United States v. Sims

F I L E D
United States Court of Appeals
Tenth Circuit

November 9, 2005
PUBLISH

UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee/Cross-
Appellant,

v. Nos. 03-2151, 03-2177

STANLEY HOWARD SIMS,

Defendant - Appellant/Cross-
Appellee.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-00-0193-MV)

Tova Indritz, Albuquerque, New Mexico, for Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the briefs), Albuquerque, New Mexico, for Appellee.

Before EBEL, BALDOCK, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

This case first arose in an Internet chat room where Stanley Howard Sims

(“Defendant” or “Sims”), using the screenname “Nats565,” began a sexually
explicit conversation with “sweetthingforyou16”—a screenname Sims believed

belonged to a 16-year-old girl named Sue and a 12-year-old named Kate. In fact,

“sweetthingforyou16” was a middle-aged man in Springfield, Missouri, who had

assumed the Internet profile of a teenage dancer named Sue as a gag and who

represented himself as both Sue and Kate to Sims. For months, Sims and

“sweetthingforyou16” exchanged Internet communications of a graphic sexual

nature, with Sims sending sexually explicit images of himself and of other

children to the girls. The FBI became involved, and Sims was ultimately arrested

at a roller-skating rink in Missouri, where he had traveled to meet Sue and Kate.

After a jury trial, Sims was convicted of three counts. Count One involved

attempting to entice a minor to engage in sexual acts in violation of 18 U.S.C. §

2422(b). Count Two involved traveling in interstate commerce for the purpose of

engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). Count

Three involved transporting child pornography by interactive computer system in

violation of 18 U.S.C. § 2252(a)(1). The district court entered a judgment of

acquittal on Count Four, which involved receiving child pornography in violation

of 18 U.S.C. § 2252(a)(2). Sims was sentenced to 37 months imprisonment and

ordered to pay a $10,000 fine.

On appeal, Sims raises several issues including Fourth Amendment claims

relating to the investigation of his conduct, First Amendment and other challenges

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to his convictions, and several sentencing arguments. The Government also

cross-appeals aspects of Sims’s sentence, including the district court’s application

of an acceptance of responsibility adjustment and the decision to grant a nine-

level aberrant behavior departure.

After briefing in this case, Sims was permitted to file a supplemental brief

with an argument that his sentence was constitutionally defective under Blakely v.

Washington, 542 U.S. 296 (2004). After oral argument, this court permitted

further briefing from both sides relating to United States v. Booker, 125 S.Ct. 738

(2005).

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Sims’s

conviction but REVERSE his sentence and REMAND for resentencing.

BACKGROUND

At the time of the events in question, Sims was employed as an engineer at

the National Transuranic Waste Program in Carlsbad, New Mexico. He had no

prior criminal history. We review the facts only to the extent necessary to decide

the issues presented in this appeal.

In September 1999, Sims, using the screen name “Nats565,” began using an

Internet chat room to converse with “sweetthingforyou16.” As far as Sims knew,

this screen name belonged to a 16-year-old girl named Sue Walker and was shared

by a 12-year-old named Kate, whom Sue babysat. Over a period of five months,

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Sims communicated with “sweetthingforyou16” frequently, usually daily, in chat

rooms and through instant messages. These conversations were of a sexual

nature. He gave the girls his personal e-mail address, and Sims eventually began

attaching sexually explicit images, of himself and of other children, to the e-mail

messages.

In reality, Sims was actually communicating with Michael Walker, an adult

male in Missouri. According to Walker, he created the profile

“sweetthingforyou16,” identifying himself as “Sue,” a dancer, as a gag, and he

was approached by “Nats565” in a Yahoo! chat room for persons interested in

model airplanes. Walker posed as a 16-year-old named Sue and a 12-year-old

named Kate, and he started saving the e-mails and images sent to “the girls” by

Sims.

In October 1999, Sims began suggesting he would travel to Missouri to

meet Sue and Kate. In his messages, he referred to previous encounters with

other young girls and emphasized that he was gentle and would not hurt the girls.

After Walker reported his Internet communications to the National Center

for Missing and Exploited Children, local police and the FBI became involved.

The FBI ultimately assumed the identities created by Walker and, as

“sweetthingforyou16,” made plans for Sims and the girls to meet at a roller-

skating rink in Missouri. Sims planned to pick up the girls, hide them in the back

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seat of his rental car, and go back to his motel to swim, engage in sexual acts, and

take photographs. Sims was arrested on January 22, 2000, when he arrived at the

roller-skating rink.

At the FBI office where he was taken, Sims signed a “Consent to Search”

form, and his luggage, briefcase, hotel room, rental car, and personal belongings

were searched—producing several cameras and film, gifts he bought for the girls,

and assorted sexual paraphernalia and aids. Sims also made a statement to FBI at

this time.

On the same day, Sims’s home in New Mexico was searched, with the FBI

seizing computer equipment, photographs, travel itineraries, and related items. A

few days later, the FBI searched Sims’s office, seizing other e-mail messages and

travel itineraries. The FBI also obtained a warrant to search the contents of

nineteen floppy disks found in Sims’s possession at the time of his arrest, which

produced several images of child pornography and other graphic e-mail messages.

The grand jury returned a four-count indictment against Sims, charging him

with:

• Count One—attempting to coerce and entice a minor to engage in
sexual acts, 18 U.S.C. § 2422(b);
• Count Two—traveling in interstate commerce for the purpose of
engaging in sexual acts with a minor, id. § 2423(b));
• Count Three—transporting by interactive computer system visual
depictions of minors engaging in sexually explicit conduct, id. §
2252(a)(1); and

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 • Count Four—receiving visual depictions of minors engaging in
sexually explicit conduct, id. § 2252(a)(2).

Sims pled not guilty.

After pre-trial motions, the district court suppressed Sims’s post-arrest

statement on Miranda grounds after finding that Sims had requested, but not been

provided, an attorney. The court did admit the fruits of the consent search

following his arrest after finding Sims’s consent was voluntary and given before

any request for an attorney. The court also admitted the fruits of the other

warrant searches.

The jury convicted Sims on all four counts. The district court, however,

had doubts about whether the government had established real children were

depicted in the images that Sims received and therefore entered a judgment of

acquittal only as to Count Four. United States v. Sims, 220 F. Supp. 2d 1222

(D.N.M. 2002) (“Sims I”); see also United States v. Sims, 252 F. Supp. 2d 1255

(D.N.M. 2003) (“Sims II”) (denying motion to reconsider refusal to acquit as to

Count Three). The district court sentenced Sims to 37 months imprisonment and

a $10,000 fine.

