United States v. Grosenheider

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50888

UNITED STATES OF AMERICA,

Plaintiff-Appellant-Cross-Appellee,

versus

JOHN STEPHEN GROSENHEIDER,

Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court

for the Western District of Texas, Austin Division

January 11, 2000

Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-cross-appellant John Stephen Grosenheider

(Grosenheider) was indicted for the receipt and possession of

computer images of child pornography under 18 U.S.C. §

2252A(a)(5)(B). After the district court denied his motion to

suppress the evidence taken from his computer, Grosenheider entered

a conditional guilty plea to one count of possession. The court

sentenced him to twelve months’ incarceration. Grosenheider

appeals the denial of his suppression motion, and the government

appeals the sentence. We affirm the district court’s denial of the

suppression motion, but vacate the sentence and remand for

resentencing.

Facts and Proceedings Below

On October 24, 1997, Grosenheider dropped off his personal

computer for repair work at Upgraders, a computer repair shop in

Austin, Texas. While conducting a final quality assurance check of

the computer on Thursday, October 30, 1997, Upgraders employee

Patrick Rowan (Rowan) discovered an unusually large number of image

files, known as “JPG’s”, on the computer’s hard drive. Knowing

that JPG’s in large numbers often depict pornographic images, Rowan

opened some of these files and found between two and five images of

child pornography. Rowan showed the images to his employer,

Nathaniel Monks (Monks), the owner of Upgraders, as well as to two

other employees, all of whom agreed that the images depicted child

pornography. The repairs now complete, the Upgraders staff

returned the computer to the retail store for pick up.

Grosenheider retrieved the computer some time later that day.1

At approximately 9:00 a.m. the next morning, Friday, October

31, 1997, Monks contacted the Austin Police Department about the

images Rowan had discovered. He spoke with Steven Meaux (Meaux),

a vice officer, and informed Meaux about the images he had seen and

the fact that the computer was now back in Grosenheider’s

possession. Meaux arrived at Upgraders thirty to forty-five

minutes later. His primary purpose was to identify and interview

1

Upgraders occupies two suites at either end of a strip shopping

mall in south Austin. The front suite contains the retail store, where

customers interact with store personnel and pick up their repaired

computers. The back suite is the “tech shop” where the actual repairs

take place. Rowan, Monks, and the others all viewed the images on

Grosenheider’s computer in the tech shop suite. Grosenheider picked up

his computer from the retail store suite.

2

the staff members who had seen the images. Meaux first entered the

retail store, but an employee directed him to the tech shop, where

Monks, Rowan, and the other employees who had seen the images were

waiting. When Meaux got there, Monks told him that Grosenheider

had brought the computer back that morning because the hard drive

was still not operating properly, and that Rowan had begun working

on it in the tech shop. As Meaux began to interview the assembled

employees, another employee entered the tech shop and said that

Grosenheider had again returned to the retail store, asking about

his computer. Meaux told Monks to “stall” Grosenheider by telling

him the store needed to order additional parts. Monks complied,

and from the tech shop Meaux watched Grosenheider leave the retail

store and drive away.

After Grosenheider left, Meaux completed his interview of

Rowan, Monks, and the other employees about the images they had

seen on the computer. They told him that the images depicted young

girls approximately ten years old engaged in sexual conduct of

various kinds. During this time, Rowan had been working on his

repair of Grosenheider’s computer, a process which took

approximately fifteen minutes to complete. There is some dispute

–which the district court expressly declined to resolve-whether

Meaux then asked to see or Rowan offered to show him the pictures.

In any event, Rowan attempted to access the images on the computer,

only to find them “locked”, that is, inaccessible without a

password. The password lock had not appeared the day before.

Unable to override the lock, Rowan asked another, more experienced

3

Upgraders employee, Cary Richardson (Richardson), for help. By

using another image viewing program, Richardson by-passed the lock.

Rowan then showed Meaux the images he had seen the day before, as

well as additional ones. After viewing between six and ten images,

Meaux “had seen enough” to determine that the computer contained

depictions of child pornography.

At approximately 11:00 a.m., Meaux took the computer from

Upgraders to his office at the Austin Police Department, and

contacted Theodore Siggins (Siggins), a special agent with the

United States Customs Service. Meaux advised Siggins of his

discovery and asked if Siggins was interested in pursuing a federal

investigation. Siggins agreed to take over the case, and

immediately began preparing a search warrant affidavit. In his

affidavit, Siggins recounted the discovery by the Upgraders staff

of the pornographic images, Grosenheider’s bringing the computer

back to Upgraders, and the call from Monks to Meaux. He did not

mention Meaux’s viewing of the images or his seizure of the

computer. At approximately 4:30 p.m. that afternoon, Siggins

applied for and received a warrant to search the computer from a

United States Magistrate Judge.

