United States v. MacLeod ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
4-10-1996
United States v. MacLeod
Precedential or Non-Precedential:
Docket 94-5561
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1
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 94-5561
____________________
UNITED STATES OF AMERICA
v.
JOHN MACLEOD
Appellant
_______________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 94-cr-00131-1)
_______________________________
Argued: September 21, 1995
Before: BECKER, STAPLETON, Circuit Judges.
0
and LANCASTER, District Judge.
(Filed April 10, 1996)
JACK J. ZAPPACOSTA, ESQUIRE (ARGUED)
Zarrillo & Zappacosta
1930 Route 70 East
Executive Mews, Suite X-116
Cherry Hill, NJ 08003
Counsel for Appellant
LESLIE F. SCHWARTZ, ESQUIRE (ARGUED)
Faith S. Hochberg, Esquire
Kevin McNulty, Esquire
Office of United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
Counsel for Appellee
0
Honorable Gary L. Lancaster, United States District Judge for
the Western District of Pennsylvania, sitting by designation.
2
_________________________
OPINION OF THE COURT
_________________________
BECKER, Circuit Judge
Defendant John MacLeod pled guilty to two crimes:
inducing minors to engage in sexual activity for the purpose of
producing child pornography, and transporting minors across state
lines with the intent to engage in sexual activity. This appeal
involves the propriety, under the United States Sentencing
Guidelines ("guidelines" or "USSG"), of a district court's upward
departure based on the large number of victims harmed by the
defendant. Under the applicable guideline, USSG § 3D1.4,
MacLeod's presumptive guideline range was 121-151 months.
However, this guideline allows only six victims to be taken into
account in determining the base offense level while MacLeod's
offense involved at least ten minors. To punish MacLeod for
these additional victims, the district court departed upward four
sentencing levels, making MacLeod's new guidelines range 188 to
235 months. The district court sentenced MacLeod to 235 months,
and he now appeals.
In connection with departures, we follow a three step
review process. Our review is plenary as to whether departure
was permissible; clearly erroneous as to whether the facts
support the grounds relied upon for departure; and deferential as
to the reasonableness of the departure. See United States v.
Kikumura, 918 F.2d 1084, 1098 (3d Cir. 1990). Applying this
standard, we conclude that the presence of additional, uncounted
3
victims is an appropriate basis for upward departure and that the
facts of record support the district court's decision to depart.
In evaluating the reasonableness of the departure, we seek
guidance from the structure of the guidelines themselves. We
find it in the commentary to Chapter 3, Part D and in analogy to
other guidelines sections (as well as case law from other
circuits). Because the district court's departure violated the
principle of "declining marginal punishment" as enunciated in the
commentary to Chapter 3, Part D, see USSG Ch.3, Pt.D, intro.
comment., and exceeded the pattern for upward adjustments in both
the theft and fraud sections of the guidelines, see USSG §§2B1.1,
2F1.1, we conclude that the extent of the district court's
departure was unreasonable. We therefore vacate the judgment and
remand for resentencing.
I. Facts and Procedural History
A. The Offense
MacLeod, a resident of Silver Spring, Maryland,
participated with his co-defendant, Eric Nastelin, in a child
pornography ring from December 1991 to August 1993. The relevant
facts are summarized as follows.
On August 6, 1993, the mother of a fourteen year old
boy, V-1, advised the Montgomery County, Maryland Police
Department that MacLeod had befriended her son and two other
fourteen year olds, V-2 and V-3. The mother reported that her
son would return home from outings with MacLeod with forty to
fifty dollars in unexplained cash. She also related that V-1 and
another boy had confided to her friend, Donald Shipley, that
4
MacLeod had taken "home videos" of them at the Red Roof Inn near
the BWI Airport and at MacLeod's apartment in Silver Spring,
Maryland.
Based upon this information, Detective John Lyon
interviewed Shipley. Shipley explained that over the past
several months he had driven V-1 and V-2 to a roller rink to meet
MacLeod. Both V-1 and V-3 had informed Shipley that MacLeod and
another male had filmed them having sex. Maryland law
enforcement set up surveillance of MacLeod and observed him
traveling between Silver Spring and the Dundalk area of Baltimore
several times. Each time, MacLeod would meet with different
boys, approximately thirteen to fifteen years old, and drive them
to various locations including, on one occasion, a Baltimore
motel.
