United States v. Jack W. Bierley

ALITO, Circuit Judge,

dissenting.

The majority holds that a sentencing court may depart below the range prescribed by the Sentencing Guidelines if the court concludes that a defendant played a “minor” or “minimal” role in activity involving no other “criminally responsible” participants but only government undercover agents. The majority remands so that the sentencing judge may determine whether such a departure is appropriate in the present case. I dissent for two reasons. First, the Sentencing Reform Act, 18 U.S.C. § 3553 (b), and the Sentencing Guidelines preclude departure on the ground identified by the majority. Second, the defendant in this case clearly did not play a “minor” or “minimal” role in the offense in question.

I.

Under 18 U.S.C. § 3553 (b), a sentencing court must impose a sentence within the range set out in the Guidelines “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” See United States v. Pharr, 916 F.2d 129, 132 (3d Cir.1990). It is clear to me that the mitigating circumstance identified by the majority in this case was considered and rejected by the Sentencing Commission as a basis for sentence reduction when the Commission framed Chapter 3, Pt. B of the Guidelines, which deals comprehensively with adjustments to the offense level based upon a defendant’s role in the offense.

Two sections of Chapter 3, Pt. B — 3B1.1 and 3B1.2 — deal specifically with adjustments based upon the defendant’s role relative to that of the other participants in group activity. Section 3B1.1 (Aggravating Role) permits upward adjustments for organizers, leaders, managers, and supervisors; Section 3B1.2 permits downward adjustments for “minimal” or “minor” participants. Both of these provisions apply only to offenses “committed by more than one participant.” Chapter 3, Pt. B Introductory Commentary. A participant is defined as “a person-who is criminally responsible for the commission of the offense, but need not have been convicted.” Section 3B1.1, Application Note 1. Therefore, as the majority correctly recognizes, a defendant’s offense level may not be adjusted under Section 3B1.1 or Section 3B1.2 if the only other participants in the offense are individuals, such as undercover government operatives, who are not “criminally respon *1071 sible.” In the present case, since there were no other “criminally responsible” participants, the defendant cannot obtain an adjustment under Section 3B1.2, as the majority properly holds.

The majority fails to recognize, however, that Chapter 3, Pt. B also precludes a departure based on a defendant’s role in group conduct if none of the other participants is “criminally responsible.” When the Commission decided to limit Sections 3B1.1 and 3B1.2 to offenses committed by more than one criminally responsible participant, the Commission necessarily decided that no sentence adjustment should be allowed based on a defendant’s role relative to other participants if none of those other participants is “criminally responsible.” This limitation on the applicability of Sections 3B1.1 and 3B1.2 was not “fortuitous,” as the majority suggests (Typescript at 16), but was necessarily the result of a deliberate choice.

Furthermore, I do not think that the Commission could have failed to realize that the category of participants who are not “criminally responsible” would consist overwhelmingly of undercover agents. Use of undercover agents has become a very common and important method of investigating clandestine criminal activity, such as the drug cases that now dominate the federal criminal docket. See e.g., Report of the Federal Courts Study Committee 36 (1990). The number of federal cases involving other categories of participants who are not criminally responsible— such as the insane, infants, individuals who act under duress, and those who innocently aid criminal conduct — is undoubtedly small in comparison with the number of cases involving undercover agents. Thus, it seems abundantly clear to me that the Commission must have considered and rejected the precise ground for departure identified by the majority.

The majority’s decision, in my view, also violates Section 3B1.4 of the Guidelines, which provides that “[i]n any other case [i.e., those not covered by Sections 3B1.1-3B1.3], no adjustment is made for role in the offense.” As the Ninth Circuit recently observed, “Section 3B1.4 makes the basis for role adjustments spelled out in Chapter 3B exclusive.” United States v. Zweber, 913 F.2d 705, 708 (9th Cir.1990). To borrow the language of preemption, Chapter 3, Pt. B occupies the field and leaves no room for the judicially crafted ground for departure outlined by the majority.

In sum, because it is apparent that the Sentencing Commission rejected the ground for departure identified by the majority, departure on that basis is barred by 18 U.S.C. § 3553 (b).

II.

Even if a sentencing court were allowed to depart based upon a defendant’s role in concerted activity involving no other criminally responsible participant, no such departure would be permitted in this case. In United States v. Kikumura, 918 F.2d 1084, 1111-1114 (3d Cir.1990), it was held that a sentencing court that departs from the Guidelines generally must be guided by any analogous Guidelines provisions. Accordingly, as the majority recognizes (Typescript at 19), a sentencing court that departs from the Guidelines on the ground identified by the majority would still be required to employ the methodology set out in Sections 3B1.1 and 3B1.2. Under that methodology, no departure would be allowed in this case because the defendant plainly did not play a “minor or “minimal” role in the offense.

A.

