U.S. v. Costales, 91-8465

• Decision Date: 05 October 1993
• Docket Number: No. 91-8465,91-8465
• Citation: 5 F.3d 480
• Parties: UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Bernard Chris COSTALES, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 480

5 F.3d 480

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Bernard Chris COSTALES, Defendant-Appellant Cross-Appellee.

No. 91-8465.

United States Court of Appeals, Eleventh Circuit.

Oct. 5, 1993.

Donald F. Samuel, Garland & Samuel, Atlanta, GA, for defendant-appellant.

William R. Toliver, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and KAUFMAN ^*, Senior District Judge.

TJOFLAT, Chief Judge:

Bernard Christopher Costales was convicted on one count of receiving child pornography through the mail and sentenced to twelve months in prison. Costales appeals his conviction and the United States cross-appeals his sentence. We affirm the conviction. Because we find that the district court misapplied the Sentencing Guidelines and undermined the jury verdict in granting Costales' motion for a downward departure for playing a minor role in the offense, we vacate the sentence.

I.

A 1988 joint investigation by the United States Customs Service and the United States Postal Inspection Service revealed that the National Motion Picture Corporation (NMPC) of Miami, Florida, was engaged in the business of advertising and distributing sexually explicit material appealing to persons interested in bizarre erotica. Even though the investigation of NMPC did not reveal that the company had distributed child pornography, parts of its catalog did suggest to customers that it dealt in such material. NMPC agreed to assist the government agencies in further investigation involving the distribution of obscene materials.

Because NMPC had received letters from current customers requesting child pornography, the government agents decided to use NMPC's mailing list, consisting of the names and addresses of 5700 individuals who had ordered some type of pornography in the past, to begin an undercover operation directed at purchasers of child pornography. ¹ Costales' name was on NMPC's mailing list.

In the fall of 1989, the Customs Service and Postal Inspection Service established an undercover business name, Ariste Internationale. NMPC mailed a new catalog to its customers that was accompanied by a flyer, prepared by a Customs agent, indicating NMPC's association with Ariste. The flyer stated that Ariste specialized in difficult-to-obtain erotica and instructed prospective customers to respond directly to Ariste at a post office box in Brussels, Belgium for more information.

Early in 1990, Costales contacted the undercover agents at the Brussels address. He requested information and prices on videos, including "Young Girls Videos." The agents mailed Costales an Ariste advertisement containing listings and short descriptions of child pornography videos being offered for sale. Costales responded with a letter stating that he wished to purchase eight named tapes, all of which had been described in the advertisement as depicting children under age fourteen engaged in sexually explicit activity; he also enclosed a credit card number for payment. The undercover agents copied the requested segments onto a videotape, marked the tape for identification, and prepared it to be sent to Costales in a controlled mail delivery.

Meanwhile, an undercover postal inspector wrote an unsolicited letter to Costales, stating that he was a distributor of hard-to-find pornographic materials and had acquired Costales' name as a potential customer. The letter was accompanied by a questionnaire, which Costales completed and returned to the undercover inspector. In his response, Costales did not check the blank requesting that his name be removed from the undercover agent's mailing list. Instead, he indicated that he was interested in receiving, inter alia, sexually explicit videos involving "Young Girls in Hard Core." Following this expression of interest in child pornography, the Government again sent Costales a list of videos for sale with clear descriptions. Costales sent a handwritten note, along with a personal check, to the undercover postal inspector stating that he wished to purchase one of the tapes described as depicting children ages ten to twelve engaging in sexual activities. The inspector then prepared a marked copy of the tape for delivery to Costales.

