U.S. v. Griffith, 03-1234.

• Decision Date: 26 September 2003
• Docket Number: No. 03-1234.,03-1234.
• Citation: 344 F.3d 714
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Griffith, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

344 F.3d 714

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Griffith, Defendant-Appellant.

No. 03-1234.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2003.

Decided September 26, 2003.

K. Tate Chambers (Argued), Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Robert A. Alvarado (Argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Joseph Griffith pleaded guilty to distributing child pornography, 18 U.S.C. § 2252(a)(1), and was sentenced to 262 months' imprisonment. Griffith challenges an upward departure aimed at addressing the seriousness of his criminal history and the danger that he would present in the future. We affirm.

Griffith operated an Internet web site where he posted 80 to 90 photographs of prepubescent children who were nude or scantily dressed and were posed in sexually provocative positions. Some of the photographs depicted young children engaged in violent sexual acts with other children or adults. Griffith did not charge a fee for access to the photographs, but he did expect others to post similar photographs on his web site. He threatened to disallow access to the site to individuals who did not post photographs and warned that he would not share his approximately 1,000 additional photographs if the others did not start posting. One individual with access to the web site reported Griffith's activity to the authorities, and Griffith was arrested.

Griffith pleaded guilty without the benefit of a plea agreement, and the court adopted the sentencing recommendation outlined in the presentence report. Specifically, the judge concluded that Griffith's crime gave him a base offense level of 17, which the court then increased by several adjustments. U.S.S.G. § 2G2.2. First, the court added two levels because the photographs portrayed prepubescent minors under the age of 12. Id. § 2G2.2(b)(1). Next, the court increased the base offense five more levels because the offense involved distributing child pornography in exchange for "the receipt, or expectation of receipt, of a thing of value," i.e., additional illicit photographs. Id. § 2G2.2(b)(2)(B). Griffith also received a four-level adjustment because he distributed a photograph of a nude child chained by the ankle, which the judge deemed to portray sadistic or masochistic conduct. Id. § 2G2.2(b)(3). The judge also imposed a five-level increase because Griffith had engaged in a pattern of sexually abusing minors. Id. § 2G2.2(b)(4). Finally, the court added two levels for Griffith's use of a computer to transmit the photographs. Id. § 2G2.2(b)(5). Those adjustments resulted in an offense level of 35, which was subsequently reduced by three levels because Griffith accepted responsibility. Id. § 3E1.1(a), (b)(2).

After deciding the appropriate offense level, the court determined that Griffith's past criminal conduct placed him in criminal history category IV. Among other offenses, Griffith had two prior convictions for sexually abusing children, but one of them—a conviction of first-degree sexual assault for raping a 12-year-old girl—was not included in the calculation because that conviction had occurred more than ten years before the current offense and Griffith had received only a six-month sentence of imprisonment. See id. § 4A1.2(e).

Griffith's total offense level of 32 and his criminal history category of IV yielded a sentencing range of 168 to 210 months' imprisonment. The probation officer, however, noted in the presentence report ("PSR") that the court may depart from that range based on several aggravating circumstances that were not adequately considered by the guidelines. Id. § 5K2.0. The PSR recommended an upward departure based on the number and type of photographs that Griffith distributed, his two prior convictions for sexually abusing children, and his three failed attempts to complete a treatment program for sexual offenders. After Griffith's third failed attempt at treatment, he admitted that the therapy was not helping him with his "arousal patterns." Moreover, the probation officer noted that Griffith would no longer be accepted in the treatment program for further therapy and that he had crossed the line from looking at photographs of children to personally victimizing them. The PSR noted that § 2G2.2 of the guidelines allows for a departure if the defendant received a five-level upward adjustment for engaging in a pattern of sexual abuse of minors where that adjustment "does not adequately reflect the seriousness of the sexual abuse or exploitation involved." U.S.S.G. § 2G2.2, comment. (n.2).

