                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-1996

United States v. Romualdi
Precedential or Non-Precedential:

Docket 96-7113




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       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                            No. 96-7113



                  UNITED STATES OF AMERICA,
                                          Appellant
                              v.

                          ROMEO ROMUALDI



        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                     (D.C. No. 95-cr-00197)



                      Argued July 18, 1996

                Before: SLOVITER, Chief Judge,
                 COWEN and ROTH, Circuit Judges

              (Opinion filed December 11, 1996)



David M. Barasch
United States Attorney

Theodore B. Smith, III (Argued)
Assistant United States Attorney
Office of United States Attorney
Harrisburg, PA 17108

         Attorney for Appellant

Robert Sullivan, Jr. (Argued)
Sullivan, Sullivan & Snelling
Lebanon, PA 17042

         Attorney for Appellee


                         OPINION OF THE COURT


SLOVITER, Chief Judge.
         In United States v. Bierley, 922 F.2d 1061 (3d Cir.
1990), we held that a sentencing court has authority to depart
downward under the Sentencing Guidelines by analogy to the
adjustment for Mitigating Role in the Offense if defendant would
have been entitled to that adjustment had the supplier, an
undercover postal inspector, been a criminally culpable
participant. In this case we are asked to consider whether
Bierley should be extended to a defendant charged and convicted
of a single-person offense.
                                I.
                   FACTS AND PROCEDURAL HISTORY
         In May 1995, Appellee Romeo Romualdi ordered a catalog
by mail from L.G. Enterprises, a business that sold pornographic
materials. Unknown to Romualdi, L.G. Enterprises had recently
been the subject of a federal investigation and was taken over by
the Postal Inspection Service. The following month Romualdi
ordered two videotapes from L.G. Enterprises. One of the tapes
was entitled "First Fuck," and was described in the catalog as
"Twelve Year Old Girl Has Sex With A Man For The First Time In
Her Life." The second tape was entitled "Wash Time," and was
described as "Eleven Year Old Girl Bathes With Woman, Have Sex
Together and With A Man." Romualdi requested that the tapes be
sent to his home in Lebanon, Pennsylvania but that they be
addressed to "Superior Merchandise" rather than to him in his own
name.
         On July 6, 1995, the tapes were delivered to Romualdi's
residence while postal inspectors maintained surveillance of the
delivery. Romualdi received the tapes, and ten minutes later the
investigators searched his home pursuant to a federal search
warrant. During the search they found that the two tapes that
had just been delivered to Romualdi were in a garbage can covered
with newspaper. A further search revealed more pornographic
material. The inspectors found two more tapes that purported to
be depictions of nudist colonies, in which the camera focused
upon the genitals of young girls. They also found thirteen
pornographic videos depicting adult women dressed as girls.
Romualdi also had pasted the faces of young girls, which he
obtained from a Sears catalog, over the faces of women in the
photographs of adults having sex. The inspectors also found a
video entitled "Fallen Angel," which the presentence report
describes as "a non-pornographic movie dramatizing the sexual
relationship be[twe]en an adult male and a twelve year old girl
whom the male lures into child pornography."
         Romualdi told the postal inspectors that when he
ordered the two tapes from L.G. Enterprises he believed that they
would be like the other tapes he owns in which the people in the
tape were all over eighteen and were only dressed like children.
He stated that he had started to view the tapes but had thrown
them away because of their poor quality. He also stated that the
reason why he had the tapes addressed to "Superior Merchandise,"
rather than his own name, was to avoid embarrassment if the
packages had broken open while being transported through the
mails. When questioned about the pictures with the girls' faces
pasted to them, Romualdi admitted that he fantasized about young
girls having sex.
         After consulting an attorney, Romualdi signed a plea
agreement with the government. Pursuant to that agreement,
Romualdi pleaded guilty to knowingly possessing three or more
videotapes containing child pornography, a crime under 18 U.S.C.
§ 2252(a)(4). Child pornography is defined as material "which
involves the use of a minor engaging in sexually explicit
conduct." 18 U.S.C. § 2252(a)(1)(A). Romualdi also agreed to
