                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 03-1234
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                             v.

JOSEPH GRIFFITH,
                                       Defendant-Appellant.
                       ____________
         Appeal from the United States District Court
               for the Central District of Illinois.
         No. 02-10089-001—Michael M. Mihm, Judge.
                       ____________
   ARGUED MAY 19, 2003—DECIDED SEPTEMBER 26, 2003
                    ____________


 Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
  ROVNER, Circuit Judge. Joseph Griffith pleaded guilty
to distributing child pornography, 18 U.S.C. § 2252(a)(1),
and was sentenced to 262 months’ imprisonment. Griffith
challenges an upward departure aimed at addressing
the seriousness of his criminal history and the danger that
he would present in the future. We affirm.
  Griffith operated an Internet web site where he posted
80 to 90 photographs of prepubescent children who were
nude or scantily dressed and were posed in sexually
provocative positions. Some of the photographs depicted
young children engaged in violent sexual acts with other
2                                                   No. 03-1234

children or adults. Griffith did not charge a fee for access
to the photographs, but he did expect others to post sim-
ilar photographs on his web site. He threatened to dis-
allow access to the site to individuals who did not post
photographs and warned that he would not share his
approximately 1,000 additional photographs if the others
did not start posting. One individual with access to the
web site reported Griffith’s activity to the authorities,
and Griffith was arrested.
   Griffith pleaded guilty without the benefit of a plea
agreement, and the court adopted the sentencing recom-
mendation outlined in the presentence report. Specifically,
the judge concluded that Griffith’s crime gave him a
base offense level of 17, which the court then increased
by several adjustments. U.S.S.G. § 2G2.2. First, the court
added two levels because the photographs portrayed
prepubescent minors under the age of 12. Id. § 2G2.2(b)(1).
Next, the court increased the base offense five more levels
because the offense involved distributing child pornog-
raphy in exchange for “the receipt, or expectation of re-
ceipt, of a thing of value,” i.e., additional illicit photographs.
Id. § 2G2.2(b)(2)(B). Griffith also received a four-level
adjustment because he distributed a photograph of a
nude child chained by the ankle, which the judge deemed
to portray sadistic or masochistic conduct. Id. § 2G2.2(b)(3).
The judge also imposed a five-level increase because Grif-
fith had engaged in a pattern of sexually abusing minors.
Id. § 2G2.2(b)(4). Finally, the court added two levels
for Griffith’s use of a computer to transmit the photo-
graphs. Id. § 2G2.2(b)(5). Those adjustments resulted in
an offense level of 35, which was subsequently reduced
by three levels because Griffith accepted responsibility.
Id. § 3E1.1(a), (b)(2).
  After deciding the appropriate offense level, the court
determined that Griffith’s past criminal conduct placed
him in criminal history category IV. Among other of-
No. 03-1234                                                   3

fenses, Griffith had two prior convictions for sexually
abusing children, but one of them—a conviction of first-
degree sexual assault for raping a 12-year-old girl—was
not included in the calculation because that conviction
had occurred more than ten years before the current of-
fense and Griffith had received only a six-month sentence
of imprisonment. See id. § 4A1.2(e).
   Griffith’s total offense level of 32 and his criminal history
category of IV yielded a sentencing range of 168 to 210
months’ imprisonment. The probation officer, however,
noted in the presentence report (“PSR”) that the court
may depart from that range based on several aggravat-
ing circumstances that were not adequately considered
by the guidelines. Id. § 5K2.0. The PSR recommended
an upward departure based on the number and type of
photographs that Griffith distributed, his two prior con-
victions for sexually abusing children, and his three
failed attempts to complete a treatment program for sex-
ual offenders. After Griffith’s third failed attempt at
treatment, he admitted that the therapy was not help-
ing him with his “arousal patterns.” Moreover, the proba-
tion officer noted that Griffith would no longer be ac-
cepted in the treatment program for further therapy
and that he had crossed the line from looking at photo-
graphs of children to personally victimizing them. The
PSR noted that § 2G2.2 of the guidelines allows for a de-
parture if the defendant received a five-level upward
adjustment for engaging in a pattern of sexual abuse of
minors where that adjustment “does not adequately re-
flect the seriousness of the sexual abuse or exploitation
involved.” U.S.S.G. § 2G2.2, comment. (n.2).
  The government did not request an upward departure,
instead suggesting a sentence of 210 months’ imprison-
ment, the top of the calculated guideline range. Griffith
objected to the PSR. First, regarding the comment that
Griffith had crossed the line from looking at photographs
4                                                No. 03-1234

