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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-50888

UNITED STATES OF AMERICA,
Plaintiff-Appellant-Cross-Appellee,
versus
JOHN STEPHEN GROSENHEIDER,
Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court
for the Western District of Texas, Austin Division

January 11, 2000
Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-cross-appellant
John
Stephen
Grosenheider
(Grosenheider) was indicted for the receipt and possession of
computer images of child pornography under 18 U.S.C. §
2252A(a)(5)(B). After the district court denied his motion to
suppress the evidence taken from his computer, Grosenheider entered
a conditional guilty plea to one count of possession. The court
sentenced him to twelve months' incarceration. Grosenheider
appeals the denial of his suppression motion, and the government
appeals the sentence. We affirm the district court's denial of the
suppression motion, but vacate the sentence and remand for
resentencing.

Facts and Proceedings Below
On October 24, 1997, Grosenheider dropped off his personal
computer for repair work at Upgraders, a computer repair shop in
Austin, Texas. While conducting a final quality assurance check of
the computer on Thursday, October 30, 1997, Upgraders employee
Patrick Rowan (Rowan) discovered an unusually large number of image
files, known as "JPG's", on the computer's hard drive. Knowing
that JPG's in large numbers often depict pornographic images, Rowan
opened some of these files and found between two and five images of
child pornography. Rowan showed the images to his employer,
Nathaniel Monks (Monks), the owner of Upgraders, as well as to two
other employees, all of whom agreed that the images depicted child
pornography. The repairs now complete, the Upgraders staff
returned the computer to the retail store for pick up.
Grosenheider retrieved the computer some time later that day.1
At approximately 9:00 a.m. the next morning, Friday, October
31, 1997, Monks contacted the Austin Police Department about the
images Rowan had discovered. He spoke with Steven Meaux (Meaux),
a vice officer, and informed Meaux about the images he had seen and
the fact that the computer was now back in Grosenheider's
possession. Meaux arrived at Upgraders thirty to forty-five
minutes later. His primary purpose was to identify and interview
1 Upgraders occupies two suites at either end of a strip shopping
mall in south Austin. The front suite contains the retail store, where
customers interact with store personnel and pick up their repaired
computers. The back suite is the "tech shop" where the actual repairs
take place. Rowan, Monks, and the others all viewed the images on
Grosenheider's computer in the tech shop suite. Grosenheider picked up
his computer from the retail store suite.
2

the staff members who had seen the images. Meaux first entered the
retail store, but an employee directed him to the tech shop, where
Monks, Rowan, and the other employees who had seen the images were
waiting. When Meaux got there, Monks told him that Grosenheider
had brought the computer back that morning because the hard drive
was still not operating properly, and that Rowan had begun working
on it in the tech shop. As Meaux began to interview the assembled
employees, another employee entered the tech shop and said that
Grosenheider had again returned to the retail store, asking about
his computer. Meaux told Monks to "stall" Grosenheider by telling
him the store needed to order additional parts. Monks complied,
and from the tech shop Meaux watched Grosenheider leave the retail
store and drive away.
After Grosenheider left, Meaux completed his interview of
Rowan, Monks, and the other employees about the images they had
seen on the computer. They told him that the images depicted young
girls approximately ten years old engaged in sexual conduct of
various kinds. During this time, Rowan had been working on his
repair of Grosenheider's computer, a process which took
approximately fifteen minutes to complete. There is some dispute
which the district court expressly declined to resolve-whether
Meaux then asked to see or Rowan offered to show him the pictures.
In any event, Rowan attempted to access the images on the computer,
only to find them "locked", that is, inaccessible without a
password. The password lock had not appeared the day before.
Unable to override the lock, Rowan asked another, more experienced
3

Upgraders employee, Cary Richardson (Richardson), for help. By
using another image viewing program, Richardson by-passed the lock.
Rowan then showed Meaux the images he had seen the day before, as
well as additional ones. After viewing between six and ten images,
Meaux "had seen enough" to determine that the computer contained
depictions of child pornography.
At approximately 11:00 a.m., Meaux took the computer from
Upgraders to his office at the Austin Police Department, and
contacted Theodore Siggins (Siggins), a special agent with the
United States Customs Service. Meaux advised Siggins of his
discovery and asked if Siggins was interested in pursuing a federal
investigation. Siggins agreed to take over the case, and
immediately began preparing a search warrant affidavit. In his
affidavit, Siggins recounted the discovery by the Upgraders staff
of the pornographic images, Grosenheider's bringing the computer
back to Upgraders, and the call from Monks to Meaux. He did not
mention Meaux's viewing of the images or his seizure of the
computer. At approximately 4:30 p.m. that afternoon, Siggins
applied for and received a warrant to search the computer from a
United States Magistrate Judge.
After obtaining the warrant, Siggins secured the computer
from Meaux and took it to Upgraders, where he informed Monks that
he had a warrant for the computer and would return it to Upgraders
once he had finished searching it. Siggins then took the computer
back to his office and made a backup image of the computer's entire
hard drive. He analyzed the image on one of the government's
4