In cases like this one involving offenses committed before November 1, 1990, five circuits have held that the defendant’s role must be assessed in relation to the offense of conviction. United States v. Zweber, 913 F.2d at 709 ; United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 197 , 112 L.Ed.2d 159 (1990); United States v. Tetzlaff 896 F.2d 1071, 1074 (7th Cir.1990); United States v. Williams, 891 F.2d 921, 926 (D.C.Cir.1989); United States v. Williams, 879 F.2d 454, 458 (8th Cir.1989). But see United States v. Gordon, 895 F.2d *1072 932, 935 (4th Cir.1990). Under this methodology, Bierley would not be entitled to a sentence reduction because his role in committing the offense of conviction — receipt of child pornography ( 18 U.S.C. § 2252 (a)(2)) — cannot be viewed as “minor” or “minimal.” Bierley saw an advertisement offering “rare amateur hard core videos.” He responded with a letter specifically seeking particular types of child pornography, including depictions of prepubescent females engaged in vaginal and oral sex acts and acts of bestiality. In response, he was sent a catalog, placed an order, and received the child pornography that he requested. These facts clearly show that Bierley fully and willingly participated in the offense of receiving child pornography. Therefore, a sentencing judge focusing solely upon the offense of receiving child pornography, could not reasonably conclude that Bierley’s participation or moral culpability was “minor” or “minimal” relative to that of the undercover agents or the characters whom they portrayed.

To be sure, a sentencing judge might conclude that a person who purchases child pornography from a large pornography ring and is convicted for receipt of child pornography is less culpable than the leaders of the rings. This sort of analysis may be what the majority has in mind in remanding this case for resentencing. See Typescript at 17 (“[I]t makes little sense to authorize departure for a defendant who procured material from a nationwide child pornography ring but not for a defendant whose supplier was an undercover postal inspector.”). Any such analysis, however, would be squarely contrary to the methodology requiring a sentencing judge to focus solely upon a defendant’s role in the offense of conviction. Under this methodology, any conduct other than participation in the offense of conviction could not be considered. Thus, even if the organization or individual from whom Bierley made his purchase had engaged in other more serious 'criminal conduct, that additional criminal conduct on the part of the seller would not mitigate Bierley’s role in the offense of conviction. Indeed, even if Bierley had made his purchase from the world’s largest commercial producer arid distributor of child pornography, his role in the offense of receiving child pornography would not be “minor” or “minimal.”

B.

An amendment to the Introductory Commentary to Chapter 3, Pt. B that was added effective November 1, 1990, prescribes a somewhat different methodology for assessing a defendant’s role in the offense. But even if we employ this methodology in the present case, Bierley would still not be entitled to a sentence reduction.

The new commentary states that “[t]he determination of a defendant’s role in the offense is to be made on the basis of ... all conduct included under Section 1B1.3(a)(1)-(4).” In a single-count case such as this one, this conduct generally consists of all acts relating to the offense of conviction that the defendant aided and abetted and all reasonably foreseeable conduct committed in furtherance of any jointly undertaken criminal conduct. Section lB1.3(a) and Application Note 1. In simplified terms, therefore, the new methodology prescribed by the Commission permits a sentencing judge to look not only at the defendant’s role in the offense of conviction but also at his role in all related criminal conduct for which he could have been found criminally responsible as an aider and abettor or as a conspirator.

Despite its somewhat broader focus, this new methodology clearly produces the same result in the present case, for under this methodology the only conduct that the sentencing judge could consider would be the transportation and receipt of the items of child pornography that Bierley ordered and obtained. As far as the record shows, Bierley himself on the occasion in question did nothing besides purchasing and receiving child pornography. Moreover, even if he had made his purchase from a real pornography distributor rather than a government sting, he could not have been found to have aided and abetted any broader crimes committed by the distributor or to have undertaken together with the distribu *1073 tor to participate in any broader criminal activity. Thus, under the new methodology now prescribed by the Commission, the sentencing judge in the present case would still be required to assess Bierley’s role solely with respect to the purchase and receipt of child pornography. Under such an assessment, in my judgment, Bierley cannot reasonably be viewed as playing a “minor” or a “minimal” role.

C.

Finally, if the appropriateness of a downward departure based on Bierley’s role in the offense is judged, as 18 U.S.C. § 3553 (a)(2) directs, by reference to the sentencing goals set out in 18 U.S.C. § 3553 (a)(2) — just deserts, deterrence, incapacitation, training, and treatment — it is clear that no such departure is justified. Bierley’s Guidelines offense level was based entirely on what he did — receipt of child pornography involving prepubescent minors. Unlike, for example, a conspiracy defendant, whose offense level may be increased due to conduct by other conspirators (see Section 2X1.1), Bierley’s offense level did not take into account group conduct. In my view, therefore, it would be irrational to reduce Bierley’s sentence on the ground that he is less culpable than the undercover agents or the character whom they were pretending to be. If the punishment prescribed by the Guidelines for receipt of child pornography is proper in light of the sentencing goals set out in 18 U.S.C. § 3553 (a)(2) (and we are not free to overrule the Sentencing Commission’s resolution of this question), then the range of punishment prescribed by the Commission (no more and no less) is the proper punishment in this case.