United States v. MacLeod

• Court: Court of Appeals for the Third Circuit
• Decided: April 10, 1996
• Docket: 94-5561
• Status: Unknown

Opinion

Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit

4-10-1996

United States v. MacLeod Precedential or Non-Precedential:

Docket 94-5561

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Recommended Citation "United States v. MacLeod" (1996). 1996 Decisions. Paper 192. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/192

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 1 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________________

NO. 94-5561 ____________________

UNITED STATES OF AMERICA

v.

JOHN MACLEOD Appellant _______________________________

On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 94-cr-00131-1) _______________________________

Argued: September 21, 1995

Before: BECKER, STAPLETON, Circuit Judges. 0 and LANCASTER, District Judge.

(Filed April 10, 1996)

JACK J. ZAPPACOSTA, ESQUIRE (ARGUED) Zarrillo & Zappacosta 1930 Route 70 East Executive Mews, Suite X-116 Cherry Hill, NJ 08003

Counsel for Appellant

LESLIE F. SCHWARTZ, ESQUIRE (ARGUED) Faith S. Hochberg, Esquire Kevin McNulty, Esquire Office of United States Attorney 970 Broad Street, Room 502 Newark, NJ 07102

Counsel for Appellee

0 Honorable Gary L. Lancaster, United States District Judge for the Western District of Pennsylvania, sitting by designation.

2 _________________________

OPINION OF THE COURT _________________________

BECKER, Circuit Judge 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 § 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

3 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 §§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

A. The Offense

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

4 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.

5 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

them. Nastelin also stated that, upon MacLeod's suggestion, the

men stored their large collection of child pornography in a

storage facility in Lindenwold, New Jersey.0

Following MacLeod's arrest, Lyon interviewed V-3. He

too confirmed MacLeod's participation in child pornography.

During 1992 and 1993 MacLeod had sex with V-3 approximately fifty

times. V-3 also participated in sex movies filmed at MacLeod's

Silver Spring apartment and various hotels in the Baltimore area.

Additionally, the FBI interviewed V-5 and V-6, who at the time of

their sexual relations with MacLeod, were age twelve or thirteen,

and age fourteen, respectively. V-5 was featured in an early

Baltimore film. On one occasion, MacLeod picked up V-5 and V-6

0 The facility contained the following items of child pornography: (a) approximately 347 video tapes; (b) approximately 113 eight millimeter and Super 8 films; (c) approximately 324 magazines; (d) approximately 954 black and white photographs; (e) approximately 232 slides; and (f) books containing visual depictions of children engaged in sexually explicit conduct.

6 in Baltimore and brought them to a friend's residence in

Lindenwold. On that trip, MacLeod performed oral sex on V-6 and

his friend performed oral sex on V-5. Both boys were paid.

A total of ten boys were ultimately identified as

participants in the Baltimore tapes. In addition to V-1 through

V-6, V-7 and V-8 (both under age sixteen), V-9 (age sixteen), and

V-10 (age seventeen) were identified. However, several boys

depicted in the Baltimore tapes and numerous children depicted in

the Lindenwold storage locker collection remain unidentified.

B. The Indictment and Plea Agreement

On March 23, 1994, a federal grand jury returned a

seven-count indictment against MacLeod. On June 17, 1994, he

entered a guilty plea to counts two and seven. Count two charged

that from at least as early as December 1991 to on or about

August 21, 1993, MacLeod "did knowingly and willfully employ,

use, persuade, induce, entice, and coerce individuals under the

age of 18 years to engage in sexually explicit conduct for the

purpose of producing child pornography, including videotapes,

such child pornography having been thereafter transported in

interstate commerce. In violation of Title 18, United States

Code, Sections 2251(a) and 2." Count seven charged that on or

about April or May of 1992, MacLeod "did knowingly and willfully

transport an individual under the age of 18 years, between the

States of Maryland and New Jersey, with intent to engage in

sexual activities with the minor which constitutes a criminal

offense, as set forth in [New Jersey Law]. In violation of Title

18, United States Code, Sections 2423 and 2."

