United States v. Barth , 3 F. App'x 89 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 00-4172
RICHARD S. BARTH,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-99-310-DKC)
Argued: November 3, 2000
Decided: February 12, 2001
Before NIEMEYER and KING, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge
for the District of South Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Sandra Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellant. Nathan Lewin, MILLER, CAS-
SIDY, LARROCA & LEWIN, L.L.P., Washington, D.C., for Appel-
lee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Greenbelt, Maryland, for Appellant. Jennifer M. O’Connor, MILLER,
CASSIDY, LARROCA & LEWIN, L.L.P., Washington, D.C., for
Appellee.
2 UNITED STATES v. BARTH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Government appeals the sentence imposed on Richard Barth
for his conviction in the District of Maryland, pursuant to his guilty
plea, for violating 18 U.S.C. § 2252A(a)(1) (illegal transportation, by
computer, of child pornography in interstate commerce). We possess
jurisdiction under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291. For the
reasons set forth below, we vacate Barth’s sentence and remand for
resentencing.
I.
Richard Barth is a sixty-year-old father and grandfather, formerly
employed by the federal government as a data standards manager.
Under the plea agreement between Barth and the Government, the
parties stipulated to the following events:
In or about November 1998, Barth entered an Internet chat-
room regarding "dad and daughter sex". Barth began com-
municating electronically via Internet Relay Chat (IRC)
with a user using the screen name "beth15" whose profile
included the fact that she was living in Illinois. During the
course of their communications, Barth transmitted child por-
nography to "beth15" from his computer in Maryland to a
computer in Illinois. One of the transmissions occurred on
November 2, 1998. In subsequent electronic communica-
tions, Barth suggested that he and "beth15" meet for the pur-
pose of engaging in sexual conduct. "Beth15" indicated to
Barth that she was 14 years old. The meeting was scheduled
in Chicago Illinois because Barth would be traveling from
Maryland for purposes of attending a work related confer-
ence.
UNITED STATES v. BARTH 3
On or about November 12, 1998, Barth canceled the meet-
ing with "beth15" stating in his transmission to her that he
was being "watched" for "sexual improprieties" at his place
of employment. According to Barth, he had previously
scheduled a meeting with a business colleague at the same
time and contends that he never had any actual intention of
meeting "beth15." Barth made the business trip to Chicago.
On or about November 17, 1998, Barth was arrested in Chi-
cago, Illinois. After being advised of his constitutional
rights, Barth admitted to transmitting child pornography to
"beth15" and that he had a collection of child pornography
on the computer in the basement of his home.
On or about November 18, 1998, a consent search was con-
ducted of Barth’s home and a computer was seized. Hun-
dreds of images of child pornography were identified on the
computer, many of which involved a prepubescent minor or
a minor under the age of twelve years. The government con-
tends that images of sadistic and masochistic conduct or
other depictions of violence were also found.
J.A. 8.
At Barth’s sentencing, the Government provided evidence that in
the course of exchanging pornography over the Internet, Barth
engaged in sexually explicit chat. For instance, while communicating
with "beth15," Barth expressed his desire to have sex with her, made
repeated and graphic references to his genitals and her genitals, sug-
gested that she smoke marijuana and drink alcohol, and, most impor-
tantly, made plans to meet her for the specific purpose of having
sexual intercourse with her. Barth also urged her to keep the chat and
visual images away from her family and the police.
More disturbingly, in their search of Barth’s home computer, law
enforcement officers found electronic conversations — with "beth15"
and others — in which Barth boasted of raping his own granddaugh-
ter. For example, he wrote to "april12": "i did my 8 y/o granddaugh-
ter." J.A 475.1 On various occasions, he described performing sexual
1
Suffice it to say that Barth elaborated on his claim — that he "did"
his granddaughter — in excruciatingly graphic language.
4 UNITED STATES v. BARTH
acts on the child, including but not limited to performing oral sex and
inserting his fingers into her vagina. In the course of these conversa-
tions, Barth gave accurate and specific information about himself,
including identifying information about his job, family background,
and physical appearance.
