                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-1775
                                    ___________

United States of America,                *
                                         *
              Appellee,                  *    Appeal from the United States
                                         *    District Court for the
      v.                                 *    District of Minnesota.
                                         *
Lyle Robert Paton,                       *
                                         *
              Appellant.                 *
                                    ___________

                      Submitted:    October 21, 1996

                           Filed:   April 3, 1997
                                    ___________

Before WOLLMAN, LAY, and BRIGHT, Circuit Judges.
                               ___________


BRIGHT, Circuit Judge.


      Lyle Robert Paton appeals his conviction for possession of materials
involving the use of minors in sexually explicit conduct in violation of
18   U.S.C.   §   2252(a)(4)(B).     We   reject   Paton's   arguments   that   this
conviction is barred by a previous plea agreement and the Ex Post Facto
clause.    We remand, however, for resentencing in light of Koon v. United
States, 116 S. Ct. 2035 (1996).


                                    BACKGROUND
      In December 1982, Paton was arrested and indicted for using the
United States mail to transmit obscene material in violation of 18 U.S.C.
§ 1461, using minors to produce sexually explicit
photographs in violation of 18 U.S.C. § 2251, and conspiracy to commit an
offense in violation of 18 U.S.C. § 371.            Pursuant to a plea agreement,
Paton pled guilty to the charge of mailing obscene material and the
Government dismissed the other two charges.         The United States accepted the
guilty plea, "in full satisfaction of all Federal charges which may be
brought against LYLE R. PATON by reason of the information provided
pursuant to this agreement[.]"       Appellee's Add. at A-4.      Paton subsequently
completed his sentence and probation.


     On     May   23,   1995,   police   executed   a   search   warrant   at   Paton's
residence and discovered photographs containing sexual depictions of
minors.     Most of the relevant photographs were the same as those forming
the basis for Paton's 1983 conviction.1


     Paton waived his right to a jury trial.            The district court concluded
that neither the 1983 plea agreement nor the Ex Post Facto clause barred
prosecution for possession of the photographs.             The district court then
found Paton guilty because thirteen of the photos were sexually explicit
for purposes of 18 U.S.C. § 2252(a) (4)(B).             These thirteen photos also
formed the basis for Paton's 1983 conviction.


     Prior to sentencing, Paton moved for a downward departure.                     The
district court denied the motion and sentenced Paton to twenty-four months'
imprisonment--the low end of the applicable guidelines range.                     Paton
appealed.


     Paton raises three issues.          First, Paton argues that the 1983




     1
     It is unclear from the record how Paton kept these duplicate
photographs of those seized in 1982.      Apparently, the police
somehow overlooked them in 1982.

                                          -2-
plea agreement bars the 1995 prosecution.    Second, he argues that the 1995
prosecution violates the Ex Post Facto clause.      Third, Paton argues that
the district court erred by not granting his motion for a downward
departure.   We consider these arguments in turn.


                                    I.


      We review the district court's interpretation of the 1983 plea
agreement and its conclusion that the plea agreement did not bar the 1995
prosecution de novo.   See Margalli-Olvera v. I.N.S., 43 F.3d 345, 350-51
(8th Cir. 1994).   The district court concluded that the plea agreement
immunized Paton only from charges "concerning or related to the indictment
underlying that plea agreement."   R. at 21.    We agree.


      The 1983 plea agreement provided that Paton's plea of guilty to the
charge of mailing obscene photos was "in full satisfaction of all Federal
charges which may be brought against LYLE R. PATON by reason of the
information provided pursuant to this agreement[.]"    Appellee's Add. at A-
4.   The intent of the agreement is clear.     It provides immunity for two
charges against Paton in exchange for his guilty plea.      In addition, the
plea agreement warns that Paton remains subject to prosecution in any
jurisdiction for additional crimes.      In short, the Government agreed not
to bring additional charges arising out of Paton's conduct between 1978 and
1982, but did not agree to ignore future criminal activity.      See United
States v. Hernandez, 972 F.2d 885, 888 (8th Cir. 1992) (plea agreement not
violated when additional charges brought for later criminal activity).
Accordingly, we conclude that the 1983 plea agreement did not bar the 1995
prosecution.




                                   -3-
                                    II.


     Paton next asserts that the 1995 conviction for possession of obscene
materials violates the Ex Post Facto clause.   Possession of such materials
was not illegal in 1983 when Paton possessed the photos involved in both
prosecutions.   Congress, however, criminalized that possession in 1990 by
enacting 18 U.S.C. § 2252(a) (4)(B).        Paton contends that the 1995
conviction, which is based on the 1990 statute, violates the Ex Post Facto
clause because it criminalizes conduct that was innocent when he first
obtained the photographs.   We disagree.