Lyon also interviewed V-1. V-1 attested to MacLeod's
involvement with child pornography. V-1's first sexual encounter
with MacLeod occurred in December 1992 at the Red Roof Inn where
MacLeod performed oral sex on V-1. V-1 was paid forty dollars
for his participation. V-3 and V-4 (the brother of V-1, age
thirteen) were also present. They were filmed having sex with
each other by Nastelin. V-4 was paid $ 250.
In January 1992, V-1 made his first sex film for
MacLeod and Nastelin. In it, he performed sex acts with V-3.
Over the next seven months, V-1 made approximately eleven more
films. The movies involved him having sex with V-2, V-3, and, on
one occasion, with his brother, V-4. The boys were compensated
for their participation.
5
On August 21, 1993, MacLeod and Nastelin were arrested
by agents of the FBI. Nastelin immediately cooperated by
providing detailed statements. He explained that in 1991 he
began traveling from New Jersey to Baltimore to meet MacLeod at
various hotels to have sex with boys. In December 1991, Nastelin
conceived the idea of filming boys having sex with each other,
and purchased a video camera for this purpose. MacLeod approved
the plan and made the necessary arrangements for boys and for
hotel rooms. Approximately twenty films were made in Baltimore.
After the completion of each film, Nastelin would make copies and
MacLeod would travel to New Jersey to retrieve one or more of
them. Nastelin also stated that, upon MacLeod's suggestion, the
men stored their large collection of child pornography in a
storage facility in Lindenwold, New Jersey.0
Following MacLeod's arrest, Lyon interviewed V-3. He
too confirmed MacLeod's participation in child pornography.
During 1992 and 1993 MacLeod had sex with V-3 approximately fifty
times. V-3 also participated in sex movies filmed at MacLeod's
Silver Spring apartment and various hotels in the Baltimore area.
Additionally, the FBI interviewed V-5 and V-6, who at the time of
their sexual relations with MacLeod, were age twelve or thirteen,
and age fourteen, respectively. V-5 was featured in an early
Baltimore film. On one occasion, MacLeod picked up V-5 and V-6
0
The facility contained the following items of child
pornography: (a) approximately 347 video tapes; (b) approximately
113 eight millimeter and Super 8 films; (c) approximately 324
magazines; (d) approximately 954 black and white photographs; (e)
approximately 232 slides; and (f) books containing visual
depictions of children engaged in sexually explicit conduct.
6
in Baltimore and brought them to a friend's residence in
Lindenwold. On that trip, MacLeod performed oral sex on V-6 and
his friend performed oral sex on V-5. Both boys were paid.
A total of ten boys were ultimately identified as
participants in the Baltimore tapes. In addition to V-1 through
V-6, V-7 and V-8 (both under age sixteen), V-9 (age sixteen), and
V-10 (age seventeen) were identified. However, several boys
depicted in the Baltimore tapes and numerous children depicted in
the Lindenwold storage locker collection remain unidentified.
B. The Indictment and Plea Agreement
On March 23, 1994, a federal grand jury returned a
seven-count indictment against MacLeod. On June 17, 1994, he
entered a guilty plea to counts two and seven. Count two charged
that from at least as early as December 1991 to on or about
August 21, 1993, MacLeod "did knowingly and willfully employ,
use, persuade, induce, entice, and coerce individuals under the
age of 18 years to engage in sexually explicit conduct for the
purpose of producing child pornography, including videotapes,
such child pornography having been thereafter transported in
interstate commerce. In violation of Title 18, United States
Code, Sections 2251(a) and 2." Count seven charged that on or
about April or May of 1992, MacLeod "did knowingly and willfully
transport an individual under the age of 18 years, between the
States of Maryland and New Jersey, with intent to engage in
sexual activities with the minor which constitutes a criminal
offense, as set forth in [New Jersey Law]. In violation of Title
18, United States Code, Sections 2423 and 2."
7
C. Sentencing
The district court adopted the sentencing
recommendations of MacLeod's probation officer, and thus we focus
on the probation officer's report. Applying the 1993 edition of
the guidelines, the probation officer concluded that the
applicable guideline for the pornography production count, 18
U.S.C. § 2251(a), is USSG § 2G2.1. That guideline calls for a
base offense level of 25. Because the offense involved a minor
under sixteen years of age, the officer added two levels, see
USSG § 2G2.1(b)(1), raising MacLeod's offense level to 27.
