1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-11-1996

United States v. Romualdi

Precedential or Non-Precedential:

Docket 96-7113

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"United States v. Romualdi" (1996). 1996 Decisions. Paper 13.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/13
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 96-7113 

 

 UNITED STATES OF AMERICA, 

 Appellant 

 v. 

 

 ROMEO ROMUALDI 

 

 On Appeal from the United States District Court 

 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 authority to depart 

downward under the Sentencing Guidelines by analogy to the 

adjustment for Mitigating Role in the Offense if defendant would 

have been entitled to that adjustment had the supplier, an 

undercover postal inspector, been a criminally culpable 

participant. In this case we are asked to consider whether 

Bierley should be extended to a defendant charged and convicted 

of a single-person offense. 

 I. 

 FACTS AND PROCEDURAL HISTORY 

 In May 1995, Appellee Romeo Romualdi ordered a catalog 

by mail from L.G. Enterprises, a business that sold pornographic 

materials. Unknown to Romualdi, L.G. Enterprises had 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 First Time In 

Her Life." The second tape was entitled "Wash Time," and was 

described as "Eleven Year Old Girl Bathes With Woman, 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 surveillance of the 

delivery. Romualdi received the tapes, and ten minutes later the 

investigators searched his home pursuant to a federal search 

warrant. During the search they found that the two tapes that 

had just been delivered to Romualdi were in a garbage can covered 

with newspaper. A further search revealed more pornographic 

material. The inspectors found two more tapes that purported to 

be depictions of nudist colonies, in which the camera focused 

upon the genitals of young girls. They also found thirteen 

pornographic videos depicting adult women dressed as girls. 

Romualdi also had pasted the faces of young girls, which he 

obtained from a Sears catalog, over the faces of women in the 

photographs of adults having sex. The inspectors also found a 

video entitled "Fallen Angel," which the presentence report 

describes as "a non-pornographic movie dramatizing the sexual 

relationship be[twe]en an adult male and a twelve year old girl 

whom the male lures into child pornography." 

 Romualdi told the postal inspectors that when he 

ordered the two tapes from L.G. Enterprises he believed 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 like children. 

He stated that he had started to view the tapes but had thrown 

them away because of their poor quality. He also stated that the 

reason why he had the tapes addressed to "Superior Merchandise," 

rather than his own name, was to avoid embarrassment if the 

packages had broken open while being transported through the 

mails. When questioned about the pictures with the girls' faces 

pasted to them, Romualdi admitted that he fantasized about young 

girls having sex. 
 After consulting an attorney, Romualdi signed a plea 

agreement with the government. Pursuant to that agreement, 

Romualdi pleaded guilty to knowingly possessing three or more 

videotapes containing child pornography, a crime under 18 U.S.C. 

§ 2252(a)(4). Child pornography is defined as material "which 

involves the use of a minor engaging in sexually explicit 

conduct." 18 U.S.C. § 2252(a)(1)(A). Romualdi also 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 against Romualdi 

and agreed to seek the sentencing term available under 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 bringing 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 report stated that 

consistent with this court's decision in United States v. 

Bierley, 922 F.2d 1061 (3d. Cir. 1990), the district court could 

depart two or four levels from the total offense level by analogy 

to U.S.S.G. § 3B1.2, if the court determined that Romualdi 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 background and had a 

good relationship with his 26 year old daughter, who was born 

from Romualdi's five year cohabitation with a girlfriend. 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 Services. In his 

report, Dr. Smith suggested that Romualdi suffered from a 

moderately severe dependent personality disorder with 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 pornographic films 

because of this isolation - as a way to feel closer to society - 

and he indicated that Romualdi's interest in pornographic films 

with child themes "may signify a developmental arrest or sexual 

addiction." Dr. Smith concluded that time in jail would be 

counterproductive as it would only increase Romualdi's isolation 

from his already limited social network and exacerbate his 

psychological condition. In addition, incarceration would 

interfere with Romualdi's operation of the pool hall and t-shirt 

store that he owns, thus creating additional financial stress 

which could lead to further psychological isolation. Instead, 

the doctor recommended that Romualdi be placed on probation and 

forced to attend group therapy for sexually addictive 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 available under 

