United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1061
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Arkansas.
Leonard VanHouten,                       *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 28, 2002

                                   Filed: October 8, 2002
                                    ___________

Before McMILLIAN, JOHN R. GIBSON, and LOKEN, Circuit Judges.
                            ___________

JOHN R. GIBSON, Circuit Judge.

       Leonard VanHouten appeals from the sentence imposed upon him following
his guilty plea to charges of possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) (2000). He argues that he should have received a downward
departure from the Guideline range of twenty-four to twenty-seven months because
of his atypical means of possession, involving a small number of downloads from an
easily accessible website, and because of his extensive family responsibilities,
specifically, caring for an elderly mother. The district court1 denied VanHouten’s
request for a downward departure, noting that it was unable to depart under the
Guidelines, and sentenced VanHouten to twenty-four months. We affirm the
sentence imposed by the district court.

        On November 26, 1999, a good friend of Leonard VanHouten informed the
Hazen, Arkansas Police Department that he had discovered in VanHouten’s bedroom
printed photos of children engaged in sex acts. In addition, this friend gave the names
of several young girls who had spent time over at VanHouten’s house. The Police
Department then interviewed two girls, ages 7 and 8, who stated that during their
visits, VanHouten had watched them take showers and helped them dry off and had
shown them pictures of naked women. Based on these allegations, the Hazen Police
Department executed a state search warrant on VanHouten's home and recovered a
computer system and printed photographs, both of which contained images of
children engaged in sex acts. VanHouten was first charged in Arkansas State Court
with offenses arising out of this conduct, and on November 20, 2000, pled guilty to
first degree carnal abuse in Prairie County Circuit Court and was sentenced to three
years probation. In March of 2001, he was indicted for one count of possession of
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). VanHouten’s motion
to suppress the evidence seized from his home was denied, and he pled guilty to the
indictment on September 17, 2001.

       VanHouten’s presentence investigation report recommended a base offense
level of fifteen as required by U.S.S.G. § 2G2.4(a), a two-level enhancement under
U.S.S.G. § 2G2.4(b)(1) for possessing images of prepubescent minors, a two-level
enhancement under U.S.S.G. § 2G2.4(b)(3) for using a computer for the receipt and
storage of child pornography, and a three-level reduction under U.S.S.G. § 3E1.1 for


      1
       The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas.

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acceptance of responsibility. These factors were combined for a total offense level
of sixteen. VanHouten filed no objections to the report, and the district court adopted
and accepted it in its entirety. After reviewing the applicable guideline range, the
district court turned to counsel for recommendations. The government offered none.
VanHouten’s counsel made a brief request for a departure, arguing that there was “no
distribution,” that imprisonment was “not appropriate,” and that it would be better
if VanHouten could be “supervised,” where “he could continue to provide services
to his mother.” The district court responded that because “there was no attempt to
distribute, [or] pander the material,” it did appear to be a “harsh sentence,” but that
the Sentencing Guidelines did not allow for departure based on the above-mentioned
circumstances.

                                          I.

       Our ability to review the district court’s sentence is carefully prescribed by
statute. According to 18 U.S.C. § 3742(f) (2000), a reviewing court must uphold a
sentence unless it was “imposed in violation of law,” was “imposed as a result of an
incorrect application of the sentencing guidelines,” was “outside the applicable
guideline range and is unreasonable,” or was “imposed for an offense for which there
is no applicable sentencing guideline and is plainly unreasonable.” See also United
States v. Evidente, 

, 1003-1004 (8th Cir. 1990). In this case, the
sentence ordered by the district court was covered by Guideline § 2G2.4, and the
decision whether or not to depart was well within the court’s discretion. As this
Court has noted, a “discretionary decision not to depart from the Guidelines is
unreviewable on appeal absent an unconstitutional motive.” United States v. Field,

, 591 (8th Cir. 1997). The only exception to this rule is that if the
district court somehow believed that it lacked power to exercise discretion to grant
VanHouten a downward departure, its decision may present a cognizable claim on
appeal. 

.



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       Recognizing the importance of individual circumstances, Congress has
permitted district courts to depart from the Guidelines where “the court 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) (2000). However, the district court must first examine the sentencing
guidelines, policy statements, and official commentary of the Sentencing Commission
to determine whether a mitigating factor has been discussed, and if so, whether the
given circumstance has been an encouraged or discouraged factor for departure.
Koon v. United States, 

, 92-93, 95-96 (1996). The Commission has
recognized that there will be exceptional cases. The Sentencing Commission
Guidelines Manual explains:

      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), quoted in 

. Under
this “heartland” analysis, the district court must identify what aspect of the case
makes it unusual, and then consider the structure and theory of both relevant
individual guidelines and the Guidelines taken as a whole and decide whether the
case is sufficiently outside of the “heartland” so as to justify a departure. United
States v. Reinke, 

, 923 (8th Cir. 2002) (quoting 

).

