IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41054
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW RADLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CR-14 ALL
May 9, 2002
Before POLITZ, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Matthew T. Radley appeals his sentence following convictions for distributing
child pornography and possessing a computer containing child pornography, contending
*
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should not be published and is not precedent except under the limited circumstances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 upwardly departing from the applicable guideline range.
Finding that the district court did not abuse its discretion, we affirm.
We review a district court’s decision to depart from the sentencing guidelines for
abuse of discretion.1 The district court’s determination whether the departure factors
were sufficient to remove the case from the heartland of the applicable guideline must
be afforded substantial deference because of the court’s special competence in
determining what is and is not ordinary.2
Radley contends that the district court abused its discretion in upwardly
departing based on the following factors: (a) his false testimony; (b) his use of a biblical
reference in his computer screen name; and (c) the volume and extreme depravity of
the images he possessed. He asserts that these factors were already taken into account
under the guideline calculation or were irrelevant for sentencing purposes. Even if the
district court considers improper reasons in upwardly departing, the court does not
abuse its discretion if other acceptable reasons exist for the departure.3 Even if we
were to find that the district court erred in relying on Radley’s perjury and use of a
biblical reference, the upward departure nevertheless is supported by the presence of
other acceptable reasons, i.e., the atypical volume and depravity of the pornographic
1
Koon v. United States, 518 U.S. 81, 96-100 (1996).
2
United States v. Threadgill, 172 F.3d 357, 376 (5th Cir. 1999).
3
United States v. Stout, 32 F.3d 901, 903-04 (5th Cir. 1994).
images Radley possessed.
Radley maintains that he received adjustments for trafficking in child
pornography involving prepubescent minors and depicting sadistic, violent conduct.4
While this is true, we defer to the district court’s determination that the images at issue
in the instant case were so exceptionally violent that this case falls outside of the
heartland of like cases.5 The guidelines specifically encourage upward departures
based on “extreme conduct,” such as when the conduct involved in the offense was
unusually heinous or degrading.6 The district court did not abuse its discretion in
determining that the extraordinary volume and nature of the images involved in the
instant action justified an upward departure.
The judgment of the district court is AFFIRMED.
4
U.S.S.G. §§ 2G2.2(b)(1) & (3).
5
See Threadgill, 172 F.3d at 376.
6
U.S.S.G. § 5K2.8.
United States v. Radley
Combined Opinion