the applicable sentencing range, twelve months in jail. The 

court, however, departed from the Guidelines, citing as authority 

our opinion in Bierley, and reduced Romualdi's total offense 

level by three, from 13 to 10, finding by analogy to § 3B1.2 of 

the Sentencing Guidelines that the defendant's conduct qualified 

for a mitigating role reduction. Using the new offense level of 

10, the court sentenced Romualdi to three years probation, 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 States, 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 novo, but 

instead should ask whether the sentencing court abused its 

discretion." Id. at 2043. Nonetheless, the appellate court 

retains the obligation to correct mistaken legal conclusions. As 

the Supreme Court stated in Koon: 

 [W]hether 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. Little turns, however, on 

 whether we label review of a particular question 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 error of law. 

Id. at 2047 (citations omitted). 

 The government argues that the district court erred as 

a matter of law in concluding that it had the authority to depart 

downward from the guidelines under our holding in Bierley, and 

that our review is plenary. The government's brief was filed 

before the Koon decision, but for practical purposes 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 defendant who pled 

guilty to receipt of child pornography under circumstances 

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. An 
undercover postal agent acted as the distributor of the materials 

-- four magazines depicting children in sexually-suggestive 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 residence, however, 

the inspectors found no other articles of child pornography 

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 knowingly receiving 

and causing to be delivered by mail, visual depictions of minors 

engaging in sexually explicit conduct," in violation of 18 U.S.C. 

§2252(a)(2). Id. 

 At his sentencing hearing, Bierley contended that he 

was entitled to a downward adjustment in his sentence as a minor 

or minimal participant in the offense. Id. Chapter 3, Part B, 

of the Sentencing Guidelines provides for adjustment 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 allows for a 

downward adjustment where a defendant acted as a minor or minimal 

participant in a concerted activity. The Mitigating Role 

Guideline provides: 

 Based on the defendant's role in the offense, decrease 

 the offense level as follows: 

 (a) If the defendant was a minimal participant in any 

 criminal activity, decrease by 4 levels. 

 (b) If the defendant was a minor participant in any 

 criminal activity, decrease by 2 levels. 

 In cases falling between (a) and (b), decrease by three 

 levels. 

U.S.S.G. § 3B1.2. 

 The district court declined to adjust Bierley's offense 

level pursuant to U.S.S.G. § 3B1.2, holding that under the 

language of § 3B1.2, the mitigation is available only 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 held "criminally 

responsible for the commission of the offense." U.S.S.G. § 

3B1.1, comment. (n.1). Bierley was the only "participant," 

inasmuch as the undercover postal inspector who sent the child 

pornography was not "criminally responsible" and there was no one 

else involved in the activity to whom Bierley could be compared 

for culpability. See Bierley, 922 F.2d at 1066; see 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 offense); 

United States v. Badaracco, 954 F.2d 928, 934 (3d Cir. 1992) 

(same). 

 On Bierley's appeal, we agreed that U.S.S.G. § 3B1.2 

was not directly applicable if there was no more than one 

criminally responsible participant, but we nevertheless held that 

the district court did have the authority to depart downward from 

the Guidelines in that situation. Relying on the principles 
underlying the Sentencing Commission's departure policy and the 

language in the Guidelines allowing for discretionary 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 by analogy in 

the rare cases when the basis for the departure is conduct 

similar to that encompassed in the "Role in the Offense" 

Guidelines but otherwise unavailable to the defendant. Bierley, 

922 F.2d at 1068. Where a case is atypical, or for some other 

reason falls outside of the scope of the cases considered by the 

Sentencing Commission in drafting the Guidelines, the district 

court may use analogic reasoning to allow a departure. Id. at 

1067-69. 

