Sentencing; Procedural reasonableness; Application of the four-level sadism enhancement in USSG § 2G2.1(b)(4)(A); What constitutes “sadism” involving pubescent minors; United States v Groenendal; United States v Corp; United States v Cover; “Foreign objects”; United States v Preston (Unpub 6th Cir); The correct legal standard for application of § 2G2.1(b)(4)(A)

The court vacated defendant’s sentence for receiving child pornography involving a pubescent minor, holding that the district court improperly applied a four-level enhancement for sadism where the government failed to offer evidence of “pain or humiliation,” which would need to be evident in the video in question. Defendant, who has autism, pled guilty to receiving child pornography. At sentencing, the district court applied a four-level enhancement under § 2G2.1(b)(4)(A) overruling defendant’s objection. The video involved defendant’s suggestion to the minor (Doe) that she penetrate herself with a marker, which she did. His advisory range would have been 168-210 months, but the enhancement raised it to 262–327 months. With a downward departure for his “immaturity,” he was sentenced to 226 months in prison and 25 years of supervised release. He argued that his sentence was procedurally unreasonable due to the district court’s application of the sadism enhancement. The court reviewed precedent relating to pubescent minors, citing Corp, where it held that determining whether an image meets the definition of “sadistic or masochistic conduct or other depictions of violence” involves a two-step inquiry. “A district court must find by a preponderance of the evidence that the material (1) depicts sexual activity involving a minor and (2) portrays conduct that an objective viewer would perceive as inflicting ‘physical pain, emotional suffering, or humiliation on the minor.’” Further, this is determined “‘within the four corners of the image.’” The court rejected a per se rule for materials depicting penetration of pubescent minors. It held that “the enhancement must rest on specific facts rather than on broad generalizations” and that the painful or humiliating nature of the penetration must “appear on the face of the material and support an objective finding of mental or physical anguish.” Because this case involved penetration with a foreign object, a marker, the government needed to show “evidence of pain or humiliation[,]” which it failed to do, admitting that at “no point” did Doe’s facial expression indicate pain or her body language indicate pain or humiliation. The district court applied an incorrect legal standard when it relied on what it considered to be a per se rule in Preston, and “relied on two facts to find that the enhancement applied here: that Doe was twelve years old and that the video showed her ‘inserting an “everyday object[] into her private parts.”’ [It] did not consider whether Doe was pubescent. It also did not identify any other facts that could support the application of the enhancement.” Vacated and remanded for resentencing.