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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 95-5520
MICHAEL JOHN GOOSSENS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-102-A)
Argued: March 6, 1996
Decided: May 28, 1996
Before WIDENER and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded with instructions by published opinion. Judge
Wilkins wrote the opinion, in which Judge Widener and Senior Judge
Chapman joined.
_________________________________________________________________
COUNSEL
ARGUED: William Graham Otis, Senior Litigation Counsel, Alexan-
dria, Virginia, for Appellant. Elizabeth Doyle Teare, SUROVELL,
JACKSON, COLTEN & DUGAN, P.C., Fairfax, Virginia, for Appel-
lee. ON BRIEF: Helen F. Fahey, United States Attorney, Andrew G.
McBride, Assistant United States Attorney, Vincent L. Gambale,
Assistant United States Attorney, Alexandria, Virginia, for Appellant.
William B. Reichhardt, SUROVELL, JACKSON, COLTEN &
DUGAN, P.C., Fairfax, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Michael John Goossens pled guilty to one count of knowing pos-
session of three or more materials depicting minors engaged in sexu-
ally explicit conduct. See 18 U.S.C.A. § 2252(a)(4)(B) (West Supp.
1996). In imposing sentence, the district court departed downward
from the applicable guideline range based on a finding that Goossens
suffered from diminished mental capacity that contributed to his
offense. See United States Sentencing Commission, Guidelines
Manual , § 5K2.13, p.s. (Nov. 1994). The Government appeals the
sentence imposed, asserting that the district court erred in departing
downward on this basis. See 18 U.S.C.A.§ 3742(b)(3) (West Supp.
1996). We agree. Consequently, we vacate the sentence imposed by
the district court and remand for resentencing in accordance with this
opinion.
I.
Using his home computer and modem, Goossens accessed com-
puter bulletin boards located outside Virginia that distributed com-
puter files containing high quality visual images that may be
displayed on a computer screen or printed onto paper. Goossens
downloaded numerous files depicting child pornography from these
databases onto his computer. Thereafter, he encrypted many of these
files using a computer program prohibiting access without a password
known only to him. Law enforcement authorities became aware of
Goossens' activities after examining the records of a company operat-
ing one such bulletin board and obtained a search warrant for his
home, resulting in the seizure of myriad examples of child pornogra-
phy on various mediums.
Soon afterward, Goossens entered a plea agreement under which he
would admit his guilt for one count of possession of child pornogra-
phy in violation of 18 U.S.C.A. § 2252(a)(4)(B) and agree to the entry
of an order of forfeiture for specified property connected to the
offense. The agreement also contemplated that Goossens would coop-
erate fully with an investigation of additional criminal activity by
other individuals. In exchange, if Goossens' assistance to law
enforcement efforts proved substantial in the Government's view, it
would seek a downward departure from the applicable guideline
range pursuant to U.S.S.G. § 5K1.1, p.s.
Goossens waived indictment and proceeded to enter his plea. As a
condition upon his release from custody following the entry of his
guilty plea, the district court ordered Goossens to cease his active
cooperation in investigative operations. The result of this prohibition
was that Goossens was unable to assist the Government personally or
to participate in an operation planned by the United States Customs
Service. The parties subsequently requested that the district court
allow Goossens to resume his active cooperation with law enforce-
ment officials. Admitting that he was motivated, at least in part, by
a desire to qualify for a reduced sentence, Goossens communicated
his willingness to assist the Government and his desire for an oppor-
tunity "to turn this large negative into a small positive." J.A. 44. The
Government, in turn, maintained that the secretive and tightknit net-
work surrounding the distribution of child pornography made investi-
gation difficult absent the assistance of undercover operatives and that
Goossens' cooperation presented a unique opportunity to penetrate
these networks. Moreover, the Government expressed its concern
with what it perceived to be a blanket policy of the district judge to
routinely impose this prohibition as a condition of release, noting that
it was "not aware of a single case on any fact pattern" in which the
judge had permitted a defendant to actively cooperate while subject
to any type of court-sponsored supervision. J.A. 41. Nevertheless, the
district court refused to lift the ban.
