87 F.3d 814 (6th Cir. 1996), 94-4117, United States v. Surratt

Docket Nº:94-4117.
Citation:87 F.3d 814
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Gregory SURRATT, Defendant-Appellee.
Case Date:June 28, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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87 F.3d 814 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellant,

v.

Gregory SURRATT, Defendant-Appellee.

No. 94-4117.

United States Court of Appeals, Sixth Circuit

June 28, 1996

Argued April 15, 1996.

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[Copyrighted Material Omitted]

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Marilyn A. Bobula, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Cleveland, OH, for U.S.

Edward A. Heffernan (argued and briefed), Cleveland, OH, for Gregory Surratt.

Before: MERRITT, Chief Judge; LIVELY and RYAN, Circuit Judges.

LIVELY, Circuit Judge.

The government appeals from the sentence imposed by the district court following the defendant's guilty plea to a charge of knowingly receiving through the mails visual depictions involving the use of a minor engaging in sexually explicit conduct. 18 U.S.C. § 2252(a)(2) (1988 & Supp. V 1993). Our principal concern is with the government's contention that the district court erred by not increasing the base offense level by five levels on the basis of a listed specific offense characteristic--"a pattern of activity involving the sexual abuse or exploitation of a minor." United States Sentencing Guidelines (U.S.S.G.) § 2G2.2(b)(4) (1993). For the reasons that follow, we affirm the sentence in part and vacate in part.

I.

A.

In December 1991, the defendant Gregory Surratt responded to an advertisement for child pornography in a magazine entitled "Video Xcitement." The advertisement had been placed there by undercover postal inspectors. Prompted by return correspondence from a postal inspector, the defendant wrote letters expressing a definite interest in "pre-teen material" and ordered two magazines and one videotape depicting pre-pubescent males and females engaging in sexually explicit conduct. On March 10, 1992, postal inspectors made a controlled delivery of the items ordered by the defendant to his residence. Shortly thereafter, law enforcement officials executed a federal search warrant for Surratt's home, seizing 51 Beta videotapes, an extremely large amount of adult pornography and photographs of the head of Surratt's minor daughter pasted over the faces of adult women in pornographic pictures. Upon review of the videotapes seized, investigators learned that the videotapes showed Surratt engaging in sexually explicit poses and sexual activity with his daughter, then approximately seven to nine years old. Further investigation by the United States Postal Inspection Service revealed evidence which suggested that the defendant had initiated sexually suggestive contact with at least ten neighborhood girls who associated with his daughter.

Based on the conduct recorded on the confiscated videotapes, Surratt was charged in an Ohio state court with attempted rape, attempted felonious sexual penetration, felonious sexual penetration and gross sexual imposition in a 25-count indictment. He pled guilty to one count of attempted rape and one count of attempted felonious sexual penetration, and was sentenced to eight to 15 years' incarceration on each count, to be served consecutively. He is therefore serving at least 16 years, and up to 30 years, in state custody.

B.

After Surratt was charged in a single-count federal indictment for violating 18 U.S.C. § 2252(a)(2), the prosecution requested and the presentence investigation report recommended that he be given the maximum statutory sentence of 10 years' imprisonment. See 18 U.S.C. § 2252(b)(1) (Supp. V 1993). However, once Surratt pled guilty to the federal charge, the district court found that the proper sentencing range was 21 to 27 months, based on an offense level of 15 and a criminal history category of II. United States v. Surratt, 867 F.Supp. 1317, 1319-21

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(N.D.Ohio 1994). The court determined the base offense level was 15, pursuant to U.S.S.G. § 2G2.2(a), increased the offense level by two points under U.S.S.G. § 2G2.2(b)(1) because the material received involved minors under the age of 12, and then decreased the offense level by two points because it found the defendant had accepted responsibility for his actions. Id. Rejecting the government's requests for further enhancements and upward departures, the court ultimately sentenced Surratt to 24 months of incarceration, to be served consecutive to his state sentence, followed by three years of supervised release. Id. at 1318.

