                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                  F I L E D
                      REVISED APRIL 25, 2006
                                                                    April 7, 2006
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                                                                       Clerk


                            No. 05-40950


UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,
versus

VICTOR M. GONZALEZ,

                                             Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      --------------------

Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellant    Victor   M.   Gonzalez   pleaded    guilty     to

knowingly possessing a computer containing ten or more images of

child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B),

2252A(b)(2), and 2256(8)(A).    Based on the timing of his offense,

the district court sentenced Gonzalez in accordance with the 2002

Sentencing Manual, as amended in April 2003.1          Gonzalez’s base

offense level under U.S.S.G. § 2G2.4(a) was 15, and the presentence

report (“PSR”) calculated a total offense level of 27 after various

enhancements. Among the sentencing enhancements recommended in the


     1
       Gonzalez was indicted by the grand jury on May 13, 2004,
pleaded guilty on March 8, 2005, and was sentenced on June 10,
2005.
PSR were (1) a two-level enhancement under § 2G2.4(b)(2) for

possession of ten or more items depicting the sexual exploitation

of minors, and (2) a five-level enhancement under § 2G2.4(b)(5)

because the offense involved 600 or more images.            Combined with a

criminal history category of I, Gonzalez’s total offense level of

27 resulted in a Guideline imprisonment range of 70 to 87 months.

The district court adopted the PSR and sentenced Gonzalez to 87

months’      imprisonment.      It   also   ordered   a   lifetime   term   of

supervised release — the statutory maximum and an upward departure

from the Guidelines term of three years — as recommended by the

PSR.       This appeal followed.

                             I. STANDARD OF REVIEW

       We review the district court’s interpretation and application

of the Sentencing Guidelines de novo and its factual findings for

clear error.2        We review upward departures in sentencing for

reasonableness, which requires us to review “the district court’s

decision to depart upwardly and the extent of that departure for

abuse of discretion.”3

                                 II. ANALYSIS

A. Double Counting for Number of Images




       2
       United States v. Villanueva, 408 F.3d 193, 202-03 (5th
Cir. 2005).
       3
       United States v. Saldana, 427 F.3d 298, 308 (5th Cir.
2005) (citations omitted).

                                       2
     Gonzalez’s offense level was increased twice on the basis of

the number of child pornography images he possessed:        a two-level

enhancement under § 2G2.4(b)(2) for possession of “ten or more”

such images4 and a five-level enhancement under § 2G2.4(b)(5) for

possession of “600 or more” images.5        The latter provision, §

2G2.4(b)(5), was enacted in the 2003 PROTECT Act, which failed to

address, and thus left undisturbed, its predecessor from 1991, §

2G2.4(b)(2).   At least technically, then, the two provisions were

“on the books” at the time of Gonzalez’s offense and at the time he

was sentenced, while the 2002 edition of the Sentencing Manual was

in effect.

     We are satisfied that the PROTECT Act, which became effective

on April 30, 2003, and includes the new, graduated scale of

enhancements   inserted   as   §   2G2.4(b)(5)   of   the   Guidelines,

superseded § 2G2.4(b)(2).      There is a distinguishing difference

between the routine tweakings of the Guidelines scheme by the

Sentencing Commission acting on its own and changes expressly

wrought by a direct congressional amendment with an effective date

     4
       U.S.S.G. § 2G2.4(b)(2), adopted by Congress in 1991,
directed an increase of two levels “[i]f the offense involved
possessing ten or more books, magazines, periodicals, films,
videotapes, or other items, containing a visual depiction
involving the sexual exploitation of a minor ....”
     5
       § 2G2.4(b)(5), effective April 30, 2003, comprises a
graduated schedule of enhancements based on the number of images
involved: (A) If at least 10 but fewer than 150, increase by 2
levels; (B) at least 150 but fewer than 300, 3 levels; (C) at
least 300 but fewer than 600, 4 levels; (D) 600 or more, 5
levels.

