                                                                 PUBLISH


                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                ________________________
                                                                           FILED
                                                                  U.S. COURT OF APPEALS
                                       No. 96-5391                  ELEVENTH CIRCUIT
                                ________________________                   2/18/03
                                                                     THOMAS K. KAHN
                    D. C. Docket No. 95-953-CR-UNGARO-BENAGES            CLERK

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellant,
      versus


ROBERT MILLER,

                                                         Defendant-Appellee.


                               __________________________

                    Appeal from the United States District Court for the
                               Southern District of Florida
                              _________________________

                                      (July 20, 1998)

Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD*, Senior Circuit Judges.

CLARK, Senior Circuit Judge:



___________________

*Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by
designation.       The government appeals the district court’s downward departure

based on defendant Robert Miller’s impulse control disorder as constituting reduced
or diminished mental capacity under U.S.S.G. § 5K2.13. Because the facts of this

case do not take it outside the heartland of cases, the district court erred in granting

a downward departure.       Moreover, the district court erred in finding that the
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defendant’s impulse control disorder contributed to the offense conduct.            We
                                                              U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
VACATE the district court’s sentence and remand this case for resentencing.
                                                                      2/18/03
                                                                 THOMAS K. KAHN
                                  BACKGROUND                         CLERK

             The defendant pled guilty to transporting through a commercial computer

service materials depicting child pornography in violation of 18 U.S.C. § 2252(a)(1).

At the plea colloquy, the government stated that it would have proved at trial that the

defendant downloaded and sent images of child pornography between April 15, 1995

and August 31, 1995. The defendant agreed to the facts as outlined at the colloquy

hearing. The probation officer who completed the presentence investigation report

calculated the offense level at 14, with a criminal history category of 1, resulting in

a guideline imprisonment range of 15 to 21 months.

             According to the presentence investigation report, the defendant created

a profile image on-line that described him as enjoying young boys, young girls,

bondage, and group sex. He reported that he had created that profile in order to get

all types of images, and that he began receiving pornographic images on a daily basis.

He stated that although he was not interested in child pornography, he stored and


                                           2
transmitted some of the child images, but had never originated an image of a child by

scanning a photograph and transmitting it. Although there was a dispute at the

sentencing hearing over the exact amount of pictures transmitted, the defense agreed
                                                                          FILED
that there were “a lot” of pictures.
                                                                  U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
              At the sentencing hearing, the defendant argued that jail time made “no
                                                                            2/18/03
                                                       THOMAS K. KAHN
sense whatsoever” for him because he had been punished enough by the public
                                                           CLERK

humiliation and loss of his livelihood. He moved for a downward departure based on

his military background, his educational background, his loss of career opportunities

because of the conviction, and his psychological makeup.1 He also contended that his

offense was an aberrant act and that he would be vulnerable in prison due to the nature

of his offense.

              In support of his grounds for a departure based on his psychological

makeup, the defendant presented an expert witness, Dr. Haber, a psychologist, who

had examined him and concluded that he suffered from an impulse control disorder




       1
           Miller graduated from the United States Military Academy at West Point with honors,
from Columbia University magna cum laude with a master’s degree in international affairs, from
the University of Florida magna cum laude with a doctor of philosophy in Inter-American
studies, from Biscayne College magna cum laude with a master’s degree in sports
administration, and from the University of Miami Law School magna cum laude. He served in
the armed forces as an intelligence officer in Vietnam, received the Bronze Star among other
citations, and was honorably discharged in 1973 having achieved the rank of captain. His
intelligence quotient (IQ) was measured at 172.

                                              3
as well as anxiety and depression. Dr. Haber testified that she believed incarceration

made no sense for him.

               On cross-examination, Dr. Haber testified that she believed that the
                                                                              FILED
defendant was not sexually aroused by viewing young children, and that she did not
                                                                      U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
believe that he was interested in child pornography, but used the pictures of children
                                                                                2/18/03
                                                            THOMAS K. KAHN
for trading purposes in order to get the kinds of pornography in which he had an
                                                                 CLERK

interest. Defense counsel acknowledged that the pictures transmitted in a file were

readily identifiable by title as to what kind of pornography the file contained, such that

anyone would be able to tell that a picture was that of a child. Moreover, Dr. Haber

testified that the defendant knew he was transmitting child pornography.2

               A court-appointed psychiatrist, Dr. Mutter, also examined the defendant

and testified at the sentencing hearing. Dr. Mutter agreed that the defendant had an

impulse control disorder, as well as a personality disorder and a sexual identity

disorder. Dr. Mutter testified, under cross-examination, that it was not unusual for

pedophiles and other collectors of child pornography to have a strong impulse control

disorder.

                                        DISCUSSION



       2
         The defendant also told the probation officer, in a note to the Court, that he knew that
he was transmitting pornographic images of children and that it was wrong.