Investigators followed up on these horrific disclosures. Upon con-
firming that Barth, in fact, had an eight-year-old granddaughter in
New York, the FBI contacted the local authorities. The New York
Administration on Children’s Services interviewed the granddaughter
and her parents, and it subsequently filed petitions in a New York
family court seeking to have the granddaughter and her siblings
declared abused children and placed in the state’s protective custody.
The petitions for custody identified not only Barth as an abuser, but
also similarly identified the children’s parents for failing to protect
them from Barth’s sexual abuse.
The ensuing New York investigation established that none of the
sexual acts described by Barth had actually occurred, thus concluding
that the allegations of sexual abuse were "unfounded." Barth voluntar-
ily settled the New York proceedings by agreeing to a protective
order which prevented him from having unsupervised contact with
any of his grandchildren for one year.
Barth then entered his guilty plea to a criminal information, in
which the United States Attorney charged him with violating 18
U.S.C. § 2252A(a)(1). At his sentencing, Barth proffered a series of
specific grounds on which he sought downward departure; more gen-
erally, he emphasized the traumatic nature of the New York investiga-
tion, especially insofar as it implicated his daughter’s family. The
district court proved receptive to this entreaty, awarding Barth an
eight point downward departure, which brought him from Level 18
to Level 10 under the Guidelines.2 The district court justified this
departure as follows:
2
Though receptive to Barth’s request for leniency, the district court
rejected each of the factual grounds on which he had sought a downward
departure. Indeed, the court made specific findings that Barth did not suf-
fer from diminished mental capacity, J.A. 440, that his conduct was not
aberrational, J.A. 437, that his charitable and community service were
not "out of the ordinary," J.A. 437, that his acceptance of responsibility
was not "extraordinary," J.A. 440, and that the harm to his family, though
serious, was not "extraordinary." J.A. 440-41.
UNITED STATES v. BARTH 5
It is one thing for a defendant to have to face the conse-
quences himself in terms of prison, if that is what it is, pro-
bation, a fine, what have you. In my experience, it is quite
another thing to have to watch your family members go
through the same kind of accusation that you have brought
on yourself because of your conduct.
. . . [U]nderstanding that you have put your daughter and her
family through that, and I suppose that some day the grand-
children may actually learn what it was all about . . . is pun-
ishment to Mr. Barth unlike that typically faced, or at least,
to my knowledge, faced by others in his situation.
He dealt with it by doing what he could to further accept
responsibility, that is, by agreeing to the restraining order in
return for dropping this with no finding in a year, but it also
constitutes in part a harm to the family that has already
occurred and will continue to occur simply because of the
nature of the chats that took place.
So I am calling this a combination of acceptance, but it is
more additional punishment faced by the defendant due to
the impact this had on his daughter and her family that I find
does take this case out of the heartland.
J.A. 441-42.
The district court then imposed a twelve-month sentence on Barth,
including ten months of home detention and two months of incarcera-
tion, followed by three years of supervised release. The Government
has appealed Barth’s sentence, insisting that the downward departure
lacked a proper basis under the Sentencing Guidelines.
II.
It is settled that we review a district court’s decision to award a
downward departure for abuse of discretion. See Koon v. United
States, 518 U.S. 81, 91 (1996); United States v. Rybicki, 96 F.3d 754,
756-57 (4th Cir. 1996). Koon instructs that a district court’s decision
6 UNITED STATES v. BARTH
to depart will generally be entitled to "substantial deference, for it
embodies the traditional exercise of discretion by a sentencing court."
518 U.S. at 98. The deference we accord such decisions reflects the
special institutional competence that district courts possess in discern-
ing which cases "fall outside the heartland" of cases governed by the
Sentencing Guidelines. Id. As Koon also advises: "Whether a given
factor is present to a degree not adequately considered by the Com-
mission, or whether a discouraged factor nonetheless justifies depar-
ture because it is present in some unusual or exceptional way, are
matters determined in large part by comparison with the facts of other
Guidelines cases." Id.III.
A.