Applying the 1993 edition of the guidelines to the
transportation of a minor count, 18 U.S.C. § 2423, the probation
officer concluded that the applicable guideline is USSG § 2G1.2.
That section specifies a base offense level of 16. Because the
offense involved a minor between the ages of twelve and sixteen,
the probation officer added two levels, see USSG § 2G1.2(b)(3),
raising the offense level to 18.
In order to arrive at a combined offense level for the
two counts, the probation officer applied the grouping rules of
Chapter Three, Part D. Because MacLeod's offenses involved the
exploitation of more than one minor, the exploitation of each
minor was treated as if it were a separate count of conviction.0
0
USSG § 2G2.1, the guideline applicable to the
pornography production count, provides that "If the offense
involved the exploitation of more than one minor, Chapter Three,
Part D (Multiple Counts) shall be applied as if the exploitation
of each minor had been contained in a separate count of
conviction." USSG § 2G2.1(c). Likewise, USSG § 2G1.2, the
guideline applicable to the transportation of a minor count,
states that "If the offense involved the transportation of more
8
These "counts" were not grouped. See USSG § 3D1.2(d) (stating
that offenses covered by USSG §§ 2G2.1, 2G1.2 should not be
grouped).
The probation officer then calculated the combined
offense level for these non-grouped counts. Under USSG §
3D1.4,0the combined offense level is determined by taking the
count with the highest offense level -- here, one of the
pornography production counts (for which the offense level is 27)
-- and adding one offense level for each equally serious (or from
one to four levels less serious) count. Thus, MacLeod's offense
level is 27 plus one level for each of the other pornography
counts. The transportation of a minor counts are irrelevant
because, at an offense level of 18, they are nine levels less
serious than the count with the highest offense level. See USSG
§ 3D1.4(c) (disregarding any count that is nine levels less
serious than the count with the highest offense level). Although
there were at least ten victims of MacLeod's pornography
production offense (or rather ten pornography production
"counts"), § 3D1.4 only allows six victims to be taken into
account (for an increase of five levels). The probation officer
than one person, Chapter Three, Part D (Multiple Counts) shall be
applied as if the transportation of each person had been
contained in a separate count of conviction." USSG § 2G1.2(d).
0
While this section speaks of calculating the combined
offense level for several groups, it also furnishes the
methodology for calculating the combined offense level of several
non-grouped counts. The commentary at the end of Chapter 3, Part
D offers illustrations. Example number one applies USSG § 3D1.4
to determine the combined offense level for four counts not
grouped under USSG § 3D1.2. See USSG Ch.3, Pt.D, comment. (n.1).
9
thus added five levels to MacLeod's offense level of 27,
resulting in an offense level of 32.0
Pursuant to USSG §§ 3E1.1(a) and (b), the probation
officer then lowered MacLeod's offense level by three levels (to
29) for acceptance of responsibility. Based on a total offense
level of 29 and MacLeod's criminal history category of IV, the
probation officer concluded that the guideline range for
imprisonment was 121 to 151 months. See USSG Ch.5, Pt.A. Under
USSG § 5K2.0, the sentencing court may depart from this range if
it 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
0
The probation officer's calculations appeared as
follows in the presentence report:
Count Two--Use of Minor for Producing Child Pornography
Adjusted Offense Level (Subtotal): 27
Count Seven--Transportation of a Minor for
Purpose of Prohibited Sexual Contact
Adjusted Offense Level (Subtotal): 18
Multiple Count Adjustment (See Section 3D1.4)
Units
Adjusted Offense Level-Ct. Two-Victim 1 27 1
Adjusted Offense Level-Ct. Two-Victim 2 27 1
Adjusted Offense Level-Ct. Two-Victim 3 27 1
Adjusted Offense Level-Ct. Two-Victim 4 27 1
Adjusted Offense Level-Ct. Two-Victim 5 27 1
Adjusted Offense Level-Ct. Two-Victim 6 27 1
Adjusted Offense Level-Ct. Seven-Victim 1 18 0
Adjusted Offense Level-Ct. Seven-Victim 2 18 0
Total Number of Units 6
Greater Adjusted Offense Level 27
Increase in Offense Level 5
Combined Adjusted Offense Level 32
10
guidelines that should result in a sentence different from that
described.'" While the probation officer's report did not
counsel for or against departure, it did suggest that departure
might be warranted because hundreds of boys were represented in
MacLeod's collection while he was held accountable for only six
victims.
