*1
1061
specific present objec-
(1973).
tute for a claim of
L.Ed.2d
This
exception
830
slender
specific
tive harm or a threat of
future
prudential
to the
standing,
limits on
how-
Tatum,
harm.” Laird v.
1, 13-14,
ever,
408 U.S.
does
rigid
affect the
constitution-
2318, 2325-26,
92 S.Ct.
serting “legal rights interests Seldin, Warth v. parties.” 422
third U.S.
490, 499, 2197, 2205, 45 L.Ed.2d 95 S.Ct. Wright, also Allen v. (1975); see 343 468 UNITED America STATES of 751, 3315, 3324,
U.S. 104 S.Ct. (1984).
L.Ed.2d 556 in a narrow v. cases, Amendment class of First Su BIERLEY, Appellant. Jack W. this limitation and preme Court has relaxed No. 90-5099. litigants allowed to seek redress for viola See, Appeals, United States Court of e.g., rights tions of the of others. Ass’n, Third Circuit.
Virginia v. American Booksellers
383, 392-93,
636, 642-43,
484 U.S.
108 S.Ct.
Argued Nov.
(1988); Secretary
State
Peter T. as to which included Pa., Williamsport, appellant. gender Campana, age, activity displayed, type sought, i.e., of material photographs, (argued), Office of U.S. Barbara L. Kosik magazines, tapes. or video Scranton, Pa., appellee. Atty., checked the tapes girls, boxes for video *3 HIGGINBOTHAM, Judge, Chief Before fourteen, specifying ages nine to engaged ALITO, Judges. and Circuit SLOVITER sex, vaginal in and oral and wrote in an (any age)
interest in “females engaging in OF THE COURT OPINION App. sex with animals.” at 183.
SLOVITER, Judge. Circuit Bierley Simpson and continued to corre- Appellant Bierley pleaded guilty to Jack spond a for number of months in a friend- knowing receipt through the mail of mate- ly, chatty Simpson Bierley manner. wrote containing depictions rial visual of minors preferred exchange that “It’s that the first conduct, sexually explicit in engaging in you of be from to material ... establish 2252(a)(2) (1988). violation of U.S.C. § you you seeking that know what are and to appeals judgment He of sentence you setting also assure me that are not me imprison- term of imposing a twelve month up.” App. at 185. His letters stressed the ment. need for caution in addressing mailing and Bierley responded the material. reiterat- the district We are asked to review ing in involving his interest material nine- application court’s of fourteen-year-old girls to and described (U.S.S.G.) (1) again activity the sexual which he was fusing adjust Bierley’s offense level to viewing. August interested On a under U.S.S.G. 3B1.2 for downward Simpson responded magazines with a list of as a minimal mitigating role the offense owned, he that which were available for (2) concluding participant, and or minor apiece. graphically His letter de- $15 legal authority that it had no to poses and sexual of scribed sentencing range it had calculat- young subjects magazine. in each contained ed.
Bierley seeking price wrote a lower back quantity. expressed He concern for a I. way dealing just he safe of because had May, Simpson, W.R. an under- porno read of a man arrested “in a child postal inspector engaged a child cover mail, sting” buying tape through a sting operation, placed an ad- pornography illegal. which he said he hadn’t known was magazine vertisement in a entitled Video Simpson responded that App. at 200.1 Mania, which read: magazines were left and the four Lolita rare, of amateur erot- Wanted: Collector price a for four. $40 offered discount sell, Seeking buy, ic hard-core videos. He “concern for a safe wrote 1579-F, Simpson, trade same. W.R. explained way dealing is ... valid” and Atlanta, Drive, N.E. Geor- Monroe plain usually the material in a that he sent gia 30324. paper padded envelope without a brown response, Bierley Simpson wrote App. Bierley sent return address. at 202. expressed an interest in “non run-of- mag- payment for the issues of Lolita four material, including, the-mill” and “off-beat” azine. alia, “young App. stuff.” at 178. inter 2, 1989, February Simpson mailed On stating letter Simpson sent back a They deliv- Bierley magazines. were Lov- magazines Nymph such as Lolita February Bierley’s home on ered to I have I am look- er were “what and what thereafter, inspectors ap- Shortly postal a ing App. for.” at 180. He included a search Bierley express peared with a warrant to conduct his questionnaire letter, exciting, guess.” illegal I placed more also makes it 1. In a later written before he order, App. fact it is at wrote that "the They mag- recovered