Lead Opinion
OPINION
Thе United States appeals the district court’s decision to grant defendant Robert Parish an eight-level downward departure from the sentence prescribed by the Sentencing Guidelines after Parish pleaded guilty to two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In imposing the sentence, the district court gave two reasons for its downward departure. First, the district court found that Parish’s conduct was “outside of the heartland” of the offense. Second, the district court concluded that Parish was highly susceptible to abuse in prison. Because we find no abuse of discretion in the district court’s rulings, we affirm the sentence.
FACTUAL AND PROCEDURAL HISTORY
Parish worked for a company based in Bozeman, Montana. In May of 1999, Parish’s employer terminated his employment because it discovered that he was spending considerable time on the Internet and had abused his travel expenses. Parish returned a laptop computer that his employer had provided to him for use in his job.
While cleaning out the laptop’s hard drive, another employee discovered files on the hard drive that appeared to contain child pornography. After consulting with legal counsel, the company turned the computer over to the Bozeman Police Department, which in turn sent the computer to the FBI.
The FBI analyzed Parish’s laptop computer and found that, from November 1998 through May 1999, Parish had routinely visited numerous pornographic sites, some of which included child pornography. When Parish visited these sites, files were automatically downloaded into the Temporary Internet Cache folder on the hard drive. Pictures go into the Temporary Internet Cache folder when they appear on the screen, whether the user wants them or not, unlike intentionally downloaded pictures. Approximately 9,000 images were found on Parish’s hard drive, including 1,300 images that appeared to be child pornography. Although the vast majority of these images depicted adоlescent girls, some images depicted graphic, violent sexual exploitation of very young children.
Parish was arrested for possessing and receiving child pornography. After his arrest, FBI agents seized the computer that Parish was using at his new job. Again, analysis of that computer yielded evidence that Parish had visited numerous pornographic websites, including some sites with pornographic images of children. In addition, a search of Parish’s e-mail account revealed an exchange of messages with a 15 year-old female high school student in North Carolina.
Parish was indicted on two counts of Possession of Child Pornography, 18 U.S.C. § 2252A(a)(5)(B), and two counts of Receiving Child Pornography, 18 U.S.C. § 2252A(a)(2). He reached an agreement with the government in which he pleaded guilty to two counts of Possession of Child Pornography. In preparation for sentencing, the probation department calculated that Parish’s offense level was 20 and that his criminal history category was I. The probation department did not recommend a departure from the prescribed guideline range of thirty-three to forty-one months.
The district court held a lengthy sentencing hearing. Parish’s father-in-law, mother-in-law, neighbor, and wife testified on his behalf. Dr. Michael Joseph Scolat-ti, a clinical psychologist and the co-director of the sex-offender treatment unit at the Missoula Regional Prison, also testified on Parish’s behalf. Dr. Scolatti had examined Parish, and he testified at length about the minimal likelihood of recidivism in Parish’s case and about the relative seriousness of Parish’s conduct, as compared to the conduct of other offenders. Dr. Scolatti concluded that Parish’s conduct was less culpable than the conduct of the “еight [or] nine” other child pornography offenders in the federal system with whom Dr. Scolatti was familiar. After comparing Parish’s conduct to the conduct of both sex offenders in general and child-pornography possessors in particular, Dr. Scolatti opined that Parish’s conduct was “outside the heartland” of the offense.
The government also presented testimony from several witnesses. The government focused on three images found on Parish’s computers that were particularly graphic or violent, two of which depicted children who appeared to be about six years old. The government also stressed that Parish had taken steps to act on his fantasies by exchanging e-mails with the North Carolina girl. Finally, the government presented testimony that Parish had icons on his desktop that served as “short cuts” to pornography sites.
After the government presented its case, the district court recalled Dr. Scolatti. Dr. Scolatti testified that nothing he had heard from the government’s witnesses changed his view. He again opined that Parish’s conduct was outside the “heartland” of the offense.
Ultimately, the district court departed downward eight levels in sentencing Parish. The court relied on Dr. Scolatti’s testimony and determined that Parish’s conduct was outside the heartland of U.S.S.G. § 2G2.4, which applies to possession оf child pornography.
The government appealed the sentence.