After obtaining the warrant, Siggins secured the computer

from Meaux and took it to Upgraders, where he informed Monks that

he had a warrant for the computer and would return it to Upgraders

once he had finished searching it. Siggins then took the computer

back to his office and made a backup image of the computer’s entire

hard drive. He analyzed the image on one of the government’s

4

computers, and found that Grosenheider had subscribed to Forte

Agent, an on-line service that enables subscribers to access

various “newsgroups” on the Internet.2 Grosenheider had subscribed

to fifteen newsgroups, thirteen of which featured images and

messages concerning child pornography.3 Siggins found that from

these newsgroups Grosenheider had downloaded over 500 images of

young females, ages ten to fourteen, engaged in various sexually

explicit acts. Grosenheider had also established over 250 files,

each of which contained at least one image of child pornography and

sometimes included textual commentary with the image. Siggins

determined further that Grosenheider had viewed many of these

images more than once because the “creation date” on the files

sometimes differed from the “last access date”, meaning that the

file had been modified or viewed after being downloaded. Based on

these findings, Siggins applied for and received another warrant to

search Grosenheider’s home in Austin.

On the following Monday, November 3, 1997, Siggins returned

the computer to Upgraders in anticipation of a “controlled

delivery.” Grosenheider’s wife picked up the computer from

Upgraders that same day and took it back to their home. Federal

agents followed Mrs. Grosenheider to the residence; upon her

arrival, they executed the search warrant. The agents seized the

2

A “newsgroup” is an Internet site organized around a single

topic. Like a bulletin board, a newsgroup enables individuals to post

files, such as text messages or images, which other viewers may then

read or download onto their own computers.

3

Eleven of the newsgroups had titles that clearly indicated that

they dealt with child pornography.

5

computer, but did not find any additional child pornography at the

residence.

Grosenheider was indicted and charged with (1) Receipt of

Visual Depictions of Minors engaged in Sexually Explicit Conduct in

violation of 18 U.S.C. § 2252(a)(2), and (2) Possession of Visual

Depictions of Sexual Activities by Minors in violation of 18 U.S.C.

§ 2252A(a)(5)(B). On February 26, 1998, Grosenheider filed a

motion to suppress the evidence seized from his computer and

residence. While conceding that the first search of his computer

by Rowan was a private search, and therefore not subject to the

Fourth Amendment, Grosenheider challenged the second search by

Meaux. Specifically, he alleged that Meaux’s breaking (with the

help of Upgraders employees) the password lock, viewing more images

than Rowan had seen, and subsequently seizing the computer violated

Grosenheider’s rights under the Fourth Amendment. The district

court conducted two evidentiary hearings, on March 13 and May 1,

1998, and denied the motion in a May 11, 1998 memorandum order.

The following day, May 12, Grosenheider entered a conditional

guilty plea to the possession charge (Count II), pursuant to which

he reserved the right to appeal the denial of his suppression

motion. The remaining count was dismissed.

The district court conducted a sentencing hearing on July 31,

1998, and found that Grosenheider’s total offense level was

eighteen, with an applicable incarceration range of twenty-seven to

6

thirty-three months.4 Apparently reasoning that Grosenheider’s

case bore little resemblance to the “pornography” cases the court

had previously sentenced, which (with one exception) had all

involved “perverted people with a long track record of harm to

others,” the district court departed downward and sentenced

Grosenheider to twelve months incarceration, followed by a three-

year term of supervised release.5 In the court’s opinion, this

sentence was amply sufficient,6 though the court plainly doubted

its legality.7

4

Under U.S.S.G. § 2G2.4, Grosenheider’s initial total offense

level was twenty-one: fifteen for violating 18 U.S.C. § 2252A(a)(5)(B);

two for the specific offense characteristic of material involving a

prepubescent minor; two for the characteristic of possessing ten or more

images depicting the sexual exploitation of a minor; and two for the

characteristic of obtaining the material by using a computer. Because

it found that Grosenheider accepted responsibility for his actions,

however, the district court reduced his offense level by three, pursuant

to section 3E1.1. Grosenheider had no prior convictions.

5

Before pronouncing sentence on Grosenheider, the district court

made preliminary remarks, including the following: “So that everybody

knows where we stand, I am concerned with the guidelines in this case.

I think they’re wrong. I’m not–not that I have one second of doubt that

what you did was not only illegal but just terrible. But the guidelines

in this particular case, it seems to me, are just too high. I don’t see

that it does anybody any good to put you away for three years in prison

. . . . I don’t believe that the sentencing commission had a case in

mind where we have a person who’s 38 or 39 years old, never been in

trouble really, have zero points on criminal history, whether it be

curiosity or just absolute perversion to utilize his computer in this

way . . . . So I’m just giving everybody fair warning, I don’t like this

case, I don’t like the defendant very much, don’t like the guidelines

very much, don’t like the law very much.”

6

“Twelve months in the penitentiary is not easy for anybody. I

think you’ve been more than sufficiently punished for an intelligent

person, and I don’t think you’re going to do this again.”

