*1 America, UNITED STATES BELL, Defendant-Appellee.
George R. June Welsh, Gregory Atty., Asst. U.S. Balti- more, Md., (Richard Bennett, argued D. brief) Atty., plaintiff-appel- on the for As Amended Oct.
lant. Walls, Walls,
C. Michael Gamer & Lau- rel, Md., (Jean Garner, argued A. Garner & Walls, brief) defendant-appellee. on the NIEMEYER, Before WILKINSON Judges, Circuit Judge for the Northern District of Virginia, sitting by designation. West OPINION WILKINSON, Judge: pleaded guilty Bell to sexual ex- ploitation children in violation of 18 U.S.C. 2251 and was sentenced under the Guidelines. The district court calculated Bell’s range under the Guidelines at 87-108 granted Bell’s motion for but then on the detri- a downward —based lengthy incarceration would mental effect a him sentenced have on his —and prison. 12 months in We vacate sen- resentencing within tence and remand This court of 87-108 months. repeatedly rejected family respon- tures based on a defendant’s sibilities, distinguish has failed to and Bell cases. his situation from those I. August, grand jury for the George Maryland indicted
District of exploitation on five counts sexual one, pleaded guilty to count children. Bell using persons him un- charged eighteen purpose for the age of der the sexually ex- depictions of producing visual *2 applica- the departure This lowered vism.” transporting those with plicit conduct and to 87-108 months. The con- ble in interstate commerce. videos camping Second, departed down to an of- during a the court occurred question duct ground an Pennsylvania, where 12 on the that Gettysburg, level of trip in fense 13) (age and daughter interfere with prison his term would had taken extended (ages family friend a and daughters provide of for his wife ability three to Bell’s up set his 7). trip Bell During departure that and second low- children. This three camper, posi- pop-up a inside sentencing range video camera to 12-18 ered the he could record that tioning camera so the Bell to 12 court sentenced and the district He clothes. subse- girls changing their the months. off girls to take instructed the quently appeals from the second government The location, and clothes, in a sit certain their departures.* downward of the two spread- ticks themselves for “examine” reposi- point Bell vaginas. At ing their one II. girls’ genitals the so that the camera tioned recording, of the the direct focus be would downward at granting In the girls the instructed repeatedly he the issue, focused on de-
they “checked for ticks.”
prison
extended
term
impact an
structive
trip, Bell
camping
of the
the end
At
family. The court
on Bell’s
would have
video-
girls and the
with the
returned home
of
had been a member
emphasized that Bell
Maryland. Several
Salisbury,
tape to
eigh-
family
period
of
a “stable
County police
later, Montgomery
months
Bell had
that Mrs.
years,” and noted
teen
elementary school
called to an
were
job
a
“recently
laid off from
that
been
investigate a com-
Rockville, Maryland, to
supported this
adequately have
not
would
year
A seven
sexual abuse.
plaint of child
addition,
In
the
family
any
event.”
police detectives
told
female student
old
Bell’s children needed
asserted that
George”
by “Uncle
had been taken
she
that
life,”
and finan-
guidance,
him “for
he had
Salisbury, where
his residence
short, the court
support.
In
concluded
cial
nude.
her in the
of
photographs
taken
period of incarceration
an extended
that
that “Uncle
investigation revealed
Further
family.
of the
lead to the
would
destruction
Bell,
police ob-
George” was
Bell’s home.
to search
quarrel
a warrant
dis
tained
cannot
We
police seized
ensuing search
During
regrettable
assessment
trict court’s
containing
of
scenes
videotapes
might
any
number
this or
that
follow
consequences
Bell’s
nude under
girls posing
young
time, how
the same
prison
term. At
tapes included
of those
One
direction.
ever,
permit such considerations
cannot
“checking for ticks”
girls
scenes
from
used as a basis for
to be
Gettysburg.
camper at
by the Guidelines.