The government did not request an upward departure, instead suggesting a sentence of 210 months' imprisonment, the top of the calculated guideline range. Griffith objected to the PSR. First, regarding the comment that Griffith had crossed the line from looking at photographs of children to personally victimizing them, Griffith clarified that his personal abuse of children occurred before, not after, his distribution of child pornography, and that he did not personally victimize the children depicted in the photographs at issue. Second, Griffith explained that the three failed attempts at treatment all occurred after his second conviction for sexually abusing a minor, emphasizing that he had not personally abused a minor since his treatment.

Although the government did not seek a departure, the court nevertheless concluded that an upward departure was appropriate for several reasons. First, the court characterized the nature of the activity depicted in Griffith's photographs as "more aggravated than any that I've been exposed to in the last 35 years in terms of these kinds of pictures." (Sent. Tr. at 12.) The judge was particularly troubled that Griffith had created a web site so that he could obtain additional photographs. Most importantly, the judge focused on Griffith's criminal history and unsuccessful attempts at rehabilitation:

It's very unusual for me to depart upward from the guidelines and I do not do it lightly here and I will state for the record that I do not do it out of anger. I do not do it out of an emotional response to this presentence report. I do it because I believe that the record establishes that all of the facts and circumstances here concerning your background, concerning the fact that you do have two convictions for sexual misconduct with minors, that you've had multiple exposures to treatment that appear to be substantially or completely unsuccessful—although, as your attorney says, maybe there was some benefit—when I take all of that together, I don't believe that the guideline range as established here accurately reflects the danger that you will continue to present in the future. I believe that the seriousness of your history is under-represented in effect taking all of these things into consideration.

(Sent. Tr. at 13-14.) Additionally, the judge concluded that "there is virtually no hope that incarceration or treatment will remove the risk that after you're released you will not revert to this conduct," including "the possibility of some new actual physical assault on a minor." (Sent. Tr. at 13.)

Before imposing the upward departure, the judge discussed with the parties Griffith's opportunity to challenge it on appeal. The judge stated that he would not accept the guilty plea if Griffith had agreed to waive his right to appeal, emphasizing that "it's very important that this decision by me to depart upward be subject to review by the Court of Appeals." (Sent. Tr. at 15.) Griffith's attorney assured the judge that Griffith had not waived his right to appeal, and the judge then proceeded with the upward departure. The court concluded that a departure equivalent to two criminal history categories would adequately reflect his actual criminal history and the danger he presented to children in the future. The adjustment effectively increased the top of Griffith's imprisonment range from 210 to 262 months, and the judge sentenced him to the higher number.

On appeal Griffith challenges the district court's decision to depart upward from his guideline range. In the past we reviewed such departures for abuse of discretion, Koon v. United States, 518 U.S. 81, 98-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Fleischli, 305 F.3d 643, 659 (7th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1923, 155 L.Ed.2d 828 (2003), but Congress has since changed that standard, see Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, § 401(d)(2), 117 Stat. 650, 670 (2003). The PROTECT Act now requires courts of appeals to review de novo the bases for sentences outside the applicable guideline range. 18 U.S.C. § 3742(e) (as amended effective April 30, 2003); United States v. Semsak, 336 F.3d 1123, 1125 (9th Cir.2003). The PROTECT Act, however, does not change our review of the degree of a sentencing departure, which is still for abuse of discretion. 18 U.S.C. § 3742(e). This appeal was pending when the Act went into effect, but we need not decide whether we should apply the new standard of review to a pending appeal because we would affirm Griffith's sentence under either standard. See Semsak, 336 F.3d at 1125; United States v. Tarantola, 332 F.3d 498, 500 (8th Cir.2003).

Griffith did not raise in the district court the particular arguments he now makes against the departure. Thus, he did not preserve the issues for appeal, and our review is normally for plain error only. See United States v. Turchen, 187 F.3d 735, 742 (7th Cir.1999). The government, however, has not argued forfeiture, and, in fact, stated at oral argument that it could not argue in good conscience that Griffith forfeited his right to challenge the departure. Thus, the government has waived...