On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 95-cr-00197)
Before: SLOVITER, Chief Judge, COWEN and ROTH, Circuit Judges
In United States v. Bierley, 922 F.2d 1061 (3d Cir. 1990), we held that a sentencing court has authority to depart downward under the Sentencing Guidelines by analogy to the adjustment for Mitigating Role in the Offense if defendant would have been entitled to that adjustment had the supplier, an undercover postal inspector, been a criminally culpable participant. In this case we are asked to consider whether Bierley should be extended to a defendant charged and convicted of a single-person offense.
I. FACTS AND PROCEDURAL HISTORY
In May 1995, Appellee Romeo Romualdi ordered a catalog by mail from L.G. Enterprises, a business that sold pornographic materials. Unknown to Romualdi, L.G. Enterprises had recently been the subject of a federal investigation and was taken over by the Postal Inspection Service. The following month Romualdi ordered two videotapes from L.G. Enterprises. One of the tapes was entitled "First Fuck," and was described in the catalog as "Twelve Year Old Girl Has Sex With A Man For The First Time In Her Life." The second tape was entitled "Wash Time," and was described as "Eleven Year Old Girl Bathes With Woman, Have Sex Together and With A Man." Romualdi requested that the tapes be sent to his home in Lebanon, Pennsylvania but that they be addressed to "Superior Merchandise" rather than to him in his own name.
On July 6, 1995, the tapes were delivered to Romualdi's residence while postal inspectors maintained surveillance of the delivery. Romualdi received the tapes, and ten minutes later the investigators searched his home pursuant to a federal search warrant. During the search they found that the two tapes that had just been delivered to Romualdi were in a garbage can covered with newspaper. A further search revealed more pornographic material. The inspectors found two more tapes that purported to be depictions of nudist colonies, in which the camera focused upon the genitals of young girls. They also found thirteen pornographic videos depicting adult women dressed as girls. Romualdi also had pasted the faces of young girls, which he obtained from a Sears catalog, over the faces of women in the photographs of adults having sex. The inspectors also found a video entitled "Fallen Angel," which the presentence report describes as "a non-pornographic movie dramatizing the sexual relationship be[twe]en an adult male and a twelve year old girl whom the male lures into child pornography." Romualdi told the postal inspectors that when he ordered the two tapes from L.G. Enterprises he believed that they would be like the other tapes he owns in which the people in the tape were all over eighteen and were only dressed like children. He stated that he had started to view the tapes but had thrown them away because of their poor quality. He also stated that the reason why he had the tapes addressed to "Superior Merchandise," rather than his own name, was to avoid embarrassment if the packages had broken open while being transported through the mails. When questioned about the pictures with the girls' faces pasted to them, Romualdi admitted that he fantasized about young girls having sex.
After consulting an attorney, Romualdi signed a plea agreement with the government. Pursuant to that agreement, Romualdi pleaded guilty to knowingly possessing three or more videotapes containing child pornography, a crime under 18 U.S.C. Section(s) 2252(a)(4). Child pornography is defined as material "which involves the use of a minor engaging in sexually explicit conduct." 18 U.S.C. Section(s) 2252(a)(1)(A). Romualdi also agreed to provide the government with information that would be useful in future investigations relating to child pornography. The government agreed not to bring any more charges against Romualdi and agreed to seek the sentencing term available under the Sentencing Guidelines.
The United States Parole Office calculated Romualdi's base offense level at 13 pursuant to U.S.S.G. Section(s) 2G2.4(a), "possession of child pornography." Because some of the tapes in Romualdi's possession depicted girls under the age of twelve, the base level was increased by two to 15, pursuant to U.S.S.G. Section(s) 2G2.4(b)(1). The level was then lowered two points because of Romualdi's acceptance of responsibility, thereby bringing the total offense level to 13. Because Romualdi had no previous criminal record, the sentencing range for level 13 was calculated at twelve to eighteen months. The presentence report stated that consistent with this court's decision in United States v. Bierley, 922 F.2d 1061 (3d. Cir. 1990), the district court could depart two or four levels from the total offense level by analogy to U.S.S.G. Section(s) 3B1.2, if the court determined that Romualdi was a minimal or minor participant in the offense.
The presentence report noted that Romualdi had been in the Army for two years, had a good family background and had a good relationship with his 26 year old daughter, who was born from Romualdi's five year cohabitation with a girlfriend. None of those questioned was able to explain the conduct leading to the offense.
At the suggestion of the probation officer, Romualdi underwent a psychological evaluation by Roy Smith, Ph.D., Executive Director of Pennsylvania Counseling Services. In his report, Dr. Smith suggested that Romualdi suffered from a moderately severe dependent personality disorder with prominent obsessive compulsive traits, and that he needed to be seen in a good light by other people but had isolated himself from society. The doctor believed that Romualdi viewed pornographic films because of this isolation - as a way to feel closer to society - and he indicated that Romualdi's interest in pornographic films with child themes "may signify a developmental arrest or sexual addiction." Dr. Smith concluded that time in jail would be counterproductive as it would only increase Romualdi's isolation from his already limited social network and exacerbate his psychological condition. In addition, incarceration would interfere with Romualdi's operation of the pool hall and t-shirt store that he owns, thus creating additional financial stress which could lead to further psychological isolation. Instead, the doctor recommended that Romualdi be placed on probation and forced to attend group therapy for sexually addictive and child molesting individuals.
At Romualdi's sentencing, which took place in district court on January 16, 1996, the government followed the plea agreement and recommended the minimal sentence available under the applicable sentencing range, twelve months in jail. The court, however, departed from the Guidelines, citing as authority our opinion in Bierley, and reduced Romualdi's total offense level by three, from 13 to 10, finding by analogy to Section(s) 3B1.2 of the Sentencing Guidelines that the defendant's conduct qualified for a mitigating role reduction. Using the new offense level of 10, the court ...