At the sentencing hearing, the government asked for the
151 month maximum sentence but took no position on whether an
upward departure was appropriate. The district court agreed with
the sentencing calculations of the probation officer concluding
that MacLeod's guideline range was 121 to 151 months. The
district court further determined that an upward departure was
appropriate. The commentary to USSG § 3D1.4 counsels departure
if after application of the section, the adjustments made are
inadequate. USSG § 3D1.4, comment. (backg'd). According to the
court, the adjustments were inadequate because they allowed only
six children to be taken into account while the offense involved
four additional identified children and many other unidentified
victims.0 In calculating the appropriate extent of the
departure, the court made clear that it would count only the four
identified victims. United States v. MacLeod, No. 94-131, slip
0
When the district court spoke of the minors involved in
the offense, it was referring only to the minors involved in the
production of the Baltimore tapes. See United States v. MacLeod,
94-131, slip op. 38, 40 (D.N.J. August 26, 1994) ("In fact--
however, [in] those specific tapes, they have identified ten, not
six victims, and there are unidentified other victims. Again,
we're talking about just those so-called -- they refer to [them]
here as the 'Baltimore tapes.' [We're] not talking about the full
mass [of materials stored in the Lindenwold locker].").
11
op. 38, 41 (D.N.J. August 26, 1994) ("I'm not going to count the
unknown victims, but since we have four known other victims, I'm
going to add a level for each one, and I'm going to upward
adjust."). The court departed upward four levels--one for each
identified victim--raising MacLeod's offense level to 33.
With his category IV criminal history, MacLeod's new
sentencing range was 188 to 235 months. The court imposed the
maximum 235 month sentence because it believed MacLeod had
dedicated his entire adult life to child pornography. The
presentence report stated that MacLeod had abused his own
children. The court could see no hope for redemption and thus
sentenced MacLeod to 120 months imprisonment on count two and 115
months on count seven, the sentences to be served consecutively
(for a total of 235 months). The court also imposed concurrent
terms of three years supervised release on each count of
conviction, and directed that MacLeod pay a special assessment of
$ 100.
In this appeal, MacLeod contends that the district
court's decision to depart was improper, and alternatively,
assuming that departure was appropriate, that the extent of
departure was unreasonable.
II. Analysis
In reviewing departures, we follow a three-step
process. Our review is plenary as to whether a departure was
permissible; clearly erroneous as to whether the facts support
the grounds relied upon for departure; and deferential as to the
12
reasonableness of the departure. See United States v. Kikumura,
918 F.2d 1084, 1098 (3d Cir. 1990).
A. Step One--Was Departure Permissible?
A district court may depart from the applicable
guideline range only if it "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 that should result in a
sentence different from that described." 18 U.S.C. § 3553(b).
Here, the commentary to USSG § 3D1.4 specifically instructs that
"Inasmuch as the maximum increase provided in the guideline is 5
levels, departure would be warranted in the unusual case where
the additional offenses resulted in a total of significantly more
than 5 units." USSG § 3D1.4, comment. (backg'd).0 Following
this commentary, the district court based its decision to depart
on the existence of additional victims0 not taken into account by
the five level increase.0 Under step one of our review process,
we review its decision de novo. See Kikumura, 918 F.2d at 1098.
0
Under 3D1.2 each offense that is equally serious or
from one to four levels less serious than the offense with the
highest level is counted as one "unit." One level is added for
each unit.
0
Hereinafter, we will use the phrase "additional
offenses" and "additional victims" interchangeably.
0
It is true, as MacLeod argues, that the district court, at
one point, ambiguously mentioned the "intensity" of the
defendant's involvement as a reason for departure. However, when
such remark is viewed in context, it is clear that the district
court used the number of victims as the basis for departure.
United States v. MacLeod, 94-131, slip op. 38, 40-42 (D.N.J.
August 26, 1994).