                                                 4
                We review a district court’s departure from the sentencing guidelines for

an abuse of discretion.3 Our review of a departure is a three-step process: (1) we

review whether the facts of the case take it outside the heartland of the applicable
                                                                            FILED
guideline; (2) we determine whether the departure factor that the district court relied
                                                                      U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
on is a factor that has been proscribed, encouraged, discouraged, or unaddressed by
                                                                             2/18/03
                                                           THOMAS K. KAHN
the Sentencing Commission; and (3) we review whether the factor is present to such
                                                                 CLERK

an extraordinary degree that the departure was warranted.4

                A sentencing court can impose a sentence outside the guidelines range

if the court finds an aggravating or mitigating circumstance of a kind or degree that

the Sentencing Commission did not adequately consider in formulating the

guidelines.5 The circumstances justifying the departure must significantly differ from

the “heartland” of cases covered by a guideline.6 The sentencing court must determine

what, if any factor makes the case atypical, and whether that factor should result in a

different sentence.7


       3
           United States v. Hoffer, 129 F.3d 1196, 1201 (11th Cir. 1997).
       4
           Id. at 1200.
       5
         18 U.S.C. § 3553(b)(1994); see also U.S.S.G. § 5K2.0 (1997)(policy statement
explaining circumstances justifying departure).
       6
         United States v. Onofre-Segarra, 126 F.3d 1308, 1310 (11th Cir. 1997), cert. denied, —
U.S. —, 118 S.Ct. 1110, 140 L.Ed.2d 163 (1998).
       7
           Hoffer, 129 F.3d at 1200.

                                                 5
                 A district court decides whether a case falls outside the heartland of a

particular guideline by assessing the facts of the case and comparing those facts to the

facts of other cases which fall within the guideline’s heartland.8 Departures should
                                                                       FILED
only occur in unusual cases where there is something atypical about the defendant or
                                                                U.S. COURT OF APPEALS
                                                                 9ELEVENTH CIRCUIT
the circumstances surrounding the commission of the crime.
                                                                        2/18/03
                                                               THOMAS K. KAHN
                 The defendant moved for departure on several different bases, but the
                                                                     CLERK

district court granted the departure on the basis of diminished capacity under U.S.S.G.

§ 5K2.13. That guidelines subsection reads:

      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.10

      At sentencing, the district court stated that:

            Let me just tell you right now, based on the testimony of the
      psychiatrists and based on everything that I have read, I am going to
      depart downward based on diminished mental capacity.
            I think that the testimony of Dr. Mutter, the court-appointed
      psychiatrist, and of Dr. Haber, the defense psychologist, was extremely
      persuasive on the issue of diminished mental capacity. I think that the
      sum and substance of their testimony was that Mr. Miller is an


      8
           Id.
      9
           Onofre-Segarra, 126 F.3d at 1310.
      10
           U.S.S.G. § 5K2.13.

                                               6
       extraordinary case. He is not your typical collector of child pornography
       or typical purveyor of child pornography; that he has a stress-related
       impulse disorder which may well have resulted from his Vietnam service
       or may have been triggered by his Vietnam service, which significantly
       reduced his mental capacity to resist the impulse or to refrain from
       trading in child pornography under the circumstances of this case.
                                                                       FILED
              ....
                                                               U.S. COURT OF APPEALS
              I really feel that under these circumstances, given his background,
                                                                  ELEVENTH CIRCUIT
       given his prospects for recovery, given his exceptional intelligence,
                                                                         2/18/03
       given how highly educated he is, and given the fact that he’s going to
       lose his license to practice law, and in all likelihood he THOMAS to lose
                                                                   is going K. KAHN
                                                                        CLERK
       any ability to teach in any school secondary level on down, I believe that
       the harshest zone B sentence that would be available would be sufficient
       to deter any future problem of this sort as to Mr. Miller and also take into
       account all of the various characteristics that comprise Mr. Miller’s
       personality and what he has to contribute to society. So that’s the
       Court’s position.

              The facts of the offense conduct do not take it outside of the heartland of

cases, despite the district court’s finding that the defendant was not a typical collector

or purveyor of child pornography. The facts showed that the offense conduct

consisted of the defendant trading pornography with others via the Internet, with the

defendant’s full knowledge that the pictures were of children. Whether he received

personal enjoyment from the pictures of children that he traded is irrelevant; harm is

done in sustaining a market for such pictures.11 The offense conduct is exactly the sort

       11
          See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2641, 37 L.Ed.2d
446 (1973)(“[A] person's inclinations and "fantasies ... are his own and beyond the reach of
government...."); see also New York v. Ferber, 458 U.S. 747, 756-762, 102 S.Ct. 3348, 3354-
357, 73 L.Ed.2d 1113 (1982)(states entitled to greater leeway in regulating child pornography
because of, inter alia, harm to children used in materials produced, and regulating the economic
market for child pornography is lawful to decrease the motive for producing it).