the II. residence. Discussion discovering question, azines in no other We will consider first whether the dis- pornography. child trict court erred in its calculation of charged grand jury was guideline range when it concluded that U.S. “willfully knowingly one count S.G. to 4 level allows causpng] delivered receiving] and in offense level for a mail, depictions engaging visual of minors role, inapplicable. There- conduct,” sexually explicit in violation of after, Bierley’s argument we will turn to 2252(a)(2). consulting After 18 U.S.C. § concluding that the court erred that it lawyer, Bierley pleaded guilty. with his legal authority did not have the Report prepared by The Presentence downward from the Guideline’s recom- *4 under the Probation Officer Sentenc- sentencing range. mended the base offense ing Guidelines calculated 2252(a)(2)
level for of 18 U.S.C. violation § Adjustment A. 13, 2G2.2; increased the of- at U.S.S.G. § proper by fense level two levels because the mate- The standard of for a review depictions prepubescent rial of mi- adjust included district court’s conclusion that an nors, 2G2.2(b)(l); adjusted inapplicable U.S.S.G. ment under the Guidelines is § level downward two the offense levels depends on the mixture of fact and law guilt acceptance admission of of re- necessary to that court’s determination. 3El.l(a). sponsibility, The dis- U.S.S.G. Ortiz, 878 F.2d 126- adjust- trict court decided that a downward (3d Cir.1989); 27 see 18 U.S.C. 3742 mitigating ment for a role the offense (1988). grounded Where the decision is inapplicable. the ultimate was of- basis, essentially an factual defer to the we was determined to be 13. fense level findings only district court’s and reverse alleged for clear error. if the history, Because had no criminal legal, error is the issue should be reviewed History Category he was in I and Criminal Id.; de novo. see also United Stated sentencing eigh- faced a of twelve to Cir.1989); Daughtrey, 874 F.2d The con- teen months. district court then Mejia-Orosco, of legal sidered the issue whether it had United States v. Cf . (5th Cir.) (role power from that 220-21 range. pointed determination, It number of factors offense is a factual albeit thought depar- that it merited a downward complex; a district court decision not to ture, but stated: apply adjustment an based on such a deter error), only mination reversed for clear The Court is of the view that the totali- — denied, U.S.-,
ty
of the ...
circumstances
cert.
109 S.Ct.
permit
(1989).
are not sufficient to
this Court to
App. at 226. B, Part the United States imposed court therefore district pursuant to 28 months, imprisonment term of of twelve 994(d)(9)(West Supp.1990), pro- U.S.C.A. § sentence within the calculated lowest vided for of a defendant’s of- $3,000 range, and levied a fine of and an predicated fense level on his or her role in obligatory special assessment of $50. 5H1.7. If the the offense. See U.S.S.G.§ plays aggravating defendant an jurisdiction Bierley’s ap- have over
We
offense,
upward adjustment may be
judgment
an
peal from the district court’s
3742(a)
3B1.1, Aggravating
pursuant
sentence
to 18
warranted under
U.S.C. §
(1988).
Guideline,
(1988)
provides:
and 28
Role
U.S.C. §
Based on the defendant’s role in the of-
example, other persons criminally respon-
fense,
increase
offense level as fol-
sible for the
may
offense
not have been
lows:
apprehended, may
or
cooperated
government
(a)
charged.
never been
organizer
If the defendant was an
or
Thus, there are situations where a
activity
leader of a criminal
in-
sole
defendant
subject
to adjustment
volved
participants
five or more
or
was
offense level
extensive,
upward or downward
otherwise
increase
under
lev-
Chapter 3,
Part B.
els.
this
could be viewed
taking part
as
in concerted
(b) If the defendant
manager
was a
or
activity involving
agreement
to mail and
supervisor (but
organizer
not an
or
receive material depicting
children
sexu-
leader)
activity
and the criminal
ally explicit conduct. However, Simpson,
volved five or more participants or was
only person
with whom Bierley dealt,
extensive,
otherwise
increase
3 lev-
government
was an
agent
undercover
who
els.
criminally responsible. Thus,
was not
Bier-
(c) If
organizer,
the defendant was an
ley
defendant,
the sole
he was
leader, manager,
supervisor
also the sole “participant,” as that term is
criminal
other than described
defined in the Guidelines.