7 C. Sentencing

The district court adopted the sentencing

recommendations of MacLeod's probation officer, and thus we focus

on the probation officer's report. Applying the 1993 edition of

the guidelines, the probation officer concluded that the

applicable guideline for the pornography production count, 18

U.S.C. § 2251(a), is USSG § 2G2.1. That guideline calls for a

base offense level of 25. Because the offense involved a minor

under sixteen years of age, the officer added two levels, see

USSG § 2G2.1(b)(1), raising MacLeod's offense level to 27.

Applying the 1993 edition of the guidelines to the

transportation of a minor count, 18 U.S.C. § 2423, the probation

officer concluded that the applicable guideline is USSG § 2G1.2.

That section specifies a base offense level of 16. Because the

offense involved a minor between the ages of twelve and sixteen,

the probation officer added two levels, see USSG § 2G1.2(b)(3),

raising the offense level to 18.

In order to arrive at a combined offense level for the

two counts, the probation officer applied the grouping rules of

Chapter Three, Part D. Because MacLeod's offenses involved the

exploitation of more than one minor, the exploitation of each

minor was treated as if it were a separate count of conviction.0

0 USSG § 2G2.1, the guideline applicable to the pornography production count, provides that "If the offense involved the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction." USSG § 2G2.1(c). Likewise, USSG § 2G1.2, the guideline applicable to the transportation of a minor count, states that "If the offense involved the transportation of more

8 These "counts" were not grouped. See USSG § 3D1.2(d) (stating

that offenses covered by USSG §§ 2G2.1, 2G1.2 should not be

grouped).

The probation officer then calculated the combined

offense level for these non-grouped counts. Under USSG §

3D1.4,0the combined offense level is determined by taking the

count with the highest offense level -- here, one of the

pornography production counts (for which the offense level is 27)

-- and adding one offense level for each equally serious (or from

one to four levels less serious) count. Thus, MacLeod's offense

level is 27 plus one level for each of the other pornography

counts. The transportation of a minor counts are irrelevant

because, at an offense level of 18, they are nine levels less

serious than the count with the highest offense level. See USSG

§ 3D1.4(c) (disregarding any count that is nine levels less

serious than the count with the highest offense level). Although

there were at least ten victims of MacLeod's pornography

production offense (or rather ten pornography production

"counts"), § 3D1.4 only allows six victims to be taken into

account (for an increase of five levels). The probation officer

than one person, Chapter Three, Part D (Multiple Counts) shall be applied as if the transportation of each person had been contained in a separate count of conviction." USSG § 2G1.2(d). 0 While this section speaks of calculating the combined offense level for several groups, it also furnishes the methodology for calculating the combined offense level of several non-grouped counts. The commentary at the end of Chapter 3, Part D offers illustrations. Example number one applies USSG § 3D1.4 to determine the combined offense level for four counts not grouped under USSG § 3D1.2. See USSG Ch.3, Pt.D, comment. (n.1).

9 thus added five levels to MacLeod's offense level of 27,

resulting in an offense level of 32.0

Pursuant to USSG §§ 3E1.1(a) and (b), the probation

officer then lowered MacLeod's offense level by three levels (to

29) for acceptance of responsibility. Based on a total offense

level of 29 and MacLeod's criminal history category of IV, the

probation officer concluded that the guideline range for

imprisonment was 121 to 151 months. See USSG Ch.5, Pt.A. Under

USSG § 5K2.0, the sentencing court may depart from this range if

it finds that "'there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the

0 The probation officer's calculations appeared as follows in the presentence report:

Count Two--Use of Minor for Producing Child Pornography

Adjusted Offense Level (Subtotal): 27

Count Seven--Transportation of a Minor for Purpose of Prohibited Sexual Contact

Adjusted Offense Level (Subtotal): 18

Multiple Count Adjustment (See Section 3D1.4) Units

Adjusted Offense Level-Ct. Two-Victim 1 27 1 Adjusted Offense Level-Ct. Two-Victim 2 27 1 Adjusted Offense Level-Ct. Two-Victim 3 27 1 Adjusted Offense Level-Ct. Two-Victim 4 27 1 Adjusted Offense Level-Ct. Two-Victim 5 27 1 Adjusted Offense Level-Ct. Two-Victim 6 27 1 Adjusted Offense Level-Ct. Seven-Victim 1 18 0 Adjusted Offense Level-Ct. Seven-Victim 2 18 0 Total Number of Units 6 Greater Adjusted Offense Level 27 Increase in Offense Level 5 Combined Adjusted Offense Level 32

10 guidelines that should result in a sentence different from that

described.'" While the probation officer's report did not

counsel for or against departure, it did suggest that departure

might be warranted because hundreds of boys were represented in

MacLeod's collection while he was held accountable for only six

victims.

