*3 I. GREGORY, Before LUTTIG and HAMILTON, Judges, Circuit and Senior A. Judge.
Circuit Bill 63-year-old Rise is a pedophile who admits that he has had sexual contact with by published Vacated and remanded “several hundred” throughout children opinion. Judge GREGORY wrote the lifetime. acknowledged Rise has his men- opinion, Judge in which Senior tal illness and has stated that he does not joined. Judge HAMILTON LUTTIG believe his condition is curable. Following wrote a separate opinion concurring in the his arrest subsequent and in- three-count judgment. dictment, him charging with two counts of GREGORY, Judge: Circuit exploitation of children and one “Bill” pled guilty William Rise to two count of interstate transmission of child exploitation counts of sexual of children. pornography, pled Rise guilty to one count sentencing, At applied the district court of use of production minors of visual multiple sentencing depictions enhancements sexually explicit conduct and sentenced the defendant to 365 months’ one count of permitting a minor over imprisonment. appeal, On Rise’s counsel custody whom he had and control to be filed a brief accordance with Anders v. used in production depictions of visual California, 1396, 386 U.S. criminally S.Ct. 18 of explicit conduct. 18 U.S.C. (1967), that, L.Ed.2d stating 2251(a), 2251(b). §§ in his imposing After vari- view, there were no meritorious issues for sentencing ous enhancements under the appeal, raising three issues related to Guidelines, United States Sentencing (1) sentencing: whether the district court district court determined Rise had a total erred in denying Rise credit for accep- offense level of 39 and criminal (2) tance responsibility; I, whether category of and sentenced Rise to 240 district court abused its discretion in de- imprisonment months’ on count one and parting upward on ground two, that Rise’s 125 months on count with the sen- history significantly criminal under-repre- tences to run consecutively for a total of (3) past conduct; sented his months, criminal the upper applica- limit of the had three web Additionally, computer, and also sites on range. ble Guideline to a term of three posted photos which he children. court sentenced release. years of supervised proceeded describe each of presented to him photos federal began investigating Federal authorities agents which had been recovered from the States Secret Ser- Kise after the United computer. Cl’s from a information confiden- vice received (“Cl”), had ar- who been tial informant photos extremely themselves are possession of child receipt rested graphic exploitive; as the district January April 2001. On pornography recognized sentencing, they depict agents conducted federal humiliating degrading conduct toward *4 with his search Kise’s home consent. photographed boys children. Kise voluntary in engaged Kise discussions in oral sex with engaged while one in which he admitted with authorities another, or oral sex on him. performing exchanged pornography child that he had photos, In touching some Kise was shown with the Cl. Further- over the internet and children’s penetrating the rectums. more, himself pre- identified and two Kise photos, In other the boys Kise showed (hereinafter A” and pubescent boys “Child patterns intricate knot up bound tied in B”) photos govern- in depicted “Child “dcsnl772.jpg”), (“dcsnl773.jpg” and from the Cl. Ease knew ment received wearing associated other devices with families, respective each and Child child’s bondage and such as sadomasochism chain custody B in Kise’s had been left alone rings through collars or metal small which vacations, during school periods extended penises passed. boys’ and scrotums left cus- while Child A had been Kise’s Specifically, sentenc- photos submitted tody occasions for shorter on numerous showed, penis and a child’s scrotum spans typically evenings of time— (“tie up [child], tightly twine bound with weekends.1 tape age 9.jpg”), applied a child with duct with agents, conversation During his his expose to his buttocks so as to rectum molested A having Kise admitted Child with red (“ducktape.jpg”), a child marks B, years nine to ten and Child who were spanking from on his bare buttocks of abuse. He told during period old (“northwestern.jpg”),2 a child with a bite agents that he had taken thousands of bite, (“clear mark on his hole and buttocks children, pictures depicting his sexu- In Kise yet photo, another wrote a jpg”). children, photos as well al abuse of the of his message pedophile marker to one engaged B of Child A and Child sexual (“himi- friends on the child’s buttocks activity other. Kise told the with each “my he wrote key.jpg”), while in another agents images he stored the son, Indeed, her who traveled mother that she continuous access to Child B's admitted Kise, bondage participated acts with sepa- had on three from the Midwest to visit Kise pornography pictures had child on observed rate occasions 1999-2001. been Kise computer, and had aware that August between Kise admitted that chains, ropes whips, stored an