F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 18 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 00-6085
GLEN RAY NEAL,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-99-131-R)
Teresa Brown, Assistant Federal Public Defender (William P. Earley, Assistant
Federal Public Defender, on the brief), Oklahoma City, Oklahoma, for Defendant-
Appellant.
Edward J. Kumiega, Assistant U.S. Attorney (Daniel G. Webber, Jr., United States
Attorney, with him on the brief), Office of the U.S. Attorney, Oklahoma City,
Oklahoma, for Plaintiff-Appellee.
_________________________
Before LUCERO and McKAY, Circuit Judges, and BROWN, District Judge. *
_________________________
*
The Honorable Wesley E. Brown, United States Senior District Judge for the
District of Kansas, sitting by designation.
McKAY, Circuit Judge.
_________________________
Defendant-Appellant Glen Ray Neal pleaded guilty to possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the
district court departed upward from the applicable sentencing guideline based on
Appellant’s “engag[ing] in a pattern of activity involving the sexual abuse or
exploitation of a minor,” a specific offense characteristic under the child
pornography trafficking guideline. U.S. S ENTENCING G UIDELINES M ANUAL §
2G2.2(b)(4) (1998). 1
Appellant timely appealed, challenging the district court’s
decision to depart.
I. Background
On June 28, 1999, officers from the Elk City, Oklahoma, police department
questioned Appellant in his apartment regarding the alleged sexual abuse of a
minor that had taken place there. During the interview, the officers requested and
received permission to search the home, upon which they discovered ten printed
images of nude minors engaged in sexually explicit conduct.
1
The U.S. Sentencing Guidelines Manual (hereinafter “U.S.S.G.”) §
1B1.11(a) states: “The court shall use the Guidelines Manual in effect on the date
that the Appellant is sentenced.” Appellant was sentenced on February 24, 2000.
Br. of Appellee at 2. Therefore, all citations to the Guidelines Manual in this
opinion refer to guideline amendments that were incorporated effective
November 1, 1998.
-2-
In the course of an FBI investigation, Appellant confessed that he had found
the pornographic images on the Internet and printed them three years prior to his
arrest. In addition, Appellant also admitted that: (1) on July 25, 1998, he pleaded
guilty in state court to aiding a minor in a drug crime and was prohibited from
contact with minors that were unaccompanied by a parent; (2) three minor males,
whom the investigation designated as John Does #1, 2, and 3, had spent varying
amounts of time at Appellant’s apartment, in violation of his probation; and (3) he
told the minors that he was a homosexual, wrestled and played with them, and
slept in the same bed with one of them (John Doe #2) on two separate occasions.
Nevertheless, Appellant denied that he had ever engaged in a sexual relationship
with any of them. Tr. at 22-25.
The three minor males, however, informed the FBI of Appellant’s repeated
attempts to initiate intimate relationships with them. John Doe #1 stated that he
saw Appellant rub his genitalia on the back of John Doe #2, and that soon
thereafter Appellant attempted to kiss and offered to engage in oral sex with John
Doe #1. John Doe #2 revealed that Appellant had shown him computer images of
two men having sex and touched John Doe #2’s genital area on occasions,
including one time at a Motel 6. John Doe #3 said that Appellant had touched his
leg in the past, endeavoring to engage in some sort of sexual relationship with him.
The morning after the incidents involving John Doe #1 occurred, John Doe #1
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reported the episode to his mother, who called the police. Tr. at 11-21.
Following Appellant’s guilty plea to child pornography possession, the
government moved for an upward departure from the applicable sentencing
guideline, U.S.S.G. § 2G2.4, based on Appellant’s molestation of the three minors.
Section 2G2.4 did not identify child molestation as a part of the guideline, its
enhancements, or related commentary. However, § 2G2.2, the relevant guideline
for trafficking in child pornography, included a specific offense characteristic
requiring a five-level enhancement for “engag[ing] in a pattern of activity
involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(4).
The government argued that the court should depart upward from § 2G2.4 because
the Sentencing Commission had failed to consider the sexual abuse of a minor as a
specific offense characteristic for child pornography possession as it had for child
pornography trafficking. The district court agreed with the government: “I think
it must have been an oversight that Section 4 under 2G2.2 was not also listed . . .
under 2G2.4.” Tr. at 60. The court then departed from the sentencing range of 24
to 36 months by five levels, sentencing Appellant to 51 months of imprisonment.
