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. e du/thir dc ir c uit_1996/13UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 96-7113

UNITED STATES OF AMERICA, Appellan t

v.

ROMEO ROMUALDI

On Appeal from the United States District C ourt for the Middle District of Pennsylvania (D.C. No. 95-cr-00197)

Argued July 18, 1996

Before: SLOVITER, Chief Judge, COWEN and ROTH, Circuit Judges

(Opinion filed December 11, 1996)

David M. Barasch United States Attorney

Theodore B. Smith, III (Argued) Assistant United States Attorney Office of United States Attorney Harrisburg, PA 17108

Attorney for Appellant

Robert Sullivan, Jr. (Argued) Sullivan, Sullivan & Snelling Lebanon, PA 17042

Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Chief Judge. In United States v. Bierley, 922 F.2d 1061 (3d Cir.1990), we held that a sentencing court has authorit y to depart

downward under the Sentencing Guidelines by analogy to the adjustment for Mitigating Role in the Offense if de fendant would have been entitled to that adjustment had the suppl ier, an undercover postal inspector, been a criminally culp able participant. In this case we are asked to consider whether Bierley should be extended to a defendant charged a nd convicted of a single-person offense.

I.

FACTS AND PROCEDURAL HISTORY In May 1995, Appellee Romeo Romualdi order ed a catalog by mail from L.G. Enterprises, a business that sold pornographic materials. Unknown to Romualdi, L.G. Enterprises h ad recently been the subject of a federal investigation and was taken over by the Postal Inspection Service. The following month Romualdi ordered two videotapes from L.G. Enterprises. One of the tapes was entitled "First Fuck," and was described in the catalog as
"Twelve Year Old Girl Has Sex With A Man For The Fi rst Time In Her Life." The second tape was entitled "Wash Time ," and was
described as "Eleven Year Old Girl Bathes With Woma n, Have Sex Together and With A Man." Romualdi requested that the tapes be sent to his home in Lebanon, Pennsylvania but that they be addressed to "Superior Merchandise" rather than to him in his own

name. On July 6, 1995, the tapes were delivered to Romualdi's residence while postal inspectors maintained survei llance of the delivery. Romualdi received the tapes, and ten min utes later the investigators searched his home pursuant to a feder al search warrant. During the search they found that the two tapes that had just been delivered to Romualdi were in a garba ge can covered with newspaper. A further search revealed more por nographic material. The inspectors found two more tapes that purported to be depictions of nudist colonies, in which the came ra focused upon the genitals of young girls. They also found thirteen pornographic videos depicting adult women dressed a s girls. Romualdi also had pasted the faces of young girls, which he obtained from a Sears catalog, over the faces of wo men in the photographs of adults having sex. The inspectors a lso found a video entitled "Fallen Angel," which the presentenc e report describes as "a non-pornographic movie dramatizing the sexual relationship be[twe]en an adult male and a twelve y ear old girl whom the male lures into child pornography." Romualdi told the postal inspectors that w hen he ordered the two tapes from L.G. Enterprises he beli eved that they would be like the other tapes he owns in which the people in the tape were all over eighteen and were only dressed l ike children. He stated that he had started to view the tapes but had thrown them away because of their poor quality. He also s tated that the reason why he had the tapes addressed to "Superior Merchandise," rather than his own name, was to avoid embarrassmen t if the packages had broken open while being transported th rough the mails. When questioned about the pictures with the girls' faces pasted to them, Romualdi admitted that he fantasize d about young girls having sex.After consulting an attorney, Romualdi sig ned a plea

agreement with the government. Pursuant to that ag reement, Romualdi pleaded guilty to knowingly possessing thr ee or more videotapes containing child pornography, a crime un der 18 U.S.C. § 2252(a)(4). Child pornography is defined as mate rial "which involves the use of a minor engaging in sexually ex plicit conduct." 18 U.S.C. § 2252(a)(1)(A). Romualdi als o agreed to provide the government with information that would be useful in future investigations relating to child pornography . The government agreed not to bring any more charges aga inst Romualdi and agreed to seek the sentencing term available un der the Sentencing Guidelines.
The United States Parole Office calculated Romualdi's base offense level at 13 pursuant to U.S.S.G. § 2G2 .4(a), "possession of child pornography." Because some of the tapes in Romualdi's possession depicted girls under the age of twelve, the base level was increased by two to 15, pursuant to U.S.S.G. § 2G2.4(b)(1). The level was then lowered two points because of Romualdi's acceptance of responsibility, thereby br inging the
total offense level to 13. Because Romualdi had no previous criminal record, the sentencing range for level 13 was calculated at twelve to eighteen months. The presentence repo rt stated that
consistent with this court's decision in United Sta tes v. Bierley, 922 F.2d 1061 (3d. Cir. 1990), the distric t court could depart two or four levels from the total offense le vel by analogy to U.S.S.G. § 3B1.2, if the court determined that R omualdi was a minimal or minor participant in the offense. The presentence report noted that Romualdi had been in the Army for two years, had a good family backgroun d and had a good relationship with his 26 year old daughter, wh o was born from Romualdi's five year cohabitation with a girlf riend. None of those questioned was able to explain the conduct leading to

