United States v. Perrin

United States Court of Appeals
Fifth Circuit
F I L E D
February 9, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30115
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
BRUCE H. PERRIN,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:05-CR-16
______________________________
Before HIGGINBOTHAM, SMITH, and
DEMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bruce Perrin pleaded guilty of two counts
of receipt of child pornography and one count
of possession of child pornography. The gov-
ernment appeals his sentence, claiming that the
district court impermissibly departed from the
applicable guideline range. Because the court
failed to articulate sufficient reasons to justify
the departure, we vacate the sentence and re-
mand for resentencing.
I.
The Louisiana State University (“LSU”)
police received information that Perrin, an
LSU student, was trading images of child por-
nography over the internet with someone in
Kentucky. Pursuant to a search warrant, LSU
police searched Perrin’s residence and seized
a computer and other digital media storage
devices containing 4,237 images of child por-
nography, comprised of 3,942 still images and
295 videos.
Many of these images depict prepubescent
children being raped by adults, and six depict

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children engaged in bestiality. The presen-
tence report (“PSR”) provides three examples:
(1) a video depicting an adult male ejacu-
lating into the mouth of approximately
four-year-old female child while the child
says, “please stop, stop, stop . . . .”;
(2) multiple images depicting sexualactivity
between an approximately six-year-old fe-
male child and a dog; and
(3) images of an approximately three-year-
old female child being anally penetrated by
an adult male.
The pictures were segregated and categorized
based on their content. For example, the fol-
der entitled “young” contained pornographic
images of children between the ages of three
and ten.
Perrin admitted that he had been actively
distributing, receiving, and possessing child
pornography for several years. He had estab-
lished a computer program that made his im-
ages available for trading over the internet at
all times, and others had downloaded images
of child pornography from his computer on
hundreds of occasions. The National Drug In-
telligence Center identified the children in 849
of the images as known victims of child por-
nography.
Before pleading guilty, Perrin assisted the
government by providing information and of-
fering to testify against a child pornography
defendant in Kentucky. He also voluntarily
entered counseling with a psychologist spe-
cializing in sexually deviant behaviors.
The guideline sentencing range was 121 to
151 months’ imprisonment. The court granted
the government’s request for a one-level re-
duction based on Perrin’s substantial assis-
tance, which resulted in his ultimate sentencing
range of 108 to 135 months’ imprisonment.
The statutory minimum was 60 months. The
statutory range for supervised release follow-
ing incarceration was 5 years to life.
Perrin was sentenced to the statutory mini-
mum of sixty months’ imprisonment, followed
by ten years’ supervised release. At the sen-
tencing hearing the court described the crime’s
severity, citing the graphic details mentioned
above. It found that Perrin was a substantial
consumer but not a producer of child pornog-
raphy and that Congress has concluded that
possession of child pornography should be
punished because if there were no consumers
there would be a greatly reduced market. The
court said that it had carefully considered the
guidelines and had concluded that the penalties
for possession of child pornography were dis-
proportionate to those for producing such ma-
terial, and reiterated that Perrin was not a
producer.
The court found that Perrin was not a risk
to the community and that there was no indi-
cation that he had ever “attempted to perform
anything similar to the visual depictions that he
possessed.” Perrin was aware of the conse-
quences of his conduct, and the court was im-
pressed that he had voluntarily begun counsel-
ing. The court stressed that the ten years’ su-
pervised release would be onerous and that
“[t]his sentence will double the typical amount
of time spent under supervision.”1 The gov
1 The court appears to base this statement on
the typical sentence administered by that particular
court. A ten-year term of supervised release is
toward the low end of the statutory range of five
(continued...)

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3
ernment made an unsuccessful objection to the
unreasonableness of the sentence, particularly
its departure to the statutory minimum.
In the written “Statement of Reasons,” the
court repeated its bases for Perrin’s sentence.
The sentence “reflects the seriousness of the
offense and provides just punishment for one
who possessed child pornography.” The writ-
ten statement also emphasized that the sen-
tence doubles “the typical amount of time
spent under supervision.”
II.
After United States v. Booker, 543 U.S.
220 (2005), we continue to review a district
court’s application of the sentencing guidelines
de novo and its findings of fact for clear error.
United States v. Caldwell, 448 F.3d 287, 290
(5th Cir. 2006) (citing United States v. Ville-
gas, 404 F.3d 355, 359 (5th Cir. 2005)). “The
ultimate sentence is reviewed for ‘unreasonable-
ness’ with regard to the statutory sentencing
factors enumerated in [18 U.S.C. § 3553(a)].”2
United States v. Duhon, 440 F.3d 711, 714
(5th Cir.) (citing Booker, 543 U.S. at 261),
petition for cert. filed (U.S. May 18, 2006)
(No. 05-11144).
Sentences fall into one of three categories:
(1) within the guideline range, (2) an upward
or downward departure as allowed by the
guidelines, or (3) outside the guideline range.
United States v. Smith, 440 F.3d 704, 706-07
(5th Cir. 2006). Perrin’s sentence is in the
third category and thus is considered a “non-
1(...continued)
years to life, and a sentencing guidelines policy
statement recommends that convicted sex offenders
receive the statutory maximum term of supervised
release, which in Perrin’s case is life. See dis-
cussion infra Part III.B.
2 These factors include
(1) the nature and circumstances of the offense
and the history and characteristics of the de-
fendant;
(2) the need for the sentence imposed
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to pro-
vide just punishment for the offense;
(continued...)
2(...continued)
(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 com-
mitted by the applicable category of defen-
dant as set forth in the guidelines . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence dis-
parities 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.
18 U.S.C. § 3553(a) (2000).

