                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2369
                                   ___________

United States of America,                *
                                        *
            Plaintiff - Appellant,       *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Karl Grinbergs,                         *
                                        *
            Defendant - Appellee.       *
                                   ___________

                             Submitted: November 13, 2006
                                 Filed: December 12, 2006
                                 ____________

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
                          ____________
MURPHY, Circuit Judge

      Karl Grinbergs pled guilty to possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). After calculating an advisory guideline range of 46 to 57
months imprisonment, the district court sentenced him to 12 months and a day. The
government appeals, and we reverse.

       Grinbergs belonged to an online Yahoo group whose members were interested
in viewing sexually explicit images of children. An undercover agent for the Federal
Bureau of Investigation gained access to the group, and authorities were able to trace
the screen name pumpkin_girl_16 to Grinbergs' home address. When a search warrant
was executed at his residence in December 2004, more than 300 images of child
pornography were discovered on the hard drive of his computer. Among the images
were depictions of known victims and prepubescent minors. During an interview
following the search, Grinbergs admitted that he was pumpkin_girl_16 and that he
was responsible for downloading the images found on his computer. On June 22,
2005, Grinbergs was indicted on one count of possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B).

       Grinbergs pled guilty to the charge in the indictment on December 19, 2005
pursuant to a plea agreement. In that agreement the parties stipulated to a base offense
level of 18 under the advisory guidelines, as well as to a two level increase for
possession of materials involving prepubescent minors, a two level increase for the
use of a computer in the offense, and a four level increase for possession of at least
300 images of child pornography. The government also advised the court that
Grinbergs was entitled to a three level reduction under U.S.S.G. § 3E1.1(b) for
acceptance of responsibility.

      At sentencing there was no dispute that the guideline range was 46 to 57
months, but Grinbergs moved for a downward departure or "deviation" on the basis
of diminished capacity, his emotional health at the time of the offense, and
extraordinary post offense rehabilitation. In support of his motion, Grinbergs
introduced evidence that one treating psychiatrist had diagnosed him with a major
depressive disorder and that another had concluded that he had a type of persistent
low grade depression known as dysthymic disorder. Grinbergs also presented
testimony from Chandra Petersen, a mental health and addiction therapist, who had
been treating him since August 2005. She described Grinbergs as a shy individual
with low self esteem, depressed moods, and an adjustment disorder, but she was
unable to say whether or not depression had been a contributing cause of his offense.
Petersen praised Grinbergs' progress in rehabilitation, noting that while his recovery
from addiction to pornography was still ongoing, he had come to understand that his
crime victimized the children involved. Petersen stated that in her opinion Grinbergs
was not a typical child sex offender or a predator but instead had fallen victim to the


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internet, which provided him with an easy outlet for his desire for attention. When
asked whether Grinbergs had moved from passive viewing of pornography to the
more active grooming stage, she was not able to answer with any certainty.

        At the conclusion of the hearing, the district court departed from the advisory
guideline range to sentence Grinbergs to 12 months and a day in prison on the basis
of his diminished mental capacity and this offense being outside the general heartland.
See U.S.S.G. §§ 5K2.13, 5K2.0. The court also indicated that it would arrive at the
same sentence by considering the 18 U.S.C. § 3553(a) factors and that it credited
Petersen's testimony that Grinbergs was not a predator nor likely to become one.

       We review the district court's findings of fact for clear error and its application
of the advisory sentencing guidelines de novo, including whether it based its departure
on permissible factors. See United States v. Mugan, 441 F.3d 622, 631 (8th Cir.
2006). While the sentencing guidelines are not mandatory, they are an important
factor that the district court must consider in fashioning an appropriate sentence.
United States v. Booker, 543 U.S. 220, 260 (2005). We review the resulting sentence
for reasonableness in light of all the § 3553(a) factors, applying an abuse of discretion
standard. United State v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005). "A sentencing
court abuses its discretion if it fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors." United States v. Long Soldier, 431 F.3d 1120, 1123 (8th
Cir. 2005) (citing Haack, 403 F.3d at 1004).