                                   3
set   by   Congress.     And,       the   Sentencing   Commission    itself

subsequently recognized that the PROTECT Act’s insertion of §

2G2.4(b)(5) “superceded” § 2G2.4(b)(2).6

      From the effective date of the PROTECT Act forward, therefore,

only the graduated scale of § 2G2.4(b)(5) applied, mandating in

Gonzalez’s case only a single, five-level enhancement.              We thus

conclude that the district court erred as a matter of law in

cumulatively applying both the two-level enhancement under the

superseded   provision   of     §    2G2.4(b)(2)   and   the   five-level

enhancement under § 2G2.4(b)(5)(D), which superseded it.7

      6
       Effective November 1, 2004, after Gonzalez was sentenced,
the Sentencing Commission eliminated the apparently inadvertent
coexistence of the two provisions by excising § 2G2.4(b)(2) from
the Guidelines, and clarifying that

      The PROTECT Act directly amended §§ 2G2.2 and 2G2.4 to
      create a specific offense characteristic related to the
      number of child pornography images.        That specific
      offense characteristic provides a graduated enhancement
      of two to five levels, depending on the number of images.
      ... Because the image specific offense characteristic
      created directly by Congress in the PROTECT Act
      essentially supersedes an earlier directive regarding a
      specific offense characteristic relating to the number of
      items (see Pub. L. 102-141 and Amendment 436), the
      Commission deleted the specific offense characteristic
      for possessing ten or more child pornography items
      (formerly § 2G2.4(b)(3)).

U.S.S.G. app. C (hereafter, “Amendment 664”) (emphasis added).
      7
       We are aware of the Eleventh Circuit’s decision in United
States v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005), which in
rejecting the “double counting” argument, stated that “[t]here is
no evidence at all that Congress meant to repeal § 2G2.4(b)(2)
when it enacted § 2G2.4(b)(5)(D),” 401 F.3d at 1272. We find
that decision unpersuasive, particularly given that court’s
failure to consider Amendment 664 at all in reaching its

                                      4
B. Lifetime Term of Supervised Release

     In departing upward to the statutory maximum lifetime term of

supervised release, the district court followed the recommendation

of U.S.S.G. § 5D1.2 pertaining to “sex offense[s].”8                   Gonzalez

challenges this upward departure, arguing that (1) § 5D1.2 does not

apply because the offense of which he was convicted is not a “sex

offense,” (2) the court failed to include specific reasons for the

upward departure in the judgment, as required by 18 U.S.C. §

3553(c)(2),    and   (3)      the    extent   of   the   upward   departure   was

unreasonable.

1. Violation of § 2252A Is A “Sex Offense”

     For    purposes     of    the    recommended    upward   departure   under

U.S.S.G. § 5D1.2, a “sex offense” is “an offense, perpetrated

against a minor ....”9         Gonzalez contends that mere consumption —

as opposed to production — of child pornography does not qualify

because it is not an offense perpetrated directly against a minor.

We recognize no such fine distinction. In fact, we have previously

rejected the argument that the consumption of child pornography is

only an indirect offense, observing that “there is no sense in

distinguishing ... between the producers and the consumers of child


conclusion.
     8
       § 5D1.2(c) provided: “(Policy Statement) If the instant
offense of conviction is a sex offense, the statutory maximum
term of supervised release is recommended.” U.S.S.G. § 5D1.2(c)
(2002).
     9
         Id. cmt. n.1.

                                         5
pornography. Neither could exist without the other. The consumers

of child pornography therefore victimize the children ... by

enabling    and    supporting   the   continued    production    of     child

pornography,       which   entails    continuous    direct      abuse     and

victimization of child subjects.”10       Gonzalez’s possession of child

pornography in violation of 18 U.S.C. § 2252A is a “sex offense”

within the meaning of U.S.S.G. § 5D1.2, qualifying him for upward

departure.11      In addition, our holding that Gonzalez’s offense is

a “sex offense” and is therefore covered by § 5D1.2 nullifies his

argument that he did not receive the notice required by FED. R.