Appellant objects to the district court’s upward departure on three fronts.
First, Appellant contends that the court based its upward departure on an
impermissible factor, since the Commission could not have failed to consider the
sexual abuse of a minor in such a proximately located offense characteristic.
-4-
Second, Appellant asserts that his possession of the child pornography was “totally
irrelevant” to the allegations of sexual abuse. Third, Appellant argues that his
actions were insufficient to constitute “engag[ing] in a pattern of sexual abuse or
exploitation of a minor” under U.S.S.G. § 2G2.4(b).
II. Standard of Review
In United States v. Collins , 122 F.3d 1297, 1302-03 (10th Cir. 1997) , we
identified four inquiries that must be made in reviewing departure decisions
following the Supreme Court’s significant decision in Koon v. United States , 518
U.S. 81 (1996):
[I]n determining whether the district court abused its discretion in
departing from the Guidelines, appellate courts after Koon must
evaluate: (1) whether the factual circumstances supporting a departure
are permissible departure factors; (2) whether the departure factors
relied upon by the district court remove the Appellant from the
applicable Guideline heartland thus warranting departure; (3) whether
the record sufficiently supports the factual basis underlying the
departure; and (4) whether the degree of departure is reasonable.
Collins , 122 F.3d at 1303. Appellant challenges the district court’s decision
regarding the first and third of these inquiries. 2
2
Appellant does not dispute the district court’s determination that “engaging
in a pattern of activity involving the sexual abuse or exploitation of a minor”
removed Appellant from the applicable guideline heartland, nor does he contest
the reasonableness of the degree of departure. Therefore, the second and fourth
inquiries in Collins are satisfied and require no discussion. See Collins , 122 F.3d
at 1308 n.8.
-5-
As instructed in Koon , we review departures from the Sentencing Guidelines under
a “unitary abuse of discretion” standard. Collins , 122 F.3d at 1302 (citing Koon ,
518 U.S. at 96-100). “A district court’s decision to depart from the Guidelines . . .
will in most cases be due substantial deference, for it embodies the traditional
exercise of discretion by a sentencing court.” Koon , 518 U.S. at 98. However,
“whether a factor is a permissible basis for departure under any circumstances is a
question of law, and the court of appeals need not defer to the district court’s
resolution of the point.” Id. at 100.
III. Impermissible Factors
Appellant first contends that the district court used an impermissible factor
as a basis for its upward departure. The court noted that the Commission had
made “the sexual abuse or exploitation of a minor” a specific offense
characteristic for trafficking in child pornography, but not for child pornography
possession. This, the court held, was “an oversight” by the Commission. Tr. at
60. The court then departed from the child pornography possession guideline,
using the exploitation offense characteristic. Appellant disputes the district
court’s conclusion, reasoning that it was incorrect to assume that the Commission
failed to consider exploitation as an offense characteristic for child pornography
possession since the two guidelines were listed consecutively and directed to the
same general topic.
-6-
Appellant’s contention is reasonable. This court has declared on a number
of occasions that sentencing guidelines are to be “interpreted as if they were a
statute or court rule.” United States v. Gay , 240 F.3d 1222, 1230 (10th Cir. 2001)
(citing United States v. Checora , 175 F.3d 782, 790 (10th Cir. 1999)). Under
normal statutory construction, we would not assume that the failure to include
some item in a statute is an oversight that the court may correct. In fact, in light
of the Commission’s inclusion of the “sexual abuse or exploitation of a minor” in
the guideline immediately prior to the applicable guideline in this case, we could
as easily assume the opposite—that the Commission specifically considered the
same offense characteristic for both and intentionally excluded it from the child
pornography possession guideline. See True Oil Co. v. C.I.R. , 170 F.3d 1294,
1300 (10th Cir. 1999) (noting that when courts interpret statutory language, they
look not only at the specific statute at issue but also examine the statute in context
with related statutes); ABC Rentals of San Antonio, Inc. v. C.I.R. , 142 F.3d 1200,
1207 (10th Cir. 1998) (same). However, Congress and the Commission have
articulated a decidedly different method for determining when the Commission has
failed to “consider” a factor in a particular guideline, and thus when a district
court may depart from it.