the offense. At the suggestion of the probation officer , Romualdi underwent a psychological evaluation by Roy Smith, Ph.D., Executive Director of Pennsylvania Counseling Servi ces. In his report, Dr. Smith suggested that Romualdi suffered from a moderately severe dependent personality disorder wi th prominent obsessive compulsive traits, and that he needed to be seen in a good light by other people but had isolated himself from society. The doctor believed that Romualdi viewed pornograph ic films because of this isolation - as a way to feel closer to society - and he indicated that Romualdi's interest in pornog raphic films with child themes "may signify a developmental arre st or sexual addiction." Dr. Smith concluded that time in jail would be counterproductive as it would only increase Romuald i's isolation from his already limited social network and exacerb ate his psychological condition. In addition, incarceratio n would interfere with Romualdi's operation of the pool hal l and t-shirt store that he owns, thus creating additional financ ial stress which could lead to further psychological isolation . Instead, the doctor recommended that Romualdi be placed on p robation and forced to attend group therapy for sexually addicti ve and child molesting individuals.At Romualdi's sentencing, which took place in district

court on January 16, 1996, the government followed the plea agreement and recommended the minimal sentence avai lable under the applicable sentencing range, twelve months in j ail. The court, however, departed from the Guidelines, citin g as authority our opinion in Bierley, and reduced Romualdi's tota l offense level by three, from 13 to 10, finding by analogy t o § 3B1.2 of the Sentencing Guidelines that the defendant's cond uct qualified for a mitigating role reduction. Using the new off ense level of 10, the court sentenced Romualdi to three years pro bation, six months of which would be spent in home confinement, and a $5,000 fine. The United States appeals. We have jurisdiction over the government's appeal from the district court's judgment of sentence pursuant to 18 U.S.C. § 3742(b) (1993) and 28 U.S.C. § 1291 (1993).

II.

STANDARD OF REVIEW In its recent opinion in Koon v. United St ates, 116 S.Ct 2035, 2043 (1996), the Supreme Court held that in reviewing appeals from a district court's decision to depart from the sentencing ranges in the Sentencing Guidelines, "[t ]he appellate court should not review the departure decision de n ovo, but instead should ask whether the sentencing court abu sed its discretion." Id. at 2043. Nonetheless, the appell ate court retains the obligation to correct mistaken legal co nclusions. As the Supreme Court stated in Koon: [W]hether a factor is a permissible basis for departure under any circumstances is a question of l aw, and the court of appeals need not defer to the dis trict court's resolution of the point. Little turns, ho wever, on whether we label review of a particular qu estion abuse of discretion or de novo, for an abuse of discretion
standard does not mean a mistake of law is beyond appellate correction. A district court by definition
abuses its discretion when it makes an err or of law.

Id. at 2047 (citations omitted).

The government argues that the district co urt erred as a matter of law in concluding that it had the autho rity to depart downward from the guidelines under our holding in B ierley, and that our review is plenary. The government's brief was filed before the Koon decision, but for practical purpose s our review
is the same under the abuse of discretion standard since we must examine what is, in substance, a legal issue.

III.

DISCUSSION

A. Bierley, upon which the district court and presentence report relied, involved the sentencing of a defenda nt who pled guilty to receipt of child pornography under circum stances similar, but not identical, to those involved here. Like Romualdi, Bierley ordered materials that contained child pornography through the mail. See Bierley, 922 F.2d at 1063. Anundercover postal agent acted as the distributor of the materials