computers, and found that Grosenheider had subscribed to Forte
Agent, an on-line service that enables subscribers to access
various "newsgroups" on the Internet.2 Grosenheider had subscribed
to fifteen newsgroups, thirteen of which featured images and
messages concerning child pornography.3 Siggins found that from
these newsgroups Grosenheider had downloaded over 500 images of
young females, ages ten to fourteen, engaged in various sexually
explicit acts. Grosenheider had also established over 250 files,
each of which contained at least one image of child pornography and
sometimes included textual commentary with the image. Siggins
determined further that Grosenheider had viewed many of these
images more than once because the "creation date" on the files
sometimes differed from the "last access date", meaning that the
file had been modified or viewed after being downloaded. Based on
these findings, Siggins applied for and received another warrant to
search Grosenheider's home in Austin.
On the following Monday, November 3, 1997, Siggins returned
the computer to Upgraders in anticipation of a "controlled
delivery." Grosenheider's wife picked up the computer from
Upgraders that same day and took it back to their home. Federal
agents followed Mrs. Grosenheider to the residence; upon her
arrival, they executed the search warrant. The agents seized the
2 A "newsgroup" is an Internet site organized around a single
topic. Like a bulletin board, a newsgroup enables individuals to post
files, such as text messages or images, which other viewers may then
read or download onto their own computers.
3 Eleven of the newsgroups had titles that clearly indicated that
they dealt with child pornography.
5

computer, but did not find any additional child pornography at the
residence.
Grosenheider was indicted and charged with (1) Receipt of
Visual Depictions of Minors engaged in Sexually Explicit Conduct in
violation of 18 U.S.C. § 2252(a)(2), and (2) Possession of Visual
Depictions of Sexual Activities by Minors in violation of 18 U.S.C.
§ 2252A(a)(5)(B). On February 26, 1998, Grosenheider filed a
motion to suppress the evidence seized from his computer and
residence. While conceding that the first search of his computer
by Rowan was a private search, and therefore not subject to the
Fourth Amendment, Grosenheider challenged the second search by
Meaux. Specifically, he alleged that Meaux's breaking (with the
help of Upgraders employees) the password lock, viewing more images
than Rowan had seen, and subsequently seizing the computer violated
Grosenheider's rights under the Fourth Amendment. The district
court conducted two evidentiary hearings, on March 13 and May 1,
1998, and denied the motion in a May 11, 1998 memorandum order.
The following day, May 12, Grosenheider entered a conditional
guilty plea to the possession charge (Count II), pursuant to which
he reserved the right to appeal the denial of his suppression
motion. The remaining count was dismissed.
The district court conducted a sentencing hearing on July 31,
1998, and found that Grosenheider's total offense level was
eighteen, with an applicable incarceration range of twenty-seven to
6

thirty-three months.4 Apparently reasoning that Grosenheider's
case bore little resemblance to the "pornography" cases the court
had previously sentenced, which (with one exception) had all
involved "perverted people with a long track record of harm to
others," the district court departed downward and sentenced
Grosenheider to twelve months incarceration, followed by a three-
year term of supervised release.5 In the court's opinion, this
sentence was amply sufficient,6 though the court plainly doubted
its legality.7
4 Under U.S.S.G. § 2G2.4, Grosenheider's initial total offense
level was twenty-one: fifteen for violating 18 U.S.C. § 2252A(a)(5)(B);
two for the specific offense characteristic of material involving a
prepubescent minor; two for the characteristic of possessing ten or more
images depicting the sexual exploitation of a minor; and two for the
characteristic of obtaining the material by using a computer. Because
it found that Grosenheider accepted responsibility for his actions,
however, the district court reduced his offense level by three, pursuant
to section 3E1.1. Grosenheider had no prior convictions.
5 Before pronouncing sentence on Grosenheider, the district court
made preliminary remarks, including the following: "So that everybody
knows where we stand, I am concerned with the guidelines in this case.
I think they're wrong. I'm notnot that I have one second of doubt that
what you did was not only illegal but just terrible. But the guidelines
in this particular case, it seems to me, are just too high. I don't see
that it does anybody any good to put you away for three years in prison
. . . . I don't believe that the sentencing commission had a case in
mind where we have a person who's 38 or 39 years old, never been in
trouble really, have zero points on criminal history, whether it be
curiosity or just absolute perversion to utilize his computer in this
way . . . . So I'm just giving everybody fair warning, I don't like this
case, I don't like the defendant very much, don't like the guidelines
very much, don't like the law very much."
6 "Twelve months in the penitentiary is not easy for anybody. I
think you've been more than sufficiently punished for an intelligent
person, and I don't think you're going to do this again."
7 "I state in the record that as far as I'm concerned . . . ,
[this] is an illegal sentence and I do not have the authority to do it
under the express provisions of the guidelines. But this case and the
United States will not be any better off by putting Mr. Grosenheider in
7