13
We must first determine upon how many additional
offenses the district court based its decision to depart. It is
clear that the district court calculated the extent of its (four
level) departure using only the four identified, but uncounted,
children in the Baltimore tapes. See discussion supra page 11.
However, the district court's threshold decision to depart was
based on the identified as well as unidentified children in the
Baltimore tapes.0 We do not know the exact number of
unidentified children as the presentence report simply states
that, "There were several other boys in [the Baltimore tapes]
that were unable to be identified." (emphasis added). Giving
"several" its ordinary meaning would suggest that there were,
perhaps, three unidentified boys. This would bring the total of
uncounted children in the Baltimore tapes (and the number of
additional offenses upon which the district court relied) to
seven (four identified boys plus three unidentified children).0
We need not be concerned, however, about our inability
to determine the exact number of additional offenses upon which
the district court relied. The district court relied on at least
four additional offenses, and four uncounted victims makes this
0
Id. at 41 ("I find that an adjustment of five based on
six victims, where there are four known, ten victims, and a
larger number of unknown victims, the unknown only because they
can't be identified, that a further upward adjustment is
required.").
0
Indeed, without explanation, the government asserts, in
its brief, that there were seven or eight uncounted boys in the
Baltimore tapes. Appellee's Brief at 14-15.
14
an "unusual case" resulting in a total of "significantly more
than five units."0 We reach this conclusion for several reasons.
First, assuming that the district court based its
decision to depart on only four additional victims, this means
that nearly half of MacLeod's ten victims were not considered.
When close to half of a defendant's crimes may go unpunished, we
consider this significant and worthy of departure.
Furthermore, in determining whether, under § 3D1.4, a
case is an "unusual case" where the "additional offenses resulted
in significantly more than five units," one may consider not only
the numerical difference between the six victims considered and
the actual number of victims involved, but also the nature of the
additional criminal conduct. See United States v. Pearson, 911
F.2d 186, 189 (9th Cir. 1990) (indicating that it is permissible
to take into account nature as well as number of additional
offenses in deciding whether to depart in accordance with
commentary to USSG § 3D1.4). In the present case, MacLeod's four
additional offenses involved the sexual exploitation of young
children. Two of the victims (V-7 and V-8) were under the age of
sixteen. A third and fourth victim (V-9 and V-10) were only
sixteen and seventeen respectively. Given the potential
psychological harm to the young victims of this type of offense,
we believe that the addition of (at a minimum) four victims
0
Obviously, if four additional offenses are significant,
five, six, or seven additional offenses would be significant as
well.
15
should be considered significant, and hence that upward departure
was permissible.
Other courts that have addressed the issue also support
this conclusion. Only three published opinions (involving three
different United States Courts of Appeals), deal with USSG §3D1.4
departures for numerous offenses. See United States v. Okane, 52
F.3d 828 (10th Cir. 1995); United States v. Pearson, 911 F.2d 186
(9th Cir. 1990); United States v. Chase, 894 F.2d 488 (1st Cir.
1990). Under plenary review (and with little comment), the Chase
court found 9 uncounted robberies significant0 while the Okane
court found five uncounted robberies significant.0 Under abuse
0
United States v. Chase, 894 F.2d 488, 491 (1st Cir.
1990) ("We find the instant case to be one in which the
additional offenses (numbering nine) resulted in a total of
significantly more than five units. Without question, the
circumstance relied upon by the district court to justify
departure from the Guidelines -- the large additional number of
bank robberies committed by the defendant -- is sufficiently
'unusual' to justify departure.").
0
United States v. Okane, 52 F.3d 828, 832-33 (10th Cir.
1995) ("We have no trouble concluding Mr. Okane's pleas of guilty
to five additional bank robbery charges, which did not amount to
additional units under § 3D1.4, nonetheless constitute
sufficiently unusual circumstances to support an upward departure
under step one. Under similar circumstances involving a
defendant who pled guilty to fifteen counts of robbery, only five
of which were expressly counted as units under § 3D1.4, the First
Circuit [in Chase] stated '[w]ithout question, the circumstance
relied on by the district court [i.e., the remaining ten robbery
convictions] to justify departure from the Guidelines -- the
large additional number of bank robberies committed by the
defendant -- is sufficiently "unusual" to justify a departure.'")
(citation omitted).