       Both parties agree that the advisory guideline range in this case is 46 to 57
months, and the government argues that the court's 75% reduction from that range to
impose a sentence of 12 months and a day is unreasonable under the circumstances.
Section 5K2.13 of the sentencing guidelines provides that a downward departure may
be appropriate under that section if "(1) the defendant committed the offense while
suffering from a significantly reduced mental capacity; and (2) the significantly


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reduced mental capacity contributed substantially to the commission of the offense."
Under the guidelines a § 3K2.13 departure is unavailable to a defendant convicted of
an offense involving child pornography. U.S.S.G § 5K2.13. Because the guidelines
are now advisory, however, the district court could still consider Grinbergs' mental
capacity insofar as it was relevant to the § 3553(a) factors. See United States v.
Hadash, 408 F.3d 1080, 1083-84 (8th Cir. 2005).

       Even when viewed through the lens of reasonableness, the district court's
reliance on Grinbergs' mental capacity falls short of providing adequate justification
for the large departure in this case. There is no evidence that Grinbergs' depression
contributed in any way to the commission of his crime. In fact at one point during her
testimony Petersen attributed his depression to the shame and guilt of being arrested
and indicted, suggesting that the disorder was a byproduct rather than cause of the
offense, and Grinbergs did not begin seeing Petersen until more than a month after his
indictment. Depression experienced in the wake of a criminal prosecution is not
unusual and not justification for the large departure or variance in this case.

       The second factor relied on by the district court was the general heartland
exception embodied in U.S.S.G. § 5K2.0. A departure under this section is
appropriate where the district court finds a mitigating circumstance not adequately
taken into consideration by the Sentencing Commission. See 18 U.S.C. § 3553(b); see
also U.S.S.G. § 5K2.0(a)(3). Here, the district court found that Grinbergs was an
atypical offender because he was making progress toward rehabilitation and because
he was not likely to become an active sexual predator. Neither of these circumstances
was sufficient to take this case out of the heartland, however. Ordinary post offense
rehabilitation is already accounted for in § 3E1.1. See U.S.S.G § 3E1.1 comment n.
1(a)(g). Grinbergs thus had already received credit for his progress in therapy by his
three level reduction for acceptance of responsibility under § 3E1.1. An additional
reduction would be warranted only if his rehabilitation went above and beyond the
degree of rehabilitation contemplated by § 3E1.1. See United States v. Rogers, 400
F.3d 640, 641-42 (8th Cir. 2005). That Grinbergs had been regularly attending


                                         -4-
therapy sessions, had been avoiding the triggers of his pornography addiction, and had
come to acknowledge the wrongfulness of his conduct are all commendable actions,
but they are not the marks of extraordinary or atypical rehabilitation. See United
States v. Patterson, 315 F.3d 1044, 1049 (8th Cir. 2003).

       Nor was the large departure justified by the fact that Grinbergs had never
actively engaged in sexual activity with children, that he had never produced
pornography, or that he might be considered unlikely to become a sexual predator in
the future. Such offenses are punished under separate provisions of the guidelines.
Compare U.S.S.G. § 2G2.2 with U.S.S.G. §§ 2G2.1, 2A3.2. There could be no
concept of a heartland for an offense if the offense were deemed atypical simply
because the defendant had not committed other crimes. Uncertainties about his future
conduct would not diminish the fact that Grinbergs has provided a market for
materials that directly victimize the children depicted. Cf. Osborne v. Ohio, 495 U.S.
103, 109 (1990) (government has compelling interest in outlawing possession of child
pornography in order "to destroy a market for the exploitative use of children"). We
conclude that Grinbergs' actions fall squarely within the heartland of cases for the
offense charged.

        When measured against the factors in § 3553(a), the sentence was also
unreasonable. Neither Grinbergs' reaction to his arrest and indictment nor the
progress he has made in therapy set him apart from other offenders to any great
degree. See 18 U.S.C. § 3553(a)(1). There is also nothing unusual about the nature
or circumstances of his offense. See id. Even if the individually deficient reasons for
the departure or variance are aggregated, they still fall short of providing the
justification required for a departure of this degree. Since there is nothing in the record
that significantly differentiates this case from other cases of child pornography
possession, the sentence imposed failed adequately to take account of Congress's
stated desire to "avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct." 18 U.S.C. §



                                           -5-
3553(a)(6). We conclude that under all the circumstances the sentence imposed was
an abuse of discretion.

      Accordingly, we vacate Grinbergs' sentence and remand for resentencing.

                      ______________________________




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