United States of America v. Daniel Brown

Hon. Louis H. Pollak, Senior Judge of the United States*
District Court for the Eastern District of Pennsylvania, sitting by
designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1221
UNITED STATES OF AMERICA
v.
DANIEL BROWN,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 3:07-cr-117)
District Judge: Honorable Edwin M. Kosik
Argued Monday, January 12, 2009
Before: SLOVITER and BARRY, Circuit Judges,
and POLLAK, District Judge*
(Filed: August 26, 2009)

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We have jurisdiction pursuant to 28 U.S.C. § 1291 and 181
U.S.C. § 3742(a)(1).
2
James V. Wade, Esq.
Ronald A. Krauss, Esq. [ARGUED]
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant,
Daniel Brown
Martin C. Carlson, Esq.
Francis P. Sempa, Esq. [ARGUED]
Office of the United States Attorney
309 Federal Building
Scranton, PA 18501
Counsel for Appellee
United States of America
OPINION OF THE COURT
POLLAK, District Judge.
Daniel Brown pled guilty to one count of receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2). He was
sentenced to 180 months of incarceration. Because it is unclear
whether the District Court sentence was the result of an upward
departure authorized by the United States Sentencing Guidelines
or a variance from those guidelines pursuant to 18 U.S.C. §
3553, we will remand to the District Court for resentencing.1
I.
FBI agents recovered images of child pornography from
Brown’s home. After Brown entered his guilty plea, the
Probation Office prepared a Pre-Sentence Report (“PSR”).
Applying the 2007 edition of the advisory Sentencing

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Guidelines, the PSR calculated Brown’s offense level to be 30
and his corresponding sentencing range to be between 97 and
121 months of incarceration. Neither party objected to this
calculation of the guidelines sentence.
When calculating that the total offense level under the
guidelines – apart from any potential departure or variance – was
30, the PSR applied the following reductions and enhancements
to defendant’s base offense level of 22: (1) a two-level reduction
pursuant to § 2G2.2(b)(1) because the evidence did not establish
an intent to traffic or distribute the illicit images; (2) a two-level
enhancement pursuant to § 2G2.2(b)(2) because some of the
images involved a prepubescent minor or a minor under the age
of 12 years; (3) a four-level enhancement pursuant to §
2G2.2(b)(4) because some of the images portrayed sadistic or
masochistic conduct; (4) a two-level enhancement pursuant to §
2G2.2(b)(6) because a computer was used for the receipt and
possession of the images; (5) a five-level enhancement pursuant
to § 2G2.2(b)(7)(D) because the offense involved 600 or more
images; (6) a two-level reduction for acceptance of responsibility
pursuant to § 3E1.1(a); and (7) a one-level reduction for timely
notifying the government of the intention to plead guilty
pursuant to § 3E1.1(b). Starting from the base offense level of
22, these reductions and enhancements yielded the agreed total
offense level of 30.
A.
The five-level enhancement for possession of 600 or
more images is at the core of this appeal. U.S.S.G. §
2G2.2(b)(7) (also referred to as “subsection (b)(7)” or “(b)(7)”)
provides that a defendant convicted of possessing child
pornography is subject to the following schedule of potential
sentencing enhancements under the guidelines:
If the offense involved –
(A) at least 10 images, but fewer than 150,
increase by 2 levels;
(B) at least 150 images, but fewer than 300,

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U.S.S.G. § 2G2.2 Application Note 4 provides:2
(A) Definition of “Images”.– “Images” means any
visual depiction, as defined in 18 U.S.C. § 2256(5),
that constitutes child pornography, as defined in 18
U.S.C. § 2256(8).
(B) Determining the Number of Images.– For
purposes of determining the number of images under
subsection (b)(7):
(I) Each photograph, picture,
computer or computer-generated
image, or any similar visual depiction
shall be considered to be one image.
If the number of images substantially
underrepresents the number of minors
depicted, an upward departure may be
warranted.
(ii) Each video, video-clip, movie, or
similar recording shall be considered
to have 75 images. If the length of the
recording is substantially more than 5
minutes, an upward departure may be
warranted.
4
increase by 3 levels;
(C) at least 300 images, but fewer than 600,
increase by 4 levels; and
(D) 600 or more images, increase by 5 levels.
Application Note 4 to subsection (b)(7) gives instruction as to
how a court is to count images. (As discussed infra in Section2
IV of this opinion, the counting procedure set forth in
Application Note 4 has no function other than as an adjunct to
(b)(7).) Pursuant to Application Note 4, a still photograph
counts as one image (unless that “substantially underrepresents
the number of minors depicted,” in which case “an upward

