PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM KISE, a/k/a Bill,
Defendant-Appellant.

No. 02-4693

Appeal from the United States District Court

for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-01-375)
Argued: December 5, 2003
Decided: June 2, 2004
Before LUTTIG and GREGORY, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge Gregory wrote

the opinion, in which Senior Judge Hamilton joined. Judge Luttig
wrote a separate opinion concurring in the judgment.

COUNSEL
ARGUED: Allen Bethea Burnside, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. Dean Arthur
Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
States Attorney, Columbia, South Carolina, for Appellee.

UNITED STATES v. KISE

OPINION
GREGORY, Circuit Judge:
William "Bill" Kise pled guilty to two counts of sexual exploitation
of children. At sentencing, the district court applied multiple sentencing enhancements and sentenced the defendant to 365 months
imprisonment. On appeal, Kises counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there were no meritorious issues for appeal, but raising three
issues related to sentencing: (1) whether the district court erred in
denying Kise credit for acceptance of responsibility; (2) whether the
district court abused its discretion in departing upward on the ground
that Kises criminal history significantly under-represented his past
criminal conduct; and (3) whether the district court abused its discretion in departing upward for extreme conduct. Having reviewed the
entire record in accord with Anders, we scheduled the case for oral
argument and directed counsel to focus on the first issue. At oral
argument, Kises counsel stated that despite his filing of an Anders
brief, his further review of the first issue in preparation for argument
led him to conclude that it is, in fact, a meritorious claim. We agree.
While we find the last two Anders issues lack merit, we conclude that
the district court erred in denying Kise credit for acceptance of
responsibility.
I.
A.
Bill Kise is a 63-year-old pedophile who admits that he has had
sexual contact with "several hundred" children throughout his lifetime. Kise has acknowledged his mental illness and has stated that he
does not believe his condition is curable. Following his arrest and
subsequent three-count indictment, charging him with two counts of
sexual exploitation of children and one count of interstate transmission of child pornography, Kise pled guilty to one count of use of
minors in the production of visual depictions of sexually explicit conduct and one count of permitting a minor over whom he had custody
and control to be used in the production of visual depictions of criminally explicit conduct. 18 U.S.C. 2251(a), 2251(b). After imposing

UNITED STATES v. KISE

various sentencing enhancements under the United States Sentencing

Guidelines, the district court determined Kise had a total offense level
of 39 and criminal history category of I, and sentenced Kise to 240
months imprisonment on count one and 125 months on count two,
with the sentences to run consecutively for a total of 365 months, the
upper limit of the applicable Guideline range. Additionally, the court
sentenced Kise to a term of three years of supervised release.
Federal authorities began investigating Kise after the United States
Secret Service received information from a confidential informant
("CI"), who had been arrested for receipt and possession of child pornography in January 2001. On April 30, 2001, federal agents conducted a search of Kises home with his consent. Kise also engaged
in voluntary discussions with the authorities in which he admitted that
he had exchanged child pornography over the internet with the CI.
Furthermore, Kise identified himself and two prepubescent boys
(hereinafter "Child A" and "Child B") depicted in photos the government received from the CI. Kise knew each childs respective families, and Child B had been left alone in Kises custody for extended
periods during school vacations, while Child A had been left in Kises
custody on numerous occasions for shorter spans of time typically
evenings and weekends.1
During his conversation with the agents, Kise admitted having
molested Child A and Child B, who were nine to ten years old during
the period of abuse. He told the agents that he had taken thousands
1

Indeed, Child Bs mother admitted that she had participated in bondage acts with Kise, had observed child pornography pictures on his computer, and had been aware that Kise stored an assortment of chains,
whips, ropes and other sexual toys in his home. Child Bs mother was
even aware that Kise tied up her son, which she referred to as "innocent
childs play." Despite such knowledge and the fact that the mother maintains that her child is autistic, she allowed Kise to sleep with her son in
her home, and granted Kise continuous access to her son, who traveled
from the Midwest to visit Kise on three separate occasions from 19992001.
Kise admitted that between August 2000 and February 2001, he spent
115 days with Child A, having sexual contact with the boy between
twenty and thirty times.