At the sentencing hearing, the government asked for the

151 month maximum sentence but took no position on whether an

upward departure was appropriate. The district court agreed with

the sentencing calculations of the probation officer concluding

that MacLeod's guideline range was 121 to 151 months. The

district court further determined that an upward departure was

appropriate. The commentary to USSG § 3D1.4 counsels departure

if after application of the section, the adjustments made are

inadequate. USSG § 3D1.4, comment. (backg'd). According to the

court, the adjustments were inadequate because they allowed only

six children to be taken into account while the offense involved

four additional identified children and many other unidentified

victims.0 In calculating the appropriate extent of the

departure, the court made clear that it would count only the four

identified victims. United States v. MacLeod, No. 94-131, slip

0 When the district court spoke of the minors involved in the offense, it was referring only to the minors involved in the production of the Baltimore tapes. See United States v. MacLeod, 94-131, slip op. 38, 40 (D.N.J. August 26, 1994) ("In fact-- however, [in] those specific tapes, they have identified ten, not six victims, and there are unidentified other victims. Again, we're talking about just those so-called -- they refer to [them] here as the 'Baltimore tapes.' [We're] not talking about the full mass [of materials stored in the Lindenwold locker].").

11 op. 38, 41 (D.N.J. August 26, 1994) ("I'm not going to count the

unknown victims, but since we have four known other victims, I'm

going to add a level for each one, and I'm going to upward

adjust."). The court departed upward four levels--one for each

identified victim--raising MacLeod's offense level to 33.

With his category IV criminal history, MacLeod's new

sentencing range was 188 to 235 months. The court imposed the

maximum 235 month sentence because it believed MacLeod had

dedicated his entire adult life to child pornography. The

presentence report stated that MacLeod had abused his own

children. The court could see no hope for redemption and thus

sentenced MacLeod to 120 months imprisonment on count two and 115

months on count seven, the sentences to be served consecutively

(for a total of 235 months). The court also imposed concurrent

terms of three years supervised release on each count of

conviction, and directed that MacLeod pay a special assessment of

$ 100.

In this appeal, MacLeod contends that the district

court's decision to depart was improper, and alternatively,

assuming that departure was appropriate, that the extent of

departure was unreasonable.

II. Analysis

In reviewing departures, we follow a three-step

process. Our review is plenary as to whether a departure was

permissible; clearly erroneous as to whether the facts support

the grounds relied upon for departure; and deferential as to the

12 reasonableness of the departure. See United States v. Kikumura,

918 F.2d 1084, 1098 (3d Cir. 1990).

A. Step One--Was Departure Permissible?

A district court may depart from the applicable

guideline range only if it "finds that there exists an

aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described." 18 U.S.C. § 3553(b).

Here, the commentary to USSG § 3D1.4 specifically instructs that

"Inasmuch as the maximum increase provided in the guideline is 5

levels, departure would be warranted in the unusual case where

the additional offenses resulted in a total of significantly more

than 5 units." USSG § 3D1.4, comment. (backg'd).0 Following

this commentary, the district court based its decision to depart

on the existence of additional victims0 not taken into account by

the five level increase.0 Under step one of our review process,

we review its decision de novo. See Kikumura, 918 F.2d at 1098.

0 Under 3D1.2 each offense that is equally serious or from one to four levels less serious than the offense with the highest level is counted as one "unit." One level is added for each unit. 0 Hereinafter, we will use the phrase "additional offenses" and "additional victims" interchangeably. 0 It is true, as MacLeod argues, that the district court, at one point, ambiguously mentioned the "intensity" of the defendant's involvement as a reason for departure. However, when such remark is viewed in context, it is clear that the district court used the number of victims as the basis for departure. United States v. MacLeod, 94-131, slip op. 38, 40-42 (D.N.J. August 26, 1994).

