United States Court of Appeals Fifth Circuit 

## FILED February 9, 2007 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 06-30115

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellant,

VERSUS


### B RUCE 

### H. P ERRIN 

### , Defendant-Appellee.

_________________________ Appeal from the United States District Court fo r the Middle District of Louisiana 

### m 3:05-CR-16

______________________________

Before H IGGINBOTHAM , S MITH , and D EM OSS , Circuit Judges.
J ERRY E. S MITH , Circuit Judge:
Bruce Perrin pleaded guilt y of two co unts of receipt of child pornography and one count of possession of child pornography

. The government appeals his sentence, claiming th at the district court impermissibly departed from the applicable guideline range. Because the court failed to articulate sufficient reasons to j ustify th e departure, we vacate the sentence and remand for resentencing. I. The Loui siana State Univer sity (“LSU”) pol ice received info rmation th at Perrin, an LSU student, was trading images of child pornography over the int ernet wit h som eone in Kentucky. Pursuant to a search warrant, LSU pol ice searched Perrin’s residence and seized a co m puter and other digit al media storage devices containing 4,237 images of child pornography, com

pri sed of 3,942 still images and 295 videos. Many of these images depict prepubescent children being raped by adul t s, and six depict2

children engaged in bestiality. Th e presentence report (“PSR”) provides th ree examples: (1) a video depicting an a dult male ejaculat ing int o th e mo uth of approximately fo ur-year-old female child while th e child says, “please stop, stop, stop . . . .”; (2) mult iple images depicting sexual ac ti vit y between an approximately six-year-old female child and a dog; and (3) images of an approximately th ree-yearold female child being anally penetrated by an adult male.
The pictures were segregated and categorized based on their content. For example, the folder entitled “yo ung” contained p orn ographic images o f children between the ages of three and ten.
Perrin admit ted th at he had been actively distributing, receiving, and possessing child pornography fo r several years. He had established a com

put er program th at made his images available fo r tradi ng over the internet at all times, and others had downloaded images of child pornography from his computer on hundreds of occasions. The National Drug Intelligence Center identified th e children in 849 of th e image s as known victims of child pornography.
Before pleading guilt y, Perrin assi sted the government by providing info rmation and of

fering to testify against a child pornography defendant in Kentucky. He also volunt arily entered counsel

ing wit h a psychologist specializing in sexually deviant behaviors.
The guideline sentencing range was 121 to 151 mo nt hs’ imprisonment. The court granted the government’s request fo r a one-level reduction based on Perrin’s substantial as sistance, which resulted in his ult imat e sentencing range of 108 to 135 mo nt hs’ imprisonment. The st atutory minimum was 60 mo nt hs. The statutory range for supervised release following incarceration was 5 years to life.
Perrin was sentenced to the statutory minimum of sixt y mo nt hs’ imprisonment, fo llo wed by ten years’ supervised release. At the sentencing hearing the court described the crime’s severity, cit i ng the graphic details ment io ned above. It f

ound that Perrin was a substantial consumer but not a producer of child pornography and th at Congr ess has concluded that possession of child pornography should be punished because if there were no consumers there would be a greatl

y reduced market. The court said th at it had carefully considered the guidelines and had concluded th at the penalties fo r possession of child pornography were disproportionate to th ose fo r producing such materi al, and reiter ated th at Perrin was not a producer.
The court fo und th at Perrin was not a ri sk to the com

munit y and th at there wa s no indication th at he had ever “attem pted to perform anyt hing similar to the visual depictions th at he possessed.” Perrin was aware of the consequences of his conduct, and the court was impressed th at he had voluntarily begun counseling. The court stressed that the ten years’ supervise d release would be onerous and that “[t]his sentence will double the ty pical amo unt of time spent under supervision.” 1 The gov

1 The cou rt appe ars to base this statement on the typical sentence administered by that particular court. A ten-year term of supervised release is toward the low end of the statutory range of five (continued...)3

ernment made an unsuccessful objection to the unreasonableness of th e sentence, particularly it s departure to the statutory minimum.
In the written “Statem

ent of Reasons,” the court repeated its bases for Perrin’s sentence. The sentenc e “ref

lects the seriousness of the of fe nse and provides just punishment for one who possessed child pornography .” The written statem

ent also emphasized th at the sentence d oubles “the typical amount of time spent under supervision.”

II. Aft er United States v. Booker , 543 U.S. 220 (2005), we continue to review a district court’s application of the sentencing guidelines de novo and it s findings of fact fo r clear error. United States v. Caldwell , 448 F.3d 287, 290 (5th Cir. 2006) (citing Unite d States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005)). “The ult imat e sente nce is reviewed for ‘unreasonableness’ wit h regard to th e statutory sentencing factors enumerated in [18 U.S.C. § 3553(a)].” 2 United States v. Duhon , 440 F.3d 711, 714 (5th Cir.) (citing Booker , 543 U.S. at 2 61), petition fo r cert. filed (U.S. May 18, 2006) (No. 05-11144).
Sentences fall int o one of three categories: (1) wit hin the guideline r ange, (2) an upward or d ownward departure as allowed by the guidelines, or (3) outside the guideline range. United States v. Smith , 440 F.3d 704, 706-07 (5th Cir. 2006). Perrin’s sentence is in the thir d category and thus is considered a “non1 (...continued) years to life, and a sentencing guidelines policy statem ent recommends that convicted sex offenders receive the statutory ma ximum term of supervised release, which in P er rin’s case is life. S ee discussion infra Part III.B.

