                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3426
                                  ___________

United States of America,             *
                                      *
            Plaintiff/Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the Southern
                                      * District of Iowa.
Jason Neal Lighthall,                 *
                                      *
            Defendant/Appellee.       *
                                 ___________

                             Submitted: October 21, 2004
                                Filed: November 23, 2004
                                 ___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      The government appeals the district court's1 twenty-month downward departure
arguing it was not legally or factually supported. We affirm.

                                        I

     Beginning in January 2002, twenty-one-year-old Jason Lighthall, a student at
Iowa State University, began collecting and disseminating pornographic materials

      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
using his university internet account. On March 25, 2002, university officials
discovered Lighthall's activities and reported them to police who obtained a search
warrant for his dormitory room and seized his computer and various related items.
Police discovered approximately 7000 pornographic images on the computer,
including child pornography.

      Lighthall cooperated and provided police with the online user names,
passwords and email programs he used to trade in child pornography. He admitted
knowing the images constituted prohibited child pornography. Shortly thereafter,
Lighthall moved out of the dormitory into his parents' home. Soon after moving into
his parents' house, and despite having provided police with his user names and
passwords, Lighthall resumed using his university internet account to trade in child
pornography. University officials again discovered the activity and reported it to
police. A search of Lighthall's room uncovered numerous computer disks containing
images of child pornography collected between April 8, 2002, and May 2, 2002. To
avoid detection, Lighthall had deleted the images from the hard drive of his parents'
home computer and downloaded them to disks which he hid in his bedroom closet.

       Police arrested Lighthall and charged him with 1) distribution of child
pornography in violation of 18 U.S.C. § 2252(a)(2), 2) possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B), 3) receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2), 4) a second count of possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), and 5) forfeiture
under 18 U.S.C. § 2253. Lighthall pleaded guilty and the court ordered a presentence
investigation. The presentence investigation report concluded Lighthall's base
offense level was 17, and after taking into account various upward and downward
adjustments, recommended an adjusted offense level of 27 with a sentencing range
as a category I offender of 70-87 months. Lighthall does not dispute these
calculations.



                                         -2-
       Prior to sentencing, Lighthall moved for a 5K2.13 downward departure on the
basis of 1) post-offense rehabilitation, 2) the need to continue sex-therapy treatment
which would be interrupted by incarceration, 3) susceptibility to abuse in prison, and
4) diminished capacity. The government objected to any downward departure.

       At the sentencing hearing, Dr. Nicholas Tormey testified he had provided twice
weekly sex-therapy treatments to Lighthall for eleven months. Tormey testified
Lighthall was socially inept, isolated, and found fulfillment through his ability to
master the internet. He testified Lighthall was compelled to resume his search for
pornography "because it had been so ingrained in him," and was Lighthall's "way of
managing" because it "distracts him from his lack of success in other areas" and
"from his significant anxiety in dealing with . . . peers." Tormey further testified
Lighthall had a compulsion to gather pornography and "couldn't not do it without
some kind of outside intervention." Finally, Tormey concluded Lighthall suffered
from a "significant mental illness" involving low level depression and "obsessive-
compulsive disorder that's reflected in the perfectionist way that he went about
collecting all of [his] erotica."

        Lighthall also presented a report from a second psychologist, Dr. Craig Rypma,
who reported Lighthall "harbored intense feelings of inferiority and insecurity," was
socially inept and a loner, had a "schizoid" lifestyle, and was sexually unadjusted,
finding sexuality "distressing, frustrating, and unsatisfying." Dr. Rypma concluded
Lighthall's "naivete, immaturity concerning issues of sexuality, poor self-esteem, and
poor social skills . . . contributed greatly to [his] retreat into the world of his computer
as a . . . desperate effort to understand his emerging sexuality."

      The government presented evidence opposing the first three bases asserted for
the downward departure, but relied solely on cross-examination to rebut the claim of
diminished capacity. On cross-examination, Tormey testified his opinions were based



                                            -3-
on Lighthall's self-reporting, and eleven months of twice weekly contact with
Lighthall during counseling sessions.

      The district court accepted the psychological evidence and concluded:

      With regard to departure under 5K2.13, through the reports, and the
      record, and the testimony of Dr. Tormey . . . viewing everything
      involved, including the defendant's compulsive activity, I do feel that
      the record establishes under 5K2.13, a justified downward departure. In
      that the defendant committed the offense while suffering from a
      significantly reduced mental capacity, and that being under application
      note 1. I think it covers (b), where it says that significantly reduced
      mental capacity means that the defendant, although convicted, has a
      significantly impaired ability to control behavior that the defendant
      knows is wrongful.

