In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2484

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICHOLAS GRIGG,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 CR 276—J.P. Stadtmueller, Judge.

____________

ARGUED JANUARY 24, 2006—DECIDED MARCH 24, 2006

____________

Before RIPPLE, ROVNER and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. In February 2004, Nicholas Grigg

was indicted on one count of possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B). In accordance with a

plea agreement, he pleaded guilty and was sentenced to

37 months’ imprisonment and two years’ supervised

release. Mr. Grigg now challenges his sentence. He contends

that the district court did not understand that it had the

authority, post-Booker, to depart from the sentencing range

recommended by the Sentencing Guidelines. For the reasons

set forth in the following opinion, while retaining jurisdic-
2 No. 05-2484

tion, we remand the case to the district court for proceedings consistent with this opinion.

I

BACKGROUND

On December 9, 2003, a grand jury sitting in the Eastern

District of Wisconsin returned a one-count indictment,

charging Mr. Grigg with possession of computer video and

image files depicting minors engaged in sexually explicit

activity. See 18 U.S.C. § 2252(a)(4)(B). Mr. Grigg pleaded

guilty to this charge on February 19, 2004. At the sentencing

hearing, the district court calculated an advisory sentencing

range of 37 to 46 months’ imprisonment, to which the

defendant did not object. Mr. Grigg did, however, call two

witnesses, Dr. George Palermo and his father, Richard

Grigg. Dr. Palermo opined that Mr. Grigg suffered from

various mental problems, including a “bipolar illness.” R.37

at 10. He also testified that Mr. Grigg may have been off his

medication when downloading the child pornography.

Richard Grigg testified about his son’s personal problems,

including a poor work history, suicide attempts, a weight

problem and mental illness. Noting Mr. Grigg’s mental and

personal problems, as well as Booker’s directive that the

Guidelines are no longer mandatory, defense counsel

requested that the court depart from the advisory guidelines

range—although he did not specify what an appropriate

sentence might be.

The district court rejected this request and sentenced

Mr. Grigg to 37 months’ imprisonment and two years’

supervised release. “Congress,” the court explained, “has

seen fit in the PROTECT Act and the Feeney Amendment,

basically, to prohibit departures from Sentencing Guide-
No. 05-2484 3

lines.” Id. at 41. Although the court acknowledged that

Booker and other cases “no longer technically make the

Guidelines mandatory,” id. at 44, it nevertheless explained that the PROTECT Act and the Feeney Amendment “virtually prohibit judges from departing from the

otherwise applicable Sentencing Guidelines,” id. Therefore, in light of this legislation, the court held, it was

“obliged to impose the minimum sentence under the

Guidelines.” Id. at 46.

The Government sought clarification of the court’s

views regarding its discretion to depart from the Guidelines.

The Government asked, “[I]s it the Court’s position today

that it doesn’t believe it can go outside the advisory Guidelines because of the nature of the offense and the cases that

the Court has cited[?]” Id. at 56. The court responded, “No,”

explaining that it was aware of its “authority in appropriate

cases to fashion what [it] believe[s] to be a reasonable

sentence in any case.” Id. at 56-57. It added, however, that

“Congress created the Protect Act” because it is, “in the

vernacular, ‘damn mad’ at judges who were continually

putting people on probation because they had the wherewithal to bring in an expensive psychiatrist and say, ‘This

isn’t going to happen again.’ ” Id. at 56. Mr. Grigg raised no

objections at this time to the sentence imposed by the

district court.

II

DISCUSSION

A. Statutory Background

In 2003, Congress responded to a series of atrocious

and high-profile child abduction and sexual abuse cases
4 No. 05-2484

1 The Feeney Amendment also: (1) eliminated several grounds

for downward departure in child kidnapping and sexual offense

cases; (2) expanded the grounds for appellate reversal of downward departures; (3) limited district courts’ ability to

downwardly depart on remand; (4) prohibited the U.S. Sentencing Commission from creating new downward departure

guidelines for the next two years; and (5) conditioned certain

departures and adjustments on a government motion. See

generally PROTECT Act, Pub. L. No. 108-21, § 401, 117 Stat. 650,

667-76 (2003)(codified as amended, in pertinent part, at 18 U.S.C.

§ 3553(b)(2) (2004)). In addition, the Feeney Amendment

granted appellate courts the authority to review a lower

court’s departure from the Guidelines de novo. See 18 U.S.C.

§ 3742(e). The Supreme Court in United States v. Booker, 543

U.S. 220, 259 (2005), severed and excised this latter provision

from the Act.

by enacting the Prosecutorial Remedies and Other Tools

to End the Exploitation of Children Today Act of 2003

(“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650 (codified as amended, in pertinent part, at 18 U.S.C.