imposed
the sentences
permitted
departures
only
Downward
April
guilty plea
his
Bell entered
identi
the defendant
in the rare case where
prepared
officer
probation
and the
kind,
“mitigating circumstance
fies a
report calculated
report. That
presentence
adequately taken
degree, not
into
to a
criminal histo-
at
offense level
Commis
Guidelines,
category
III under
at
ry
3553(b). As to the cir
sion.” 18 U.S.C. §
sentencing range of 97-121
yielded a
here,
issue
cumstance
granted two
district court
months.
expressly stated that
Commission
range.
this
departures
from
“[f]amily history
criminal
First,
set Bell’s
the court
not
munity ties are
that
II,
judgment
category at
based on
should be
a sentence
recidi-
likelihood of
“little or no
there
*
recidivism,"
or no likelihood
depar-
was "little
only
noting
of the two
In
second
way suggest
Guide-
appeal,
represented a correct
we in no
tures is at issue on
ground for
first downward
that the
lines.
i.e.,
category,
history
in the criminal
ture
III.
5H1.6.
U.S.S.G.
guidelines.”
Thus,
held that
order
circuit has
sum,
Sentencing Guidelines con-
departure on the basis
justify a
young
the sexual abuse of
children to
sider
must show that
a defendant
responsibilities
offense, and courts are
a serious
be
“extraordinary.”
is somehow
his situation
through
empowered
this sort of
*3
31,
Brand,
33
907 F.2d
v.
States
United
guess
judgment.
to second
For the
(4th Cir.1990);
Goff,
v.
907
States
United
reasons, we
im-
vacate
sentence
above
Cir.1990).
(4th
1446
F.2d
court and
posed by the district
remand
resentencing.
applicable sentencing
permit
does not
precedent
range on
is 87-108 months.
remand
previ
We have
departure in this case.
AND
VACATED
REMANDED WITH
single mother
sole
ously
that even a
held
INSTRUCTIONS.
not assert an
her children does
custody of
“extraordinary”
situation:
Judge, dissenting.
rarity in
sole,
parent is not a
A
custodial
respectfully
I
dissent.
imprisoning such a
society, and
today’s
Commission has
While
par-
separate the
by definition
parent will
stated,
majority,
as noted
apparent
It is
the children.
ent from
“[fjamily
ties and
may
parent
many cases the
that in
munity
ties are not
unwilling to care for
or
be unable
a sentence should be
children,
children will have
and that the
guidelines”, U.S.S.G.
6H1.6
relatives, friends,
or even
to live with
added),
(emphasis
this admonition has been
homes_
situa-
foster
[Defendant’s]
may
must be taken to mean that
unfortunate,
simply not
tion, though
a district court
well be situations which
ordinary.
out of
circumstances,
could,
extraordinary
under
applicable guide
properly depart from the
Brand,
Goff, 907
nesses, accept findings GLOCKER, shall Rep- Personal Elma A. they are court unless fact of the district of Edwin L. resentative Glock- give shall due def- er, clearly erroneous court’s to the district erence v. facts. guidelines to the COMPANY; Aetna Life GRACE & W.R. 3742(e)(4) 18 U.S.C. § Company, Defendants- Insurance Appellees. that, in ac- court determined forth principles set cordance with the the Second Circuit Alba, (2d nega- F.2d 1117 *4 long prison sentence impact of a tive grounds could be March Sentencing departure under readily Guidelines. While controlling upon is not
conceded that Alba circuit, nei- court concluded that cir- nor this
ther the Guidelines considering family prohibit case law
cuit’s extraordinary circumstances in
impact in depart from the
determining whether court The district Guidelines. upon a careful re- finding,
made a circumstances
view of it, including testimony
presented to impris- sentencing hearing, that Bell’s under the usual Guideline
onment in the destruction of an
might well result strong unit.
otherwise those circum-
court then concluded sufficiently extraordinary to
stances were find- departure. That
permit a downward clearly errone-
ing, my opinion, to affirm Consequently, I would vote
ous.1 district court.2
the sentence of the
court, following
'clearly
I also believe that the
erroneous’ when al-
1. “A
Hummer,
it,