2 These factors include (1) the nature and circumstances of the offenseand the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to p romote respect for the law, and to provide just punishment for the offense; (continued...) 2 (...continued) (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for (A) the applicable category of offense committed by the appli cable category of defendant as set forth in the guidelines . . . ; (5) any pertinent policy statement . . . ; (6) the need to avoid unwarranted sentence disparities am

ong defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide re stitution to any victims of the offense. 18 U.S.C. § 3553(a) (2000).4

guideline” sentence. Before impo sing a nonguideline sentence, th e court is “required to calculate the guideline range and consider it advisory.” United States v. Angeles-Mendoza , 4 07 F.3d 742, 746 (5th Ci r. 2005). If the court th en decides to i mpose a non-guideline sentence, th e guideline range should be used as a frame of reference. Smith , 440 F.3d at 707.
A non-guideline sentence must be supported by a careful articulation of the reasons for th e appropri ateness of th e sentence. U nited States v. Mares , 402 F.3d 511, 519 (5th Cir.), cert. denied , 126 S. Ct. 43 (2005). This enables th e reviewing court to determ ine whether th e sentence is unreasonable according to the § 3553(a) f

actors. The m

ore a sentence departs from the guideline range, th e “mo re com
pell ing t he justification based on factors in section 3553(a) must be.” Smith , 440 F.3d at 707 (i nt ernal quotations and citations omitted).
Smith articulates th e specific test fo r determining whether a non-guideline sentence is unreaso nable under B ooker

. “A no n-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account fo r a factor th at should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing th e sentencing factors.” Id. at 708.

III. Perrin’s sent ence f

ails t he first and second prongs of th e Smith test and thus is unreasonable. We examine why this is so.

A. The court did not give sufficient weight to th e “t he nature and ci

rcumstances of the offense” and “t he need fo r th e sentence impo sed to reflect th e serio usness of the offense, to prom ote respect fo r th e law, and to provide just punishment fo r the of fense.” 18 U.S.C. § 3553(a)(1), (2)(A). Though it noted the severity of the of

fense, the court failed to explain how this severity, particularly the images’ depravity and numerosity, factored int o it s decisio n to depart downward from the gu ideline range to the statutory minimum.
Even fo r child pornograp h y, the images possessed by Perrin were unusually reprehensible. A downward departure is unreasonable, based at least in part on the content of the images, where the defendant possessed images th at depicted the severe molestation of girls aged eight to ten years. D uho n , 440 F.3d at 7 19. “ Under the circumstances, the district court misjud ged the seriousness of Duhon’s of fense . A s a result, the sentence imposed fails to advance sufficient ly the sentencing objectives enumerated in section 3553(a)(2)- (A)-(B).” Id. at 720.
Based on the examples in the PSR, the images possessed by Perrin are at least as severe as those described in Duhon . Perrin’s images depict th e rape of girls as young as three, com pared to the eight-year-olds in Duhon’s pictures. Perrin also possessed images depicting children invo lved in bestiality. Under Duhon , the district court m

isjudged the severity of the crime, as measured by t he depravity of the images, and the s e nt ence does not sufficiently account fo r the sentencing factors o f §§ 3553(a)(1)-(2), as required by Smith

. In addition, the number of images possessed by Perrin (4,237) warrants a finding th at this crime is part icularl y severe. The guidelines consider the number of images in calculating the offense level, but the scale has a maximum level of “o ver 600 images;” Perrin po s sessed over seven times th at number.5

Further, if th e current version of th e guidelines had been used, m

ore than 26,000 images of child pornography would have been attri buted to Perrin fo r sentencing purposes. 3
Based on th e content and numerosity of the images possessed by Perrin, this crime falls at th e mo re s evere end of possession of child pornography cases. The court did not articulat e sufficiently how the severity of the crime factored int o it s deci sion to depart from the guideline range and impo se th e minimum sentence allo wed by law, so th e sentence fails to advance sufficient ly th e objectives stated in § 3553(a)(2)(A)-(B). 4

B. The court gave f

our reasons for its departure. First, Perrin did not produce child pornography, but merely possessed it