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The PSR counted up the aggregate number of images3
(6350 + (75 x 221)) as 23,150. This court calculates the aggregate
number as 22,925. The modest discrepancy is presumably owing
to some minor arithmetic or clerical error. Which figure correctly
reflects the total number of images is, however, of no consequence,
since each figure exceeds by so large a margin the “600 or more
images” that (b)(7)(D) equates with a five-level enhancement.
5
departure may be warranted”). Further, also pursuant to
Application Note 4, a video counts as 75 images (but if “the
length of the recording is substantially more than five minutes,
an upward departure may be warranted”).
Brown’s PSR recited that Brown had 6350 still
photographs and 221 videos depicting children engaging in
sexually explicit conduct. Manifestly, the still photographs
alone put Brown well over the 600 images which, pursuant to
(b)(7)(D), called for a five-level enhancement.3
B.
In a section entitled “Factors That May Warrant
Departure,” the PSR stated that, pursuant to Application Note 4,
an “upward departure may be warranted if the Court determines
that the number of images substantially underrepresents the
number of minors depicted” or “if the Court determines that the
length of a video-clip, movie, or similar recording is
substantially more than five minutes.” (PSR ¶¶ 79-80.) Brown
possessed at least 28 digital movies or videos that were
substantially longer than five minutes.
After Brown entered his guilty plea but before Brown’s
sentencing hearing, the government filed a “Memorandum
Recommending Upward Variance” with the District Court. At
the sentencing hearing, the government’s attorney began his
presentation by telling the court that the government was
“seeking an upward variance from the sentencing guidelines.”
(App. 48.) Later, the government’s attorney informed the court
that this was “the first time [he had] ever asked a Court to depart

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upward – to do an upward variance.” (App. 58.) Shortly
thereafter, he noted that he was “asking for an increase, upward
variance, in the sentencing guidelines.” (Id.) He also
emphasized that he “needed to get approval from [his] boss[]
before [he] can ask the Court to depart from the sentencing
guidelines” and that, in this case, “the sentencing guidelines
have – have given to the Court the discretion and asked the
Court – invited the Court to use its judgment.” (App. 61.) After
asking “the Court to increase the – the applicable sentencing
guidelines range five levels to a range of 168-210 months”
because that increase would “adequately reflect the factors in
3553 A[,]” the government’s attorney concluded by requesting
that the court grant “the government’s motion for an upward
variance.” (Id.)
Brown submitted a sentencing memorandum to the
District Court urging a downward variance from the guidelines.
At the sentencing hearing, Brown’s counsel emphasized that
defendant’s age, poor health, lack of criminal history, expressed
remorse, and family support suggested that recidivism was
unlikely and that long-term imprisonment was unnecessary.
At the sentencing hearing, the District Court observed at
the outset that a brief had been “filed by the government seeking
an enhancement under the appropriate provisions of the
sentencing guidelines.” (App. 48.) The court later referred to
the guidelines again, noting the applicability of U.S.S.G. §
2G2.2 Application Note 4:
And as the government has pointed out, and
as the probation officer brought to our attention,
we have Section 2-G 2.2 of the guidelines which
has an application note which says that an upward
departure may be warranted if the Court
determines the number of images substantially
under represents the number of minors depicted.
There’s a gross number here. The guideline
alludes to 600. And the same application note – or
different application note, 4B.2, provides that it’s