DISCUSSION
We review for abuse of discretion a district court’s decision to depart from the Sentencing Guidelines. United States v. Sablan,
A district court may depart from the applicable Guideline range if it 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.” U.S.S.G. § 5K2.0 (policy statement) (quoting 18 U.S.C. § 3553(b)). In Koon, the Supreme Court explained how a district court should decide whether to depart from the range prescribed in the particular Guideline.
The district court here concluded that a downward departure was warranted on two grounds, one arising from characteristics of the offense and the other arising from the characteristics of the offеnder. See U.S.S.G. § 5K2.0 (policy statement) (describing departure factors as “offense” or “offender” characteristics). As for the former, the court concluded that Parish’s conduct was outside the “heartland” — the
The “Heartland” of the Offense of Possessing Child Pornography
In United States v. Stevens,
Here, the district court performed precisely the inquiry that we set out in Stevens. The district court asked Dr. Sco-latti to compare Parish’s conduct with the conduct of a “typical” offender under this same statute. Dr. Scolatti concluded that Parish’s conduct was significantly less serious than that of offenders in other cases involving possession of child pornography. Among other things, Dr. Scolatti noted that Parish had not affirmatively downloaded the pornographic files, indexed the files, arranged them in a filing system, or created a search mechanism on his computer for ease of reference or retrieval. Rather, he testified, the images in Parish’s possession had been downloaded automatically into his Temporary Internet Cache file.
Dr. Scolatti also described the content of the images in Parish’s possession as “pretty minor” compared to the content of images possessed by other offenders. Dr. Scolatti described Parish’s conduct as “on the minimal end” of the scale, when compared to the conduct of a typical child-pornography offender.
On the basis of Dr. Scolatti’s testimony and on the court’s own sentencing experience, the district court determined that Parish’s conduct was outside the heartland of the offense targeted by the Guideline. The district court did not abuse its discretion in making that determination. The court appropriately compared Parish’s pos-sessory conduсt with the possessory conduct of the typical child-pornography offender, and the record supports the court’s
Even if reasonable minds could differ, we cannot say that the district court abused its discretion in determining that Parish’s offense conduct was outside the heartland. To the extent that the evidence conflicted, it was up to the district court to resolve those conflicts. United States v. Working,
Susceptibility to Abuse in Prison
A defendant’s unusual susceptibility to abuse by other inmates while in prison may warrant a downward departure. Koon,
The reason for the district court’s consideration of Parish’s stature as a factor in his susceptibility is unclear. According to the presentence report, Parish is 5'11" and weighs 190 pounds. The reference to Parish’s stature may have been related to the way he carried himself. Perhaps the judge thought Parish looked smaller than the probation officer thought he looked, or looked physically weak. The district court may also have been relying on the opinion of Dr. Scolatti, a psychologist who worked with sex offenders in the prison system. Dr. Scolatti testified that, due to “... especially his stature_ I think he’s a prime candidate tо experience a lot of grief.” To the extent that stature can be considered something more than merely physical height and weight, it is something that is better evaluated by a district judge than by an appellate panel that has never seen the defendant. There is no clear error in this determination.
Demeanor is clearly a factor in Parish’s susceptibility to abuse that is more appropriately assessed by the district court than by the appeals court. Here, the district court had the opportunity to watch Parish for several hours during the sentencing hearing. There was also considerable testimony about his demeanor, including Dr. Scolatti’s description of him as “positive and caring” and the doctor’s explanation that these are not good characteristics to have in prison. Again, we find no clear error.
As for the issue of Parish’s naivete, the district court did not explain what it meant by this term. The testimony provides clues, however. Not only does Parish not have a criminal record — a factor that is already incorporated into the sentencing calculations as criminal history — he also has no apparent history of criminal activity, other than the instant offense, or criminal associations that have not led to convictions.
