IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20036
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COLONEL MARVIN PEARSON, also known as M, also known as
Colonel@Pheonix.net,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-63-1
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January 14, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:1
Colonel Marvin Pearson pleaded guilty to count 180 of an
indictment charging him with possession of child pornography
involving the sexual exploitation of minors. The district court
departed upward from the guideline-imprisonment range in sentencing
Pearson to a 41-month term of imprisonment. The district court
stated that it had departed upward because of the number of photos
and because Pearson had possessed materials that portrayed children
involved in sadistic and masochistic conduct. Pearson contends
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
that the district court erred in departing upward from the
guideline imprisonment range. A district court may depart upward
from the applicable guideline range if the court finds that an
aggravating circumstance exists that was not adequately taken into
consideration by the Sentencing Commission. 18 U.S.C. § 3553(b).
A district court’s decision to depart from the guidelines is
reviewed for abuse of discretion. United States v. Ashburn, 38
F.3d 803, 807 (5th Cir. 1994) (en banc).
Pearson contends that the factors considered by the district
court in departing from the guideline imprisonment range were
adequately considered by the Sentencing Commission. Although
§ 2G2.4 does deal with sexual exploitation of minors generally, it
does not specifically address the aggravating circumstance of
possession of materials containing sadomasochistic depictions. See
§ 2G2.4. Moreover, the number of items possessed by the defendant
greatly exceeded the number necessary for the two-level enhancement
under § 2G2.4(b)(2).
In departing from the guideline range, the district court
rejected Pearson’s argument that his crime was victimless because
he merely retrieved the images from the internet, where they would
have been available whether he retrieved them or not, and that he
had not been personally involved in the exploitation of minors.
The district court rejected this argument, stating its belief that
the supply of such materials is driven by demand. See United
States v. Norris, ___ F.3d ____ (5th Cir. Oct 29, 1998) (No.
98-40148), 1998 WL 754904, *3-5 (“Unfortunately, the
‘victimization’ of the children involved does not end when the
pornographer’s camera is put away. The consumer, or end recipient,
of pornographic materials may be considered to be causing the
children depicted in those materials to suffer as a result of his
actions . . . .”). The district court’s decision to depart upward,
based upon its reasonable belief that the demand for
sadomasochistic materials contributed to the supply of such
materials and based upon the number of prohibited items involved in
the offense, was not an abuse of its discretion. The sentence is
AFFIRMED.