United States Court of Appeals
Fifth Circuit
F I L E D
In the February 9, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-30115
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
BRUCE H. PERRIN,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:05-CR-16
______________________________
Before HIGGINBOTHAM, SMITH, and I.
DEMOSS, Circuit Judges. The Louisiana State University (“LSU”)
police received information that Perrin, an
JERRY E. SMITH, Circuit Judge: LSU student, was trading images of child por-
nography over the internet with someone in
Bruce Perrin pleaded guilty of two counts Kentucky. Pursuant to a search warrant, LSU
of receipt of child pornography and one count police searched Perrin’s residence and seized
of possession of child pornography. The gov- a computer and other digital media storage
ernment appeals his sentence, claiming that the devices containing 4,237 images of child por-
district court impermissibly departed from the nography, comprised of 3,942 still images and
applicable guideline range. Because the court 295 videos.
failed to articulate sufficient reasons to justify
the departure, we vacate the sentence and re- Many of these images depict prepubescent
mand for resentencing. children being raped by adults, and six depict
children engaged in bestiality. The presen- the government’s request for a one-level re-
tence report (“PSR”) provides three examples: duction based on Perrin’s substantial assis-
tance, which resulted in his ultimate sentencing
(1) a video depicting an adult male ejacu- range of 108 to 135 months’ imprisonment.
lating into the mouth of approximately The statutory minimum was 60 months. The
four-year-old female child while the child statutory range for supervised release follow-
says, “please stop, stop, stop . . . .”; ing incarceration was 5 years to life.
(2) multiple images depicting sexual activity Perrin was sentenced to the statutory mini-
between an approximately six-year-old fe- mum of sixty months’ imprisonment, followed
male child and a dog; and by ten years’ supervised release. At the sen-
tencing hearing the court described the crime’s
(3) images of an approximately three-year- severity, citing the graphic details mentioned
old female child being anally penetrated by above. It found that Perrin was a substantial
an adult male. consumer but not a producer of child pornog-
raphy and that Congress has concluded that
The pictures were segregated and categorized possession of child pornography should be
based on their content. For example, the fol- punished because if there were no consumers
der entitled “young” contained pornographic there would be a greatly reduced market. The
images of children between the ages of three court said that it had carefully considered the
and ten. guidelines and had concluded that the penalties
for possession of child pornography were dis-
Perrin admitted that he had been actively proportionate to those for producing such ma-
distributing, receiving, and possessing child terial, and reiterated that Perrin was not a
pornography for several years. He had estab- producer.
lished a computer program that made his im-
ages available for trading over the internet at The court found that Perrin was not a risk
all times, and others had downloaded images to the community and that there was no indi-
of child pornography from his computer on cation that he had ever “attempted to perform
hundreds of occasions. The National Drug In- anything similar to the visual depictions that he
telligence Center identified the children in 849 possessed.” Perrin was aware of the conse-
of the images as known victims of child por- quences of his conduct, and the court was im-
nography. pressed that he had voluntarily begun counsel-
ing. The court stressed that the ten years’ su-
Before pleading guilty, Perrin assisted the pervised release would be onerous and that
government by providing information and of- “[t]his sentence will double the typical amount
fering to testify against a child pornography of time spent under supervision.”1 The gov
defendant in Kentucky. He also voluntarily
entered counseling with a psychologist spe-
cializing in sexually deviant behaviors. 1
The court appears to base this statement on
the typical sentence administered by that particular
The guideline sentencing range was 121 to court. A ten-year term of supervised release is
151 months’ imprisonment. The court granted toward the low end of the statutory range of five
(continued...)
2
ernment made an unsuccessful objection to the United States v. Duhon, 440 F.3d 711, 714
unreasonableness of the sentence, particularly (5th Cir.) (citing Booker, 543 U.S. at 261),
its departure to the statutory minimum. petition for cert. filed (U.S. May 18, 2006)
(No. 05-11144).
In the written “Statement of Reasons,” the
court repeated its bases for Perrin’s sentence. Sentences fall into one of three categories:
The sentence “reflects the seriousness of the (1) within the guideline range, (2) an upward
offense and provides just punishment for one or downward departure as allowed by the
who possessed child pornography.” The writ- guidelines, or (3) outside the guideline range.
ten statement also emphasized that the sen- United States v. Smith, 440 F.3d 704, 706-07
tence doubles “the typical amount of time (5th Cir. 2006). Perrin’s sentence is in the
spent under supervision.” third category and thus is considered a “non-
II.
After United States v. Booker, 543 U.S. 2
(...continued)
220 (2005), we continue to review a district (B) to afford adequate deterrence to criminal
court’s application of the sentencing guidelines conduct;
de novo and its findings of fact for clear error.
