US v. Neal

• Decision Date: 18 May 2001
• Docket Number: No. 00-6085,00-6085
• Citation: 249 F.3d 1251
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GLEN RAY NEAL, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1251

249 F.3d 1251 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GLEN RAY NEAL, Defendant - Appellant.

No. 00-6085

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

May 18, 2001

Appeal from the United States District Court for the Western District of Oklahoma

(D.C. No. CR-99-131-R)

Teresa Brown, Assistant Federal Public Defender (William P. Earley, Assistant Federal Public Defender, on the brief), Oklahoma City, Oklahoma, for Defendant-Appellant.

Edward J. Kumiega, Assistant U.S. Attorney (Daniel G. Webber, Jr., United States Attorney, with him on the brief), Office of the U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before LUCERO and McKAY, Circuit Judges, and BROWN, District Judge.^*

McKAY, Circuit Judge.

Defendant-Appellant Glen Ray Neal pleaded guilty to possessing child pornography in violation of 18 U.S.C. 2252A(a)(5)(B). At sentencing, the district court departed upward from the applicable sentencing guideline based on Appellant's "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor," a specific offense characteristic under the child pornography trafficking guideline. U.S. Sentencing Guidelines Manual 2G2.2(b)(4) (1998).¹ Appellant timely appealed, challenging the district court's decision to depart.

I. Background

On June 28, 1999, officers from the Elk City, Oklahoma, police department questioned Appellant in his apartment regarding the alleged sexual abuse of a minor that had taken place there. During the interview, the officers requested and received permission to search the home, upon which they discovered ten printed images of nude minors engaged in sexually explicit conduct.

In the course of an FBI investigation, Appellant confessed that he had found the pornographic images on the Internet and printed them three years prior to his arrest. In addition, Appellant also admitted that: (1) on July 25, 1998, he pleaded guilty in state court to aiding a minor in a drug crime and was prohibited from contact with minors that were unaccompanied by a parent; (2) three minor males, whom the investigation designated as John Does #1, 2, and 3, had spent varying amounts of time at Appellant's apartment, in violation of his probation; and (3) he told the minors that he was a homosexual, wrestled and played with them, and slept in the same bed with one of them (John Doe #2) on two separate occasions. Nevertheless, Appellant denied that he had ever engaged in a sexual relationship with any of them. Tr. at 22-25.

The three minor males, however, informed the FBI of Appellant's repeated attempts to initiate intimate relationships with them. John Doe #1 stated that he saw Appellant rub his genitalia on the back of John Doe #2, and that soon thereafter Appellant attempted to kiss and offered to engage in oral sex with John Doe #1. John Doe #2 revealed that Appellant had shown him computer images of two men having sex and touched John Doe #2's genital area on occasions, including one time at a Motel 6. John Doe #3 said that Appellant had touched his leg in the past, endeavoring to engage in some sort of sexual relationship with him. The morning after the incidents involving John Doe #1 occurred, John Doe #1 reported the episode to his mother, who called the police. Tr. at 11-21.

Following Appellant's guilty plea to child pornography possession, the government moved for an upward departure from the applicable sentencing guideline, U.S.S.G. 2G2.4, based on Appellant's molestation of the three minors. Section 2G2.4 did not identify child molestation as a part of the guideline, its enhancements, or related commentary. However, 2G2.2, the relevant guideline for trafficking in child pornography, included a specific offense characteristic requiring a five-level enhancement for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor." U.S.S.G. 2G2.2(b)(4). The government argued that the court should depart upward from 2G2.4 because the Sentencing Commission had failed to consider the sexual abuse of a minor as a specific offense characteristic for child pornography possession as it had for child pornography trafficking. The district court agreed with the government: "I think it must have been an oversight that Section 4 under 2G2.2 was not also listed . . . under 2G2.4." Tr. at 60. The court then departed from the sentencing range of 24 to 36 months by five levels, sentencing Appellant to 51 months of imprisonment.

Appellant objects to the district court's upward departure on three fronts. First, Appellant contends that the court based its upward departure on an impermissible factor, since the Commission could not have failed to consider the sexual abuse of a minor in such a proximately located offense characteristic. Second, Appellant asserts that his possession of the child pornography was "totally irrelevant" to the allegations of sexual abuse. Third, Appellant argues that his actions were insufficient to constitute "engag[ing] in a pattern of sexual abuse or exploitation of a minor" under U.S.S.G. 2G2.4(b).

II. Standard of Review

In United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir. 1997), we identified four inquiries that must be made in reviewing departure decisions following the Supreme Court's significant decision in Koon v. United States, 518 U.S. 81 (1996):

[I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (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 Appellant from the applicable Guideline heartland thus warranting departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable.

Collins, 122 F.3d at 1303. Appellant challenges the district court's decision regarding the first and third of these inquiries.²

As instructed in Koon, we review departures from the Sentencing Guidelines under a "unitary abuse of discretion" standard. Collins, 122 F.3d at 1302 (citing Koon, 518 U.S. at 96-100). "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, 518 U.S. at 98. However, "whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point." Id. at 100.

III. Impermissible Factors

Appellant first contends that the district court used an impermissible factor as a basis for its upward departure. The court noted that the Commission had made "the sexual abuse or exploitation of a minor" a specific offense characteristic for trafficking in child pornography, but not for child pornography possession. This, the court held, was "an oversight" by the Commission. Tr. at 60. The court then departed from the child pornography possession guideline, using the exploitation offense characteristic. Appellant disputes the district court's conclusion, reasoning that it was incorrect to assume that the Commission failed to consider exploitation as an offense characteristic for child pornography possession since the two guidelines were listed consecutively and directed to the same general topic.

Appellant's contention is reasonable. This court has declared on a number of occasions that sentencing guidelines are to be "interpreted as if they were a statute or court rule." United States v. Gay, 240 F.3d 1222, 1230 (10th Cir. 2001) (citing United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999)). Under normal statutory construction, we would not assume that the failure to include some item in a statute is an oversight that the court may correct. In fact, in light of the Commission's inclusion of the "sexual abuse or exploitation of a minor" in the guideline immediately prior to the applicable guideline in this case, we could as easily assume the opposite--that the Commission specifically considered the same offense characteristic for both and intentionally excluded it from the child pornography possession guideline. See True Oil Co. v. C.I.R., 170 F.3d 1294, 1300 (10th Cir. 1999) (noting that when courts interpret statutory language, they look not only at the specific statute at issue but also examine the statute in context with related statutes); ABC Rentals of San Antonio, Inc. v. C.I.R., 142 F.3d 1200, 1207 (10th Cir. 1998) (same). However, Congress and the Commission have articulated a decidedly different method for determining when the Commission has failed to "consider" a factor in a particular guideline, and thus when a district court may depart from it.

Under the Sentencing Reform Act of 1984, as amended, 18 U.S.C. 3551 et seq., 28 U.S.C. 991-98, Congress authorized district courts to depart from the Guidelines if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. 3553(b). In ascertaining whether a particular circumstance was "not adequately taken into consideration," courts must "consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." Id. The Commission, in turn, declares that except for certain "forbidden" factors,³ it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." U.S.S.G. ch. 1, pt. A, introductory cmt. 4(b).

The Commission does, however, provide two separate lists of what courts have labeled "discouraged" and "encouraged" factors. "Discouraged" factors,⁴ located in...