      This is one of the strongest cases that I have ever seen that falls within
      that definition.

      After being caught in – at Iowa State with this material he returned
      home, and even though he knew he was facing serious trouble, he turned
      right around and proceeded to keep doing it.

Sent. Tr. at 77-78.

      Based on these findings and conclusions, the district court sentenced Lighthall
to 70 months and awarded a twenty-month downward departure.2 The court denied
a departure on all other grounds and this appeal followed. On appeal, the government
argues Lighthall's compulsive-obsessive disorder does not legally or factually support
the downward departure.


      2
       Lighthall had spent four months in jail and to ensure he received credit for
those four months the district court sentenced him to 46 months.

                                         -4-
                                           II

"Whether the district court based a departure on a permissible factor . . . is to be
reviewed de novo." United States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003). "A
sentencing court's factual findings[, however,] are still reviewable for clear error and
the reasonableness of a permissible departure for abuse of discretion." Id. If a district
court departs from the guideline range, the Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No.
108-21, § 401(d), 117 Stat. 650, 670 (2003), requires the court to state its reasons for
departing "with specificity in the written order of judgment and commitment."
§ 401(c), 117 Stat. at 669 (amending 18 U.S.C. § 3553(c)(2)).

       "A factor is a permissible basis for departure if it 'advances the objectives set
forth in [18 U.S.C. §] 3553(a)(2),' 'is authorized under [18 U.S.C. §] 3553(b),' and 'is
justified by the facts of the case.'" Flores, 336 F.3d at 763 (quoting 18 U.S.C.
§ 3742(j)(1)). Section 5K2.13 of the United States Sentencing Guidelines permits a
downward departure when a defendant commits an offense "while suffering from a
significantly reduced mental capacity" if it "contributed substantially to the
commission of the offense." Application Note 1 states: "'Significantly reduced
mental capacity' means the defendant, although convicted, has a significantly
impaired ability to (A) understand the wrongfulness of the behavior comprising the
offense or to exercise the power of reason; or (B) control behavior that the defendant
knows is wrongful."

      The government first contends there was no factual basis for the departure, and
attacks Dr. Tormey's opinions arguing they were based on Lighthall's self-reporting
and were not verified by independent empirical testing. Further, the government
argues Lighthall's attempts to avoid detection by deleting the pornography from the
hard drive and downloading it to disks belies his claim he was unable to control his



                                          -5-
behavior. Rather, it shows he was calculating and able to alter his behavior when
necessary to continue his activities.

        The government does not dispute Dr. Tormey's and Dr. Rypma's qualifications
to provide expert opinions. Dr. Tormey treated Lighthall for eleven months at twice
weekly sessions and concluded Lighthall suffered from "a significant mental illness"
involving, among other things, an "obsessive-compulsive disorder." Sent. Tr. at 22-
23. Tormey further testified Lighthall had a compulsion to gather pornography and
"couldn't not do it without some kind of outside intervention." Sent. Tr. at 18.
Despite this testimony, the government chose not to call an expert to rebut the
opinions, but instead relied on cross-examination which proved ineffective.
Accordingly, we conclude there was sufficient evidence to establish Lighthall
suffered from a significantly reduced mental capacity, i.e., an obsessive-compulsive
disorder, and the district court was not clearly erroneous in crediting the unrebuttedd
expert testimony. Flores, 336 F.3d at 763 ("A sentencing court's factual findings are
still reviewable for clear error.").

       The government also argues Lighthall's attempts to avoid detection
demonstrate § 5K2.13 is inapplicable. We disagree. Section 5K2.13 is targeted at
offenders who demonstrate "a significantly impaired ability to . . . control behavior
that the defendant knows is wrongful." Application Note 1(B). Lighthall's attempts
to avoid detection while collecting child pornography show he knew his actions were
wrongful. Further, Lighthall's attempts to avoid detection do not undercut the district
court's finding of diminished capacity. It was precisely because Lighthall felt
compelled to engage in illegal behavior that he had to avoid detection; if caught, he
would have been stopped.

      Next, the government contends Lighthall's constellation of mental disorders
provides insufficient legal grounds for a downward departure under 5K2.13.
Specifically, the government argues Lighthall's behavior does not fall outside the

                                         -6-
heartland of cases involving child pornographers because all are presumptively
compelled to collect illegal pornography. Again, we disagree with the government's
analysis.

      The court shall impose a sentence of the kind, and within the range,
      referred to in subsection (a)(4) unless 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. In determining whether a circumstance was adequately
      taken into consideration, the court shall consider only the sentencing
      guidelines, policy statements, and official commentary of the Sentencing
      Commission.