UNITED STATES v. KISE

of pictures of the children, depicting his sexual abuse of the children,

as well as photos of Child A and Child B engaged in sexual activity
with each other. Kise told the agents that he stored the images in his
computer, and also had three web sites on which he posted photos of
the children. Kise proceeded to describe each of the photos presented
to him by the federal agents which had been recovered from the CIs
computer.
The photos themselves are extremely graphic and exploitive; as the
district court recognized at sentencing, they depict humiliating and
degrading conduct toward children. Kise photographed the boys while
they engaged in oral sex with one another, or performing oral sex on
him. In some photos, Kise was shown touching and penetrating
the childrens rectums. In other photos, Kise showed the boys
bound or tied up in intricate knot patterns ("dcsn1773.jpg" and
"dcsn1772.jpg"), or wearing other devices associated with bondage
and sadomasochism such as chain collars or small metal rings through
which the boys penises and scrotums passed. Specifically, photos
submitted at sentencing showed, a childs penis and scrotum tightly
bound with twine ("tie up [child], age 9.jpg"), a child with duct tape
applied to his buttocks so as to expose his rectum ("ducktape.jpg"),
a child with red marks from spanking on his bare buttocks
("northwestern.jpg"),2 a child with a bite mark on his buttocks ("clear
hole and bite.jpg"). In yet another photo, Kise wrote a message in
marker to one of his pedophile friends on the childs buttocks
("himikey.jpg"), while in another he wrote "my little hole" on the
childs buttocks with arrows pointing toward the boys anus. Kise distributed these and other photographs to various friends in electronic
format.
B.
Following Kises entry of his plea, a Presentence Investigation
Report ("PSR") was prepared. The Probation Officer ("PO") calculated a base offense level of 27, U.S.S.G. 2G2.1(a), for each count.
The PSR recommended that these bases be increased four levels
because the victims were younger than twelve years old, see U.S.S.G.
2

One of the children reported that Kise spanked him with a paddle called "Northwestern."

UNITED STATES v. KISE

2G2.1(b)(1), and recommended two-level increases because the

minors were in Kises supervisory control, see U.S.S.G.
2G2.1(b)(2). In addition, the PSR recommended two-level increases
pursuant to U.S.S.G. 3A1.1(b)(1) because Child B was unusually
vulnerable. Thus, the PSR calculated the adjusted offense level for
each count as 35, and the total offense level increased to 37 because
there were multiple-counts. See U.S.S.G. 3D1.4. Additionally, the
PSR recommended that, pursuant to U.S.S.G. 3E1.1(a)-(b), Kise
receive a three-level reduction in offense level for his acceptance of
responsibility. Finally, the PO found that Kise had zero criminal history points, giving him a criminal history category of I.
Thus, the PSR recommended that Kise be sentenced using a total
offense level of 34 and a criminal history category of I, which would
have yielded a guideline range of 151-188 months imprisonment.
However, the PSR detailed two factors which could warrant departure. First it stated that, pursuant to U.S.S.G. 4A1.3(e), upward
departure could be warranted because Kises criminal history category under-represents the seriousness of his criminal history and the
likelihood that he would commit further crimes.3 Additionally, it
3

The PSR detailed that in 1966, Kise had been charged with four
counts of "lewd assault" in Florida, and in November 1966, Kise was
committed to a state hospital as a "sexual psychopath," meaning that he
"appeared to be suffering from a mental disorder." He was released from
the hospital in August 1967, on the ground that he had recovered from
the psychopathic conditions. In 1971, Kise was admitted to the State
Hospital in South Carolina pursuant to a court order to undergo a psychological examination stemming from a charge of contributing to the delinquency of a minor. The conduct in question was that Kise had attempted
to sodomize his neighbors son, and the investigation of that crime
revealed that Kise had sodomized other boys in the neighborhood.
Further, the report stated that Kise enlisted in the Army in 1961, and
during his enlistment and after his discharge in 1964, Kise abused children while involved in the Boy Scouts. Kise stated that he enjoyed being
a scoutmaster because it gave him power over children. He described
being sexually active with several children entrusted to his care while
affiliated with the organization, and estimated that he took advantage of
hundreds of boys. The PSR details that his 1971 psychological report
related that Kise "voluntarily talks about his pederastic incarnations and
his involvement with little boys" and stated that he engaged in such
activities while supervising scouts and while serving in the Army in Germany.