provide the government with information that would be useful in
future investigations relating to child pornography. The
government agreed not to bring any more charges against Romualdi
and agreed to seek the sentencing term available under the
Sentencing Guidelines.
         The United States Parole Office calculated Romualdi's
base offense level at 13 pursuant to U.S.S.G. § 2G2.4(a),
"possession of child pornography." Because some of the tapes in
Romualdi's possession depicted girls under the age of twelve,
the base level was increased by two to 15, pursuant to U.S.S.G. §
2G2.4(b)(1). The level was then lowered two points because of
Romualdi's acceptance of responsibility, thereby bringing the
total offense level to 13. Because Romualdi had no previous
criminal record, the sentencing range for level 13 was calculated
at twelve to eighteen months. The presentence report stated that
consistent with this court's decision in United States v.
Bierley, 922 F.2d 1061 (3d. Cir. 1990), the district court could
depart two or four levels from the total offense level by analogy
to U.S.S.G. § 3B1.2, if the court determined that Romualdi was a
minimal or minor participant in the offense.
         The presentence report noted that Romualdi had been in
the Army for two years, had a good family background and had a
good relationship with his 26 year old daughter, who was born
from Romualdi's five year cohabitation with a girlfriend. None
of those questioned was able to explain the conduct leading to
the offense.
         At the suggestion of the probation officer, Romualdi
underwent a psychological evaluation by Roy Smith, Ph.D.,
Executive Director of Pennsylvania Counseling Services. In his
report, Dr. Smith suggested that Romualdi suffered from a
moderately severe dependent personality disorder with prominent
obsessive compulsive traits, and that he needed to be seen in a
good light by other people but had isolated himself from society.
The doctor believed that Romualdi viewed pornographic films
because of this isolation - as a way to feel closer to society -
and he indicated that Romualdi's interest in pornographic films
with child themes "may signify a developmental arrest or sexual
addiction." Dr. Smith concluded that time in jail would be
counterproductive as it would only increase Romualdi's isolation
from his already limited social network and exacerbate his
psychological condition. In addition, incarceration would
interfere with Romualdi's operation of the pool hall and t-shirt
store that he owns, thus creating additional financial stress
which could lead to further psychological isolation. Instead,
the doctor recommended that Romualdi be placed on probation and
forced to attend group therapy for sexually addictive and child
molesting individuals.
         At Romualdi's sentencing, which took place in district
court on January 16, 1996, the government followed the plea
agreement and recommended the minimal sentence available under
the applicable sentencing range, twelve months in jail. The
court, however, departed from the Guidelines, citing as authority
our opinion in Bierley, and reduced Romualdi's total offense
level by three, from 13 to 10, finding by analogy to § 3B1.2 of
the Sentencing Guidelines that the defendant's conduct qualified
for a mitigating role reduction. Using the new offense level of
10, the court sentenced Romualdi to three years probation, six
months of which would be spent in home confinement, and a $5,000
fine.   The United States appeals.
         We have jurisdiction over the government's appeal from
the district court's judgment of sentence pursuant to 18 U.S.C. §
3742(b) (1993) and 28 U.S.C. § 1291 (1993).
                               II.
                        STANDARD OF REVIEW
         In its recent opinion in Koon v. United States, 116
S.Ct 2035, 2043 (1996), the Supreme Court held that in reviewing
appeals from a district court's decision to depart from the
sentencing ranges in the Sentencing Guidelines, "[t]he appellate
court should not review the departure decision de novo, but
instead should ask whether the sentencing court abused its
discretion." Id. at 2043. Nonetheless, the appellate court
retains the obligation to correct mistaken legal conclusions. As
the Supreme Court stated in Koon:
         [W]hether a factor is a permissible basis for departure
         under any circumstances is a question of law, and the
         court of appeals need not defer to the district court's
         resolution of the point. Little turns, however, on
         whether we label review of a particular question abuse
         of discretion or de novo, for an abuse of discretion
         standard does not mean 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 (citations omitted).