assortment of days spent 115 February he with toys sexual in his home. Child B’s other A, boy with having contact Child up that Kise was even aware tied her mother son, thirty twenty and times. between to as she referred "innocent which knowledge play.” Despite child's such reported that Kise 2. One of children that her the fact that the mother maintains autistic, spanked paddle called "North- him with sleep child allowed is she home, granted western.” with in her her son history little hole” on the child’s buttocks with found Kise had zero criminal boy’s points, giving history toward the anus. him a pointing arrows criminal cate- photo- these and other gory Kise distributed of I. friends in electronic for- graphs to various Thus, the PSR recommended that Kise
mat. using be sentenced a total offense level I, history 34 and a criminal category of B. yielded which would have a guideline entry Following plea, Kise’s of his range of imprisonment. 151-188 months’ (“PSR”) Investigation Report Presentence However, the PSR detailed two factors prepared. The Probation Officer departure. which could warrant First it (“PO”) calculated a base offense level of that, pursuant stated to U.S.S.G. 2G2.1(a), for each count. 4A1.3(e), upward departure could be recommended that these bases PSR history warranted because Kise’s criminal be increased four levels because the vic- category under-represents the seriousness old, younger years tims than twelve were criminal of his and the likelihood 2G2.1(b)(l), U.S.S.G.§ see and recom- that he would commit further crimes.3 mended two-level increases because the *5 Additionally, it possibility noted the of an control, in supervisory minors were Kise’s pursuant enhancement to U.S.S.G. 2G2.1(b)(2). addition, § In see U.S.S.G. 5K2.8, § governing conduct that is “unusu- the PSR recommended two-level increases heinous, ally cruel, degrading brutal or to 3Al.l(b)(l) § pursuant to because U.S.S.G. the victim.” Thus, B unusually Child was vulnerable. adjusted the PSR calculated the offense At sentencing, imposed the district court 35, level for each count as and the total departure both the and the enhancement. offense level to 37 because there Despite increased the PO’s recommendation and the multiple-counts. government’s objection, were See U.S.S.G. lack of the district § Additionally, 3D1.4. the PSR recom- court did not apply the three-level reduc- that, pursuant mended to acceptance responsibility. tion for of 3El.l(a)-(b), Therefore, § a Kise receive three-level imposed sen- in accep- by using reduction offense level for his tence a total offense level of 39 responsibility. Finally, tance of II, the PO and a criminal category of 1966, Further, report The PSR detailed that in Kise had stated that Kise enlisted charged 1961, been with four counts of “lewd as- Army during in the in his enlist- Florida, 1966, sault” in and in November 1964, discharge ment and after his hospital Kise was committed to a state aas Boy abused children while involved in the meaning psychopath,” "ap- “sexual that he enjoyed being Scouts. Kise stated that he a peared suffering to be from a mental disor- gave power scoutmaster because it him over hospital der.” He was released from the being sexually children. He described active 1967, August ground on the that he had re- with several children entrusted to his care psychopathic covered from the conditions. organization, while affiliated with the and es- 1971, In Kise was admitted to the State Hos- advantage timated that he took of hundreds of pital pursuant in South Carolina to a court boys. psycho- The PSR details that his 1971 undergo psychological order to a examination logical report "voluntarily related that Kise stemming charge contributing from a pederastic talks about his incarnations and delinquency of a minor. The conduct in boys” his involvement with little and stated question attempted that Kise had to so- engaged super- that he in such activities while son, neighbor's investiga- domize his and the vising serving Army scouts and while in the tion of that crime revealed that Kise had Germany. boys neighborhood. sodomized other in the
771
for
sentencing
step
grudgingly
of 292-365
reduction
return
range
yielding a
merely go
cooperating
with authorities or
court sentenced
The district
months.
contrition.”).
through
125
one and
motions
months on count
240
Rather,
two,
consecutively,
district
to run
court is
evaluate the
count
months on
acts
years
supervised
defendant’s
and statements
deter
of three
with a term
accepted
followed. mine whether the defendant has
appeal
This
release thereafter.
for
criminal con
responsibility
his or her
Gordon,
duct. See United
v.
895
States
II.
(4th
Cir.1990);
F.2d
con-
counsel
argument,
At oral
Kise’s
White,
431-32
Cir.
v.
in de-
erred
that the district court
tended
1989).[I]n order to
a reduction un
receive
nying
client a three-level reduction
responsibili
§
for
der
3E1.1
responsibili-
offense level
ty,
by prepon
the defendant
a
prove
must
Sentencing
ty
the United States
under
that he has
derance
evidence
3El.l(a)-(b)
(2001).