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The factors set forth in 18 U.S.C. § 3553(a) are:4
(1) the nature and circumstances of the
offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed–(A) to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from
further crimes of the defendant; and (D) to provide
the defendant with needed educational or vocational
training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for–(A) the applicable category of
offense committed by the applicable category of
defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . issued
by the Sentencing Commission . . . [that] is in effect
on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct; and
(7) the need to provide restitution to any
victims of the offense.
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appropriate for an upward departure if the Court
determines that the length of any video, video clip
movie is substantially more than five minutes. If I
remember correctly, at least one of these ran 24
minutes.
(App. 63.)
The District Court also discussed its consideration of the
factors bearing on sentencing set forth at 18 U.S.C. § 3553(a).4
Specifically, the court noted that “the public needs to be

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8
protected” from those who, like Brown, “perpetuate an industry”
of child pornography, and that the child pornography possessed
by Brown represented “sadistic behavior in excess of anything”
the court had ever seen in similar cases. (App. 63-64.) Then,
after having announced that the defendant would be sentenced to
180 months of imprisonment, the court stated, “I think this
sentence satisfies the purposes set forth in Section 3553A.”
(App. 66.)
After the District Court announced the sentence, defense
counsel asked the judge “for clarification” on whether the court
had “formally rule[d] on the motion for an upward departure and
if so, how many levels?” (App. 66-67.) The following colloquy
between the court, defense counsel, and the Probation Officer
ensued:
THE COURT: Well, it’s gone from – I
don’t have that immediately before me. Would
you it give [sic] to him, please?
PROBATION OFFICER: Your Honor,
when we applied the guideline, the advisory range
was 97 to 121 based on a total offense level of 30
with a criminal history category one. The
government’s motion argued for a five-level
increase which would take it to a 35 total offense
level and a criminal history, again, category one
with a range of 168 months to 210.
MR. LATELLA: I’m sorry, 168 to –
THE COURT: 168 to 210.
MR. LATELLA: So the Court granted a
five-level upward departure; is that correct?
THE COURT: Yes, I granted the
government’s motion.
MR. LATELLA: What’s the range?
THE COURT: 168 to 210 is the new range
under the guidelines, and I imposed a sentence of
180 months.
MR. LATELLA: Thank You.
(App. 67.)

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United States v. Booker, 543 U.S. 220 (2005). In Booker,5
the Supreme Court first held that the guidelines were advisory
rather than mandatory.
9
II.
The Sentencing Guidelines “are now advisory, and
appellate review of sentencing decisions is limited to
determining whether they are ‘reasonable.’” Gall v. United
States, 552 U.S. 38, —, 128 S. Ct. 586, 594 (2007). In
reviewing a criminal sentence, an appellate court should:
first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence – including an explanation for any
deviation from the Guidelines range. Assuming
that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion
standard.
Id. at 597.
In this Circuit, district courts should engage in the
following three-step process when determining an appropriate
sentence:
(1) Courts must continue to calculate a defendant’s
Guidelines sentence precisely as they would have
before Booker.5
(2) In doing so, they must formally rule on the
motions of both parties and state on the record
whether they are granting a departure and how that

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10
departure affects the Guidelines calculation, and
take into account our Circuit’s pre-Booker case
law, which continues to have advisory force.
(3) Finally, they are to exercise their discretion by
considering the relevant § 3553(a) factors . . . in
setting the sentence they impose regardless
whether it varies from the sentence calculated
under the Guidelines.
United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir. 2009)
(citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)
(internal quotation marks and citations omitted).
III.
We expressly distinguish between departures from the
guidelines and variances from the guidelines. See United States
v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006).
Departures are enhancements of, or subtractions from, a
guidelines calculation “based on a specific Guidelines departure
provision.” Id. These require a motion by the requesting party
and an express ruling by the court. Id. at 197-98. Variances, in
contrast, are discretionary changes to a guidelines sentencing
range based on a judge’s review of all the § 3553(a) factors and
do not require advance notice. Id. at 195-98. “[D]istrict courts
should be careful to articulate whether a sentence is a departure
or a variance from an advisory Guidelines range.” Id. at 198.
Whether a district court has imposed a departure or,
instead, a variance has real consequences for an appellate court’s
review. See, e.g., Irizarry v. United States, — U.S. —, 128 S.
Ct. 2198, 2202 (2008) (holding that the notice requirement of
Fed. R. Crim. P. 32(h) applies to departures but not to
variances). An appellate court reviewing a variance for
reasonableness does so by evaluating the district court’s analysis
of the § 3553(a) factors, whereas an appellate court reviewing a
departure must consult the relevant guidelines provision in order
to determine whether the departure was appropriate.
Accordingly, when a sentencing court engages in either a
departure or a variance from the guidelines, it is imperative that