It is worth noting that we believe that the Okane
court, in some respects, misapplied § 3D1.4. While that section
allows for only a five level increase in offense level, it
actually takes into account six victims. Thus, the Chase court
used nine (not ten) uncounted robberies as the basis for its
departure. Likewise, as the defendant in Okane pled guilty to ten
bank robberies, the five level increase in § 3D1.4 accounted for
16
of discretion review, the Pearson court considered two uncounted
robberies significant. 911 F.2d at 189-90.0
B. Step Two--Do the Facts Support the Grounds Relied
Upon for Departure?
The district court based its decision to depart on
the uncounted minors depicted in the Baltimore tapes. Under step
two, we review for clear error whether the record contains a
sufficient factual basis to support departure. See Kikumura, 918
F.2d 1098. Pursuant to § 3D1.4, only six of MacLeod's victims
were used to calculate his presumptive sentence. The presentence
report makes clear that the Baltimore tapes involved the
exploitation of at least ten identified victims as well as
several unidentified victims. MacLeod plead guilty to the
production of the Baltimore tapes. Thus, there is no question
that his offense involved a significant number of additional
uncounted minors. Accordingly, the district court's
determination that the facts on record supported its ground for
departure was not clearly erroneous.
C. Step 3--Was the Extent of Departure Reasonable?
Finally, we must determine whether the extent of the
district court's departure -- four levels for four additional
six of them. Hence, there should have been four (not five)
uncounted robberies upon which the Okane court could base its
departure.
0
Unlike this Court, The Ninth Circuit follows a five
step review process for departures. Under this five step
process, an assessment of the significance of the additional
offenses falls under abuse of discretion review. United States
v. Pearson, 911 F.2d 186, 188-89 (9th Cir 1990).
17
offenses -- was reasonable.0 We review the court's determination
for abuse of discretion. See Kikumura, 918 F.2d 1098. We find
it useful to begin our discussion with a simple mathematical
analysis. Had the district court considered only one victim,
MacLeod's total offense level would have been 24 and his
guideline range would have been seventy-seven to ninety-six
months rather than 121 to 151 months (the range applicable after
the five level increase of § 3D1.4). Thus, the first five
additional victims raised MacLeod's term of imprisonment by
fifty-five months (151 minus ninety-six). The average increment
per additional offense was eleven months (fifty-five divided by
five). When the district court departed an additional four
levels for the four uncounted victims, MacLeod's guideline range
became 188 to 235 months. Thus, these four victims raised
MacLeod's sentence eighty-four months (235 minus 151) or twenty-
one months per victim (eighty-four divided by four).
In evaluating the reasonableness of the district
court's departure, we seek guidance from the guidelines
themselves. See Kikumura, 918 F.2d at 1111 ("Recognizing the
need for additional standards, the courts of appeals have
recently begun to look to the guidelines themselves for guidance
in determining the reasonableness of a departure. Today we
endorse that general approach.") (citations omitted). When
departing from a sentencing range, courts should remain faithful
0
The district court was clear that the extent of its
departure was based only on the four identified victims. See
discussion supra p. 11.
18
to structured guideline principles and attempt, where possible,
to create sentences analogous to those explicitly specified by
the guidelines for similar offenses. We note that at higher
sentencing ranges, where MacLeod's sentence falls, an increase of
one level generally makes a quite large and continually
increasing amount of jail time. Thus, we must consider with
extreme care the district court's decision to depart four levels.
MacLeod's offense involved Chapter 3, Part D of the
sentencing guidelines. The introductory commentary to that part
indicates that its aim is "provide incremental punishment for
significant additional criminal conduct." USSG Ch.3, Pt.D,
intro. comment. However, "the amount of additional punishment
[is to] decline[ ] as the number of offenses increase." Id.
(emphasis added). The district court's departure is at odds with
this principle of declining marginal punishment. MacLeod's first
five additional offenses carried an average of eleven additional
months imprisonment. Given the district court's departure,
MacLeod's final four offenses carried an average of twenty-one
additional months imprisonment. Thus, contrary to the commentary
to Section 3, Part D, as the number of MacLeod's offenses
increased, so did his additional punishment.
