UNITED STATES of America, Plaintiff-Appellant, v. Aaron THOMPSON, Defendant-Appellee, 315 F.3d 1071

GOULD, Circuit Judge: The government appeals the district court’s sentencing of Aaron Thompson to forty-four months for possession and distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B). The issue is whether the extent of the district court’s downward departure from the United States Sentencing Guidelines was reasonable in light of the rationale given for the departure. The district court’s basis for departure was its conclusion that Thompson was not in the “heartland” of the offenses for which he was convicted.

Viewing this differently under applicable law, we conclude that the district court abused its discretion in sentencing Thompson to forty-four months based on its “heartland” conclusion. In justifying the downward departure, the district court treated as persuasive a number of considerations that in our view were not adequate to remove Thompson from the heartland. Those considerations included Thompson’s background, education, and family history, as well as his low risk of engaging in sexual offenses against children and his need for rehabilitative therapy.

None of these factors individually, nor all of them collectively, warranted the conclusion that Thompson’s conduct falls outside the “heartland” of the offense under Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We conclude the sentence cannot stand because of the district court’s reliance on prohibited, discouraged, or inadequately explained factors. We vacate the sentence and remand for resentencing. I In August 2000, Thompson opened a file server on the internet with a manifest purpose to trade child pornographic images with others.

On four occasions between August 28, 2000 and November 6, 2000, four different undercover Federal Bureau of Investigation (FBI) agents had online correspondence with Thompson, who obtained what he believed were child pornographic images from the agents and, in exchange, gave them fifty-eight different child pornographic images. The FBI obtained a warrant to search Thompson’s home, where they discovered more than 10,000 images of child pornography on the hard drive of his computer. And that was not all.

From the computer the FBI gained evidence that he had distributed more than 47,000 such images since August 2000. Thompson entered a plea agreement on February 16, 2001, and on March 6, 2001, he pleaded guilty to two counts of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Based on the specific offense characteristics and other adjustments detailed in the presentence report, Thompson’s total offense level was 29. Because Thompson had no prior offenses, he had a criminal history category of I.

The offense level and criminal history category together yield a sentencing range of 87 to 108 months. In the plea agreement, the parties agreed to a joint sentence recommendation, at the bottom of the range, of 87 months. At the sentencing hearing, the district court found that Thompson was not in the heartland of the offenses covered in 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B).

The court concluded, “I do not believe that you fall in the heartland and, therefore, I am making ... a seven-level departure on the ground that you do not fall in the heartland and for the reasoning articulated by the United States Supreme Court in the Koon case.” Thus the court departed downward from the offense level set forth in the plea agreement, changing the offense level from 29 to 22. With the criminal history category of I, the result was a new sentencing range of 41 to 51 months.

Taking into account the reasons that impelled it to depart downward, the court sentenced Thompson to 44 months rather than to the 87 months specified by assent of the parties in the plea agreement. The district court’s conclusion that Thompson was not in the heartland, permitting a striking downward departure to about half the agreed sentence, was based on several expressly articulated factors.

The court stressed that Thompson viewed the child pornographic images at home and never at work; that he segregated the files in a separate location on his computer to make them inaccessible to others; that he had never been involved in any prior criminal conduct; that he had no history of drugs or sexual abuse, nor was there any such history in his family; that he was educated; and that he did not pose a risk of engaging in sexual offenses against children.

The court also said that Thompson showed potential for rehabilitation, and expressed concern that a longer sentence would necessarily delay access to a rehabilitation program, because Thompson, would not be permitted to enter such a program until a good part of his sentence had been served. The district court did not explain how these factors, either standing alone or cumulatively, are sufficiently unusual to bring this case outside the heartland of the offense.

As the court did not justify its use of these factors with adequate reference to “the sentencing guidelines,. policy statements and official commentary of the Sentencing Commission,” we reverse and remand for resen-tencing. 18 U.S.C. § 3553(b); see also United States v. Working, 287 F.3d 801, 807 (9th Cir.2002). II A district court’s decision to depart from the Guidelines is reviewed under the abuse of discretion standard. See Koon, 518 U.S. at 99, 116 S.Ct. 2035; United States v. Caperna, 251 F.3d 827, 830 (9th Cir.2001).