§
Guidelines
affirmatively accepted per
recognized and
reduc-
two-level
provide
Guidelines
sonal
for his criminal con
tion
level where the defendant
in offense
May,
duct.” United States
F.3d
of re-
“clearly
demonstrates
(4th Cir.2004) (internal
quotation
3El.l(a).
If a
sponsibility.” U.S.S.G.
omitted). The com
marks and citations
3El.l(a),
qualifies under
defendant
guideline
mentary to the
at issue notes
greater,
is
her offense level
unique
sentencing judge is
[t]he
has
authorities
defendant
assisted
accep
to evaluate a defendant’s
position
(1)
information
timely providing complete
reason,
For this
tance
concerning his or her
government
*6
sentencing judge
determination of the
(2)
offense;
timely
in the
or
involvement
great
to
deference on review.”
is entitled
to
of his intention
notifying authorities
3E1.1,
(2001);
§
cmt. n.5
accord
U.S.S.G.
government
plead guilty,
allowing
thus
White,
F.2d at
875
ex-
to
resources that would be
conserve
trial, the
level is to be
pended on
offense
case,
In this
recommended that
PSR
level.
Id.
decreased
one additional
reduction for
Kise receive
three-level
3El.l(b).
responsibility.
of
The PO de-
acceptance
readily
immediately
that Kise
tailed
deci
review the
court’s
We
district
authorities
confessed
federal
offense
deny
sion
a reduction in the
to
above,
As
Kise admit-
April 2001.
detailed
acceptance
level
on the defendant’s
based
life
a criminal sexual
ted to his
for clear error. United
merely confessing to
rather than
predator,
(4th
254,
Pauley, 289
261
States v.
F.3d
being investi-
the crimes for which he was
denied,
1178,
Cir.2002),
cert.
537 U.S.
Furthermore,
reported
the PSR
gated.
(2003);
1007,
see
S.Ct.
sought pedophilia.4 treatment of his he believed that “children had a sexuality The object not government did to the recom- and should be able to consent to sexual acceptance of responsibility. mendation for activity. expressed He a belief that a ability child’s to consent to sexual activity post-offense the fact that Rise’s Despite began age around the of 10.”5 substantially many conduct conformed to “appropriate of the factors listed as consid- During the plea colloquy, in turning to determining erations” whether an indi- acceptance the issue of responsibility, qualifies vidual for the of re- upon court seized Rise’s state- sponsibility guidelines, reduction under the psychiatric ments from his sessions at But- grant the district court did not the reduc- “Now, ner and stated: on See, 3E1.1, e.g., tion. cmt. Kise, responsibility, Mr. you do believe n.l(a) (“truthfully admitting the conduct that a at age child ten ability has the offense(s) conviction”); comprising the give consent to an adult to have sex with n.l(b) (voluntary id. cmt. withdrawal from him?” J.A. 72. exchange This followed: associations); criminal conduct id. cmt. Honor, The Defendant: Your just—I n.l(d) (“voluntary surrender to authorities promptly after commission of the of- The Court: Yes or No? n.l(e) fense”); id. cmt. (“voluntary assis- Yes, The Defendant: Your honor. tance to recovery authorities The Court: You think that a year ten fruits and instrumentalities the of- old child can consent with an adult fense”); n.l(g) id. cmt. (“post-offense reha- to have sex? {e.g., bilitative efforts counseling drug treatment)”). Instead, during the sentenc- it, Defendant: As our society knows colloquy, questioned district court no. regarding what he prison had told you The Court: As know? psychologists regarding pedophilic be- me, The Defendant: yes, Within I know. liefs. Consistent past with Rise’s mental I it. believe evaluations, health supra note the But- The Court. You lose of re- psychiatrists ner diagnosed pe- Kise as a sponsibility. It is clear you to me dophile and concluded that he suffered *7 accepted have not depression. illegality The evaluation revealed you that Kise what were system doing. “identified a Let say, of beliefs me commonly your which are seen in comment right individuals there is com- engaged in activity sexual pletely with minors.” consistent you with what Specifically, Kise psychiatrist told the that say in report. You accep- lose 4. In the Butner SOTP for men was not from his involvement activity, in sexual program's established. goal The "is to reduce being caught but involving from his and them by risk of teaching recidivism offenders to legal proceeding, in the subsequent counsel- manage through cogni- their sexual deviance ing having part and that of their lives ex- tive-behavioral, self-management, relapse and However, posed.” the PSR also details that prevention techniques.” Federal Judicial during subsequent interview awith PO in Center, Special Needs Bulletin No. Offenders September Kise claimed the Butner (Sept.1998). Sex Offenders psychologist explanation, misconstrued acknowledged "[Kise] that he did believe 5. The PSR also during notes that the Butner that the by children had been harmed evaluation, expressed "he did not feel activity with them and that he was not that he had harmed the children 'that much’ justifying activity any his sexual with them in activity his sexual with them.” Kise ex- way.” pressed that the harm to the children “came categorical against any bar such