7

“I state in the record that as far as I’m concerned . . . ,

[this] is an illegal sentence and I do not have the authority to do it

under the express provisions of the guidelines. But this case and the

United States will not be any better off by putting Mr. Grosenheider in

7

Grosenheider now appeals the district court’s denial of his

motion to suppress. The United States appeals Grosenheider’s

sentence. We affirm the denial of the suppression motion, but

vacate the sentence and remand for resentencing.

Discussion

I. Grosenheider’s Motion to Suppress

Grosenheider contends that the district court erred in denying

his motion to suppress the evidence obtained from his computer.

Specifically, he argues that Meaux’s search of the computer, during

which Meaux viewed images of child pornography with help from and

in the presence of Upgraders employees, was illegal, as was Meaux’s

subsequent warrantless seizure of the computer. We conclude,

however, that because Siggins obtained the evidence by lawful means

independent of Meaux’s search or seizure, the evidence used against

Grosenheider was not the “tainted fruit” of any illegality. Under

the “independent source” doctrine, we conclude that this evidence

should not be suppressed. We therefore affirm the denial of

Grosenheider’s motion.

This Court will accept a district court’s factual findings on

a motion to suppress based on live testimony at a suppression

hearing “unless clearly erroneous or influenced by an incorrect

view of the law.” United States v. Wilson, 36 F.3d 1298, 1303 (5th

Cir. 1994). When reviewing the district court’s ruling, we will

“view the facts in the light most favorable to the prevailing

party.” United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).

jail for three years and I’m not going to do it.”

8

Our review of the district court’s interpretation and application

of law is de novo. See United States v. Blocker, 104 F.3d 720, 725

(5th Cir. 1997).

A. Meaux’s Search of the Computer

Grosenheider first argues that Meaux’s search of the computer,

during which Upgraders staff helped by-pass the password lock, was

illegal. At the outset, he rightly concedes that the initial

search by Rowan did not violate the Fourth Amendment, which only

implicates searches and seizures by governmental agents or those

working for them. See United States v. Jacobsen, 104 S.Ct. 1652,

1656 (1984); Blocker, 104 F.3d at 725. He contends, however, that

by breaking the password lock, the second search exceeded the scope

of the initial private search, and, lacking a warrant, was

therefore illegal. We do not reach the merits of this argument,

but instead affirm the district court’s determination that the

evidence from Grosenheider’s computer is admissible under the

“independent source” doctrine. See United States v. Register, 931

F.2d 308, 311 (5th Cir. 1991) (refusing to consider whether exigent

circumstances justified a warrantless entry because the independent

source doctrine applied).

The exclusionary rule of the Fourth Amendment generally

prohibits the introduction at trial of not only primary evidence

obtained as a direct result of an illegal search or seizure, but

also evidence discovered later that is derivative of an illegality,

or constitutes “fruit of a poisonous tree.” Segura v. United

States, 104 S.Ct. 2280, 2284 (1984) (citing Weeks v. United States,

9

34 S.Ct. 341 (1914) and Nardone v. United States, 60 S.Ct. 266, 268

(1939)). The primary limit on this rule is that otherwise

suppressible evidence will still be admitted if the connection

between the alleged illegality and the acquisition of the evidence

is “so attenuated as to dissipate the taint.” Nardone, 60 S.Ct. at

268; see also Segura, 104 S.Ct. at 3391 (rejecting the notion “that

evidence is ‘fruit of the poisonous tree’ simply because ‘it would

not have come to light but for the illegal actions of the police’”)

(citations omitted). One example of this “attenuation” limit is

known as the “independent source” doctrine, which permits the

introduction of unlawfully discovered evidence when the police have

acquired that evidence through a distinct, untainted source. See

Silverthorne Lumber Co. v. United States, 40 S.Ct. 182, 183 (1920);

Segura, 104 S.Ct. at 3391. Animating this doctrine is the

recognition that the goal of the exclusionary rule is to put the

police “in the same, not a worse, position that they would have

been in if no police error or misconduct had occurred.” Nix v.

Williams, 104 S.Ct. 2501, 2509 (1984). “When the challenged

evidence has an independent source, exclusion of such evidence

would put the police in a worse position than they would have been

in absent any error or violation.” Id.

In Murray v. United States, 487 U.S. 533, 537 (1988), the

Supreme Court held that the independent source doctrine extends to

evidence “initially discovered during, or as a consequence of, an

unlawful search, but later obtained independently from activities

untainted by the initial illegality.” Whether Meaux’s assisted

10

breaking of the password lock and subsequent viewing of the JPG

images on the computer’s hard drive were illegal, there is no

causal link between those activities and Siggins’s later search and

seizure of the computer pursuant to his valid warrant. Indeed, it

is undisputed that Siggins obtained his search warrant by relying

solely on the statements by the Upgraders employees to Meaux. He

never mentioned to the Magistrate Judge the fact that Meaux had

viewed the images, or that he still possessed the computer.

Consequently, the search did not taint the Magistrate Judge’s

decision to issue the warrant, which the district court found “the

government obtained exclusively on the basis of Rowan’s initial

private search of the [computer] files.” See id. at 541 (applying

independent source doctrine to later search in which affidavit made

no mention of earlier unlawful search).