The presentence report calculated Goossens' base offense level to
be 13. See U.S.S.G. § 2G2.4(a). Adjusting upward by two levels for
possession of ten or more items of child pornography, see U.S.S.G.
§ 2G2.4(b)(2), and downward by two levels for his acceptance of
responsibility, see U.S.S.G. § 3E1.1(a), the presentence report recom-
mended that Goossens' adjusted offense level was also 13. Combined
with a Criminal History Category I, his adjusted offense level ren-
dered a guideline range of 12-18 months imprisonment. U.S.S.G. Ch.
5, Pt. A. The presentence report identified no mitigating or aggravat-
ing factors warranting departure from this range.
Although neither party objected to the proposed findings or calcu-
lations contained in the presentence report, Goossens requested that
the district court depart downward from the applicable guideline
range. His sole reason for the request was that the order imposed by
the district court prohibiting him from further participation in the
undercover investigation prevented him from qualifying for a depar-
ture based on substantial assistance. This circumstance, he asserted,
was not one that was considered adequately by the Sentencing Com-
mission in formulating the guidelines.
Apparently viewing the motion as a request for a departure pursu-
ant to § 5K1.1 based on substantial assistance, the district court
declined to depart on the basis requested by Goossens. Expressing
disapproval with the Government's decision not to request a § 5K1.1
departure--because in the district judge's view the defendant had
complied fully with the plea agreement--the court noted that, absent
a request by the Government, a departure on that ground was not
authorized.
Then, with no advance notice to the Government and with no
request from Goossens, the district court announced its sua sponte
decision to depart downward pursuant to U.S.S.G.§ 5K2.13, p.s. on
the basis of diminished mental capacity. Supporting its departure
decision in large part with a report submitted by a psychologist
Goossens had retained, the court explained that Goossens had been
diagnosed as suffering from an anxiety disorder and"from some mal-
adapted strategies that have never been addressed before." J.A. 99.
The court reasoned that the departure was appropriate because the
report had concluded "that this conduct is a result of some deep-
seated, long-term, psychological problems" and because "[t]here is no
question that this conduct is deviant behavior." J.A. 94. And, it further
found that Goossens had no prior record, had not committed a violent
crime, was gainfully employed in a lucrative position with a promi-
nent company, posed no threat to the community, and was not a
pedophile. Noting that the imposition of a period of incarceration
likely would result in Goossens losing his employment and his home,
as well as preventing him from paying a fine, the district court
imposed a sentence of three years supervised probation, the first six
months of which were to be served under house arrest with electronic
monitoring. The Government appeals. 1
II.
The Government maintains that the district court erred in departing
downward pursuant to U.S.S.G. § 5K2.13, p.s. on the basis of dimin-
ished mental capacity. In reviewing a sentence imposed pursuant to
a departure from the applicable guideline range, we apply well-
established principles. See, e.g. , United States v. Hummer , 916 F.2d
186, 192 (4th Cir. 1990) (reviewing sentence above guideline impris-
onment range), cert. denied , 499 U.S. 970 (1991); United States v.
Summers , 893 F.2d 63, 66 (4th Cir. 1990) (reviewing sentence below
guideline imprisonment range). We first examine de novo the state-
ment of reasons offered by the district court to determine whether it
identified a factor not adequately considered by the Sentencing Com-
mission in formulating the applicable guideline range. We then
review the sufficiency of the evidence to support the stated factor
under a clearly erroneous standard. Next, we consider whether the
district court abused its discretion in determining that the factor is suf-
ficiently important such that a sentence outside the guideline range
should result and that the extent of departure is reasonable. Hummer ,
916 F.2d at 192.
Section 5K2.13, p.s. provides:
If the defendant committed a non-violent offense while suf-
fering from significantly reduced mental capacity not result-
ing from voluntary use of drugs or other intoxicants, a lower
sentence may be warranted to reflect the extent to which
reduced mental capacity contributed to the commission of
the offense, provided that the defendant's criminal history
does not indicate a need for incarceration to protect the pub-
lic.