(a)
(b),
increase
levels.
*5
We must therefore consider wheth
U.S.S.G. 3B1.1
§
adjustment
er an
for role in the offense is
A defendant’s
role as a minor
available under
3B1.1 or 3B1.2 for the
§§
participant
or minimal
in
activity
concerted
participant
sole
in an offense. The Intro
justifies
adjustment
a downward
under
ductory
Commentary Chapter
to
Part B
Mitigating
3B1.2. The
Role Guideline
§
explains that
an offense is commit
“[w]hen
provides:
by
ted more
participant,
than one
3B1.1
§
Based on the defendant’s role in the of-
(or neither) may
or
3B1.2
apply.” U.S.
§
fense,
decrease
offense level as fol-
intro,
B,
S.G. Ch. Pt.
comment. Similar
lows:
ly,
commentary
to
3B1.4 states that
§
(a)
par-
If the defendant was a minimal
“[m]any offenses are
by single
committed
a
ticipant
in
activity,
criminal
de-
individual or
of roughly
individuals
crease
4 levels.
equal culpability so that none of them will
(b)
partici-
If the defendant was a minor
adjustment
receive an
under [Part B].”
pant in any
activity,
criminal
decrease
3B1.4,
U.S.S.G.
comment. This commen
§
2by
levels.
tary strongly suggests
require
a threshold
(a)
(b),
In
falling
cases
between
and
de- ment of
criminally respon
more than one
crease
3 levels.
participant
any adjustment
sible
for
in of
U.S.S.G. 3B1.2
§
3B1.2,
fense level under
3B1.1 or
wheth
§§
Aggravating
Mitigating
Both the
downward,
upward
er the
or
“participant,”
Role Guidelines use
term
despite
explicit
of an
absence
statement
Commentary
which is defined
3Bl.l(c)
effect in
3B1.2.
§
§
‘participant’
3B1.1 as follows: “A
is a
§
adjust
This follows because the
person
criminally responsible
who is
for the ments authorized for role in the offense are
offense,
commission of the
need
culpability
partic
directed to the relative
of
3B1.1,
have been convicted.” U.S.S.G. §
ipants
group
conduct. See United
comment,
1).
(n.
Daughtrey, 874
216.
States v.
F.2d at
As
district court concluded that the
the court
stated
United States v. Gor
Guideline,
Mitigating
don,
(4th Cir.),
Role
was not
cert.
——
denied,
-,
applicable
“because
111 S.Ct.
only
(1990),
App.
“mitigating
adjust
Defendant
this crime.”
at L.Ed.2d 98
only
the fact
apply only
that there is
ments
where there has been
necessarily
group
particular
one “defendant” does not
mean
a
conduct and
defendant
only
“participant.”
there
one
For
is less
other members of the
than
degree
commentary
a
group
“participant”
distinction Guidelines
as to
such
him
purposes
upward adjustment
made at
between
for
under
should be
Gordon,
3Bl.l(c)
participants.”
explicitly
In
and the other
where word was not
included),
the district
the court
reversed
court’s
reh’g granted,
to do we review
issue as a matter of
law.
may
...
specific
factor
be listed as a
[A]
offense characteristic under
guide-
one
general
A
court has
au
line
not
guidelines. Simply
under all
thority
from the Guidelines if
because it was not listed does not mean
aggra
that there
an
“the court finds
exists
may
there
not be circumstances
vating
circumstance of a
when that factor would be relevant to
kind,
degree,
adequately
or to a
taken
sentencing.
Sentencing
into consideration
Com
U.S.S.G. 5K2.0.
formulating
guidelines.”
mission in
Furthermore,
portion
of the Intro-
3553(b);
U.S.C.A.
see also U.S.S.G.
duction to the Guidelines entitled “The
If the court determines that the
5K2.0.
(Pol-
Major
Guidelines’ Resolution of
Issues
Sentencing
fully considered a
Commission
Statement),”
icy
Sentencing
Commis-
Guidelines,
formulating
factor in
departure policy
sion addresses its
in some
may
court
from the Guidelines
detail:
disagrees
even if it
with the Commission's
atypical
When a court
finds
one
See, e.g.,
determinations.