13 We must first determine upon how many additional

offenses the district court based its decision to depart. It is

clear that the district court calculated the extent of its (four

level) departure using only the four identified, but uncounted,

children in the Baltimore tapes. See discussion supra page 11.

However, the district court's threshold decision to depart was

based on the identified as well as unidentified children in the

Baltimore tapes.0 We do not know the exact number of

unidentified children as the presentence report simply states

that, "There were several other boys in [the Baltimore tapes]

that were unable to be identified." (emphasis added). Giving

"several" its ordinary meaning would suggest that there were,

perhaps, three unidentified boys. This would bring the total of

uncounted children in the Baltimore tapes (and the number of

additional offenses upon which the district court relied) to

seven (four identified boys plus three unidentified children).0

We need not be concerned, however, about our inability

to determine the exact number of additional offenses upon which

the district court relied. The district court relied on at least

four additional offenses, and four uncounted victims makes this

0 Id. at 41 ("I find that an adjustment of five based on six victims, where there are four known, ten victims, and a larger number of unknown victims, the unknown only because they can't be identified, that a further upward adjustment is required."). 0 Indeed, without explanation, the government asserts, in its brief, that there were seven or eight uncounted boys in the Baltimore tapes. Appellee's Brief at 14-15.

14 an "unusual case" resulting in a total of "significantly more

than five units."0 We reach this conclusion for several reasons.

First, assuming that the district court based its

decision to depart on only four additional victims, this means

that nearly half of MacLeod's ten victims were not considered.

When close to half of a defendant's crimes may go unpunished, we

consider this significant and worthy of departure.

Furthermore, in determining whether, under § 3D1.4, a

case is an "unusual case" where the "additional offenses resulted

in significantly more than five units," one may consider not only

the numerical difference between the six victims considered and

the actual number of victims involved, but also the nature of the

additional criminal conduct. See United States v. Pearson, 911

F.2d 186, 189 (9th Cir. 1990) (indicating that it is permissible

to take into account nature as well as number of additional

offenses in deciding whether to depart in accordance with

commentary to USSG § 3D1.4). In the present case, MacLeod's four

additional offenses involved the sexual exploitation of young

children. Two of the victims (V-7 and V-8) were under the age of

sixteen. A third and fourth victim (V-9 and V-10) were only

sixteen and seventeen respectively. Given the potential

psychological harm to the young victims of this type of offense,

we believe that the addition of (at a minimum) four victims

0 Obviously, if four additional offenses are significant, five, six, or seven additional offenses would be significant as well.

15 should be considered significant, and hence that upward departure

was permissible.

Other courts that have addressed the issue also support

this conclusion. Only three published opinions (involving three

different United States Courts of Appeals), deal with USSG §3D1.4

departures for numerous offenses. See United States v. Okane, 52

F.3d 828 (10th Cir. 1995); United States v. Pearson, 911 F.2d 186

(9th Cir. 1990); United States v. Chase, 894 F.2d 488 (1st Cir.

1990). Under plenary review (and with little comment), the Chase

court found 9 uncounted robberies significant0 while the Okane

court found five uncounted robberies significant.0 Under abuse

0 United States v. Chase, 894 F.2d 488, 491 (1st Cir. 1990) ("We find the instant case to be one in which the additional offenses (numbering nine) resulted in a total of significantly more than five units. Without question, the circumstance relied upon by the district court to justify departure from the Guidelines -- the large additional number of bank robberies committed by the defendant -- is sufficiently 'unusual' to justify departure."). 0 United States v. Okane, 52 F.3d 828, 832-33 (10th Cir. 1995) ("We have no trouble concluding Mr. Okane's pleas of guilty to five additional bank robbery charges, which did not amount to additional units under § 3D1.4, nonetheless constitute sufficiently unusual circumstances to support an upward departure under step one. Under similar circumstances involving a defendant who pled guilty to fifteen counts of robbery, only five of which were expressly counted as units under § 3D1.4, the First Circuit [in Chase] stated '[w]ithout question, the circumstance relied on by the district court [i.e., the remaining ten robbery convictions] to justify departure from the Guidelines -- the large additional number of bank robberies committed by the defendant -- is sufficiently "unusual" to justify a departure.'") (citation omitted). It is worth noting that we believe that the Okane court, in some respects, misapplied § 3D1.4. While that section allows for only a five level increase in offense level, it actually takes into account six victims. Thus, the Chase court used nine (not ten) uncounted robberies as the basis for its departure. Likewise, as the defendant in Okane pled guilty to ten bank robberies, the five level increase in § 3D1.4 accounted for

16 of discretion review, the Pearson court considered two uncounted

robberies significant. 911 F.2d at 189-90.0

B. Step Two--Do the Facts Support the Grounds Relied

Upon for Departure?

