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. e du/thir dc ir c uit_1997/211Filed August 28, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 5719

UNITED STATES OF AMERICA

v.

KENNETH MCBROOM,

Appellant

Appeal from the United States District Court

for the District of New Jersey

(D.C. C rim. No. 95

- cr

- 00502)

Argued

June 12, 1997

Before: MANSMANN, NYGAARD and ROSENN,

Circuit Judges.

(Filed August 28, 1997)

Faith S. Hochberg, Esquire

Kevin McNulty, Esquire

Barry S. Pollack, Esquire

(ARGUED)

Office of the United States Attorney

970 Broad Street

Room 502

Newark, New Jersey 07102

COUNSEL FOR APPELLEE

Lawrence S. Lustberg, Esquire

(ARGUED)

Mark A. Berman, Esquire

Cr ummy, Del Deo, Dolan,

Griffinger & Vecchione

One Riverfront Plaza

Newark, New Jersey 07102

- 5497

Of Counsel:

Matthew P. Boylan, Esquire

Lowenstein, Sandler, Kohl,Fisher & Boylan

65 Livin gston Avenue

Roseland, New Jersey 07068

COUNSEL FOR APPELLANT

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Kenneth McBroom pled guilty to and was convicted of

one count of possession of child pornography in violation of

18 U. S.C. S 2252(a)(4). McBroom moved the district court

for a downward departure pursuant to U.S. Sentencing

Guideline S 5K2.13 (policy statement) on the ground that he

suffered from a significantly reduced mental capacity.

Finding that McBroom was able, a t the time of the offense,

to absorb information in the usual way and to exercise the

power of reason, the district court concluded that McBroom

was ineligible for a downward departure.

We believe that the district court could have considered

the po ssibility that McBroom suffered from a volitional

impairment which prevented him from controlling his

behavior or conforming it to the law. We will, therefore,

vacate McBroom's sentence and remand for resentencing so

that the district court may conside r this possibility in the

first instance.

2

I.

As a child, McBroom suffered years of sexual abuse at

the hands of his father. As an adult, McBroom abused

alcohol and drugs, and he viewed vast amounts of

porn ography. McBroom contends that the abuse he

endured as a child caused him to suffer from a significantly

reduced mental capacity such that he felt compelled to

possess child pornography he downloaded from the Internet

-- despite his ability to process information, to reason, and

to understand the difference between right and wrong.

McBroom detailed his abusive childhood in an

uncontradicted affidavit submitted to the district court:

All outward appearances of my family were positive

but deceiving. . . .

I do not know when the sexual abuse began. I have

vague recollections of being a young boy and having

him bathe me, and sensing his spending what seemedto be an inordinate amount of time washing my penis.

I suppose I was four or five at the time.

I have clear memories of the abuse from about the

age of ten onward. . . . Two or three times a week, after

we had gone to bed, my father . . . would come to my

bed , sit on the edge, and begin rubbing my back or

chest. He would soon find his way to my penis. He

would pull my pajamas off, fondle me for a while, and

then start performing oral sex. On occasion he would

take my hand and pu t it on his penis and tell me to

rub it. . . .

The sexual abuse did not occur exclusively in the

evenings. It also took place on occasions when my

father and I happened to be alone in the house during

the day. It a lso occurred on a regular basis when my

father would take me on one of his frequent business

trips. . . .

There were also a few instances in which my father

took Polaroid pictures of me naked. . . .

This routine continued for about five years, until I

was 15 years old.

3

McBroom Aff., PP 3

- 9.

While attending college in New Orleans, McBroom began

to "develop an interest in pornography," and he would "go

to peep shows and pornography shops in downtown New

Orleans." Id. at P 15. McBroom also began to drink

excessively. After graduation, McBroom attended law school

and was married. While in law school, McBroom drank

every day, and he "developed an affinity for cocaine." He

also continued to "visit" peep shows and pornography

shops. Id. at P 18.

During McBroom's first year in law school, he was asked

to testify at his father's trial on charges that his father

sexually molested a neighbor's son. Because he

remembered seeing his father with the boy on many

occasions, McBroom firmly believed that his father was

guilty. Nonetheless, McBroom testified that he had a

healthy relationship with his father, and he did not reveal

the sexual abuse he had endured. McBroom's father was

acquitted. McBroom's experience on the witness stand filled

him with "shame and disgust," and he continues to express

concern and remorse for the alleged victim of his father's

abuse. Id. at PP 19

- 20.After he graduated from law school, McBroom and his

wife moved to New Jersey, where they had a son. McBroom

clerked for a judge for one year and began working as an

associate at a law firm in Roseland, New Jersey. At least

once per week, McBroom stopped at peep shows in Newark

on his way home from work. McBroom developed an after

work routine whereby he would purchase and consume a

six

- pack of beer and go to the peep shows before returning

home. Id. at PP 21

- 23.

McBroom began using cocaine, and he was soon

spending in ex cess of $300 per week on drugs. Without his

wife's knowledge, McBroom acquired several credit cards to

fund his cocaine and alcohol purchases. McBroom was

unable to repay the balances of these credit cards, however,

and three banks have obtained judgme nts against him. Id.

at P 24.

McBroom and his wife had a second son. In 1983,

McBroom's wife discovered cocaine and receipts from credit

4

card cash advances in McBroom's briefcase. The McBrooms

began seeing a therapist. In 1984, McBroom disclosed to

the therapist that his father had sexually abused him. This

was the first time McBroom disclosed the abuse he had

suffered. That day, McBroom told his wife about the abuse.

McBroom did not reveal his "fascinat ion" with peep shows

and pornography, however, and he continued to go to peep

shows, view pornography, and abuse alcohol and cocaine

throughout his therapy. Id. at PP 29

- 31.

Although the Roseland law firm was "very pleased" with

the quality of McBro om's work, McBroom left the firm and

began working for a firm in Jersey City. During this time,

McBroom's wife asked him to leave, and the McBrooms

separated. McBroom subsequently moved in with another

woman. He then left the Jersey City law firm and e ntered

an inpatient alcohol and drug treatment program. Id. at

PP 32

- 33.

McBroom remained sober for five months, but he began

drinking again, and soon he "was back to where [he] had

been." McBroom's wife divorced him. During this time,

McBroom was able to work on a per diem basis for other

attorneys. McBroom "never received any complaints from

any of the attorneys for whom [he] did this work, and in

fact was being asked to handle an increasingly large volume

and variety of matters including clos ings, motions,

depositions, brief

- writing and actual trial work." Id. at P 34.In 1989, McBroom began working for a law firm in

Englewood Cliffs, New Jersey. Soon thereafter, McBroom

admitted himself into a rehabilitation program. That

program was u nsuccessful, however, and McBroom began

to use cocaine and alcohol once again. Throughout this

period, McBroom continued to visit peep shows and

pornography stores in Newark; he also began to visit

similar facilities in New York City. Id. at P 35.

M cBroom's father died in 1990. Prior to his death,

McBroom's father apologized to McBroom "for what he had

done." McBroom's father then revealed to McBroom's

mother what had occurred, and he disclosed that he had

also been sexually abused as a child. Id . at P 36.

5

In early 1991, McBroom moved into his own apartment.

McBroom began to consume "massive amounts of alcohol

and cocaine." In addition to continued visits to the peep

shows, McBroom began purchasing "a ll sorts of

pornography magazines." He also "developed an interest in

phone sex," and his telephone bill for one two

- month period

exceeded $650, a bill McBroom paid with money he

borrowed from his mother. Id. at P 38.

McBroom entered his third rehab ilitation program in

1991. Although McBroom began drinking alcohol shortly

after leaving this program, he has not used cocaine since

that time. McBroom remained with the Englewood Cliffs law

firm for three years. McBroom "handled a case load of

approx imately 65 active litigation files [and] had

approximately seven or eight completed jury trials during

this period." Id. at 39

- 42.

McBroom left the Englewood Cliffs firm in 1992,

"determined to make it on [his] own" as a sole practitioner.