States v.
United
particular guideline linguisti-
to which a
Pharr,
(3d Cir.1990) (depar
cally applies
signifi-
but where conduct
drug dependency
ture unavailable because
norm,
cantly differs from the
the court
rejected by Sentencing
considered and
may
consider whether
Guidelines).
formulating
Commission
warranted ...
Commission does
[T]he
atypical,
If a case is
or for some other
factors,
not intend to limit the kinds of
scope
reason falls outside the
of cases con-
anywhere
whether or not mentioned
sidered
guidelines,
else in the
that could consti-
fairly expansive language
Guidelines have
grounds
tute
in an un-
allowing
discretionary departure:
usual case.
depar-
warrant
Circumstances
adopted
The Commission has
this de-
guidelines pursuant
ture from the
to [18
First,
parture policy for two reasons.
it
cannot,
3553(b)]
very
by their
U.S.C. §
prescribe
single
is difficult to
set of
*7
nature,
comprehensively
be
listed and an-
guidelines
encompasses
the vast
alyzed
controlling
deci-
advance.
potentially
of human conduct
rele-
and to what extent
sion as to whether
sentencing
to a
decision. The
vant
Com-
departure is warranted can
be made
recognizes
mission also
the initial
Any
may
the courts....
case
involve
guidelines
set of
need not do so. The
in addition to those identified that
factors
permanent body,
is a
em-
Commission
given adequate
have not been
considera-
powered by law to write and rewrite
tion
the Commission. Presence of
progressive changes,
guidelines, with
departure
any
such factor
warrant
many years. By monitoring
over
when
circum-
guidelines,
from the
under some
guidelines
depart
courts
from the
stances, in
discretion of the sentenc-
analyzing
doing
their stated reasons for
Similarly,
may de-
ing court.
the court
so and court decisions with references
time,
thereto,
though
over
will
part
guidelines,
from the
even
guidelines
specify
to refine the
departure
is taken into
able
the reason
departures
precisely
more
when
should
guidelines (e.g.,
in the
as a
consideration
permitted.
not be
and should
characteristic or other
specific offense
that,
Second,
adjustment), if the court determines
the Commission believes
circumstances,
to de-
despite
legal
the courts’
freedom
light
of unusual
report
tially supported by
probation
officer's
unlikelihood of
criminal conduct in the
the
future;
home;
objects
Bierley's
Bierley’s
attribution of his involvement
unusual
employment
job
strong
collecting
steady, long-term
in a
he would
in the offense to his
interest in
par-
highly
objects,
if incarcerated.
unusual
an interest at least
lose
they
atypical
particular
will not
one to which a
guidelines,
do
part from
very
guideline linguistically applies but where
so
often.
significantly
conduct
differs
1,
A, 4(b) (emphasis
Pt.
add-
Ch.
U.S.S.G.
A,
norm,”
1,
4(b),
they
Pt.
Ch.
ed).
fortiori
departure
atypical
in an
case
authorize
Ryan,
v.
866 F.2d
States
United
adjustment
otherwise be
where an
would
(3d Cir.1989),we read those sections to
but, for
authorized for the same conduct
“suggest
that the
court has
...
reasons,
linguistic
Guide-
good deal of discretion in
given
been
say,
That is to
apply.
line does not
guide
deciding whether to
linguistically
fact that
3B1.2
fortuitous
lines,
part
because the Commission seeks
Simpson
apply
could not
because
and,
time,
departures
to monitor such
over
criminally responsible “partici-
was not a
guidelines.”
create more accurate
See also
pant” does
render
conduct
Kikumura,
v.
918 F.2d
United States
that of a defen-
significantly different from
(3d Cir.1990);
v.
United States
might
dant in similar circumstances who
Roberson,
Cir.),
601-02
In-
qualify
adjustment.
for an offense role
-
—
denied,
cert.