     "`[I]n the case of continuing offenses . . . the Ex Post Facto clause
is not violated by application of a statute to an enterprise that began
prior to, but continued after, the effective date of [the statute].’"
United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994) (quoting
United States v. Torres, 901 F.2d 205, 226 (2d Cir. 1990)).           More
specifically, a conviction for continuing to possess obscene material after
the effective date of 18 U.S.C. § 2252(a)(4)(B) does not violate the Ex
Post Facto clause.   United States v. Layne, 43 F.3d 127, 132 (5th Cir.),
cert. denied, 115 S. Ct. 1722 (1995).   Accordingly, we affirm the district
court.


                                   III.


     Paton's final argument is that the district court erred during
sentencing by denying a downward departure.        Paton asserts that the
district court's denial of his motion to downward depart resulted from the
court's erroneous belief that it did not have the authority to do so.




                                    -4-
     A district court's decision not to depart downward made with the
understanding of the court's power to depart cannot be reviewed on appeal.
United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996).     The district
court may depart from the applicable guideline range if it finds "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 . . . ."       18 U.S.C. § 3553(b).    "The key
question is whether an individual      case presents a `characteristic or
circumstance [which] distinguishes the case from the `heartland' cases
covered by the guidelines in a way that is important to the statutory
purposes of sentencing.’"    United States v. Lewis, 90 F.3d 302, 304 (8th
Cir. 1996) (quoting U.S.S.G. § 5K2.0), cert. denied, Davis v. United
States, 117 S. Ct. 713 (1997).   We may reverse the district court only if
it abused its discretion.   Koon v. United States, 116 S. Ct. 2035, 2047-48
(1996).


     At the sentencing hearing the court stated:

           The court declines to depart downward.       In examining
     [Paton's] arguments individually and together the court does
     not agree that these facts create a situation not contemplated
     by the Sentencing Commission. Although these circumstances are
     indeed unusual, the unusual nature of this case is due to
     [Paton's] conducted [sic] possession of material which is
     illegal to possess and has been since the amendments to 18
     United States Code Section 2252 were passed in 1990. [Paton's]
     ignorance of the law or his mistaken understanding of its
     application to himself does not warrant departure.


Sentencing Tr. at 21-22.      The district court made its determination,
however, prior to the Supreme Court's decision in Koon.   In that case, the
Supreme Court stated that the district court must determine whether the
grounds asserted for departure are encouraged, discouraged, forbidden or
unmentioned by the Sentencing




                                    -5-
Guidelines.    Koon, at 2045.   "If a factor is unmentioned in the Guidelines,
the court must, after considering the `structure and theory of both
relevant individual guidelines and the Guidelines taken as a whole,’ . .
. decide whether it is sufficient to take the case out of the Guideline’s
heartland."    Id. (citation omitted) (quoting United States v. Rivera, 994
F.2d 942, 949 (1st Cir. 1993)).


     The mitigating factors asserted by Paton, when considered together,
are unmentioned under the Guidelines.          The Guidelines did not contemplate
a situation where an individual enters into a plea bargain "in full
satisfaction    of   all   Federal   charges    which   may   be   brought"   and   the
government later prosecutes the individual for non-criminal conduct known
to the government at the time of the plea bargain, but which later becomes
criminal.   In light of Koon, the district court misconstrued the Guidelines
in determining that this situation is contemplated by the Sentencing
Commission.    Thus, the district court erred in determining that it lacked
authority to depart downward.


     Accordingly, we reverse and vacate the existing sentence and remand
to the district court for resentencing consistent with this opinion.                The
district court may depart downward if it determines that Paton presents
mitigating circumstances outside the "heartland" of the Guidelines.


                                     CONCLUSION


     We affirm Paton's conviction and remand for resentencing.




                                        -6-
WOLLMAN, Circuit Judge, concurring and dissenting.


      I concur in Parts I and II of the court’s opinion.         I dissent,
however, from the court’s holding that the district court misconstrued the
Guidelines in determining that the situation presented by this case was not
contemplated by the Sentencing Commission.


      True, it is unlikely that the Commission contemplated the exact facts
of   Paton’s case, but that does not compel the conclusion that the
Commission did not contemplate the offense committed by Paton:          the
possession of child pornography.   Having held that Paton’s earlier plea did
not immunize him from prosecution for the possession of those now-illegal
materials, what warrant do we have to hold that this case is somehow
different for sentencing purposes from any other prosecution based upon the
1990 statute?


      The Court has told us that a district court’s decision to depart from
the Guidelines should in most cases be given substantial deference,
including the decision that a particular case falls within or without the
heartland of cases in the Guideline.      Koon v. United States, 116 S. Ct.
2035, 2046-48 (1996).   See also United States v. Kalb, 105 F.3d 426, 428
(8th Cir. 1997).   Although the district court did not have the benefit of
Koon and thus did not articulate its reasoning in precisely the formulation
set forth in Koon, it in effect made “a refined assessment of the many
facts bearing on the outcome,” Koon, 116 S. Ct. at 2046, and then
determined that there was nothing about the case that warranted a departure
from the Guidelines range.    Because I see no abuse of discretion in the
district court’s ruling, I would affirm the sentence as well as the
conviction.




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A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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