Unfortuna tely, with no one to account to either at home or

at work, McBroom "drank [him]self into oblivion." McBroom

also began to engage in self

- mutilation. He would often

place lit cigarettes on the back of his hand, and on one

occasion he cut through the ski n and muscle of his left

forearm and right hand with a razor blade. In addition,

McBroom was hospitalized on six separate occasions with

acute alcohol

- induced pancreatitis. Id. at 43

- 46.

McBroom entered his fourth rehabilitation program in

1993. McB room got drunk on the day after his release from

that program. On December 28, 1993, a female

acquaintance took McBroom to a meeting of Alcoholics

Anonymous. McBroom has been sober since that firstmeeting; McBroom attends at least one Alcoholics

Anon ymous meeting every day, and he also attends many

"Lawyers Concerned for Lawyers" meetings. Id. at PP 47

- 49.

McBroom began a romantic relationship with the woman

who brought McBroom to the Alcoholics Anonymous

meeting. In 1994, McBroom gave up his ap artment and

moved in with the woman. At the time of his move,

McBroom threw away all of the pornography magazines

which he had accumulated. McBroom "no longer had the

6

imperious urge to visit peep shows or to s tare for hours at

pornography magazines." Id. at P 50.

In late 1994, McBroom purchased a personal computer

for the apartment to be used in his work as a sole

practitioner. McBroom "soon discovered the Internet," and

in a short time he "discovered th e wealth of pornography

available on the Internet." "Amaze[d] at the volume of

available material," McBroom discovered "pornography of

types [he] had never before seen . . . includ[ing] child

pornography, bestiality, masochism, bondage and every

imagi nable sexual fetish." Id. at PP 51

- 53.

For McBroom, "[t]he amazement turned to fascination,

and ultimately to obsession." According to McBroom,

"[e]very time I turned the computer on there were hundreds

of new pictures depicting all sorts of pornogra phy. . . .

When I wasn't sitting at the computer looking at this stuff,

I was thinking about looking at it. I thought nothing of

spending three consecutive hours at the computer at a

single sitting." Approximately twenty

- five percent of the

images McB room received constituted child pornography.

Id. at PP 54

- 56.

About one month before the Federal Bureau of

Investigation executed the search warrant that led to the

sentence that is the subject of this appeal, McBroom

learned that the Bureau was inv estigating his activity.

Despite this awareness, McBroom continued to view this

material and to store it on his computer's hard drive. Id. at

PP 57

- 58.

II.

A.

On September 22, 1995, a federal grand jury sitting in

Newark, New Jersey, returned a three

- count indictment

charging McBroom with one count of knowinglytransporting child pornography in violation of 18 U.S.C.

S 2252(a)(1), one count of knowingly receiving child

pornography in violation of 18 U.S.C. S 2252(a)(2), and one

count of kn owingly possessing child pornography in

7

violation of 18 U.S.C. S 2252(a)(4). On April 22, 1996,

pursuant to a written plea agreement, McBroom pled guilty

to count three.1

The district court had jurisdiction pursuant to 18 U.S.C.

S 3231. At sentencing, the district court noted that under

the Sentencing Guidelines, the crime of possession of

materials depicting a minor engaged in sexually explicit

conduct has a base offense level of thirteen. U.S.

Sentenci ng Guidelines Manual S 2G2.4(a) (1995).2 Because

the material involved a prepubescent minor or a minor

under the age of twelve, section 2G2.4(b)(1) provided for an

increase of two levels.3 Pursuant to section 3E1.1(a), the

district court granted a two

- point downward adjustment for

acceptance of responsibility. The total offense level was

therefore thirteen.

The district court found that McBroom had a total of two

criminal history points based on three separate convictions

for driving while intoxi cated. U.S.S.G. S 4A1.1(c) (one of the

_________________________________________________________________

1. Following entry of the plea, McBroom gave notice to the New Jersey

Office of Attorney Ethics as required by New Jersey Court Rules.

McBroom ag reed to surrender temporarily his license to practice law

pending resolution of his fitness to practice law by the New Jersey

Supreme Court, and he obtained non

- legal work for a newspaper.

McBroom Aff., at PP 73

- 74.

2. Effective November 1, 1996, thi s crime has a base offense level of

fifteen. See U.S.S.G. S 2G2.4(a) (rev. supp. May 1, 1997).

3. The presentence report recommended an additional two

- point upward

adjustment pursuant to section 2G2.4(b)(2), but the United States did

not seek this ad justment at sentencing and the district court accepted

McBroom's objection to the applicability of that section.

Section 2G2.4(b)(2) applies when the offense involves possession of ten

or more books, magazines, periodicals, films, videotapes, or other items

containing a visual depiction involving the sexual exploitation of a

minor.

McBroom possessed ten to twenty files on his computer's hard drive, and

each file contained one image of child pornography. Finding that section

2G2.4(b)(2) did not prov ide guidance on how to count images in

computer files on a single computer hard drive, the district courtdeclined to enhance McBroom's offense level pursuant to that section.

Effective November 1, 1996, an increase of two levels is provided where

the defendant's possession of the material resulted from the defendant's

use of a computer. U.S.S.G. S 2G2.4(b)(3) (rev. supp. May 1, 1997).

8

convictions was not counted pursuant to U.S.S.G.

S 4A1.2(e)). McBroom's c riminal history category was

therefore II. U.S.S.G. Ch. 5, Pt. A. For a total offense level

of thirteen and a criminal history category of II, the

Sentencing Guidelines provide for a sentence offifteen to

twenty

- one months in prison. Id.

B.

1.

A district court may depart from the sentence established

by the applicable guideline if the court finds that there

exists "an aggravating or mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines

that should result in a sentence different from that

described." 18 U.S.C. S 3553(b); U.S.S.G.S 5K2.0, p.s. In

determining whether a circumstance was adequately taken

into consideration, the sentencing court sha ll consider

"only the sentencing guidelines, policy statements, and

official commentary of the Sentencing Commission." 18

U.S.C. S 3553(b).

In subpart 5K2 of the guidelines, the Commission

identifies some of the factors that it did not take into

ac count fully in formulating the guidelines. U.S.S.G.

S 5K2.0, p.s. Some of these factors recognize that an

upward departure may be warranted in certain

circumstances, see, e.g., U.S.S.G. S 5K2.7, p.s. (upward

departure may be warranted where the defenda nt's conduct

resulted in the significant disruption of a governmental

function), while other factors recognize that a downward

departure may sometimes be justified, see, e.g., U.S.S.G.

S 5K2.10, p.s. (downward departure may be warranted

where the vict im's wrongful conduct contributed

significantly to provoking the offense behavior). The factors

contained in subpart 5K2 are the so

- called "encouraged

factors." If a potential departure factor is an encouraged

factor, the sentencing court is authorized to depart if the

9applicable guideline does not already take it into account.

Koon v. United States, 116 S.Ct. 2035, 2045 (1996).4

In contrast, some characteristics are "not ordinarily

relevant to the determ ination of whether a sentence should

be outside the applicable guideline range." U.S.S.G. Ch. 5,

Pt. H, intro. comment. These so

- called "discouraged factors"

include age, education and vocational skills, and physical

condition. U.S.S.G. Ch. 5, Pt. H. I f a potential departure

factor is a discouraged factor, or an encouraged factor

already taken into account by the applicable guideline, the

court should depart "only if the factor is present to an

exceptional degree or in some other way makes the case

different from the ordinary case where the factor is

present." Koon, 116 S.Ct. at 2045. Finally, certain

"forbidden factors" are not relevant in the determination of

a sentence and may not be considered by the sentencing

court. Id. These factors inclu de race, sex, and national

origin. U.S.S.G. S 5H1.10, p.s.5

With limited exceptions, mental and emotional conditions

are discouraged factors; that is, they are not ordinarily

relevant in determining whether a departure is warranted.

U.S.S.G. S 5H1. 3, p.s. The exceptions to this general rule

are contained in the encouraged factors of subpart 5K2 of

the guidelines. Of particular relevance to this case, section

5K2.13 provides:

_________________________________________________________________

4. An encouraged factor is not an appropriate basis for departure when

the applicable guideline has taken the encouraged factor into account.