 Bierley's situation was atypical because he was being 

denied the opportunity for mitigation under § 3B1.2 simply 

because the other person involved in the activity could not be 

considered a "participant" in the activity as defined by the 

Sentencing Guidelines. See Bierley, 922 F.2d at 1068. Thus, we 

instructed the district court that it could depart from the 

Guidelines and adjust Bierley's sentence in a manner analogous to 

§ 3B1.2 if the court believed Bierley's conduct would qualify as 

"minor" or "minimal" had the postal agent been a "participant." 

See id. at 1070; see also United States v. Stuart, 22 F.3d 76, 83 

(3d Cir. 1994) (in departing by analogy, "'the court 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 (10th Cir.), 

cert. denied, 112 S.Ct. 614 (1991)). 

 The Second Circuit adopted the reasoning of Bierley in 

United States v. Speenburgh, 990 F.2d 72, 74 (2d Cir. 1993), as 

did the Ninth Circuit in United States v. Valdez-Gonzalez, 957 

F.2d 643, 648 (9th Cir. 1992). 

 The government argues that this case is not analogous 

to Bierley. The principal distinction that the government 

proffers is that unlike Bierley, who pled guilty to receipt of 

child pornography, Romualdi pled guilty to possession of child 

pornography. The government argues that while the receipt of 

child pornography may be viewed as a concerted activity, to which 

§ 3B1.2 is or could be applicable if the party sending the 

material had not been a government agent, the possession of child 

pornography is a single-person offense, to which § 3B1.2 is 

inapplicable. 

 The government's argument is not merely technical. 

Both the relevant statute and the Sentencing Guidelines make a 

distinction between receipt and possession of child pornography. 

Under 18 U.S.C. § 2252(a), which criminalizes certain activities 

in such materials that have been mailed, shipped or transported 

in interstate or foreign commerce, there is a distinction made 

among the types of activity with which the defendant 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 possesses with 

intent to sell" such material. Subsection (a)(4) covers any 

person who "knowingly possesses 3 or more copies of such 
material." 

 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 than ten years 

for the first such conviction. See 18 U.S.C. § 2252(b)(1). In 

contrast, those covered by Subsection (a)(4), i.e., the knowing 

possession of the material, are subject to imprisonment for not 

more than 5 years, half the sentence of one convicted of knowing 

receipt. See id. at (2). 

 The Sentencing Guidelines also differentiate between 

receipt of child pornography and mere possession. Receipt, the 

more serious offense, carries an offense level of 15 whereas 

possession, rated less seriously, carries an offense level of 13. 

Compare U.S.S.G. § 2G2.2 with U.S.S.G. § 2G2.4. Before there can 

be an adjustment of the offense level under § 3B1.1 or § 3B1.2, 

the offense must be one that meets the threshold requirement of 

involving more than one criminally responsible participant. As 

we explained, "[t]his follows because the adjustments authorized 

for role in the offense are directed to the relative culpability 

of participants in group conduct." Bierley, 922 F.2d at 1065; 

see also United States v. Thompson, 990 F.2d 301, 304 (7th Cir. 

1993) (holding that defendant convicted of being a felon in 

possession of a firearm, a single-person offense, not entitled to 

mitigation under U.S.S.G. § 3B1.2). 

 Departure was authorized in Bierley because Bierley's 

offense, receipt of child pornography, involved a concerted 

activity between himself and the sender and, but for 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 offense level 

via a direct application of § 3B1.2. 

 The crime to which Romualdi pled guilty as charged, 

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 § 3B1.2 is to 

permit mitigation of the sentence of a defendant who is a minimal 

participant in an offense involving concerted activity, Romualdi 

would not have been entitled to an adjustment under § 3B1.2, even 

if the person that delivered the pornography had been criminally 

responsible. 