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guideline” sentence. Before imposing a non-
guideline sentence, the court is “required to
calculate the guideline range and consider it
advisory.” United States v. Angeles-Mendoza,
407 F.3d 742, 746 (5th Cir. 2005). If the
court then decides to impose a non-guideline
sentence, the guideline range should be used as
a frame of reference. Smith, 440 F.3d at 707.
A non-guideline sentence must be support-
ed by a careful articulation of the reasons for
the appropriateness of the sentence. United
States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005). This enab-
les the reviewing court to determine whether
the sentence is unreasonable according to the
§ 3553(a) factors. The more a sentence de-
parts from the guideline range, the “more com-
pelling the justification based on factors in
section 3553(a) must be.” Smith, 440 F.3d at
707 (internal quotations and citations omitted).
Smith articulates the specific test for deter-
mining whether a non-guideline sentence is un-
reasonable under Booker. “A non-Guideline
sentence unreasonably fails to reflect the stat-
utory sentencing factors where it (1) does not
account for a factor that should have received
significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) rep-
resents a clear error of judgment in balancing
the sentencing factors.” Id. at 708.
III.
Perrin’s sentence fails the first and second
prongs of the Smith test and thus is unreason-
able. We examine why this is so.
A.
The court did not give sufficient weight to
the “the nature and circumstances of the of-
fense” and “the need for the sentence imposed
to reflect the seriousness of the offense, to
promote respect for the law, and to provide
just punishment for the offense.” 18 U.S.C.
§ 3553(a)(1), (2)(A). Though it noted the se-
verity of the offense, the court failed to explain
how this severity, particularly the images’ de-
pravity and numerosity, factored into its deci-
sion to depart downward from the guideline
range to the statutory minimum.
Even for child pornography, the images
possessed by Perrin were unusually reprehen-
sible. A downward departure is unreasonable,
based at least in part on the content of the im-
ages, where the defendant possessed images
that depicted the severe molestation of girls
aged eight to ten years. Duhon, 440 F.3d at
719. “Under the circumstances, the district
court misjudged the seriousness of Duhon’s
offense. As a result, the sentence imposed
fails to advance sufficiently the sentencing ob-
jectives enumerated in section 3553(a)(2)-
(A)-(B).” Id. at 720.
Based on the examples in the PSR, the im-
ages possessed by Perrin are at least as severe
as those described in Duhon. Perrin’s images
depict the rape of girls as young as three,
compared to the eight-year-olds in Duhon’s
pictures. Perrin also possessed images depict-
ing children involved in bestiality. Under Du-
hon, the district court misjudged the severity
of the crime, as measured by the depravity of
the images, and the sentence does not suffi-
ciently account for the sentencing factors of
§§ 3553(a)(1)-(2), as required by Smith.
In addition, the number of images pos-
sessed by Perrin (4,237) warrants a finding
that this crime is particularly severe. The
guidelines consider the number of images in
calculating the offense level, but the scale has
a maximum level of “over 600 images;” Perrin
possessed over seven times that number.

