United States v. Goldberg

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 9 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
v.
No. 01-5052
GARY SYD GOLDBERG,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 00-CR-117-BU)

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, Department
of Justice, Washington, D.C. (Thomas Scott Woodward, United States Attorney,
and Susan K. Morgan, Assistant United States Attorney, Northern District of
Oklahoma, Tulsa, Oklahoma, with him on the briefs), for Plaintiff-Appellant.

Robert Nigh, Jr. (Clark O. Brewster with him on the brief), Tulsa, Oklahoma, for
Defendant-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HENRY, Circuit Judge.

EBEL, Circuit Judge.
 Gary Syd Goldberg was convicted of possession of child pornography in

violation of 18 U.S.C. § 2252(a)(2). At sentencing, the district court made an

eight-level downward departure from the United States Sentencing Guidelines

(“Guidelines”) offense level, resulting in a reduction from twenty seven to thirty

three months of imprisonment with two to three years probation to an actual

sentence of no imprisonment with five years of probation, including six months of

electronically monitored home detention, participation in a mental health

treatment program, and 3,900 hours of community service (fifteen hours per

week). This appeal is brought by the Government to challenge the district court’s

downward departure.

The central issue before us is whether the degree of the downward

departure was an abuse of the district court’s discretion. We conclude that the

district court’s rationale for the degree of departure was erroneous in two

respects. First, the district court failed to apply a reasonable methodology hitched

to the Guidelines, erroneously justifying the degree of departure by the resulting

sentence. Second, the court’s determination to impose a non-incarceration

sentence was predicated on impermissible factors already accounted for in the

Guidelines. We vacate the sentence and remand.

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 I. FACTS

Various government agencies together sponsored a website designed to

ensnare persons with an interest in illegal child pornography. Goldberg, who was

employed as chief executive of the American Corn Growers Association, received

an email inviting him to visit the site. He did so, and on August 2, 2000 he

ordered five graphic child pornography videos. The record makes clear that

Goldberg purchased these videos with the purpose of obtaining sexually explicit

videos of minors. The tapes were delivered on August 14, 2000. Shortly

afterward, Goldberg had begun viewing one of the films when an Oklahoma City

postal inspector and other officers knocked on his door, search warrant in hand.

The arresting officers advised Goldberg of his Miranda rights, and

Goldberg agreed to waive his rights and cooperate fully. He told the officers that,

in addition to readily found images on his desktop computer, he also had child

pornographic images on computer discs in an upstairs office closet and on a

laptop computer that was then being repaired. Although there is some dispute as

to precise numbers, it is clear that the officers ultimately recovered several

hundred illegal sexually explicit still or video images of minors.

Since his arrest, Goldberg has demonstrated remorse and a determination to

rehabilitate himself and to deter similar offenders. He voluntarily entered into

individual treatment for the issues leading to his illegal acts, seeing a therapist

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eleven times in the five months prior to his sentencing. He volunteered to give a

four-hour interview to provide information for a research project aimed at

preventing internet crimes against children. He volunteered to write a grant for

funds for a cyber pornography prevention project of the Augustus Institute.

Finally, he volunteered to provide a taped interview for a nationally syndicated

radio columnist, an interview ultimately not broadcast.

The presentence report (PSR) assigned Goldberg an offense level of 18 1

and a criminal history category of I. The resulting sentence guideline was twenty

seven to thirty three months of imprisonment. The author of the PSR originally

declined to recommend a downward departure; after feedback from Goldberg and

the Government he stated that the matter was best left to the special competence

of the district court. The PSR author did recommend that “if the Court does grant

a downward departure, the probation officer must recommend that the Court not

depart below an eighteen-month sentence.” This recommendation was based on

the author’s conclusion that if Goldberg was unable to control his sexual urges,

1
Under Guideline § 2G2.4(a), the base score for possession of child
pornography is 15. The PSR recommended a two-level enhancement because
some of the materials involved children under the age of twelve, § 2G2.4(b)(1), a
two-level enhancement because the offense involved ten or more items of child
pornography, § 2G2.4(b)(2), and a third two-level enhancement because the
offense involved a computer, § 2G2.4(b)(3). Finally, the PSR recommended a
three-level reduction for complete and timely acceptance of responsibility,
§ 3E1.1.

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“it is most likely vital” that he attend a sex offender treatment program in federal

prison for which an eighteen month sentence was required.

The district court held a lengthy sentencing hearing on February 28, 2001.