An examination of the guideline sections pertaining to
both theft and fraud also suggest that the extent of the district
court's departure was problematic. These sections are a good
source of comparison because they permit, without departure, an
offense to be increased beyond five levels (the limit imposed for
grouping increments in § 3D1.4). Especially as one gets beyond
19
an increase of five offense levels, each one level increase
requires a growing amount of harm. For instance under USSG
§2B1.1, the guideline involving theft, embezzlement and receipt
of stolen property, raising a five level increase to a six level
increase requires $10,000 more loss. Raising a six level
increase to a seven level increase requires $20,000 more loss.
Raising a nine level increase to a ten level increase requires
$80,000 more loss. At the extreme, raising a nineteen level
increase to a twenty level increase requires $40,000,000 more
loss. USSG § 2F1.1, the guideline for fraud and deceit, forgery,
and counterfeiting, follow a similar pattern. Yet, in the
instant case, each level of the district court's four level
departure was based on the same amount of harm--the exploitation
of one child. Analogy to USSG §§ 2B1.1, 2F1.1 suggests that this
is unreasonable.
The three court of appeals cases in this area support
our decision. In the two cases that found a departure
unreasonable, the departure was significantly lower than it is
here. In United States v. Okane, 52 F.3d 828 (10th Cir. 1995),
the court upheld a departure of one level for five additional
bank robberies. The court wrote:
We find the district court's proffered
reason for departing, which was Mr. Okane's
additional pleas of guilty to five other
robbery charges, is legally sufficient to
warrant a one level upward departure. . . .
While the Guidelines' overarching
purpose of achieving uniformity and
proportionality in sentencing is a
countervailing concern in this calculus, the
Guidelines do contemplate some sentencing
disparities in cases where the circumstances
20
justify it. The Guidelines do not prohibit
any sentencing disparity; they prohibit
unwarranted sentencing disparities. In this
case, the offenses in question are
undoubtedly serious and we find they warrant
a one-level departure.
Id. at 833 (citations omitted). Thus, in Okane, the court found
reasonable a much smaller departure than the one here at issue.
In United States v. Chase, 894 F.2d 490, 491-92 (1st
Cir. 1990), the First Circuit affirmed a departure of
approximately fifty months for nine additional bank robberies.
Dividing fifty months by nine robberies indicates that the
average additional imprisonment time for each robbery was
approximately five and one-half months. As this was roughly
equivalent to the additional punishment, under the guidelines,
for each of the first five additional offenses, the court upheld
the departure. Id. In the case at bar, the district court
departed eighty-four months for four additional offenses. This
resulted in an average of twenty-one additional months
imprisonment per offense. In contrast to the departure found
reasonable by the Chase court, this is approximately double the
average punishment for the first five additional victims (eleven
months).
In the one case that found the district court's
departure unreasonable -- United States v. Pearson, 911 F.2d 186,
190 (9th Cir. 1990) -- the district court's departure,
approximately fifty-seven months for two offenses (or twenty-
eight and one-half months per offense), id. at 187, closely
approximates the district court's departure here. The Ninth
21
Circuit had little difficulty in concluding that the district
court's six level departure was unreasonable and that a one level
departure would be appropriate instead. Id. at 190-91.
We appreciate the district court's dilemma here. With
no previous guidance from this Court, it was obliged to sentence
truly repugnant criminal behavior. Its decision to depart was
certainly appropriate. However, for the reasons set forth above,
the extent of its departure is inconsistent with the exercise of
sound discretion.
The commentary to Chapter 3, Part D indicates that the
amount of additional punishment should decline as the number of
offenses increase. See USSG Ch.3, Pt.D, intro. comment. Thus,
the average punishment for the four additional offenses should be
somewhat less than eleven months (the average punishment for the
first five additional offenses). An appropriate departure,
therefore, should be no more than two levels. Under such a
departure, MacLeod's new sentencing range would be 151-188
months. A sentence at the upper-end of that range would be a
thirty-seven month increase from the original 121 to 151 month
guideline (188 minus 151). Dividing thirty-seven by four
indicates an addition of approximately nine months imprisonment
per offense. A departure of greater magnitude is unreasonable.0
0
While we will not impose an explicit upward limit on
the district court's ability to depart, should it decide on
remand to take into account more than the four identified
victims, we do note that the court should remain faithful to the
general principles enunciated in this opinion.
22
The judgment of the district court will therefore be vacated and
the case remanded for resentencing consistent with this opinion.
23