                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-1997

United States v. McBroom
Precedential or Non-Precedential:

Docket
96-5719




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Recommended Citation
"United States v. McBroom" (1997). 1997 Decisions. Paper 211.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/211


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Filed 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. Crim. 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
       Crummy, 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 Livingston 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, at 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 possibility 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 consider 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
pornography. 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 seemed
       to 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 put 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 also 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 excess 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 judgments 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 "fascination" 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 McBroom'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 entered
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 closings, 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 unsuccessful, 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.

McBroom'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 "all 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 rehabilitation 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
approximately 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.
Unfortunately, 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 skin 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. McBroom 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 first
meeting; McBroom attends at least one Alcoholics
Anonymous 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 apartment 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 stare 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 the 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
imaginable 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 pornography. . . .
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 McBroom 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 investigating 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 knowingly
transporting 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 knowingly 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.
Sentencing 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 intoxicated. 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 agreed 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, this 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 adjustment 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 provide guidance on how to count images in
computer files on a single computer hard drive, the district court
declined 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 criminal 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 shall 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
account 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 defendant'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 victim'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

                                9
applicable 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 determination 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. If 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 include 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 would 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
encouraged 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 guidelines, 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-violent offense while
       suffering from significantly reduced mental capacity
       not 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. United 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 ordinarily
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 McBroom 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 departure). 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 and 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. McBroom 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 abuse, 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 preadolescent 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 then 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 Cir. 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 networks 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 significantly 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 an
offense level of thirteen and a criminal 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. Gartner 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 pornographic 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 explained 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 there 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 phenomenon 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 pornographic
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 district
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 improperly 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 controlling
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 over 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 that "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 discretion 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
plenary. 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 States 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 discretion 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 departure pursuant to section
5K2.13 is not available to any defendant, regardless of the
state 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 section
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, attempted 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
pornography 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
banc); 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 concluded 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 reconsider 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 better
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 vacated 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 suggested 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-violent 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 transmission 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 unsympathetic 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
pornography).

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 was
convicted of a crime of possession, not a crime of violence.

In addition, McBroom was not convicted 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 record 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 transporting 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 images 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 (Easterbrook, 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
violent 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 McBroom
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 violence 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-by-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 considered 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 accused "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. 718, 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 understood
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 also 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 based 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 task 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 courses 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
       society 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 control 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." Id.

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 of 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 phrase "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 deleted 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 "cognitive 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 insanity 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 contrast, 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 so 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 are 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' refers 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 and
       that it is wrong but cannot control himself is deficient
       in mental capacity.

United 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 volition 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
conduct." 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 of 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 actions. . . .
       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 (Easterbrook, 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. Hamilton, 949 F.2d 190 (6th
Cir. 1991) (per curiam), the defendant pled guilty to
possession of controlled substances with intent to
distribute. The defendant asserted that a gambling disorder
caused him to suffer from a "significantly reduced mental
capacity." 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 intellectual, 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 suffering 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 been 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 departure 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.3d
1364, 1367 (D.C. Cir. 1996) (rejecting defendant's argument
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 who
cannot 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 downward
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 reduction 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 extent 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 principles 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 a
discouraged factor nonetheless justifies departure because it 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 warrant 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
contributing 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 appeals 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
line 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 capacity, 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
exercising the power of reason." The court cited as an
example 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 McBroom 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
Disorder Not Otherwise Specified," classified as DSM-IV Code 312.30.
This category is for disorders of impulse control that do not meet the
criteria for any specific Impulse Control Disorder or for other mental
disorders having features involving impulse control 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 sexual 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 express 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 mindful 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 treat 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 individual 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 necessarily 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 also 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 control
over 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 section 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 reduced 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 within 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 reason, 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 different
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
concerns 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 consumption 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 mental 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, to
                                34



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
unwarranted 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 consider 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 significantly 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

                                35
appeals cautioned courts not to "create incentives 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." Id. 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
pornography, 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