Four witnesses testified – a psychologist, a staff person for the National Center on

Institutions and Alternatives, Goldberg, and a probation officer. At the

conclusion of the sentencing hearing, the court ruled that a downward departure

was appropriate. The court’s explanation for its decision as to whether to depart

downward is as follows:

The Court finds that a downward departure is warranted
in this case. The downward departure is based upon some
combined factors of extraordinary community service, adverse
collateral employment consequences as a result of
incarceration, and extraordinary post-offense rehabilitation.
And maybe you can do some good in that area.
The Court departs downward in this case for the above
reasons and the factual basis of them are set forth in this
record.

(App. 316-17.) The court then announced the degree of departure and the

sentence. It explained its decision as to how much to depart downward as

follows:

The Court imposes this sentence because the defendant
is a first time offender. He has had treatment. The Court does
not believe that there will be a reoccurrence of the
downloading of pictures, which as I say – which, as I
previously stated, there was not an offense where pictures were
taken, nor was there any luring of children.
I think this record substantiates the fact that there has
been extraordinary post-offense rehabilitation and I believe

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 that there will be a significant effort on behalf of the defendant
to address this problem.

(Id. at 317.) On this basis, the court “depart[ed] downward eight levels to a level

10, resulting in a guideline range of six to twelve months, which is in Zone B of

the sentencing table.” (Id.) The significance of a Zone B sentence is that such

sentences can be ordered satisfied by a term of home confinement without

requiring incarceration. U.S.S.G. § 5C1.1(c)(3).

On appeal, the Government concedes that there are permissible grounds for

downward departure in this case, and it concedes that “a modest downward

departure would be reasonable on this record.”

II. METHODOLOGY REQUIRED TO EXPLAIN EXTENT OF
DEPARTURE

The broad framework for analysis of a district court’s sentencing departure

decision is provided by United States v. Collins, 122 F.3d 1297 (10th Cir. 1997).

The validity of a particular departure depends upon:

(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 defendant
from the applicable Guideline heartland thus warranting a
departure, (3) whether the record sufficiently supports the
factual basis underlying the departure, and (4) whether the
degree of departure is reasonable.

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Id. at 1303. We have explained our standard of review in performing each of

these inquiries as follows:

All four inquiries are subject to a unitary abuse of
discretion standard, understanding that a district court by
definition abuses its discretion when it makes an error of law.
Applying this standard, we need not defer to the district
court’s determination of an issue of law, such as that presented
by the first inquiry pertaining to the permissibility of departure
factors. However, we must give substantial deference to the
district court when making the second inquiry, because the
heartland determination is primarily a factual inquiry.
Similarly, our review of the underlying factual determinations
relevant to the third inquiry is limited to clear error.

United States v. Benally, 215 F.3d 1068, 1073 (10th Cir. 2000) (alteration and

internal quotation marks omitted). In determining whether the degree of

departure is reasonable per the fourth inquiry, “the appellate court should afford

the trial court some discretion, as we should not lightly overturn determinations of

the appropriate degree of departure.” United States v. Flinn, 987 F.2d 1497, 1504

(10th Cir. 1993) (internal quotation omitted). In sum, 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

v. United States, 518 U.S. 81, 98 (1996).

Nevertheless, we have consistently required that “the district court must

specifically articulate reasons for the degree of departure using any reasonable

methodology hitched to the Sentencing Guidelines, including extrapolation from

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or analogy to the Guidelines.” United States v. Hannah, 268 F.3d 937, 941 (10th

Cir. 2001) (emphasis added, internal quotation marks omitted); accord United

States v. Neal, 249 F.3d 1251, 1258 (10th Cir. 2001); United States v. Bartsma,

198 F.3d 1191, 1196 (10th Cir. 1999); United States v. Checora, 175 F.3d 782,

794 (10th Cir. 1999); Collins, 122 F.3d at 1309; United States v. Shumway, 112

F.3d 1413, 1429 (10th Cir. 1997); Flinn, 987 F.2d at 1504; United States v. St.

Julian, II, 966 F.2d 564, 569 (10th Cir. 1992); United States v. Little, 938 F.2d

1164, 1166 (10th Cir. 1991); United States v. Harris, 907 F.2d 121, 123-24 (10th

Cir. 1990).

Our fullest explanation of what constitutes a “reasonable methodology

hitched to the Sentencing Guidelines” was provided in United States v.