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But it is also the case that the government’s sentencing6
memorandum was itself not entirely clear about the distinction
between a departure and a variance. Although the memorandum
relied on the § 3553(a) factors, the memorandum also noted that
“Application Notes 4(B)(i) and (ii) to U.S.S.G. § 2G2.2 suggest
that the number of images of child pornography and the length of
videos/movies of child pornography are areas where courts are
warranted in making upward variances or departures from the
sentencing guidelines range.”
11
the judge make clear which of these is being applied.
In the instant matter, we are unable to determine whether
the District Court intended to grant an upward departure or
intended to grant a variance. The court expressly addressed the
§ 3553(a) factors when discussing the sentence and concluded
that the sentence satisfied the purposes of § 3553; in this respect,
the sentence seems to represent a variance. On the other hand,
the court also appears to have taken U.S.S.G. § 2G2.2
Application Note 4 into consideration, which would indicate a
departure.
When asked by defense counsel, “So the Court granted a
five-level upward departure; is that correct?” the Judge replied,
“Yes, I granted the government’s motion.” The government’s
motion had “urge[d] the court to impose an upward variance
from the sentencing guidelines,” and the government had used
the term “variance” rather than “departure” fairly consistently
throughout the sentencing hearing. Thus, the court’s answer to6
defense counsel’s question simultaneously suggests two not
readily reconcilable positions: (1) that the court intended to grant
an upward departure, as indicated by its responding “yes” to
defense counsel’s inquiry whether the court had “granted a five-
level upward departure,” and (2) that the court intended to grant
a variance, as indicated by its reference to “the government’s
motion,” which was captioned “Memorandum Recommending
Upward Variance.” The court’s reply leaves us unable to
determine whether the court intended to grant an upward
departure or a variance. In sum, the court did not “adequately

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12
explain the chosen sentence – including an explanation for any
deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
See also Gunter, 462 F.3d at 247.
IV.
Where, as here, a sentencing court has made a non-
constitutional error, “we will remand for resentencing ‘unless
[we] conclude on the record as a whole . . . that the error did not
affect the district court’s selection of the sentence imposed.’”
United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008)
(citing Williams v. United States, 503 U.S. 193, 203 (1992)).
Because the District Court explicitly discussed both U.S.S.G. §
2G2.2 Application Note 4 and the § 3553(a) factors when
explaining its sentence, we cannot conclude with any certainty
that its failure to distinguish between a departure and a variance
did not affect the selection of the sentence imposed. Had the
court considered the § 3553(a) factors in isolation from (rather
than conflation with) the Application Note, it is entirely possible
that the court would not have viewed the § 3553(a) factors as
independently able to provide sufficient support for imposing a
sentence within a range five levels higher than the range the
parties agreed had been properly calculated by the PSR.
Moreover, U.S.S.G. § 2G2.2 Application Note 4, to
which the District Court referred, could not have grounded an
upward guidelines departure under any circumstances. “‘When
construing the Guidelines, we look first to the plain language,
and where that is unambiguous we need look no further.’”
United States v. Ashley, 342 F.3d 850, 852 (8th Cir. 2003)
(quoting United States v. Andreas, 216 F.3d 645, 676 (7th Cir.
2000)). The language in Application Note 4 referring to an
“upward departure” comes from Section “B” of the Application
Note, which is entitled “Determining the Number of Images”
and which applies “[f]or purposes of determining the number of
images under subsection (b)(7).” Contrary to the view expressed
by the government and the court, the plain meaning of the
Application Note is that an upward departure in the number of
images used to apply the sentencing enhancement at U.S.S.G. §
2G2.2(b)(7) – not an upward departure from the guidelines as a