In addition to requiring that the decision making process of

the judicial officer issusing the warrant be shielded from the

earlier alleged illegality, Murray also mandates that the district

court find that the agents would have sought the warrant even if

that illegality had never taken place. See id. at 542-43 & n.3

(“[W]hat counts is whether the actual illegal search had any effect

in producing the warrant.”).8 The district court satisfied this

8

Despite being framed as part of the independent source analysis,

this requirement bleeds into the “inevitable discovery” doctrine, which

renders the exclusionary rule inapplicable to otherwise suppressible

evidence if that evidence would inevitably have been discovered by

lawful means. See 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE

FOURTH AMENDMENT § 11.4(a) (3d ed. 1996). The reason for this slippage

between the two doctrines is that they are actually two sides of the

same coin. As the Murray Court recognized, inevitable discovery is no

more than “an extrapolation” of the independent source doctrine: “Since

11

requirement by finding “credible” Siggins’s testimony that the

witness statements by the four Upgraders employees, all of whom

agreed that the images depicted child pornography, were sufficient

to prompt his decision to seek the warrant. The district court

also found “[i]f Meaux had not viewed the images, the Court is

certain that Siggins would nevertheless have sought and obtained a

search warrant for the defendant’s computer.” These findings are

supported by the record and are not clearly erroneous.

B. Meaux’s Seizure of the Computer

Grosenheider next argues that Meaux’s seizure of the

computer–his taking it from Upgraders and holding it for the four

or five hour period until Siggins secured it with the search

warrant–was illegal. According to Grosenheider, even if Meaux’s

search was reasonable, the seizure was not, and in any event the

independent source doctrine does not apply to illegal seizures. We

reject Grosenheider’s latter argument as unsupported by precedent,

and consistent with our discussion of Meaux’s search, do not

address the question of the seizure’s reasonableness because

Siggins’s “re-seizure” of the computer eliminated any taint from

Meaux’s initial seizure.

Citing a passage in part IV of the opinion in Segura v. United

the tainted evidence would be admissible if discovered through an

independent source, it should be admissible if it inevitably would have

been discovered.” Murray, 487 U.S. at 539; see also LAFAVE at § 11.4(a)

(referring to inevitable discovery as “a variation” on the independent

source doctrine). We observe that the decision not to suppress the

evidence in this case–with regard to both the search and seizure by

Meaux–could be upheld under either doctrine.

12

States, 104 S.Ct. 3380, 3386-90 (1984), Grosenheider contends that

the independent source doctrine is inapplicable to illegal

seizures, and would have us announce a rule that the occurrence of

all such seizures automatically mandates the suppression of any

evidence seized. This we decline to do. In Segura, the Supreme

Court held that two officers’ illegal entry into an apartment did

not require suppression of evidence later discovered at the

apartment pursuant to a valid, independent search warrant. The

defendants argued that during the first illegal entry the officers

had “seized” all the contents of the apartment and therefore the

evidence should be suppressed. In part IV of Chief Justice

Burger’s opinion for the Court–a portion of the opinion joined in

only by Justice O’Connor–the following somewhat cryptic passage

appears:

“Plainly, this argument is advanced to avoid the

Silverthorne <independent source’ exception. If all the

contents of the apartment were <seized’ at the time of

the illegal entry and securing, presumably the evidence

now challenged would be suppressible as primary evidence

obtained as a direct result of that entry.” 104 S.Ct. at

3386.

Grosenheider argues that this language establishes that a

later independent “re-seizure” can never cure an initial illegal

seizure. It is far from clear, however, whether this murky dicta

actually supports that proposition. Moreover, it is unlikely that

such a broad and mandatory application of the exclusionary rule

would be so cryptically announced. Further, only one other Justice

joined Chief Justice Burger in this part of the opinion, and the

language is thus not binding on lower courts. See also Joshua

13

Dressler, A Lesson in Incaution, Overwork, and Fatigue: The

Judicial Miscraftsmanship of Segura v. United States, 26 WM. & MARY

L. REV. 375, 416 (1985) (“Part IV is, in fact, a concurring opinion

by two justices, and can be deleted without affecting the

opinion.”). Finally, the Court’s later opinion in Murray

specifically cites Segura yet never notes that it stood for the

proposition Grosenheider suggests.

In fact, the Murray Court specifically found that an

independent “re-seizure” can cure an earlier illegal seizure in the

same way a valid later search can cure an earlier illegal one.

Murray, 487 U.S. at 542. Eschewing the “metaphysical” distinction

between searches and seizures, the Court observed that “[s]o long

as a later, lawful seizure is genuinely independent of an earlier,

tainted one (which may well be difficult to establish where the

seized goods are kept in the police’s possession) there is no

reason why the independent source doctrine should not apply.” Id.

