United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1810MN

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United States of America, *

*

Appellant, * Appeal from the United States

* District Court for the District of

v. * Minnesota.

*

Jon Paul Wind, *

*

Appellee. *

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 Submitted: October 21, 1997

Filed: November 17, 1997

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

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FAGG, Circuit Judge.

During an undercover federal investigation of child pornography trafficking on

computer online services, Jon Paul Wind sent an undercover agent computer image files

of children engaged in sexually explicit conduct. After further investigation, including

a search of Wind’s home and computer files, the Government charged Wind with three

counts of distribution of child pornography and two counts of possession of child

pornography. Wind pleaded guilty to one count of possession of child pornography in

violation of 18 U.S.C. § 2252(a)(4) (1994). Although application of the U.S.

Sentencing Guidelines Manual (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. §
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5K2.0. Concluding Wind’s criminal conduct fell outside the heartland of typical child

pornography cases, the district court imposed a sentence of eight months of

imprisonment and five years of supervised release. In addition, the court fined Wind

$20,000 and ordered forfeiture of his computer equipment. The Government appeals

Wind’s eight-month sentence, asserting the district court abused its discretion in

departing from the Guidelines range. We vacate Wind’s sentence and remand for

resentencing.

District courts can depart downward 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 (1995) (quoting 18 U.S.C. § 3553(b)). Each Guideline carves out a

heartland--a set of typical cases embodying the conduct that the Guideline describes.

See Koon v. United States, 116 S. Ct. 2035, 2044 (1996). The Guidelines do not

adequately take atypical cases into consideration, however. See id. “‘When a court

finds an atypical case, one to which a particular [G]uideline 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 extraordinary 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 can

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 some

guidance by identifying certain factors as either encouraged or discouraged grounds.

See id. at 2045. 

In keeping with an agreement between Wind and the Government, the district

court applied U.S.S.G. § 2G2.4, which deals with possession of child pornography, to
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determine Wind’s Guidelines sentence. In deciding Wind’s case was atypical, the

district court found “most persuasive the results of various psychological, psychiatric,

and other Court-ordered tests which . . . reveal that [Wind] is not a typical child

predator” or pedophile. Reliance on this ground was erroneous. The Child Protection

Act of 1984, 18 U.S.C. §§ 2251-2260 (1994), specifies several crimes involving sexual

exploitation of children. The corresponding Guidelines, U.S.S.G. §§ 2G2.1-.5, assign

different offense levels for the different offenses and provide enhancements for specific

criminal conduct. Because the Guidelines take into account the gravity of a possession

offense as compared with more serious forms of exploitation, Wind is not entitled to a

downward departure on the ground that he did not commit, or have the tendency to

commit, a worse crime. See United States v. Barton, 76 F.3d 499, 503 (2d Cir. 1996);

United States 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

typical possessors of child pornography are also pedophiles. See Barton, 76 F.3d at

503. Although we respect the district court’s “substantial experience dealing with child

predators and sexual deviants,” the district court should have compared Wind to other

persons who merely possessed child pornography, rather than child pornographers guilty

of other acts. In sum, Wind’s lack of sexual tendencies towards children does not make

his possession of child pornography significantly different from the normal case of child

pornography possession. 

The district court also believed the federal investigators’ discovery of only

computer files containing images of child pornography, as compared to the various

items listed in the search warrant and supporting affidavit, suggested “this is not your

typical child pornography case.” The district court cited no authority for using the

warrant to define the heartland of child pornography possession. We reject the district

court’s novel view. Sentencing courts must determine whether a defendant’s conduct

differs significantly from the norm by comparing the defendant’s case to other

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
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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 child

pornography, see 18 U.S.C. § 2252(a)(4), and to possessing fifteen items. The

applicable Guideline provides for a two-level enhancement if the offense involves

possession 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 child

pornography cases. The court noted Wind had never been convicted of a crime, has a

solid family, educational, and employment background, and “is inherently an honest,

thoughtful, and compassionate person.” Given these circumstances, the district court

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 criminal 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 grounds 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

Wind’s case. Last, although the district court can consider the defendant’s character

in making a departure decision, see U.S.S.G. § 1B1.4, we doubt the unmentioned

factors of honesty, thoughtfulness, and compassion are enough in themselves to take

Wind’s case outside the heartland. See Koon, 116 S. Ct. at 2045. 
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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.