Under the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et
seq. , 28 U.S.C. §§ 991-98, Congress authorized district courts to depart from the
-7-
Guidelines if “the court 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.” 18 U.S.C. § 3553(b).
In ascertaining whether a particular circumstance was “not adequately taken into
consideration,” courts must “consider only the sentencing guidelines, policy
statements, and official commentary of the Sentencing Commission.” Id. The
Commission, in turn, declares that except for certain “forbidden” factors, 3
it “does
not intend to limit the kinds of factors, whether or not mentioned anywhere else in
the guidelines, that could constitute grounds for departure in an unusual case.”
U.S.S.G. ch. 1, pt. A, introductory cmt. 4(b).
The Commission does, however, provide two separate lists of what courts
have labeled “discouraged” and “encouraged” factors. “Discouraged” factors, 4
located in subpart 5H1 of the Guidelines, are specific factors that the Commission
determined were “not ordinarily relevant to the determination of whether a
sentence should be outside the applicable guideline range.” U.S.S.G. ch. 5, pt. H,
The “forbidden” factors are race, sex, national origin, creed, religion,
3
socioeconomic status, 1995 U.S.S.G. § 5H1.10; lack of guidance as a youth, §
5H1.12; drug or alcohol dependence, § 5H1.4; and economic hardship, § 5K1.12.
4
The “discouraged” factors are: age, § 5H1.1; educational and vocational
skills, § 5H1.2; mental and emotional conditions, § 5H1.3; physical condition, §
5H1.4; employment record, § 5H1.5; family ties and responsibilities, and
community ties, § 5H1.6; military, civic, charitable, or public service,
employment-related contributions, and record of prior good works, § 5H1.11.
-8-
introductory cmt. “Encouraged” factors, 5
listed in Part 5K, are specific factors
provided by the Commission “to aid the court by identifying some of the factors
that the Commission has not been able to take into account fully in formulating the
guidelines.” U.S.S.G. § 5K2.0. Courts have also referred to factors that are
“unmentioned in the Guidelines.” Koon , 518 U.S. at 96.
Based on these four types of factors—forbidden, discouraged, encouraged,
and unmentioned—the Supreme Court in Koon provided a series of questions to
assist courts in determining whether a sentencing factor is legally permissible:
If the special factor is a forbidden factor, the sentencing court cannot
use it as a basis for departure. If the special factor is an encouraged
factor, the court is authorized to depart if the applicable Guideline
does not already take it into account. If the special factor is a
discouraged factor, or an encouraged factor already taken into account
by the applicable Guideline, the court should depart 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. If a
factor is unmentioned in the Guidelines, the court must, after
considering the “structure and theory of both relevant individual
guidelines taken as a whole,” decide whether it is sufficient to take
the case out of the Guideline’s heartland.
Koon at 95-96 (emphasis added); see also Collins , 122 F.3d at 1302.
5
The “encouraged” factors are: death, § 5K2.1; physical injury, § 5K2.2;
extreme psychological injury, § 5K2.3; abduction or unlawful restraint, § 5K2.4;
property damage or loss, § 5K2.5; weapons and dangerous instrumentalities, §
5K2.6; disruption of governmental function, § 5K2.7; extreme conduct, § 5K2.8;
criminal purpose, § 5K2.9; victim’s conduct, § 5K2.10; lesser harms, § 5K2.11;
coercion and duress, § 5K2.12; diminished capacity, § 5K2.13; public welfare, §
5K2.14; voluntary disclosure of offense, § 5K2.16; high-capacity, semiautomatic
firearms, § 5K2.17; and violent street gangs, § 5K2.18.
