U.S. v. Bierley

• Decision Date: 28 December 1990
• Docket Number: No. 90-5099,90-5099
• Citation: 922 F.2d 1061
• Parties: UNITED STATES of America v. Jack W. BIERLEY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1061

922 F.2d 1061

UNITED STATES of America v. Jack W. BIERLEY, Appellant.

No. 90-5099.

United States Court of Appeals Third Circuit.

Argued Nov. 6, 1990.

Decided Dec. 28, 1990.

Peter T. Campana (argued), Campana & Campana, Williamsport, Pa., for appellant.

Barbara L. Kosik (argued), Office of U.S. Atty., Scranton, Pa., for appellee.

Before HIGGINBOTHAM, Chief Judge, SLOVITER and ALITO, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Jack Bierley pleaded guilty to knowing receipt through the mail of material containing visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. Sec. 2252(a)(2) (1988). He appeals from the judgment of sentence imposing a twelve month term of imprisonment.

We are asked to review the district court's application of the United States Sentencing Guidelines (U.S.S.G.) in (1) refusing to adjust Bierley's offense level downward under U.S.S.G. Sec. 3B1.2 for a mitigating role in the offense as a minimal or minor participant, and (2) concluding that it had no legal authority to depart from the sentencing range it had calculated.

I.

In May, 1988, W.R. Simpson, an undercover postal inspector engaged in a child pornography sting operation, placed an advertisement in a magazine entitled Video Mania, which read:

Wanted: Collector of rare, amateur erotic hard-core videos. Seeking to buy, sell, trade same. W.R. Simpson, 1579-F, Monroe Drive, N.E. 803, Atlanta, Georgia 30324.

In response, Bierley wrote to Simpson and expressed an interest in "non run-of-the-mill" and "off-beat" material, including, inter alia, "young stuff." App. at 178. Simpson sent back a letter stating that magazines such as Lolita and Nymph Lover were "what I have and what I am looking for." App. at 180. He included a questionnaire for Bierley to express his preferences as to subject, which included gender and age, activity displayed, and type of material sought, i.e., photographs, magazines, or video tapes. Bierley checked the boxes for video tapes of girls, specifying ages nine to fourteen, engaged in vaginal and oral sex, and wrote in an interest in "females (any age) engaging in sex with animals." App. at 183.

Bierley and Simpson continued to correspond for a number of months in a friendly, chatty manner. Simpson wrote Bierley that "It's preferred that the first exchange of material be from you ... to establish that you know what you are seeking and to also assure me that you are not setting me up." App. at 185. His letters stressed the need for caution in addressing and mailing the material. Bierley responded reiterating his interest in material involving nine- to fourteen-year-old girls and described again the sexual activity which he was interested in viewing. On August 24, 1988, Simpson responded with a list of magazines that he owned, which were available for $15 apiece. His letter graphically described the poses and sexual activity of the young subjects contained in each magazine. Bierley wrote back seeking a lower price for quantity. He expressed concern for a safe way of dealing because he had just read of a man arrested "in a child porno sting" for buying a tape through the mail, which he said he hadn't known was illegal. App. at 200. ¹ Simpson responded that only the four Lolita magazines were left and offered a discount price of $40 for four. He wrote that Bierley's "concern for a safe way of dealing is ... valid" and explained that he usually sent the material in a plain brown paper padded envelope without a return address. App. at 202. Bierley sent payment for the four issues of Lolita magazine.

On February 2, 1989, Simpson mailed Bierley the magazines. They were delivered to Bierley's home on February 6. Shortly thereafter, postal inspectors appeared with a warrant to conduct a search of the residence. They recovered the magazines in question, discovering no other child pornography.

Bierley was charged by a grand jury with one count of "willfully and knowingly receiv[ing] and caus[ing] to be delivered by mail, visual depictions of minors engaging in sexually explicit conduct," in violation of 18 U.S.C. Sec. 2252(a)(2). After consulting with his lawyer, Bierley pleaded guilty.