Whiteskunk:

[W]e [have] rejected the notion that the Koon unitary abuse of
discretion standard changed our pre-Koon mechanistic
approach requiring the district court to state with particularity
and with reference or analogy to the Guidelines the basis for
its degree of departure. . . . [O]ur decisions have continued to
maintain this standard. We have declined to follow the Ninth
Circuit’s less rigid analysis of the district court’s degree of
departure espoused in United States v. Sablan, 114 F.3d 913,
918-19 (9th Cir.1997) (en banc), where that court abolished the
requirement that district courts justify their degree of departure
by drawing analogies to the Sentencing Guidelines.
In the present case, the district court gave almost no
rationale for its degree of departure from the Guideline range,
stating only the departure is warranted because it “more
appropriately reflects the dangerousness of the defendant’s
conduct, as well as the extent to which risked [sic] the

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 potential death of another.” This explanation does nothing
more than restate the justification for upward departure and
does not fulfill the separate requirement of stating the reasons
for imposing the particular sentence. In departing upward, the
district court should have attempted to predict what the
Sentencing Commission would have established as a guideline
range had it adequately considered the circumstances justifying
the departure. The district court's findings leave us with no
reasonable indicia of whether the sentence is proportional to
the crime. We do not require the district court to justify the
degree of departure with mathematical exactitude, but we do
require the justification to include some method of analogy,
extrapolation or reference to the sentencing guidelines.

162 F.3d 1244, 1253-54 (10th Cir. 1998) (emphasis added, citations, footnote, and

internal quotation marks omitted).

In the present case, the district court’s justification for the degree of

departure was devoid of any “analogy, extrapolation or reference to the

sentencing guidelines.” Id. at 1254. The explanation given by the district court

for the sentence it imposed focused on the court’s belief that Goldberg was

unlikely to recidivate (“[T]he defendant is a first time offender. He has had

treatment. The Court does not believe that there will be a reoccurrence of the

downloading of pictures. . . . [T]here has been extraordinary post offense

rehabilitation . . . .”) and that the crime was not more serious (“[T]here was not

an offense where pictures were taken, nor was there any luring of children.”).

These were reasons for some downward departure, but they offer no principled

basis for determining the degree of that departure.

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 Although the district court did not say so explicitly, it is apparent it chose a

downward departure of eight levels because such a departure was the minimum

necessary to render the defendant eligible for a sentence that did not involve

incarceration. The court stated that it chose to “depart[] downward eight levels to

a level 10, resulting in a guideline range of six to twelve months, which is in

Zone B of the sentencing table.” (App. 317.) As noted, the significance of a

reduction to Zone B is that a sentence in this zone need not include imprisonment.

U.S.S.G. § 5C1.1(c)(3).

It appears, then, that the specific reasons the district court gave for the

sentence imposed must have been meant to explain why a non-incarceration

sentence is appropriate, although the court did not say so explicitly. 2 Given the

district court’s analysis, our inquiry must proceed in two stages. First, was the

district court’s desire to impose a non-incarceration sentence a permissible basis

for choosing an eight-level downward departure? Second, were the district

court’s conclusions that Goldberg was unlikely to recidivate and that the crime

2
We repeatedly have admonished that a district court must state explicitly
its reasons for the degree of departure. See, e.g., Collins, 122 F.3d at 1309;
Flinn, 987 F.2d at 1503 (“[T]he appellate court should not speculate as to
reasoning that might have been employed by the sentencing court to arrive at a
particular sentence.” (internal quotation omitted)). “Significant departures–those
of more than two levels–must be explained with a care commensurate with their
exceptional quality.” United States v. Seacott, 15 F.3d 1380, 1389 (7th Cir. 1994)
(internal quotation marks omitted). Our disposition makes it unnecessary to base
our holding on this ground.

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was not a more serious one a permissible basis for choosing a non-incarceration

sentence? We answer each of these questions in the negative.

The methodology employed by the district court to determine the degree of

departure was not a “reasonable methodology hitched to the Sentencing

Guidelines,” Hannah, 268 F.3d at 941, because it is based neither on “analogy,

extrapolation, or reference to the sentencing guidelines,” Whiteskunk, 162 F.3d

at 1254, nor on other sentences imposed under the Guidelines. The approach used

by the district court is not consistent with the fundamental goal of enacting the

Guidelines, which was “to promote uniformity in sentencing for federal crimes.”

United States v. Hines, 133 F.3d 1360, 1364 (10th Cir. 1998) (citing U.S.S.G. Ch.

1 Pt. A).

Our established rule that the district court must justify the extent of its

departure by a reasonable methodology hitched to the guidelines is consistent with

the majority of other circuits that have confronted the issue. See United States v.

