U.S. v. Barton, 233

• Decision Date: 16 February 1996
• Docket Number: D,No. 233,233
• Citation: 76 F.3d 499
• Parties: UNITED STATES of America, Appellant, v. John F. BARTON, Jr., Defendant-Appellee. ocket 95-1107.
• Court: U.S. Court of Appeals — Second Circuit

Page 499

76 F.3d 499

UNITED STATES of America, Appellant, v. John F. BARTON, Jr., Defendant-Appellee.

No. 233, Docket 95-1107.

United States Court of Appeals, Second Circuit.

Argued Oct. 11, 1995.

Decided Feb. 16, 1996.

Thomas J. Murphy, Assistant United States Attorney, New Haven, Connecticut (Christopher F. Droney, United States Attorney for the District of Connecticut, New Haven, Connecticut, of counsel), for Appellant.

Joseph Dimyan, Danbury, Connecticut (Pinney, Payne, Van Lenten, Burrell, Wolfe & Dillman, P.C., Danbury, Connecticut, Wendy A. Grispin, of counsel), for Defendant-Appellee.

Before: NEWMAN, Chief Judge, LUMBARD and CABRANES, Circuit Judges.

LUMBARD, Circuit Judge:

On November 4, 1994, John F. Barton, Jr. pleaded guilty to knowingly receiving in interstate commerce material involving the visual depiction of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). At sentencing on January 23, 1995, over the government's objection, the court departed from the Sentencing Guidelines range of fifteen to twenty-one months' imprisonment in light of Barton's psychological condition, his limited involvement with child pornography, his nonpredatory nature, and his efforts toward rehabilitation. It sentenced him to a three-year term of probation subject to the following conditions: four months of electronically monitored home confinement; a $1,500 fine; psychiatric and/or psychological counseling as directed by the Probation Office; payment for twenty-four months of the cost of supervision at $180.90 per month; and two hundred hours of community service. The court also imposed the mandatory $50 special assessment.

The government appeals, asking that the sentence be vacated because the court improperly departed from the recommended sentencing range for the reasons given. We vacate and remand for resentencing.

I.

The plea agreement stipulated the facts. In December 1993, William Colt of Greenville, North Carolina informed the Danbury, Connecticut Police Department that his son Karl was receiving, over his computer and through the mails, materials involving child pornography from an individual using the names John Barton and Bob Shaw. Karl Colt and Barton had been corresponding by telephone, mail, and electronic mail since 1988. Barton was forty-two years old that year; Colt was in his mid-twenties.

On or about January 7, 1994, Colt received a letter from Barton saying that he would send him a "video care package" for his new videocassette recorder. On March 28, Colt received in the mail an envelope containing three videocassettes, one of which was entitled "New Golden Boys 38." Although this videocassette featured sexual conduct between adults, it also contained one segment in which a minor about fourteen years old engaged in "masturbation and exhibition of his genital area in a lewd and lascivious manner." Colt acknowledged receipt of the videocassettes in an electronic mail message sent to Barton on April 21.

On April 28, Colt advised Barton by electronic mail that he was planning to copy the videotapes over the weekend and that he needed Barton's residential address in order to return them. In an electronic mail message that same day, Barton gave Colt his address. On May 27, an undercover postal inspector made a controlled delivery of the videocassettes to Barton's residence. Shortly thereafter, officers entered and searched Barton's home pursuant to a warrant and recovered the three videocassettes and the mailing envelope. They also seized several other items of child pornography, including some "visual depictions of prepubescent minors and/or minors under the age of 12 years engaged in sexually explicit conduct."

On November 4, 1994, Barton pleaded guilty to knowingly receiving pornographic materials involving minors and consented to the forfeiture of all materials involving child pornography in his possession. The Probation Office calculated Barton's base offense level as fifteen under the Sentencing Guidelines. See U.S.S.G. § 2G2.2. It added two points because the materials included visual depictions of minors under the age of twelve. See id. § 2G2.2(b)(1). It then reduced Barton's total offense level by two points for acceptance of responsibility, see id. § 3E1.1(a), and by one additional point because Barton timely notified the government of his intent to plead guilty, see id. § 3E1.1(b)(2), thus arriving at a total offense level of fourteen. Because Barton had no prior criminal record, the appropriate sentencing range under the Guidelines was fifteen to twenty-one months' imprisonment, to be followed by a term of supervised release of not more than three years.