In this case, it is clear that neither Siggins nor Meaux made any

use of the computer while Meaux held it for five hours: Meaux

simply safeguarded it, while Siggins conducted his analysis of the

hard drive’s contents after he obtained the untainted warrant and

made a proper seizure. Regardless of the propriety of Meaux’s

seizure, there is no question that Siggins’s “re-seizure” was

independent from it.

Grosenheider does not specifically contend that matters would

have eventuated differently had Meaux not seized the computer and

taken it to his office. Nor does he explain, or anything in the

14

evidence suggest, how this might be so in light of the district

court’s adequately supported findings that the search warrant was

“obtained exclusively” on the basis of the initial private search

and would have been obtained by Siggins–who did not possess or

examine the computer until he received the warrant–even if “Meaux

had not viewed the images.” The only theoretically possible basis

on which a contention that there would have been a different

ultimate outcome could be grounded is that, in the four or five

hour interval between Meaux’s seizure of the computer and Siggins’

securing it pursuant to the warrant, Grosenheider (or someone on

his behalf) might have reclaimed the computer from Upgraders and

either purged it of all the child pornography or thrown it away

where it could not be found.9 The Segura court explicitly rejected

that very sort of contention, stating:

“It may be that, if the agents had not entered the

apartment, petitions might have arranged for the removal

or destruction of the evidence, and that in this sense

the agents’ actions could be considered the ‘but for’

cause for discovery of the evidence. But at this

juncture, we are reminded of Justice Frankfurter’s

warning that ‘[s]ophisticated argument may prove a causal

connection between information obtained through [illegal

conduct] and the Government’s proof,’ and his admonition

that the courts should consider whether ‘[a]s a matter of

good sense . . . such connection may have become so

attenuated as to dissipate the taint.’ Nardone, 308 U.S.

at 341, 60 S.Ct. at 268. The essence of the dissent is

that there is some ‘constitutional right’ to destroy

evidence. This concept defies both logic and common

sense.” 104 S.Ct. at 3391.

We should make clear that while we affirm the district court’s

9

There is nothing in the record to suggest that in this interval

Grosenheider ever attempted or intended to retreive the computer or that

he was ever aware that the computer had been removed from Upgraders or

that the authorities were involved or interested.

15

holding that the evidence should not be suppressed, we decline to

follow its lead in resolving the legality of the Meaux seizure

itself.10 Under the independent source doctrine, we conclude that

10

We note that the Meaux seizure, lasting only for a few hours and

executed merely for the purpose of guarding the computer until a warrant

could be obtained, does appear reasonable. See, e.g., United States v.

Place, 103 S.Ct. 2637, 2641 (1983) (“Where law enforcement authorities

have probable cause to believe that a container holds contraband or

evidence of a crime, but have not secured a warrant, the Court has

interpreted the [Fourth] Amendment to permit seizure of the property,

pending issuance of a warrant to examine its contents, if the exigencies

of the circumstances demand it or some other recognized exception to the

warrant requirement is present.”). The ultimate holding of Place was

that a 90 minute detention of luggage was too long to be justified only

by reasonable suspicion where probable cause was lacking. Id. at 2645

(“The length of the detention alone precludes the conclusion that the

seizure was reasonable in the absence of probable cause”). That holding

is inapposite here because there was probable cause from the inception

of the computer’s detention, and the four or five hour duration of the

detention until the warrant was procured was plainly reasonable. See,

e.g., United States v. Martin, 157 F.2d 46, 53-54 (2nd Cir. 1998);

United States v. Respress, 9 F.3d 483, 484-86 (6th Cir. 1993); United

States v. Lewis, 902 F.2d 1176, 1180 (5th Cir. 1990); United States v.

Jodoin, 672 F.2d 232, 235-36 (1st Cir. 1982) (Breyer, Circuit Judge).

The district court, however, found no exigent circumstances to

justify the seizure. Noting that Meaux watched Grosenheider drive away

from Upgraders before he seized the computer, the court asserted that

“there was absolutely no possibility that the evidence of child

pornography was about to be deleted or destroyed” by Grosenheider.

Instead, the court found justification for the search under the plain

view doctrine, which we do not address.

The district court’s factual findings are somewhat confusing on

this point. The district court’s only response to the potential concern

that if the computer were not detained Grosenheider might retrieve it

and delte the images was that Meaux could have “summon[ed] another

officer to stay with the computer” at Upgraders while a search warrant

was sought. The puzzling fact is that this act would have effectuated

an equally “meaningful interference” with Grosenheider’s possessory

interests in his computer as did the actual seizure. See Jacobsen, 104

S.Ct. at 1656. We find it difficult to distinguish between summoning

another officer to keep the computer from leaving the store and seizing

the computer itself. As it made no difference to any legitimate

interest of Grosenheider that the computer was taken to Meaux’s office

rather than left under police guard at Upgraders, the fact that the

former rather than the latter alternative was followed, should not be

the basis for suppression. See id. at 1661-63. In any event, the

independent source doctrine renders the legality of the seizure

ultimately irrelevant.

16

any illegality that may have been part of Meaux’s seizure did not

affect the propriety of Siggins’s actions in any way, and the

evidence was therefore admissible.