-- four magazines depicting children in sexually-su ggestive poses
and involved in sexual activities -- and after the magazines were delivered, the postal inspectors conducted a search of Bierley's
house. Id. Unlike the search of Romualdi's residen ce, however, the inspectors found no other articles of child por nography except for the magazines that Bierley had received through the sting operation. Id. at 1064. Bierley was arrested and eventually pleaded guilty to "willfully and knowing ly receiving and causing to be delivered by mail, visual depicti ons of minors engaging in sexually explicit conduct," in violatio n of 18 U.S.C. §2252(a)(2). Id. At his sentencing hearing, Bierley contend ed that he was entitled to a downward adjustment in his senten ce as a minor or minimal participant in the offense. Id. Chapte r 3, Part B, of the Sentencing Guidelines provides for adjustmen t of a defendant's offense level predicated on his or her role in the
offense. See U.S.S.G. § 5H1.7. U.S.S.G. § 3B1.1 a llows for a downward adjustment where a defendant acted as a mi nor or minimal participant in a concerted activity. The Mitigatin g Role Guideline provides:
Based on the defendant's role in the offen se, decrease

the offense level as follows: (a) If the defendant was a minimal partici pant in any criminal activity, decrease by 4 leve ls. (b) If the defendant was a minor participa nt in any criminal activity, decrease by 2 leve ls. In cases falling between (a) and (b), decr ease by three

levels.

U.S.S.G. § 3B1.2.

The district court declined to adjust Bier ley's offense level pursuant to U.S.S.G. § 3B1.2, holding that un der the language of § 3B1.2, the mitigation is available on ly when the defendant is a minimal or minor "participant" in an offense that involves concerted activity. See Bierley, 922 F.2d at 1066. A "participant" is defined as a person who can be hel d "criminally responsible for the commission of the offense." U. S.S.G. § 3B1.1, comment. (n.1). Bierley was the only "parti cipant," inasmuch as the undercover postal inspector who sen t the child pornography was not "criminally responsible" and th ere was no one else involved in the activity to whom Bierley could be compared for culpability. See Bierley, 922 F.2d at 1066; se e also United States v. Katora, 981 F.2d 1398, 1402 (3d Cir. 1992 ) (citing Bierley for the rule that sections 3B1.1 and 3B1.2 only apply where there is more than one "participant" in the o ffense); United States v. Badaracco, 954 F.2d 928, 934 (3d C ir. 1992) (same). On Bierley's appeal, we agreed that U.S.S. G. § 3B1.2 was not directly applicable if there was no more th an one criminally responsible participant, but we neverthe less held that the district court did have the authority to depart downward from the Guidelines in that situation. Relying on the p rinciplesunderlying the Sentencing Commission's departure po licy and the

language in the Guidelines allowing for discretiona ry departure, see 18 U.S.C.A § 3553(b), U.S.S.G. § 5K2.0, we held that district courts have the authority to apply the Guidelines b y analogy in the rare cases when the basis for the departure is conduct similar to that encompassed in the "Role in the Off ense"
Guidelines but otherwise unavailable to the defenda nt. Bierley, 922 F.2d at 1068. Where a case is atypical, or for some other reason falls outside of the scope of the cases cons idered by the Sentencing Commission in drafting the Guidelines, t he district court may use analogic reasoning to allow a departu re. Id. at
1067-69. Bierley's situation was atypical because h e was being denied the opportunity for mitigation under § 3B1.2 simply because the other person involved in the activity c ould not be considered a "participant" in the activity as defin ed by the Sentencing Guidelines. See Bierley, 922 F.2d at 10 68. Thus, we instructed the district court that it could depart from the Guidelines and adjust Bierley's sentence in a manne r analogous to § 3B1.2 if the court believed Bierley's conduct wou ld qualify as "minor" or "minimal" had the postal agent been a "p articipant." See id. at 1070; see also United States v. Stuart, 22 F.3d 76, 83 (3d Cir. 1994) (in departing by analogy, "'the cour t predicts what level of punishment the Sentencing Commission would have assigned to the offense had it been considered...'. ") (quoting United States v. Strickland, 941 F.2d 1047, 1051 (1 0th Cir.), cert. denied, 112 S.Ct. 614 (1991)). The Second Circuit adopted the reasoning o f Bierley in United States v. Speenburgh, 990 F.2d 72, 74 (2d Ci r. 1993), as
did the Ninth Circuit in United States v. Valdez-Go nzalez, 957 F.2d 643, 648 (9th Cir. 1992). The government argues that this case is no t analogous to Bierley. The principal distinction that the gov ernment proffers is that unlike Bierley, who pled guilty to receipt of child pornography, Romualdi pled guilty to possessi on of child pornography. The government argues that while the receipt of child pornography may be viewed as a concerted acti vity, to which § 3B1.2 is or could be applicable if the party send ing the material had not been a government agent, the posse ssion of child pornography is a single-person offense, to which § 3B1.2 is inapplicable. The government's argument is not merely te chnical. Both the relevant statute and the Sentencing Guidel ines make a distinction between receipt and possession of child pornography. Under 18 U.S.C. § 2252(a), which criminalizes certa in activities in such materials that have been mailed, shipped or transported in interstate or foreign commerce, there is a disti nction made among the types of activity with which the defendan t is charged. Subsection (a)(1) covers any person who "knowingly transports or ships" such material. Subsection (a)(2) covers any person who "knowingly receives or distributes" such material. Subsection (a)(3) covers any person who "knowingly sells or po ssesses with intent to sell" such material. Subsection (a)(4) c overs any person who "knowingly possesses 3 or more copies of suchmaterial."