Grosenheider now appeals the district court's denial of his
motion to suppress. The United States appeals Grosenheider's
sentence. We affirm the denial of the suppression motion, but
vacate the sentence and remand for resentencing.
Discussion
I. Grosenheider's Motion to Suppress
Grosenheider contends that the district court erred in denying
his motion to suppress the evidence obtained from his computer.
Specifically, he argues that Meaux's search of the computer, during
which Meaux viewed images of child pornography with help from and
in the presence of Upgraders employees, was illegal, as was Meaux's
subsequent warrantless seizure of the computer. We conclude,
however, that because Siggins obtained the evidence by lawful means
independent of Meaux's search or seizure, the evidence used against
Grosenheider was not the "tainted fruit" of any illegality. Under
the "independent source" doctrine, we conclude that this evidence
should not be suppressed. We therefore affirm the denial of
Grosenheider's motion.
This Court will accept a district court's factual findings on
a motion to suppress based on live testimony at a suppression
hearing "unless clearly erroneous or influenced by an incorrect
view of the law." United States v. Wilson, 36 F.3d 1298, 1303 (5th
Cir. 1994). When reviewing the district court's ruling, we will
"view the facts in the light most favorable to the prevailing
party." United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).
jail for three years and I'm not going to do it."
8

Our review of the district court's interpretation and application
of law is de novo. See United States v. Blocker, 104 F.3d 720, 725
(5th Cir. 1997).
A. Meaux's Search of the Computer
Grosenheider first argues that Meaux's search of the computer,
during which Upgraders staff helped by-pass the password lock, was
illegal. At the outset, he rightly concedes that the initial
search by Rowan did not violate the Fourth Amendment, which only
implicates searches and seizures by governmental agents or those
working for them. See United States v. Jacobsen, 104 S.Ct. 1652,
1656 (1984); Blocker, 104 F.3d at 725. He contends, however, that
by breaking the password lock, the second search exceeded the scope
of the initial private search, and, lacking a warrant, was
therefore illegal. We do not reach the merits of this argument,
but instead affirm the district court's determination that the
evidence from Grosenheider's computer is admissible under the
"independent source" doctrine. See United States v. Register, 931
F.2d 308, 311 (5th Cir. 1991) (refusing to consider whether exigent
circumstances justified a warrantless entry because the independent
source doctrine applied).
The exclusionary rule of the Fourth Amendment generally
prohibits the introduction at trial of not only primary evidence
obtained as a direct result of an illegal search or seizure, but
also evidence discovered later that is derivative of an illegality,
or constitutes "fruit of a poisonous tree." Segura v. United
States, 104 S.Ct. 2280, 2284 (1984) (citing Weeks v. United States,
9

34 S.Ct. 341 (1914) and Nardone v. United States, 60 S.Ct. 266, 268
(1939)). The primary limit on this rule is that otherwise
suppressible evidence will still be admitted if the connection
between the alleged illegality and the acquisition of the evidence
is "so attenuated as to dissipate the taint." Nardone, 60 S.Ct. at
268; see also Segura, 104 S.Ct. at 3391 (rejecting the notion "that
evidence is `fruit of the poisonous tree' simply because `it would
not have come to light but for the illegal actions of the police'")
(citations omitted). One example of this "attenuation" limit is
known as the "independent source" doctrine, which permits the
introduction of unlawfully discovered evidence when the police have
acquired that evidence through a distinct, untainted source. See
Silverthorne Lumber Co. v. United States, 40 S.Ct. 182, 183 (1920);
Segura, 104 S.Ct. at 3391. Animating this doctrine is the
recognition that the goal of the exclusionary rule is to put the
police "in the same, not a worse, position that they would have
been in if no police error or misconduct had occurred." Nix v.
Williams, 104 S.Ct. 2501, 2509 (1984). "When the challenged
evidence has an independent source, exclusion of such evidence
would put the police in a worse position than they would have been
in absent any error or violation." Id.
In Murray v. United States, 487 U.S. 533, 537 (1988), the
Supreme Court held that the independent source doctrine extends to
evidence "initially discovered during, or as a consequence of, an
unlawful search, but later obtained independently from activities
untainted by the initial illegality." Whether Meaux's assisted
10