Before trial, the district court noted that “there was evidence presented that

Mr. Sims suffers from brain deterioration.” Sims’s Presentence Investigation

Report (“PSR”) indicates on May 16, 2000, a neurologist conducting an

independent medical examination diagnosed Sims with Frontotemporal Dementia

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(“FTD”), a form of dementia which causes a progressive loss of basic cognitive

abilities.

Sims raises several issues on appeal. He alleges three violations of his

Fourth Amendment rights; asserts that the Government failed to prove beyond a

reasonable doubt that the images relied on in Count Three were images of “real

children” and that his convictions for Counts One and Two should be reversed

because they allege impossible acts; and claims several errors in his sentence.

The Government cross-appeals, arguing that the district court erred in

reducing Sims’s sentence based on an acceptance of responsibility adjustment and

in its application of an aberrant behavior departure.

Finally, Sims has supplemented his arguments with a claim that the use of

judicial fact finding to enhance his sentence violates his Sixth Amendment rights

under United States v. Booker, 125 S.Ct. 738 (2005). Sims further argues that the

court’s application of the guidelines in a mandatory fashion is a non-

constitutional error warranting re-sentencing.

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 DISCUSSION

I. FOURTH AMENDMENT ISSUES

We review the court’s reasonableness conclusions under the Fourth

Amendment de novo. United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir.

1996). However, we accept the trial court’s findings of fact unless clearly

erroneous. Id. We review a denial of a motion to suppress in the light most

favorable to the United States as the prevailing party. United States v. Gordon,

173 F.3d 761, 765 (10th Cir. 1999).

A. Facts

Sims raises three Fourth Amendment issues, which require a brief review of

the facts to analyze. First, early investigation into this case by the FBI and local

law enforcement included two warrantless searches. The first occurred on

January 10, 2000, when an information systems security manager at Sims’s place

of employment searched Sims’s office computer remotely through the server. The

district court suppressed the fruits of this search, finding that it had been done

solely at the behest of law enforcement and that, absent a warrant, it violated

Sims’s Fourth Amendment rights.

The second warrantless search was a nighttime search of Defendant’s office

and computer on January 11, 2000, conducted by Carlsbad police and two of

Sims’s co-workers. With some reservation, the district court accepted the

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government’s assertion that none of the information obtained on January 11 had

been, or would be, relied upon. Therefore, the court denied that portion of Sims’s

motion to suppress as moot.

The source of the instant disputes are (1) whether Sims gave valid consent

to search his car, personal belongings, and hotel room following his arrest; (2)

whether the arrest and search warrants were supported by probable cause where

the attached affidavits relied in part on the excluded fruits of the earlier

warrantless searches; and (3) whether the search of Sims’s office computer was

illegal where the warrant was executed one day late.

B. Consent to search

A warrantless search is per se unreasonable under the Fourth Amendment

unless the government shows that the search falls within one of a carefully

defined set of exceptions, such as valid consent. United States v. Butler, 966

F.2d 559, 562 (10th Cir. 1992). “Before a district court may admit evidence

resulting from a consent search, it must determine from the totality of

circumstances that (1) the defendant’s consent was voluntary and (2) the search

did not exceed the scope of the consent.” U.S. v. Gutierrez-Hermosillo, 142 F.3d

1225, 1231 (10th Cir. 1998). Here, Defendant challenges only the voluntariness

of his consent to search.

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 “[T]he question whether a consent to a search was in fact ‘voluntary’ or

was the product of duress or coercion, express or implied, is a question of fact to

be determined from the totality of all the circumstances.” Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973). Therefore, “[w]hether voluntary consent

was given is . . . reviewed for clear error.” United States v. Zubia-Melendez, 263

F.3d 1155, 1162 (10th Cir. 2001). The Government establishes voluntariness only

if it (1) produces clear and positive testimony that the consent was unequivocal,

specific, and freely given, and (2) proves that consent was given without duress or

coercion, express or implied. Butler, 966 F.2d at 562.

Here, Sims points out that he was arrested at 4:05 p.m., transported to the

FBI field station and placed in an interrogation room with two FBI agents and a

corporal of the Missouri Highway Patrol where he was questioned “until 8:00

p.m.” However, Sims points to no evidence of any coercive police conduct or the

use of any physical force. Instead, Sims asks us to exclude the fruits of this

search because Sims did not understand his rights, thought he had no choice but

to sign the consent form, and signed the consent form “while also asking for a

specific lawyer.” He also argues his consent was involuntary because the district

court found “evidence that Sims suffered from brain deterioration.” According to

Sims, this “made him unable to resist the pressure upon him at that time.”

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 However, the district court specifically found that Sims signed the consent

to search form before he invoked his right to counsel. 1 Although there was

conflicting testimony from Sims and law enforcement officers regarding the

sequence of these events, “[e]valuation of the credibility of witnesses, the weight

to be given the evidence, and inferences to be drawn from the evidence are for the

district court.” Hernandez, 93 F.3d at 1498. We see no reason to find the district

court’s understanding of events clearly erroneous.

Moreover, “[w]hile knowledge of the right to refuse consent is one factor to

be taken into account, the government need not establish such knowledge as the

sine qua non of an effective consent.” Bustamonte, 412 U.S. at 227. Indeed, this

court has held that “consent to search may be voluntary even though the

consenting party is being detained at the time consent is given, and law

enforcement agents fail to advise him of his Miranda rights.” United States v.

Dozal, 173 F.3d 787, 796 (10th Cir. 1999) (citations omitted) (collecting cases).

For this court, then, the most troubling issue is whether, given Sims’s

mental condition, his consent was nonetheless the “product of a rational intellect

and a free will” and made with a “mental awareness so that the act of consent was

that of one who knew what he was doing.” United States v. Gay, 774 F.2d 368,

1
On the other hand, the court did find that Sims’s statement came after he
requested an attorney, and therefore suppressed that statement.

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377 (10th Cir. 1985). This requires both understanding and judgment. However,

our cases have never required perfect mental ability to find a consent to search

was voluntary. E.g., id. at 376-77 (finding argument that consent was involuntary

had “no merit” where defendant was so intoxicated he “was staggering and

swaying as he walked” and slurred his speech but was able to answer officers’

questions and produce his driver’s license upon request); Gutierrez-Hermosillo,

142 F.3d at 1231 (affirming finding that 14-year-old girl gave voluntary consent

to search).

Although the record in this case suggests that FTD is a degenerative

disorder that could ultimately affect Sims’s judgment, Sims has not pointed this

court to any specific evidence of the extent of his impairment at the time of his

consent to search. Indeed, the officers testified that no aspect of Sims’s

dysfunction was apparent to them, and Sims’s co-workers also testified they were

not aware of Sims’s illness prior to his arrest. Indeed, Sims was cognizant

enough to ask for an attorney before he made any statement to the police.