United States v. Caldwell, 448 F.3d 287, 290 (C) to protect the public from further crimes
(5th Cir. 2006) (citing United States v. Ville- of the defendant; and
gas, 404 F.3d 355, 359 (5th Cir. 2005)). “The
ultimate sentence is reviewed for ‘unreasonable- (D) to provide the defendant with needed
educational or vocational training, medical
ness’ with regard to the statutory sentencing
care, or other correctional treatment in the
factors enumerated in [18 U.S.C. § 3553(a)].”2 most effective manner;
(3) the kinds of sentences available;
1
(...continued)
years to life, and a sentencing guidelines policy (4) the kinds of sentence and the sentencing
statement recommends that convicted sex offenders range established for
receive the statutory maximum term of supervised
release, which in Perrin’s case is life. See dis- (A) the applicable category of offense com-
cussion infra Part III.B. mitted by the applicable category of defen-
dant as set forth in the guidelines . . . ;
2
These factors include
(5) any pertinent policy statement . . . ;
(1) the nature and circumstances of the offense
and the history and characteristics of the de- (6) the need to avoid unwarranted sentence dis-
fendant; parities among defendants with similar records
who have been found guilty of similar conduct;
(2) the need for the sentence imposed and
(A) to reflect the seriousness of the offense, (7) the need to provide restitution to any victims
to promote respect for the law, and to pro- of the offense.
vide just punishment for the offense;
(continued...) 18 U.S.C. § 3553(a) (2000).
3
guideline” sentence. Before imposing a non- promote respect for the law, and to provide
guideline sentence, the court is “required to just punishment for the offense.” 18 U.S.C.
calculate the guideline range and consider it § 3553(a)(1), (2)(A). Though it noted the se-
advisory.” United States v. Angeles-Mendoza, verity of the offense, the court failed to explain
407 F.3d 742, 746 (5th Cir. 2005). If the how this severity, particularly the images’ de-
court then decides to impose a non-guideline pravity and numerosity, factored into its deci-
sentence, the guideline range should be used as sion to depart downward from the guideline
a frame of reference. Smith, 440 F.3d at 707. range to the statutory minimum.
A non-guideline sentence must be support- Even for child pornography, the images
ed by a careful articulation of the reasons for possessed by Perrin were unusually reprehen-
the appropriateness of the sentence. United sible. A downward departure is unreasonable,
States v. Mares, 402 F.3d 511, 519 (5th Cir.), based at least in part on the content of the im-
cert. denied, 126 S. Ct. 43 (2005). This enab- ages, where the defendant possessed images
les the reviewing court to determine whether that depicted the severe molestation of girls
the sentence is unreasonable according to the aged eight to ten years. Duhon, 440 F.3d at
§ 3553(a) factors. The more a sentence de- 719. “Under the circumstances, the district
parts from the guideline range, the “more com- court misjudged the seriousness of Duhon’s
pelling the justification based on factors in offense. As a result, the sentence imposed
section 3553(a) must be.” Smith, 440 F.3d at fails to advance sufficiently the sentencing ob-
707 (internal quotations and citations omitted). jectives enumerated in section 3553(a)(2)-
(A)-(B).” Id. at 720.
Smith articulates the specific test for deter-
mining whether a non-guideline sentence is un- Based on the examples in the PSR, the im-
reasonable under Booker. “A non-Guideline ages possessed by Perrin are at least as severe
sentence unreasonably fails to reflect the stat- as those described in Duhon. Perrin’s images
utory sentencing factors where it (1) does not depict the rape of girls as young as three,
account for a factor that should have received compared to the eight-year-olds in Duhon’s
significant weight, (2) gives significant weight pictures. Perrin also possessed images depict-
to an irrelevant or improper factor, or (3) rep- ing children involved in bestiality. Under Du-
resents a clear error of judgment in balancing hon, the district court misjudged the severity
the sentencing factors.” Id. at 708. of the crime, as measured by the depravity of
the images, and the sentence does not suffi-
III. ciently account for the sentencing factors of
Perrin’s sentence fails the first and second §§ 3553(a)(1)-(2), as required by Smith.
prongs of the Smith test and thus is unreason-
able. We examine why this is so. In addition, the number of images pos-
sessed by Perrin (4,237) warrants a finding
A. that this crime is particularly severe. The
The court did not give sufficient weight to guidelines consider the number of images in
the “the nature and circumstances of the of- calculating the offense level, but the scale has
fense” and “the need for the sentence imposed a maximum level of “over 600 images;” Perrin
to reflect the seriousness of the offense, to possessed over seven times that number.