S.Ct.
deed,
little sense to authorize de-
it makes
(1989);
Second, departure by analogy apply the would still to a defendant involved in Guideline, Mitigating Role in the activity Offense concerted “partici- another only apply pant.” merely can in the unusual case We hold that it is also avail- activity”3 ground when there is “concerted able as a departure by analogy only “participant.” one If there if the activity is more concerted is with someone “participant,” than one usually “participant” as is the who does not meet the defini- example, government when a tion. agent drug operation, infiltrates a there course, Bierley Of entitled to a departure by analogy can be no because departure by analogy for a adjustment guideline applicable of its Role the Offense if the dis- own force. trict court finds that he would have been Finally, we believe the courts’ actions entitled to such an Simpson had justify will qualified “participant.” Commission’s confidence as a Unlike the dissent, “despite legal the courts’ freedom we choose not to decide that issue guidelines, they will not do because we believe the district court should 1, A, 4(b). very Depar- so often.” Ch. Pt. address it in the first instance.4 Out of an Receipt through parent the mail can be viewed as Commission "con- part rejected” ground of concerted with a sender. sidered and *9 fact, grand jury charged Bierley identify. may the indictment which we The second be some- “willfully knowingly receiving] compelling. may with and more what The dissent be n causing] by stating question delivered mail visual de- accurate in that at the in 'time pictions engaging sexually explicit of minors in sentencing applying the court would § 3B1.2 conduct." have been limited to examination of the defen- charged. dant's role in the offense it arguments. obligation 4. The dissent makes two The first is the district court that has the initial conclusion, concededly applying Sentencing is its which is not based of unwilling the Guidelines. We are Guidelines, any Sentencing adopt approach, on commentary, statement in the the dissent’s which notes, application ap- usurps by that it in is effect the district court's function caution, in in we note that “minor” or “minimal” role the offense
abundance question. may not base its determina- district court Bierley’s in role the offense on as to tion I. in- receipt of the material
the view that is less than volved in this offense 3553(b), sentencing a Under U.S.C. § treats them sending it.5 2G2.2 Guideline § impose court must a sentence within the to the Both offenses contribute equally. in “unless the range set out the Guidelines which the statute exploitation of children aggravat- finds that there exists an court designed society. kind, to root out from our of a ing or circumstance degree, adequately a taken into con- III. Conclusion by Sentencing sideration Commission formulating guidelines.” See United held that the district court did We have Pharr, 129, 132 States was, concluding err in that 3B1.2 miti- It clear to me that the is itself, adjust- not the basis for a downward by gating identified the ma- circumstance Bierley’s mitigating role in the ment for jority in and re- this case was considered only “par- was the offense because jected by Sentencing as a Commission held, however, ticipant.” We reduction when the Com- basis for sentence authority have the district court does Chapter Pt. B of the mission framed sentencing depart from the Guidelines Guidelines, comprehensively which deals determines, by analogy Bierley if it adjustments to the level based with offense 3B1.2, Bierley’s quali- would that conduct upon a defendant’s role in the offense. Simpson fy as “minor” or “minimal” had “participant.” a We will therefore been Chapter Pt. B—3B1.1 Two sections judgment of sentence and vacate specifically adjust- with and 3B1.2—deal that this case to the district court so mand upon the defendant’s role rela- ments based it can resentence consistent participants in tive to that of the other opinion. this group activity. (Aggravat- Section 3B1.1 Role) ing permits upward adjustments for ALITO, dissenting. Judge, Circuit leaders, managers, supervi- organizers, sors; majority permits 3B1.2 downward ad- The holds Section pre- justments partici- for “minimal” or “minor” may depart below the court apply only Sentencing pants. provisions Guidelines if the Both of these scribed played that a defendant to offenses “committed more than one concludes court Pt. B Introducto- participant.” “minor” or “minimal” role ry Commentary. participant A is volving “criminally responsible” defined no other criminally only government person-who responsible as “a participants undercov- offense, of the but need agents. majority remands so that for the commission er may convicted.” Section sentencing judge determine wheth- not have been Therefore, appropriate Application in the Note 1. as the ma- er such a jority correctly recognizes, a defendant’s case. I for two reasons. present dissent Act, adjusted First, level not be under Sentencing Reform 18 offense 3553(b), 3B1.1 or Section 3B1.2 if