-9-
The Court’s formulation contemplates the majority of potential departure
factors; however, it fails to take into account the question posed to us in this case:
how do courts treat those factors that are neither forbidden, discouraged,
encouraged, nor “unmentioned” in the Guidelines? In other words, how should
courts evaluate the legal permissibility of factors that have not been designated as
“forbidden,” “encouraged,” or “discouraged,” yet are found in separate guidelines,
policy statements, and commentary? This is the focus of our inquiry, since
Appellant challenges the district court’s use of a specific offense characteristic
from a separate guideline as a departure factor. It is also an inquiry we are obliged
to undertake, as the Guidelines’ Application Instructions charge us to examine
other parts of the Guidelines for direction in sentencing: “Refer to Parts H and K
of Chapter Five, Specific Offender Characteristics and Departures [which contain
the forbidden, discouraged, and encouraged factors], and to any other policy
statements or commentary in the guidelines that might warrant consideration in
imposing sentence .” U.S.S.G. § 1B1.1(i) 6
(emphasis added). As instructed, we
look to other policy statements and commentary in the Guidelines for further
guidance.
Initially, the Introduction to the Guidelines Manual notes that many of the
6
The Commission later reiterates that “the commentary may suggest
circumstances which, in the view of the Commission, may warrant departure from
the guidelines.” U.S.S.G. § 1B1.7.
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guidelines specifically direct the court to other guidelines in sentencing. The
Commission describes “guided” departures as “involv[ing] instances in which the
guidelines provide specific guidance for departure by analogy.” U.S.S.G. ch. 1, pt.
A, introductory cmt. More pertinent to our inquiry, however, is the Commission’s
policy statement in subpart 5K2.0, entitled “Grounds for Departure”:
[A] factor may be listed as a specific offense characteristic under one
guideline but not under all guidelines. Simply because it was not
listed does not mean that there may not be circumstances when that
factor would be relevant to sentencing. For example, the use of a
weapon has been listed as a specific offense characteristic under many
guidelines, but not under other guidelines. Therefore, if a weapon is a
relevant factor to sentencing under one of these other guidelines, the
court may depart for this reason.
U.S.S.G. § 5K2.0. Thus, the Commission has unequivocally approved the district
courts’ use of specific offense characteristics of other guidelines as bases for
departure from the applicable guideline at sentencing. These factors are in one
sense “encouraged” by the Commission, since the Commission has approved them
for use in other guidelines. However, they are distinct from the category of factors
that courts have called “encouraged,” in that they are not specifically enumerated
by the Commission in Part 5K. 7
These factors are also neither forbidden,
7
Some circuits have parroted the Koon definition of “encouraged” factors in
a manner that could be misleading. See United States v. Tocco , 200 F.3d 401,
432 (6th Cir. 2000); United States v. Velez , 185 F.3d 1048, 1053 (9th Cir. 1999);
United States v. Carter , 122 F.3d 469, 473 n.4 (7th Cir. 1997). The Court in
Koon stated: “Encouraged factors are ‘those the Commission has not been able to
take into account fully in formulating the guidelines.’” Koon , 518 U.S. at 94
(continued...)
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discouraged, nor unmentioned in the Guidelines. Instead, they are identifiable in
policy statements, commentary, specific offense characteristics, base offense
levels, and other areas of the Guidelines. Aligning ourselves with the language
used by the Commission, we refer to these departure factors as “analogous”
7
(...continued)
(quoting U.S.S.G. § 5K2.0). This definition, taken out of context, could be
understood as inviting courts to regard all factors that have not been taken into
account by the Commission as “encouraged” for departure. The overbreadth of
this interpretation is apparent. In reality, the Court specified that this definition
applied to the particular factors cited in Part 5K. Before rendering the definition,
the Court stated: “The Commission provides considerable guidance as to the
factors that are apt or not apt to make a case atypical, by listing certain factors as
either encouraged or discouraged bases for departure.” Koon , 518 U.S. at 94. A
panel of this circuit has even mislabeled an analogous factor as “encouraged”
under this broad definition. See United States v. Shumway , 112 F.3d 1413, 1428
(10th Cir. 1997). Because that mischaracterization was dicta, we are not bound
by it. See, e.g., Bates v. Dep’t of Corrections, 81 F.3d 1008, 1011 (10th Cir.
1996) (holding that “a panel of this Court is bound by a holding of a prior panel”
but “is not bound by a prior panel's dicta.”); see also OXY USA, Inc. v. Babbitt,
230 F.3d 1178, 1184 (10th Cir. 2000) (defining dicta as “a statement in a judicial
opinion that could have been deleted without seriously impairing the analytical
foundations of the holding—that, being peripheral, may not have received the full
and careful consideration of the court that uttered it”) (quoting United States v.