individual You do not responsibility. tance of get acceptance receiving responsibility Diagnostic reduction. Statistical J.A. (“DSM ”) Manual Mental Disorders TV colloquy, From this it is clear is, pedophilia paraphilia defines as a —that Kise believed that children could because causing “clinically significant a disorder conduct, to sexual consent social, impairment occupa- distress or found, facto, that Kise had not ipso tional, important or other areas of func- for his conduct. accepted responsibility tioning.” Psychiatric American Associa- that determination errone We find ed.2000). tion, It DSM-IV-TR punish hold otherwise would de ous. To acknowledging *8 clear, my thing 6. that I ever wanted. It is To be Rise's belief that the life children something did did It accelerated. For 26 could and consent not rest on the I hated. [,] legal urge years fight definition of See J.A. 76-80. to consent. I did work and Rather, referring Kise was to a more abstract it.... I control it and I was able to control philosophical regardless pedophilia.”); of how don't believe there is a cure for issue— warped perverse philosophy- ("I myself every [my wheth- id. for bit of blame —of conduct].”); boys capacity had the to (stating er he believed the id. at 118 he had suf- to, in, willingly participate object choose to judgment”); id. at 120 fered from "terrible they engaged. ("I year conduct in which sexual ten olds. am attracted to nine and sorry I I'm for that. I don't know how See, know, (I'm you why that e.g., terribly sorry 7. me? I asked J.A. 117 for could— question many happy [Pedophilia] times. I would be to be what I have done. is not some- 774 See Federal possibility and the recidivism.9 deep scope
terms, admitted Rise Center, Special Needs noted Judicial illness—the PSR of mental hold his Offenders (Sept.1998) to seek No. Sex and wanted Bulletin fought against that he Offenders throughout (stating his lifet sexual deviance is treatable help for the disorder control, at Butner to if not ime,8 actively sought help that “offenders can learn eradicate, remedy the condition. and be- to their deviant interests and elsewhere ques havior,” court’s to the district for treatment to work “the response Rise’s but consent, ability to regarding participant children’s an active tion offender must be objective undeniably perverse develop- though identifying risky behavior them”). an paraphilia, without strategies individuals to address ing coping in accord with his disor response honest criminal con- disputing that Rise’s Without alarming light, even Rise’s der. In this society type duct is of the most abhorrent can consent to that children declarations knows, imme- recognize that Rise we to “statements re activity amount of his diately wrongfulness admitted to the are relevant his motivation garding [that] authori- approached conduct when sincerity of they light on the that shed so, turned and has continued to do he ties responsibility.” an asserted of his criminal over the instrumentalities Greene, v. conduct, to take sought help and he has Cir.1996). steps reforming toward his behavior support future. All of these facts our view find Rise’s statements re While in find- that the district court erred objectively misguided and garding consent accept responsibility that did not Rise that Rise disturbing, they do not mean crime. we understand the for his While of accept responsibility for his failed to expression repugnance district court’s contrary, To the Rise’s statements fenses. children Rise’s statements that he believes following case his inves and actions in this that (though can consent Rise admits government and tigation by the federal contact), legally consent to sexual cannot willing eventual detention demonstrate deny similarly pedo- Rise and situated and to sub ness to assist law enforcement re- philes mit to health treatment. On this mental duction in -such an instance would render record, actively that took it is clear Rise control, wholly inapplicable to an entire wholly if not 3E1.1 steps the initial eradicate, categorical criminals. bar thereby minimizing his disorder class of Such ("I else.”); pedophilic anything id. at am the blame 8. The record indicates Rise’s my question own stopped period approximate-
for whatever I do. I still for a conduct They mind. said I am sane. I don't believe ly years and resumed in 1999. things [pedo- when it comes to those I’m sane philia do believe I molestation]. I am remarked, per the Seventh Circuit has As ("I’m psychopath.”); guilty and I id. at 123 Posner, Judge purpose 3E1.1 is not you I will take whatever want do to me. spare gov simply guilty pleas and to induce it.”); today I id. do that here because deserve expenses, is also aimed "to re ernment ("I truly deeply sorry these at 124 was of a defen flect the reduced risk of recidivism criminal acts I have committed. I am wrongfulness by facing up dant who especially sorry deeply ashamed as well as step his conduct takes the first to better be great sad- the terrible embarrassment and Lopin havior in the future.” United States *9 brought special boys.”); upon I these id. ness (cita ski, (7th Cir.2001) ("I accept responsibility totally. at 129 do I omitted). tions already forgive and he have asked God to me I deal with what I have to deal with has. will life.”). my as a criminal the rest of great strain on the victims who have al- reconciled with the above-dis- cannot be ready deeply. suffered so This we cannot guideline, purposes cussed do. ironically such a result would moreover discourage honesty and full disclo-