For example, an upward departure for disruption of a governmental

function, U.S.S.G. S 5K2.7, p.s., "ordinarily w ould not be justified when

the offense of conviction is an offense such as bribery or obstruction of

justice; in such cases interference with a governmental function is

inherent in the offense." Id. Where the applicable guidelines do take the

encourage d factor into account, departure is warranted "only if the factor

is present to a degree substantially in excess of that which ordinarily is

involved in the offense." U.S.S.G. S 5K2.0, p.s.

5. If a proposed departure factor is not mentioned in the gui delines, the

sentencing court "must, taking into consideration the structure and

theory of both relevant individual guidelines and the guidelines taken as

a whole, determine whether the circumstances presented are sufficient to

remove the case from the heartland of the applicable guideline." United

States v. Sally, 116 F.3d 76, 80 (3d Cir. 1997) (quoting United States v.

Brock, 108 F.3d 31, 35 (4th Cir. 1997)).

10

If the defendant committed a non

- violen t offense while

suffering from significantly reduced mental capacitynot resulting from voluntary use of drugs or other

intoxicants, a lower sentence may be warranted to

reflect the extent to which reduced mental capacity

contributed to the commission of the offense, provided

that the defendant's criminal history does not indicate

a need for incarceration to protect the public.

U.S.S.G. S 5K2.13, p.s. Section 5K2.13 is an encouraged

departure. Unit ed States v. Askari, No. 95

- 1662, 1997 WL

92051, *5 (3d Cir. March 5, 1997) (Becker, J., concurring),

reh'g en banc granted, opinion vacated, 1997 WL 92051, *6

(March 27, 1997); see also United States v. Rivera, 994 F.2d

942, 948 (1st Cir. 1993) ("The individual guidelines do not

take into account, for example, of an offender's`diminished

capacity,' which circumstance, in the Commission's view

would normally warrant a downward departure."). Thus,

while mental and emotional conditions are not ordinar ily

relevant in determining whether a downward departure is

warranted, one suffering from a "significantly reduced

mental capacity" may be eligible for such a departure.

2.

McBroom moved the district court for a downward

departure based on, among other things, his claim

pursuant to section 5K2.13 that he suffered from a

significantly reduced mental capacity due to the sexual

abuse he had endured as a child, and that this reduced

capacity compelled him to possess child pornography.6

__________ _______________________________________________________

6. The encouraged factor of section 5K2.13 is not taken into account by

the guideline provisions applicable to this case, and so the district

court

was authorized to depart if it found that McBro om satisfied the

requirements of section 5K2.13. Koon, 116 S.Ct. at 2045.

McBroom also sought a downward departure on the grounds that (1)

his criminal history category of two overstated the seriousness of his

past criminal conduct and the likelihood that he would commit other

crimes; and (2) mitigating circumstances existed due to recently renewed

family ties. The district court rejected both of these grounds for

McBroom's request, and McBroom does not contest these rulings on

appeal.

11

Before a district court may exercise its discretion to

depart pursuant to section 5K2.13, a defendant must

prove, among other things, that (1) the offense is"non

violent" and (2) a significantly reduced mental capacity

contributed to commission of the offense. United States v.Rosen, 896 F.2d 789, 791 (3d Cir. 1990); United States v.

McDowell, 888 F.2d 285, 291 (3d Cir. 1989) (defendant

usually bears burden of persuasion when attempting to

justify downward departur e). The defendant must prove

these elements by a preponderance of the evidence. See

McDowell, 888 F.2d at 291.

The district court concluded without discussion that "it is

clear that [McBroom] committed a crime that is non

violent." Slip. Op. at 7

- 8 . The court then turned to the issue

of whether McBroom suffered from a significantly reduced

mental capacity which contributed to the commission of the

offense.

In support of his motion, McBroom submitted the

affidavit we cited extensively above as well as letters from

three medical professionals. After his arrest, McBroom

began to see psychotherapist Edward Crowley on a regular

basis. McBroom was also referred to Dr. Richard Gartner,

a clinical psychologist, and Dr. Ronald Winchel, a licensed

psychiatrist and psychopharmacologist. McBroom Aff., at

PP 59

- 61.

In a letter submitted to the sentencing court, Crowley

wrote that "McBroom developed a compulsion with regard

to viewing pornography. . . . Although Mr. McBroom

understood the moral a nd legal implications of this activity,

he was unable to discontinue the practice. . . . It is evident

that Mr. McBroom is experiencing the symptoms of a

person who has been sexually abused as a child. . . . The

excessive use of pornography by Mr. McBr oom is also a

common behavior pattern of survivors of childhood abuse."

In a letter submitted to the sentencing court, Dr. Gartner

reported that "McBroom as an adolescent and adult has

exhibited many of the most common sequelae of childhood

sexual a buse, particularly abuse by a loved caretaker and

role model. His symptoms have included a wide spectrum

of obsessive and compulsive behaviors, including severe

12

alcoholism and drug abuse, sexual compulsivity

(particularly related to pornography) . . . . His recent

fascination with pornography involving underage girls

seems to reflect a sense of his own undeveloped and

unevolved adolescent sexual identity. This is probably

related to his traumatic preadoles cent and adolescent

molestation, and his consequent dread of adult sexuality as

well as fascination with adolescent sexuality."

In a brief letter submitted to the sentencing court, Dr.Winchel reported that he diagnosed McBroom as having

Cyclothymic Disorder (a bipolar mood disorder) and

Impulse Control Disorder.

The district court found that McBroom suffered from

bipolar disorder, manic depression, and multiple disorders

of impulse control. Additionally, the court found that

McBroom suffered from a childhood and adolescence

seriously marred by continuous sexual abuse at the hands

of his father. The court was hesitant, however, tofind that

McBroom's "troubled childhood" qualified him for a

departure from the guideline range.

The court th en noted that "courts have found that a

downward departure is unavailable where there was `no

indication that [the defendant] was unable to process

information or to reason.' " Slip Op. at 10 (quoting United

States v. Johnson, 979 F.2d 396, 401 (6th Ci r. 1992)).

According to the court, "a defendant able to absorb

information in the usual way and to exercise the power of

reason is not suffering from a significantly reduced mental

capacity under U.S.S.G. S 5K2.13." Slip Op. at 10

(quotations omitted)

.

The district court denied McBroom's request for a

downward departure. The court was persuaded by the fact

that McBroom did not claim that he "does not voluntarily

participate in the transmissions of child pornography, nor

does he claim that he did not understand what he was

doing or the wrongful nature of his acts." Slip Op. at 10.

According to the court,

[McBroom] clearly possessed his mental and

intellectual faculties and was capable of exercising the

power of reason. Not only did [McBroom] enter the

13

Internet to explore its cache of child pornography, but

[he] also engaged in complex transactions across the

Internet. He knowingly formed criminal networ ks of

child pornography suppliers and collectors with whom

to share unlawful materials, thereby fueling the market

for child pornography.

Because there is no evidence that [McBroom's]

mental capacity was significa ntly reduced, there exists

no factual basis upon which the Court can grant a

departure.

Id. The district court sentenced McBroom to fifteen months

in prison, the minimum sentence for a person with anoffense level of thirteen and a cri minal history category of II.

McBroom moved the district court to reconsider its

decision not to depart downward under section 5K2.13. In

support of his motion, McBroom submitted two

supplemental reports.

In the first supplemental report, Dr. Gart ner stated that

McBroom has exhibited symptoms of childhood sexual

abuse, including a "wide spectrum of obsessive and

compulsive behaviors . . . . This compulsivity has extended

to viewing pornography, usually pictures of adults but

including pornogra phic pictures of young girls that were

sent to him on the Internet." Dr. Gartner concluded: "[T]his

compulsivity led to a significantly reduced mental state

which contributed in a large degree to Mr. McBroom's

commission of the offense for which he has been convicted."

In the second supplemental report, Dr. Winchel

commented that "[i]f the phrase `significantly reduced

mental state' is intended to include a reduced capacity for

choice, and acting under the influence of compulsion,

resultant from a psychiatric disorder, then Mr. McBroom's

condition, in my view, amply fulfills that definition." Dr.

Winchel stated that "McBroom, at various times in his life,

has fulfilled criteria for 4 different disorders of impulse

control."