Crawley, 837 F.2d 291, 292 (7th Cir. 1988)). Fortunately, a few of our sister
circuits have recognized the specificity of the “encouraged” factors following
Koon . See United States v. Schulte , 144 F.3d 1107, 1109 (7th Cir. 1998)
(“Encouraged factors, by contrast, are explicitly contemplated as grounds for
departures.”); United States v. McBroom , 124 F.3d 533, 538 (3d Cir. 1997) (“The
factors contained in subpart 5K2 are the so-called ‘encouraged factors.’”),
Collins , 122 F.3d at 1301 (noting that “the Guidelines list factors that are
encouraged”) (emphasis added); United States v. Rivera , 994 F.2d 942, 948 (1st
Cir. 1993) (“In certain circumstances, the Guidelines offer the district court,
which is considering whether to depart, special assistance, by specifically
encouraging departures. Part 5K lists a host of considerations . . . .”) (emphasis
added).
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factors. See U.S.S.G. ch. 1, pt. A, introductory cmt. (discussing “departure by
analogy”).
In cases predating Koon , this Circuit sanctioned the use of analogous factors
as bases for departure. In so doing, we have allowed district courts to borrow
from other guidelines both offense characteristics and base offense levels. In
United States v. Baker , 914 F.2d 208, 211 (10th Cir. 1990), cert. denied , 498 U.S.
1099 (1991), we held the use of a firearm to be a valid factor for an upward
departure for receiving explosives in interstate commerce under § 2K1.6, even
though that factor was only listed as a specific offense characteristic in § 2B3.1(b).
In United States v. Davis , 912 F.2d 1210 (10th Cir. 1990), we held that the
quantity of drugs involved, a base offense level under § 2D1.1, was a valid basis
for an upward departure in sentencing the defendant under § 2D1.8—“Renting or
Managing a Drug Establishment.” See also United States v. Sardin , 921 F.2d
1064, 1066 (10th Cir. 1990) (reiterating our holding in Davis for one of Davis’s
co-defendants). In United States v. Keys , 899 F.2d 983 (10th Cir.), cert. denied ,
498 U.S. 858 (1990), this court approved the use of the Appellant’s prison
disciplinary record, a base offense level under § 2P1.2, as the basis for an upward
departure on the charge of weapons possession while in prison. We there held:
“The mere fact that a factor is mentioned for one offense does not mean that it
cannot be applied to other offenses.” Keys , 899 F.2d at 990. In all four of these
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cases, we cited to the Commission’s statement (quoted above) regarding analogous
factors. See U.S.S.G. § 5K2.0.
In addition, we have repeatedly held that analogizing to other guidelines is a
primary method by which district courts may justify the reasonableness of their
departure. See, e.g. , United States v. Bartsma , 198 F.3d 1191, 1196 (10th Cir.
1999) (“In Collins , we clearly reaffirmed our existing case law requiring a district
court to ‘specifically articulate reasons for the degree of departure’ using any
‘reasonable methodology hitched to the Sentencing Guidelines,’ including
‘extrapolation from or analogy to the Guidelines.”); United States v. Whiteskunk ,
162 F.3d 1244, 1253 (10th Cir. 1998) (reaffirming that Koon did not affect our
pre- Koon “approach requiring the district court to state with particularity and with
reference or analogy to the Guidelines the basis for its degree of departure.”). We
find an even clearer basis in the Guidelines for allowing the use of analogous
factors as actual departure factors. Thus, we hold that analogous factors are
legally permissible bases for sentencing departures.
Although none of our sister circuits have discussed the use of analogous
factors in relation to the Koon formulation, our holding today is in accord with
those circuits that have examined whether analogous factors may be permissible
departure factors. A number of courts have held pre- Koon that drug quantity, a
base offense level under § 2D1.1, was a proper basis for departure under other
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guidelines. See United States v. Cullens , 67 F.3d 123, 125 (6th Cir. 1995); United
States v. Williams , 895 F.2d 435, 438 (8th Cir. 1990); United States v. Crawford ,
883 F.2d 963, 966 (11th Cir. 1989); United States v. Ryan , 866 F.2d 604, 607-08
(3d Cir. 1989); United States v. Correa-Vargas , 860 F.2d 35, 37-38 (2d Cir. 1988).