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Further, if the current version of the guidelines
had been used, more than 26,000 images of
child pornography would have been attributed
to Perrin for sentencing purposes.3
Based on the content and numerosity of the
images possessed by Perrin, this crime falls at
the more severe end of possession of child
pornography cases. The court did not articu-
late sufficiently how the severity of the crime
factored into its decision to depart from the
guideline range and impose the minimum sen-
tence allowed by law, so the sentence fails to
advance sufficiently the objectives stated in
§ 3553(a)(2)(A)-(B).4
B.
The court gave four reasons for its depar-
ture. First, Perrin did not produce child por-
nography, but merely possessed it. Second, he
voluntarily entered counseling after his arrest.
Third, he understood the consequences of his
actions and wanted to rehabilitate himself. Fi-
nally, the term of supervised release was par-
ticularly onerous. Each of these factors was
improper for the court to consider.
The court noted repeatedly that Perrin was
a consumer, not a producer, of child pornogra-
phy. It also noted that there was no evidence
that he had tried to perform the actions depict-
ed in his illegal pornography collection. These
are improper reasons for imposing a non-
guideline sentence. The fact that a defendant
did not commit, or have the tendency to com-
mit, a more severe crime does not warrant a
downward departure for the crime actually
committed.5
The guidelines make a sharp distinction be-
tween the production and the possession of
child pornography:
Congress established a series of distinctly
separate offenses respecting child pornog-
raphy, with higher sentences for offenses
involving conduct more likely to be, or
more directly, harmful to minors than the
mere possession offense. Similarly, the
guidelines clearly reflect consideration of
whether and the degree to which harm to
minors is or has been involved.
Duhon, 440 F.3d at 718 (quoting Grosenhei-
der, 200 F.3d at 332-33). If Perrin had pro-
duced the images, the guideline range would
have been 324-405 months, significantly higher
than the range he ultimately faced. Thus, his
guideline range already accounted for the fact
that he did not produce child pornography, and
it was impermissible for the court to reduce
the sentence on the basis that he did not com-
mit an additional, more egregious, crime.
3 The probation office used the 2003 edition of
the guidelines manual because it was “less oner-
ous” and its use was intended to “avoid any ex post
facto issues.” The difference between the 2003 and
2005 editions lies in the formula used to convert
pornographic videos into an equivalent number of
still images for sentencing enhancement purposes.
Under the 2003 edition, a video counts as one im-
age, but under the 2005 edition, in force at the time
of sentencing, each video is to be considered as
seventy-five still images.
4 Also related to the severity of Perrin’s offense
is the district court’s failure to describe its consid-
eration of the need to avoid unwarranted sentencing
disparities among defendants with similar records
who have been found guilty of similar conduct.
See 18 U.S.C. § 3553(a)(6).
5 See United States v. Grosenheider, 200 F.3d
321, 333-34 (5th Cir. 2000); Duhon, 440 F.3d at
718-19.

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The court also based its sentence on Per-
rin’s contrition and his commencement of
counseling. These reasons are inappropriate
grounds for imposing a non-guideline sen-
tence, because they are already accounted for
in the reduction for acceptance of responsibil-
ity. United States v. Goldsmith, 192 Fed.
Appx. 261, 267 (5th Cir. 2006). In Goldsmith
the district court had given a non-guideline
sentence because, inter alia, it found that the
defendant had accepted responsibility for his
crime and had participated in a drug rehabili-
tation program after his arrest. We concluded
that, under Smith, both of these are improper
factors that could not be relied on to justify a
non-guideline sentence. The first is accounted
for, on its face, in the acceptance-of-responsi-
bility reduction. The second, participation in
counseling, is accounted for in the same re-
duction.6
Like the defendant in Goldsmith, Perrin ac-
cepted responsibility for his actions and en-
tered a counseling program after his arrest.
Although Goldsmith, being an unpublished de-
cision, does not bind us, its reasoning is per-
suasive, and we adopt its holding now as pub-
lished authority. A defendant’s contrition and
commencement of counseling are already ac-
counted for, according to the guidelines man-
ual, in the acceptance-of-responsibility reduc-
tion and thus are inappropriate as a basis for a
further sentence reduction.
Finally, the court in the instant case noted
the severity of the ten-year supervised release
term. This is not a valid reason for a departure
in the length of incarceration because, despite
the court’s pronouncement, a ten-year term of
supervised release is less onerous, not more,
than what is recommended for receipt and pos-
session of child pornography. The statutory
range is five years to life, and the district court
was certainly within its discretion to impose a
term on the low end of this range. But “Con-
gress and the Sentencing Commission intended
to impose life terms of supervised release on
sex offenders. Congress explicitly recognized
the high rate of recidivism in convicted sex
offenders.”7
Thus, Perrin’s supervised release term was
significantly lower than that recommended by
Congress and the Sentencing Commission. It
is inappropriate to use such a term of super-
vised release as the basis for a departure from
the guideline range.
IV.
Booker provided sentencing courts signifi-
cant flexibility, but that flexibility is not bound-
less. Non-guideline sentences require the
greatest justification, and here the district
court fell short. Perrin’s sentence fails the first
two prongs of Smith, because the court did not
adequately account for the severity of the
crime, and each of the four reasons given for
the departure was improper. Without these
reasons, no justification remains for the signif-
icant departure from the guideline range.
The judgment of sentence is VACATED
and REMANDED for resentencing.
6 Goldsmith, 192 Fed. Appx. at 267 (citing
U.S.S.G. § 3E1.1 comment. n.1(g) (“In determin-
ing whether a defendant qualifies under subsection
(a), appropriate considerations include . . . post-
offense rehabilitative efforts (e.g., counseling)”)).
7United States v. Allison, 447 F.3d 402, 406
(5th Cir. 2006) (citing 18 U.S.C. § 3583(k); H.R.
REP. NO. 108-66 (2003) (conf. rep.)).

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