1 Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20036

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

COLONEL MARVIN PEARSON, also known as M, also known as 

Colonel@Pheonix.net,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-97-CR-63-1

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January 14, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:1

Colonel Marvin Pearson pleaded guilty to count 180 of an

indictment charging him with possession of child pornography

involving the sexual exploitation of minors. The district court

departed upward from the guideline-imprisonment range in sentencing

Pearson to a 41-month term of imprisonment. The district court

stated that it had departed upward because of the number of photos

and because Pearson had possessed materials that portrayed children

involved in sadistic and masochistic conduct. Pearson contends
that the district court erred in departing upward from the

guideline imprisonment range. A district court may depart upward

from the applicable guideline range if the court finds that an

aggravating circumstance exists that was not adequately taken into

consideration by the Sentencing Commission. 18 U.S.C. § 3553(b).

A district court’s decision to depart from the guidelines is

reviewed for abuse of discretion. United States v. Ashburn, 38

F.3d 803, 807 (5th Cir. 1994) (en banc). 

Pearson contends that the factors considered by the district

court in departing from the guideline imprisonment range were

adequately considered by the Sentencing Commission. Although

§ 2G2.4 does deal with sexual exploitation of minors generally, it

does not specifically address the aggravating circumstance of

possession of materials containing sadomasochistic depictions. See

§ 2G2.4. Moreover, the number of items possessed by the defendant

greatly exceeded the number necessary for the two-level enhancement

under § 2G2.4(b)(2). 

In departing from the guideline range, the district court

rejected Pearson’s argument that his crime was victimless because

he merely retrieved the images from the internet, where they would

have been available whether he retrieved them or not, and that he

had not been personally involved in the exploitation of minors.

The district court rejected this argument, stating its belief that

the supply of such materials is driven by demand. See United

States v. Norris, ___ F.3d ____ (5th Cir. Oct 29, 1998) (No.

98-40148), 1998 WL 754904, *3-5 (“Unfortunately, the

‘victimization’ of the children involved does not end when the
pornographer’s camera is put away. The consumer, or end recipient,

of pornographic materials may be considered to be causing the

children depicted in those materials to suffer as a result of his

actions . . . .”). The district court’s decision to depart upward,

based upon its reasonable belief that the demand for

sadomasochistic materials contributed to the supply of such

materials and based upon the number of prohibited items involved in

the offense, was not an abuse of its discretion. The sentence is

AFFIRMED.