The district court based its decision to depart on

the uncounted minors depicted in the Baltimore tapes. Under step

two, we review for clear error whether the record contains a

sufficient factual basis to support departure. See Kikumura, 918

F.2d 1098. Pursuant to § 3D1.4, only six of MacLeod's victims

were used to calculate his presumptive sentence. The presentence

report makes clear that the Baltimore tapes involved the

exploitation of at least ten identified victims as well as

several unidentified victims. MacLeod plead guilty to the

production of the Baltimore tapes. Thus, there is no question

that his offense involved a significant number of additional

uncounted minors. Accordingly, the district court's

determination that the facts on record supported its ground for

departure was not clearly erroneous.

C. Step 3--Was the Extent of Departure Reasonable?

Finally, we must determine whether the extent of the

district court's departure -- four levels for four additional

six of them. Hence, there should have been four (not five) uncounted robberies upon which the Okane court could base its departure. 0 Unlike this Court, The Ninth Circuit follows a five step review process for departures. Under this five step process, an assessment of the significance of the additional offenses falls under abuse of discretion review. United States v. Pearson, 911 F.2d 186, 188-89 (9th Cir 1990).

17 offenses -- was reasonable.0 We review the court's determination

for abuse of discretion. See Kikumura, 918 F.2d 1098. We find

it useful to begin our discussion with a simple mathematical

analysis. Had the district court considered only one victim,

MacLeod's total offense level would have been 24 and his

guideline range would have been seventy-seven to ninety-six

months rather than 121 to 151 months (the range applicable after

the five level increase of § 3D1.4). Thus, the first five

additional victims raised MacLeod's term of imprisonment by

fifty-five months (151 minus ninety-six). The average increment

per additional offense was eleven months (fifty-five divided by

five). When the district court departed an additional four

levels for the four uncounted victims, MacLeod's guideline range

became 188 to 235 months. Thus, these four victims raised

MacLeod's sentence eighty-four months (235 minus 151) or twenty-

one months per victim (eighty-four divided by four).

In evaluating the reasonableness of the district

court's departure, we seek guidance from the guidelines

themselves. See Kikumura, 918 F.2d at 1111 ("Recognizing the

need for additional standards, the courts of appeals have

recently begun to look to the guidelines themselves for guidance

in determining the reasonableness of a departure. Today we

endorse that general approach.") (citations omitted). When

departing from a sentencing range, courts should remain faithful

0 The district court was clear that the extent of its departure was based only on the four identified victims. See discussion supra p. 11.

18 to structured guideline principles and attempt, where possible,

to create sentences analogous to those explicitly specified by

the guidelines for similar offenses. We note that at higher

sentencing ranges, where MacLeod's sentence falls, an increase of

one level generally makes a quite large and continually

increasing amount of jail time. Thus, we must consider with

extreme care the district court's decision to depart four levels.

MacLeod's offense involved Chapter 3, Part D of the

sentencing guidelines. The introductory commentary to that part

indicates that its aim is "provide incremental punishment for

significant additional criminal conduct." USSG Ch.3, Pt.D,

intro. comment. However, "the amount of additional punishment

[is to] decline[ ] as the number of offenses increase." Id.

(emphasis added). The district court's departure is at odds with

this principle of declining marginal punishment. MacLeod's first

five additional offenses carried an average of eleven additional

months imprisonment. Given the district court's departure,

MacLeod's final four offenses carried an average of twenty-one

additional months imprisonment. Thus, contrary to the commentary

to Section 3, Part D, as the number of MacLeod's offenses

increased, so did his additional punishment.