II. Grosenheider’s Sentence

At the sentencing hearing, the district court departed from

the applicable guideline range of twenty-seven to thirty-three

months and sentenced Grosenheider to twelve months’ incarceration.

We review a district court’s decision to depart downward from the

Sentencing Guidelines for an abuse of discretion. See Koon v.

United States, 116 S.Ct. 2035, 2047 (1996).

The Sentencing Guidelines purport to carve out a “heartland,”

a set of “typical cases embodying the conduct that each guideline

describes.” U.S.S.G. Ch. 1, Pt. A 4.(b). A sentencing court may

consider departing from the applicable sentence range when it

encounters an atypical case, “one to which a particular guideline

linguistically applies but where conduct significantly differs from

the norm.” Id. Before it may do so, the district court must

“articulate [the] relevant facts and valid reasons why the

circumstances of [the] case” merit departure. United States v.

Winters (Winters I), 105 F.3d 200, 208 (5th Cir. 1997); see also

United States v. Threadgill, 172 F.3d 357, 376 (5th Cir. 1999)

(defining the relevant inquiry as asking whether a case is “so

unusual as to warrant a departure under the Guidelines”).

Accordingly, the district court must engage in the following

inquiry:

“(1) What features of this case, potentially, take it outside

the Guidelines’ <heartland’ and make it a special, or unusual

17

case?

(2) Has the Sentencing Commission forbidden departure based on

those features?

(3) If not, has the Commission encouraged departures based on

those features?

(4) If not, has the Commission discouraged departures based on

those features?” Koon, 116 S.Ct. at 2045.

If a district court finds “an aggravating or mitigating

circumstance that was not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines,” it may

consider departing on that basis under the first question of the

Koon analysis. Id. at 2044. When doing so, the district court

must keep in mind the Commission’s expectation that departure based

on grounds not mentioned in the guidelines will be “highly

infrequent.” Id. at 2045. Despite this exhortation, a reviewing

court will afford substantial deference to the district court’s

decision to depart. See Winters I, 105 F.3d at 205.

This deference, however, is not boundless. “Substantial

deference has never been synonymous with carte blanche approval of

a sentencing judgment in the face of legal error. Indeed, when

reviewing the basis for a downward departure, our function as a

court of appeals would be rendered superfluous if <substantial

deference’ operated as a talisman to ward off scrutiny of this

court.” United States v. Winters (Winters II), 174 F.3d 478, 482

n.1 (5th Cir. 1999). It is clearly established that in order to

justify departure based on a factor not listed in the guidelines,

a district court must find on the record that “facts or

circumstances of a case remove that case from the <heartland’ of

typical cases encompassed within the guideline.” Id. at 482; see

18

also United States v. Harrington, 82 F.3d 83, 87 (5th Cir. 1996).

The district court did not articulate any acceptable reason

for departure, as the court itself seemed to recognize when it said

that “as far as I’m concerned . . . [this] is an illegal sentence

and I do not have the authority to do it under the express

provisions of the guidelines.” And, of course, disagreement with

the guidelines or with a particular guideline, also expressed by

the district court in this connection, is not an acceptable basis

for departure.11

The closest the district court came in this case to an attempt

to justify a permissible departure were its observations that all

but one of the court’s prior “pornography” cases had been “fairly

obvious cases of perverted people that had a long track record of

harm to others” (the one exception being “a young college boy who

was shy, that’d gotten some pictures”), while here a psychiatrist

whom defense counsel had examine Grosenheider “would have found

enough to investigate further if there was an imminent problem on

the surface of Mr. Grosenheider’s life.”12 These observations are

11

While we appreciate the district court’s candor and sympathize

with its frustration at what it felt to be the guidelines’ overly severe

treatment of the offense specified in § 2252A(a)(5)(B), the Court of

Appeals lacks the luxury of affirming a properly challenged sentence

which it deems illegal or illegally imposed.

12

The Presentence Report reflects the following, to which the

district court was doubtless referring, viz:

“According to Grosenheider, he has not been through

counseling prior to the instant offense. The defendant

provided the probation officer with a copy of a letter

written by Dr. George Parker on February 22, 1998. According

to this letter, it is the doctor’s opinion that Grosenheider

is not a pedophile and does not have pedophiliac

19

doubtless best understood in the context of the district court’s

earlier statement that “I don’t believe that the sentencing

commission had a case in mind where we have a person who’s 38 or 39

years old [Grosenheider’s approximate age], never been in trouble

really, have zero points criminal history, whether it be curiosity

or just absolute perversion to utilize his computer in this way .

. . .” The court also remarked to Grosenheider, “I don’t think

you’re going to do this again.”