breaking of the password lock and subsequent viewing of the JPG
images on the computer's hard drive were illegal, there is no
causal link between those activities and Siggins's later search and
seizure of the computer pursuant to his valid warrant. Indeed, it
is undisputed that Siggins obtained his search warrant by relying
solely on the statements by the Upgraders employees to Meaux. He
never mentioned to the Magistrate Judge the fact that Meaux had
viewed the images, or that he still possessed the computer.
Consequently, the search did not taint the Magistrate Judge's
decision to issue the warrant, which the district court found "the
government obtained exclusively on the basis of Rowan's initial
private search of the [computer] files." See id. at 541 (applying
independent source doctrine to later search in which affidavit made
no mention of earlier unlawful search).
In addition to requiring that the decision making process of
the judicial officer issusing the warrant be shielded from the
earlier alleged illegality, Murray also mandates that the district
court find that the agents would have sought the warrant even if
that illegality had never taken place. See id. at 542-43 & n.3
("[W]hat counts is whether the actual illegal search had any effect
in producing the warrant.").8 The district court satisfied this
8 Despite being framed as part of the independent source analysis,
this requirement bleeds into the "inevitable discovery" doctrine, which
renders the exclusionary rule inapplicable to otherwise suppressible
evidence if that evidence would inevitably have been discovered by
lawful means. See 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 11.4(a) (3d ed. 1996). The reason for this slippage
between the two doctrines is that they are actually two sides of the
same coin. As the Murray Court recognized, inevitable discovery is no
more than "an extrapolation" of the independent source doctrine: "Since
11

requirement by finding "credible" Siggins's testimony that the
witness statements by the four Upgraders employees, all of whom
agreed that the images depicted child pornography, were sufficient
to prompt his decision to seek the warrant. The district court
also found "[i]f Meaux had not viewed the images, the Court is
certain that Siggins would nevertheless have sought and obtained a
search warrant for the defendant's computer." These findings are
supported by the record and are not clearly erroneous.
B. Meaux's Seizure of the Computer
Grosenheider next argues that Meaux's seizure of the
computerhis taking it from Upgraders and holding it for the four
or five hour period until Siggins secured it with the search
warrantwas illegal. According to Grosenheider, even if Meaux's
search was reasonable, the seizure was not, and in any event the
independent source doctrine does not apply to illegal seizures. We
reject Grosenheider's latter argument as unsupported by precedent,
and consistent with our discussion of Meaux's search, do not
address the question of the seizure's reasonableness because
Siggins's "re-seizure" of the computer eliminated any taint from
Meaux's initial seizure.
Citing a passage in part IV of the opinion in Segura v. United
the tainted evidence would be admissible if discovered through an
independent source, it should be admissible if it inevitably would have
been discovered." Murray, 487 U.S. at 539; see also LAFAVE at § 11.4(a)
(referring to inevitable discovery as "a variation" on the independent
source doctrine). We observe that the decision not to suppress the
evidence in this casewith regard to both the search and seizure by
Meauxcould be upheld under either doctrine.
12

States, 104 S.Ct. 3380, 3386-90 (1984), Grosenheider contends that
the independent source doctrine is inapplicable to illegal
seizures, and would have us announce a rule that the occurrence of
all such seizures automatically mandates the suppression of any
evidence seized. This we decline to do. In Segura, the Supreme
Court held that two officers' illegal entry into an apartment did
not require suppression of evidence later discovered at the
apartment pursuant to a valid, independent search warrant. The
defendants argued that during the first illegal entry the officers
had "seized" all the contents of the apartment and therefore the
evidence should be suppressed. In part IV of Chief Justice
Burger's opinion for the Courta portion of the opinion joined in
only by Justice O'Connorthe following somewhat cryptic passage
appears:
"Plainly, this argument is advanced to avoid the
Silverthorne <independent source' exception. If all the
contents of the apartment were <seized' at the time of
the illegal entry and securing, presumably the evidence
now challenged would be suppressible as primary evidence
obtained as a direct result of that entry." 104 S.Ct. at
3386.

Grosenheider argues that this language establishes that a
later independent "re-seizure" can never cure an initial illegal
seizure. It is far from clear, however, whether this murky dicta
actually supports that proposition. Moreover, it is unlikely that
such a broad and mandatory application of the exclusionary rule
would be so cryptically announced. Further, only one other Justice
joined Chief Justice Burger in this part of the opinion, and the
language is thus not binding on lower courts. See also Joshua
13

Dressler, A Lesson in Incaution, Overwork, and Fatigue: The
Judicial Miscraftsmanship of Segura v. United States, 26 WM. & MARY
L. REV. 375, 416 (1985) ("Part IV is, in fact, a concurring opinion
by two justices, and can be deleted without affecting the
opinion."). Finally, the Court's later opinion in Murray
specifically cites Segura yet never notes that it stood for the
proposition Grosenheider suggests.
In fact, the Murray Court specifically found that an
independent "re-seizure" can cure an earlier illegal seizure in the
same way a valid later search can cure an earlier illegal one.
Murray, 487 U.S. at 542. Eschewing the "metaphysical" distinction
between searches and seizures, the Court observed that "[s]o long
as a later, lawful seizure is genuinely independent of an earlier,
tainted one (which may well be difficult to establish where the
seized goods are kept in the police's possession) there is no
reason why the independent source doctrine should not apply." Id.
In this case, it is clear that neither Siggins nor Meaux made any
use of the computer while Meaux held it for five hours: Meaux
simply safeguarded it, while Siggins conducted his analysis of the
hard drive's contents after he obtained the untainted warrant and
made a proper seizure. Regardless of the propriety of Meaux's
seizure, there is no question that Siggins's "re-seizure" was
independent from it.
Grosenheider does not specifically contend that matters would
have eventuated differently had Meaux not seized the computer and
taken it to his office. Nor does he explain, or anything in the
14