Those convicted of one of the first three subsections, those engaged in knowing transportation or shipment , receipt or distribution, and sale or possession with intent to sell, are subject to fine and/or imprisonment for not more th an ten years for the first such conviction. See 18 U.S.C. § 225 2(b)(1). In contrast, those covered by Subsection (a)(4), i.e., the knowing possession of the material, are subject to imprison ment for not more than 5 years, half the sentence of one convict ed of knowing receipt. See id. at (2). The Sentencing Guidelines also differentia te between receipt of child pornography and mere possession. Receipt, the more serious offense, carries an offense level of 1 5 whereas possession, rated less seriously, carries an offens e level of 13. Compare U.S.S.G. § 2G2.2 with U.S.S.G. § 2G2.4. Be fore there can be an adjustment of the offense level under § 3B1.1 or § 3B1.2,

the offense must be one that meets the threshold re quirement of involving more than one criminally responsible part icipant. As we explained, "[t]his follows because the adjustmen ts authorized
for role in the offense are directed to the relativ e culpability of participants in group conduct." Bierley, 922 F. 2d at 1065; see also United States v. Thompson, 990 F.2d 301, 3 04 (7th Cir. 1993) (holding that defendant convicted of being a felon in possession of a firearm, a single-person offense, n ot entitled to mitigation under U.S.S.G. § 3B1.2). Departure was authorized in Bierley becaus e Bierley's offense, receipt of child pornography, involved a c oncerted activity between himself and the sender and, but fo r the fact that the other persons involved in the offense were federal agents immune from criminal responsibility, Bierley would have been entitled to consideration for adjustment in of fense level via a direct application of § 3B1.2. The crime to which Romualdi pled guilty as c harged, possession, not receipt, of child pornography, is a crime that on its face requires no concerted activity. Although in almost all instances the possession followed receipt, they are different crimes as noted above. Because the purpose of § 3B 1.2 is to permit mitigation of the sentence of a defendant wh o is a minimal participant in an offense involving concerted activ ity, Romualdi would not have been entitled to an adjustment under § 3B1.2, even if the person that delivered the pornography had be en criminally responsible. Romualdi asserts that his simple act of po ssession was a minimal part of a larger distribution ring, a cri minal scheme that was directed and controlled by other persons. He reasons that had the other participants in the scheme not b een undercover agents, he, like Bierley, would have been entitled to a reduction
in sentence if it was determined that his role was minor or minimal pursuant to U.S.S.G § 3B1.2. Romualdi is s imply wrong in
that claim because the offense of which he was char ged and convicted was significantly less serious than warra nted by his actual conduct. Therefore, even had his conduct in volved a concerted activity, he would have been ineligible f or mitigation
under U.S.S.G. § 3B1.2.Comment Four of the Guideline Commentary t o U.S.S.G. §

3B1.2 states in part:
If a defendant has received a lower offens e level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted becaus e such a defendant is not substantially less culpable than a defendant whose only condu ct
involved the less serious offense.

U.S.S.G § 3B1.2, comment. (n.4).

This commentary, which was added by amendm ent in 1992, has not been the subject of any reported opinion by this court. Other courts of appeals, however, have determined t hat a
reduction under § 3B1.2 is unavailable to a defenda nt in Romualdi's situation. See United States v. Windom, 82 F.3d 742, 748 (7th Cir. 1996) (defendant not convicted of lar ger drug conspiracy not entitled to reduction under § 3B1.2) ; United States v. Lucht, 18 F.3d 541, 556 (8th Cir. 1994) ( same); United States v. Olibrices 979 F.2d 1557, 1560 (D.C. Cir. 1992) (same). A contrary rule would permit a defendant t o claim s/he played a minimal part in a more serious offense in order to obtain a reduction under U.S.S.G. § 3B1.2, even tho ugh the more
serious offense was not taken into account in setti ng the initial base offense level in the first place. Not only wo uld such a rule contravene the purposes of the "Mitigating Rol e in the Offense" Guideline, which is designed to temper the injustice of treating unequally culpable defendants the same for sentencing purposes, it also leads to
the absurd result that a defendant involve d both as a minor participant in a larger distribution scheme for which she was not convicted, and as a majo r participant
in a smaller scheme for which she was conv icted, would
receive a shorter sentence than a defendan t involved solely in the smaller scheme.