In his presentence report, the Probation Officer recommended a downward departure from the guideline range on the sole ground that "the impact of prosecution ... resulted in a punitive effect to a degree and nature not adequately considered by the Sentencing Commission." In particular, he noted that

Mr. Barton has undergone a tremendous amount of personal and professional embarrassment as the result of being prosecuted for his illegal behavior. He appears to have lost a tenured position as a librarian and it is unlikely that he will ever be able to regain that professional level. Further, his continued involvement in social and religious activities will undoubtedly be negatively impaired.

At sentencing on January 23, 1995, the court concluded that it would be improper to depart from the guideline range for the reason suggested by the Probation Officer. Nonetheless the court said that it was considering departing down from the recommended sentence range on three grounds. First, Barton's extraordinary psychological condition warranted a downward departure. Second, the court found that Barton's conduct was sufficiently "atypical" to justify a downward departure, noting particularly that Barton was not involved in the commercial distribution or production of child pornography and that there was no evidence that Barton was a pedophile or that he had sexually abused children. Third, the court considered reducing Barton's total offense level in light of his efforts toward rehabilitation.

The government objected to each of the court's proposed grounds for downward departure. It asserted that Barton's psychological condition was not "extraordinary" as compared to other individuals convicted of receiving child pornography. Likewise, the government argued that Barton's conduct was not atypical: his limited involvement and nonpredatory profile did not entitle him to a sentence reduction because the statutes and the Guidelines had taken such factors into account by establishing different offenses and recommending stiffer sentences for producers and distributors of child pornography and by authorizing upward adjustments for actual instances of sexual abuse. Furthermore, the government disagreed with the court's suggestion that Barton had demonstrated "extraordinary" efforts at rehabilitation by beginning psychiatric therapy after the search of his home.

The court offered to postpone sentencing in order to permit the parties to introduce additional evidence regarding its proposed grounds for departure. The government expressed a desire to have Barton examined by another psychiatrist or to introduce expert testimony on the mental health problems of individuals with Barton's condition. However, as the court suggested that it would not find such evidence "particularly probative," the government chose not to seek a continuance and merely reserved its objections. The court granted Barton a six-level downward adjustment, thereby making him eligible for probation. See U.S.S.G. § 5B1.1. It sentenced Barton to a three-year term of probation subject to the special conditions mentioned above.

Because the record thus far developed does not support the Court's grounds for a departure, we vacate Barton's sentence and remand for resentencing.

II.

A. Mental and Emotional Condition

The court departed down from the guideline range based in part upon its determination that Barton suffered from a "significant aberrational kind of mental and emotional circumstance." See United States v. Lara, 905 F.2d 599, 603 (2d Cir.1990) (permitting downward departure where a defendant's mental and emotional condition presents "an extraordinary situation"); U.S.S.G. § 5H1.3, p.s. ("Mental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, except as provided in [§ 5K2.0 et seq.]"); U.S.S.G. § 5K2.0, p.s. ("[D]eparture from the applicable guideline range is warranted only if [a factor considered by the Guidelines] is present to a degree substantially in excess of that which ordinarily is involved in the offense."). Its findings rested upon a two-page letter by Barton's treating psychiatrist, Matthew J. Klein, M.D., submitted to the court in connection with Barton's release on bail. The letter described Barton's condition as follows:

My clinical impression of Mr. Barton is that he has had an untreated depression for many years in addition to the significant emotional problems which brought him into legal difficulties. His characterological problems are indicative of significant identity confusion and difficulty in perceiving himself as an adult in an adult world. Anxiety and depression intensify his fantasy life which involoves [sic] child sexual imagery. He shows no evidence of psychosis. His sense of morality is significantly intact. He appreciates both the societal and moral constraints of his behavior.... In many areas of his life, Mr. Barton has demonstrated responsibility, civic mindedness, and achievement.

Although the court acknowledged that Barton was not "an extraordinarily mentally health aberrant individual," it surmised that Barton's mental and emotional condition constituted "an integral part of the conduct" in question which "detract[ed]...