evidence suggest, how this might be so in light of the district
court's adequately supported findings that the search warrant was
"obtained exclusively" on the basis of the initial private search
and would have been obtained by Sigginswho did not possess or
examine the computer until he received the warranteven if "Meaux
had not viewed the images." The only theoretically possible basis
on which a contention that there would have been a different
ultimate outcome could be grounded is that, in the four or five
hour interval between Meaux's seizure of the computer and Siggins'
securing it pursuant to the warrant, Grosenheider (or someone on
his behalf) might have reclaimed the computer from Upgraders and
either purged it of all the child pornography or thrown it away
where it could not be found.9 The Segura court explicitly rejected
that very sort of contention, stating:
"It may be that, if the agents had not entered the
apartment, petitions might have arranged for the removal
or destruction of the evidence, and that in this sense
the agents' actions could be considered the `but for'
cause for discovery of the evidence. But at this
juncture, we are reminded of Justice Frankfurter's
warning that `[s]ophisticated argument may prove a causal
connection between information obtained through [illegal
conduct] and the Government's proof,' and his admonition
that the courts should consider whether `[a]s a matter of
good sense . . . such connection may have become so
attenuated as to dissipate the taint.' Nardone, 308 U.S.
at 341, 60 S.Ct. at 268. The essence of the dissent is
that there is some `constitutional right' to destroy
evidence. This concept defies both logic and common
sense." 104 S.Ct. at 3391.
We should make clear that while we affirm the district court's
9There is nothing in the record to suggest that in this interval
Grosenheider ever attempted or intended to retreive the computer or that
he was ever aware that the computer had been removed from Upgraders or
that the authorities were involved or interested.
15

holding that the evidence should not be suppressed, we decline to
follow its lead in resolving the legality of the Meaux seizure
itself.10 Under the independent source doctrine, we conclude that
10 We note that the Meaux seizure, lasting only for a few hours and
executed merely for the purpose of guarding the computer until a warrant
could be obtained, does appear reasonable. See, e.g., United States v.
Place, 103 S.Ct. 2637, 2641 (1983) ("Where law enforcement authorities
have probable cause to believe that a container holds contraband or
evidence of a crime, but have not secured a warrant, the Court has
interpreted the [Fourth] Amendment to permit seizure of the property,
pending issuance of a warrant to examine its contents, if the exigencies
of the circumstances demand it or some other recognized exception to the
warrant requirement is present."). The ultimate holding of Place was
that a 90 minute detention of luggage was too long to be justified only
by reasonable suspicion where probable cause was lacking. Id. at 2645
("The length of the detention alone precludes the conclusion that the
seizure was reasonable in the absence of probable cause"). That holding
is inapposite here because there was probable cause from the inception
of the computer's detention, and the four or five hour duration of the
detention until the warrant was procured was plainly reasonable. See,
e.g., United States v. Martin, 157 F.2d 46, 53-54 (2nd Cir. 1998);
United States v. Respress, 9 F.3d 483, 484-86 (6th Cir. 1993); United
States v. Lewis, 902 F.2d 1176, 1180 (5th Cir. 1990); United States v.
Jodoin, 672 F.2d 232, 235-36 (1st Cir. 1982) (Breyer, Circuit Judge).
The district court, however, found no exigent circumstances to
justify the seizure. Noting that Meaux watched Grosenheider drive away
from Upgraders before he seized the computer, the court asserted that
"there was absolutely no possibility that the evidence of child
pornography was about to be deleted or destroyed" by Grosenheider.
Instead, the court found justification for the search under the plain
view doctrine, which we do not address.
The district court's factual findings are somewhat confusing on
this point. The district court's only response to the potential concern
that if the computer were not detained Grosenheider might retrieve it
and delte the images was that Meaux could have "summon[ed] another
officer to stay with the computer" at Upgraders while a search warrant
was sought. The puzzling fact is that this act would have effectuated
an equally "meaningful interference" with Grosenheider's possessory
interests in his computer as did the actual seizure. See Jacobsen, 104
S.Ct. at 1656. We find it difficult to distinguish between summoning
another officer to keep the computer from leaving the store and seizing
the computer itself. As it made no difference to any legitimate
interest of Grosenheider that the computer was taken to Meaux's office
rather than left under police guard at Upgraders, the fact that the
former rather than the latter alternative was followed, should not be
the basis for suppression. See id. at 1661-63. In any event, the
independent source doctrine renders the legality of the seizure
ultimately irrelevant.
16