In so doing, we give “substantial deference” to the district court’s decision to depart, because “it embodies the traditional exercise of discretion by a sentencing court.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. Ill To better understand the significance of the “heartland” concept, we begin with the introduction to the Federal Sentencing Guidelines: The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes.

When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. U.S.S.G.-Ch. 1, Pt. A, Intro. Comment 4(b) (2002) (emphasis added). As we said in United States v. Stevens, 197 F.3d 1263 (9th Cir.1999), to determine whether an offense falls in the heartland targeted by a statute, a court must make a “comparison ... between the conduct of the defendant and the conduct of other offenders.” Id. at 1268 (citing Koon, 518 U.S. at 104-05, 116 S.Ct. 2035).

In this case, the court did not make such a comparison, and there is little in the record to show that Thompson’s conduct differs from that of other offenders. Some of the features mentioned by the district court may warrant sentencing at the low end of the designated range, but they do not remove Thompson’s conduct from the heartland.

The record and voluminous proof of maintenance and distribution of child pornography do not show that Thompson’s manner of accessing and storing the child pornographic files differentiated his conduct from that of the typical offender engaged in possession and distribution of child pornography. Thompson’s own expert witness testified that it is not unusual for viewers of pornography to restrict such conduct to the home, or to conceal the pornographic files in a hidden location on the computer.

Even if these furtive practices were unusual for users of pornography, and there is no showing that they are, they would not remove Thompson’s conduct from the heartland of the offenses to which he pled guilty. Concealing one’s files from the casual observer and distributing illicit images only to those who seek them out do not alter the criminal acts of possession and distribution of child pornography in any way that makes the offenses different from the ordinary case.

It was also incorrect for the court to consider Thompson’s lack of a criminal record as a basis for concluding that Thompson’s conduct was outside the heartland of his crimes. The Guidelines give the rule with clarity: The lower limit of the range from Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate. U.S.S.G. § 4A1.3, policy statement (2002).

In Koon the United States Supreme Court quoted this language in the Guidelines and concluded that a downward departure based on a defendant’s status as a first-time offender is not warranted because “[t]he Commission took that factor into account in formulating the criminal history category.” 518 U.S. at 111, 116 S.Ct. 2035. See also United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991) (“The Guidelines make due allowance for the possibility of a defendant being a first offender.”).

The district court also did not justify its use of Thompson’s education in concluding that his offenses were outside the heartland, or as grounds for departing downward. True, Thompson has a bachelor’s degree in business technology, and his good education is relevant to his prospects for rehabilitation and for sentencing in a range. Notwithstanding, the Guidelines explain that “[ejducation and vocational skills are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.2 (2002).

In Koon the Court made clear that when considering factors that are discouraged in the Guidelines, “the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon, 518 U.S. at 96, 116 S.Ct. 2035 (citation omitted). Neither the district court nor the record provides any reason to believe that Thompson’s education makes his case different from the ordinary case.

It is also clear that the district court, in departing downward, attached some significance to the lack of any history of sexual or substance abuse by Thompson himself or in his family. That rationale, however, should not have been a factor in justifying a downward departure where the offenses charged did not include child abuse. As we said in Stevens, a child pornography case in which the district court had departed downward, in part because the defendant had not engaged in any sexual acts with children: [T]he district court’s position is inconsistent with the statutory scheme. Title 18 U.S.C. § 2252A(a)(5)(

B) prohibits possession alone. Defendant knowingly possessed more than 350 images of child pornography.... In essence, the district court held that possession alone was insufficient to place Defendant in the heartland of a possession offense. Possession, however, is what the statute proscribes. Stevens, 197 F.3d at 1269. The same rule and reasoning apply here. As noted, Thompson possessed more than 10,000 images of child pornography and distributed more than 47,000 such images.

That he did not engage in other offenses such as child sexual abuse, and was in the district court’s view not particularly likely to engage in such sexual offenses, is wholly irrelevant. Thompson’s culpable conduct in possessing and distributing large amounts of child pornography places him within the heartland for those offenses. In significant part, the district court, in justifying the downward departure, stressed Thompson’s background and family rather than his conduct.