Moreover, the district court found no evidence that the police had attempted to

exploit any of his vulnerabilities. 2

2
Certainly, if we were faced with assessing the voluntariness of Sims’s
confession following a Miranda warning, “coercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary.’” Colorado v.
Connelly, 479 U.S. 157, 167 (1986). In Connelly, the defendant was a chronic
(continued...)

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 Based on this evidence, we see no reason to conclude the district court’s

finding that Sims gave voluntary consent was clearly erroneous. Therefore, we

AFFIRM the district court’s ruling that this was a valid consent search.

C. Probable cause to issue warrants

The district court determined that the arrest warrant and the warrants

obtained to search Sims’s office, home computer, and the disks seized from

Sims’s luggage all relied in part on fruits from the illegal January 10, 2000,

warrantless search of Sims’s office. 3
Defendant argues these warrants were

2
(...continued)
schizophrenic who, at the time of his confession, was suffering a hallucination
that the “voice of God” was commanding him to confess. Id. at 161. However,
because the police were unaware of his condition and did not coerce the
confession, the Court refused to suppress it. Id. at 167.
This police-perspective test has not yet been applied directly to a consent to
search in any published circuit case this court has found. The D.C. Circuit
considered the question and noted that “[i]f police coercion . . . is also a
necessary predicate to the finding that a consent to search is not voluntary, then
the subject’s particular ‘vulnerable subjective state’ would be relevant only
insofar as the police knowingly took advantage of the vulnerability in eliciting a
consent to search.” United States v. Hall, 969 F.2d 1102, 1108 n.6 (D.C. Cir.
1992).
We are not called on to answer this question in the instant case because we
conclude Sims’s consent was voluntary despite his brain disorder; however, we
note that since Connelly our cases have continued to rely on the familiar “totality
of the circumstances” test articulated in Bustamonte, 412 U.S. at 227.

In this appeal, the Government argues that the district court’s decision that
3

this warrantless search was illegal was wrong in light of this court’s subsequent
decision in United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002). In
Angevine, we held that a university professor did not have any reasonable
expectation of privacy in his office computer; however, we emphasized that this
(continued...)

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irretrievably tainted by this information and, moreover, that the supporting

affidavits were misleading because Agent Johnson never revealed her

involvement in that warrantless search. Therefore, Sims seeks to have the fruits

of these warrants, including the consent searches coming after his arrest warrant

was executed, suppressed.

When a warrant is tainted by some unconstitutionally obtained information,

we nonetheless uphold the warrant if there was probable cause absent that

information. Cusumano, 83 F.3d at 1250. “An affidavit containing erroneous or

unconstitutionally obtained information invalidates a warrant if that information

was critical to establishing probable cause. If, however, the affidavit contained

sufficient accurate or untainted evidence, the warrant is nevertheless valid.”

United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990).

“In determining whether probable cause supported the issuance of a search

warrant, we give ‘great deference’ to the decision of the issuing magistrate or

judge.” Cusumano, 83 F.3d at 1250 (quoting United States v. Williams, 45 F.3d

1481, 1485 (10th Cir. 1995)). We review only whether the issuing magistrate or

3
(...continued)
issue requires a case-by-case analysis. Id. at 1134-35. We need not decide that
issue here. See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996)
(en banc) (holding that where a warrant is supported by probable cause absent
some disputed information, we should not decide the constitutionality of the use
of that disputed information based on the fundamental rule of judicial restraint).

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judge had a “substantial basis” for finding probable cause, requiring “a practical,

common sense decision whether, given all the circumstances set forth in the

affidavit before him . . . there is a fair probability that contraband or evidence of

a crime will be found in a particular place. And the duty of the reviewing court is

simply to ensure that the magistrate had a substantial basis for concluding that

probable cause existed.” Id. (quotation omitted).

Here, in addition to the information coming from the warrantless office

search, the affidavit contained detailed information about Sims’s contacts with

Mike Walker and the FBI’s confirmation, after assuming the

“sweetthingforyou16” identity, that Sims was planning to travel to meet Sue and

Kate. The magistrate had information about the images sent to Walker, messages

and images sent to the FBI, Sims’s detailed plans to go to Missouri to meet Sue

and Kate, and that Sims used both his home and office computers to send these

messages.

In this case, the depth of the affidavit’s specific information regarding

Sims’s suspected activity was more than sufficient to warrant suspicion and give

the magistrate judge a reasonable ground to believe relevant evidence would be

found. Accordingly, we AFFIRM the district court’s ruling that the warrants here

were based on probable cause without regard to the prior warrantless searches.

D. Search warrant executed one day late

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 Finally, Sims objects that the warrant issued for his office and office

computer allowed a search “on or before” January 24, 2000, but was not executed

until January 25, 2000. Defendant argues that because the warrant had expired by

its own terms one day earlier, the search on January 25 was warrantless and

violated Sims’s Fourth Amendment rights. The district court declined to suppress

the resulting evidence, concluding the error was not of a constitutional magnitude

and not prejudicial.

“The Fourth Amendment does not specify that search warrants contain

expiration dates.” United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993).

However, the Federal Rules of Criminal Procedure require that a “warrant must

command the officer to . . . execute the warrant within a specified time no longer

than 10 days.” Fed. R. Crim. Pro. 41(e)(2)(A).

In United States v. Pennington, 635 F.2d 1387 (10th Cir. 1980), we

considered a violation of Rule 41’s separate requirement that a federal search

warrant be executed by federal officers and adopted a test that “violations of Rule

41 alone should not lead to exclusion unless (1) there was prejudice in the sense

that the search might not have occurred or would not have been so abrasive if the

Rule had been followed, or (2) there is evidence of intentional and deliberate

disregard of a provision in the Rule.” Id. at 1389-90 (emphasis added, quotations

omitted); see also United States v. Hugoboom, 112 F.3d 1081, 1087 (10th Cir.

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1997) (declining to apply exclusionary rule to a warrant that magistrate neglected

to limit to execution within a specific time frame given that the search was

executed almost immediately after issuance and easily within the mandatory ten-

day period); United States v. Gibson, 123 F.3d 1121, 1124-25 (8th Cir. 1997)

(holding that a four-day delay between the issuance of the search warrant and its

execution did not violate the “make immediate search” requirement on the face of

the warrant where no police manipulation and probable cause survived when

search did take place).

Although we are here dealing with a violation of the warrant itself, rather

than a violation of Rule 41 per se, we find the same analysis applies to technical

violations of the warrant. If non-prejudicial and unintentional violations of Rule

41 do not result in suppression, then a fortiori technical violations of the warrant

itself compel the same result.