any illegality that may have been part of Meaux's seizure did not
affect the propriety of Siggins's actions in any way, and the
evidence was therefore admissible.
II. Grosenheider's Sentence
At the sentencing hearing, the district court departed from
the applicable guideline range of twenty-seven to thirty-three
months and sentenced Grosenheider to twelve months' incarceration.
We review a district court's decision to depart downward from the
Sentencing Guidelines for an abuse of discretion. See Koon v.
United States, 116 S.Ct. 2035, 2047 (1996).
The Sentencing Guidelines purport to carve out a "heartland,"
a set of "typical cases embodying the conduct that each guideline
describes." U.S.S.G. Ch. 1, Pt. A 4.(b). A sentencing court may
consider departing from the applicable sentence range when it
encounters an atypical case, "one to which a particular guideline
linguistically applies but where conduct significantly differs from
the norm." Id. Before it may do so, the district court must
"articulate [the] relevant facts and valid reasons why the
circumstances of [the] case" merit departure. United States v.
Winters (Winters I), 105 F.3d 200, 208 (5th Cir. 1997); see also
United States v. Threadgill, 172 F.3d 357, 376 (5th Cir. 1999)
(defining the relevant inquiry as asking whether a case is "so
unusual as to warrant a departure under the Guidelines").
Accordingly, the district court must engage in the following
inquiry:
"(1) What features of this case, potentially, take it outside
the Guidelines' <heartland' and make it a special, or unusual
17

case?
(2) Has the Sentencing Commission forbidden departure based on
those features?
(3) If not, has the Commission encouraged departures based on
those features?
(4) If not, has the Commission discouraged departures based on
those features?" Koon, 116 S.Ct. at 2045.
If a district court finds "an aggravating or mitigating
circumstance that was not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines," it may
consider departing on that basis under the first question of the
Koon analysis. Id. at 2044. When doing so, the district court
must keep in mind the Commission's expectation that departure based
on grounds not mentioned in the guidelines will be "highly
infrequent." Id. at 2045. Despite this exhortation, a reviewing
court will afford substantial deference to the district court's
decision to depart. See Winters I, 105 F.3d at 205.
This deference, however, is not boundless. "Substantial
deference has never been synonymous with carte blanche approval of
a sentencing judgment in the face of legal error. Indeed, when
reviewing the basis for a downward departure, our function as a
court of appeals would be rendered superfluous if <substantial
deference' operated as a talisman to ward off scrutiny of this
court." United States v. Winters (Winters II), 174 F.3d 478, 482
n.1 (5th Cir. 1999). It is clearly established that in order to
justify departure based on a factor not listed in the guidelines,
a district court must find on the record that "facts or
circumstances of a case remove that case from the <heartland' of
typical cases encompassed within the guideline." Id. at 482; see
18

also United States v. Harrington, 82 F.3d 83, 87 (5th Cir. 1996).
The district court did not articulate any acceptable reason
for departure, as the court itself seemed to recognize when it said
that "as far as I'm concerned . . . [this] is an illegal sentence
and I do not have the authority to do it under the express
provisions of the guidelines." And, of course, disagreement with
the guidelines or with a particular guideline, also expressed by
the district court in this connection, is not an acceptable basis
for departure.11
The closest the district court came in this case to an attempt
to justify a permissible departure were its observations that all
but one of the court's prior "pornography" cases had been "fairly
obvious cases of perverted people that had a long track record of
harm to others" (the one exception being "a young college boy who
was shy, that'd gotten some pictures"), while here a psychiatrist
whom defense counsel had examine Grosenheider "would have found
enough to investigate further if there was an imminent problem on
the surface of Mr. Grosenheider's life."12 These observations are
11While we appreciate the district court's candor and sympathize
with its frustration at what it felt to be the guidelines' overly severe
treatment of the offense specified in § 2252A(a)(5)(B), the Court of
Appeals lacks the luxury of affirming a properly challenged sentence
which it deems illegal or illegally imposed.
12The Presentence Report reflects the following, to which the
district court was doubtless referring, viz:
"According to Grosenheider, he has not been through
counseling prior to the instant offense. The defendant
provided the probation officer with a copy of a letter
written by Dr. George Parker on February 22, 1998. According
to this letter, it is the doctor's opinion that Grosenheider
is not a pedophile and does not have pedophiliac
19