Naivete could also refer to his actions in the crime itself. The fact that there is no evidence that Parish ever intentionally downloaded any pornography and did in any way organize the materials on his computer suggests that he may not have understood that he was coming into possession of these images, rather than merely viewing them. The trial judge may have been referring to an appearance and demeanor supporting naivete, subtleties that a cold record cannot display. That this naivete or lack of sophistication was such a general characteristic that it might make Parish less able to protect himself from ill-meaning inmates is a consideration within the discretion of the district court. Again, Parish’s naivete is a factual determination better made by a district court judge than by an appellate court. We decline to overturn the district court’s determination that Parish’s stature, demean-
The last factor cited by the district court as increasing Parish’s susceptibility to abuse was the nature of the offense itself, namely the possession of child pornography. We need not reach the question whether the nature of the offense by itself can justify a downward departure by heightening an individual’s susceptibility to abuse in prison. Insteаd, we address the question whether it is permissible for the district court to consider the nature of the offense in combination with other factors increasing the susceptibility to abuse. We conclude that it is. Such an approach allows the district court to take into account all the circumstances of the crime and the defendant and to make an appropriate individualized determination. See Koon,
Here, in response to the district court’s questions, Dr. Scolatti testified that individuals convicted of sex offenses involving minors, including possessors of child pornography, came to prison with a “bad label” and were in for “a difficult time.” The likelihood of abuse by other prisoners as a result of the crime for which he was convicted, when considered with Parish’s individual characteristics, is sufficient to permit a departure for susceptibility to abuse. See, e.g., Koon,
In finding Parish to be susceptible to abuse, the district court relied on four different factors. This is not “mere membership in a class of offenders.” Cf. United States v. Kapitzke,
CONCLUSION
We find no abuse of discretion in the district court’s conclusion that Parish’s conduct was “outside the heartland” of the offense, nor do we find an abuse of discre
AFFIRMED.
Notes
. The concept of a “heartland” comes from the introduction to the Sentencing Guidelines:
The [United States Sentencing] Commission intends the sentencing courts to treat each guideline as carving out a "heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
U.S.S.G. ch. 1, pt. A(4)(b).
. The government does not argue that the split sentence fashioned by the district court was inappropriate.
. We are not persuaded by Parish’s argument that the government waived its objection to the departure or that it is barred from challenging the sentence by principles of judicial estoppel. Parish insists that the government admitted at sentencing that the facts support this departure. Considering the governmеnt's comment in context, we disagree. The government simply acknowledged the court's discretion to grant a departure based on Dr. Scolatti's testimony, but then went on to argue vigorously against its doing so. This acknowledgment was not a waiver. Rather, it was honest advocacy.
. Portions of Dr. Scolatti’s testimony described what we deemed irrelevant in Stevens. For example, Dr. Scolatti discussed whether Parish was likely to act on his fantasies, which takes the comparison beyond mere possession offenders. However, after the district court asked specifically about possessors of child pornography, the witness repeated his earlier oрinion: Within that limited class of offenders, Parish's conduct was minimal.
. We recognize that some of our sister circuits have held that the nature of the offense is an impermissible factor in determining susceptibility to abuse in prison. See, e.g., Wilke,
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority’s conclusion that the district court acted within its discretion in determining that Defendant’s offense conduct lay outside the heartland. I dissent, however, from the holding that the district court properly departed based on Defendant’s susceptibility to abuse in prison.
By condoning the district court’s consideration of the nature of the offense in deciding to depart downward, the majority distorts the nature of the Guidelines and joins the wrong side of a circuit split. The majority’s message is that if society so roundly condemns a particular crime that even other criminals are especially appalled by it, the “average Joe” who perpetrates the crime should spend less than the average time in prison for that crime. I am unable to join in an opinion sending such a message. In my view, the district court erred.
The majority and I begin with the same initial premise: A defendant’s extraordinary and peculiar susceptibility to abuse by other inmates while in prison may warrant a departure. Koon v. United States,
The majority and I differ on how that premise applies to a case like this one. Here, the district court found that Defendant, “like the officers in Koon,” was susceptible to abuse in prison because of a “combination” of factors: Defendant’s “stature, ... demeanor, ... [and] naivete,” plus the “nature of the offense.” The record does not support a finding of unusual susceptibility based on those factors.
1. Demeanor, Stature, and Naivete
The district court did not explain what it meant by Defendant’s “demeanor” and “stature.” The majority finds some ambiguity in the reference to “stature”
Here, the record does not support a departure based on Defendant’s physical, mental, or emotional state. Defendant is 34 years old and in good physical health. He stands 5 feet 11 inches tall
The district court’s reliance on Defendant’s “naivete” appears to refer to Defendant’s unfamiliarity with the criminal justice system — what his own expert witness, Dr. Scolatti, referred to as “his lack of experience with the criminals.”