In this case, there was no showing that the one-day delay was the result of

any intentional disregard of the terms of the warrant. Moreover, it was executed

within the 10-day requirement of Rule 41, and there is no evidence the execution

on January 25 rather than January 24 had any effect on the Government’s

probable cause to search Sims’s office computer whatsoever. Indeed, we see no

probable cause reason the search was limited to four days to start. As such, we

affirm the district court.

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II. CONVICTION

Sims claims his conviction in Count Three should be reversed because the

Government failed to prove that the images at issue depicted real children. He

also asserts that his convictions under Counts One and Two should be reversed

because they allege impossible acts.

A. Images involving “real children”

As a threshold matter, we must determine the nature of the burden of proof

involved in this offense. The statute Sims was convicted under penalizes any

person who “knowingly transports . . . in interstate . . . commerce by any means

including by computer . . . any visual depiction, if the producing of such visual

depiction involves the use of a minor engaging in sexually explicit conduct; and

such visual depiction is of such conduct.” 18 U.S.C. § 2252(a)(1). “Minor,” in

turn, “means any person under the age of eighteen years.” Id. § 2256(1).

We agree with Sims that this statue requires the Government to prove, as an

element of the offense, that the images at issue depict real minors engaged in

sexually explicitly conduct—as opposed to virtual images of such conduct that do

not depict actual children. This conclusion is evident from the face of the statute

and is further supported by the Supreme Court’s decision in Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002).

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 In Free Speech Coalition, the Court held that the Government can prohibit

non-obscene child pornography only to achieve “the State’s interest in protecting

the children exploited in the production process.” Id. at 240, 250 (citing New

York v. Ferber, 458 U.S. 747, 758 (1982)). Because no real children are used in

production of virtual child pornography, which instead uses youthful-looking

adult actors or computer-generated images, virtual child pornography is not

“speech that itself is the record of sexual abuse.” Id. at 250. Therefore, the Court

held that a statute prohibiting images that only appeared to depict minors or

merely conveyed the impression of depicting minors was unconstitutionally

overbroad. 4 Id. at 258 (invalidating 18 U.S.C. §§ 8(B), (D) (2000)). Although

this same statute is not at issue in this case, the Court’s reasoning supports our

conclusion that the Government must prove beyond a reasonable doubt that real

children are depicted in the images giving rise to a § 2252(a)(1) prosecution.

In this appeal, the parties dispute precisely how the Government must meet

this burden. Sims argues that the Government must either (1) identify the actual

4
We note for the purpose of clarification that the Court in Free Speech
Coalition expressly did not decide the constitutionality of “a more common and
lower tech means of creating virtual images, known as computer morphing,”
which is the alteration of “innocent pictures of real children so that the children
appear to be engaged in sexual activity.” Id. at 242 (citing 18 U.S.C. §
2256(8)(C)). However, the Court noted that these morphed pictures “implicate
the interests of real children” and therefore might be more likely to implicate the
state’s interest in protecting children from exploitation. Id.

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child victim in the depiction or (2) prove, presumably through expert testimony,

that the images were not computer generated.

However, our cases since Free Speech Coalition have consistently held that

juries can review the images themselves to determine whether real children are

depicted. Indeed, in United States v. Kimler, 335 F.3d 1132 (10th Cir.), cert.

denied, 540 U.S. 1083 (2003), we considered a defendant’s challenge to his

conviction under the same statute at issue here on the ground that Free Speech

“requires either direct evidence of the identity of children in the proscribed

images or expert testimony that the images depicted are those of real children

rather than computer generated ‘virtual’ children.” Id. at 1140. The Government

had introduced only the e-mails and images retrieved from the defendant and his

computer. Id. at 1135-36. We concluded:

Free Speech Coalition, did not establish a broad, categorical
requirement that, in every case on the subject, absent direct evidence
of identity, an expert must testify that the unlawful image is of a real
child. Juries are still capable of distinguishing between real and
virtual images; and admissibility remains within the province of the
sound discretion of the trial judge.

Id. at 1142.

Although in Kimler we were specifically reviewing only for plain error,

Kimler’s underlying conclusion that the content of an image in many cases can

speak for itself and suffice to prove that real children are depicted has been

affirmed and applied in several subsequent cases. E.g., United States v. Riccardi,

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405 F.3d 852, 870-71 (10th Cir. 2005) (experts not always necessary to assist

juries in determining unidentified images depict actual minors); United States v.

Cervini, 379 F.3d 987, 993 n.4 (10th Cir. 2004) (juries can determine “based on

the image alone and without expert evidence, that the image is actual”); United

States v. Harms, 371 F.3d 1208, 1213 (10th Cir. 2004) (explaining that “where no

evidence suggests that the images are anything other than real, the government

need offer no supporting evidence beyond the images themselves”). 5

Therefore, we hold that the Government has the burden of proving beyond a

reasonable doubt that the images at issue in a § 2252 prosecution depict actual

minors. However, this does not necessarily require expert testimony or

identification of the actual child victims. See Kimler, 335 F.3d at 1142. Instead,

juries often will be able to distinguish between real and virtual images, and

“where no evidence suggests that the images are anything other than real, the

government need offer no supporting evidence beyond the images themselves.”

Harms, 371 F.3d at 1213.

With this analysis of the Government’s burden in mind, we turn to the

issues of the instant case. On appeal, Sims argues (1) that there was insufficient

5
In addition, several of our sister circuits have agreed. See, e.g., United
States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam); United States v.
Hall, 312 F.3d 1250, 1260 (11th Cir. 2002); see also United States v. Farrelly,
389 F.3d 649, 653 (6th Cir. 2004).

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evidence of “real children” in his case and (2) that the jury was given an incorrect