Dr. Winchel expl ained that individuals suffering from an

impulse disorder have an "overwhelming quality of the urge

to commit the action toward which the individual feels

14

driven. In most cases of impulse disorder, attempts to not

act in accordance with the compulsion is associated with

increasingly painful states of tension and agitation which

can generate profound mental suffering."

Dr. Winchel cautioned that the impulse disorder may not

be obvious in syndromes where t here may appear to be a

motive for the individual's actions: "the apparent potential

for erotic pleasure present when any person looks at

pornography may inhibit understanding of the

overwhelmingly compulsive nature that some experience

--

a phenomeno n which is not about erotic gratification, but

about an attempt to control the overwhelming mental pain

and tension that may accompany an unfulfilled

compulsion." Dr. Winchel concluded that McBroom's

"actions and mental states in regard to the pornogra phic

material contain evidence of impulsive discontrol of his

behavior."The district court denied McBroom's motion for

reconsideration.7 McBroom timely appealed from the court's

judgment of sentence.

On appeal, McBroom does not argue that the di strict

court erred when it found that he is able to absorb

information in the usual way and to exercise the power of

reason. Rather, he contends that the court took too narrow

a view of the term "significantly reduced mental capacity"

and thereby impr operly excluded from section 5K2.13

certain individuals who, while able to absorb information in

the usual way and to exercise the power of reason, are

incapable of controlling their behavior and conforming it to

the law.

_____________________________ ____________________________________

7. Citing Fed. R. Crim. P. 35, the district court concluded that it lacked

jurisdiction to reconsider a criminal sentence. The court also noted that

it did not overlook any dispositive factual matters or controllin g

decisions of law in its sentencing decision; according to the court,

counsel had the opportunity to, and did, introduce information on

McBroom's psychiatric state before sentencing.

15

C.

Our jurisdiction o ver this appeal is grounded in 28 U.S.C.

S 1291 and 18 U.S.C. S 3742. The district court denied

McBroom's motion for a downward departure because it

believed that it lacked discretion to depart from the

guidelines range. Specifically, the court held th at "a

defendant able to absorb information in the usual way and

to exercise the power of reason" is not entitled to a

downward departure, and then it determined that McBroom

was able to reason and to absorb information in the usual

way. Slip Op. at 10 .8 Because the court believed that a

departure was legally impermissible under the guidelines,

we have jurisdiction to determine whether the court's

understanding of the guidelines was correct. United States

v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989) ; see also

United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994);

United States v. Hamilton, 949 F.2d 190, 193 (6th Cir.

1991) (per curiam) (district court's conclusion that type of

mental state claimed by defendant does not fit within

section 5K2 .13 is legal conclusion reviewable on appeal);

United States v. Poff, 926 F.2d 588, 590

- 91 (7th Cir. 1991)

(en banc) (same).9

Whether a factor is a permissible basis for departure is a

_________________________________________________________________8. The court resolved any possible doubts about the reason for its

sentencing decision at McBroom's bail hearing:

I was very careful, I was very careful in that decision. I didn't

say I

had the authority to depart and I chose not to depart; because I

wanted that issue presented to the appellate court. And I made it

very clear that I was making a decision not on the exercise of

discretion, but on the basis that I did not have the discretion as

I

read the Guidelines. So there is an issue on appeal that has to be

addressed by the Circuit Court.

While we are not bound by the district court's understanding of its own

decision, it is apparent that the district court believed that it was

without di scretion to depart from the guidelines pursuant to section

5K2.13.

9. In contrast, if the court's ruling had been based on an exercise of

discretion, we would have lacked jurisdiction to review the court's

exercise of that discretion. Denardi, 892 F. 2d at 272; Mummert, 34 F.3d

at 205.

16

question of law, Koon v. United States, 116 S.Ct. 2035,

2047 (1996), and our review of the sentencing court's

construction of the Sentencing Guidelines is therefore

plenar y. United States v. Oser, 107 F.3d 1080, 1083 (3d

Cir. 1997). We review the specific question of whether the

district court had the authority to depart downward based

on the factor of diminished capacity under an abuse of

discretion standard. United St ates v. Sally, 116 F.3d 76, 78

(3d Cir. 1997). In addition to permitting an appellate court

to review the exercise of a district court's discretion for

abuse, the abuse of discretion standard allows us to

determine whether the district court was guided by

erroneous legal conclusions when exercising its discretion.

Koon, 116 S.Ct. at 2047

- 48. An abuse of discretion

standard does not mean, therefore, that a mistake of law is

beyond appellate correction. "A district court by definition

abuses its disc retion when it makes an error of law." Id. at

2047.

III.

Before we reach the question of whether McBroom

suffered from a significantly reduced mental capacity, we

must determine whether McBroom committed a "non

violent offense." A downward depar ture pursuant to section

5K2.13 is not available to any defendant, regardless of thestate of his or her mental capacity, if the offense of

conviction is not "non

- violent." The defendant bears the

burden of proving, by a preponderance of the evidence, that

the crime is non

- violent. United States v. Rosen , 896 F.2d

789, 791 (3d Cir. 1990); United States v. McDowell, 888

F.2d 285, 291 (3d Cir. 1989). The district court did not

dwell on this issue; according to the court, "it is clear that

[McBroom] committed a crime that is non

- violent."

In this appeal, the government contends that the crime of

possession of child pornography is not a "non

- violent

offense" and that McBroom is therefore not entitled to a

downward departure under section 5K2.13.

A.

In Rosen, the defendant was convicted on a plea of guilty

to the charge of sending a threatening communication

17

through the mail with the intent to extort money through

threat of injury in violation of 18 U.S.C. S 876. 896 F.2d at

790. We rejected the defendant's claim that the offense was

non

- violent because it did not involve the actual use of

physical force, and we held that the district court did not

have the authority to depart downward under s ection

5K2.13 because the offense was not a "non

- violent offense."

Id. at 791.

The basis for our holding in Rosen was that the definition

of "crime of violence" contained in section 4B1.2, which is

the career offender provision, governs the meaning of "non

violent offense" in section 5K2.13. Id. According to section

4B1.2, the term "crime of violence" means any offense

under federal or state law punishable by imprisonment for

a term exceeding one year that (1) "has as an element the

use, attemp ted use, or threatened use of physical force

against the person of another," or (2) is "burglary of a

dwelling, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential

risk of physical injury to another." U.S.S.G.S 4B1.2(1); see

also U.S.S.G. S 4B1.2, comment. (n.1

- 2) (providing

additional discussion of term "crime of violence"). Because

the defendant's crime of extortion had as an element the

threatened use of force, the crime was a "crime of violence"

under section 4B1.2 and was not, therefore, a "non

- violent

offense" under section 5K2.13. Rosen, 896 F.2d at 791.

Bound as we are by our decision in Rosen, 3d Cir. I.O.P.

9.1, we conclude that the offense of possession of child

pornograph y in violation of 18 U.S.C. S 2252(a)(4) is a "non

-violent offense." The mere possession of child pornography

does not have as an element the use, attempted use, or

threatened use of physical force against the person of

another, and it is not the type of offense listed in section

4B1.2(1) or the application notes to section 4B1.2.

Possession of child pornography is not, therefore, a "crime

of violence," and, pursuant to Rosen, it must be a "non

violent offense."10

________________________________ _________________________________

10. We acknowledge that the term "crime of violence" is defined in 18

U.S.C. S 3156(a)(4) to include any felony under chapter 109A or chapter

110 of Title 18, including possession of child pornography. While we are

18

B.

We recognize that our holding in Rosen that the term

"crime of violence" means the opposite of the term "non

violent offense" is currently the subject of considerable

debate. Five other courts of appeals have reached the same

conclusion that we reached in Rosen. United States v.

Mayotte, 76 F.3d 887, 889 (8th Cir. 1996); United States v.

Dailey, 24 F.3d 1323, 1325

- 27 (11th Cir. 1994); United

States v. Poff, 926 F.2d 588, 591

- 93 (7th Cir. 1991) (en

ba nc); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir.