The Third Circuit has also approved the analogous use of role in the offense under
§ 3B1.2, United States v. Bierley , 922 F.2d 1061, 1069 (3d Cir. 1990), and
obstruction of justice under § 3C1.1, United States v. Cherry , 10 F.3d 1003, 1009-
10 (3d Cir. 1993). In discussing whether single acts of aberrant behavior may be
analogously used, the Ninth Circuit noted: “Section 5K2.0 also suggests that
courts should reason by analogy from one guideline to the next.” United States v.
Fairless , 975 F.2d 664, 668 n.2 (9th Cir. 1992).
Recently, the First Circuit confronted a factual situation and sentencing
departure nearly identical to the instant action. See United States v. Amirault , 224
F.3d 9 (1st Cir. 2000). In Amirault , the Appellant pleaded guilty and was
sentenced under §2G2.4 for the possession of child pornography. The district
court departed based on Appellant’s alleged sexual assaults on two minor females,
using § 2G2.2(b)(4) as an analogous factor. The First Circuit stated:
This approach was sound. A sentencing court is free to make suitable
comparisons and draw plausible analogies in considering whether to
depart from the guideline sentencing range. So it was here: although
the guideline applicable to the offense of conviction was section
2G2.4 (the possession guideline), not section 2G2.2 (the trafficking
guideline) . . . the district court was entitled to examine factors set out
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in section 2G2.2(b) in order to evaluate the appropriateness of a
departure. Simply because a specific offense characteristic is listed
explicitly in one guideline but not another does not mean that the
factor may not be relevant to the departure calculus in respect to an
offense under the latter guideline.
Id. at 12 (citing U.S.S.G. § 5K2.0).
We agree with the reasoning of the First Circuit. Applying this analysis to
the instant action, Appellant disputes the district court’s use of an analogous factor
in his sentence. The applicable guideline, § 2G2.4, contains no reference to child
molestation. Child molestation is not a forbidden, discouraged, or a listed
“encouraged” factor. It is also not “unmentioned” in the guidelines, since it is a
specific offense characteristic—the “sexual exploitation of a minor”—in § 2G2.2,
the child pornography trafficking guideline. In this situation, the Commission has
acknowledged that the exploitation offense characteristic in the trafficking
guideline may be used analogously as a basis for departure from the possession
guideline. Thus, we hold that “the sexual abuse of a minor” was not an
impermissible factor in supporting the district court’s upward departure.
IV. Relevant Conduct
Appellant next protests that the alleged child molestation is an
impermissible factor because it is “totally irrelevant” to the charge of child
pornography possession. He contends that U.S.S.G. § 1B1.3 allows the district
court to consider only “relevant conduct,” that we have rejected “totally
-16-
irrelevant” conduct as permissible factors in United States v. Haggerty , 4 F.3d 901
(10th Cir. 1993), and that there is no evidence linking his possession of these
images to the alleged child molestation. This argument was also pursued in
Amirault . See Amirault , 224 F.3d at 11-12. Appellant’s contentions are erroneous
for a number of reasons.
First, the district court did not base its departure on a determination that the
child molestation was “relevant conduct” under § 1B1.3; instead, the court
concluded that the acts warranted an upward departure under section 5K2.0. See
id. at 11. The court in Amirault held:
The relevant conduct guideline is not directed specifically at section
5K2.0 departures. Rather, its purpose is to determine adjustments to
the base offense level, taking into account a defendant’s overall
behavior. Adjustments and departures are different species, dissimilar
both in purpose and kind. Not surprisingly, therefore, upward
departures are allowed for acts of misconduct not resulting in
conviction, as long as those acts, whether or not relevant conduct in
the section 1B1.3 sense, relate meaningfully to the offense of
conviction.
Id. at 12 (citations omitted) . We adopt the First Circuit’s reasoning in this case.
Second, even if we were considering Appellant’s sexual assaults under the
relevant conduct guideline, Congress and the Commission have authorized
sentencing courts to consider a wide variety of a defendant’s acts in imposing
criminal sentences. Congress has stated: “No limitation shall be placed on the
information concerning the background, character, and conduct of a person
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convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.