Olibrices, 979 F.2d at 1560.

Here, Romualdi pled guilty to possession o f child pornography pursuant to 18 U.S.C. § 2252(a)(4), and therefore he
obtained the benefit of a lower base offense level then had the crime been receipt of child pornography. U.S.S.G. § 3B1.2 is simply unavailable, by analogy or otherwise, under these circumstances. For the reasons set forth above, we must vacate the district court's judgment of sentence and reman d to the district court for resentencing.

B. Our holding that the district court's depa rture in this
case was one that had no basis in the law because § 3B1.2 would not have been applicable in any event does not prec lude the district court from considering departure on anothe r ground.This matter came before the district court for sent encing before

the Supreme Court announced its decision in Koon wh ich clarified the grounds upon which a district court may and may not depart. The Court explained in Koon that the availability o f departure depends on whether the special factor used by the d istrict court as a basis for departure is an "encouraged" factor because it is
one that "the Commission has not been able to take into account fully in formulating the Guidelines," a "discourage d" factor, or one that is unmentioned in the Guidelines. Koon, 1 16 S.Ct. at 2045 (internal quotation marks omitted).
The Court noted that if the factor is one that is encouraged, the sentencing court is authorized to d epart if the applicable guideline does not already take it into account. In contrast, a discouraged factor is not ordinarily re levant to the
determination of whether a sentence should be outsi de the applicable guideline range, and therefore should be relied upon only "in exceptional cases." Id. Finally, in disc ussing a factor that is not mentioned at all, the Court stat ed that the sentencing court had authority, after considering t he "'structure and theory of both relevant individual guidelines a nd the Guidelines taken as a whole,' . . . to decide wheth er it is
sufficient to take the case out of the Guideline's heartland." Id. at 2045 (quoting United States v. Rivera, 994 F .2d 941, 949 (1st Cir. 1993) [an opinion by then Judge, now Just ice, Breyer]). The Court thus recognized a flexibility in departur e that may not have been hitherto fully appreciated by the distric t courts. In this connection, we note that Romualdi has apparently completed his service of the most string ent part of the sentence imposed by the district court, i.e. ho me confinement for six months. On remand, the district court may want to
consider whether this is a factor that would warran t departure.
A similar situation arose in United States v. Mille r, 991 F.2d 552 (9th Cir. 1993), where the sentencing court had departed on the ground that the defendant had two children who would be placed at potential risk, a factor that was found b y the Court of Appeals to have been improper inasmuch as the Commi ssion had concluded it is not ordinarily relevant in determin ing whether to depart. Id. at 553; see United States v. Shoupe, 9 29 F.2d 116, 121 (3d Cir. 1991). Nonetheless, the Court of Appe als noted that the defendant had almost finished serving her six m onths of home
detention at the time the district court held a sec ond sentencing hearing, a fact also cited by the district court in departing from the applicable guideline range. The Court of Appeals stated, in language equally relevant here: We agree it may have been proper to depart
because of the six months of home detentio n Miller had already served. The fact that she'd already been punished to some extent is certainly relevant to what further sentenc e is needed to punish her and deter others. See 18 U.S.C § 3553(a)(2) (sentence should reflect these and other considerations). And
because the Commission seems not to have considered the issue of compensating for t imeerroneously served, the district court was

free to depart. See 18 U.S.C. § 3553(b).

Miller, 991 F.2d at 554. We agree. We do not suggest that this is the only po ssible basis for departure, an inquiry that the Supreme Court em phasized in Koon is primarily within the discretion of the sent encing court. However, we do emphasize that departures based on g rounds not mentioned in the Guidelines will be "highly infrequ ent." Koon, 116 S.Ct. at 2035 (quoting 1995 U.S.S.G. ch. 1, pt. A). As we observed in Bierley, departures not anticipated by the Sentencing Commission in promulgating the Guidelines should be resorted to only in the most "rare occurrences," Bierley, 922 F .2d at 1069; a sentencing court should be able to articulate "'wha t features of [the] case take it outside the Guideline's 'heartla nd' and make of it a special, or unusual, case.'" Koon, 116 S.C t. at 2035 (quoting Rivera, 994 F.2d at 949).

IV.

CONCLUSION For the reasons set forth above, we will v acate the judgment of sentence and we will remand this case t o the district court for resentencing.