U.S. v. Goossens, 95-5520

• Decision Date: 28 May 1996
• Docket Number: No. 95-5520,95-5520
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael John GOOSSENS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 697

84 F.3d 697

UNITED STATES of America, Plaintiff-Appellant, v. Michael John GOOSSENS, Defendant-Appellee.

No. 95-5520.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1996.

Decided May 28, 1996.

ARGUED: William Graham Otis, Senior Litigation Counsel, Alexandria, Virginia, for Appellant. Elizabeth Doyle Teare, Surovell, Jackson, Colten & Dugan, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Andrew G. McBride, Assistant United States Attorney, Vincent L. Gambale, Assistant United States Attorney, Alexandria, Virginia, for Appellant. William B. Reichhardt, Surovell, Jackson, Colten & Dugan, P.C., Fairfax, Virginia, for Appellee.

Before WIDENER and WILKINS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Judge WILKINS wrote the opinion, in which Judge WIDENER and Senior Judge CHAPMAN joined.

OPINION

WILKINS, Circuit Judge:

Michael John Goossens pled guilty to one count of knowing possession of three or more materials depicting minors engaged in sexually explicit conduct. See 18 U.S.C.A. § 2252(a)(4)(B) (West Supp.1996). In imposing sentence, the district court departed downward from the applicable guideline range based on a finding that Goossens suffered from diminished mental capacity that contributed to his offense. See United States Sentencing Commission, Guidelines Manual, § 5K2.13, p.s. (Nov.1994). The Government appeals the sentence imposed, asserting that the district court erred in departing downward on this basis. See 18 U.S.C.A. § 3742(b)(3) (West Supp.1996). We agree. Consequently, we vacate the sentence imposed by the district court and remand for resentencing in accordance with this opinion.

I.

Using his home computer and modem, Goossens accessed computer bulletin boards located outside Virginia that distributed computer files containing high quality visual images that may be displayed on a computer screen or printed onto paper. Goossens downloaded numerous files depicting child pornography from these databases onto his computer. Thereafter, he encrypted many of these files using a computer program prohibiting access without a password known only to him. Law enforcement authorities became aware of Goossens' activities after examining the records of a company operating one such bulletin board and obtained a search warrant for his home, resulting in the seizure of myriad examples of child pornography on various mediums.

Soon afterward, Goossens entered a plea agreement under which he would admit his guilt for one count of possession of child pornography in violation of 18 U.S.C.A. § 2252(a)(4)(B) and agree to the entry of an order of forfeiture for specified property connected to the offense. The agreement also contemplated that Goossens would cooperate fully with an investigation of additional criminal activity by other individuals. In exchange, if Goossens' assistance to law enforcement efforts proved substantial in the Government's view, it would seek a downward departure from the applicable guideline range pursuant to U.S.S.G. § 5K1.1, p.s.

Goossens waived indictment and proceeded to enter his plea. As a condition upon his release from custody following the entry of his guilty plea, the district court ordered Goossens to cease his active cooperation in investigative operations. The result of this prohibition was that Goossens was unable to assist the Government personally or to participate in an operation planned by the United States Customs Service. The parties subsequently requested that the district court allow Goossens to resume his active cooperation with law enforcement officials. Admitting that he was motivated, at least in part, by a desire to qualify for a reduced sentence, Goossens communicated his willingness to assist the Government and his desire for an opportunity "to turn this large negative into a small positive." J.A. 44. The Government, in turn, maintained that the secretive and tightknit network surrounding the distribution of child pornography made investigation difficult absent the assistance of undercover operatives and that Goossens' cooperation presented a unique opportunity to penetrate these networks. Moreover, the Government expressed its concern with what it perceived to be a blanket policy of the district judge to routinely impose this prohibition as a condition of release, noting that it was "not aware of a single case on any fact pattern" in which the judge had permitted a defendant to actively cooperate while subject to any type of court-sponsored supervision. J.A. 41. Nevertheless, the district court refused to lift the ban.

The presentence report calculated Goossens' base offense level to be 13. See U.S.S.G. § 2G2.4(a). Adjusting upward by two levels for possession of ten or more items of child pornography, see U.S.S.G. § 2G2.4(b)(2), and downward by two levels for his acceptance of responsibility, see U.S.S.G. § 3E1.1(a), the presentence report recommended that Goossens' adjusted offense level was also 13. Combined with a Criminal History Category I, his adjusted offense level rendered a guideline range of 12-18 months imprisonment. U.S.S.G. Ch. 5, Pt. A. The presentence report identified no mitigating or aggravating factors warranting departure from this range.

Although neither party objected to the proposed findings or calculations contained in the presentence report, Goossens requested that the district court depart downward from the applicable guideline range. His sole reason for the request was that the order imposed by the district court prohibiting him from further participation in the undercover investigation prevented him from qualifying for a departure based on substantial assistance. This circumstance, he asserted, was not one that was considered adequately by the Sentencing Commission in formulating the guidelines.

Apparently viewing the motion as a request for a departure pursuant to § 5K1.1 based on substantial assistance, the district court declined to depart on the basis requested by Goossens. Expressing disapproval with the Government's decision not to request a § 5K1.1 departure--because in the district judge's view the defendant had complied fully with the plea agreement--the court noted that, absent a request by the Government, a departure on that ground was not authorized.

Then, with no advance notice to the Government and with no request from Goossens, the district court announced its sua sponte decision to depart downward pursuant to U.S.S.G. § 5K2.13, p.s. on the basis of diminished mental capacity. Supporting its departure decision in large part with a report submitted by a psychologist Goossens had retained, the court explained that Goossens had been diagnosed as suffering from an anxiety disorder and "from some maladapted strategies that have never been addressed before." J.A. 99. The court reasoned that the departure was appropriate because the report had concluded "that this conduct is a result of some deep-seated, long-term, psychological problems" and because "[t]here is no question that this conduct is deviant behavior." J.A. 94. And, it further found that Goossens had no prior record, had not committed a violent crime, was gainfully employed in a lucrative position with a prominent company, posed no threat to the community, and was not a pedophile. Noting that the imposition of a period of incarceration likely would result in Goossens losing his employment and his home, as well as preventing him from paying a fine, the district court imposed a sentence of three years supervised probation, the first six months of which were to be served under house arrest with electronic monitoring. The Government appeals. ¹

II.

The Government maintains that the district court erred in departing downward pursuant to U.S.S.G. § 5K2.13, p.s. on the basis of diminished mental capacity. In reviewing a sentence imposed pursuant to a departure from the applicable guideline range, we apply well-established principles. See, e.g., United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990) (reviewing sentence above guideline imprisonment range), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991); United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990) (reviewing sentence below guideline imprisonment range). We first examine de novo the statement of reasons offered by the district court to determine whether it identified a factor not adequately considered by the Sentencing Commission in formulating the applicable guideline range. We then review the sufficiency of the evidence to support the stated factor under a clearly erroneous standard. Next, we consider whether the district court abused its discretion in determining that the factor is sufficiently important such that a sentence outside the guideline range should result and that the extent of departure is reasonable. Hummer, 916 F.2d at 192.

Section 5K2.13, p.s. provides:

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

Since the Sentencing Commission identified diminished mental capacity as an appropriate basis for departure, this ground satisfies the first step in our inquiry. See United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991).

We turn, then, to review for clear error the factual findings of the district court supporting the diminished mental capacity departure. The Government argues that the findings by the sentencing court that Goossens was suffering from a significantly reduced mental capacity and that this reduced mental capacity contributed to the offense...