5 F.3d 64 (4th Cir. 1993), 93-5158, United States v. Bell

Docket Nº:93-5158.
Citation:5 F.3d 64
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. George Robert BELL, Defendant-Appellee.
Case Date:September 13, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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5 F.3d 64 (4th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellant,

v.

George Robert BELL, Defendant-Appellee.

No. 93-5158.

United States Court of Appeals, Fourth Circuit

September 13, 1993

Argued July 15, 1993.

Gregory Welsh, Asst. U.S. Atty./Chief, Criminal Div., Baltimore, MD, argued (Richard D. Bennett, U.S. Atty., on brief), for plaintiff-appellant.

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Jean A. Garner, Garner & Walls, Laurel, MD, argued (C. Michael Walls, on brief), for defendant-appellee.

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

OPINION

WILKINS, Circuit Judge:

In an earlier opinion, a panel of this court vacated the sentence of George Robert Bell and remanded for resentencing within the guideline range of 87-108 months imprisonment. See United States Sentencing Commission, Guidelines Manual, (Nov. 1989); United States v. Bell, 974 F.2d 537 (4th Cir.1992) (Bell I ). On remand, rather than follow the mandate, the district court vacated Bell's guilty plea to sexual exploitation of children, see 18 U.S.C.A. Sec. 2251(a) (West Supp.1993), and dismissed the indictment. Because the district court was in error, we reverse, reinstate Bell's conviction, and remand for resentencing.

I.

Following indictment on multiple counts of sexual exploitation of children, Bell pled guilty to a single count of using a minor to engage in sexually explicit conduct for the purpose of making a visual depiction of that conduct. The facts supporting his plea arose during a camping trip on which Bell took his daughter, age 13, and three daughters of a family friend, ages 12, 8, and 7. Bell and his daughter left their home in Maryland and traveled to Pennsylvania where they picked up the other children. During the trip, Bell placed a video camera in his camper in a position to record the children while they changed their clothes. Bell instructed them to take off their clothes, sit in certain locations, and to "examine" themselves for the presence of ticks by spreading and examining their vaginas. At one point, Bell repositioned the camera so that the genitals of one child were the direct focus of the recording. At other points, Bell himself examined the children for ticks and rubbed lotion on them. Noticing the video camera, one of the children asked Bell if it was recording; Bell falsely assured her that it was not. At the end of the camping trip, Bell returned to his home in Maryland with the videotape. The circumstances leading to Bell's arrest and indictment are recounted in the earlier opinion:

Several months later, [after the camping trip] Montgomery County police were called to an elementary school in Rockville, Maryland, to investigate a complaint of child sexual abuse. A seven year old female student told police detectives that she had been taken by "Uncle George" to his residence in Salisbury, where he had taken photographs of her in the nude. Further investigation revealed that "Uncle George" was George Bell, and police obtained a warrant to search Bell's home. During the ensuing search police seized a number of videotapes containing scenes of young girls posing in the nude under Bell's direction. One of those tapes included the scenes of the girls "checking for ticks" in the camper [in Pennsylvania].

Id. at 538. Bell ultimately pled guilty to one count of violating Sec. 2251(a).

At the sentencing hearing, the district court assigned Bell an adjusted offense level of 28. 1 Based on Bell's prior convictions for promotion and distribution of child pornography and for sexual abuse of a child, his Criminal History Category was III. The district court, however, departed downward to Category II on the ground that Bell demonstrated "little or no likelihood of recidivism." Id. (internal quotation marks omitted). This yielded a guideline range of 87-108 months imprisonment. The district court departed from this range and imposed

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a sentence of 12 months imprisonment, giving as its reason the impact Bell's incarceration would have on his family.

The Government appealed the departure based on the extraordinary family circumstance. 2 The Bell I panel reversed, stating that because Bell is the father in a traditional two-parent family, his "circumstances [were] even less 'extraordinary' than that of a single mother." Id. at 539. The panel further noted that Bell had " 'shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts spousal and parental relationships,' and that simply is not a sufficient basis for a departure." Id. at 539 (quoting United States v. Daly, 883 F.2d 313, 319 (4th Cir.1989)). The sentence was vacated and the case remanded for resentencing. The instructions to the district court were explicit: "We vacate the sentence and remand for resentencing within the range of...

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