Crouse, 145 F.3d 786, 792 (6th Cir. 1998) (holding that “[t]he extent of any

departure must be tied to the structure of the Guidelines,” and concluding that the

district court violated this principle and abused its discretion when it “determined

the result it wanted to reach–no jail time for Crouse–then departed downward to a

level that would allow that result”); United States v. Seacott, 15 F.3d 1380, 1389

(7th Cir. 1994) (“[T]he district court concluded that the defendant should not

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serve any time in prison, and then departed downward four levels to achieve that

result. . . . [S]uch a method of departing, completely untethered to the structure,

rationale or methodology of the Guidelines, is impermissible. The guidelines

must be used as a reference when departing.” (internal quotation marks omitted));

cf. United States v. Terry, 142 F.3d 702, 707 (4th Cir. 1998) (“In determining [the

appropriate degree of departure], the sentencing court should first consider the

rationale and methodology of the Sentencing Guidelines. In particular, it is often

helpful to look to the treatment of analogous conduct in other sections of the

Sentencing Guidelines. In the event the Sentencing Guidelines do not provide any

useful analogies, however, the sentencing court must set forth some form of

principled justification for its departure determination.” (citations, footnotes, and

internal quotation marks omitted)); United States v. Puello, 21 F.3d 7, 10 (2d Cir.

1994) (“A sentencing court is encouraged to look to analogous guideline

provisions to determine the extent of departure.” (internal quotation marks and

alterations omitted)). But cf. United States v. Sablan, 114 F.3d 913, 919 (9th Cir.

1997) (case did not involve a predetermined result but nevertheless the court held,

in a six to five en banc decision, that degree of departure need not be determined

by analogy to the Guidelines).

Significantly, our research reveals no opinion from another circuit

approving of a methodology such as that employed by the district court here; as

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noted above, both the Sixth and Seventh Circuits explicitly have rejected such a

methodology. See Crouse, 145 F.3d at 792; Seacott, 15 F.3d at 1389.

There is one Tenth Circuit case that arguably justifies the degree of

departure by referring to the resulting sentence rather than to an analogy to the

Guidelines. In United States v. Jones, 158 F.3d 492, 505-06 (10th Cir. 1998), we

noted that the sentencing court had approved a three-level downward departure

“because that was exactly the extent of downward departure required . . . to ‘reach

Zone B [of the sentencing table], which would allow a sentence of probation.’”

Id. at 505. In affirming the district court’s departure decision, we noted that

“only a sentence of probation would address the district court’s explicit concern

with maintaining the ongoing, and apparently effective, rehabilitative counseling

relationship.” Id. at 505-06; see also id. at 503-04. We also noted that

incarceration would impose “unique burdens” on Jones by causing him to lose a

good job in an economically depressed area. Id. at 498-99.

Those statements could be read to suggest that the degree of departure may

be properly justified by the resulting sentence. Such a reading would be

inconsistent with our prior precedent. See Collins, 122 F.3d at 1309; Shumway,

112 F.3d at 1429; Flinn, 987 F.2d at 1504; St. Julian, II, 966 F.2d at 569; Little,

938 F.2d at 1166; Harris, 907 F.2d at 123-24. To avoid conflict with precedent

predating Jones, we choose not to read that case in this manner. In explaining the

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district court’s departure decision there, the Jones court observed that the district

court “also explicitly considered the magnitude of the departure relative to both

Mr. Jones’ offense level under the Sentencing Guidelines and to guidance

provided by our case law.” Id. at 505. Although it is not entirely clear from that

statement what methodology the district court employed, we will presume that the

district court employed a methodology based on the Guidelines. So read, the

statements in Jones justifying the degree of departure by referring to the resulting

sentence are dicta that should not be followed here.

In sum, we conclude that the district court here abused its discretion by

failing to base its degree of departure determination on a reasonable methodology

hitched to the Guidelines. This case, involving an eight-level departure, does not

fall within the “extremely narrow” class of cases where, even without a valid

explanation for the sentence imposed, we independently “can unmistakably

determine the reasonableness of the district court’s selection of a particular

sentence.” Flinn, 987 F.2d at 1503.

III. IMPERMISSIBLE FACTORS WERE CONSIDERED IN EXTENT OF
DEPARTURE

We reject the district court’s degree-of-departure analysis for a second,

independent reason: the court’s reliance upon impermissible factors to justify its

decision to impose a non-incarceration sentence. As noted above, the district

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court’s determination not to imprison Goldberg flowed from its view that

Goldberg was a first-time offender, he was unlikely to recidivate, and the crime

was not more serious. 3 Each of these rationales is impermissible.