the and the Guide- Section U.S.C. § ground participants other in the offense are indi- preclude departure on the lines Second, viduals, government as undercover majority. the de- such identified “criminally respon- clearly play operatives, did not who are not this case fendant unlikely Bierley's professing deciding Bierley’s an inter- did 5. It is offense any departure qualify objects him for based on not analogy est in the of unusual is rele- collection adjustment guideline. event, We be- to the if vant to his role in the offense. is not ours to make in lieve that determination arises, court will have to that issue the district instance, prefer that it be referred the first ap- determine whether letters which court, mistakenly back to the district pear appendix were inconsistent with that power it did not have the to reach the believed *10 intent. departure. issue of
1071 observed, present ly In the since there “Section sible.” 3B1.4 makes the ba- “criminally responsible” par- other adjustments spelled were no sis for role out the cannot ticipants, Chapter defendant obtain 3B exclusive.” United v. States ma- Zweber, 705, (9th under Section as the Cir.1990). 913 F.2d 708 jority properly holds. language To borrow the preemption, 3, Chapter occupies Pt. B the field and however, majority recognize, The fails to leaves no room for judicially the crafted 3, precludes B Pt. also a de- ground departure by outlined the ma- parture based on a defendant’s role in jority. group partici- if the conduct none of other pants “criminally responsible.” When sum, apparent because it is that the the to limit Commission decided Sections Sentencing rejected Commission the by 3B1.1 and 3B1.2 to offenses committed ground departure by identified the ma- criminally responsible par- more than one jority, departure on by that basis is barred ticipant, necessarily the Commission decid- 3553(b). 18 U.S.C.
ed that no sentence should be based on a defendant’s role rela-
allowed II. participants tive to other if none of those if sentencing Even court were allowed participants “criminally respon- other upon based a defendant’s role in applicability This sible.” limitation activity involving concerted no other crimi- 3B1.1 3B1.2 was not “for- of Sections nally responsible participant, no such de- tuitous,” (Types- majority suggests as the parture permitted in this would be case. In 16), cript necessarily the result at but was Kikumura, United v. 918 States F.2d of a choice. deliberate 1084, Cir.1990), 1111-1114 it was held Furthermore, I do not think that sentencing departs that a court that failed to realize Commission could have generally guided by Guidelines must be category participants who are any analogous provisions. Guidelines Ac- “criminally responsible” would consist cordingly, recognizes majority (Typ- as the overwhelmingly agents. 19), of undercover escript court at that de- agents has Use of undercover become parts ground on the very important common and method of majority identified would still be activity, vestigating clandestine criminal employ methodology required to set out drug such as the cases that now dominate and 3B1.2. Sections 3B1.1 Under e.g., federal criminal docket. Re- See methodology, no would be al- Study port the Federal Courts Com- lowed in this case because the defendant (1990). The number of federal play mittee 36 plainly did not a “minor or “minimal” involving categories partici- cases other role in the offense. responsible—
pants criminally who are not insane, infants, A. who such as the individuals duress, innocently and those who act under involving like this one offenses cases undoubtedly criminal conduct—is small aid 1, 1990, committed before November five cases comparison with the number of that the defendant’s role circuits have held involving agents. it undercover must in relation to the offense be assessed abundantly seems clear to me that Zweber, v. of conviction. United States must have considered and Commission 709; Pettit, at v. 913 F.2d United States ground jected precise (10th Cir.), 1341 cert. de 903 F.2d majority. identified — -, nied, S.Ct. decision, view, (1990); v. Tetz majority’s my also L.Ed.2d 159 United States (7th Cir.1990); Guidelines, 896 F.2d violates Section 3B1.4 of laff Williams, provides other case United States “[i]n (D.C.Cir.1989); [i.e., Sections 3B1.1- 926 those covered Williams, F.2d 3B1.3], adjustment is made for role in no Gordon, 895 F.2d Ninth recent- But see United States v. the offense.” As the Circuit *11 purchase largest Under this method- made his from world’s Bierley producer would not be entitled to a arid distributor of ology, commercial in because his role com- pornography, sentence reduction child his role the offense receipt mitting the offense of receiving pornography child would not conviction— (18 pornography child U.S.C. “minor” or “minimal.” 