1989); United States v. Maddalena, 893 F.2d 815, 819 (6th

Cir. 1989). Two courts of appeals, however, following the

dissent in Poff, 926 F.2d at 593

- 96 (Easterbrook, J.,

dissenting), have conclud ed that the "non

- violent offense"

requirement of section 5K2.13 is not governed by the"crime

of violence" definition contained in section 4B1.2. United

States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994); United

States v. Chatman, 986 F.2d 1446, 1450 (D .C. Cir. 1993).

Rather, those courts believe that "the sentencing court has

broad discretion under section 5K2.13 to examine all the

facts and circumstances of a case to determine whether a

particular offense was in fact `non

- violent.' " Chatman, 986

F.2d at 1450.

Our court, sitting en banc, may soon revisit the issue in

United States v. Askari, No. 95

- 1662, 1997 WL 92051 (3d

Cir. March 5, 1997) (per curiam), reh'g en banc granted,

opinion vacated, 1997 WL 92051, *6 (March 27, 1997). In

Askari, we held that an unarmed bank robbery is not a

"non

- violent offense" under section 5K2.13 because it is a

"crime of violence" under section 4B1.2. 1997 WL 92051, *2

(citing Rosen, 896 F.2d at 791). In a concurring opinion in

which he urged us to reconsi der the issue en banc, Judge

Becker wrote that "it does not make sense to import a

career offender

- based definition of `crime of violence' into a_________________________________________________________________

concerned that Congress, in 18 U.S.C. S 3156, and the Sentencing

Commission, in U.S.S.G. S 4B1.2, chose to define a single term

-- "crime

of violence"

-- in very different ways, the definition contained in

section

3156(a)(4) is only applicable to the term as used in 18 U.S.C. SS 3141

-

3150 . Since we applied the guidelines definition of "crime of violence" in

Rosen, we do the same here.

19

departure section in the absence of a specific cross

reference." "Rather," Judge Becker concluded, "it is bet ter

to permit the district courts to consider all the facts and

circumstances surrounding the commission of a crime

when deciding whether it qualifies as a non

- violent offense

under S 5K2.13." 1997 WL 92051, *6. We granted rehearing

en banc and vacate d the per curiam opinion.

Recognizing that we are presently bound by Rosen and

that possession of child pornography is a "non

- violent

offense" under our precedent, we nonetheless briefly

analyze the subject offense under the case

- by

- case

approach su ggested by Judge Easterbrook in Poff and by

Judge Becker in Askari. We do so not to predict how the en

banc court will decide Askari, but because we conclude

that, even under the case

- by

- case approach, the possession

of child pornography is a "non

- viol ent offense."

According to the government, "[p]ossession and

dissemination of child pornography, by statutory definition,

entails the sexual exploitation of minors, which, in any

form, entails violence against children. . . . With each

computer tran smission of child pornography, not only is

the child who is depicted victimized yet at least a trace

more, but the market for child pornography is fueled,

pedophiles potentially inspired, and more children

ultimately victimized." We are not unsympathet ic to the

government's concerns; possession of child pornography is

not a victimless crime. See, e.g., United States v. Harvey, 2

F.3d 1318, 1328 n.12 (3d Cir. 1993) (discussing harm

Congress sought to avoid by punishing possession of child

pornograph y).

A review of the facts and circumstances surrounding the

commission of the crime, however, persuades us that the

mere possession of child pornography in this context is a

"non

- violent offense." Initially, the crime for which

McBroom was convicted , possession of child pornography

in violation of 18 U.S.C. S 2252(a)(4), does not have as an

element the use of physical force or violence. McBroom wasconvicted of a crime of possession, not a crime of violence.

In addition, McBroom was not convict ed of any offenses

involving contact with children or the production of child

20

pornography. See, e.g., 18 U.S.C. S 2251 (sexual

exploitation of children); id. S 2251A (selling or buying of

children). On the re cord here, McBroom had no direct

contact with children in furtherance of his efforts to

possess child pornography, and he did not solicit others to

sexually exploit children in order to obtain additional

depictions. He was also not convicted of transpo rting or

receiving child pornography. Id. S 2252(a)(1), (2).

The record is devoid of any evidence that McBroom's

conduct involved "violence in fact." Askari, 1997 WL 92051,

*2 (Becker, J., concurring). The record indicates that

McBroom downloaded im ages of child pornography from

the abundance of images already available on the Internet,

and that he stored those images on his computer's hard

drive.

Finally, McBroom's conduct did not involve a threat of

violence. Compare Poff, 926 F.2d at 594 (E asterbrook, J.,

dissenting) ("A `non

- violent offense' . . . is one in which

mayhem did not occur."), with Chatman, 986 F.2d at 1454

(an offense that never resulted in physical violence but that

did involve a "real and serious" threat of violence is not a

"non

- violent" offense).11

As the government argues, it is the market for child

pornography that ultimately leads to the victimization of

children, and McBroom was surely part of that market.

This fact does not make McBroom the perpetrator of a

v iolent offense, however, any more than a possessor of

marijuana contributes to the often

- violent illicit drug trade.

Assuming section 5K2.13 required us to decide whether a

particular defendant committed a "non

- violent offense" as a

matter of fact, we would look first to the facts and

circumstances surrounding the commission of the offense

of conviction, and not to the derivative, but potentially

inevitable, consequences of the defendant's conduct.

Because the commission of the crime for which McB room

was convicted did not involve any actual or threatened

_________________________________________________________________

11. Of course, we need not and do not decide whether, and at what

point, an offense involving threatened violence (but no vi olence in fact)

would not be a "non

- violent offense" under the case

- by

- case approach.21

violence in fact, and because the use or threat of force is

not an element of the crime, we believe that, under the

case

- b y

- case approach suggested by Judge Easterbrook in

Poff and by Judge Becker in Askari, McBroom committed a

"non

- violent offense." Of course, as noted above, our

conclusion that McBroom committed a "non

- violent offense"

is anchored in our conclusion that possession of child

pornography is not a "crime of violence" under section

4B1.2 of the guidelines. Rosen, 896 F.2d at 791.

Having determined that McBroom "committed a non

violent offense," we must now decide whether the district

court properly co nsidered McBroom's claim that he

committed that offense "while suffering from significantly

reduced mental capacity." U.S.S.G. S 5K2.13, p.s.

IV.

McBroom contends that the definition of "significantly

reduced mental capacity" contains a volitional component

not adequately considered by the district court. We agree.

We believe that a defendant's ability to control his or her

own conduct is a relevant consideration when determining

the defendant's eligibility for a downward departure

pursuant to section 5K2.13.

A.

Our analysis begins with a brief look back to the modern

dawn of common law recognition of insanity as a defense to

criminal charges. In M'Naghten's Case, the House of Lords

ruled that the insanity defense applies if the accuse d "was

labouring under such a defect of reason, from a disease of

the mind, as not to know the nature and quality of the act

he was doing; or, if he did know it, that he did not know he

was doing what was wrong." 10 Cl. & Fin. 200, 210, 8 Eng.

Rep. 71 8, 722 (H.L. 1843).

In the twentieth century, the M'Naghten Rule came under

heavy criticism because it "misleadingly focused attention

on the capacity to distinguish `right' from `wrong' at a time

when recognized psychiatric impairments were understo od

as unitary entities which distorted both cognitive and

22

effective capacities." Government of Virgin Islands v.Fredericks, 578 F.2d 927, 937 (3d Cir. 1978) (Adams, J.,

dissenting) (emphasis supplied); see a lso Durham v. United

States, 214 F.2d 862 (D.C. Cir. 1954) (rejecting M'Naghten

Rule). In 1955, the American Law Institute introduced an

alternative to the Rule, which was subsequently adopted

into the Model Penal Code. The ALI standard provides:

A person is not responsible for criminal conduct if at

the time of such conduct as a result of mental disease

or defect he lacks substantial capacity either to

appreciate the criminality [wrongfulness] of his conduct

or to conform his conduct to the requirements of law.

Model Penal Code S 4.01(1) (emphasis supplied). The ALI

standard is significant because it introduced a "volitional

prong," which considers defects of control, in addition to the

"cognitive prong," already present in the M'Naghten Rule,

which considers only defects of reason and intellect.