         The government argues that the district court erred as
a matter of law in concluding that it had the authority to depart
downward from the guidelines under our holding in Bierley, and
that our review is plenary. The government's brief was filed
before the Koon decision, but for practical purposes our review
is the same under the abuse of discretion standard since we must
examine what is, in substance, a legal issue.
                               III.
                            DISCUSSION
                                A.
         Bierley, upon which the district court and presentence
report relied, involved the sentencing of a defendant who pled
guilty to receipt of child pornography under circumstances
similar, but not identical, to those involved here. Like
Romualdi, Bierley ordered materials that contained child
pornography through the mail. See Bierley, 922 F.2d at 1063. An
undercover postal agent acted as the distributor of the materials
-- four magazines depicting children in sexually-suggestive poses
and involved in sexual activities -- and after the magazines were
delivered, the postal inspectors conducted a search of Bierley's
house. Id. Unlike the search of Romualdi's residence, however,
the inspectors found no other articles of child pornography
except for the magazines that Bierley had received through the
sting operation. Id. at 1064. Bierley was arrested and
eventually pleaded guilty to "willfully and knowingly receiving
and causing to be delivered by mail, visual depictions of minors
engaging in sexually explicit conduct," in violation of 18 U.S.C.
§2252(a)(2). Id.
         At his sentencing hearing, Bierley contended that he
was entitled to a downward adjustment in his sentence as a minor
or minimal participant in the offense. Id.   Chapter 3, Part B,
of the Sentencing Guidelines provides for adjustment of a
defendant's offense level predicated on his or her role in the
offense. See U.S.S.G. § 5H1.7. U.S.S.G. § 3B1.1 allows for a
downward adjustment where a defendant acted as a minor or minimal
participant in a concerted activity. The Mitigating Role
Guideline provides:
         Based on the defendant's role in the offense, decrease
         the offense level as follows:
         (a) If the defendant was a minimal participant in any
              criminal activity, decrease by 4 levels.
         (b) If the defendant was a minor participant in any
              criminal activity, decrease by 2 levels.
         In cases falling between (a) and (b), decrease by three
         levels.

U.S.S.G. § 3B1.2.