doubtless best understood in the context of the district court's
earlier statement that "I don't believe that the sentencing
commission had a case in mind where we have a person who's 38 or 39
years old [Grosenheider's approximate age], never been in trouble
really, have zero points criminal history, whether it be curiosity
or just absolute perversion to utilize his computer in this way .
. . ." The court also remarked to Grosenheider, "I don't think
you're going to do this again."
Insofar as the district court may have determined that this
was not a "heartland" section 2252A(a)(5)(B) violation because the
defendant did not have a record of "harm to others," his relevant
conduct did not include "harm to others," and he did not have a
propensity to molest children, we disagree. A defendant's prior
criminal record is taken into account in his criminal history
score, and if Grosenheider had had a record his guideline range
would have been even higher. With respect to harm to others, that
is no part of the section 2252A(a)(5)(B) offense, which, apart from
the jurisdictional element, merely involves knowing possession. In
this connection, it is unclear whether the district court's
reference to its other "pornography" cases referred to section
2252A(a)(5)(B) cases or consisted mostly of cases where an element
characteristics nor does he have tendencies towards lying,
manipulating, conning, or deceiving others. Dr. Parker's
conclusions appear to be based on psychological assessment
interviews . . . These assessments/tests are based on
Grosenheider's responses and are self reporting. The
evaluation does not state if any physiological (example: Abel
screen) or polygraph testing was conducted. The evaluation
letter does note that Grosenheider experienced several
psychological traumatic events . . ."
20

of the offense involved some actual sexual exploitation of
children, such as, for example, 18 U.S.C. § 2251(a) (causing,
transporting or seeking a minor to engage in actual or simulated
sexually explicit conduct for the purpose of producing visual
depiction thereof). See also 18 U.S.C. § 2252(a)(1)-(3)
(trafficking in visual depictions of minors engaged in sexually
explicit conduct).13 The guideline for simple possession of child
pornography, section 2G2.4, provides for a base offense level of
15, while the guideline applicable to the trafficking offenses,
section 2G2.2, carries a base offense level of 17 and provides for
a five level enhancement "[i]f the defendant engaged in a pattern
of activity involving the sexual abuse or exploitation of a minor."
The guideline for the causing, transporting or seeking offense
(section 2251(a)), section 2G2.1, carries a base offense level of
27. Both the simple possession (section 2G2.4(c)(1)) and the
trafficking (section 2G2.2(c)(1)) guidelines provide that "[i]f the
offense involved causing, transporting, permitting, or offering or
seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of
such conduct, apply § 2G2.1." The simple possession guideline
(section 2G2.4(c)(2)) also provides that "[i]f the offense involved
trafficking in material involving the sexual exploitation of a
minor . . . apply § 2G2.2." It is clear that Congress established
a series of distinctly separate offenses respecting child
13Indeed, it is unclear whether the court's remarks embraced
pornography other than child pornography. See, e.g., 18 U.S.C. §§ 1460-
1463, 1465, 1466.
21

pornography, with higher sentences for offenses involving conduct
more likely to be, or more directly, harmful to minors than the
mere possession offense.14 Similarly, the guidelines clearly
reflect consideration of whether and the degree to which harm to
minors is or has been involved.
Our conclusion in this respect finds support in the relatively
recent decisions of other Courts of Appeals which have addressed
somewhat similar child pornography downward departures. In United
States v. Barton, 76 F.3d 499 (2d Cir. 1996), the district court
departed downward in sentencing Barton on one count of "receiving"
child pornography contrary to section 2252(a)(2), on the basis that
he was "not involved in the commercial distribution or production
of child pornography and that there was no evidence Barton was a
14Thus the § 2251(a) offense (causing, transporting or seeking a
minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction thereof) carries a minimum sentence of ten
years and a maximum of twenty years for a first conviction, with
enhancement to a fifteen year minimum and a thirty year maximum where
there has been one prior conviction for the same or certain other
offenses, including under any state law "relating to the sexual
exploitation of children." Section 2251(a) also provides for a thirty
year minimum and life term maximum where there are two or more such
prior convictions. Similarly, the § 2252(a)(1)-(3) trafficking offenses
carry a fifteen year maximum and no minimum, but with a prior conviction
for the same offense or certain other offenses including under any state
law "relating to . . . abusive sexual conduct involving a minor . . .
or the production, possession . . . or transportation of child
pornography," a five year minimum and thirty year maximum is specified.
The same sentencing range is provided for the trafficking offenses
denounced in § 2252A(a)(1)-(4). See § 2252A(b)(1). The simple
possession offense here in issue, § 2252A(a)(5)(B), carries a five year
maximum, with no minimum (with a prior conviction for the same or a
similar offense including under any state law "relating to . . . abusive
sexual conduct involving a minor . . . or the production, possession .
. . or transportation of child pornography," the maximum sentence
becomes ten years and there is a two year minimum). See § 2252A(b)(2).
The same sentencing range is provided for the § 2252(a)(4) simple
possession offense. See § 2252(b)(2).
22