In United States v. Currens, 290 F.2d 751 (3d Cir. 1961),

we too rejected the M'Naghten Rule as "unworkable" and a

"sham." Id. at 765. We noted that a test b ased on one's

ability to know right from wrong misses the point: "Our

institutions contain many patients who are insane or

mentally ill or mentally diseased and who know the

difference between right and wrong." Id. at 765.

Faced with the difficult t ask of formulating a proper test,

we focused on the element of control:

The concept of mens rea, guilty mind, is based on the

assumption that a person has a capacity to control his

behavior and to choose between alternative cour ses of

conduct. This assumption, though not unquestioned by

theologians, philosophers and scientists, is necessary

to the maintenance and administration of social

controls. It is only through this assumption that

soc iety has found it possible to impose duties and

create liabilities designed to safeguard persons and

property. . . . Essentially these duties and liabilities are

intended to operate upon the human capacity for

choice and con trol of conduct so as to inhibit and deter

socially harmful conduct. When a person possessing

capacity for choice and control, nevertheless breaches

23

a duty of this type he is subjected to the sanctions of

the criminal law. He is subject to these sanctions not

because of the act alone, but because of his failure to

exercise his capacity to control his behavior in

conformity with the demands of society.Id. at 773. We concluded that "the sanctions of the criminal

law are meted out in accordance with the actor's capacity

to conform his conduct to society's standards, through the

capacity for choice and control which he possessed with

respect to his act." I d.

We thus announced the following test: "The jury must be

satisfied that at the time of committing the prohibited act

the defendant, as a result of a mental disease or defect,

lacked substantial capacity to conform his conduct to the

requirements o f the law which he is alleged to have

violated." Id. at 774.

The Currens "capacity to conform" test was drawn in part

from the test proposed by the American Law Institute in its

Model Penal Code. Id. at 774 n.32. We intentionally did not

adopt the p hrase "to appreciate the criminality of his

conduct" from the Model Penal Code, however, finding that

the phrase would "overemphasize the cognitive element in

criminal responsibility and thus distract the jury from the

crucial issues while being little more than surplusage." Id.

We utilized the Currens test until Congress provided a

statutory formulation of the federal insanity defense by

passing the Insanity Defense Reform Act of 1984, Pub. L.

No. 98

- 473, Title II, S 402(a), 98 Stat. 2057, S 20, recodified

at 18 U.S.C. S 17 ("IDRA"). The IDRA provides:

It is an affirmative defense to a prosecution under any

Federal statute that, at the time of the commission of

the acts constituting the offense, the defendant, as a

result of a severe mental disease or defect, was unable

to appreciate the nature and quality or the

wrongfulness of his acts. Mental disease or defect does

not otherwise constitute a defense.

18 U.S.C. S 17(a). Congress thus d eleted the "volitional

prong" of the insanity defense found in both the Model

Penal Code and in Currens, United States v. Pohlot, 827

24

F.2d 889, 896 (3d Cir. 1987), in favor of exclusive reliance

on the "cogni tive prong" of M'Naghten's Case.12 Indeed, the

IDRA, with its emphasis on an accused's ability to

appreciate the nature and quality, or the wrongfulness, of

his or her actions, is, at its core, a modern version of the

M'Naghten Rule.

B.When the Sentencing Commission promulgated policy

statement 5K2.13, it did not define the term "significantly

reduced mental capacity." We do not believe, however, that

the Commission intended to preclude district courts from

considering volitional impairments during the sentencing

phase in the same manner in which Congress precluded

consideration of volitional impairments as an affirmative

insanity defense.

The IDRA does not permit a defendant to rely on a

mental disease or defect as an affirmative insan ity defense

unless the disease or defect renders the accused unable to

appreciate the nature and quality or the wrongfulness of

his acts. This is true even if the disease or defect

substantially contributed to the commission of the offense.

In sharp c ontrast, when a court considers the sentencing of

a convicted defendant, guideline section 5K2.13 may apply

once the accused's reduced mental capacity "contributed to

the commission of the offense"

-- without regard to how the

reduced mental capacity s o contributed. U.S.S.G. S 5K2.13,

p.s.

For example, if a defendant's reduced mental capacity

prevents the individual from appreciating the wrongfulness

of certain conduct, section 5K2.13 may apply so long as the

other requirements of that section ar e satisfied (and

assuming the defendant is not entitled to a complete

affirmative insanity defense pursuant to 18 U.S.C. S 17).

Likewise, if an individual is capable of appreciating the

nature, quality, and wrongfulness of certain acts, but is

_______

__________________________________________________________

12. Defendants may still introduce evidence of mental abnormality in

order to negate mens rea and disprove an element of the crime itself.

Pohlot, 827 F.2d at 895

- 902.

25

unable to control the conduct due to reduced mental

capacity, section 5K2.13 may also apply. Thus, section

5K2.13 retains both a "cognitive prong" and a "volitional

prong."

This interpretation of section 5K2.13 makes sense. The

Court of Appeals for the Seventh Circuit explained:

[I]n the criminal law generally, and under the

guidelines as well, though no longer in the federal

defense of insanity, 18 U.S.C. S 17(a), the term `mental

capacity' refe rs to action as well as to understanding.

The mind is the organ of volition as well as of

reflection. A person who knows what he is doing andthat it is wrong but cannot control himself is deficient

in mental capacity.

Un ited States v. Pullen, 89 F.3d 368, 370

- 71 (7th Cir. 1996)

(internal citations omitted), cert. denied, 117 S.Ct. 706

(1997). The court thus recognized that the term"mental

capacity" as used in section 5K2.13 encompasses both a

cognition prong and a vol ition prong. We agree.

In Currens, we reasoned that the duties and liabilities

imposed by our society on its members are "intended to

operate upon the human capacity for choice and control of

conduct so as to inhibit and deter socially harmful

condu ct." 290 F.2d at 773 (emphasis supplied). Since

passage of the IDRA, this rationale no longer applies to

individuals pleading insanity as an affirmative defense. It

remains viable, however, in the sentencing phase. As we

stated in Currens, our system o f criminal justice punishes

criminals not because of the act alone, but because of the

offender's failure to exercise his capacity to control his

behavior in conformity with the demands of society. Id.

Justice demands that sentencing courts be able to consider

an offender's capacity to control his behavior before

determining an appropriate sentence. Section 5K2.13

provides courts with the ability to do just that.

Judge Easterbrook explained why it is appropriate to

consider volitional impairments in making sentencing

determinations:

The criminal justice system long has meted out lower

sentences to persons who, although not technically

26

insane, are not in full command of their ac tions. . . .

Persons who find it difficult to control their conduct do

not

-- considerations of dangerousness to one side

-- deserve as much punishment as those who act

maliciously or for gain.

Poff, 926 F.2d at 595 (Easte rbrook, J., dissenting). We

agree.

C.

The issue of volitional incapacity as a basis for downward

departure has rarely been directly addressed by the courts.

The courts have instead focused on defendants' cognitive

abilities. In United States v. H amilton, 949 F.2d 190 (6th

Cir. 1991) (per curiam), the defendant pled guilty to

possession of controlled substances with intent todistribute. The defendant asserted that a gambling disorder

caused him to suffer from a "significantly reduced mental

c apacity." Id. at 191. The Court of Appeals for the Sixth

Circuit disagreed, finding that the defendant "was able to

absorb information in the usual way and to exercise the

power of reason. He took to selling drugs illegally not

because of any inability to understand his situation, but

because he needed money." Id. at 193.

While the court relied on the defendant's ability to

"absorb information in the usual way and to exercise the

power of reason" when rejecting his claim for a downward

departure, the court did not cite to any legal or medical

authority for its apparent conclusion that an individual's

ability to absorb information and to reason is equated with

his "mental capacity." Nevertheless, the court's emphasis

on the defendant's intellec tual, or cognitive, capacity was

soon replicated.

The Court of Appeals for the Fourth Circuit adopted the

Hamilton standard in United States v. Goossens, 84 F.3d

697 (4th Cir. 1996). The district court found that Goossens

had been diagnosed as suffe ring from anxiety disorder and

had other psychological problems. Id. at 699

- 700.

Nonetheless, Goossens was a man of "above average

intellectual capacity," possessed a "high level of mental

functioning," and "was employed in a responsible position."