Since the Sentencing Commission identified diminished mental
capacity as an appropriate basis for departure, this ground satisfies the
first step in our inquiry. See United States v. Glick , 946 F.2d 335, 338
(4th Cir. 1991).
We turn, then, to review for clear error the factual findings of the
district court supporting the diminished mental capacity departure.
The Government argues that the findings by the sentencing court that
Goossens was suffering from a significantly reduced mental capacity
and that this reduced mental capacity contributed to the offense were
clearly erroneous. 2
In assessing the meaning to be accorded to the § 5K2.13, p.s.
requirement that a defendant's mental capacity be"significantly
reduced," we recognize that the Sentencing Commission has con-
cluded that a defendant's mental or emotional condition is "not ordi-
narily relevant in determining whether a sentence should be outside
the applicable guideline range." U.S.S.G. § 5H1.3, p.s. Judged against
this background, we agree with the other courts of appeals that have
addressed this issue that in order for a defendant's mental condition
to be considered "a significantly reduced mental capacity" within the
meaning of § 5K2.13, p.s., the defendant must have been unable to
process information or to reason. See United States v. Johnson , 979
F.2d 396, 400-01 (6th Cir. 1992); see also United States v. Cantu , 12
F.3d 1506, 1512-13 (9th Cir. 1993) ("In everyday language, ´reduced
mental capacity' refers to a lack of full intellectual functioning. . . .
[It] comprehends both organic dysfunction and behavioral distur-
bances that impair the formations of reasoned judgments."); United
States v. Hamilton , 949 F.2d 190, 193 (6th Cir. 1991) (per curiam)
(noting that a defendant who "was able to absorb information in the
usual way and to exercise the power of reason" was not suffering
from diminished mental capacity); United States v. Philibert , 947
F.2d 1467, 1471-72 (11th Cir. 1991) (holding evidence that defendant
"suffer[ed] from severe mental illness, including paranoid delusions"
was sufficient to permit departure based on diminished mental capac-
ity).
The present record provides no evidence to support a conclusion
that Goossens' ability to process information or to reason was sub-
stantially impaired. Instead, all of the evidence before the district
court indicated that Goossens "displayed considerable mental agility
in his professional and personal affairs, both legal and illicit."
Johnson , 979 F.2d at 401. The psychological report, on which the dis-
trict court wholly relied, diagnosed Goossens as suffering from an
Axis I "Dysthymic Disorder" ( i.e. , anxiety) and a "Generalized Anxi-
ety Disorder." J.A. 80. It described Goossens as:
a man of above average intellectual capacity, with no signs
of psychosis or gross organic dysfunction. However, there
are signs that he is suffering from an emotional disorder at
this time. This disorder is negatively effecting[sic] the way
he feels, thinks, relates, and behaves towards the world
about him. These maladaptive strategies result from repeti-
tive negative reinforcing experiences to which this man has
been exposed. As such, they narrow his available repertoire
of responses to particular behavioral strategies which have
become controlling. The result of this maladaptive approach
to life is that he perpetuates existing dilemmas, provokes
new predicaments, and sets into motion self-defeating
sequences with others.
J.A. 77. This report nowhere concludes that Goossens' problems "im-
pair[ed] the formation of reasoned judgments," Cantu , 12 F.3d at
1513, or prevented him from processing information when he com-
mitted the offenses, see Johnson , 979 F.2d at 401. Cf. United States
v. Webb , 49 F.3d 636, 639 (10th Cir.) (psychiatric reports document-
ing history of psychiatric problems, including dysthymia, did "not
address or lead to the conclusion that defendant suffered from signifi-
cantly reduced mental capacity") (internal quotation marks omitted),
cert. denied , 116 S. Ct. 121 (1995); United States v. Gentry , 925 F.2d
186, 188 (7th Cir. 1991) (psychiatric testimony that defendant suf-
fered from emotional problems but not mental illness did not support
departure for diminished mental capacity).