UNITED STATES v. KISE

noted the possibility of an enhancement pursuant to U.S.S.G. 5K2.8,

governing conduct that is "unusually heinous, cruel, brutal or degrading to the victim."
At sentencing, the district court imposed both the departure and the
enhancement. Despite the POs recommendation and the governments lack of objection, the district court did not apply the threelevel reduction for acceptance of responsibility. Therefore, the district
court imposed sentence by using a total offense level of 39 and a
criminal history category of II, yielding a sentencing range of 292365 months. The district court sentenced Kise to 240 months on count
one and 125 months on count two, to run consecutively, with a term
of three years of supervised release thereafter. This appeal followed.
II.
At oral argument, Kises counsel contended that the district court
erred in denying his client a three-level reduction of offense level for
acceptance of responsibility under the United States Sentencing
Guidelines 3E1.1(a)-(b) (2001). The Guidelines provide for a twolevel reduction in offense level where the defendant "clearly demonstrates acceptance of responsibility." U.S.S.G. 3E1.1(a). If a defendant qualifies under 3E1.1(a), his or her offense level is 16 or
greater, and the defendant has assisted authorities by (1) timely providing complete information to the government concerning his or her
involvement in the offense; or (2) timely notifying authorities of his
intention to plead guilty, thus allowing the government to conserve
resources that would be expended on trial, the offense level is to be
decreased by one additional level. Id. 3E1.1(b).
We review the district courts decision to deny a reduction in the
offense level based on the defendants acceptance of responsibility for
clear error. United States v. Pauley, 289 F.3d 254, 261 (4th Cir.
2002), cert. denied, 123 S. Ct. 1007 (2003); see also United States v.
Holt, 79 F.3d 14, 17 (4th Cir. 1996) (per curiam).
A guilty plea does not automatically entitle a defendant to a reduction for acceptance of responsibility. See United States v. Harris, 882
F.2d 902, 906 (4th Cir. 1989) ("A district court is not obligated to
grant an unrepentant criminal a two-step reduction in return for

UNITED STATES v. KISE

grudgingly cooperating with authorities or merely going through the

motions of contrition."). Rather, the district court is to evaluate the
defendants acts and statements to determine whether the defendant
has accepted responsibility for his or her criminal conduct. See United
States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990); United States v.
White, 875 F.2d 427, 431-32 (4th Cir. 1989). "[I]n order to receive a
reduction under 3E1.1 for acceptance of responsibility, the defendant must prove by a preponderance of the evidence that he has
clearly recognized and affirmatively accepted personal responsibility
for his criminal conduct." United States v. May, 359 F.3d 683, 693
(4th Cir. 2004) (internal quotation marks and citations omitted). The
commentary to the guideline at issue notes that "[t]he sentencing
judge is in a unique position to evaluate a defendants acceptance of
responsibility. For this reason, the determination of the sentencing
judge is entitled to great deference on review." U.S.S.G. 3E1.1, cmt.
n.5 (2001); accord White, 875 F.2d at 431.
In this case, the PSR recommended that Kise receive a three-level
reduction for acceptance of responsibility. The PO detailed that Kise
readily and immediately confessed to the federal authorities in April
2001. As detailed above, Kise admitted to his life history as a criminal
sexual predator, rather than merely confessing to the crimes for which
he was being investigated. Furthermore, the PSR reported that Kise
remarked, "I feel terrible. This has ruined my life. I went through this
when I was a kid. I didnt intend to harm them, but I am sure I did."
Finally, the PSR detailed that Kise was admitted to the residential sex
offender treatment program ("SOTP") of the Federal Correctional
Institution at Butner, North Carolina for a psychiatric evaluation, and
that Kise sought treatment of his pedophilia.4 The government did not
object to the recommendation for acceptance of responsibility.
Despite the fact that Kises post-offense conduct substantially conformed to many of the factors listed as "appropriate considerations"
in determining whether an individual qualifies for the acceptance of
4

In 1990, the Butner SOTP for men was established. The programs
goal "is to reduce risk of recidivism by teaching offenders to manage
their sexual deviance through cognitive-behavioral, self-management,
and relapse prevention techniques." Federal Judicial Center, Special
Needs Offenders Bulletin No. 3, Sex Offenders 14 (Sept. 1998).