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The following two hypothetical situations may help to7
clarify the intended meaning of the Application Note. First, we
may consider a case in which a single pornographic photograph
involves four minors: Application Note 4(B)(i) might encourage a
judge to count the single photograph as four images, rather than as
just one, for the purposes of determining the number of images
under subsection (b)(7), because, in such a case, the number of
images (one) underrepresents the number of minors depicted (four).
Second, we may consider a case (e.g. the instant matter) in which
a defendant possesses a video of substantially more than 5 minutes:
Application Note 4(B)(ii) might encourage a judge to count the
video as more than 75 images because, in such a case, the number
of images (75) underrepresents the severity of the video when
compared to a shorter video (e.g. a thirty-second video) that also
otherwise counts as 75 images for the purposes of determining the
number of images under subsection (b)(7).
That application note provides:8
Upward Departure Provision. – If the
defendant engaged in the sexual abuse
or exploitation of a minor at any time
(whether or not such abuse or
exploitation occurred during the
course of the offense or resulted in a
conviction for such conduct) and
subsection (b)(5) does not apply, an
upward departure may be warranted.
In addition, an upward departure may
be warranted if the defendant received
(continued...)
13
whole – may be warranted when those images cannot properly
be tabulated by the counting procedures enumerated in the body
of § 2G2.2(b)(7). Had the Sentencing Commission wished to7
provide for an upward departure from the guidelines based on
the number of images or the length of videos, it easily could
have done so in U.S.S.G. § 2G2.2 Application Note 6, entitled
“Upward Departure Provision.” Because the Commission did8

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(...continued)8
an enhancement under subsection
(b)(5) but that enhancement does not
adequately reflect the seriousness of
the sexual abuse or exploitation
involved.
U.S.S.G. § 2G2.2 Application Note 6. Unlike Application Note 4,
which deals with the way in which a sentencing court should apply
a sentencing enhancement from the body of § 2G2.2 (namely the
enhancement from Subsection (b)(7)), Application Note 6’s plain
language speaks to an upward departure beyond that already
available pursuant to the body of § 2G2.2 (namely the enhancement
from Subsection (b)(5)).
It is true that, as a general matter, use of the term “upward9
departure” in the guidelines “means departure that effects a
sentence greater than a sentence that could be imposed under the
applicable guideline range or a sentence that is otherwise greater
than the guideline sentence.” U.S.S.G. § 1B1.1 Application Note
1(E) (defining terms “that are used frequently in the guidelines and
are of general applicability”). In this case, however, the plain
meaning of that term, taken in context, is different. See U.S.S.C.
§ 2G2.2 Application Note 4(B) (“For purposes of determining the
number of images under subsection (b)(7) . . . [i]f the length of
recording is substantially more than 5 minutes, an upward
departure may be warranted”) (emphasis added).
14
not do so, and because the plain meaning of Application Note 4
refers to a procedure for counting images under the guidelines in
order to “calculate a defendant’s Guidelines sentence,” Gunter,
462 F.3d at 247, rather than a procedure for departing from the
guidelines, Application Note 4 could not have justified the
court’s sentence in this case.9
The District Court did also justify its sentence by
reference to the § 3553(a) factors. Thus, had the court clearly
specified that Brown’s sentence was the result of a variance,
perhaps any misinterpretation of the Application Note would

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In that event, we would have proceeded to analyze the10
variance for reasonableness. We would also observe, but without
a conclusive ruling, that we have certain reservations about
whether the District Court adequately addressed Brown’s argument
that his personal history and characteristics – his age, poor health,
lack of criminal history, strong family support, and admission of
guilt – make his likelihood of recidivism minimal. See United
States v. Levinson, 543 F.3d 190, 196 (3d Cir. 2008) (“In each case
. . . we must have an explanation from the [D]istrict [C]ourt
sufficient for us to see that the particular circumstances of the case
have been given meaningful consideration within the parameters of
§ 3553(a)”) (emphasis added).
15
have constituted harmless error. However, in view of the10
possibility that the court intended to formulate a departure, rather
than a variance, from the guidelines, and given the court’s
invocation of its erroneous interpretation of U.S.S.G. § 2G2.2
Application Note 4, we cannot be confident that the court would
have arrived at the same conclusion had it properly construed the
Application Note.
V.
For the reasons given, we will VACATE the judgment of
the District Court and REMAND for resentencing.

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