Further, all of the other information concerning Goossens that was
presented to the district court indicates a high level of mental func-
tioning on his part. For example, Goossens was employed in a respon-
sible position and was conscious enough of the illegality of his
conduct to encrypt the pornographic material on his computer to
avoid detection. Cf. United States v. Sammoury , 74 F.3d 1341, 1346
(D.C. Cir. 1996) (concluding evidence that defendant's offense
required extensive planning and that defendant had exercised sound
judgment in other matters was sufficient to support finding by district
court that defendant did not suffer from a reduced mental capacity);
Johnson , 979 F.2d at 401 (reversing diminished mental capacity
departure in part on the basis that defendant, who was a bank vice
president, demonstrated mental agility in professional affairs).
Moreover, even if Goossens suffered from diminished mental
capacity, no evidence supports a conclusion that it contributed in any
degree to the commission of the offense. At no point did the psychiat-
ric report attribute any causative connection between the emotional
problems it diagnosed and the offense to which Goossens admitted
guilt. See Glick , 946 F.2d at 339 ("Diminished capacity need not be
the sole cause of the offense to justify a departure, but should ´com-
prise[ ] a contributing factor in the commission of the offense.'")
(alteration in original) (quoting United States v. Ruklick , 919 F.2d 95,
97-98 (8th Cir. 1990)).
In sum, the record does not support the finding of the district court
that Goossens suffered from a significantly reduced mental capacity
that contributed to his offense. Accordingly, we conclude that the dis-
trict court erred in departing downward from the applicable guideline
range on that basis.
III.
Goossens argues that if the departure was erroneously granted on
the basis of diminished mental capacity, we should nevertheless
affirm the sentence because the district court erred in refusing to
depart on the basis set forth in his motion seeking a downward
departure--namely, that the order of the district court prohibiting his
active cooperation with law enforcement officials, and depriving him
of the opportunity to qualify for a substantial assistance departure,
was not a factor that was considered adequately by the Sentencing
Commission in formulating the guidelines and, therefore, was an
appropriate basis for a departure pursuant to U.S.S.G. § 5K2.0. Of
course, since the district court denied Goossens' request to depart on
this ground, we cannot conclude that the district court would have
imposed the same sentence on this ground had it recognized that a
departure on the basis of diminished mental capacity was not autho-
rized. Under these circumstances, Goossens' sentence may not be
affirmed because it was imposed in violation of law. See 18 U.S.C.A.
§ 3742(f) (West Supp. 1996);
cf. Williams v. United States
,
503 U.S.
193, 202-03
that one basis for departure is unlawful, it must vacate and remand for
resentencing under § 3742(f) unless it determines that the district
court would have imposed the same sentence on a legitimate basis).
Nevertheless, for the benefit of the court on remand, we address the
prohibition on Goossens' active cooperation with law enforcement
authorities and the appropriateness of departing downward from the
properly calculated guideline range on the basis of this prohibition.
The authority of a district court to release a defendant following his
conviction and prior to imposition or execution of sentence is gov-
erned by 18 U.S.C.A. § 3143 (West Supp. 1996). This statute delin-
eates the circumstances under which a district court properly may
permit the release of a person during this period. Generally speaking,
an individual must be detained following conviction unless a "judicial
officer finds by clear and convincing evidence that the person is not
likely to flee or pose a danger to the safety of any other person or the
community if released under section 3142(b) or (c)." 3 18 U.S.C.A.
§ 3143(a)(1). Such a finding permits the release of the convicted indi-
vidual subject to conditions imposed by the district court. Section
3142(c) prescribes the conditions upon release that a judicial officer
may impose if it finds that they are necessary to"reasonably assure
the appearance of the person as required and the safety of any other
person and the community." 18 U.S.C.A. § 3142(c)(1)(B) (West
Supp. 1996). This statutory provision specifies a number of
conditions-- e.g. , requirements that the defendant maintain employ-
ment or seek psychiatric treatment--and also sets forth a general pro-
vision supplying discretion to the judicial officer to impose "any other
condition that is reasonably necessary to assure the appearance of the
person as required and to assure the safety of any other person and
the community." Id.