The Presentence Report prepared by a U.S. Probation Officer under the Sentencing Guidelines calculated the base offense level for violation of 18 U.S.C. Sec. 2252(a)(2) at 13, U.S.S.G. Sec. 2G2.2; increased the offense level by two levels because the material included depictions of prepubescent minors, U.S.S.G. Sec. 2G2.2(b)(1); and adjusted the offense level downward two levels for admission of guilt and acceptance of responsibility, U.S.S.G. Sec. 3E1.1(a). The district court decided that a downward adjustment for a mitigating role in the offense was inapplicable. Thus, the ultimate offense level was determined to be 13.

Because Bierley had no criminal history, he was in Criminal History Category I and faced a sentencing range of twelve to eighteen months. The district court then considered the legal issue of whether it had the power to depart from that sentencing range. It pointed to a number of factors that it thought merited a downward departure, but stated:

The Court is of the view that the totality of the ... mitigating circumstances are not sufficient to permit this Court to depart downward from the Guidelines. If under these facts the Court has the authority to depart from the Guidelines, the Court would impose a sentence substantially below the Guidelines.

App. at 226.

The district court therefore imposed a term of imprisonment of twelve months, the lowest sentence within the calculated range, and levied a fine of $3,000 and an obligatory special assessment of $50.

We have jurisdiction over Bierley's appeal from the district court's judgment of sentence pursuant to 18 U.S.C. Sec. 3742(a) (1988) and 28 U.S.C. Sec. 1291 (1988).

II. Discussion

We will consider first whether the district court erred in its calculation of the guideline range when it concluded that U.S.S.G. Sec. 3B1.2, which allows a 2 to 4 level downward adjustment in offense level for a mitigating role, was inapplicable. Thereafter, we will turn to Bierley's argument that the court erred in concluding that it did not have the legal authority to depart downward from the Guideline's recommended sentencing range.

A. Adjustment

The proper standard of review for a district court's conclusion that an adjustment under the Guidelines is inapplicable depends on the mixture of fact and law necessary to that court's determination. United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir.1989); see 18 U.S.C. Sec. 3742 (1988). Where the decision is grounded on an essentially factual basis, we defer to the district court's findings and reverse only for clear error. However, if the alleged error is legal, the issue should be reviewed de novo. Id.; see also United Stated v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989); Cf. United States v. Mejia-Orosco, 867 F.2d 216, 220-21 (5th Cir.) (role in the offense is a factual determination, albeit complex; a district court decision not to apply an adjustment based on such a determination reversed only for clear error), cert. denied, --- U.S. ----, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). Because the district court's denial of an adjustment was based on a legal interpretation of the Guidelines rather than a factual determination of Bierley's role in the offense, we engage in plenary review.

In Chapter 3, Part B, the United States Sentencing Commission, pursuant to 28 U.S.C.A. Sec. 994(d)(9) (West Supp.1990), provided for adjustment of a defendant's offense level predicated on his or her role in the offense. See U.S.S.G. Sec. 5H1.7. If the defendant plays an aggravating role in the offense, an upward adjustment may be warranted under Sec. 3B1.1, the Aggravating Role Guideline, which provides Based on the defendant's role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

U.S.S.G. Sec. 3B1.1

A defendant's mitigating role as a minor or minimal participant in concerted activity justifies a downward adjustment under Sec. 3B1.2. The Mitigating Role Guideline provides:

Based on the defendant's role in the offense, decrease the offense level as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. Sec. 3B1.2

Both the Aggravating and Mitigating Role Guidelines use the term "participant," which is defined in the Commentary to Sec. 3B1.1 as follows: "A 'participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. Sec. 3B1.1, comment. (n. 1).

The district court concluded that the Mitigating Role Guideline, Sec. 3B1.2, was not applicable to Bierley "because Bierley is the only Defendant in this crime." App. at 221. However, the fact that there is only one "defendant" does not necessarily mean that there was only one "participant." For example, other persons criminally responsible for the offense may not have been apprehended, or may have cooperated with the government and never been charged. Thus, there are situations where a sole defendant may be subject to adjustment of offense level upward or downward under Chapter 3, Part B. In this case, Bierley could be viewed as...