18 U.S.C. § 3553(b).

       In Koon v. United States, 518 U.S. 81, 95-96 (1996), the Supreme Court listed
several factors, e.g., race, sex, national origin, religion, which courts are expressly
forbidden from taking into account during sentencing, while other permissible
sentencing factors are denoted as encouraged or discouraged. See 5K2.1-21
(enumerating some of the factors the Sentencing Commission believed were not
adequately accounted for in the guidelines). "The Sentencing Commission provides
guidance by identifying in subpart 5K2 a number of factors that it 'has not been able
to take into account fully in formulating the guidelines,' U.S.S.G. § 5K2.0, which
serve as encouraged bases for departure." United States v. Silleg, 311 F.3d 557, 561
(2d Cir. 2002).

      The Koon Court offered additional guidance to lower courts when dealing with
various sentencing factors that might arise.

      If the special factor is a forbidden factor, the sentencing court cannot use
      it as a basis for departure. If the special factor is an encouraged factor,
      the court is authorized to depart if the applicable Guideline does not

                                          -7-
      already take it into account. If the special factor is a discouraged factor,
      or an encouraged factor already taken into account by the applicable
      Guidelines, 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.

518 U.S. at 95-96 (emphasis added).

       Section 5K2.13 lists "diminished capacity" as one of the enumerated factors
under which a district court is authorized to depart if the factor is not already taken
into account by the applicable guideline. U.S.S.G. § 2G2.2, the guideline applicable
to Lighthall's case, does not "contain[] any language suggesting that diminished
capacity is not a permissible basis for departure in child pornography cases." Silleg,
311 F.3d at 562 (applying U.S.S.G. § 2G2.1).3 Moreover, § 2G2.2 contains no
language indicating the Sentencing Commission took diminished capacity into
account when formulating the guideline. Id. at 562-63. Thus, the district court
properly considered Lighthall's claim of diminished capacity. Further, because
diminished capacity is not taken into account under § 2G2.2, the district court did not,
as argued by the government, have to find "the factor is present to an exceptional
degree or in some other way [which] makes the case different from the ordinary case
where the factor is present." Koon, 518 U.S. at 95-96. In other words, the
"heartland" analysis does not apply to this departure.

       Application Note 1 to § 5K2.13 states the section applies when a
"'[s]ignificantly reduced mental capacity' . . . significantly impaired [a defendant's]
ability to . . . control behavior that the defendant knows is wrongful." Our review of
the record leads us to conclude the district court's application of § 5K2.13 to the facts
of this case was appropriate. Lighthall knew his conduct was illegal. After he was


      3
       The PROTECT Act, passed on April 30, 2003, amended § 5K2.13 making it
inapplicable in child pornography cases. The amendment is not controlling here
because Lighthall's conduct predated the amendment.

                                          -8-
caught and provided his online user names and passwords to police, he continued to
gather pornography even though detection was a virtual certainly. Finally, Dr.
Tormey's unrebutted testimony concluded Lighthall suffered from an obsessive-
compulsive disorder making it impossible for him to stop absent outside intervention.
Based on these facts, we affirm the district court's application of § 5K2.13.
Additionally, we hold the extent of the departure was reasonable. Flores, 336 F.3d
at 763 (holding the reasonableness of a departure is reviewed for an abuse of
discretion).

      One additional argument advanced by the government is the district court's
refusal to follow the public policy announced in the PROTECT Act against
downward departures for child pornographers.

      The PROTECT Act was passed on April 30, 2003. Among other changes, the
Act amended § 5K2.13 making it inapplicable in child pornography cases.
Accordingly, had Lighthall's conduct occurred after April 30, 2003, the district court
would have been precluded from departing downward based on diminished capacity.
Though Lighthall's conduct predated the Act, the government argues the district court
erred in refusing to apply the amendment because this court has repeatedly
recognized that district courts should take into account the policy considerations
underlying guideline amendments in deciding whether a departure is appropriate.

      We have stated "we believe that subsequent guidelines can be a useful
touchstone in making the determinations of reasonableness called for in upward
departure cases." United States v. Saffeels, 39 F.3d 833, 838 (8th Cir. 1994) (citing
United States v. Willey, 985 F.2d 1342, 1350 (7th Cir. 1993)). The government,
however, conceded when it brought the amendment to the district court's attention
and at oral argument, that the court was not bound to follow the amendment.
Therefore, we find no error.



                                         -9-
The judgment of the district court is affirmed.
               ______________________________




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