United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1810MN

_____________ United States of America, * * Appellant, * Appeal from the United States

* District Court for the District of
v. * Minnesota. * Jon Paul Wind, * * Appellee. *

_____________ Submitted: October 21, 1997

Filed: November 17, 1997

_____________ Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ FAGG, Circuit Judge. During an undercover federal investigation of child pornography trafficking o n computer online services, Jon Paul Wind sent an undercover ag ent computer image files of children engag ed in sexually explicit conduct. After further investigation, including a search of Wind’s home and computer f iles, the Government charged Wind with three
cou nts of distribution of child pornography and two counts of possession of chil d pornography. Wind pleaded guilty to one count of possession of child pornography in violatio n of 18 U.S.C. § 2252(a)(4) (1994). Although application of the U.S

. Sentencing Guidelines M anual (U.S.S.G. or Guidelines) resulted in a sentencing range of twelve to eighteen months, the district court departed downward under U.S.S.G. §-2-

5K2.0. Conclud ing Wind’s criminal conduct fell outside the heartland of typical child pornograp hy cases, the district court imposed a sentence of eight months o f im prisonment

and five years of supervised release. In addition, the court fined Win d $20,000 and ordered forfeiture of his computer equipment. The Government appeals Wind’s eight-month sentence, asserting the district court abused its discretion i n departing f

rom the Guidelines range. We vacate Wind’s sentence and remand fo r resentencing.
District courts can depart dow nward from the applicable Guidelines range when they find a “‘mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the [G]uidelines.’ ” U.S.S.G. § 5K2.0 (1 995) (quoting 18 U.S.C. § 3553(b)). Each Guideline carves out a hea rtland--a

set of typical cases embodying the conduct that the Guideline describes

. See Koon v. Un ited States , 116 S. Ct. 2035, 2044 (1996). The Guidelines do no t adequately take atypical cases into consideration, however. See id. “‘When a cour t finds an atypical case, one to which a particular [G]uideli ne linguistically applies but [in which] conduct significantly differs from the norm, the court may consider whether a departure is warranted.’” Id. (quoting U.S.S.G. ch. 1, pt. A, intro. commentary 4(b) (1995)). In other words, “[d]eparture is appropriate ‘only in the extrao rdinary case--the case that falls outside the heartland for the offense of the conviction.’” United States v. Sharma , 85 F.3d 363, 364 (8th Cir. 1996) (quoting United States v. McFarlane , 64 F.3d 1235, 1239 (8th Cir. 1995)). With the exception of certain specified factors that ca n
never be bases for departure, the Sentencing Commission has not limited the kinds of factors that may make a case atypical and provide potential grounds for departure. See Koon , 116 S. Ct. at 2044-45. Nevertheless, the Commission lends courts som e guid ance by identifying certain factors as either encouraged or discouraged grounds

. See id. at 2045.

In ke eping with an agreement between Wind and the Government, the distric t court applied U.S .S.G. § 2G2.4, which deals with possession of child pornography, to-3-

determi ne Wind’s Guidelines sentence. In deciding Wind’s case was atypical, th e district court found “most persuasive the results of various psychological, psychiatric, and othe r Court-ordered tests which . . . reveal that [Wind] is not a typical chil d predator” or pedophile. Reliance on this ground was erroneous. The Child Protection Act of 1984, 18 U.S.C. §§ 2251-2260 (1994), sp ecifies several crimes involving sexual exploitation of

children. The corresponding Guidelines, U.S.S.G. §§ 2G2.1-.5, assign different offense levels for the different o ffenses and provide enhancements for specific criminal conduct. Because the Guidelin es take into account the gravity of a possession offense as compa

red with more serious forms of exploitation, Wind is not entitled to a downward dep arture on the ground that he did not commit, or have the tendency t o commit, a worse crime. See United States v. Barton , 76 F.3d 499, 503 (2d Cir. 1996); UnitedStates v. Deane , 914 F.2d 11, 13-14 (1st Cir. 1990); United States v. Studley , 907 F.2d 254, 258 (1st Cir . 1990). Like other courts, we are unwilling to assume that typ ical possessors of child pornography are also pedophiles. See Barton , 76 F.3d a t 503. Although we respect the district court’s “substan tial experience dealing with child predators and se xual deviants,” the district court should have compared Wind to other persons who merely possessed child pornography, rather than child pornograph ers guilty of other acts. In sum, Wind’s lack of sexual tendencies toward s children does not make his possession of child pornography significantly differe nt from the normal case of child pornography possession.

The district court also believed the federal investigators’ discovery of onl y comput er files containing images of child pornography, as compared to the variou s items listed in the search warrant and supporting affidavit, suggested “this is not your typic al child pornography case.” The district court cited no authority for using th e warrant to define the heartlan d of child pornography possession. We reject the district court’s novel view. Sentencing courts must determine whether a defendant’s conduct diffe rs significantly from the norm by comparing the defendant’s case to othe r Guidelines cases. See Koon , 116 S. Ct. at 2047. Here, the warrant simply sought to satisfy the Fourth Amendment’s specificity requirement by identifying all items that-4-

might be found and seized. See United States v. Saunders , 957 F.2d 1488, 1491 (8th Cir . 1992). We doubt that every item is found in most cases. Besides, Wind pleaded guilty to violating a statute prohibiting the possession of three or more items of chil d por nography, see 18 U.S.C. § 2252(a)(4), and to possessing fifteen items. Th e appli cable Guideline provides for a two-level enhancement if the offense involve s possessi on of ten or more items of child pornography. See U.S.S.G. § 2G2.4(b)(2). Thus, the amount of child pornography possessed by Wind cannot be deemed less than typical for cases to which section 2G2.4 applies.

The district court relied least on Wind’s lack of a criminal record and otherwise exemplary lifestyle as placing his case outside of the heartland of typical chil d pornography cas es. The court noted Wind had never been convicted of a crime, has a solid f amily, educational, and employment background, and “is inherently an honest , thoughtful, and compassionate person.” Given these circumstances, the district cour t believed Wind’s criminal conduct was aberrant behavior in general. See United States v. Kalb , 105 F.3d 426, 429 (8th Cir. 1997). We reject the district court’s reasons for concluding Wind’s criminal behavior was aberrant justifying a departure. Because the Guidelines adequately account for the absence of a criminal record, the defendant’s lack of a crimi nal history cannot remove a case from the heartland, see United States v

. Planco , 53 F.3d 893, 898 (8th Cir. 1995), cert. denied , 116 S. Ct. 2555 (1996), or serve
as grou nds for departure below the applicable Guidelines range, see United States v

. Franklin , 926 F.2d 734, 737 (8th Cir. 1991). Education, employment, and family ties
are discouraged factors that warrant departure only in extraordinary cases, see Koon , 116 S. Ct. at 2045, and the district court did not specify anything extraordinary about Wi nd’s case. Last, although the district court can consider the defendant’s characte r in maki ng a departure decision, see U.S.S.G. § 1B1.4, we doubt the unmentione d factors of honesty, thoughtfulness, and compassion are enough in themselves to tak e Wind’s case outside the heartland. See Koon , 116 S. Ct. at 2045.-5-

We vacate Wind’s eight-month sentence and remand for resentencing consistent with this opinion.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.