27

Id. at 701. The court of appeals held that "in order for a

defendant's mental condition to be considered `a

significantly reduced mental capacity' within the meaning of

S 5K2.13, p.s., the defendant must have be en unable to

process information or to reason." Id. The court concluded

that Goossens was not entitled to a downward departure

under section 5K2.13 because of his above

- average

cognitive function.

It thus appears that, for some of our sister courts of

appeals, an individual's inability to reason or to absorb

information in the usual way is the sine qua non of reduced

mental capacity, and a defendant who is able to reason and

to absorb information in the usual way is ineligible for a

downward dep arture under section 5K2.13. See, e.g.,

United States v. Withers, 100 F.3d 1142, 1148 (4th Cir.

1996) (defendant ineligible for downward departure because

she failed to show that her depression rendered her unable

to process information or to reason; " she was fully capable

of following a complex set of instructions to transport

heroin successfully into the United States"), cert. denied,

117 S.Ct. 1282 (1997); United States v. Edwards, 98 F.3d1364, 1367 (D.C. Cir. 1996) (rejecting defendant's argume nt

that "mental capacity" has meaning apart from intellectual

capacity; holding that psychological or behavioral disorders

could not serve as basis for departure based on reduced

mental capacity absent "accompanying inability to reason"),

cert. denied , 117 S.Ct. 1437 (1997); United States v.

Barajas

- Nunez, 91 F.3d 826, 831 (6th Cir. 1996)

(diminished mental capacity is found where defendant's

condition affects ability to process information or to

reason); United States v. Johnson, 979 F.2d 396, 401 (6th

Cir. 1992) (defendant, who "displayed considerable mental

agility in his professional and personal affairs," was able to

process information and to reason; section 5K2.13

downward departure held unavailable).

Our sister courts' apparent focus on an offender's ability

to absorb information and to reason may be more the result

of the arguments raised by the offenders in each specific

case than of a conscious decision to disregard volitional

impairments. Indeed, we are in agreement with these courts

that a sentencing court may consider a defendant's

28

cognitive incapacity during the sentencing phase. To the

extent that some of these courts have purposely limited

section 5K2.13 to its cognitive prong , however, we cannot

agree to such a narrow reading of the guidelines.

Section 5K2.13 is intended to create lenity for those

whose significantly reduced mental capacity cause them to

commit the offense of conviction. In United States v.

Chatman, 986 F.2d 1446 (D.C. Cir. 1993), the court

recognized that the purpose of section 5K2.13 is to "treat

with lenity" individuals whose significantly reduced mental

capacity contributed to the commission of the crime. Id. at

1452. The court reasoned that such lenity is appropriate

because "two of the primary rationales for punishing an

individual by incarceration

-- desert and deterrence

-- lose

some of their relevance when applied to those with reduced

mental capacity." Id.

Likewise, in United States v . Cantu, 12 F.3d 1506 (9th

Cir. 1993), the court of appeals recognized that "[l]enity is

appropriate because the purpose of S 5K2.13 is to treat with

some compassion those in whom a reduced mental capacity

has contributed to the commission of a crime." Id. at 1511.

The courts' discussions of lenity in Chatman and Cantu

apply with equal force to those who cannot comprehend

right from wrong and to those who cannot control their

behavior. See United States v. Weddle, 30 F.3d 532, 540

(4th Cir. 1994) ( section 5K2.13 creates lenity for those whocannot control their actions but who are not actually

dangerous).

D.

We conclude that the Sentencing Commission intended to

include those with cognitive impairments and those with

volitional impairments within the definition of "reduced

mental capacity." We believe that the following test

adequately addresses our concerns that a sentencing court

consider both a defendant's cognitive capacity and his or

her volitional capacity when considering a downw ard

departure pursuant to section 5K2.13: A person may be

suffering from a "reduced mental capacity" for the purposes

of section 5K2.13 if either:

29

(1) the person is unable to absorb information in the

usual way or to exercise the power of reason; or

(2) the person knows what he is doing and that it is

wrong but cannot control his behavior or conform

it to the law.

The first prong permits sentencing courts to consider

defects of cognition. The second prong permits sentencing

courts to consider defects of volition. Sentencing courts

must consider both prongs before making a determination

about a defendant's "reduced mental capacity."

We are reminded that a mere r eduction in mental

capacity is not sufficient to warrant a departure; section

5K2.13 requires that the reduced mental capacity be

"significant" before a downward departure may be

considered.13 Likewise, a departure, if granted, should

reflect the exte nt to which the offender's reduced mental

capacity contributed to the commission of the offense.14 As

we noted above, a departure may not be granted where the

offense is not "non

- violent," and a departure is not

warranted when the defendant's criminal history indicates

a need for incarceration to protect the public. In addition,

the reduction in mental capacity may not be the result of

_________________________________________________________________

13. We are reluctant to set forth general princ iples delineating when

mental capacity is so "significantly reduced" as to warrant consideration

for a downward departure. We rely instead on the sentencing court's

"institutional advantage over appellate courts in making these sorts of

determinations. " United States v. Sally, 116 F.3d 76, 81 (3d Cir. 1997)

(quoting Koon, 116 S.Ct. at 2047). The Court in Koon recognized the

"special competence" of sentencing courts in determining "whether adiscouraged factor nonetheless justifies departure because i t is present

in some unusual or exceptional way." Koon, 116 S.Ct. at 2047; cf. Sally,

116 F.3d at 81 (leaving to district courts the determination of "what

post

- conviction rehabilitation efforts may be considered so extraordinary

or exceptional as to w arrant a downward departure"). We, likewise,

believe that the district courts have the resources to determine whether

a defendant's reduced mental capacity is "significant."

14. A defendant's "significantly reduced mental capacity" must be a

contribu ting cause of the offense, but need not be the sole cause. United

States v. Soliman, 954 F.2d 1012, 1014 (5th Cir. 1992); United States v.

Glick, 946 F.2d 335, 339 (4th Cir. 1991); United States v. Ruklick, 919

F.2d 95, 97

- 98 (8th Cir. 1990).

30

the offender's voluntary use of drugs or other intoxicants.15

Taken together, the requirements of section 5K2.13 are not

easily met. In addition, the district courts retain their

discretion to deny a downward departure even when a

defendant does satisfy his burden. We therefore believe that

our decision will not open the floodgates to every defendant

who "felt compelled" to commit a crime.

We note that although a defendant must be suffering

from something greater than mere "emotional problems" to

obtain a downward departure, United States v. Gentry, 925

F.2d 186, 188 (7th Cir. 1991), certain emotional conditions

may be the cause of a defendant's significantly reduced

mental capacity. In Cantu, the court of app eals noted that

section 5K2.13 applies to both mental defects and

emotional disorders: "Such applications are appropriate. To

artificially distinguish organic syndromes (mental defects)

from emotional disorders is to ignore the increasingly blurry

lin e between them." Id. at 1512; see also id. ("Treating

emotional illnesses in the same way that we do mental

abnormalities furthers the purpose of S 5K2.13."). As the

court concluded in Cantu, "[t]he focus of the guideline

provision is reduced mental ca pacity, not the cause

-- organic, behavioral, or both

-- of the reduction." Id.

(emphasis in original).

V.

We turn now to the case at hand. Guided by the

standard first announced in Hamilton, the district court

concluded that "a defendant able to absorb information in

the usual way and to exercise the power of reason" is not

eligible for a downward departure under section 5K2.13.

According to the court, McBroom "clearly possessed his

mental and intellectual faculties and was capable of

exerci sing the power of reason." The court cited as anexample of McBroom's intellectual capacity the fact that he

"engaged in complex transactions across the Internet."

_________________________________________________________________

15. Although McBroom has a history of drug and alcohol abuse, the

government does not contend that McBroom's use of drugs and alcohol

caused him to suffer from a significantly reduced mental capacity.

31

On appeal, McBroom does not contend that he is unable

to absorb information in the usual way or to exercise the

power of reason. Rather, McBroom asserts that, despite his

cognitive ability, he was unable to exercise control over his

own behavior. It was the absence of volitional capacity,

McBroom argues, that compelled him to view and possess

child pornography. McBroom's ability to absorb information

and to reason is therefore irrelevant to his efforts to obtain

a downward departure.