of children to personally victimizing them, Griffith clarified
that his personal abuse of children occurred before, not
after, his distribution of child pornography, and that he
did not personally victimize the children depicted in the
photographs at issue. Second, Griffith explained that
the three failed attempts at treatment all occurred after
his second conviction for sexually abusing a minor, em-
phasizing that he had not personally abused a minor
since his treatment.
   Although the government did not seek a departure, the
court nevertheless concluded that an upward departure
was appropriate for several reasons. First, the court
characterized the nature of the activity depicted in Grif-
fith’s photographs as “more aggravated than any that
I’ve been exposed to in the last 35 years in terms of these
kinds of pictures.” (Sent. Tr. at 12.) The judge was par-
ticularly troubled that Griffith had created a web site so
that he could obtain additional photographs. Most impor-
tantly, the judge focused on Griffith’s criminal history
and unsuccessful attempts at rehabilitation:
    It’s very unusual for me to depart upward from the
    guidelines and I do not do it lightly here and I will
    state for the record that I do not do it out of anger. I do
    not do it out of an emotional response to this pre-
    sentence report. I do it because I believe that the rec-
    ord establishes that all of the facts and circum-
    stances here concerning your background, concerning
    the fact that you do have two convictions for sexual
    misconduct with minors, that you’ve had multiple
    exposures to treatment that appear to be substantially
    or completely unsuccessful—although, as your attor-
    ney says, maybe there was some benefit—when I take
    all of that together, I don’t believe that the guideline
    range as established here accurately reflects the
    danger that you will continue to present in the future.
    I believe that the seriousness of your history is under-
No. 03-1234                                                 5

    represented in effect taking all of these things into
    consideration.
(Sent. Tr. at 13-14.) Additionally, the judge concluded
that “there is virtually no hope that incarceration or treat-
ment will remove the risk that after you’re released you
will not revert to this conduct,” including “the possibility
of some new actual physical assault on a minor.” (Sent. Tr.
at 13.)
  Before imposing the upward departure, the judge dis-
cussed with the parties Griffith’s opportunity to chal-
lenge it on appeal. The judge stated that he would not
accept the guilty plea if Griffith had agreed to waive his
right to appeal, emphasizing that “it’s very important
that this decision by me to depart upward be subject to
review by the Court of Appeals.” (Sent. Tr. at 15.) Griffith’s
attorney assured the judge that Griffith had not waived
his right to appeal, and the judge then proceeded with
the upward departure. The court concluded that a depar-
ture equivalent to two criminal history categories would
adequately reflect his actual criminal history and the
danger he presented to children in the future. The adjust-
ment effectively increased the top of Griffith’s imprison-
ment range from 210 to 262 months, and the judge sen-
tenced him to the higher number.
  On appeal Griffith challenges the district court’s deci-
sion to depart upward from his guideline range. In the
past we reviewed such departures for abuse of discretion,
Koon v. United States, 518 U.S. 81, 98-100 (1996); United
States v. Fleischli, 305 F.3d 643, 659 (7th Cir. 2002), cert.
denied, 123 S. Ct. 1923 (2003), but Congress has since
changed that standard, see Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act
of 2003 (“PROTECT Act”), Pub. L. No. 108-21, § 401(d)(2),
117 Stat. 650, 670 (2003). The PROTECT Act now re-
quires courts of appeals to review de novo the bases for
6                                               No. 03-1234