UNITED STATES v. KISE

responsibility reduction under the guidelines, the district court did not
grant the reduction. See, e.g., U.S.S.G. 3E1.1, cmt. n.1(a)
("truthfully admitting the conduct comprising the offense(s) of conviction"); id. cmt. n.1(b) (voluntary withdrawal from criminal conduct
or associations); id. cmt. n.1(d) ("voluntary surrender to authorities
promptly after commission of the offense"); id. cmt. n.1(e)
("voluntary assistance to authorities in the recovery of the fruits and
instrumentalities of the offense"); id. cmt. n.1(g) ("post-offense rehabilitative efforts (e.g., counseling or drug treatment)"). Instead, during
the sentencing colloquy, the district court questioned Kise regarding
what he had told prison psychologists regarding his pedophilic
beliefs. Consistent with Kises past mental health evaluations, supra
note 3, the Butner psychiatrists diagnosed Kise as a pedophile and
concluded that he suffered from depression. The evaluation revealed
that Kise "identified a system of beliefs which are commonly seen in
individuals engaged in sexual activity with minors." Specifically,
Kise told the psychiatrist that he believed that "children had a sexuality and should be able to consent to sexual activity. He expressed a
belief that a childs ability to consent to sexual activity began around
the age of 10."5
During the plea colloquy, in turning to the issue of acceptance of
responsibility, the district court seized upon Kises statements from
his psychiatric sessions at Butner and stated: "Now, on acceptance of
responsibility, Mr. Kise, do you believe that a child at age ten has the
ability to give consent to an adult to have sex with him?" J.A. 72. This
exchange followed:
5

The PSR also notes that during the Butner evaluation, Kise expressed
"he did not feel that he had harmed the children that much by his sexual
activity with them." Kise expressed that the harm to the children "came
not from his involvement in sexual activity, but from his being caught
and involving them in the legal proceeding, subsequent counseling and
having that part of their lives exposed." However, the PSR also details
that during a subsequent interview with a PO in September 2001, Kise
claimed the Butner psychologist misconstrued his explanation, and
"[Kise] acknowledged that he did believe that the children had been
harmed by his sexual activity with them and that he was not justifying
his sexual activity with them in any way."

UNITED STATES v. KISE

The Defendant:

Your Honor, I just

The Court:

Yes or No?

The Defendant:

Yes, Your honor.

The Court:

You think that a ten year old child can

consent with an adult to have sex?

The Defendant:

As our society knows it, no.

The Court:

As you know?

The Defendant:

Within me, yes, I know. I believe it.

The Court.

You lose acceptance of responsibility. It

is clear to me you have not accepted the
illegality of what you were doing. Let me
say, your comment right there is completely consistent with what you say in
the report. You lose acceptance of
responsibility. You do not get acceptance
of responsibility.

J.A. 72.
From this colloquy, it is clear that because Kise believed that children could consent to sexual conduct, the district court found, ipso
facto, that Kise had not accepted responsibility for his conduct. We
find that determination clearly erroneous. To hold otherwise would
punish defendants like Kise for acknowledging their disorders and for
seeking the very counseling and rehabilitation they require. Essentially, it would establish a per se rule that individuals similarly situated to Kise who suffer from, but are not yet cured of, mental
disorders cannot qualify for the acceptance of responsibility reduction; we cannot square such a determination with the guideline. See
U.S.S.G. 3E1.1, cmt. n.1(g) (stating that an appropriate consideration in determining whether a defendant should receive the reduction
is whether he or she has engaged in "post-offense rehabilitative
efforts" such as counseling).