On May 17, 1990, the undercover agents turned the two packages containing the requested videotapes over to a postal service employee for the controlled mail delivery to Costales. After they had been informed that Costales had accepted delivery of the packages, the agents obtained a search warrant for Costales' residence and seized the tapes and mailing packages, along with the original Ariste advertisement and numerous other items. Costales was then indicted and convicted of violating child pornography laws, 18 U.S.C. Sec. 2252 (1988), which make it a federal offense for a person knowingly to receive through the mail materials containing visual depictions of minors engaged in sexually explicit conduct. We summarily affirm the conviction. ² See Fed.R.App.P. 11th Cir.R. 36-1.

The district court sentenced Costales to twelve months in prison to be followed by supervised release for a term of three years. Appellant's sentence is subject to the provisions of the Sentencing Reform Act of 1984 and the guidelines promulgated thereunder. The district court determined that the appellant's total offense level under the guidelines was 15. United States Sentencing Commission, Guidelines Manual, Sec. 2G2.2 (Nov. 1, 1992). The court then granted Costales' motion for a departure from the applicable guideline range, reasoning by analogy to section 3B1.2 which prescribes an adjustment for a mitigating role in the offense. In granting the departure, the district court relied upon United States v. Bierley, 922 F.2d 1061 (3d Cir.1990), which had allowed a downward departure for a sentence for receipt of child pornography where the defendant procured the material from an undercover postal inspector.

We are asked by the Government to review the district court's application of the Sentencing Guidelines in granting a downward departure by analogy to section 3B1.2. ³

II.

We have jurisdiction over the Government's appeal from Costales' sentence pursuant to 18 U.S.C. Sec. 3742(b). See United States v. Yesil, 991 F.2d 1527, 1531 n. 4 (11th Cir.1992). A district court's determination of a defendant's role in an offense is a finding of fact that we will not disturb unless it is clearly erroneous. United States v. Mieres-Borges, 919 F.2d 652, 662-63 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1633, 113 L.Ed.2d 728 (1991); United States v. Carrillo, 888 F.2d 117, 118 (11th Cir.1989) (per curiam). On the other hand, the issue of whether a district court has the authority to depart downward from the applicable guideline range in a particular situation is a question of law subject to our plenary review. United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); see also United States v. Chotas, 913 F.2d 897, 901 (11th Cir.1990) (applying de novo review to incorrect application of downward departure guideline), cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991). A "sentencing court's use of an invalid departure ground is an incorrect application of the Guidelines." Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992).

A.

The Sentencing Guidelines provide for adjustments to the offense level for the role the defendant played in committing the offense, based upon an examination of all relevant conduct. The mitigating role provision allows for a two or four-point decrease, respectively, in the offense level if the defendant was a "minor" or "minimal" participant in the criminal offense. U.S.S.G. Sec. 3B1.2. As the Commission explained in the application notes, this section applies "to a defendant who plays a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. Sec. 3B1.2, comment. (n. 1). The Commission goes on to state that "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." Id. at n. 3. See United States v. Cacho, 951 F.2d 308 (11th Cir.1992).

Section 3B1.2 is clearly inapplicable in this case of its own force because there was only one "participant," as the term has been construed in the Sentencing Guidelines, in the criminal receipt of child pornography materials. First, "participation" under the aggravating and mitigating role guidelines implies criminal liability and intent, that the individual be an actual member of the plan or conspiracy. The Commission clearly contemplated that participation requires criminal culpability:

A "participant" is a person who is criminally responsible for the commission of the offense, but need not have been convicted. A person who is not criminally responsible for the commission of the offense (e.g., an undercover law enforcement official) is not a participant.

U.S.S.G. Sec. 3B1.1, comment. (n. 1); United States v. Markovic, 911 F.2d 613, 616-17 (11th Cir.1990). Furthermore, the Commission has evinced its determination that adjustments for one's role in the offense are only appropriate where more than one person is criminally responsible for committing an offense. ⁴ The mitigating adjustment provision applies when "a particular defendant is less culpable than other members of the group to such a degree that a distinction should be made at sentencing between him and the other participants." United States v. Gordon, 895 F.2d 932, 935 (4th Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990).

In arriving at an appropriate sentence, a district court is...