      VanHouten contends that the district court’s statements during sentencing
indicate that the court believed it could not consider mitigating factors which put this
case outside of the “heartland.” In particular, VanHouten points to the court’s
language:


                                          -4-
      Well, in cases such as this, where, obviously, there was no attempt to
      distribute, pander this material, it does seem to me to be a harsh
      sentence. However, under the Sentencing Guidelines my power in a
      case like this to impose a sentence that I think would be more
      appropriate is nonexistent. And Mr. Green, in fact, has not alluded to
      the few reasons that have been recognized by the Eighth Circuit to
      depart downward in this case. And while I would . . . be inclined to do
      so, . . . there’s just no legal basis.

We believe that these statements show that the district court was aware of potential
mitigating circumstances which might place this case outside of the “heartland.” But
as the court told the parties, even after examining these factors, it had no authority “in
a case like this.” We interpret this explanation as an acknowledgment that a
downward departure could not be justified under the Sentencing Guidelines based on
VanHouten’s lack of distribution. See United States v.Wind, 

, 1277-
1278 (8th Cir. 1997). Thus, acting within its discretion, the district court considered
the mitigating circumstances proposed and found that VanHouten’s case was not so
unusual as to warrant a departure under the Sentencing Guidelines. We are without
authority to review such a ruling.

       Even if we were persuaded by VanHouten’s argument that the district court
believed it had no authority to depart, we would not necessarily conclude that the
court erred by not departing. Rather, after reviewing the record of the sentencing
proceeding, we conclude that the district court did not err as a matter of law. We
reject VanHouten’s arguments that this case is outside the “heartland” of child
pornography possession cases and that a departure was warranted based on family
responsibilities.




                                           -5-
                                          II.

        First, VanHouten argues that his lack of participation in the distribution of
child pornography should serve as a mitigating factor. VanHouten’s trial counsel
argued at sentencing that the crime was "probably as much ignorance as much as
anything. Picking it up off the internet, putting it on a computer. No distribution, no
harm done to anyone from it." However, Congress has provided criminal provisions
for the mere possession of child pornography under 18 U.S.C. § 2252(a)(4), which are
separate from those provisions dealing with transportation, distribution, and sales of
such materials under 18 U.S.C. § 2252(a)(1)-(3). Likewise, the Sentencing Guidelines
provide separate ranges for the respective crimes, classifying possession of child
pornography in Guideline § 2G2.4 as a less serious offense than distribution, which
is treated under Guideline § 2G2.2. In keeping with this statutory scheme, this Court
has held that the district court should compare those persons convicted of child
pornography possession under 18 U.S.C. § 2252(a)(4) to other possessors of child
pornography, rather than to child pornographers guilty of other sex offenses. 

. In Wind, this Court noted that the defendant’s “lack of sexual
tendencies towards children does not make his possession of child pornography
significantly different from the normal case of child pornography possession.” 

VanHouten argues that family responsibilities, in particular, taking
care of his mother, warrant a downward departure. In certain instances, extraordinary
family circumstances can take a case outside of the heartland. United States v.
Harrison, 

, 447 (8th Cir. 1992). Sentencing Guidelines Policy Statement
§ 5H1.6 makes clear that family ties and responsibilities are not ordinarily relevant
to determining whether a sentence is within the applicable guideline range. Because
family responsibilities are considered a discouraged factor, departures are to be used
only in “extraordinary circumstances.” United States v. Bieri, 

, 818 (8th

                                          -6-
Cir. 1994). VanHouten’s counsel points out that this Court did conclude that family
responsibilities were extraordinary in United States v. Haversat, 

, 797 (8th
Cir. 1994) (“truly exceptional family circumstances” recognized as a grounds for
departure where defendant’s wife had severe psychiatric problems and where
defendant’s participation in therapy was an “irreplaceable” part of the doctor’s
treatment plan for his wife). However, in this case, counsel gave no indication and
offered no evidence that VanHouten’s mother’s condition was life-threatening or that
VanHouten’s care was a necessary part of her medical treatment. The district court
correctly ruled as a matter of law that VanHouten’s family responsibilities did not
justify a departure.

      We affirm VanHouten’s sentence.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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