Insofar as the district court may have determined that this

was not a “heartland” section 2252A(a)(5)(B) violation because the

defendant did not have a record of “harm to others,” his relevant

conduct did not include “harm to others,” and he did not have a

propensity to molest children, we disagree. A defendant’s prior

criminal record is taken into account in his criminal history

score, and if Grosenheider had had a record his guideline range

would have been even higher. With respect to harm to others, that

is no part of the section 2252A(a)(5)(B) offense, which, apart from

the jurisdictional element, merely involves knowing possession. In

this connection, it is unclear whether the district court’s

reference to its other “pornography” cases referred to section

2252A(a)(5)(B) cases or consisted mostly of cases where an element

characteristics nor does he have tendencies towards lying,

manipulating, conning, or deceiving others. Dr. Parker’s

conclusions appear to be based on psychological assessment

interviews . . . These assessments/tests are based on

Grosenheider’s responses and are self reporting. The

evaluation does not state if any physiological (example: Abel

screen) or polygraph testing was conducted. The evaluation

letter does note that Grosenheider experienced several

psychological traumatic events . . .”

20

of the offense involved some actual sexual exploitation of

children, such as, for example, 18 U.S.C. § 2251(a) (causing,

transporting or seeking a minor to engage in actual or simulated

sexually explicit conduct for the purpose of producing visual

depiction thereof). See also 18 U.S.C. § 2252(a)(1)-(3)

(trafficking in visual depictions of minors engaged in sexually

explicit conduct).13 The guideline for simple possession of child

pornography, section 2G2.4, provides for a base offense level of

15, while the guideline applicable to the trafficking offenses,

section 2G2.2, carries a base offense level of 17 and provides for

a five level enhancement “[i]f the defendant engaged in a pattern

of activity involving the sexual abuse or exploitation of a minor.”

The guideline for the causing, transporting or seeking offense

(section 2251(a)), section 2G2.1, carries a base offense level of

27. Both the simple possession (section 2G2.4(c)(1)) and the

trafficking (section 2G2.2(c)(1)) guidelines provide that “[i]f the

offense involved causing, transporting, permitting, or offering or

seeking by notice or advertisement, a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of

such conduct, apply § 2G2.1.” The simple possession guideline

(section 2G2.4(c)(2)) also provides that “[i]f the offense involved

trafficking in material involving the sexual exploitation of a

minor . . . apply § 2G2.2.” It is clear that Congress established

a series of distinctly separate offenses respecting child

13

Indeed, it is unclear whether the court’s remarks embraced

pornography other than child pornography. See, e.g., 18 U.S.C. §§ 1460-

1463, 1465, 1466.

21

pornography, with higher sentences for offenses involving conduct

more likely to be, or more directly, harmful to minors than the

mere possession offense.14 Similarly, the guidelines clearly

reflect consideration of whether and the degree to which harm to

minors is or has been involved.

Our conclusion in this respect finds support in the relatively

recent decisions of other Courts of Appeals which have addressed

somewhat similar child pornography downward departures. In United

States v. Barton, 76 F.3d 499 (2d Cir. 1996), the district court

departed downward in sentencing Barton on one count of “receiving”

child pornography contrary to section 2252(a)(2), on the basis that

he was “not involved in the commercial distribution or production

of child pornography and that there was no evidence Barton was a

14

Thus the § 2251(a) offense (causing, transporting or seeking a

minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction thereof) carries a minimum sentence of ten

years and a maximum of twenty years for a first conviction, with

enhancement to a fifteen year minimum and a thirty year maximum where

there has been one prior conviction for the same or certain other

offenses, including under any state law “relating to the sexual

exploitation of children.” Section 2251(a) also provides for a thirty

year minimum and life term maximum where there are two or more such

prior convictions. Similarly, the § 2252(a)(1)-(3) trafficking offenses

carry a fifteen year maximum and no minimum, but with a prior conviction

for the same offense or certain other offenses including under any state

law “relating to . . . abusive sexual conduct involving a minor . . .

or the production, possession . . . or transportation of child

pornography,” a five year minimum and thirty year maximum is specified.

The same sentencing range is provided for the trafficking offenses

denounced in § 2252A(a)(1)-(4). See § 2252A(b)(1). The simple

possession offense here in issue, § 2252A(a)(5)(B), carries a five year

maximum, with no minimum (with a prior conviction for the same or a

similar offense including under any state law “relating to . . . abusive

sexual conduct involving a minor . . . or the production, possession .

. . or transportation of child pornography,” the maximum sentence

becomes ten years and there is a two year minimum). See § 2252A(b)(2).

The same sentencing range is provided for the § 2252(a)(4) simple

possession offense. See § 2252(b)(2).

22

pedophile or that he had sexually abused children.” Id. at 501.

The Second Circuit reversed, noting that simple receiving was a

separate offense that the Sentencing Commission “clearly foresaw .