10

UNITED STATES v. KISE

The district court presented Kise with what was ultimately a Hobsons choice: answer honestly and in accord with the psychiatrists
report and be denied acceptance of responsibility, or answer dishonestly and in a manner contrary to the report and be denied acceptance
of responsibility and possibly incur an enhancement for obstruction
of justice. The same scenario would confront any pedophile similarly
situated to Kise, and is thus akin to a categorical bar against any such
individual receiving the acceptance of responsibility reduction. The
Diagnostic and Statistical Manual of Mental Disorders IV ("DSM")
defines pedophilia as a paraphilia that is, a disorder causing "clinically significant distress or impairment in social, occupational, or
other important areas of functioning." American Psychiatric Association, DSM-IV-TR 535 (4th ed. 2000). It notes that individuals with
pedophilia "generally report an attraction to children of a particular
age range," and completely consistent with Butners diagnosis of
Kise it states that when pedophiles act on their urges with children,
they commonly rationalize the sexual experience, reasoning "that they
have educational value for the child, that the child derives sexual
pleasure from them, or that the child was sexually provocativethemes that are also common in pedophilic pornography." Id.
302.2 at 571; see also J.A. 120 (during allocution, Kise stated "in
talking to my psychiatrist about [pedophilia], he brought out the fact
that generally people who are pedophiles have a tendency to place the
age of consent on what they are attracted to.").
In short, the district court punished Kise for admitting to and
attempting to remedy his mental disorder. Kise did not challenge the
fact that what he did was legally wrong,6 rather he repeatedly
expressed guilt and remorse.7 In frank terms, Kise admitted the deep
6

To be clear, Kises belief that the children could and did consent did
not rest on the legal definition of consent. See J.A. 76-80. Rather, Kise
was referring to a more abstract philosophical issue regardless of how
warped or perverse the philosophy of whether he believed the boys
had the capacity to willingly choose to participate in, or object to, the
sexual conduct in which they engaged.
7
See, e.g., J.A. 117 ("Im terribly sorry for what I have done.
[Pedophilia] is not something in my life that I ever wanted. It is something I hated. It accelerated. For 26 years[,] I did work and fight the urge
to control it and I was able to control it. . . . I dont believe there is a cure

UNITED STATES v. KISE

11

scope and hold of his mental illness the PSR noted that he fought
against and wanted to seek help for the disorder throughout his lifetime,8
and actively sought help at Butner and elsewhere to remedy the condition. Kises response to the district courts question regarding childrens ability to consent, though undeniably perverse to objective
individuals without his paraphilia, was an honest response in accord
with his disorder. In this light, even Kises alarming declarations that
children can consent to sexual activity amount to "statements regarding his motivation [that] are relevant in that they shed light on the sincerity of an asserted acceptance of responsibility." United States v.
Greene, 71 F.3d 232, 235 (6th Cir. 1995).
While we find Kises statements regarding consent objectively misguided and disturbing, they do not mean that Kise failed to accept
responsibility for his offenses. To the contrary, Kises statements and
actions in this case following his investigation by the federal government and eventual detention demonstrate his willingness to assist law
enforcement and to submit to mental health treatment. On this record,
it is clear that Kise actively took the initial steps to control, if not
wholly eradicate, his disorder thereby minimizing the possibility of
recidivism.9 See Federal Judicial Center, Special Needs Offenders
for pedophilia."); id. ("I blame myself for every bit of [my conduct].");
id. at 118 (stating he had suffered from "terrible judgment"); id. at 120
("I am attracted to nine and ten year olds. Im sorry for that. I dont know
how I could you know, why me? I asked that question many times.
I would be happy to be anything else."); id. at 123 ("I am the blame for
whatever I do. I still question my own mind. They said I am sane. I dont
believe Im sane when it comes to those things [pedophilia and molestation]. I do believe I am a psychopath."); id. at 123 ("Im guilty and I will
take whatever you want to do to me. I do that here today because I
deserve it."); id. at 124 ("I was truly and deeply sorry for these criminal
acts that I have committed. I am especially sorry as well as deeply
ashamed for the terrible embarrassment and the great sadness I brought
upon these special boys."); id. at 129 ("I do accept responsibility totally.
I have already asked God to forgive me and he has. I will deal with what
I have to deal with as a criminal for the rest of my life.").
8
The record indicates that Kises pedophilic conduct stopped for a
period of approximately 25 years and resumed in 1999.
9
As the Seventh Circuit has remarked, per Judge Posner, the purpose
of 3E1.1 is not simply to induce guilty pleas and spare government