                                               7
of conduct that 18 U.S.C. § 2252(a)(1) was intended to regulate.12 Congress amended

18 U.S.C. § 2252 in 1984 to include those who receive and distribute child

pornography even though they lack a commercial motive, because the harm to the
                                                                              FILED
child exists regardless of the viewer’s motivation, and “the industry would disintegrate
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT 13
absent willing buyers, who play a necessary role in any distribution network.”
                                                                               2/18/03
Because the circumstances surrounding the commission of the crime wereK. KAHN
                                                             THOMAS
                                                                      not unusual,
                                                                  CLERK

the facts of the case did not provide grounds for departure.

                  Thus, a departure was justified only if the defendant had a characteristic

which took him out of the heartland of cases. Certainly the defendant’s superior

education, military performance, and intelligence are exceptional. But these are not

characteristics upon which a departure can be based.14 Nor would poor impulse

control be unusual, regardless of whether it stemmed from an impulse control

disorder. Dr. Mutter testified that it was not unusual for those who collect child

pornography, whether they were pedophiles or not, to have impulse control disorders.



       12
         See United States v. Miller, 776 F.2d 978, 979 (11th Cir. 1985), cert. denied, 475 U.S.
1129, 106 S.Ct. 1659, 90 L.Ed.2d 201 (1986).
       13
            Id.
       14
          See U.S.S.G. § 5H1.2 (education and vocational skills not relevant in determining
whether a sentence should be outside the applicable guideline range); § 5H1.5 (employment
record not relevant); § 5H1.11 (military, civic, charitable, public service, employment-related
contributions not relevant).

                                                8
Many offenders commit crimes because they have poor impulse control.15 An impulse

control disorder is not so atypical or unusual that it separates this defendant from other

defendants. Because there was nothing unusual about the defendant or the facts of this
                                                                             FILED
case, it falls within the heartland of cases regulated by the sentencing guideline.
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
               Moreover, § 5K2.13 requires that the diminished capacity be linked to
                                                                               2/18/03
the commission of the offense. Dr. Haber testified that the defendant’s KAHN
                                                            THOMAS K.
                                                                 CLERK
                                                                        “disorder

consisted of stress-related sexual acting out with consenting adults or by viewing

certain pictures or actions . . . .” She stated emphatically several times that the

defendant was not a pedophile, made several statements that “he used the

pornographic pictures of children to get the kind of pictures that he wanted, which

were a totally different kind of pictures; that it was a manipulative device on his part

to get what he preferred, which was a different type of pornography.” She later stated

on cross-examination that “I do not believe that this man has an interest in child

pornography at all.” Dr. Mutter agreed that the defendant was not a pedophile, and




       15
           See Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393
(1984)(noting that “[p]risons, by definition, are places of involuntary confinement of persons
who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates
have necessarily shown a lapse in ability to control and conform their behavior to the legitimate
standards of society by the normal impulses of self-restraint; they have shown an inability to
regulate their conduct in a way that reflects either a respect for law or an appreciation of the
rights of others.”)

                                                9
testified that the defendant’s sexual identity disorder “deal[t] with male

homosexuality.”

               Thus, it appears that, at most, the defendant’s impulse disorder was
                                                                             FILED
related to his viewing of adult pornography and acting out sexually with adults, and
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
that his offense conduct was no more related to the impulse disorder than if he had
                                                                              2/18/03
                                                          THOMAS K. KAHN
robbed someone in order to use the proceeds to purchase adult pornography. The
                                                               CLERK

impulse was related to viewing pornography, but was not related to the means of

obtaining the pornography. A departure under § 5K2.13 requires that the reduced

mental capacity contribute to the offense.16 The experts’ testimony merely showed

that the impulse control disorder explained his interest in adult pornography, but it

failed to establish that the disorder caused him to trade child pornography, which is

the offense for which he was being sentenced. Because the facts did not sufficiently

link the disorder to the offense, no § 5K2.13 departure was appropriate.

               The district court held that an impulse control disorder qualified as

diminished capacity under U.S.S.G. § 5K2.13. Because this case was not outside the

heartland of cases, the first step in our review, we need not reach the issue of whether

an impulse control disorder alone, not caused by a disorder affecting the ability to


       16
          See United States v. Holden, 61 F.3d 858 (11th Cir.1995)(district court must find that
the defendant's diminished capacity contributed to his offense).


                                               10
reason or process information, constitutes diminished capacity. The defendant’s

sentence is VACATED and the case is remanded for resentencing in accordance with

this opinion.
                                                               FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                                2/18/03
                                                           THOMAS K. KAHN
                                                               CLERK




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