pedophile or that he had sexually abused children." Id. at 501.
The Second Circuit reversed, noting that simple receiving was a
separate offense that the Sentencing Commission "clearly foresaw .
. . § 2G2.2 would extend to", and "[i]nasmuch as the offense to
which Barton pleaded guilty (receipt of child pornography) did not
contemplate sexual abuse of children, we find that he is not
entitled to a departure merely because he did not commit an
additional crime." Id. at 503. United States v. Wind, 128 F.3d
1276 (8th Cir. 1997), addressed a sentence for a single count of
simple possession of child pornography contrary to section
2252(a)(4), in which the district court had departed downward on
the basis of no prior criminal record and psychological testing
which revealed that Wind "`. . . is not a typical child predator'
or pedophile." Id. at 1277. The Eighth Circuit reversed, stating
that "because the Guidelines take into account the gravity of a
possession offense as compared with more serious forms of
exploitation, Wind is not entitled to a downward departure on the
ground that he did not commit, or have the tendency to commit, a
worse crime." Id. at 1278. Finally, in United States v. Stevens,
No. 98-30289, 1999 WL 1080167 (9th Cir. Dec. 2, 1999), the Ninth
Circuit reversed a downward departure in sentencing for a single
count of simple possession of child pornography contrary to section
2252A(a)(5)(B). Like this case, Stevens involved possession of
child pornography images in the hard drive of the defendant's
personal computer. The district court departed downward noting,
inter alia, that there was "no evidence that Stevens ever abused a
23

specific child, or that he singled children out for specific
attention," that "Stevens appears indifferent to the children he
might actually encounter," that he "is not one of the offenders for
whom collection of child pornography is a supplement to the
molestation of real children," that he never produced or
distributed child pornography, did not pay for it, did not
correspond with its producers or purveyors, and did not share his
collection with others or inform them of it. United States v.
Stevens, 29 F. Supp. 2d 592, 603-05 (D. Alaska 1998).15 The Ninth
Circuit held these factors did not suffice to take the case out of
the heartland of section 2252A(a)(5)(B). Relying principally on
Barton and Wind, the Court stated that "we agree with the reasoning
of those cases" and quoted with approval Wind's statement rejecting
downward departure because the defendant "did not commit, or have
the tendency to commit, a worse crime" than simple possession of
child pornography. Stevens, 1999 WL 1080167 at *6 (internal
quotation marks omitted).
Agreeing with the holdings and rationales of the decisions of
our sister circuits in Barton, Wind, and Stevens, we conclude that
the fact that Grosenheider had not abused any child, and had no
inclination, predisposition or tendency to do so, and had not
produced or distributed any child pornography, and had no
inclination, predisposition, or tendency to do so, does not suffice
15We observe that the district court opinion in Stevens is the
principal authority on which Groseheider relies in defending the
district court's downward departure.
24

to take his case out of the heartland of section 2252A(a)(5)(B).16
The district court did not articulate any acceptable basis for
its downward departure, and we accordingly remand for resentencing
not inconsistent with this opinion.
Conclusion
16We do not undertake to resolve whether an isolated instance of
possession of child pornography, out of mere curiosity or the like, and
not either for any kind of distributive purpose or for sexual arousal
or gratification from viewing it, could validly form a basis for a
determination that the conduct was not within the heartland of §
2252A(a)(5)(B). The district court made no findings to this effect and
indeed may have suggested that Grosenheider's possession was not merely
the result of curiosity or the like.
Nor do we address the circumstances under which a particular
defendant's § 2252A(a)(5)(B) offense might be regarded as sufficiently
"aberrant behavior" on his part to support a downward departure. The
district court has not purported to ground its departure on this basis,
nor do its remarks contain any sufficient justification for doing so.
In its introductory section regarding "Probation and Split Sentences,"
the Guidelines Manual states that "[t]he Commission, of course, has not
dealt with the single acts of aberrant behavior that still may justify
probation at higher offense levels through departures." U.S.S.G. Ch.1,
Pt.A, intro. cmt. 4(d). This statement refers only to probation, but
Courts of Appeals have agreed that it may also warrant a reduction in
sentence. See Rachel A. Hill, Comment, Character, Choice, and "Aberrant
Behavior", Aligning Criminal Sentencing with Concepts of Moral Blame,
65 U. CHI. L. REV. 975, 977 (1998) (citing United States v. Duerson, 25
F.3d 376, 380 (6th Cir. 1994)). This circuit has not yet defined
aberrant behavior for this purpose. See Winters I, 105 F.3d at 206.
It has observed, however, that a departure based on aberrant behavior
"requires more than an act which is merely a first offense or `out of
character' for the defendant." See United States v. Williams, 974 F.2d
25, 26 (5th Cir. 1992). Instead, aberrant behavior "generally
contemplates a spontaneous and seemingly thoughtless act rather than one
which was the result of substantial planning." See id. at 26-27
(quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)).
Grosenheider's conduct apparently took place over a period of several
weeks, and he may have viewed some of the images more than once. This
at least casts doubt on whether there is any possibility of an aberrant
behavior finding. However, our cases have not explicitly confined
aberrant behavior to a short temporal frame. Their focus has been more
on the level of planning and meditation that went into the act. See
Williams, 974 F.2d at 27 (finding that the defendant's conduct did not
qualify as "spontaneous" and "thoughtless" because he clearly planned
his activities).
25

We affirm Grosenheider's conviction; we vacate his sentence
and remand for resentencing not inconsistent with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED
and CAUSE REMANDED FOR RESENTENCING
26