         The district court declined to adjust Bierley's offense
level pursuant to U.S.S.G. § 3B1.2, holding that under the
language of § 3B1.2, the mitigation is available only when the
defendant is a minimal or minor "participant" in an offense that
involves concerted activity. See Bierley, 922 F.2d at 1066. A
"participant" is defined as a person who can be held "criminally
responsible for the commission of the offense." U.S.S.G. §
3B1.1, comment. (n.1). Bierley was the only "participant,"
inasmuch as the undercover postal inspector who sent the child
pornography was not "criminally responsible" and there was no one
else involved in the activity to whom Bierley could be compared
for culpability. See Bierley, 922 F.2d at 1066; see also United
States v. Katora, 981 F.2d 1398, 1402 (3d Cir. 1992) (citing
Bierley for the rule that sections 3B1.1 and 3B1.2 only apply
where there is more than one "participant" in the offense);
United States v. Badaracco, 954 F.2d 928, 934 (3d Cir. 1992)
(same).
         On Bierley's appeal, we agreed that U.S.S.G. § 3B1.2
was not directly applicable if there was no more than one
criminally responsible participant, but we nevertheless held that
the district court did have the authority to depart downward from
the Guidelines in that situation. Relying on the principles
underlying the Sentencing Commission's departure policy and the
language in the Guidelines allowing for discretionary departure,
see 18 U.S.C.A § 3553(b), U.S.S.G. § 5K2.0, we held that district
courts have the authority to apply the Guidelines by analogy in
the rare cases when the basis for the departure is conduct
similar to that encompassed in the "Role in the Offense"
Guidelines but otherwise unavailable to the defendant. Bierley,
922 F.2d at 1068. Where a case is atypical, or for some other
reason falls outside of the scope of the cases considered by the
Sentencing Commission in drafting the Guidelines, the district
court may use analogic reasoning to allow a departure. Id. at
1067-69.
         Bierley's situation was atypical because he was being
denied the opportunity for mitigation under § 3B1.2 simply
because the other person involved in the activity could not be
considered a "participant" in the activity as defined by the
Sentencing Guidelines. See Bierley, 922 F.2d at 1068. Thus, we
instructed the district court that it could depart from the
Guidelines and adjust Bierley's sentence in a manner analogous to
§ 3B1.2 if the court believed Bierley's conduct would qualify as
"minor" or "minimal" had the postal agent been a "participant."
See id. at 1070; see also United States v. Stuart, 22 F.3d 76, 83
(3d Cir. 1994) (in departing by analogy, "'the court predicts
what level of punishment the Sentencing Commission would have
assigned to the offense had it been considered...'.") (quoting
United States v. Strickland, 941 F.2d 1047, 1051 (10th Cir.),
cert. denied, 112 S.Ct. 614 (1991)).
         The Second Circuit adopted the reasoning of Bierley in
United States v. Speenburgh, 990 F.2d 72, 74 (2d Cir. 1993), as
did the Ninth Circuit in United States v. Valdez-Gonzalez, 957
F.2d 643, 648 (9th Cir. 1992).
         The government argues that this case is not analogous
to Bierley. The principal distinction that the government
proffers is that unlike Bierley, who pled guilty to receipt of
child pornography, Romualdi pled guilty to possession of child
pornography. The government argues that while the receipt of
child pornography may be viewed as a concerted activity, to which
§ 3B1.2 is or could be applicable if the party sending the
material had not been a government agent, the possession of child
pornography is a single-person offense, to which § 3B1.2 is
inapplicable.
         The government's argument is not merely technical.
Both the relevant statute and the Sentencing Guidelines make a
distinction between receipt and possession of child pornography.
Under 18 U.S.C. § 2252(a), which criminalizes certain activities
in such materials that have been mailed, shipped or transported
in interstate or foreign commerce, there is a distinction made
among the types of activity with which the defendant is charged.
Subsection (a)(1) covers any person who "knowingly transports or
ships" such material. Subsection (a)(2) covers any person who
"knowingly receives or distributes" such material. Subsection
(a)(3) covers any person who "knowingly sells or possesses with
intent to sell" such material. Subsection (a)(4) covers any
person who "knowingly possesses 3 or more copies of such
material."
         Those convicted of one of the first three subsections,
those engaged in knowing transportation or shipment, receipt or
distribution, and sale or possession with intent to sell, are
subject to fine and/or imprisonment for not more than ten years
for the first such conviction. See 18 U.S.C. § 2252(b)(1). In
contrast, those covered by Subsection (a)(4), i.e., the knowing
possession of the material, are subject to imprisonment for not
more than 5 years, half the sentence of one convicted of knowing
receipt. See id. at (2).
         The Sentencing Guidelines also differentiate between
receipt of child pornography and mere possession. Receipt, the
more serious offense, carries an offense level of 15 whereas
possession, rated less seriously, carries an offense level of 13.
Compare U.S.S.G. § 2G2.2 with U.S.S.G. § 2G2.4. Before there can
be an adjustment of the offense level under § 3B1.1 or § 3B1.2,
the offense must be one that meets the threshold requirement of
involving more than one criminally responsible participant. As
we explained, "[t]his follows because the adjustments authorized
for role in the offense are directed to the relative culpability
of participants in group conduct." Bierley, 922 F.2d at 1065;
see also United States v. Thompson, 990 F.2d 301, 304 (7th Cir.
1993) (holding that defendant convicted of being a felon in
possession of a firearm, a single-person offense, not entitled to
mitigation under U.S.S.G. § 3B1.2).
         Departure was authorized in Bierley because Bierley's
offense, receipt of child pornography, involved a concerted
activity between himself and the sender and, but for the fact
that the other persons involved in the offense were federal
agents immune from criminal responsibility, Bierley would have
been entitled to consideration for adjustment in offense level
via a direct application of § 3B1.2.
       The crime to which Romualdi pled guilty as charged,
possession, not receipt, of child pornography, is a crime that on
its face requires no concerted activity. Although in almost all
instances the possession followed receipt, they are different
crimes as noted above. Because the purpose of § 3B1.2 is to
permit mitigation of the sentence of a defendant who is a minimal
participant in an offense involving concerted activity, Romualdi
would not have been entitled to an adjustment under § 3B1.2, even
if the person that delivered the pornography had been criminally
responsible.
         Romualdi asserts that his simple act of possession was
a minimal part of a larger distribution ring, a criminal scheme
that was directed and controlled by other persons. He reasons
that had the other participants in the scheme not been undercover
agents, he, like Bierley, would have been entitled to a reduction
in sentence if it was determined that his role was minor or
minimal pursuant to U.S.S.G § 3B1.2. Romualdi is simply wrong in
that claim because the offense of which he was charged and
convicted was significantly less serious than warranted by his
actual conduct. Therefore, even had his conduct involved a
concerted activity, he would have been ineligible for mitigation
under U.S.S.G. § 3B1.2.
         Comment Four of the Guideline Commentary to U.S.S.G. §
3B1.2 states in part:
         If a defendant has received a lower offense
         level by virtue of being convicted of an
         offense significantly less serious than
         warranted by his actual criminal conduct, a
         reduction for a mitigating role under this
         section ordinarily is not warranted because
         such a defendant is not substantially less
         culpable than a defendant whose only conduct
         involved the less serious offense.