sentences outside the applicable guideline range. 18 U.S.C.
§ 3742(e) (as amended effective April 30, 2003); United
States v. Semsak, 336 F.3d 1123, 1125 (9th Cir. 2003). The
PROTECT Act, however, does not change our review of
the degree of a sentencing departure, which is still for
abuse of discretion. 18 U.S.C. § 3742(e). This appeal was
pending when the Act went into effect, but we need not
decide whether we should apply the new standard of re-
view to a pending appeal because we would affirm Grif-
fith’s sentence under either standard. See Semsak, 336
F.3d at 1125; United States v. Tarantola, 332 F.3d 498, 500
(8th Cir. 2003).
  Griffith did not raise in the district court the particular
arguments he now makes against the departure. Thus, he
did not preserve the issues for appeal, and our review is
normally for plain error only. See United States v. Turchen,
187 F.3d 735, 742 (7th Cir. 1999). The government, how-
ever, has not argued forfeiture, and, in fact, stated at
oral argument that it could not argue in good conscience
that Griffith forfeited his right to challenge the departure.
Thus, the government has waived any forfeiture claim.
See United States v. Newman, 144 F.3d 531, 542 n.11 (7th
Cir. 1998).
   Griffith argues that the court erred in departing from
the guideline range because the reasons for the depar-
ture were already factored into his sentence through
various adjustments to his offense level. Ordinarily, a
district court must sentence a defendant within the ap-
plicable guideline range. Koon, 518 U.S. at 85; United
States v. Leahy, 169 F.3d 433, 439 (7th Cir. 1999). Each
guideline is intended to apply to a “heartland” of cases,
i.e., “a set of typical cases embodying the conduct that each
guideline describes.” U.S.S.G. ch.1 pt.A, intro. comment.
4(b); accord United States v. Raimondi, 159 F.3d 1095, 1101
(7th Cir. 1998). If a judge determines that a defendant’s
conduct “significantly differs from the norm,” the judge
No. 03-1234                                                  7

may depart from the applicable guideline range. U.S.S.G.
ch.1 pt.A, intro. comment. 4(b). Specifically, a court may
depart from the range if it “finds that there exists 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). A court may depart from the range
even if the Sentencing Commission already incorporated
the reason for the departure in a sentencing adjustment,
so long as “the court determines that, in light of unusual
circumstances, the weight attached to that factor un-
der the guidelines is inadequate or excessive.” U.S.S.G.
§ 5K2.0; accord Koon, 518 U.S. at 95; United States v.
Furkin, 119 F.3d 1276, 1284 (7th Cir. 1997) (affirming
upward departure for excessive obstruction of justice in
addition to two-level adjustment in offense level under
§ 3C1.1).1
  The district court listed several reasons for departing
from Griffith’s guideline range: (1) the “aggravated” nature
of the photographs; (2) the danger to society that Griffith
will present in the future in light of his two prior of-
fenses of sexually abusing minors and his three failed
attempts at completing a treatment program for sexual
offenders; and (3) the victimization of additional children
by Griffith’s operation of a web site to obtain more photo-



1
   The PROTECT Act has altered these rules with respect to
downward departures in cases involving certain enumerated
offenses against minors. The PROTECT Act now requires judges
to base downward departures only on a factor that is “affirma-
tively and specifically identified as a permissible ground of
downward departure in the sentencing guidelines or policy
statements.” See 18 U.S.C. § 3553(b) (as amended by § 401(a)(2)
of the PROTECT Act). Because this case involves an upward
departure, we need not determine whether it was based on such
a ground.
8                                               No. 03-1234

graphs. Griffith contends that these factors were already
considered in the adjustments to his offense level and
that the judge did not explain why those adjustments
were inadequate.
   We disagree. The judge fully explained why he be-
lieved this case was unusual and outside the “heartland”
of typical child pornography cases. First, the court noted
the “aggravated” nature of Griffith’s photographs, a fac-
tor arguably taken into account by the four-level upward
adjustment for distributing photographs portraying sadis-
tic, masochistic, or other types of violent conduct. U.S.S.G.
§ 2G2.2(b)(3). Here the judge noted an “absolute reaction
of horror” to the activities depicted in Griffith’s photo-
graphs and commented that over the course of his
35-year legal career, during which he unfortunately had
seen a lot of child pornography, Griffith’s photographs
were the worst that he had ever seen. This is exactly
the type of comparative analysis envisioned in Koon. 518
U.S. at 98 (“Whether a given factor is present to a de-
gree not adequately considered by the Commission . . . [is
a] matter[ ] determined in large part by comparison with
the facts of other Guidelines cases.”) (emphasis added).
  The court also departed upward because of Griffith’s
future danger to society in light of his two prior offenses
of sexually abusing minors and his three failed attempts
at completing a treatment program for sexual offenders.
The court had considered Griffith’s pattern of sexually
abusing minors in adjusting his offense level by five levels,
see § 2G2.2(b)(4), but a court may also depart from the
guideline range on that basis even if the defendant re-
ceived an adjustment under § 2G2.2(b)(4) so long as the
adjustment “does not adequately reflect the seriousness
of the sexual abuse or exploitation involved.” U.S.S.G.
§ 2G2.2, comment. (n.2); see also United States v. Tampico,
297 F.3d 396, 402 (5th Cir. 2002) (imposing both a five-
level increase in offense level and an upward departure
No. 03-1234                                                9

