U.S. v. Goldberg

Decision Date09 July 2002
Docket NumberNo. 01-5052.,01-5052.
Citation295 F.3d 1133
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Gary Syd GOLDBERG, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, Department of Justice, Washington, D.C. (Thomas Scott Woodward, United States Attorney, and Susan K. Morgan, Assistant United States Attorney, Northern District of Oklahoma, Tulsa, OK, with him on the briefs), for Plaintiff-Appellant.

Robert Nigh, Jr. (Clark O. Brewster with him on the brief), Tulsa, OK, for Defendant-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HENRY, Circuit Judge.

EBEL, Circuit Judge.

Gary Syd Goldberg was convicted of possession of child pornography in violation of 18 U.S.C. § 2252(a)(2). At sentencing, the district court made an eight-level downward departure from the United States Sentencing Guidelines ("Guidelines") offense level, resulting in a reduction from twenty seven to thirty three months of imprisonment with two to three years probation to an actual sentence of no imprisonment with five years of probation, including six months of electronically monitored home detention, participation in a mental health treatment program, and 3,900 hours of community service (fifteen hours per week). This appeal is brought by the Government to challenge the district court's downward departure.

The central issue before us is whether the degree of the downward departure was an abuse of the district court's discretion. We conclude that the district court's rationale for the degree of departure was erroneous in two respects. First, the district court failed to apply a reasonable methodology hitched to the Guidelines, erroneously justifying the degree of departure by the resulting sentence. Second, the court's determination to impose a non-incarceration sentence was predicated on impermissible factors already accounted for in the Guidelines. We vacate the sentence and remand.


Various government agencies together sponsored a website designed to ensnare persons with an interest in illegal child pornography. Goldberg, who was employed as chief executive of the American Corn Growers Association, received an email inviting him to visit the site. He did so, and on August 2, 2000 he ordered five graphic child pornography videos. The record makes clear that Goldberg purchased these videos with the purpose of obtaining sexually explicit videos of minors. The tapes were delivered on August 14, 2000. Shortly afterward, Goldberg had begun viewing one of the films when an Oklahoma City postal inspector and other officers knocked on his door, search warrant in hand.

The arresting officers advised Goldberg of his Miranda rights, and Goldberg agreed to waive his rights and cooperate fully. He told the officers that, in addition to readily found images on his desktop computer, he also had child pornographic images on computer discs in an upstairs office closet and on a laptop computer that was then being repaired. Although there is some dispute as to precise numbers, it is clear that the officers ultimately recovered several hundred illegal sexually explicit still or video images of minors.

Since his arrest, Goldberg has demonstrated remorse and a determination to rehabilitate himself and to deter similar offenders. He voluntarily entered into individual treatment for the issues leading to his illegal acts, seeing a therapist eleven times in the five months prior to his sentencing. He volunteered to give a four-hour interview to provide information for a research project aimed at preventing internet crimes against children. He volunteered to write a grant for funds for a cyber pornography prevention project of the Augustus Institute. Finally, he volunteered to provide a taped interview for a nationally syndicated radio columnist, an interview ultimately not broadcast.

The presentence report (PSR) assigned Goldberg an offense level of 181 and a criminal history category of I. The resulting sentence guideline was twenty seven to thirty three months of imprisonment. The author of the PSR originally declined to recommend a downward departure; after feedback from Goldberg and the Government he stated that the matter was best left to the special competence of the district court. The PSR author did recommend that "if the Court does grant a downward departure, the probation officer must recommend that the Court not depart below an eighteen-month sentence." This recommendation was based on the author's conclusion that if Goldberg was unable to control his sexual urges, "it is most likely vital" that he attend a sex offender treatment program in federal prison for which an eighteen month sentence was required.

The district court held a lengthy sentencing hearing on February 28, 2001. Four witnesses testified — a psychologist, a staff person for the National Center on Institutions and Alternatives, Goldberg, and a probation officer. At the conclusion of the sentencing hearing, the court ruled that a downward departure was appropriate. The court's explanation for its decision as to whether to depart downward is as follows:

The Court finds that a downward departure is warranted in this case. The downward departure is based upon some combined factors of extraordinary community service, adverse collateral employment consequences as a result of incarceration, and extraordinary post-offense rehabilitation. And maybe you can do some good in that area.

The Court departs downward in this case for the above reasons and the factual basis of them are set forth in this record.

(App.316-17.) The court then announced the degree of departure and the sentence. It explained its decision as to how much to depart downward as follows:

The Court imposes this sentence because the defendant is a first time offender. He has had treatment. The Court does not believe that there will be a reoccurrence of the downloading of pictures, which as I say — which, as I previously stated, there was not an offense where pictures were taken, nor was there any luring of children.

I think this record substantiates the fact that there has been extraordinary post-offense rehabilitation and I believe that there will be a significant effort on behalf of the defendant to address this problem.

(Id. at 317.) On this basis, the court "depart[ed] downward eight levels to a level 10, resulting in a guideline range of six to twelve months, which is in Zone B of the sentencing table." (Id.) The significance of a Zone B sentence is that such sentences can be ordered satisfied by a term of home confinement without requiring incarceration. U.S.S.G. § 5C1.1(c)(3).

On appeal, the Government concedes that there are permissible grounds for downward departure in this case, and it concedes that "a modest downward departure would be reasonable on this record."


The broad framework for analysis of a district court's sentencing departure decision is provided by United States v. Collins, 122 F.3d 1297 (10th Cir.1997). The validity of a particular departure depends upon:

(1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable.

Id. at 1303. We have explained our standard of review in performing each of these inquiries as follows:

All four inquiries are subject to a unitary abuse of discretion standard, understanding that a district court by definition abuses its discretion when it makes an error of law. Applying this standard, we need not defer to the district court's determination of an issue of law, such as that presented by the first inquiry pertaining to the permissibility of departure factors. However, we must give substantial deference to the district court when making the second inquiry, because the heartland determination is primarily a factual inquiry. Similarly, our review of the underlying factual determinations relevant to the third inquiry is limited to clear error.

United States v. Benally, 215 F.3d 1068, 1073 (10th Cir.2000) (alteration and internal quotation marks omitted). In determining whether the degree of departure is reasonable per the fourth inquiry, "the appellate court should afford the trial court some discretion, as we should not lightly overturn determinations of the appropriate degree of departure." United States v. Flinn, 987 F.2d 1497, 1504 (10th Cir.1993) (internal quotation omitted). In sum, a "district court's decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Nevertheless, we have consistently required that "the district court must specifically articulate reasons for the degree of departure using any reasonable methodology hitched to the Sentencing Guidelines, including extrapolation from or analogy to the Guidelines." United States v. Hannah, 268 F.3d 937, 941 (10th Cir.2001) (emphasis added, internal quotation marks omitted); accord United States v. Neal, 249 F.3d 1251, 1258 (10th Cir.2001); United States v. Bartsma, 198 F.3d 1191, 1196 (10th Cir.1999); United States v. Checora, 175 F.3d 782, 794 (10th Cir.1999); Collins, 122 F.3d at 1309; United States v. Shumway, 112 F.3d 1413, 1429 (10th Cir.1997); Flinn, 987 F.2d at 1504; United States v. St. Julian, II, 966 F.2d 564, 569 (10th Cir.1992); United States v. Little, 938 F.2d 1164, 1166 (10th Cir.1991); United States v. Harris, 907 F.2d 121, 123-24 (10th Cir.1990).

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