The district court doubtless emphasized these factors to suggest that Thompson is particularly likely to respond well if placed in a rehabilitation program. The district court was concerned that Thompson should receive treatment as soon as possible, and that a longer sentence would delay his opportunity to receive treatment. The court explained that in fashioning a sentence in this case, “the most significant factor, other than those two of protecting the public and preventing recidivism, is to get [Thompson] some place where [he] can get treatment.” These concerns are judicious and understandable.

However, when considering these matters, the district court did not compare Thompson with other offenders convicted of the same offenses of possession and distribution of child pornography. This consideration of potential for rehabilitation, like the other grounds for departure that we reject above, does not justify a “heartland” departure under the circumstances of this case. Many of the district court’s concerns would be well taken in a judicial exercise of discretion to sentence low in a prescribed range.

They may be relevant to departure on bases other than those articulated, if adequate legal grounds are present. But we cannot accept a misapplication of the heartland concept based on prohibited, discouraged, or inadequately explained factors appearing on the record before us. Any departure on remand must be adequately explained, and, if there is departure, the district court must establish why any factor impelling departure is present to an “extraordinary” or “atypical” degree, as well as how any departure is consistent with the framework of the guidelines and our settled law on sentencing.

VACATED AND REMANDED . We presented a

summary of our law on sentencing in our recent decision in United States v. Parish, 308 F.3d 1025, 1027 (9th Cir., Oct. 18, 2002): A district court may depart from the applicable Guideline 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 guidelines that should result in a sentence different from that described.” U.S.S.G. § 5K2.0 (policy statement) (quoting 18 U.S.C. § 3553(b)).

In Koon, the Supreme Court explained how a district court should decide whether to depart from the range prescribed in the particular Guideline. 518 U.S. at 93-94, 116 S.Ct. 2035. First, the district court should identify what features of the case make it unusual. Id. at 95, 116 S.Ct. 2035. Next, the court must determine whether the ground on which it is contemplating a departure is forbidden, encouraged, or discouraged by the Guidelines. Id. The court may not depart on a forbidden ground. Id. at 95-96, 116 S.Ct. 2035.

The court may depart on an encouraged ground as long as that encouraged ground is not already taken into account by the particular offense guideline. Id. at 96, 116 S.Ct. 2035. If a factor is discouraged, or encouraged but already taken into account, the district court may depart only if the factor is "present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Id. If the Guidelines do not mention the factor at all, a district court must consider whether this particular factor warrants departure. Id. .

It is permissible for a court to consider factors other than the defendant’s conduct when fashioning a sentence. The Guidelines provide that [i]n determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. U.S.S.G. § 1B1.4 (2002).

As the commentary on this provision explains, a court may consider "information that the guidelines do not take into account in determining a sentence within the guideline range or ... in determining whether and to what extent to depart from the guidelines.” U.S.S.G. § 1B1.4, cmt. background (2002). . In contrast, while upholding a district court's downward departure in Parish, we stressed that the district court properly relied upon Parish’s expert, who was asked by the district court "to compare Parish's conduct with the conduct of a ‘typical’ offender under this same statute.” Parish, 308 F.3d at 1027.

That expert "concluded that Parish's conduct was significantly less serious than that of offenders in other cases involving possession of child pornography.” Id. We note that the offender Parish had "not affirmatively downloaded the pornographic files, indexed the files, arranged them in a filing system, or created a search mechanism on his computer for ease of reference or retrieval.” Id. Indeed, the images that Parish possessed "had been downloaded automatically into his Temporary Internet Cache file.” Id.

In sharp contrast, here Thompson was responsible for a system under which he intentionally downloaded child pornography images received from others and distributed such images to them in return. Indeed, Parish was only responsible for possession, and that apparently arising automatically without his knowledge when he viewed pornographic images on the internet. But Thompson was responsible for a scheme of automatic distribution of child pornography, distributing more than 47,000 images, whatever his motives. .

We reject in this case the government's request at'argument that on a remand for resen-tencing this case be reassigned to a different United States District Judge. We see no evidence of bias, appearance of impropriety, or other ground for such a change, and we are confident that the district court will readily apply the law as clarified by us herein.