The Supreme Court expressly has held that the Guidelines bar sentencing

courts from relying as a factor for downward departure upon a defendant’s

unblemished criminal record and low risk of recidivism, because those factors are

fully taken into account in the Guidelines themselves. Koon, 518 U.S. at 111

(quoting 1992 U.S.S.G. § 4A1.3, a provision unchanged in the 2000 U.S.S.G.

under which Goldberg was sentenced). Goldberg argues that such a rationale is

permissible as a basis for calculating the extent of departure, even if it is

impermissible for determining whether to depart. Goldberg offers neither

authority nor logical support for this position, and we decline to adopt it. We

conclude that the district court abused its discretion when it relied upon

Goldberg’s perceived low risk of recidivism and his lack of an earlier criminal

record as a basis for imposing a non-incarceration sentence.

3
Earlier, the Court also noted that the defendant had extraordinary
community service, would suffer collateral employment consequences as a result
of incarceration, and had extraordinary post-offense rehabilitation. However, that
reasoning apparently was offered as justification for a departure rather than to
support the degree of the departure. Those factors do not suggest any
methodology by which the magnitude of the departure could be ascertained or
justified.

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 As to the district court’s other rationale – the fact that Goldberg neither

took pictures nor lured children – Goldberg was sentenced under section 2G2.4,

the Guideline provision entitled “Possession of Materials Depicting a Minor

Engaged in Sexually Explicit Conduct.” A separate provision, section 2G2.1,

with a base offense level of 27 rather than 15, covers “Sexually Exploiting a

Minor by Production of Sexually Explicit Visual or Printed Material.” Thus, the

Guidelines explicitly take into account the factor of taking pictures or luring

children into photography by providing for an increase in the offense level from

15 to 27. The heartland for a section 2G2.4 offense is possession of child

pornography not involving taking pictures or luring children. Downwardly

departing from level 15 because of an absence of those factors is not a

permissible basis for imposing a particular lesser sentence, and the district court’s

conclusion to the contrary was an abuse of discretion. See, e.g., United States v.

Grosenheider, 200 F.3d 321, 332 (5th Cir. 2000); United States v. Stevens, 197

F.3d 1263, 1270 (9th Cir. 1999); United States v. Barton, 76 F.3d 499, 503 (2d

Cir. 1996).

In short, the reasons relied upon by the district court to justify its belief in

the desirability of a non-incarceration sentence were impermissible. We do not

decide what magnitude of departure the district court could properly have made

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on these facts, although we note that a departure of eight levels is remarkable and

must be reserved for truly extraordinary cases.

IV. DECISION TO DEPART

As noted above, the Government concedes on appeal that some amount of

downward departure was reasonable in this case. The Government nonetheless

argues that some of the factors relied upon by the district court in deciding

whether to depart were impermissible. Although we agree that the district court

based its decision whether to depart on one factor – collateral employment

consequences 4 – that was not established in this record to be outside of the

heartland, we conclude that the district court would have departed downward even

if it had not relied upon that unsupported factor. Cf. Koon, 518 U.S. at 113.

4
Although sentencing courts are not barred in all cases from concluding
that collateral employment consequences are a factor contributing to the decision
to depart, see Jones, 158 F.3d at 498-99, “it is not unusual for any individual to
suffer employment consequences as a result of incarceration.” Id. at 499; cf.
Koon, 518 U.S. at 110-11 (abuse of discretion to consider defendants’ job loss as
a departure factor because public employees often lose their jobs for violating a
person’s rights and “these consequences were adequately considered by the
Commission”). Here, Goldberg does not seriously argue that the impact of
incarceration on his employment situation is extraordinary. Instead, he argues
that the district court’s phrase “adverse collateral employment consequences as a
result of incarceration” refers, not merely to Goldberg’s own employment, but
also to the interests of the poor and minority farmers on whose behalf he
advocates. We find this an implausible interpretation of the district court’s
language, particularly in light of Goldberg’s inability to point to evidence in the
record that Goldberg’s imprisonment would result in adverse employment
consequences for the farmers.

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Based on the court’s explanation at sentencing and the focus of the parties’

sentencing presentations, it seems clear that the factor that loomed the largest in

the mind of the court was Goldberg’s extraordinary post-offense rehabilitation.

The court made only passing mention of employment consequences as a basis for

departure. Further, the fact that the court granted such a large downward

departure is strong evidence that the decision of whether to depart in the first

place was not a close one. Finally, the Government itself concedes that

downward departure is appropriate. Thus, we conclude that the district court’s

reliance upon one improper factor in its decision to make a departure does not

require reconsideration of this issue at resentencing.

V. CONCLUSION

For the foregoing reasons, we VACATE the district court’s sentence and

REMAND for determination of the appropriate degree of downward departure.

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