The reports submitted on behalf of McBro om contain

information that is relevant to a determination regarding

McBroom's volitional capacity. In a letter submitted to the

sentencing court, Crowley wrote that "McBroom developed

a compulsion with regard to viewing pornography. . ..

Although Mr. McBroom understood the moral and legal

implications of this activity, he was unable to discontinue

the practice." Dr. Gartner reported that McBroom, like

other victims of childhood sexual abuse, exhibited a

number of obsessive and compulsive behaviors , including

sexual compulsivity. Dr. Winchel reported that he

diagnosed McBroom as having Cyclothymic Disorder (a

bipolar mood disorder) and Impulse Control Disorder.

According to the American Psychiatric Association,

The essential feature of Impulse

- Control Disorders is

the failure to resist an impulse, drive, or temptation to

perform an act that is harmful to the person or to

others. For most of the disorders in this section, the

individual feels an increasing sense of tension or

arousal before committing the act and then experiences

pleasure, gratification, or relief at the time of

committing the act. Following the act there may or may

not be regret, self

- reproach, or guilt.

American Psychiatric Assoc., Diagnostic and Statistical

Manual of Mental Disorders 609 (4th ed. 1994) ("DSM

- IV").16

_________________________________________________________________

16. Dr. Winchel diagnosed McBroom as having "Impulse Control

Disorde r Not Otherwise Specified," classified as DSM

- IV Code 312.30.

This category is for disorders of impulse control that do not meet thecriteria for any specific Impulse Control Disorder or for other mental

disorders having features involving impulse contr ol described elsewhere

in DSM

- IV.

32

As noted above, McBroom submitted two supplemental

reports in support of his motion for reconsideration of the

district court's sentencing decision. Dr. Gartner

supplemented his initial report by stating that McBroom's

obsessive and compulsive behaviors extended to child

pornography. Dr. Gartner reported that McBroom suffered

from obsessive

- compulsive disorder complicated by

Cyclothymia, an aftereffect of his childhood se xual abuse

and a significant contributing factor in his possession of

child pornography. In his supplemental report, Dr. Winchel

stated that McBroom suffered from a psychiatric disorder

that caused him to act under the influence of compulsion.

We ex press no view about the merits of McBroom's claim

of significantly reduced mental capacity. This determination

should be made by the district court in the first instance.17

_________________________________________________________________

We are mind ful of DSM

- IV's "Cautionary Statement," which provides:

The purpose of DSM

- IV is to provide clear descriptions of

diagnostic

categories in order to enable clinicians and investigators to

diagnose, communicate about, study, and tre at people with various

mental disorders. It is to be understood that inclusion here . . .

does

not imply that the condition meets legal or other nonmedical

criteria

for what constitutes mental disease, mental disorder, or mental

disability. The clinical and scientific considerations involved in

categorization of these conditions as mental disorders may not be

wholly relevant to legal judgments, for example, that take into

account such issues as individ ual responsibility, disability

determination, and competency.

DSM

- IV, at xxvii. While the term "mental capacity" as used in section

5K2.13 is a legal, not a medical term, we believe that evaluation of a

defendant's mental capacity must necessa rily be informed by an

appreciation and understanding of the defendant's medical condition.

17. It is possible that the court may find that the evidence offered by

McBroom is insufficient to establish a significantly reduced mental

capacity. It is al so possible that the court mayfind that McBroom

suffered from a significantly reduced mental capacity but that it was

unrelated to the commission of the offense. On the other hand, the

district court might find that McBroom was unable to exercise contro lover his actions in possessing child pornography and that he suffered

from a volitional impairment sufficient to warrant a downward departure

under section 5K2.13. The court might also find that McBroom is eligible

for a downward departure under sect ion 5K2.13, but in the exercise of

its discretion not grant such a departure. Otherfindings are also

possible.

33

We leave it to the district court to determine whether

McBroom suffered from a significantly redu ced mental

capacity and, if so, whether a departure is warranted and

appropriate under section 5K2.13. Because we conclude

that the court improperly limited its review to the issue of

whether McBroom was able to absorb information in the

usual way and to exercise the power of reason, however, we

will remand so that the court may consider McBroom's

assertion that he was unable to control his behavior or

conform it to the law.

How the district court chooses to undertake this analysis

is a matter w ithin its discretion. We think, however, that

the court may not wish to decide this issue on the present

record. It is apparent that, when it focused exclusively on

McBroom's ability to absorb information in the usual way

and to exercise the power of r eason, the district court was

guided by the principles announced by some of our sister

courts of appeals. Those principles may have also guided

the parties' argument and presentation of evidence. Given

that the standard we announce today represents a d ifferent

approach, the district court may wish to reopen the record

and permit both McBroom and the government to submit

new evidence and argument on the volitional incapacity

issue.

VI.

We take this opportunity to address two additional

concern s about the district court's first sentencing decision.

First, the district court was persuaded in part by

McBroom's ability to engage in complex transmissions

across the Internet, and we are aware of McBroom's ability

to practice law even as his con sumption of alcohol, drugs,

and pornography grew more severe. We note, however, that

an individual's average or above

- average mental capacity in

one aspect of his or her affairs is not necessarily relevant to

a determination about the individual's ment al capacity in

another aspect. If McBroom did suffer from an inability to

control his behavior in the possession of child pornography,

that does not necessarily mean that he was also unable to

learn how to access the Internet or, for that matter, to34

conduct a successful law practice. The converse is also

true. The fact that McBroom may have been proficient on

the Internet does not necessarily indicate that he was not

compelled by reduced mental capacity to use that

proficiency to obtain child pornography.

On remand, the district court may certainly consider

evidence of how McBroom conducted his affairs when

determining whether he suffered from a significantly

reduced mental capacity. We are mindful, however, that

McBroom claims that he suffered from a very discrete

volitional impairment, and evidence of advanced mental

capacity in one area may not be relevant in deciding

whether McBroom's claim has merit.

Second, McBroom claims that his reduced mental

capacity had its origins in the sexual abuse he suffered as

a child. The court noted, however, that courts are hesitant

to find a "troubled childhood" as a basis for departure from

the guidelines range. The district court's concern may be

unwa rranted here. McBroom is not seeking a downward

departure because he was a victim of sexual abuse. Rather,

McBroom claims that at the time of the offense, he suffered

from a significantly reduced mental capacity. McBroom

points to his childhood merely to explain why his mental

capacity was reduced to the point where he felt compelled

to possess child pornography.

When determining whether a defendant suffers from a

significantly reduced mental capacity, a sentencing court

may appropriately conside r the asserted underlying cause

of the impairment. The district court properly declined to

consider McBroom's "troubled childhood" in a vacuum.

U.S.S.G. S 5H1.12, p.s. ("Lack of guidance as a youth and

similar circumstances indicating a disadvantaged

upbringing are not relevant grounds for imposing a

sentence outside the applicable guideline range."). On

remand, however, the sentencing court may look to that

childhood to inform its determination regarding whether

McBroom suffered from a significant ly reduced mental

capacity at the time of the offense.

In United States v. Withers, 100 F.3d 1142 (4th Cir.

1996), cert. denied, 117 S.Ct. 1282 (1997), the court of

35appeals cautioned courts not to "create i ncentives for

defendants to comb their personal circumstances in order

to find evidence of hardship or misfortune. This search, we

suspect, would almost always be fruitful given that

adversity in its infinite variety comes with the journey of

life." I d. at 1148; see also Pullen, 89 F.3d at 371 ("miserable

family history" is not permissible basis for departure in

average case). We emphasize that McBroom's "troubled

childhood" is only relevant to its impact on his allegedly

reduced mental capacity as an adult. McBroom's childhood

experiences serve to place his volitional incapacity

argument in context. It would be helpful to the sentencing

court for McBroom's proffered experts, who report that

McBroom suffers from a compulsion to view child

porno graphy, to explain how that compulsion may have

originated.

VII.

For the foregoing reasons, we will vacate the sentence

imposed by the district court and remand for resentencing

consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

36