serve to III. they the first pedophiles from take sure possible step toward rehabilitation reasons, For these we hold that society un- reintegration into the district court’s denial of a three-level —thus respon reduction for Rise’s of very purposes goals dermining 3El.l(a)-(b) sibility pursuant § to U.S.S.G. SOTP, 4. As supra the Butner see note Accordingly, erroneous.10 persuasively queried at oral Rise’s counsel vacate the district court’s sentence and place, if a in how argument, such bar were resentencing remand for a manner not competent attorney implore could a opinion. inconsistent with this suffering client from a mental disorder to AND REMANDED VACATED go to Butner or another correctional insti- if attor- LUTTIG, tution for a mental evaluation Judge, concurring Circuit judgment. attempts to ney knows that his client’s comply with the authorities and conform join majority opinion, I do not be- § policies full will disclosure 3E1.1 cause I do not believe that the rationale only against be the client? used holding permissible for its is one that is do, however, guidelines. under the I be- we to hold that it is not clear error Were lieve that it was error for the district court deny acceptance responsibility this deny responsibil- Rise the instance, perverse it would create a incen- reduction, ity given post-arrest Rise’s con- unin- tive within our case law. We would view, In my duct. that conduct satisfied the similarly tentionally encourage pedophiles legal requirements guide- set forth in the telling situated to Rise to refrain from lines for the I reduction. do not believe Rise’s re- past authorities about their crimes and sponses questions during to the court’s predilections seeking and from the mental plea colloquy sentencing, made under In- they severely require. health care contrition particular circumstances of stead, motivated to take would be here, and remorse evidence a failutre to trial, increasing their chances at thus ad- meaning accept responsibiity within costs, preventing ministrative the offend- guidelines. obtaining help they from the mental ers turn, require which, should translate —
into lower incidents of recidivism and society
greater protection as whole—
and, perhaps importantly, putting most upward departure extreme
10. We find no merit in the other two issues court’s con- did not raised in the Anders brief. The court duct under U.S.S.G. 5K2.8. Rise’s conduct departing upward abuse its discretion in very epitome of that which in this case is the History Category Criminal I to Criminal His- heinous, cruel, brutal, "unusually de- is Category tory Category II on I the basis that grading 5K2.8. Ac- to a victim.” under-represented Rise's admitted cordingly, we otherwise affirm the district predatory child molestation and conduct. imposition of sentence. court’s Likewise, we find no error in the district their notes individuals with pedophilia fendants like Kise seeking very counsel disorders and for “generally report an attraction to children they require. Es ing and rehabilitation of a particular age range,” complete- and — sentially, per it would establish se rule ly diagnosis consistent with Butner’s similarly that individuals situated pedophiles Kise—it states that when act from, of, yet are not cured who suffer children, urges they on their with common- qualify cannot for the mental disorders ly rationalize sexual experience, rea- reduction; they soning “that have ‘educational value’ square cannot such a determination with child, for the that the child derives ‘sexual 3E1.1, cmt. guideline. See U.S.S.G. them, pleasure’ from or that the child was n.l(g) (stating appropriate that an consid ‘sexually provocative’ that are —themes in determining eration whether a defen in pedophilic pornography.” also common reduction is dant should receive the wheth (dur- 571; Id. 302.2 see also J.A. 120 engaged “post-offense er he or she has allocution, talking “in Kise stated counseling). rehabilitative efforts” such my psychiatrist [pedophilia], about he presented The district court Kise with generally fact that brought people out the ultimately a what was Hobson’s choice: pedophiles tendency are have a who honestly answer accord with the place age of consent on what are psychiatrist’s report accep- and be denied to.”). attracted responsibility, tance of or answer dishon- short, punished In the district court estly contrary and in a manner attempting admitting Kise for to and report respon- and be denied did not remedy his mental disorder. Kise sibility an possibly incur enhancement challenge the fact that what he did was justice. for obstruction of The same sce- legally wrong,6 repeatedly rather he ex- any pedophile nario would confront simi- Kise, In larly pressed guilt situated to akin to a and remorse.7 frank is thus