§ 3553(b)(2)(2004)). The PROTECT Act was designed to

strengthen the laws and procedures for detecting, investigating, prosecuting and incarcerating child kidnappers

and sexual offenders, including those who possess child

pornography. Section 401(d)(1) of the Act—named the

“Feeney Amendment” after the provision’s author, Representative Thomas Feeney of Florida—contained a farreaching set of sentencing reforms. In pertinent part, the

provision amended 18 U.S.C. § 3553(b) to restrict the

authority of the district courts to depart from the Sentencing

Guidelines in sexual offense and child pornography cases.1

See PROTECT Act, § 401(b), 117 Stat. at 668-69; 18 U.S.C.

§ 3553(b)(2). This legislation preceded United States v. Booker,

543 U.S. 220 (2005), in which the Supreme Court held that
No. 05-2484 5

the mandatory application of the Sentencing Guidelines

violates the Sixth Amendment. The Court’s holding in

Booker, however, focused only on those portions of the

United States Code that generally govern the application of

the Sentencing Guidelines to crimes. See 18 U.S.C.

§ 3553(b)(1). The Court had no occasion to address whether the sentencing restrictions governed by the Feeney

Amendment also violate the Sixth Amendment. It is that

question to which we now turn.

B. The Continued Vitality of the Feeney Amendment

post-Booker

Mr. Grigg submits that the district court incorrectly

interpreted the Feeney Amendment as cabining the

court’s discretion to impose a non-Guidelines sentence;

to read the Feeney Amendment in such a way, according

to Mr. Grigg, is inconsistent with the Supreme Court’s

holding in Booker. Because Mr. Grigg did not object to the

district court’s application of the Sentencing Guidelines

at his hearing, however, we must review the district

court’s decision only for plain error. United States v. Lafuente,

426 F.3d 894, 899 (7th Cir. 2005). We shall overturn the

judgment of the district court if its error was plain, affected

the defendant’s substantial rights and rose to the level of a

miscarriage of justice. Id.

In Booker, the Supreme Court held that a sentencing

judge’s mandatory application of the Sentencing Guidelines

violates the Sixth Amendment when facts increasing the

sentencing range have been found by the judge, rather than

stipulated to by a defendant or found by a jury beyond a

reasonable doubt. Booker, 543 U.S. at 243-44. As a remedy,

the Court severed and excised 18 U.S.C. § 3553(b)(1), which
6 No. 05-2484

mandated that, in the absence of unusual circumstances, the

district court impose a sentence within the applicable

guidelines range. Booker, 543 U.S. at 245-46. The Court,

however, had no occasion to mention § 3553(b)(2)—the

provision added to the statute by the Feeney Amendment,

which governs the application of the Sentencing Guidelines

to sexual offense crimes. See PROTECT Act, § 401(b), 117

Stat. at 668-69; 18 U.S.C. § 3553(b)(2). We now must confront

the question of whether Booker’s rationale for excising

§ 3553(b)(1) from the statute also extends to § 3553(b)(2).

Although this is a question of first impression for us, the

Second and Tenth Circuits have determined that

§ 3553(b)(2) possesses the same Sixth Amendment defect

as does § 3553(b)(1). See United States v. Selioutsky, 409

F.3d 114, 117 (2d Cir. 2005) (“There is no principled basis for

distinguishing subsection 3553(b)(1) from 3553(b)(2) with

respect to the rationale of Booker.”); United States v. Yazzie,

407 F.3d 1139, 1146 (10th Cir. 2005) (“[W]e hold that treating

the Guidelines as mandatory—regardless of whether the

defendant is sentenced under § 3553(b)(1) or § 3553(b)(2)—is

error.”); United States v. Sharpley, 399 F.3d 123, 127 n.3 (2d

Cir. 2005) (“[W]e see no unique feature of Guidelines

sentences for child crimes and sexual offenses that would

prevent them from violating the Sixth Amendment in the

same manner as Guidelines sentences for other crimes.”).

We concur with our sister circuits. According to

§ 3553(b)(2), when sentencing defendants for crimes involving children and sexual offenses, the district court “shall

impose a sentence” within the calculated guidelines range,

unless it finds mitigating circumstances that have “been

affirmatively and specifically identified as a permissible

ground of downward departure in the sentencing guidelines

or policy statements issued under section 994(a) of title 28.”
No. 05-2484 7

See 18 U.S.C. § 3553(b)(2)(ii); see also id. § 3553(b)(2)(iii). This

language mirrors that of § 3553(b)(1); the sole difference

between the two subsections is that § 3553(b)(2) restricts

stringently the mitigating circumstances that qualify for a

downward departure, whereas § 3553(b)(1) defines those

circumstances more broadly. Compare id. § 3553(b)(1)

(“Except as provided in paragraph (2), the court shall impose

a sentence of the kind, and within the range, referred to in

subsection (a)(4) . . . .”) (emphasis added), with id.

§ 3553(b)(2) (“In determining whether a circumstance

was adequately taken into consideration, the court shall

consider only the sentencing guidelines, policy statements, and

official commentary of the Sentencing Commission, together

with any amendments thereto by act of Congress.”) (emphasis added).