. . § 2G2.2 would extend to”, and “[i]nasmuch as the offense to

which Barton pleaded guilty (receipt of child pornography) did not

contemplate sexual abuse of children, we find that he is not

entitled to a departure merely because he did not commit an

additional crime.” Id. at 503. United States v. Wind, 128 F.3d

1276 (8th Cir. 1997), addressed a sentence for a single count of

simple possession of child pornography contrary to section

2252(a)(4), in which the district court had departed downward on

the basis of no prior criminal record and psychological testing

which revealed that Wind “‘. . . is not a typical child predator’

or pedophile.” Id. at 1277. The Eighth Circuit reversed, stating

that “because the Guidelines take into account the gravity of a

possession offense as compared with more serious forms of

exploitation, Wind is not entitled to a downward departure on the

ground that he did not commit, or have the tendency to commit, a

worse crime.” Id. at 1278. Finally, in United States v. Stevens,

No. 98-30289, 1999 WL 1080167 (9th Cir. Dec. 2, 1999), the Ninth

Circuit reversed a downward departure in sentencing for a single

count of simple possession of child pornography contrary to section

2252A(a)(5)(B). Like this case, Stevens involved possession of

child pornography images in the hard drive of the defendant’s

personal computer. The district court departed downward noting,

inter alia, that there was “no evidence that Stevens ever abused a

23

specific child, or that he singled children out for specific

attention,” that “Stevens appears indifferent to the children he

might actually encounter,” that he “is not one of the offenders for

whom collection of child pornography is a supplement to the

molestation of real children,” that he never produced or

distributed child pornography, did not pay for it, did not

correspond with its producers or purveyors, and did not share his

collection with others or inform them of it. United States v.

Stevens, 29 F. Supp. 2d 592, 603-05 (D. Alaska 1998).15 The Ninth

Circuit held these factors did not suffice to take the case out of

the heartland of section 2252A(a)(5)(B). Relying principally on

Barton and Wind, the Court stated that “we agree with the reasoning

of those cases” and quoted with approval Wind’s statement rejecting

downward departure because the defendant “did not commit, or have

the tendency to commit, a worse crime” than simple possession of

child pornography. Stevens, 1999 WL 1080167 at *6 (internal

quotation marks omitted).

Agreeing with the holdings and rationales of the decisions of

our sister circuits in Barton, Wind, and Stevens, we conclude that

the fact that Grosenheider had not abused any child, and had no

inclination, predisposition or tendency to do so, and had not

produced or distributed any child pornography, and had no

inclination, predisposition, or tendency to do so, does not suffice

15

We observe that the district court opinion in Stevens is the

principal authority on which Groseheider relies in defending the

district court’s downward departure.

24

to take his case out of the heartland of section 2252A(a)(5)(B).16

The district court did not articulate any acceptable basis for

its downward departure, and we accordingly remand for resentencing

not inconsistent with this opinion.

Conclusion

16

We do not undertake to resolve whether an isolated instance of

possession of child pornography, out of mere curiosity or the like, and

not either for any kind of distributive purpose or for sexual arousal

or gratification from viewing it, could validly form a basis for a

determination that the conduct was not within the heartland of §

2252A(a)(5)(B). The district court made no findings to this effect and

indeed may have suggested that Grosenheider’s possession was not merely

the result of curiosity or the like.

Nor do we address the circumstances under which a particular

defendant’s § 2252A(a)(5)(B) offense might be regarded as sufficiently

“aberrant behavior” on his part to support a downward departure. The

district court has not purported to ground its departure on this basis,

nor do its remarks contain any sufficient justification for doing so.

In its introductory section regarding “Probation and Split Sentences,”

the Guidelines Manual states that “[t]he Commission, of course, has not

dealt with the single acts of aberrant behavior that still may justify

probation at higher offense levels through departures.” U.S.S.G. Ch.1,

Pt.A, intro. cmt. 4(d). This statement refers only to probation, but

Courts of Appeals have agreed that it may also warrant a reduction in

sentence. See Rachel A. Hill, Comment, Character, Choice, and “Aberrant

Behavior”, Aligning Criminal Sentencing with Concepts of Moral Blame,

65 U. CHI. L. REV. 975, 977 (1998) (citing United States v. Duerson, 25

F.3d 376, 380 (6th Cir. 1994)). This circuit has not yet defined

aberrant behavior for this purpose. See Winters I, 105 F.3d at 206.

It has observed, however, that a departure based on aberrant behavior

“requires more than an act which is merely a first offense or ‘out of

character’ for the defendant.” See United States v. Williams, 974 F.2d

25, 26 (5th Cir. 1992). Instead, aberrant behavior “generally

contemplates a spontaneous and seemingly thoughtless act rather than one

which was the result of substantial planning.” See id. at 26-27

(quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)).

Grosenheider’s conduct apparently took place over a period of several

weeks, and he may have viewed some of the images more than once. This

at least casts doubt on whether there is any possibility of an aberrant

behavior finding. However, our cases have not explicitly confined

aberrant behavior to a short temporal frame. Their focus has been more

on the level of planning and meditation that went into the act. See

Williams, 974 F.2d at 27 (finding that the defendant’s conduct did not

qualify as “spontaneous” and “thoughtless” because he clearly planned

his activities).

25

We affirm Grosenheider’s conviction; we vacate his sentence

and remand for resentencing not inconsistent with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED

and CAUSE REMANDED FOR RESENTENCING

26