          U.S.S.G § 3B1.2, comment. (n.4).

         This commentary, which was added by amendment in 1992,
has not been the subject of any reported opinion by this court.
Other courts of appeals, however, have determined that a
reduction under § 3B1.2 is unavailable to a defendant in
Romualdi's situation. See United States v. Windom, 82 F.3d 742,
748 (7th Cir. 1996) (defendant not convicted of larger drug
conspiracy not entitled to reduction under § 3B1.2); United
States v. Lucht, 18 F.3d 541, 556 (8th Cir. 1994) (same); United
States v. Olibrices 979 F.2d 1557, 1560 (D.C. Cir. 1992) (same).
         A contrary rule would permit a defendant to claim s/he
played a minimal part in a more serious offense in order to
obtain a reduction under U.S.S.G. § 3B1.2, even though the more
serious offense was not taken into account in setting the initial
base offense level in the first place. Not only would such a
rule contravene the purposes of the "Mitigating Role in the
Offense" Guideline, which is designed to temper the injustice of
treating unequally culpable defendants the same for sentencing
purposes, it also leads to
         the absurd result that a defendant involved both as a
         minor participant in a larger distribution scheme for
         which she was not convicted, and as a major participant
         in a smaller scheme for which she was convicted, would
         receive a shorter sentence than a defendant involved
         solely in the smaller scheme.

Olibrices, 979 F.2d at 1560.