instruction as to this element. 6

6
At the outset, we note that Sims’s trial was conducted under circumstances
that concern this court. Prior to opening statements, outside the presence of the
jury, the parties debated the nature of the Government’s burden of proof on this
real children issue. At that point, the district court instructed defense counsel:
I’m not familiar with the case law on this issue. I’m not going to
permit you to inject it in your opening statement, or to question on it.
I will take a look at the case law on this issue sometime today and
give you a ruling, but for purposes of opening statement, you will not
be permitted to raise the question as to—or to challenge the issue as
to whether they are real children or not.
Later, after analyzing the pre-Free Speech Coalition case law on point, the district
court concluded—again outside the presence of the jury—that proof that the
children depicted are real children “is not an element required by the Government
to establish beyond a reasonable doubt.”
Certainly, this was an inaccurate statement of the law at the time. See Sims
I, 220 F. Supp. 2d at 1226 (recognizing error). Sims’s inability to cross examine
witnesses or discuss in his opening statement the real children issue raises real
concerns about the fairness of Sims’s trial. However, Sims does not claim any
due process violation in his opening brief and instead asserts only the
insufficiency of the evidence and jury instruction issues. Certainly, a defendant
can waive a constitutional claim. See United States v. Green, 405 F.3d 1180,
1190-91 (10th Cir. 2005).
In addition, Sims’s position at trial, as reflected in his proposed jury
instruction on the point, was that if “the government has not proved that the
images involved here are not computer-generated, then you must find Mr. Sims is
not guilty.” Indeed, Sims wanted to propose a jury instruction explaining the
process of “morphing” innocent images of children into depictions of children
engaged in sexually explicit conduct and noting that “[t]he technology of
computer-imaging makes it difficult, if not impossible, to distinguish computer-
generated from photographic depictions of child sexual activity.”
Aside from attempting to inject this near-impossible burden on the
Government to prove this negative, Sims has presented no evidence that would
cast any doubt on the authenticity of the images at issue in this case whatsoever.
Indeed, there is a total failure of proof as to what Sims’s cross-examination of any
(continued...)

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 1. Sufficiency of the evidence

Sufficiency of the evidence is a legal issue that we review de novo. United

States v. Dashney, 117 F.3d 1197, 1202 (10th Cir. 1997). However, we will not

reverse a jury verdict unless no jury, presented with the evidence introduced at

trial together with the reasonable inferences to be drawn therefrom, could find the

defendant guilty beyond a reasonable doubt. Id.

Our review of this issue is significantly hampered by the fact that Sims

selected only two of the e-mails, and the two sets of images attached to those e-

mails for our review of the sufficiency of the evidence on Count Three. The fact

that Sims did not include all of the evidence in the record for our review is

“virtually fatal” to his claim that there was insufficient evidence below. Kimler,

335 F.3d at 1138.

6
(...continued)
witness would have been or what it would have done to help Sims’s case.
Moreover, although Sims renewed his argument about the government’s burden at
the close of the Government’s case, and immediately before closing arguments,
Sims never renewed his objection when any witnesses were on the stand. Absent
a more definitive district court ruling, it is difficult to review any purported
errors. See generally United States v. Mejia-Alarcon , 995 F.2d 982, 987 (10th
Cir. 1993). However, most fundamentally, absent any actual proffer of evidence
or suggestion as to how specific witnesses could have assisted his case, it is
essentially impossible to find prejudice.

- 23 -
 Sims points out that the images he did designate are the same images the

district court relied on when it found “substantial” evidence that real children

were involved in Count Three and therefore denied Sims’s motion for a judgment

of acquittal on that count. However, we review a denial of a judgment of

acquittal de novo in the light most favorable to the government and therefore are

not bound only to rely on the images the district court used. See Riccardi, 405

F.3d at 870.

Based only on the secondhand descriptions of the evidence at trial, which is

all that has been provided us, we are more than convinced a reasonable jury could

have inferred from the images, and from Sims’s statements regarding those

images, that they depicted real children.

2. Jury instructions

“The question of whether a jury was properly instructed is a question of

law, and thus, our review is de novo.” United States v. Lee, 54 F.3d 1534, 1536

(10th Cir. 1995). However, “[w]e review the district court’s refusal to give a

particular jury instruction for abuse of discretion.” Id. “In assessing whether the

court properly exercised that discretion, a reviewing court must examine the

instructions as a whole to determine if they sufficiently cover the issues in the

case and focus on the facts presented by the evidence.” Id.

- 24 -
 Here, Sims asserts that the jury’s instructions failed to inform the jury they

had to find beyond a reasonable doubt that the images involved in Count Three

depicted real children. However, the instruction given did articulate an accurate

standard:

The defendant can be found guilty of the offense charged in count 3
only if all of the following facts are proved beyond a reasonable
doubt:
That on or about September, 1999, until and including
January 22nd, 2000;
Second, the defendant knowingly transported or shipped
a visual depiction in interstate or foreign commerce by
any means, including by computer;
And third, the production of such visual depiction
involved the use of a minor engaging in sexually explicit
conduct;
Fourth, that such visual depiction is of a minor engaged
in sexually explicit conduct;
And fifth, that the defendant knew that such visual
depiction was of sexually explicit conduct;
And sixth, the defendant knew that at least one of the
persons engaged in sexually explicit conduct in such
visual depiction was a minor.
A minor for purposes of this offense is a person under the age of 18.

(Emphasis added). Before reading this instruction, the court also summarized the

charge against Sims by saying he was accused of “knowingly transport[ing] . . .

visual depictions of minors engaging in sexually explicit conduct which were

produced using minors engaged in such conduct.”

We have implied that a similar instruction requiring the jury to find that

“the production . . . involves the use of a minor engaging in sexual activity”

- 25 -
would be proper after Free Speech Coalition. See United States v. Pearl, 324

F.3d 1210, 1213 (10th Cir. 2003).

Although we agree that future instructions might be more clear on the

requirement that the Government prove real children are depicted, this instruction

accurately states the law. Therefore, we affirm the district court.

3. Conclusion

Accordingly, although this case certainly comes to us under unusual

circumstances, based on the limited record before us, and the limited issues

presented for our review, we AFFIRM Sims’s conviction for Count Three. 7

B. Impossible acts

In Count One, Sims was convicted for attempting to coerce and entice a

minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b). In Count

Two, Sims was convicted for traveling interstate for the purpose of engaging in

sexual acts with a minor in violation of 18 U.S.C. § 2423(b). There is no dispute

both of these counts specifically involved “Kate,” the fictitious 12-year-old

persona assumed by Michael Walker, an adult male, and later the FBI. Sims

argues that because Kate does not exist, he could not be convicted of violating

either statute because there was no actual minor involved, only adult men who

7
Because we find no reversible error in Sims’s Count Three conviction, we
deny Sims’s further argument that his trial on Counts One and Two was so tainted
by Count Three that a new trial is warranted.

- 26 -
“communicated extensive fantasy with Walker misrepresenting . . . age and

gender.”

Initially, we see nothing impossible about traveling with a specific purpose,

which the jury found beyond a reasonable doubt he did. Therefore, we reject

Sims’s claim as to Count Two as meritless. See United States v. Han, 230 F.3d

560, 562-63 (2d Cir. 2000) (discussing nature of offense).

Moreover, as to his Count One conviction for attempting to entice a minor,

“[f]actual impossibility is generally not a defense to criminal attempt because

success is not an essential element of attempt crimes.” United States v. Hankins,

127 F.3d 932, 934 (10th Cir. 1997). We agree with our sister circuits that this

general rule applies to the case at bar—that is, it is not a defense to an offense

involving enticement and exploitation of minors that the defendant falsely

believed a minor to be involved. United States v. Root, 296 F.3d 1222, 1227

(11th Cir. 2002); United States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001);

United States v. Meek, 366 F.3d 705, 717 (9th Cir. 2004). Therefore, we affirm

Sims’s convictions on these counts.