While a sentencing court’s decision to depart from the Guidelines
generally should not be disturbed, appellate review is not an "empty
exercise." See id. Downward departures may be reversed on appeal if
the sentencing court relies on improper factors, e.g., "discouraged"
factors, or if the reviewing court, evaluating the totality of the circum-
stances, concludes that the case is not so exceptional as to justify
departure. See United States v. DeBeir, 186 F.3d 561, 566 (4th Cir.
1999). Reviewing courts can and will find an abuse of discretion
where the "circumstances and consequences of [a] case do not render
it sufficiently atypical or extraordinary to remove it from the heart-
land of cases covered by the applicable guideline." See id. at 564.
In DeBeir, we reviewed at length, in a not dissimilar factual situa-
tion, the permissible and impermissible types of Koon departures. The
defendant in DeBeir, a male of fifty-eight, had pled guilty to travel-
ling in interstate commerce with the intent to engage in a sexual act
with a minor.3 The district court departed three levels on the basis of
a combination of factors which either singly or together indicated that
3
DeBeir had exchanged numerous sexually explicit electronic commu-
nications with "Kathy," a federal agent adopting the persona of a
fourteen-year-old girl, and the two had eventually arranged a meeting "so
that he could teach her about oral sex." 186 F.3d at 564.
UNITED STATES v. BARTH 7
a longer sentence would have an adverse effect on DeBeir, "to an
exceptional degree." See id. at 565.
Like Barth, DeBeir proffered a veritable laundry list of departure
bases, including the "collateral consequences of incarceration" on his
employment opportunities, his "unique psychological condition," his
"unusual susceptibility to abuse in prison," the "impact of negative
publicity," an assertion that the crime was "victimless" since the
minor was actually an undercover FBI agent, and the defendant’s age,
extreme remorse, and post-offense rehabilitation effort. We concluded
that none of these factors was so unique or extraordinary as to bring
the case outside the heartland of similar cases. Judge Motz explained:
We have studied the record thoroughly, including the par-
ties’ fine briefs, and have reviewed the entire complement
of factors and circumstances contributing to the district
court’s departure decision and cannot conclude that any fac-
tor or group of factors brings this case outside the norm. The
circumstances of this case are far removed from those found
exceptional in existing case law; even when taken together,
they cannot justify a departure.
Id. at 573.
Accordingly, we determined that the district court had abused its
discretion in sentencing DeBeir, and we reversed. Discussing at
length the purposes of the Sentencing Guidelines and their essential
goal of eliminating inequality in sentencing, we recognized that a sen-
tencing court may permissibly depart only in "extraordinary cases,"
and that such "heartland" departure cases are "‘extremely rare.’" Id.
at 566, quoting U.S.S.G. § 5K2.0 (Commentary). As in DeBeir, we
conclude that the circumstances presented here are neither atypical
nor extraordinary, but instead fall squarely within the heartland of
child pornography prosecutions.
B.
The Government asserts that, in this case, the district court improp-
erly applied a hybrid theory of downward departure, i.e., "additional
8 UNITED STATES v. BARTH
punishment," based on the harm already inflicted on Barth’s family
— and, consequently, on his conscience — coupled with Barth’s
acceptance of responsibility in entering into the New York settlement
agreement. While neither of these concerns would justify a downward
departure if viewed independently, the court found their cumulative
effect sufficient to remove Barth’s case from the heartland.4
1.
The critical issue in our review of this sentence relates to the
asserted "additional punishment" imposed on Barth as a result of the
New York investigation. In this regard, we observe that defendants
convicted of child pornography crimes are typically exposed to harsh
and shameful personal consequences — including incarceration,
impaired job prospects, and social stigma. Indeed, a child pornogra-
phy defendant should readily expect that he will be investigated and
restrained from contact with children. The sentencing court indicated,
however, that such consequences would rarely extend to innocent
family members as directly as they did in this case, apparently regard-
ing the New York investigation as uniquely devastating. In the court’s
words: "[U]nderstanding that you have put your daughter and her
family through that, and I suppose that some day the grandchildren
may actually learn what it was all about . . . is punishment to Mr.
Barth unlike that typically faced, or at least, to my knowledge, faced
by others in his situation." J.A. 441-42.