based on defendant’s history of sexually abusing minors).
Moreover, a court is authorized to depart from a guide-
line range if the defendant’s criminal history category
“does not adequately reflect the seriousness of the defen-
dant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3.
  The court here was convinced that, based on Griffith’s
criminal history and unsuccessful attempts at rehabilita-
tion, he would commit future crimes. Griffith had two
prior convictions for sexually abusing minors, one for rap-
ing a 12-year-old girl and another for touching the geni-
tals of a 15-year-old girl. Moreover, after his third fail-
ure of a sexual offender treatment program, Griffith
candidly admitted that the therapy was not helping him
with his “arousal patterns.” Based on this information, the
judge found that “there is virtually no hope that incar-
ceration or treatment will remove the risk” that Griffith
will commit future crimes, including “the possibility of
some new actual physical assault on a minor.” The judge
further stated that “as long as I lived I would worry
about you when you came out [of prison] . . . . I think
that there is something broken inside of you that cannot
be fixed.” (Sent. Tr. at 15.) We see no error in the judge’s
decision to depart on the basis of future dangerousness,
especially in light of Griffith’s admission. See Turchen, 187
F.3d at 742 (affirming court’s decision to depart from
guideline range in child pornography case because de-
fendant’s criminal history and unsuccessful rehabilitation
suggested risk of recidivism).
  The court’s final reason for departing from the guideline
range was Griffith’s operation of a web site to obtain
additional photographs of child pornography. The court
had arguably considered this conduct in imposing a five-
level adjustment for distributing child pornography for
the receipt, or expectation of receipt, of a thing of value.
U.S.S.G. § 2G2.2(b)(2)(B). Here, the “thing of value” sought
10                                             No. 03-1234

by the defendant was additional pictures depicting child
pornography. This conduct created a very real incentive
for others who wanted Griffith’s pictures to victimize
other children in order to have something to exchange
with Griffith. The court noted this additional victimiza-
tion, (Sent. Tr. at 13), and this was not accounted for in
the “thing of value” language of the guideline. Thus, the
increase on this basis was not erroneous.
   Finally, Griffith challenges the extent of the departure
and contends that the court erred by increasing his crim-
inal history category rather than his offense level to
guide the departure. When determining the extent of a
departure from a guideline range, a sentencing court
need not rely on a mathematical formula but rather must
“link the degree of the departure to the structure of the
Guidelines and justify the extent of the departure.” United
States v. Jones, 278 F.3d 711, 718 (7th Cir.) (citation
omitted), cert. denied, 536 U.S. 912 (2002). The court here
met that standard by departing upward the equivalent
of two criminal history categories. Cf. United States v.
Cross, 289 F.3d 476, 478-79 (7th Cir. 2002) (concluding that
sentencing court failed to link degree of departure to
structure of guidelines when it sentenced defendant to
statutory maximum prison sentence and mentioned the
guidelines only as an afterthought). Additionally, the
court did not err in departing two criminal history catego-
ries rather than two offense levels, because Griffith’s
criminal history was underrepresented. In any event, the
resulting guideline range would have been the same
either way—210 to 262 months’ imprisonment. Because
the upward departure from Griffith’s guideline range
was not erroneous under any of the relevant standards,
his sentence is AFFIRMED.
No. 03-1234                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—9-26-03
