United States v. Perrin

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