In this appeal, the government challenges the court's refusal to consider any testimony or exhibits pertaining to the defendant's uncharged acts of sexual abuse and exploitation of minors. The government contends that such evidence at sentencing would have justified: (1) a five-level "pattern of activity" enhancement of the defendant's base offense level under U.S.S.G. § 2G2.2(b)(4); (2) an upward departure from the offense level pursuant to application note 5 of U.S.S.G. § 2G2.2; and (3) an upward departure from the defendant's otherwise applicable guideline range. The government also challenges a two-point reduction in the defendant's offense level, under U.S.S.G. § 3E1.1(a), for acceptance of responsibility.

II.

A.

The government sought to introduce evidence at sentencing to show that for two decades, the defendant had engaged in the sexual abuse and exploitation of more than a dozen minor females. The government's proffer of exhibits, submitted in anticipation of the defendant's change of plea and sentencing hearing, included evidence of the defendant's sexual abuse of his young daughter, of his interest in child pornography and of his alleged molestation of other identified minors. The government also wished to present testimony relating to the defendant's purported sexual abuse of his first wife, who was a minor during most of their marriage; testimony from an expert on predatory pedophiles; and testimony from a postal inspector regarding the investigation of the defendant. The court excluded the government's evidence, ruling that it was, for the most part, irrelevant to the charged offense. In addition, the court found that the expert testimony proffered was cumulative to evidence already considered by the court, because it had already concluded from psychiatric evidence submitted by the government that the defendant is, in fact, a predatory pedophile.

The government, however, insisted that the sentencing court was required to consider the evidence proffered in order to determine whether Surratt's "pattern" of activities with minors mandated an enhancement under U.S.S.G. § 2G2.2(b)(4). The court rejected this argument and held that U.S.S.G. § 2G2.2(b)(4) simply could not apply in this case as a matter of law. Surratt, 867 F.Supp. at 1320. Section 2G2.2 of the sentencing guidelines states in part:

(b) Specific Offense Characteristics

(1) If the material involved a prepubescent minor or a minor under the age of twelve years, increase by 2 levels.

(2) If the offense involved distribution, increase by the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.

(3) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

(4) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.

U.S.S.G. § 2G2.2(b) (emphasis in original). The commentary to subsection (b)(4) defines a "pattern of activity" as "any combination of two or more separate instances of the sexual abuse or the sexual exploitation of a minor, whether involving the same or different victims." Id. at cmt. (n.4). The district court found that the § 2G2.2(b)(4) enhancement was available only when there was a pattern of behavior "relevant" to the offense of conviction, and that no such pattern had been alleged in the case. Surratt, 867 F.Supp. at 1320. We review de novo the district court's

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construction of the sentencing guidelines. United States v. Carroll, 893 F.2d 1502, 1508 (6th Cir.1990).

In support of its position, the government directs this court's attention to the "broader language" of subsection (b)(4) as compared to the language of the other specific offense characteristics in U.S.S.G. § 2G2.2. Unlike its counterparts, which refer to the "offense involved" or the "material involved," subsection (b)(4) focuses on the actions of "the defendant." This focus on the defendant's conduct, the government claims, indicates that the Sentencing Commission intended U.S.S.G. § 2G2.2(b)(4) to apply whenever there is a preponderance of evidence to show that the defendant engaged in two or more acts of sexual exploitation or abuse involving minors, no matter how attenuated those acts are from the charged offense. The government also points out that the 1991 amendments to U.S.S.G. § 2G2.2 specifically curtailed judges' discretion in sentencing such an offender by making a previously mandatory upward departure under the application notes discretionary, 1 but then adding subsection (b)(4) to dictate a minimum enhancement of five levels. See Guidelines Manual Appendix C, amendment 435 (1993).

B.

The only appellate decision construing U.S.S.G. § 2G2.2(b)(4) of which we are aware agrees with the construction given to the subsection by the district court in the present case. See United States v. Chapman, 60 F.3d 894, 901 (1st Cir.1995). The Chapman court conducted a careful review of the text of the subsection and its placement in the guideline before concluding that it does not apply to past acts having no connection with the offense of conviction. Id. We agree with the Court of Appeals for the First Circuit and find that there are limitations to what conduct the court may consider to determine the applicability of U.S.S.G. § 2G2.2(b)(4). We believe the existence of application note 5, which allows an upward departure on the basis of the defendant's past sexual abuse or exploitation of minors ...

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