In reviewing § 3553(b)(2) in light of Booker, we conclude that it violates the Sixth Amendment by mandating a sentence within the range recommended by the

Sentencing Guidelines. It was precisely this requirement

that the Supreme Court found constitutionally objectionable in Booker. Given the similarities between the two

subsections, we believe the same objections voiced by

that Court also apply to § 3553(b)(2). In reaching this

conclusion, we join the Second and Tenth Circuits and

hold that § 3553(b)(2) is subject to the same remedy that

Booker imposes: “excising and severing” the mandatory

language and replacing it with an “advisory Guidelines

regime” under which sentences are reviewed for reasonableness. See Selioutsky, 409 F.3d at 117; Yazzie, 407 F.3d at 1145-

46; Sharpley, 399 F.3d at 127 n.3; see also Booker, 543 U.S.

at 258-63.

We are mindful of Congress’ view, expressed in the

PROTECT Act, regarding prosecuting and sentencing
8 No. 05-2484

2 See, e.g., PROTECT Act, § 501(12), 117 Stat. at 678 (presenting

congressional findings) (“Child pornography results from the

abuse of real children by sex offenders; the production of child

pornography is a byproduct of, and not the primary reason

for, the sexual abuse of children.”); 149 Cong. Rec. S5113,

S5124 (2003) (statement of Sen. Hatch) (“We believe that in

these child molestation cases, pornography cases, prostitution

cases, child rape cases, and kidnapping cases the sentencing

guidelines ought to be followed.”).

child kidnappers and sexual offenders. Although we

must hold today that § 3553(b)(2) cannot constrain the

discretion of a district court to impose a sentence outside the

range recommended by the Sentencing Guidelines, we

nevertheless believe that district courts, in the course of

selecting an appropriate sentence, ought to give respectful

attention to Congress’ view that crimes such as Mr. Grigg’s

are serious offenses deserving serious sanctions.2

C. The District Court’s Application of the Sentencing

Guidelines

With § 3553(b)(2) excised, the applicable sentencing

regime for Mr. Grigg is the advisory Guidelines approach

set forth by the Supreme Court in Booker. See 543 U.S. at 246-

47; see also United States v. Woodard, 408 F.3d 396, 399 (7th

Cir. 2005). In this case, the district court’s statements regarding its understanding as to whether the Feeney

Amendment constrained its discretion to sentence Mr. Grigg

below the range recommended by the Sentencing Guidelines may be inconsistent. For instance, although the court

stated at the hearing’s outset that it would “consult” the

Sentencing Guidelines when fashioning a sentence under 18

U.S.C. § 3553(a)(2), as required by “Blakely, Booker, Fanfan
No. 05-2484 9

and Paladino,” R.37 at 5, it later stated that “Congress has

seen fit in the Protect Act and the Feeney Amendment,

basically, to prohibit departures from Sentencing Guidelines,” id. at 41. As the hearing progressed, the court again

seemed to indicate that the Feeney Amendment’s provisions

are mandatory, noting that they “virtually prohibit judges

from departing from the otherwise applicable Sentencing

Guidelines.” Id. at 44. Later, the court indicated in a more

explicit manner that it considered itself bound to apply the

Guidelines:

[A]gainst the entire backdrop of what underlies

what Congress had in mind when child pornography

was criminalized, and, more to the point, what Congress had in mind last year when they adopted the

Child Protect Act and the Feeney Amendment,

which basically precludes judges [from] departing

from the Sentencing Guidelines in cases of this type, I’m

obliged to impose the minimum sentence under the Guidelines.

Id. at 46 (emphasis added).

Although the court acknowledged elsewhere that the

Guidelines are “advisory,” see, e.g., id. at 5, these statements are nonetheless unclear given that the court also

asserted that the Feeney Amendment prohibits discretionary sentences outside of the guidelines range. For example, at the close of the hearing, the Government asked the

district court, “[I]s it the Court’s position today that

it doesn’t believe it can go outside the advisory Guidelines[?]” Id. at 56. The court replied, “No,” but then remarked:

The Court is very much aware—Congress has spoken.

And this is [a] very unique area of the law. Congress

created the Protect Act.
10 No. 05-2484

3 At oral argument, the Government stated that it does not

oppose remanding the case to permit the district court to

clarify its position.

And for the reasons that are—I articulated, Congress

is, in the vernacular, “damn mad” at judges who

were continually putting people on probation because they had the wherewithal to bring in an expensive

psychiatrist and say, “This isn’t going to happen again.”

Id. at 56.

Viewing the record in its entirety, we must conclude

that the district court may have plainly erred in treating

the Guidelines as binding authority. Following the procedure established in United States v. Paladino, 401 F.3d

471, 483-84 (7th Cir. 2005), a limited remand is in order.3

 The

district court should state whether it understood

that, notwithstanding the mandatory language of the

Feeney Amendment, it was not bound by the Guidelines,

and if it did not, whether, in light of our opinion in this case,

it wishes to resentence Mr. Grigg.

Conclusion

We order a limited remand with respect to Mr. Grigg’s

sentence while retaining jurisdiction in accordance with the

procedures set forth in Paladino.

REMANDED
No. 05-2484 11

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-24-06