counseling, and experienced remorse -- that brings it outside the
heartland of cases sentenced under this guideline.
Although in another case some or all of the factors considered here
might well warrant a downward departure, they do not permit a depar-
ture in this case. In the end, regardless of the number of factors a sen-
tencing court considers when making a departure determination a
court cannot stray from the sentencing range dictated by the Guide-
lines unless the case is highly unusual. See Koon, 518 U.S. at 92-95.
We remain "well aware of the difficulties that . . . the Sentencing
Guidelines impose on district courts faced with the unenviable task of
sentencing criminals who present sympathetic cases," Maddox, 48
F.3d at 799-800, but the record before us simply cannot support the
three-level downward departure awarded here.
IV.
Neither individually nor in combination are the circumstances,
characteristics, or consequences of this case so unique or extraordi-
nary as to bring it outside the heartland of cases sentenced under this
guideline. The district court therefore abused its discretion in granting
the three-level downward departure. We vacate DeBeir's sentence
and remand for resentencing in accordance with this opinion.
VACATED AND REMANDED
17