U.S. v. Studley

• Decision Date: 08 May 1990
• Docket Number: No. 90-1078,90-1078
• Parties: UNITED STATES of America, Appellant, v. James STUDLEY, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 254

907 F.2d 254

3 Fed.Sent.R. 315

UNITED STATES of America, Appellant, v. James STUDLEY, Defendant, Appellee.

No. 90-1078.

United States Court of Appeals, First Circuit.

Heard May 8, 1990.

Decided July 5, 1990.

Susan R. Via, Asst. U.S. Atty., Pittsburgh, Pa., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for U.S.

Bruce N. Sachar, Lynn, Mass., with whom Steven L. Picone, Salem, Mass., was on brief, for defendant, appellee.

Before CAMPBELL, Circuit Judge, ROSENN, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

ROSENN, Senior Circuit Judge.

The central issue of this appeal by the Government is whether the district court erred in departing downward from the applicable guidelines in sentencing the defendant for receiving child pornography in violation of 18 U.S.C. Sec. 2252(a)(2). Although the district court's sense of compassion and pragmatism displayed in sentencing the defendant is understandable, regrettably, these considerations are insufficient to justify a downward departure under the guidelines announced under the Sentencing Reform Act (the Act) of 1984, as amended. ¹ Accordingly, we must reverse.

I.

The Government charged James M. Studley with knowingly receiving child pornography in violation of 18 U.S.C. Sec. 2252(a)(2). The defendant had ordered by mail "taboo little girl videos" after reading an underground magazine which advertised sexually explicit materials. A Florida distribution company had initially placed the advertisement, but in the course of a United States Postal Service investigation, the Government took control of the company.

The defendant pled not guilty but later pleaded guilty under a plea agreement with the Government. At the change of plea hearing in the United States District Court for the District of Massachusetts, the judge ordered a presentence investigation report. The presentence report described Studley as a healthy and reasonably bright forty-one year old male. He had been employed for the last eleven years as a draftsman/designer for a nationally known corporation and is slated for a promotion. Studley had no prior criminal record. A psychologist diagnosed him as free of any psychopathology "although experiencing a moderate level of depression and some agitation." Studley acknowledged full responsibility for committing the acts alleged by the Government and expressed great remorse for them. He also took a polygraph examination which buttressed his claim that he had never molested children.

The probation officer calculated the base offense level as thirteen under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (U.S.S.G.) Sec. 2G2.2(a) (Nov.1989). He enhanced the suggested sentence two levels because the tape sent to Studley included visual sexual depictions produced with the use of prepubescent minors. U.S.S.G. Sec. 2G2.2(b)(1). The probation officer adjusted the sentence recommendation two levels downward because the defendant accepted responsibility. U.S.S.G. Sec. 3E1.1(a). Thus, the probation officer computed the total offense level at thirteen, thereby triggering an imprisonment range of twelve to eighteen months.

The probation officer, however, presented several justifications to the court for a downward departure in sentencing. The officer noted that the Sentencing Commission created under the Act based most of its offense level determinations on empirical data. However, in calculating the offense level for receiving child pornography, the Commission made a policy decision that a base level of thirteen was appropriate.

The probation officer also observed that the District Court for the District of Massachusetts sentenced every defendant convicted of receiving child pornography to probation if the defendant previously had a clean record. The officer referred the court to another case in that district court which involved a similar offense in which the court made a downward departure to five years probation. Lastly, the officer noted that a downward departure might be appropriate because the Federal Bureau of Prisons did not have a treatment program for defendants like Studley.

The Government filed objections to the presentence report. The Government asserted that the Sentencing Commission had already taken into account the factors presented by the Probation office for departure. On the other hand, the Government acknowledged that the probation officer's upward enhancement of the offense level was inappropriate. The Government noted that Studley had expressed a preference for postpubescent child pornography in his correspondence with undercover authorities but the Government determined to send him a tape with prepubescent depictions.

At sentencing, the court adopted the Government's position with respect to the calculation of the adjusted offense level. Accordingly, the district court found that eleven rather than thirteen was the appropriate level. The possible range of imprisonment for this offense level was between eight and fourteen months and the fine range between $2,000.00 and $20,000.00. Following the plea agreement, the Government recommended eight months confinement, four of which would be community confinement and three years supervised release with a $5,000.00 fine.

The sentencing court chose, however, to depart from the guidelines, stating:

There is no indication that the defendant is a threat to the community, anything other than a disturbed person who has managed to keep his problems to himself and go about his business and be a useful citizen and not cause any trouble.

Obviously, the market, as the U.S. Attorney says, should be discouraged but it seems to me that for most people in this situation and certainly the people who have come before me with this offense, the prosecution itself is a very discouraging fact. It would seem to me that imprisonment will simply prevent the defendant from continuing to be a useful person and will add nothing to the public safety. He appears to be in a posture of rehabilitation, and the Bureau of Prisons has no facilities for treatment of people who have committed this type of offense.

The court therefore chose to suspend any sentence of imprisonment and placed the defendant on probation for 36 months with directions to receive counseling. The court also imposed a fine of $3,000.00. Pursuant to 18 U.S.C. Sec. 3742(b), the Government appealed.

II.

On appeal, the Government attacks both the probation officer's recommendations for sentencing departure and the district court's express reasons for departure. To avoid needless conjecture, we address only the factors expressly relied upon by the sentencing court in departing from the sentencing guidelines.

We review the sentencing court's stated reasons for departure under the three tier standard set forth by this court in United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

First, we evaluate the circumstances relied on by the district court in determining that the case is sufficiently 'unusual' to warrant departure. If the stated circumstances pass muster, we proceed to the next rung and determine whether those circumstances were adequately documented. After the first two levels are climbed, the departure must be measured by a standard of reasonableness. On the third tier, the district court's leeway is substantial.

United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989) (citation omitted). At the first tier, however, the sentencing court's discretion is not the issue. At this point, whether the circumstances are of a kind or degree that may be appropriately relied on to justify departure is a question of law and our review is plenary. Id.

Each of the sentencing guidelines established pursuant to the Act carves out a " 'heartland', a set of typical cases embodying the conduct that [the] guideline describes." U.S.S.G. Ch. 1 Pt. A Introduction Sec. 4(b) at 1.6 (Nov.1989). Sentencing courts may depart from the guidelines only when they find that the case before them is atypical i.e., involves "aggravating or mitigating circumstances of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission...." 18 U.S.C. Sec. 3553(b).

Courts should not frustrate the Congressional goal of uniformity in sentencing by manipulating their definition of the "heartland." A court should not mold typical criminal conduct or defendant characteristics into atypicality merely to achieve a departure from the guidelines. Turning to the instant case, we examine each factor relied upon by the district court to determine if the requisite "atypicality" exists for departure. ²

A. Risk to the Community

The district court found "there is no indication that this defendant is a threat to the community." The Government contends the Sentencing Commission adequately considered the factor of "risk to community" in formulating the guidelines. Studley asserts that a careful reading of U.S.S.G. Sec. 5H1.3 (policy statement) reveals that the Commission did not completely consider the mental and emotional conditions of the defendant and, thus, his risk to the community. Section 5H1.3 provides:

Mental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines, except as provided in the general provisions in Chapter Five. Mental and emotional conditions, whether mitigating or aggravating, may be relevant in determining the length and conditions of probation or supervised release.

We agree with the Government that the Commission did consider the factor of risk to the community in formulating the guidelines. The introductory commentary to chapter four of the guidelines provides:

[t]o protect the public from further crimes of the particular defendant, the likelihood of recidivism and future criminal behavior must be considered.

U.S.S.G. Ch. 4, Pt. A. The...