Following Goossens' plea of guilty, the district court authorized his
release on a personal recognizance bond, subject to delineated terms
and conditions. After imposing a number of standard conditions, the
district court stated:
Now, one thing, in terms of whether the defendant is
doing any cooperation or not, certainly testimonial coopera-
tion and debriefing is valuable and will certainly be looked
at.
I don't permit defendants who are on bond under Court
control to be actively out on the street working or making
contacts or doing anything like that.
I mean, anyone who's engaged in illegal activity, this
defendant should have nothing to do with them in any
capacity. I'm sure everybody understands that's the way we
are going to work this.
I assume if there has been anything like that going on, it's
been completed. I don't want to hear any more about it than
that.
Transcript of Plea Proceedings in United States v. Goossens , No. 95-
102-A (Mar. 3, 1995), at 30-31. Although the district court did not
attempt to justify the imposition of the condition at that time, in deny-
ing the parties' joint request that the prohibition be lifted so that
Goossens could continue to cooperate, it reasoned that "any continued
involvement of this defendant with the pornography world will be
counterproductive to his ultimate rehabilitation." J.A. 37. Responding
to the argument that the imposition of the prohibition on active coop-
eration would deprive Goossens of the opportunity to qualify for a
§ 5K1.1 motion for a downward departure based upon substantial
assistance, the district court opined:
This is an artificial argument arising from a very rigid policy
of the prosecutor's office which fails to credit defendants for
good faith testimonial cooperation. By insisting that defen-
dants do more than submit to debriefings, grand jury testi-
mony and trial testimony in order to qualify for a U.S.S.G.
§ 5K1.1 or [Federal Rule of Criminal Procedure] 35(b)
motion, the prosecutor's office creates the dilemma in which
this defendant finds himself.
J.A. 37-38. Expanding on its reasoning for the prohibition at the sen-
tencing hearing, the district court indicated a belief that it was inap-
propriate to place the imprimatur of court approval on a criminal
investigation and that a defendant's active cooperation increased the
difficulties associated with monitoring the defendant's conduct and
with completing the presentence investigation. Moreover, while deny-
ing that it had an absolute blanket policy of imposing this prohibition,
it noted that it had a "strong policy" in favor of its imposition in all
cases and was able to point to only one instance in which it had
elected not to prohibit a defendant from active cooperation with law
enforcement authorities. J.A. 88-92. With respect to Goossens partici-
pation, the court again referenced the opinion that it was in his best
interest to begin the rehabilitation process and that this interest was
not overridden by an overwhelming need on the part of the Govern-
ment for the cooperation.
The district court committed a clear abuse of discretion by impos-
ing the prohibition on cooperation with law enforcement officials as
a condition of Goossens' release. Although we have difficulty imagin-
ing factual circumstances in which the imposition of such a condition
might be appropriate, we do not foreclose the possibility that such a
condition might in some extraordinary circumstances properly be
imposed by a district court when truly necessary to assure a defen-
dant's appearance or to protect the public safety. There is no genuine
argument, however, that the condition was necessary in this instance.
Indeed, the district court did not even attempt to justify its imposition
on this basis. Instead, the court based its decision on its view of what
would best benefit the rehabilitation of the defendant, a factor that is
conspicuously absent among those specified in § 3142(c)(1)(B).
Furthermore, in so doing, the district court improperly frustrated
Goossens' desire to cooperate in order to qualify for more favorable
sentencing treatment and the Government's legitimate hope that he
would aid in law enforcement authorities' investigative efforts. See
United States v. Vargas , 925 F.2d 1260, 1265 (10th Cir. 1991) (hold-
ing that "inflexible practice" by district court of refusing to permit
criminal defendants to cooperate was error); United States v. French ,
900 F.2d 1300, 1302 (8th Cir. 1990) (same). Both Congress and the
Sentencing Commission have recognized the importance of defen-
dants' cooperation with law enforcement by establishing provisions
affording defendants with the potential to qualify for more lenient
sentencing for federal criminal offenses if they provide substantial
assistance to law enforcement authorities in investigating or prosecut-
ing other criminal offenders. See 18 U.S.C.A. § 3553(e) (West Supp.