- 27 -
III. Sentencing

The Supreme Court’s decision in United States v. Booker, 543 U.S. ----,

125 S.Ct. 738 (2005), has fundamentally changed the way defendants are

sentenced. However, even after Booker, district courts must still consult and take

into account the Guidelines when sentencing. United States v. Doe, 398 F.3d

1254, 1257 n.5 (10th Cir. 2005). Moreover, when assigning sentences outside of

the Guidelines-authorized range, district courts “should also continue to apply the

Guidelines departure provisions in appropriate cases.” United States v.

Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005).

Here, we consider a pre-Booker sentence. “[W]e review legal questions de

novo and we review any factual findings for clear error, giving due deference to

the district court’s application of the guidelines to the facts.” Doe, 398 at 1257;

see also United States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005).

This case raises several sentencing issues. Both Sims and the Government

challenge the calculation of Sims’s offense level and the district court’s decisions

regarding departures. In addition, Sims claims the court erred in assessing a

$10,000 fine. Finally, Sims alleges the district court committed constitutional and

non-constitutional Booker error. Ultimately, we agree with the Government that

the district court erred in applying acceptance of responsibility adjustment and in

departing on the basis of aberrant behavior. Therefore, we reverse and remand

- 28 -
for resentencing. Given this disposition, we need not address any of Sims’s

Booker claims. See, e.g., Doe, 398 at 1257 n.5 & 6; United States v. Cano-Silva,

402 F.3d 1031, 1039 (10th Cir. 2005).

A. Calculation of Guidelines range

1. Acceptance of responsibility

On cross-appeal, the Government argues that the district court erred in

granting Defendant a three-level acceptance of responsibility adjustment. The

district court found “that the defendant’s confession at the time of the arrest . . .

is sufficient to establish acceptance of responsibility.”

However, the application note to the acceptance of responsibility guideline

provides that this “adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual

elements of guilt.” U.S.S.G. § 3E1.1, appl. n.2. There are, however, “rare

situations” where a defendant may “demonstrate an acceptance of responsibility

for his criminal conduct even though he exercises his constitutional right to a

trial” such as “where a defendant goes to trial to assert and preserve issues that do

not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a

challenge to the applicability of a statute to his conduct).” Id. There, “a

determination that a defendant has accepted responsibility will be based primarily

upon pre-trial statements and conduct.” Id.

- 29 -
 Our cases make equally clear that acceptance of responsibility adjustments

after trial are very rare. See United States v. Wooten, 377 F.3d 1134, 1145-46

(10th Cir. 2004); United States v. Salazar-Samaniega, 361 F.3d 1271, 1280-82

(10th Cir. 2004). Indeed, in the one case in which we approved the practice, the

defendant “admitted to all the conduct with which he was charged” but “simply

disputed whether his acknowledged factual state of mind met the legal criteria of

intent” required by the applicable statute. United States v. Gauvin, 173 F.3d 798,

806 (10th Cir. 1999). To the contrary, where the defendant argued there was

insufficient evidence to prove the factual element, the right to claim an

acceptance of responsibility adjustment is forfeited. Salazar-Samangiega, 361

F.3d at 1281.

In this case, Sims did contest an essential factual element of the crime;

therefore, an acceptance of responsibility adjustment is not available here.

Although Sims responds on appeal that he went to trial to preserve First

Amendment issues relating to the lack of evidence that the images at issue

depicted real children, as well as certain “substantive constitutional issues . . .

including the denial of several pre-trial motions,” we are not convinced even this

motivation would distinguish Sims’s case from Salazar-Samangiega. Moreover, it

is clear Sims did contest his factual innocence as to Counts One and Two. He

argued that his conversations with “sweetthingforyou16” were nothing but sexual

- 30 -
fantasy, his purpose for traveling to Missouri was a business meeting, and he was

trapped and provoked.

This is not the rare situation in which an acceptance of responsibility

adjustment is available after a full jury trial. Because this clearly affected the

district court’s selection of the sentence imposed, we reverse and remand for

resentencing. See Williams v. United States, 503 U.S. 193, 203 (1992).

2. Grouping

Next, Sims challenges the court’s “grouping”of Sims’s multiple counts in a

manner that resulted in a two-level increase from an offense level of 31 to 33. 8

His essential arguments are that the district court erred by not grouping all of his

When a defendant is convicted of multiple counts, the sentencing court
8

determines a single base offense level by a process called grouping:

Roughly speaking, when a defendant has been convicted of multiple counts,
the Guidelines require the sentencing court to divide the counts into distinct
groups of closely related counts, compute the offense level for each group,
and then determine the combined offense level by increasing the highest
offense level for any group by an amount based on the number of “units,”
which depends upon the number of groups with offense levels comparable
to the highest level.

United States v. Jose-Gonzalez, 291 F.3d 697, 700 (10th Cir. 2002); see
also U.S.S.G. ch. 3, pt. D. The Guidelines provide that “[a]ll counts involving
substantially the same harm shall be grouped together into a single Group.”
U.S.S.G. § 3D1.2. Generally, counts involve substantially the same harm when
they involve the same victim, transaction, or criminal objective; are measured
based on the same quantity of a substance that is the basis for total harm; or share
a specific guideline offense characteristic. Id.

- 31 -
counts together based on a single, shared harm to society in general and in

creating two separate groups for attempting to entice both Sue and Kate when

these girls were in fact the product of a single imagination and sexual conduct

with Sue, 16, would not have been “prohibited.” 9

As to this first argument, we disagree with Sims that the only victim of his

offenses was society. The guideline itself provides that society-at-large is the

victim only where “there are no identifiable victims (e.g., drug or immigration

offenses . . . ).” U.S.S.G. § 3D1.2, appl. n.2. Here, Sims attempted to engage in

sexual acts with specific minors, and if Sue and Kate had “been available, they,

rather than society in general, would have been harmed.” United States v. Butler,

92 F.3d 960, 963-64 (9th Cir. 1996). We agree with the Ninth Circuit in Butler

that fictitious children, used as part of an undercover sting operation, may be

treated as separate victims for grouping purposes.

9
Sims also objects to the district court’s application of a cross-reference to
reach this original base offense level based on a finding that Sims traveled “for
the purpose of producing a visual depiction” of a minor engaged in sexually
explicit conduct. See U.S.S.G. § 2G1.1(c)(1). However, Sims’s arguments here
have no merit. The district court did not have to find that the singular purpose of
Sims’s trip was to produce child pornography, and there was more than sufficient
evidence that this was a purpose of his trip. Sims sent e-mails to another adult
saying he would send pictures of the girls when he returned, emailed Sue and
Kate about taking pictures of them, and had at least three cameras in his
possession when he was arrested at the roller-rink.

