                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2078
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Southern
                                        * District of Iowa.
David Allan Peterson,                   *
                                        *          [UNPUBLISHED]
             Appellee.                  *
                                   ___________

                          Submitted: November 7, 2003

                               Filed: December 15, 2003
                                    ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       In this direct criminal appeal, the government challenges the sentence the
district court imposed after David Peterson pleaded guilty to receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2); and possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). At sentencing, the court
departed downward from a total offense level of 30 to an offense level of 10 based
on Peterson’s family responsibilities, his “background and naive status,” and the fact
that Peterson would not likely reoffend. The court then sentenced Peterson to 3 years
probation with the condition that he serve 6 months in home confinement.
       On appeal, the government argues that the district court erred in granting a
downward departure and that the court abused its discretion in granting a 20-offense-
level reduction.

       After careful de novo review of the record, we conclude that the district court
erred in granting Mr. Peterson a downward departure. See PROTECT Act, Pub. L.
No. 108-21, § 401(d), 117 Stat. 650, 670 (2003) (standard of review); United States
v. Gonzales-Ortega, No. 02-4133, 2003 WL 22319271 (8th Cir. Oct. 10, 2003)
(PROTECT Act standard of review applies to defendant’s pending appeal even
though defendant was sentenced before Act became law). First, the district court
erred in relying on the low likelihood that Mr. Peterson would reoffend as a basis for
departure. Cf. United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997) (whether
length of sentence imposed by Guidelines was necessary to prevent future criminal
activity was factor already taken into account by Guidelines, and thus district court’s
belief that length of sentence was unnecessary could not justify departure from
Guidelines range). The district court also erred in granting Mr. Peterson a downward
departure based on family responsibility and susceptibility to abuse in prison because
the departure was not justified by the facts of this case. See U.S.S.G. § 5H1.6 (family
ties and responsibilities are not ordinarily relevant in determining whether sentence
should be outside applicable Guidelines range); cf. United States v. Pereira, 272 F.3d
76, 80-83 (1st Cir. 2001) (district court must find that defendant is irreplaceable
before granting downward departure under Guidelines based on discouraged factor
of family obligations); United States v. Drew, 131 F.3d 1269, 1271 (8th Cir. 1997)
(naive defendant’s alleged vulnerability to abuse in prison, based on his status as
child pornographer, did not support downward departure from Guidelines, given
defendant’s average size and good health); United States v. Allen, 87 F.3d 1224,
1225-26 (11th Cir. 1996) (5-level downward departure was not warranted where
defendant was primary caretaker of parent with Alzheimer’s and Parkinson’s
diseases; defendant established nothing more than that imposition of prison sentences



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normally disrupts family relationships); United States v. Maddox, 48 F.3d 791, 797-
98 n.10 (4th Cir. 1995) (that defendant was found to be easily led, susceptible to
misuse by others, and meek and cautious in demeanor, and that he possessed
borderline intelligence and suffered from dependent personality disorder, did not
justify downward departure from Sentencing Guidelines on theory of extreme
vulnerability to victimization in prison).

      Accordingly, we reverse and remand for resentencing.
                     ______________________________




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