According to the Government, this "additional punishment" ratio-
nale is unprecedented and legally impermissible. First, it was not the
4
In effect, the district court here justified its downward departure under
§ 5K2.0 of the Guidelines, the same ground analyzed — and rejected —
in DeBeir. In the Commentary accompanying § 5K2.0, the Sentencing
Commission acknowledged the possibility of
an extraordinary case that, because of a combination of [charac-
teristics or circumstances that are ordinarily not relevant to
departure], differs significantly from the "heartland" cases cov-
ered by the guidelines . . ., even though none of the individual
characteristics or circumstances individually distinguishes the
case.
U.S.S.G. § 5K2.0 (Commentary).
UNITED STATES v. BARTH 9
punishment of incarceration, but the defendant’s own relevant mis-
conduct which directly caused his family’s suffering. Similarly, the
Government observes that this "additional punishment" was not only
foreseeable, but was a direct and inevitable consequence of Barth’s
misconduct. It also maintains that when there is such a close nexus
between the criminal conduct and the collateral consequence, one
may assume that the Guidelines have already taken that consequence
into account.
Finally, the Government asserts that, even if the proffered rationale
were permissible in some cases, the sentencing court abused its dis-
cretion in granting Barth an eight-level downward departure. There
was simply nothing in the record to support a claim that Barth was
punished any more or differently than others convicted of similar sex
offenses. That his own relevant conduct — indeed his own words —
dragged his family into an investigation is unfortunate, but not
unusual. Sex offenders who have frequent contact with children often
find that their lives are altered in that respect after conviction.
In response, Barth submits that the "additional punishment" at issue
here was neither an inherent nor foreseeable consequence of his
crime. We are unconvinced, and we find ourselves in agreement with
the Government. Though the investigation of Barth’s daughter and
son-in-law may have been unusual, there is no reason for Barth to
benefit from this anomaly. Presumably, any investigation would dev-
astate the family, even if confined to his own behavior, i.e., even if
his daughter’s family had not been directly accused. The inconve-
nience here may have been unusually direct, but the family’s suffer-
ing was well within the heartland of the crime. While deference is to
be accorded the district court, our decisions instruct that heartland
departures may be reversed when the defendant’s punishment is not
atypical or extraordinary in the context of the criminal act and rele-
vant circumstances. See, e.g., DeBeir, supra; Rybicki, 96 F.3d at 759(concluding that job loss occasioned by a defendant’s newly acquired
status as convicted felon was "far from atypical" and did not merit
departure).
10 UNITED STATES v. BARTH
2.
The sentencing court also identified a second factor — Barth’s "ac-
ceptance of responsibility" — to support its downward departure on
behalf of Barth. However, it is elementary that acceptance of respon-
sibility is already accounted for under the Guidelines, and cannot
serve as the basis for an additional departure unless "present to an
exceptional degree or in some other way mak[ing] the case different
from the ordinary case where the factor is present." Koon, 518 U.S.
at 82. Although Barth’s consent to the New York restraining order
was not compelled, it hardly qualifies as an "extraordinary" accep-
tance of responsibility.5 Indeed, given Barth’s arrest and his revolting,
though false, statements about his granddaughter, his agreement to the
restraining order was a fairly minor concession. In our view, it would
have been extraordinary if Barth had not consented to the restraining
order. In short, we view Barth’s "acceptance of responsibility" as
nothing more than damage control — to be expected under the cir-
cumstances.
IV.
We therefore conclude that neither the "additional punishment"
which Barth suffered, nor his "acceptance of responsibility," consid-
ered individually or collectively, are so unique or extraordinary as to
remove Barth’s case from the "heartland" of similar cases. Because
the downward departure granted to Barth constituted an abuse of dis-
cretion, we vacate his sentence and remand for resentencing.
VACATED AND REMANDED
5
The sentencing court’s invocation of this factor was especially inap-
propriate since Barth had already received a two-point downward depar-
ture for acceptance of responsibility under U.S.S.G. § 3E1.1, and the
court had specifically found that Barth’s acceptance of responsibility,
viewed independently, was not "extraordinary."