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

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

BRUCE H. PERRIN,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

m 3:05-CR-16

______________________________

Before HIGGINBOTHAM, SMITH, and

DEMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bruce Perrin pleaded guilty of two counts

of receipt of child pornography and one count

of possession of child pornography. The government appeals hissentence, claiming that the

district court impermissibly departed from the

applicable guideline range. Because the court

failed to articulate sufficient reasons to justify

the departure, we vacate the sentence and remand for resentencing.

I.

The Louisiana State University (“LSU”)

police received information that Perrin, an

LSU student, wastrading images of child pornography over the internet with someone in

Kentucky. Pursuant to a search warrant, LSU

police searched Perrin’s residence and seized

a computer and other digital media storage

devices containing 4,237 images of child pornography, comprised of 3,942 still images and

295 videos.

Many of these images depict prepubescent

children being raped by adults, and six depict
2

children engaged in bestiality. The presentence report (“PSR”) providesthree examples:

(1) a video depicting an adult male ejaculating into the mouth of approximately

four-year-old female child while the child

says, “please stop, stop, stop . . . .”;

(2)multiple images depicting sexualactivity

between an approximately six-year-old female child and a dog; and

(3) images of an approximately three-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 “young” contained pornographic

images of children between the ages of three

and ten. 

Perrin admitted that he had been actively

distributing, receiving, and possessing child

pornography for several years. He had established a computer program that made his images available for trading 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 the children in 849

of the images as known victims of child pornography.

Before pleading guilty, Perrin assisted the

government by providing information and offering to testify against a child pornography

defendant in Kentucky. He also voluntarily

entered counseling with a psychologist specializing in sexually deviant behaviors.

The guideline sentencing range was 121 to

151 months’imprisonment. The court granted

the government’s request for a one-level reduction based on Perrin’s substantial assistance, which resulted inhis ultimate sentencing

range of 108 to 135 months’ imprisonment.

The statutory minimum was 60 months. The

statutory range for supervised release following incarceration was 5 years to life.

Perrin was sentenced to the statutory minimum ofsixty months’ imprisonment, followed

by ten years’ supervised release. At the sentencing hearing the court described the crime’s

severity, citing the graphic details mentioned

above. It found that Perrin was a substantial

consumer but not a producer of child pornography and that Congress has concluded that

possession of child pornography should be

punished because if there were no consumers

there would be a greatly reduced market. The

court said that it had carefully considered the

guidelines and had concluded that the penalties

for possession of child pornography were disproportionate to those for producing such material, and reiterated that Perrin was not a

producer.

The court found that Perrin was not a risk

to the community and that there was no indication that he had ever “attempted to perform

anything similarto the visual depictionsthat he

possessed.” Perrin was aware of the consequences of his conduct, and the court was impressed that he had voluntarily begun counseling. The court stressed that the ten years’ supervised release would be onerous and that

“[t]hissentence will double the typical amount

of time spent under supervision.”1 The gov

1 The court appears to base this statement on

the typicalsentence 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 the sentence, particularly

its departure to the statutory minimum.

In the written “Statement of Reasons,” the

court repeated its bases for Perrin’s sentence.

The sentence “reflects the seriousness of the

offense and provides just punishment for one

who possessed child pornography.” The written statement also emphasized that the sentence doubles “the typical amount of time

spent under supervision.”

II.

After 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 its findings of fact for clear error.

United States v. Caldwell, 448 F.3d 287, 290

(5th Cir. 2006) (citing United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)). “The

ultimate sentence is reviewed for ‘unreasonableness’ with regard to the 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 261),

petition for cert. filed (U.S. May 18, 2006)

(No. 05-11144).

Sentences fall into one of three categories:

(1) within the guideline range, (2) an upward

or downward 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

third category and thus is considered a “non1

(...continued)

years to life, and a sentencing guidelines policy

statementrecommends that convicted sex offenders

receive the statutory maximum term of supervised

release, which in Perrin’s case is life. See discussion infra Part III.B.

2 These factors include

(1) the nature and circumstances of the offense

and the history and characteristics of the defendant;

(2) the need for the sentence imposed

(A) to reflect the seriousness of the offense,

to promote 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 applicable category of defendant as set forth in the guidelines . . . ;

(5) any pertinent policy statement . . . ;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct;

and

(7) the need to provide restitution to any victims

of the offense.

18 U.S.C. § 3553(a) (2000).
4

guideline” sentence. Before imposing a nonguideline sentence, the court is “required to

calculate the guideline range and consider it

advisory.” United States v. Angeles-Mendoza,

407 F.3d 742, 746 (5th Cir. 2005). If the

court then decides to impose a non-guideline

sentence, the 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

the appropriateness of the sentence. United

States v. Mares, 402 F.3d 511, 519 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005). This enables the reviewing court to determine whether

the sentence is unreasonable according to the

§ 3553(a) factors. The more a sentence departsfromthe guideline range, the “more compelling the justification based on factors in

section 3553(a) must be.” Smith, 440 F.3d at

707 (internal quotations and citations omitted).

Smith articulates the specific test for determiningwhether a non-guideline sentence is unreasonable under Booker. “A non-Guideline

sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not

account for a factor that 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

the sentencing factors.” Id. at 708.

III.

Perrin’s sentence fails the first and second

prongs of the Smith test and thus is unreasonable. We examine why this is so.

A.