- 32 -
 This conclusion is bolstered by the commentary to U.S.S.G. § 2G1.1, which

has been amended since Sims’s offense conduct to expressly define the victim of

an enticement offense to “include an undercover law enforcement officer.”

U.S.S.G. § 2G1.1, appl. n.1; see also id. at app. C, amend. 592 (2001 manual) at

1074, 1083 (making amendment effective November 1, 2000). Although Sims

argues this amendment is a substantive change that cannot be applied to him

without violating the Ex Post Facto Clause, see United States v. Swanson, 360

F.3d 1155, 1166 (10th Cir. 2004), we disagree. In its reasoning statement for

Amendment 592, the Commission did not discuss this addition to § 2G1.1

specifically but did say, in the context of a very similar addition in § 2A3.2, that

several definitions were added “including clarifying that ‘victim’ includes an

undercover police officer who represents to the perpetrator of the offense that the

officer was under the age of 16 years.” U.S.S.G., app. C, amend. 592 at 1082

(emphasis added).

In addition, we have already found another aspect of Amendment 592,

which the Commission described as “clarif[ying] the meaning of the term ‘item’ .

. . [and] adopt[ing] the holding of all circuits that have addressed the matter that a

computer file qualifies as an item for purposes of the enhancement” to be

clarifying. United States v. Thompson, 281 F.3d 1088, 1092-93 (10th Cir. 2002)

(quotation omitted). As in Thompson, here the effect of Amendment 592 is to

- 33 -
create a guideline consistent with the existing precedent in Butler and to revise a

commentary note rather than a guideline. In addition, the Commission has

characterized it, at least in the explanation of a parallel change in § 2A3.2, as

“clarifying.” Therefore, we agree with the district court that the victims for the

groups here at issue in Count One were the fictitious girls, not society at large.

As to Sims’s alternative argument that his conduct as to Count One should

not have resulted in separate groups for Sue and Kate, we find little merit. 10 Sims

asserts that Sue and Kate were products of the same imagination and sexual

conduct with a 16-year-old would not have been “prohibited.”

We reject the idea that two fictitious victims from a single undercover

operation must be treated as a single victim for grouping purposes. This is

inconsistent with the reasoning of Butler, 92 F.3d at 963-64, which permitted

three fictitious minor identities to be grouped as three separate victims.

We also reject Sims’s argument that sexual conduct with 16-year-old Sue,

as she was presented in the e-mail and instant message exchanges, would not have

been prohibited. Prohibited sexual conduct is defined as “any sexual activity for

10
As a matter of Guidelines application, we note that the Guideline for
Count One expressly provides: “If the offense involved more than one victim,
Chapter Three, Part D (Multiple Counts) shall be applied as if the promoting of
commercial sex act or prohibited sexual conduct in respect to each victim had
been contained in a separate count of conviction.” U.S.S.G. § 2G1.1. Therefore,
the fact that there are two groups for this single Count One conviction is
consistent with the Guidelines.

- 34 -
which a person can be charged with a criminal offense” and includes “the

production of child pornography.” U.S.S.G. § 2G1.1 (cross-referencing to

definition at § 2A3.1, appl. n.1). Although Sims asserts that the age of consent to

sexual relations in the federal jurisdiction is 16, see 18 U.S.C. § 2243(a), the

Guidelines definition is not so limited. Sims could have been charged with a

multitude of offenses had he engaged in sexual conduct with Sue—including

Missouri’s second degree statutory rape offense. See Mo. Stat. Ann. § 566.034

(penalizing anyone over 21 having sex with someone under 17). Therefore, we

find no error in the court’s grouping in this case.

B. Departure issues

The district court refused to depart on the grounds of diminished capacity

or based on a combination of discretionary factors pushed by Sims. However, the

court did depart down nine levels on the basis of aberrant behavior. Both sides

appeal.

1. Jurisdiction

We have no jurisdiction to review a district court’s “discretionary decision

to deny a motion for downward departure on the ground that a defendant's

circumstances do not warrant the departure.” Sierra-Castillo, 405 F.3d at 936.

Instead, our review extends only to “the very rare circumstance that the district

court states that it does not have any authority to depart from the sentencing

- 35 -
guideline range for the entire class of circumstances proffered by the defendant.”

United States v. Brown, 316 F.3d 1151, 1154 (10th Cir. 2003).

Here, Sims sought a departure on a combination of discretionary factors

including victim misconduct, the likelihood of abuse in prison, and a combination

of factors including Sims’s unlikelihood of his recidivism, job loss, and age. The

district court concluded a discretionary departure was not warranted on these

grounds. Because the court clearly knew it had authority to depart on these

grounds but simply elected not to do so in this case, we cannot entertain these

issues on appeal.

On the other hand, in denying the diminished capacity departure, the

district court explained that Sims was “not qualified, and is therefore, ineligible

for a departure based on diminished capacity, because [Sims’s] offense conduct

involves a serious threat of violence. The Court views this fact as disqualifying it

from permitting a reduction based on diminished capacity.” Therefore, we have

jurisdiction to review this specific denial of a departure. See, e.g., United States

v. Mitchell, 113 F.3d 1528, 1535-36 (10th Cir. 1997).

2. Diminished capacity

The diminished capacity policy statement permits a sentence below the

applicable guideline range if the defendant suffered from a significantly reduced

mental capacity. U.S.S.G. § 5K2.13. “However, the court may not depart below

- 36 -
the applicable guideline range if . . . the facts and circumstances of the

defendant’s offense indicate a need to protect the public because the offense

involved actual violence or a serious threat of violence.” Id.

Upon Defendant’s motion for a departure based on diminished capacity in

this case, the district court noted that “the defendant has established by a

preponderance of the evidence that his dementia significantly impaired his mental

abilities.” However, the district court believed Sims was ineligible for such a

departure because the “offense involved actual violence or a serious threat of

violence.”

Section 5K2.13 does not define which offenses, or what offense conduct,

involve actual violence or a serious threat of violence. However, in United States

v. Constantine, we found it obvious that a threat of violence was “inherent” in a

conviction for possession of a firearm, and that the diminished capacity guideline

was therefore inapplicable in that case. 263 F.3d 1122, 1126 (10th Cir. 2001).

Other potentially violent crimes to which this bar has been applied include bank

robberies, threatening communications, and kidnapping. See Andrew M.