Even § 1B1.3, which Appellant cites, defines “relevant conduct” as “all acts and
omissions committed . . . by the defendant . . . that occurred during the
commission of the offense of conviction.” U.S.S.G. § 1B1.3(a). Appellant has
admitted to possessing the child pornography seized from his file for three years
before and during the time that the molestation took place. His molestation easily
falls within the purview of matters relevant to the district court’s decision.
Third, our holding here does not run afoul of our dictum in Haggerty . In
that case , we hypothesized in a footnote that “if we were presented with a case
where a district court departed based on a totally irrelevant circumstance, we
would not hold such a departure authorized merely because the circumstance was
of a kind omitted by the Guidelines.” Haggerty , 4 F.3d at 903, n.2. Obviously, we
are not dealing with a circumstance omitted by the Guidelines, but rather a
specifically contemplated offense characteristic from a separate guideline,
analogized to Appellant’s situation. More importantly, we do not approve of the
factor merely because it was omitted from the applicable sentencing guideline, §
2G2.4, but rather because this factor and its analogous application were sanctioned
by the Commission, as discussed above.
Finally, while Appellant did not show his child pornography to the children
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he molested, his molestation is not “totally irrelevant” to his child pornography
possession. Congress has prohibited the possession of child pornography
specifically because viewing such images often leads to molestation. 8
The district
court found that Appellant showed images of sexually explicit (adult) conduct to a
ten-year-old prior to molesting him. Tr. at 19. John Doe #1’s allegations of
Appellant’s molestation were what prompted investigators to search Appellant’s
home, which led to the discovery of the child pornography in his files. PSR § 4.
We have no reservation in holding that Appellant’s child molestation was not
“totally irrelevant” to his child pornography possession.
V. Factual Basis for Departure
Finally, Appellant argues that the district court’s departure was erroneous
because the government did not adequately prove that he “engag[ed] in a pattern of
activity involving the sexual abuse or exploitation of a minor,” U.S.S.G. §
8
“Congress specifically found that “child pornography is often used as part
of a method of seducing other children into sexual activity; a child who is
reluctant to engage in sexual activity with an adult, or to pose for sexually
explicit photographs, can sometimes be convinced by viewing depictions of other
children ‘having fun’ participating in such activity.” In addition, “prohibiting the
possession and viewing of child pornography will encourage the possessors of
such material to rid themselves of or destroy the material, thereby helping to
protect the victims of child pornography and to eliminate the market for the
sexual exploitative use of children . . . .” Child Pornography Prevention Act of
1996, Pub. L. No. 104-208, Div. A, Title I, § 101(a), at § 121 subsection 1, 1996
U.S.C.C.A.N. (110 Stat.) 3009, 3009-26 reprinted in 18 U.S.C. § 2251 note
(“Congressional Findings”).
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2G2.2(b)(4), which the court used as a departure factor. In determining whether a
defendant’s actions justify departure under a particular factor, we must discern
“whether the record sufficiently supports the factual basis underlying the
departure.” Collins , 122 F.3d at 1303. In so doing, we “ascertain whether the
circumstances cited by the district court to justify departure actually exist in the
instant case,” requiring us to “search only for a sufficient factual basis to justify
departure.” United States v. White , 893 F.2d 276, 278 (10th Cir. 1990). The
district court’s factual findings will be overturned only if they are clearly
erroneous. See id. (citing 18 U.S.C. § 3742(e)).
The district court found that there was “certainly very strong circumstantial
evidence that Mr. Neal is a pedophile, that he had young children in his home, and
he was exploiting these young children.” Tr. at 60. The court examined the
findings of the FBI investigation, which revealed that Appellant made an indecent
proposal to John Doe #1, touched the genitals of John Doe #2 on multiple
occasions, showed John Doe #2 images of two men having sex, and touched the
leg of John Doe #3 for the purpose of having a sexual relationship with him. After
reviewing the record, we cannot say that the district court’s finding that Appellant
“engag[ed] in a pattern of activity involving the sexual abuse or exploitation of a
minor” was clearly erroneous.
For the foregoing reasons, the decision of the district court is AFFIRMED.
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