         Here, Romualdi pled guilty to possession of child
pornography pursuant to 18 U.S.C. § 2252(a)(4), and therefore he
obtained the benefit of a lower base offense level then had the
crime been receipt of child pornography. U.S.S.G. § 3B1.2 is
simply unavailable, by analogy or otherwise, under these
circumstances. For the reasons set forth above, we must vacate
the district court's judgment of sentence and remand to the
district court for resentencing.
                                B.
         Our holding that the district court's departure in this
case was one that had no basis in the law because § 3B1.2 would
not have been applicable in any event does not preclude the
district court from considering departure on another ground.
This matter came before the district court for sentencing before
the Supreme Court announced its decision in Koon which clarified
the grounds upon which a district court may and may not depart.
The Court explained in Koon that the availability of departure
depends on whether the special factor used by the district court
as a basis for departure is an "encouraged" factor because it is
one that "the Commission has not been able to take into account
fully in formulating the Guidelines," a "discouraged" factor, or
one that is unmentioned in the Guidelines. Koon, 116 S.Ct. at
2045 (internal quotation marks omitted).
         The Court noted that if the factor is one that is
encouraged, the sentencing court is authorized to depart if the
applicable guideline does not already take it into account. In
contrast, a discouraged factor is not ordinarily relevant to the
determination of whether a sentence should be outside the
applicable guideline range, and therefore should be relied upon
only "in exceptional cases." Id. Finally, in discussing a
factor that is not mentioned at all, the Court stated that the
sentencing court had authority, after considering the "'structure
and theory of both relevant individual guidelines and the
Guidelines taken as a whole,' . . . to decide whether it is
sufficient to take the case out of the Guideline's heartland."
Id. at 2045 (quoting United States v. Rivera, 994 F.2d 941, 949
(1st Cir. 1993) [an opinion by then Judge, now Justice, Breyer]).
The Court thus recognized a flexibility in departure that may not
have been hitherto fully appreciated by the district courts.
          In this connection, we note that Romualdi has
apparently completed his service of the most stringent part of
the sentence imposed by the district court, i.e. home confinement
for six months. On remand, the district court may want to
consider whether this is a factor that would warrant departure.
A similar situation arose in United States v. Miller, 991 F.2d
552 (9th Cir. 1993), where the sentencing court had departed on
the ground that the defendant had two children who would be
placed at potential risk, a factor that was found by the Court of
Appeals to have been improper inasmuch as the Commission had
concluded it is not ordinarily relevant in determining whether to
depart. Id. at 553; see United States v. Shoupe, 929 F.2d 116,
121 (3d Cir. 1991). Nonetheless, the Court of Appeals noted that
the defendant had almost finished serving her six months of home
detention at the time the district court held a second sentencing
hearing, a fact also cited by the district court in departing
from the applicable guideline range. The Court of Appeals
stated, in language equally relevant here:
         We agree it may have been proper to depart
         because of the six months of home detention
         Miller had already served. The fact that
         she'd already been punished to some extent is
         certainly relevant to what further sentence
         is needed to punish her and deter others.
         See 18 U.S.C § 3553(a)(2) (sentence should
         reflect these and other considerations). And
         because the Commission seems not to have
         considered the issue of compensating for time
         erroneously served, the district court was
         free to depart. See 18 U.S.C. § 3553(b).

Miller, 991 F.2d at 554. We agree.
         We do not suggest that this is the only possible basis
for departure, an inquiry that the Supreme Court emphasized in
Koon is primarily within the discretion of the sentencing court.
However, we do emphasize that departures based on grounds not
mentioned in the Guidelines will be "highly infrequent." Koon,
116 S.Ct. at 2035 (quoting 1995 U.S.S.G. ch. 1, pt. A). As we
observed in Bierley, departures not anticipated by the Sentencing
Commission in promulgating the Guidelines should be resorted to
only in the most "rare occurrences," Bierley, 922 F.2d at 1069; a
sentencing court should be able to articulate "'what features of
[the] case take it outside the Guideline's 'heartland' and make
of it a special, or unusual, case.'" Koon, 116 S.Ct. at 2035
(quoting Rivera, 994 F.2d at 949).
                               IV.
                            CONCLUSION
         For the reasons set forth above, we will vacate the
judgment of sentence and we will remand this case to the district
court for resentencing.