1996); 28 U.S.C.A. § 994(n) (West 1993); U.S.S.G. § 5K1.1; Fed. R.
Crim. P. 35(b). And, the broad discretion to determine whether to
move for a downward departure based on substantial assistance has
been vested in the Government, subject only to constitutional or self-
imposed restraints. See Wade v. United States , 504 U.S. 181, 184-86
(1992). We categorically reject the conclusion of the district court that
the Government somehow created the dilemma in which Goossens
was placed. Rather, the problem unquestionably arose from the insis-
tence of the district court in imposing itself in matters that are not
properly within its province--apart from an extraordinarily rare situa-
tion in which such a condition legitimately might be considered nec-
essary to assure the defendant's appearance before the court or the
safety of the community. That said, we turn to consider whether,
given the error in imposing the prohibition on Goossens' active coop-
eration, the district court erred in its consideration of his request for
a downward departure on that basis.
When a district court recognizes that it possesses the authority to
depart, its refusal to do so is not appealable. United States v. Bayerle ,
898 F.2d 28, 30-31 (4th Cir.), cert. denied , 498 U.S. 819 (1990). But,
the record discloses unmistakably that the sentencing court did not
consider and decline to depart on the actual basis suggested by
Goossens for the departure. Goossens recognized that he was not enti-
tled to a departure based on substantial assistance because the Gov-
ernment had not filed a motion requesting a departure on that ground.
Rather, Goossens requested that the district court recognize that the
Sentencing Commission had not considered a situation in which a dis-
trict court would affirmatively prohibit a defendant from voluntarily
engaging in conduct through which he would seek to qualify for a
departure based on substantial assistance.
We agree that the Sentencing Commission did not consider the
possibility that a district court might affirmatively prohibit a defen-
dant from cooperating with law enforcement authorities in an effort
to qualify for a departure based upon substantial assistance. And, it
is undisputed that Goossens was so prohibited by the district court in
this instance. Accordingly, we conclude that on remand the district
court should determine whether, under the circumstances of this case,
this factor is sufficiently important such that a sentence outside the
guideline range should result. In weighing whether the facts presented
by situations such as this 4 warrant a sentence outside the guideline
range, a court should consider whether a defendant's cooperation
likely would have been such that the Government would have moved
for a departure based upon substantial assistance had the defendant's
cooperation not been foreclosed improperly. Further, if the district
court determines that a sentence outside the guideline range is appro-
priate, it must also determine the appropriate extent of the departure.
VACATED AND REMANDED WITH INSTRUCTIONS
without furnishing notice of its intention to do so. This position clearly
is correct. When neither the presentence report nor the parties' prehear-
ing submissions identify a given basis for departure, a district court must
provide the parties with notice before departing on that basis. Burns v.
United States , 501 U.S. 129, 138-39 (1991); United States v. Maddox , 48
F.3d 791, 799 (4th Cir. 1995).
that Goossens' offense was nonviolent, that any diminished capacity he
suffered did not result from the voluntary consumption of drugs, or that
his criminal history did not indicate that incarceration was needed to pro-
tect the public.
fied in § 3142(f)(1)(A)-(C) be detained unless the court makes the same
finding and concludes that either "there is a substantial likelihood that a
motion for acquittal or new trial will be granted" or the Government's
attorney recommends that the individual not receive a sentence of impris-
onment. And, individuals for whom no term of imprisonment will be rec-
ommended by the applicable guideline need not be detained. See 18
U.S.C.A. § 3143(a)(1).
authorities, was in fact fully cooperating, and this cooperation was inter-
rupted by the unjustified action of the district court against the express
objection of both Goossens and the Government.