12

UNITED STATES v. KISE

Bulletin No. 3, Sex Offenders 6 (Sept. 1998) (stating sexual deviance

is treatable and that "offenders can learn to control, if not eradicate,
their deviant interests and behavior," but for treatment to work "the
offender must be an active participant in identifying risky behavior
and in developing coping strategies to address them"). Without disputing that Kises criminal conduct is of the most abhorrent type society knows, we also recognize that Kise immediately admitted to the
wrongfulness of his conduct when approached by the authorities and
has continued to do so, he turned over the instrumentalities of his
criminal conduct, and he has sought help to take steps toward reforming his behavior in the future. All of these facts support our view that
the district court clearly erred in finding that Kise did not accept
responsibility for his crime. While we understand the district courts
expression of repugnance at Kises statements that he believes children can consent (though Kise admits that they cannot legally consent
to sexual contact), to deny Kise and similarly situated pedophiles the
acceptance of responsibility reduction in such an instance would render 3E1.1 wholly inapplicable to an entire class of criminals. Such
a categorical bar cannot be reconciled with the above-discussed purposes of the guideline, and moreover such a result would ironically
serve to discourage honesty and full disclosure from pedophiles as
they take the first step toward rehabilitation and possible reintegration
into society thus also undermining the very purposes and goals of
the Butner SOTP, see supra note 4. As Kises counsel persuasively
queried at oral argument, if such a bar were in place, how could a
competent attorney implore a client suffering from a mental disorder
to go to Butner or another correctional institution for a mental evaluation if the attorney knows that his clients attempts to comply with the
authorities and conform to the full disclosure policies in 3E1.1 will
only be used against the client?
Were we to hold that it is not clear error to deny acceptance of
responsibility in this instance, it would create a perverse incentive
within our case law. We would unintentionally encourage pedophiles
expenses, but is also aimed "to reflect the reduced risk of recidivism of
a defendant who by facing up to the wrongfulness of his conduct takes
the first step to better behavior in the future." United States v. Lopinski,
240 F.3d 574, 575 (7th Cir. 2001) (citations omitted).

UNITED STATES v. KISE

13

similarly situated to Kise to refrain from telling authorities about their

past crimes and predilections and from seeking the mental health care
they severely require. Instead, they would be motivated to take their
chances at trial, thus increasing administrative costs, preventing the
offenders from obtaining the mental help they require which, in
turn, should translate into lower incidents of recidivism and greater
protection of society as a whole and, perhaps most importantly,
putting great strain on the victims who have already suffered so
deeply. This we cannot do.
III.
For these reasons, we hold that the district courts denial of a threelevel reduction for Kises acceptance of responsibility pursuant to
U.S.S.G. 3E1.1(a)-(b) was clearly erroneous.10 Accordingly, we
vacate the district courts sentence and remand for resentencing in a
manner not inconsistent with this opinion.
VACATED AND REMANDED
LUTTIG, Circuit Judge, concurring in the judgment:
I do not join the majority opinion, because I do not believe that the
rationale for its holding is one that is permissible under the guidelines.
I do, however, believe that it was error for the district court to deny
Kise the acceptance of responsibility reduction, given Kises postarrest conduct. In my view, that conduct satisfied the legal requirements set forth in the guidelines for the acceptance of responsibility
reduction. I do not believe that Kises responses to the courts questions during the plea colloquy and sentencing, made under the partic10

We find no merit in the other two issues raised in the Anders brief.
The court did not abuse its discretion in departing upward from Criminal
History Category I to Criminal History Category II on the basis that Category I under-represented Kises admitted history of child molestation
and predatory conduct. Likewise, we find no error in the district courts
upward departure for extreme conduct under U.S.S.G. 5K2.8. Kises
conduct in this case is the very epitome of that which is "unusually heinous, cruel, brutal, or degrading to a victim." U.S.S.G. 5K2.8. Accordingly, we otherwise affirm the district courts imposition of sentence.

14

UNITED STATES v. KISE

ular circumstances of contrition and remorse here, evidence a failure

to accept responsibility within the meaning of the guidelines.