. Second, he voluntarily entered counseling aft er his arrest. Third, he understood th e consequences of his actions and wanted to rehabilit ate himself. Finally, th e term of supervised release was particularly onerous. Each of these facto rs was improper for the court to consider.
The court noted repeatedly th at Perrin was a consumer, not a producer, of child pornography. It also noted that there was no evidence th at he had tried to perform the actions depicted in his illegal pornography collection. These are improper reasons fo r impo s ing a nonguideline sentence. The fact that a defendant did not com

mit , or have the tendency to com
mit , a m ore severe crime does not warrant a downward departure f

or the crime actually com mit ted. 5
The guidelines make a sharp distinction between the production and the possession of child pornography: Congres s established a series of distinctly separate of

fenses respecting child pornography, wit h higher sentenc e s fo r of fenses invo lving conduct mo re likely to be, or mo re directly, harmfu l to m ino rs than the mere possession of

fense. Similarly, t he guidelines clearly reflect consideration of whether and the degree to which harm to mino rs is or has been involved.
Duhon , 440 F.3d at 718 (quoting Grosenheider , 200 F.3d at 332-33). If Perrin had produced the images, the guideline range would have been 324-405 mo nt hs, significant ly higher th an the range he ultimately faced. Thus, his guideline range already accounted fo r the fact th at he did not produce child pornography , and it was impermissible f

or th e court to reduce the sentence on the basis that he did not com
mit an additional, more egregious, crime. 3 The probation office used the 2003 edition of the guidelines manual because it was “less onerous” and its use was intended to “avoid any ex post facto issues.” The difference between the 2003 and 2005 editions lies in the form ula used to convert pornographic videos into an equivalent number of still images for sentencing enhancement purposes. Under the 2003 edition, a video counts as one image, but under the 2005 edition, in force at the time of sentencing , e ach video is to be considered as seventy-five still images.

4 Also related to the severity of Perrin’s offense is the district court’s failure to describe its consider ation of the need to avoid unwarranted sentencing disparities am

ong defendants with similar records who have been found guilty of similar conduct. See 18 U.S.C. § 3553(a)(6). 5 See United States v. Grosenheider , 200 F.3d 321, 333-34 (5th Cir. 2000); Duhon , 440 F.3d at 718-19.6

The court also based it s sentenc e on Perrin’s contrition and his c ommencement of counseling. These reasons are inappropriate grou nds for imposing a non-guideline sentence, because th ey are already accounted for in th e reduction fo r acceptance of responsibilit y. U nited States v. Goldsmith , 1 92 Fed. Appx. 261, 267 (5th Cir. 2006). In G oldsmith th e district court had given a non-guideline sentence because, inter alia , it fo und th at the defendant had accepted responsibility fo r his crime an d had participated in a drug rehabilitation program aft er his arrest. We concluded th at, under Smith , both of th ese are improper factors th at could not be relied on to justify a non-guideline sentence. The first is accounted fo r, on it s face, in th e acceptance-of-responsibilit y r eduction. The second, participation in counseling, is accounted fo r in th e s ame reduction. 6
Like th e defendant in Goldsmith , Perrin accepted responsibility fo r his actions and entered a counseling program aft er his arrest. Alt hough Goldsmith , being an unpublished decisio n, does not bind us, its reasoning is persuasive, and we adopt it s holding now as published authority

. A defendant’s contrition and com mencement of counseling are already accounted fo r, according to the guidelines manual, in th e acceptance-of-responsibility reduction and thus are inappropriate as a basis fo r a further sentence reduction. Finally, th e court in t he inst ant case noted th e severity of th e ten-year supervised release term

. This is not a valid reason for a departure in the length of incarceration because, despite the court’s pronouncement, a ten-year term of supervised rele ase i s less onerous, not more, th an what is recom

mended fo r receipt and possession of child pornography

. The statutory range is five years to life, and the district court was certainly wit hin it s discretion to impose a term on the lo w end of this range. But “Congress and the Sentencing Commission intended to impo se life terms of supervi sed release on sex of fenders. Congress explicitly recognized the high rate of recidivism in convicted sex of fenders.” 7 Thus, Perrin’s supervised release term was significant ly lo wer than th at recom mended by Congress and the Sentencing Com missio n. It i s inappropriate to use such a term of supervised release as the basis for a departure from the guideline range.
IV. Booker provided sentencing courts significant flexibilit y, but th at flexibilit y is not boundless. Non-guideline sentences require the greatest justification, and here the district court fell short. Perrin’s sentence fails the first two prongs of Smith , because the court did not adequately account fo r the severity of the crime, and each of the fo ur reaso ns given for the departure was impro per. Wit hout these reasons, no justification remains fo r the significant departure from the guideline range.
The judgment of sentence is VACATED and REMANDED for resentencing.

6 Goldsmith , 192 Fed. Ap px. at 267 (citing U.S.S.G. § 3E1.1 comment. n.1(g) (“In determining whether a defendant qualifies under subsection (a), appropriate considerations include

. . . postoffense rehabilitative efforts (e.g., counseling)”)). 7 United States v. Allison , 447 F .3d 402, 406 (5th Cir. 2006) (citing 18 U.S.C. § 3583(k); H.R. R EP

. N O . 108-66 (2003) (conf. rep.)).