CRIM. P. 32(h), as the PSR directly cited § 5D1.2 in recommending

an upward departure.12

2. Statement of Specific Reasons for Sentence

     Gonzalez complains that the district court failed to state,

either in its written order or in open court, specific reasons for

imposing a sentence outside the Guidelines range, as required by 18

U.S.C. § 3553(c)(2).13     This contention is meritless.     The district


     10
          United States v. Norris, 159 F.3d 926, 930 (5th Cir.
1998).
     11
       The Tenth Circuit has also so held. See United States v.
Kimler, 335 F.3d 1132, 1147 (10th Cir. 2003).
     12
        See United States v. Davenport, 286 F.3d 217, 219 (5th
Cir. 2002) (holding separate notice of intent to depart
unnecessary where grounds for departure stated in PSR); FED. R.
CRIM. P. 32(h).
     13
       18 U.S.C. § 3553(c)(2) provides in relevant part: “The
court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if

                                      6
court provided written reasons for its departure in its “Statement

of Reasons” filed with the written judgment.     The court stated,

under the heading “DEPARTURE,” that

     [T]he Court departs upward to life, as provided by
     statute and encouraged under the policy statement at
     U.S.S.G. § 5D1.2(c).     The Court finds a supervised
     release term of life will benefit society and reflects
     the Court’s experience that persons rarely get better in
     these types of cases.      The Court must ensure the
     defendant cannot continue to create a lifeline to this
     type of industry.14

The district court also explained, in open court, that

     This Court’s experience with these sorts of folks is that
     they never get better. Sex offenders have the lowest
     rate of recovery and the highest rate of recidivism of
     any criminal defendant. This is an addiction that is
     almost impossible to overcome.      And I think for the
     benefit of society and for the benefit of the protection
     of those who are victimized by these sorts of crimes to
     prevent this individual being a proven consumer of this
     creating a lifeline, as it were, to this kind of
     insidious industry requires a lifetime of supervision.
        On that basis and because I think it’s justified under
     the facts and the applicable law, I’m varying to provide
     life supervision.

The district court’s statements, made both orally in open court and

in writing in its Statement of Reasons, satisfied the requirements

of § 3553(c)(2).

3. The Extent of the Upward Departure Was Not Unreasonable




the sentence ... is outside the [Guidelines] range, ... the
specific reason for the imposition of a sentence different from
that described, which reasons must also be stated with
specificity in the written order of judgment and commitment ....”
     14
          Statement of Reasons at 2 (sealed).

                                  7
     The extent of the departure in Gonzalez’s term of supervised

release — from the Guidelines term of three years to the statutory

maximum term of life — was within the district court’s discretion

and was not unreasonable.      “A sentencing court does not abuse its

discretion in deciding to upwardly depart when its reasons for

doing so (1) advance the objectives set forth in 18 U.S.C. §

3553(a)(2); (2) are authorized by 18 U.S.C. § 3553(b); and (3) are

justified by the facts of the case.”15      The district court’s stated

reasons for upward departure satisfy these requirements.               As

already noted, the court expressly adopted          the § 5D1.2 policy

statement recommended by the PSR.            At sentencing and in its

Statement    of    Reasons,   the   court   addressed   the   nature   and

circumstances of the offense, including specifically the need for

the sentence imposed to reflect the seriousness of the offense, to

promote respect for the law, to afford adequate deterrence to

criminal conduct, and to protect the public from further crimes of

the defendant.16    Further, the court at sentencing stated its view

that life supervision was “justified under the facts and applicable

law.”     The extent of the upward departure in Gonzalez’s term of

supervised release was not an abuse of discretion and was not

unreasonable.

                              III. CONCLUSION

     15
          Saldana, 427 F.3d at 310 (citing 18 U.S.C. § 3742(j)(1)).
     16
       See 18 U.S.C. § 3553(b) (listing factors to be considered
in imposing a sentence).

                                     8
     Gonzalez’s   lifetime    term    of    supervised          release        was      not

unreasonable.     The district court erred as a matter of law,

however, in applying the two-level enhancement under § 2G2.4(b)(2),

which, prior to sentencing, was superseded by a specific provision

of the PROTECT Act of 2003.    The court should have applied only the

five-level   enhancement      under       the    graduated            scale        of       §

2G2.4(b)(5)(D). We therefore vacate Gonzalez’s sentence and remand

for resentencing.

SENTENCE VACATED and CASE REMANDED for resentencing.




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