On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 94-cr-00131-1)
Before: BECKER, STAPLETON, Circuit Judges, and LANCASTER, District Judge. *fn*
Argued: September 21, 1995
Defendant John MacLeod pled guilty to two crimes: inducing minors to engage in sexual activity for the purpose of producing child pornography, and transporting minors across state lines with the intent to engage in sexual activity. This appeal involves the propriety, under the United States Sentencing Guidelines ("guidelines" or "USSG"), of a district court's upward departure based on the large number of victims harmed by the defendant. Under the applicable guideline, USSG Section(s) 3D1.4, MacLeod's presumptive guideline range was 121-151 months. However, this guideline allows only six victims to be taken into account in determining the base offense level while MacLeod's offense involved at least ten minors. To punish MacLeod for these additional victims, the district court departed upward four sentencing levels, making MacLeod's new guidelines range 188 to 235 months. The district court sentenced MacLeod to 235 months, and he now appeals.
In connection with departures, we follow a three step review process. Our review is plenary as to whether departure was permissible; clearly erroneous as to whether the facts support the grounds relied upon for departure; and deferential as to the reasonableness of the departure. See United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir. 1990). Applying this standard, we conclude that the presence of additional, uncounted victims is an appropriate basis for upward departure and that the facts of record support the district court's decision to depart. In evaluating the reasonableness of the departure, we seek guidance from the structure of the guidelines themselves. We find it in the commentary to Chapter 3, Part D and in analogy to other guidelines sections (as well as case law from other circuits). Because the district court's departure violated the principle of "declining marginal punishment" as enunciated in the commentary to Chapter 3, Part D, see USSG Ch.3, Pt.D, intro. comment., and exceeded the pattern for upward adjustments in both the theft and fraud sections of the guidelines, see USSG Section(s) 2B1.1, 2F1.1, we conclude that the extent of the district court's departure was unreasonable. We therefore vacate the judgment and remand for resentencing.
I. Facts and Procedural History
MacLeod, a resident of Silver Spring, Maryland, participated with his co-defendant, Eric Nastelin, in a child pornography ring from December 1991 to August 1993. The relevant facts are summarized as follows.
On August 6, 1993, the mother of a fourteen year old boy, V-1, advised the Montgomery County, Maryland Police Department that MacLeod had befriended her son and two other fourteen year olds, V-2 and V-3. The mother reported that her son would return home from outings with MacLeod with forty to fifty dollars in unexplained cash. She also related that V-1 and another boy had confided to her friend, Donald Shipley, that MacLeod had taken "home videos" of them at the Red Roof Inn near the BWI Airport and at MacLeod's apartment in Silver Spring, Maryland.
Based upon this information, Detective John Lyon interviewed Shipley. Shipley explained that over the past several months he had driven V-1 and V-2 to a roller rink to meet MacLeod. Both V-1 and V-3 had informed Shipley that MacLeod and another male had filmed them having sex. Maryland law enforcement set up surveillance of MacLeod and observed him traveling between Silver Spring and the Dundalk area of Baltimore several times. Each time, MacLeod would meet with different boys, approximately thirteen to fifteen years old, and drive them to various locations including, on one occasion, a Baltimore motel.
Lyon also interviewed V-1. V-1 attested to MacLeod's involvement with child pornography. V-1's first sexual encounter with MacLeod occurred in December 1992 at the Red Roof Inn where MacLeod performed oral sex on V-1. V-1 was paid forty dollars for his participation. V-3 and V-4 (the brother of V-1, age thirteen) were also present. They were filmed having sex with each other by Nastelin. V-4 was paid $ 250.
In January 1992, V-1 made his first sex film for MacLeod and Nastelin. In it, he performed sex acts with V-3. Over the next seven months, V-1 made approximately eleven more films. The movies involved him having sex with V-2, V-3, and, on one occasion, with his brother, V-4. The boys were compensated for their participation.
On August 21, 1993, MacLeod and Nastelin were arrested by agents of the FBI. Nastelin immediately cooperated by providing detailed statements. He explained that in 1991 he began traveling from New Jersey to Baltimore to meet MacLeod at various hotels to have sex with boys. In December 1991, Nastelin conceived the idea of filming boys having sex with each other, and purchased a video camera for this purpose. MacLeod approved the plan and made the necessary arrangements for boys and for hotel rooms. Approximately twenty films were made in Baltimore. After the completion of each film, Nastelin would make copies and MacLeod would travel to New Jersey to retrieve one or more of ...