The record does not support a finding of extraordinary naivete. Rather, the record reflects exactly the kind of naivete that would be expected of an offender with Defendant’s criminal history. Describing Defendant’s “lack of experience with the criminals,” Dr. Scolatti stated: “[H]e’s led a pretty normal, average Joe life; he hasn’t been involved in crime, he hasn’t been involved in drugs, he hasn’t been involved in your typical anti-social personality. He’s been a very law-abiding citizen — aside from this.” This kind of “naivete” — the “average Joe[’s]” absence of a prior criminal history and corresponding lack of experience with criminals — is accounted for fully in the criminal history guidelines.
The record offеrs no other justification for a departure based on Defendant’s naivete. When the district court asked Dr. Scolatti whether Defendant’s risk of harm inside the prison — “given his characteristics” — would be “different than the ordinary person involved in sex offenses with children,” the answer was:
[N] o, they all come in with a bad label, and it’s a difficult time for all of them. And we certainly have a wide range of guys, from very tough convicts to average people.
(Emphasis added.) In the circumstances, the district court erred in departing for susceptibility to abuse in prison based on naivete. See Drew,
2. Nature of the Offense
The Guidelines do not address whether the nature of the offense, possession of child pornography, is an encouraged or discouraged factor on which to base a departure. However, our sister circuits that have considered this precise issue have held uniformly that the nature of the offense alone cannot support a departure. United States v. DeBeir,
The district court noted that sex offеnders, especially sex offenders who target children, are routinely subjected to abuse in prison. That may be so.
DeBeir,
I thus would join our sister circuits in holding that a district court may not depart downward based solely on its conclusion that the nature of the offense is likely to subject the defendant to abuse while in prison and, to this extent, again agree with the majority. Majority op. at 1031-32. But, I would go further than the majority and hold that the nature of the offense may not be considered at all in examining the nature of the offender, such as the factors that mаy make a particular offender extraordinarily vulnerable. Compare Wilke,
In this case, the result should be the same whether or not the “nature of the offense” is part of the calculation. Even if the nature of the offense is cоnsidered, the combination of factors does not warrant a departure for extraordinary susceptibility to abuse while in prison. Defendant’s is not that “extremely rare” situation contemplated by the Guidelines in which a combination of singularly benign factors creates a collective record warranting departure. U.S.S.G. § 5K2.0 (commentary).
3. Conclusion
In summary, the district court erred when it based a downward departure in part on Defendant’s susceptibility to abuse in prison. Although I find no abuse of discretion in the district court’s conclusion that Defendant’s conduct was outside the heartland of the offense, the district court erred in relying on Defendant’s susceptibility to abuse in рrison to support its downward departure. Because I cannot tell from the record whether the district court would have departed downward or, if so, whether it would have departed to the same extent had the court considered only the offense conduct, I would vacate and remand for resentencing. I therefore dissent.
. “Stature” means, in a physical sense, "natural height” while in a standing position. Webster's Third New Int'l Dictionary 2230 (unabridged ed.1993). Defendant is 5 feet 11 inches tall, which is unremarkable.
“Stature” also can mean one's standing in the community. Id. The only mention of "stature” in the testimony was Dr. Scolat-ti’s statement that a pedophile with Defendant's "stature, his lack of experience with the criminals,” would be "a prime candidate to experience a lot of grief.” If Dr. Scolatti and the district court used "stature” in the social sense, they must have been referring to his "average Joe,” normal, middle-class life in the community— which (according to Dr. Scolatti) differentiates him from some of the "tough convicts” in prison but, of course, does not differentiate him from most citizens. Whether "stature” refers to physical or social characteristics, Defendant is unremarkable.
. The majority speculates: "Perhaps the judge thought Parish looked smaller than the probation officer thought he looked.” Majority op. at 1031. Defendant’s actual height is an undisputed fact, so it is irrelevant whether the district court and the probation officer had different thoughts about how tall he looked to them.
. The majority speculates that "naivete” could refer to Defendant's lack of sophistication regarding computers. Majority op. at 1031. Assuming that this is what the district court meant, and assuming that Defendant's failure to download the images pertains to offender as well as offense characteristics, there is no logical nexus to susceptibility to abuse in prison. No witness suggested, nor does logic or common experience suggest, that the absence of sophisticated computer skills plus a criminal's assumption that he would not get caught bear on susceptibility to abuse in prison.
. As noted, Dr. Scolatti testified that child-pornography offenders “all come in with a bad label, and it's a difficult time for all of them.” (Emphasis added.)