4
Further, if the current version of the guidelines improper for the court to consider.
had been used, more than 26,000 images of
child pornography would have been attributed The court noted repeatedly that Perrin was
to Perrin for sentencing purposes.3 a consumer, not a producer, of child pornogra-
phy. It also noted that there was no evidence
Based on the content and numerosity of the that he had tried to perform the actions depict-
images possessed by Perrin, this crime falls at ed in his illegal pornography collection. These
the more severe end of possession of child are improper reasons for imposing a non-
pornography cases. The court did not articu- guideline sentence. The fact that a defendant
late sufficiently how the severity of the crime did not commit, or have the tendency to com-
factored into its decision to depart from the mit, a more severe crime does not warrant a
guideline range and impose the minimum sen- downward departure for the crime actually
tence allowed by law, so the sentence fails to committed.5
advance sufficiently the objectives stated in
§ 3553(a)(2)(A)-(B).4 The guidelines make a sharp distinction be-
tween the production and the possession of
B. child pornography:
The court gave four reasons for its depar-
ture. First, Perrin did not produce child por- Congress established a series of distinctly
nography, but merely possessed it. Second, he separate offenses respecting child pornog-
voluntarily entered counseling after his arrest. raphy, with higher sentences for offenses
Third, he understood the consequences of his involving conduct more likely to be, or
actions and wanted to rehabilitate himself. Fi- more directly, harmful to minors than the
nally, the term of supervised release was par- mere possession offense. Similarly, the
ticularly onerous. Each of these factors was guidelines clearly reflect consideration of
whether and the degree to which harm to
minors is or has been involved.
3
The probation office used the 2003 edition of
the guidelines manual because it was “less oner- Duhon, 440 F.3d at 718 (quoting Grosenhei-
ous” and its use was intended to “avoid any ex post der, 200 F.3d at 332-33). If Perrin had pro-
facto issues.” The difference between the 2003 and duced the images, the guideline range would
2005 editions lies in the formula used to convert have been 324-405 months, significantly higher
pornographic videos into an equivalent number of than the range he ultimately faced. Thus, his
still images for sentencing enhancement purposes. guideline range already accounted for the fact
Under the 2003 edition, a video counts as one im- that he did not produce child pornography, and
age, but under the 2005 edition, in force at the time it was impermissible for the court to reduce
of sentencing, each video is to be considered as the sentence on the basis that he did not com-
seventy-five still images.
mit an additional, more egregious, crime.
4
Also related to the severity of Perrin’s offense
is the district court’s failure to describe its consid-
eration of the need to avoid unwarranted sentencing
5
disparities among defendants with similar records See United States v. Grosenheider, 200 F.3d
who have been found guilty of similar conduct. 321, 333-34 (5th Cir. 2000); Duhon, 440 F.3d at
See 18 U.S.C. § 3553(a)(6). 718-19.
5
The court also based its sentence on Per- in the length of incarceration because, despite
rin’s contrition and his commencement of the court’s pronouncement, a ten-year term of
counseling. These reasons are inappropriate supervised release is less onerous, not more,
grounds for imposing a non-guideline sen- than what is recommended for receipt and pos-
tence, because they are already accounted for session of child pornography. The statutory
in the reduction for acceptance of responsibil- range is five years to life, and the district court
ity. United States v. Goldsmith, 192 Fed. was certainly within its discretion to impose a
Appx. 261, 267 (5th Cir. 2006). In Goldsmith term on the low end of this range. But “Con-
the district court had given a non-guideline gress and the Sentencing Commission intended
sentence because, inter alia, it found that the to impose life terms of supervised release on
defendant had accepted responsibility for his sex offenders. Congress explicitly recognized
crime and had participated in a drug rehabili- the high rate of recidivism in convicted sex
tation program after his arrest. We concluded offenders.”7
that, under Smith, both of these are improper
factors that could not be relied on to justify a Thus, Perrin’s supervised release term was
non-guideline sentence. The first is accounted significantly lower than that recommended by
for, on its face, in the acceptance-of-responsi- Congress and the Sentencing Commission. It
bility reduction. The second, participation in is inappropriate to use such a term of super-
counseling, is accounted for in the same re- vised release as the basis for a departure from
duction.6 the guideline range.
Like the defendant in Goldsmith, Perrin ac- IV.
cepted responsibility for his actions and en- Booker provided sentencing courts signifi-
tered a counseling program after his arrest. cant flexibility, but that flexibility is not bound-
Although Goldsmith, being an unpublished de- less. Non-guideline sentences require the
cision, does not bind us, its reasoning is per- greatest justification, and here the district
suasive, and we adopt its holding now as pub- court fell short. Perrin’s sentence fails the first
lished authority. A defendant’s contrition and two prongs of Smith, because the court did not
commencement of counseling are already ac- adequately account for the severity of the
counted for, according to the guidelines man- crime, and each of the four reasons given for
ual, in the acceptance-of-responsibility reduc- the departure was improper. Without these
tion and thus are inappropriate as a basis for a reasons, no justification remains for the signif-
further sentence reduction. icant departure from the guideline range.
Finally, the court in the instant case noted The judgment of sentence is VACATED
the severity of the ten-year supervised release and REMANDED for resentencing.
term. This is not a valid reason for a departure
6
Goldsmith, 192 Fed. Appx. at 267 (citing
U.S.S.G. § 3E1.1 comment. n.1(g) (“In determin-
7
ing whether a defendant qualifies under subsection United States v. Allison, 447 F.3d 402, 406
(a), appropriate considerations include . . . post- (5th Cir. 2006) (citing 18 U.S.C. § 3583(k); H.R.
offense rehabilitative efforts (e.g., counseling)”)). REP. NO. 108-66 (2003) (conf. rep.)).
6