The court did not give sufficient weight to

the “the nature and circumstances of the offense” and “the need for the sentence imposed

to reflect the seriousness of the offense, to

promote respect for the law, and to provide

just punishment for the offense.” 18 U.S.C.

§ 3553(a)(1), (2)(A). Though it noted the severity of the offense, the court failed to explain

how this severity, particularly the images’ depravity and numerosity, factored into its decision to depart downward from the guideline

range to the statutory minimum.

Even for child pornography, 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

that depicted the severe molestation of girls

aged eight to ten years. Duhon, 440 F.3d at

719. “Under the circumstances, the district

court misjudged the seriousness of Duhon’s

offense. As a result, the sentence imposed

fails to advance sufficiently 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 the rape of girls as young as three,

compared to the eight-year-olds in Duhon’s

pictures. Perrin also possessed images depicting children involved in bestiality. Under Duhon, the district court misjudged the severity

of the crime, as measured by the depravity of

the images, and the sentence does not sufficiently account for the sentencing factors of

§§ 3553(a)(1)-(2), as required by Smith.

In addition, the number of images possessed by Perrin (4,237) warrants a finding

that this crime is particularly severe. The

guidelines consider the number of images in

calculating the offense level, but the scale has

a maximum level of “over 600 images;” Perrin

possessed over seven times that number.
5

Further, if the current version ofthe guidelines

had been used, more than 26,000 images of

child pornography would have been attributed

to Perrin for sentencing purposes.3

Based on the content and numerosity ofthe

images possessed by Perrin, this crime falls at

the more severe end of possession of child

pornography cases. The court did not articulate sufficiently how the severity of the crime

factored into its decision to depart from the

guideline range and impose the minimum sentence allowed by law, so the sentence fails to

advance sufficiently the objectives stated in

§ 3553(a)(2)(A)-(B).4

B.

The court gave four reasons for its departure. First, Perrin did not produce child pornography, but merely possessed it. Second, he

voluntarily entered counseling after his arrest.

Third, he understood the consequences of his

actions and wanted to rehabilitate himself. Finally, the term of supervised release was particularly onerous. Each of these factors was

improper for the court to consider.

The court noted repeatedly that Perrin was

a consumer, not a producer, of child pornography. It also noted that there was no evidence

that he had tried to perform the actions depicted in hisillegal pornography collection. These

are improper reasons for imposing a nonguideline sentence. The fact that a defendant

did not commit, or have the tendency to commit, a more severe crime does not warrant a

downward departure for the crime actually

committed.5

The guidelines make a sharp distinction between the production and the possession of

child pornography:

Congress established a series of distinctly

separate offenses respecting child pornography, with higher sentences for offenses

involving conduct more likely to be, or

more directly, harmful to minors than the

mere possession offense. Similarly, the

guidelines clearly reflect consideration of

whether and the degree to which harm to

minors 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 been324-405months,significantly higher

than the range he ultimately faced. Thus, his

guideline range already accounted for the fact

that he did not produce child pornography, and

it was impermissible for the court to reduce

the sentence on the basis that he did not commit 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 formula 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, each 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 consideration of theneed to avoid unwarranted sentencing

disparities among 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 its sentence on Perrin’s contrition and his commencement of

counseling. These reasons are inappropriate

grounds for imposing a non-guideline sentence, because they are already accounted for

in the reduction for acceptance of responsibility. United States v. Goldsmith, 192 Fed.

Appx. 261, 267 (5th Cir. 2006). In Goldsmith

the district court had given a non-guideline

sentence because, inter alia, it found that the

defendant had accepted responsibility for his

crime and had participated in a drug rehabilitation program after his arrest. We concluded

that, under Smith, both of these are improper

factors that could not be relied on to justify a

non-guideline sentence. The first is accounted

for, on its face, in the acceptance-of-responsibility reduction. The second, participation in

counseling, is accounted for in the same reduction.6

Like the defendant in Goldsmith, Perrin accepted responsibility for his actions and entered a counseling program after his arrest.

AlthoughGoldsmith, being anunpublished decision, does not bind us, its reasoning is persuasive, and we adopt its holding now as published authority. A defendant’s contrition and

commencement of counseling are already accounted for, according to the guidelines manual, in the acceptance-of-responsibility reduction and thus are inappropriate as a basis for a

further sentence reduction.

Finally, the court in the instant case noted

the severity of the 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 release is less onerous, not more,

thanwhat isrecommended for receipt and possession of child pornography. The statutory

range is five yearsto life, and the district court

was certainly within its discretion to impose a

term on the low end of this range. But “Congress and theSentencing Commission intended

to impose life terms of supervised release on

sex offenders. Congress explicitly recognized

the high rate of recidivism in convicted sex

offenders.”7

Thus, Perrin’s supervised release term was

significantly lower than that recommended by

Congress and the Sentencing Commission. It

is 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 flexibility, but that flexibility is not boundless. Non-guideline sentences require the

greatest justification, and here the district

court fellshort. Perrin’s sentence fails the first

two prongs of Smith, because the court did not

adequately account for the severity of the

crime, and each of the four reasons given for

the departure was improper. Without these

reasons, no justification remains for the significant departure from the guideline range.

The judgment of sentence is VACATED

and REMANDED for resentencing.

6 Goldsmith, 192 Fed. Appx. 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)”)).

7United States v. Allison, 447 F.3d 402, 406

(5th Cir. 2006) (citing 18 U.S.C. § 3583(k); H.R.

REP. NO. 108-66 (2003) (conf. rep.)).