Campbell, Annotation, Downward Departure under § 5K2.13 of United States

Sentencing Guidelines, 128 A.L.R. Fed. 593 §§ 20-24.

We have found no “clear or obvious error” where a district court

determined that both enticing a minor and traveling for the purpose of engaging in

- 37 -
sexual acts with a minor are crimes of violence under the definition in 18 U.S.C.

§ 16. United States v. Johnson, 183 F.3d 1175, 1179 (10th Cir. 1999). The Sixth

Circuit has also held that enticing a minor to engage in sexually explicit conduct

for the purpose of producing a visual depiction is a crime of violence under

U.S.S.G. § 4B1.2 because it presents a serious potential risk of physical injury.

United States v. Champion, 248 F.3d 502, 506 (6th Cir. 2001). Moreover, the

commentary for § 2A3.1, the guideline Sims was sentenced under for Count Two

(traveling with intent to engage in sexual conduct with a minor), specifically

states: “Sexual offenses addressed in this section are crimes of violence. Because

of their dangerousness, attempts are treated the same as completed acts of

criminal sexual abuse.” 11 Id. § 2A3.1, appl. n.5.

Based on this, we easily agree with the district court that Sims’s offenses

included a serious threat of violence. Therefore, a departure based on diminished

capacity is not permissible under the guidelines.

11
Indeed, we have regularly held crimes involving sexual contact with
minors to be crimes of violence. See, e.g., United States v. Rowland, 357 F.3d
1193, 1197-98 (10th Cir. 2004) (affirming “crime of violence” classification
under § 4B1.2 where “Oklahoma’s statutory definition of sexual battery presents
the serious possibility of risk of physical injury”) (citations omitted); United
States v. Vigil, 334 F.3d 1215, 1223-24 (10th Cir. 2003) (concluding risk of
injury “inherent” in Colorado’s aggravated incest offense makes it a crime of
violence under § 4B1.2 even though, like arson or burglary, there might be some
cases where incest occurs without actual physical injury).

- 38 -
 3. Aberrant behavior

Finally, we consider the district court’s decision to depart downward nine

levels on the basis of aberrant behavior. 12 The guideline provides that “[a]

sentence below the applicable guideline range may be warranted in an

extraordinary case if the defendant’s criminal conduct constituted aberrant

behavior. . . . ‘Aberrant behavior’ means a single criminal occurrence or single

criminal transaction . . . without significant planning[,] . . . of limited duration[,

and that] represents a marked deviation by the defendant from an otherwise law-

abiding life.” U.S.S.G. § 5K2.20 & appl. n.1. The commentary specifically

include a defendant’s “record of prior good works” and “motivation for

committing the offense” as proper circumstances to consider in departing on these

grounds. Id. at appl. n.1. However, the departure requires more than just the

absence of a prior criminal record. United States v. Benally, 215 F.3d 1068, 1074

(10th Cir. 2000).

In deciding to depart here, the district court emphasized Sims’s (1) medical

condition, (2) long history of living an “exemplary” law-abiding life, (3)

significant support from family and friends, (4) prior history of close relationships

12
Both the Government and Sims object to the size of this departure.
Predictably, the Government asserts it was unreasonably large while Sims claims
it was too small where the district court earlier suggested it would depart ten
levels. Because we ultimately conclude the aberrant behavior departure was not
warranted at all, we do not reach these issues of degree.

- 39 -
with children without any sexual abuse reports, and (5) continued good behavior

subsequent to his arrest. However, the Government asserts that Sims is not

qualified for such a departure because he distributed pornographic images on the

Internet for almost a year and spent months planning his trip to Missouri to meet

Sue and Kate.

Certainly, we can agree with the district court’s finding that Sims’s

criminal behavior represented “a marked deviation by the defendant from an

otherwise law-abiding life.” However, we simply cannot decipher how Sims’s

well-planned, detailed scheme over the course of several months to entice and

rendevous with minor girls, as well as what seems to be repeated distribution of

child pornography, was a “single criminal occurrence or single criminal

transaction . . . without significant planning [and] of limited duration.” In cases

with similar facts, courts have not permitted such a departure. E.g., United States

v. Orrega, 363 F.3d 1093, 1097-98 (11th Cir. 2004) (no aberrant behavior

departure where defendant convicted of enticing minor to engage in sexual acts

where defendant had two 90-minute online conversations, almost one month apart,

with undercover agent posing as 13-year-old girl, during which he requested that

they engage in sexual acts, he sent naked picture of himself to agent, arranged

meeting place, and drove to meeting place).

- 40 -
 Furthermore, here we cannot consider Sims’s mental condition as a grounds

for a diminished capacity departure because the crime involves a risk of violence,

and we cannot agree that the Guidelines permit the use of aberrant behavior as an

end run around this limitation. Therefore, giving Sims’s extended planning and

enticement of Sue and Kate, combined with frequent distribution of child

pornography, we must reverse this departure.

C. Fine

Finally, Sims objects to the court’s imposition of a $10,000 fine. Although

Sims did make some objections to the PSR’s asset calculation, Sims did not object

to any fine-related issue at the sentencing hearing. Therefore, we review this fine

for plain error.

Sims’s current financial situation does appear to be problematic, as he lost

his engineering job in New Mexico and, according to Sims’s own objection to the

PSR, “was not represented by counsel in his divorce proceedings and his former

wife was left with all the assets and defendant ended up with only the debts.”

The PSR also notes, however, that “[a]ccording to the defendant, he and his ex-

wife chose to divorced [sic] for financial purposes; however, they continue to

reside together as a family.” Moreover, prior to the divorce, Defendant “reported

having various trust and retirement accounts which had an aggregated value of

one million dollars.”

- 41 -
 We are struck by the fact that Defendant appears to have concealed assets

by getting a divorce for financial purposes . Given these suspicious

circumstances, we cannot say the district court committed plain error in setting

the fine at $10,000 in this case. Therefore, we affirm this fine.

IV. Conclusion

We AFFIRM Sims’s convictions and the district court’s pre-trial rulings in

this case. We REVERSE the district court’s sentence as to the acceptance of

responsibility adjustment and the aberrant behavior departure. We REMAND

with instructions to vacate Sims’s sentence and to resentence under advisory

Guidelines. Therefore, we do not reach Sims’s Booker claims. 13 14

Before this court is also Sims’s motion to strike portions of the
13

Government’s brief referencing Sims’s suppressed confession and a pending civil
proceeding unrelated to the instant case. Because we have not relied on any of
the contested information in reaching this decision, we deny Sims’s motion. Sims
also requested additional oral argument on the Booker issues in this case.
Because we do not need to reach those issues here, we DENY that request.
14
Sims’ Motion to Supplement the Record on Appeal is granted.

- 42 -