 Romualdi asserts that his simple act of possession was 

a minimal part of a larger distribution ring, a criminal scheme 

that was directed and controlled by other persons. He reasons 

that had the other participants in the scheme not been 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 simply wrong in 

that claim because the offense of which he was charged and 

convicted was significantly less serious than warranted by his 

actual conduct. Therefore, even had his conduct involved a 

concerted activity, he would have been ineligible for mitigation 

under U.S.S.G. § 3B1.2. 
 Comment Four of the Guideline Commentary to U.S.S.G. § 

3B1.2 states in part: 

 If a defendant has received a lower offense 

 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 because 

 such a defendant is not substantially less

 culpable than a defendant whose only conduct 

 involved the less serious offense. 

 

 U.S.S.G § 3B1.2, comment. (n.4). 

 This commentary, which was added by amendment in 1992, 

has not been the subject of any reported opinion by this court. 

Other courts of appeals, however, have determined that a 

reduction under § 3B1.2 is unavailable to a defendant in 

Romualdi's situation. See United States v. Windom, 82 F.3d 742, 

748 (7th Cir. 1996) (defendant not convicted of larger 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 to 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 though the more 

serious offense was not taken into account in setting the initial 

base offense level in the first place. Not only would such a 

rule contravene the purposes of the "Mitigating Role 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 involved both as a 

 minor participant in a larger distribution scheme for 

 which she was not convicted, and as a major participant 

 in a smaller scheme for which she was convicted, would 

 receive a shorter sentence than a defendant involved 

 solely in the smaller scheme. 

Olibrices, 979 F.2d at 1560. 

 Here, Romualdi pled guilty to possession of 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 remand to the 

district court for resentencing. 

 B. 

 Our holding that the district court's departure 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 preclude the 

district court from considering departure on another ground. 
This matter came before the district court for sentencing before 

the Supreme Court announced its decision in Koon which clarified 

the grounds upon which a district court may and may not depart. 

The Court explained in Koon that the availability of departure 

depends on whether the special factor used by the district 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 "discouraged" factor, or 

one that is unmentioned in the Guidelines. Koon, 116 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 depart if the 

applicable guideline does not already take it into account. In 

contrast, a discouraged factor is not ordinarily relevant to the 

determination of whether a sentence should be outside the 

applicable guideline range, and therefore should be relied upon 

only "in exceptional cases." Id. Finally, in discussing a 

factor that is not mentioned at all, the Court stated that the 

sentencing court had authority, after considering the "'structure 

and theory of both relevant individual guidelines and the 

Guidelines taken as a whole,' . . . to decide whether 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 Justice, Breyer]). 

The Court thus recognized a flexibility in departure that may not 

have been hitherto fully appreciated by the district courts. 

 In this connection, we note that Romualdi has 

apparently completed his service of the most stringent part of 

the sentence imposed by the district court, i.e. home confinement 

for six months. On remand, the district court may want to 

consider whether this is a factor that would warrant departure. 

A similar situation arose in United States v. Miller, 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 by the Court of 

Appeals to have been improper inasmuch as the Commission had 

concluded it is not ordinarily relevant in determining whether to 

depart. Id. at 553; see United States v. Shoupe, 929 F.2d 116, 

121 (3d Cir. 1991). Nonetheless, the Court of Appeals noted that 

the defendant had almost finished serving her six months of home 

detention at the time the district court held a second 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 detention 

 Miller had already served. The fact that 

 she'd already been punished to some extent is 

 certainly relevant to what further sentence 

 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 time 
 erroneously 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 possible basis 

for departure, an inquiry that the Supreme Court emphasized in 

Koon is primarily within the discretion of the sentencing court. 

However, we do emphasize that departures based on grounds not 

mentioned in the Guidelines will be "highly infrequent." 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 "'what features of 

[the] case take it outside the Guideline's 'heartland' and make 

of it a special, or unusual, case.'" Koon, 116 S.Ct. at 2035 

(quoting Rivera, 994 F.2d at 949). 

 IV. 

 CONCLUSION 

 For the reasons set forth above, we will vacate the 

judgment of sentence and we will remand this case to the district 

court for resentencing.