6th Cir. vacates sadistic or masochistic conduct enhancement

In United States v. Corp, 668 F.3d 379 (6th Cir.), the Sixth Circuit vacated an enhancement for materials depicting sadistic or masochistic conduct because the court only considered the victim's testimony concerning the defendant's conduct rather than the actual content of the images.

The defendant had met the victim on an adult-only dating service, and after meeting, the defendant photographed the victim in many sexual acts. After it was discovered that the victim was 15, defendant was charged and pled guilty to sexual exploitation of a minor. At trial, a number of enhancements were applied, and defendant appealed two - (1) § 2G2.1(b)(4) - material involving sadistic or masochistic conduct and (2) § 4B1.5(b) - pattern of activity involving prohibited sexual conduct.

The appellate court held that a sadistic or masochistic determination is objective and is limited to "the contents within the four corners of the image." Thus, the actual victim's physical or mental pain and experiences is immaterial. The trial court placed great weight on the victim's testimony that defendant urinated on her in applying this enhancement, but none of the photos showed this act. A photo did exist, however, in which the victim had the defendant's semen on her face. The court found that the actual act of ejaculating on another's face is "purposefully degrading and humiliating," but these photos do not capture the act - only the results of that conduct.

With regard to the pattern challenge, the defendant must have been engaged in a pattern of prohibited sexual conduct with minors on at least two occasions. The court found that two acts satisfied this requirement. The first was a previous child pornography offense, and the second concerned a collection of pictures that appeared to involve a girl under the age of 18, but the government was unable to confirm her age. Because the defendant did not contest these facts at trial, the finding was not clearly erroneous.

Thus, because the § 2G2.1(b)(4) enhancement was based on conduct and not the content of the photographs, it was vacated. The § 4B1.5(b) enhancement was affirmed.