United States v. Robert Parish

308 F.3d 1025 UNITED STATES of America, Plaintiff-Appellant, v. Robert PARISH, Defendant-Appellee. No. 01-30017. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 8, 2002. Filed October 18, 2002. Marsha Good Sept, Assistant United States Attorney, Billings, MT, for the plaintiff-appellant. John P. Rhodes, Assistant Federal Defender, Missoula, MT, for the defendant-appellee. Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. CR-00-00009-DWM. Before CANBY, KLEINFELD, and GRABER, * Circuit Judges. OPINION CANBY, Circuit Judge. 1 The United States appeals the district court's decision to grant defendant Robert Parish an eight-level downward departure from the sentence prescribed by the Sentencing Guidelines after Parish pleaded guilty to two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In imposing the sentence, the district court gave two reasons for its downward departure. First, the district court found that Parish's conduct was "outside of the heartland" of the offense. Second, the district court concluded that Parish was highly…

The United States appeals the district court’s decision to grant defendant Robert Parish an eight-level downward departure from the sentence prescribed by the Sentencing Guidelines after Parish pleaded guilty to two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In imposing the sentence, the district court gave two reasons for its downward departure. First, the district court found that Parish’s conduct was “outside of the heartland” of the offense. Second, the district court concluded that Parish was highly susceptible to abuse in prison. Because we find no abuse of discretion in the district court’s rulings, we affirm the sentence.

FACTUAL AND PROCEDURAL HISTORY

Parish worked for a company based in Bozeman, Montana. In May of 1999, Parish’s employer terminated his employment because it discovered that he was spending considerable time on the Internet and had abused his travel expenses. Parish returned a laptop computer that his employer had provided to him for use in his job.

While cleaning out the laptop’s hard drive, another employee discovered files on the hard drive that appeared to contain child pornography. After…

concurring in part and dissenting in part:

I concur in the majority’s conclusion that the district court acted within its discretion in determining that Defendant’s offense conduct lay outside the heartland. I dissent, however, from the holding that the district court properly departed based on Defendant’s susceptibility to abuse in prison.

By condoning the district court’s consideration of the nature of the offense in deciding to depart downward, the majority distorts the nature of the Guidelines and joins the wrong side of a circuit split. The majority’s message is that if society so roundly condemns a particular crime that even other criminals are especially appalled by it, the “average Joe” who perpetrates the crime should spend less than the average time in prison for that crime. I am unable to join in an opinion sending such a message. In my view, the district court erred.

The majority and I begin with the same initial premise: A defendant’s extraordinary and peculiar susceptibility to abuse by other inmates while in prison may warrant a departure. Koon v. United States, 518 U.S. 81, 112 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996); United States v. Lara, 905 F.2d 599, 603…