An examination of the guideline sections pertaining to

both theft and fraud also suggest that the extent of the district

court's departure was problematic. These sections are a good

source of comparison because they permit, without departure, an

offense to be increased beyond five levels (the limit imposed for

grouping increments in § 3D1.4). Especially as one gets beyond

19 an increase of five offense levels, each one level increase

requires a growing amount of harm. For instance under USSG

§2B1.1, the guideline involving theft, embezzlement and receipt

of stolen property, raising a five level increase to a six level

increase requires $10,000 more loss. Raising a six level

increase to a seven level increase requires $20,000 more loss.

Raising a nine level increase to a ten level increase requires

$80,000 more loss. At the extreme, raising a nineteen level

increase to a twenty level increase requires $40,000,000 more

loss. USSG § 2F1.1, the guideline for fraud and deceit, forgery,

and counterfeiting, follow a similar pattern. Yet, in the

instant case, each level of the district court's four level

departure was based on the same amount of harm--the exploitation

of one child. Analogy to USSG §§ 2B1.1, 2F1.1 suggests that this

is unreasonable.

The three court of appeals cases in this area support

our decision. In the two cases that found a departure

unreasonable, the departure was significantly lower than it is

here. In United States v. Okane, 52 F.3d 828 (10th Cir. 1995),

the court upheld a departure of one level for five additional

bank robberies. The court wrote: We find the district court's proffered reason for departing, which was Mr. Okane's additional pleas of guilty to five other robbery charges, is legally sufficient to warrant a one level upward departure. . . . While the Guidelines' overarching purpose of achieving uniformity and proportionality in sentencing is a countervailing concern in this calculus, the Guidelines do contemplate some sentencing disparities in cases where the circumstances

20 justify it. The Guidelines do not prohibit any sentencing disparity; they prohibit unwarranted sentencing disparities. In this case, the offenses in question are undoubtedly serious and we find they warrant a one-level departure.

Id. at 833 (citations omitted). Thus, in Okane, the court found

reasonable a much smaller departure than the one here at issue.

In United States v. Chase, 894 F.2d 490, 491-92 (1st

Cir. 1990), the First Circuit affirmed a departure of

approximately fifty months for nine additional bank robberies.

Dividing fifty months by nine robberies indicates that the

average additional imprisonment time for each robbery was

approximately five and one-half months. As this was roughly

equivalent to the additional punishment, under the guidelines,

for each of the first five additional offenses, the court upheld

the departure. Id. In the case at bar, the district court

departed eighty-four months for four additional offenses. This

resulted in an average of twenty-one additional months

imprisonment per offense. In contrast to the departure found

reasonable by the Chase court, this is approximately double the

average punishment for the first five additional victims (eleven

months).

In the one case that found the district court's

departure unreasonable -- United States v. Pearson, 911 F.2d 186, 190 (9th Cir. 1990) -- the district court's departure,

approximately fifty-seven months for two offenses (or twenty-

eight and one-half months per offense), id. at 187, closely

approximates the district court's departure here. The Ninth

21 Circuit had little difficulty in concluding that the district

court's six level departure was unreasonable and that a one level

departure would be appropriate instead. Id. at 190-91.

We appreciate the district court's dilemma here. With

no previous guidance from this Court, it was obliged to sentence

truly repugnant criminal behavior. Its decision to depart was

certainly appropriate. However, for the reasons set forth above,

the extent of its departure is inconsistent with the exercise of

sound discretion.

The commentary to Chapter 3, Part D indicates that the

amount of additional punishment should decline as the number of

offenses increase. See USSG Ch.3, Pt.D, intro. comment. Thus,

the average punishment for the four additional offenses should be

somewhat less than eleven months (the average punishment for the

first five additional offenses). An appropriate departure,

therefore, should be no more than two levels. Under such a

departure, MacLeod's new sentencing range would be 151-188

months. A sentence at the upper-end of that range would be a

thirty-seven month increase from the original 121 to 151 month

guideline (188 minus 151). Dividing thirty-seven by four

indicates an addition of approximately nine months imprisonment

per offense. A departure of greater magnitude is unreasonable.0

0 While we will not impose an explicit upward limit on the district court's ability to depart, should it decide on remand to take into account more than the four identified victims, we do note that the court should remain faithful to the general principles enunciated in this opinion.

22 The judgment of the district court will therefore be vacated and

the case remanded for resentencing consistent with this opinion.