2252(a)(2)) be viewed as “minor” —cannot B. Bierley “minimal.” saw an advertise- core offering “rare amateur hard vid- ment Introductory An amendment to the Com- specifi- responded He with a letter eos.” B that was added mentary to Pt. por- cally seeking particular types of child 1, 1990, prescribes a effective November including depictions prepubes- nography, methodology different for as- somewhat engaged vaginal and oral cent females in the offense. sessing a defendant’s role bestiality. In re- sex acts and acts of methodology in employ But even if we this catalog, placed sponse, he was sent a case, Bierley not be present would still order, pornography the child and received entitled to a sentence reduction. clearly requested. he These facts commentary states that new “[t]he willingly partic- Bierley fully and show determination of a defendant’s role receiving por- child ipated the offense of all offense is to be made on the basis of ... Therefore, sentencing judge nography. 1B1.3(a)(1)- conduct included under Section focusing solely upon the offense of receiv- (4).” single-count as In a case such this pornography, could not reason- ing child one, generally conduct consists of all this ably Bierley’s participation conclude that relating to the offense of conviction acts culpability was or “mini- moral “minor” that the defendant aided and abetted and undercover mal” relative to that of the reasonably conduct commit- all foreseeable they por- characters agents or the whom any jointly under- ted furtherance of trayed. lB1.3(a) taken criminal conduct. Section sure, sentencing judge might To be simplified Application and Note person purchases that a who child conclude terms, therefore, methodology pre- the new large pornography pornography from a permits a scribed the Commission sen- ring receipt is convicted for of child only at tencing judge to look not the defen- pornography is less than the lead- role in the offense of conviction but dant’s analysis may rings. of the This sort of ers criminal con- also at his role all related majority has in mind in re- be what he found duct for which could been resentencing. manding this case for See criminally responsible as an aider and abet- (“[I]t Typescript at 17 makes little sense conspirator. tor or as departure for a defendant who authorize focus, Despite its somewhat broader this a nationwide child procured material from methodology clearly produces new ring but not for a defendant pornography present for under same result postal supplier was an undercover whose methodology only conduct that the this however, analysis, inspector.”). Any such sentencing judge could consider would be contrary to method- squarely would be receipt transportation of the items sentencing judge to focus ology requiring a Bierley ordered pornography of child in the of- solely upon a defendant’s role shows, and obtained. As far as the record method- of conviction. Under this fense question on the occasion in himself participation than ology, any conduct other purchasing and receiv- nothing did besides could not be in the offense of conviction Moreover, ing pornography. even if child organization if the considered. even purchase por- his from a real he had made Bierley made his or individual from whom govern- than a nography distributor rather engaged in other more seri- purchase had sting, ment he could not have been found conduct, that additional crimi- ous 'criminal broader to have aided abetted part of the seller would nal conduct on the by the distributor or to in the offense of crimes committed mitigate Indeed, together with the distribu- if had have undertaken conviction. even *12 participate tor to broader criminal activity. under the new method- McMillan, Dawn McMILLAN and Devin ology prescribed by now legal guardians, minor his Barbara judge present case Ford, S. Ford and Edward Jr. required Bierley’s
would still be to assess solely respect purchase role to the STATE MUTUAL LIFE ASSURANCE receipt pornography. of child such Under COMPANY OF AMERICA. assessment, my judgment, Bierley reasonably playing cannot be viewed as Appeal of TRANS WORLD “minor” or a “minimal” role. AIRLINES, INC. 90-1462, Nos. 90-1463.
C. United Appeals, States Court of Finally, appropriateness if the aof down- Third Circuit. Bierley’s ward based on judged, Argued the offense is as 18 Nov. U.S.C. 3553(a)(2) directs, by reference to the Decided Dec.
sentencing goals set out 18 U.S.C. deserts, deterrence, 3553(a)(2) just inca- —
pacitation, training, and treatment —it is justified.
clear that no such
Bierley’s Guidelines offense level was entirely receipt
based on what he did— pornography involving prepubescent child Unlike, example, conspiracy
minors.
defendant, offense level whose conspira-
creased due to conduct other 2X1.1), (see Bierley’s
tors Section offense group
level did not take into account con- view, therefore, my
duct. it would be
irrational to reduce sentence on ground he is than less agents or the whom
undercover character
they pretending punish- were If the be. prescribed by
ment
ceipt pornography proper light of child sentencing goals
of the set out in 18 U.S.C. (and 3553(a)(2) we are not free to over-
rule the Commission’s resolu- question), then the
tion of this prescribed by
punishment the Commission
(no less) punish- proper more and no is the
ment in this case.