U.S. Sentencing Guidelines § 2G2.2(b)(4) authorizes a four-level enhancement in child pornography cases when the images possessed or distributed portray sadistic conduct or depictions of violence, which means additional years on top of what is already a very significant term of imprisonment.


In January 2014, Marcus W. Cover, a 30-year-old Midvale, Ohio resident, was indicted for receiving, distributing and possessing child pornography—depictions of minors engaged in sexually explicit conduct. The indictment charged that during the month of September 2013 Cover knowingly received and distributed numerous computer files containing depictions of real minors engaged in sexually explicit conduct.


Man Indicted Federal Child Pornography Charges


The indictment came after the FBI downloaded multiple files from Cover’s computer that contained numerous depictions of child pornography in violation of 28 U.S.C. § 2252(a) (2).


Cover pleaded guilty in federal district court in Akron, Ohio. A presentence investigation report (PSR) was prepared which recommended a sentencing guidelines range of 262 to 317 months in prison. The PSR specifically recommended a four level enhancement under § 2G2.2 (b) (4).


The basis for this enhancement was a video that depicted an 11 to 13 year old female engaged in oral to genital intercourse with an adult male.


Through his defense counsel, Cover objected to the enhancement, arguing that this conduct did not involve either sadistic conduct or any indication of violence.


U.S. Sentencing Guidelines, Sadistic Conduct Enhancement


The probation officer who prepared the PSR responded: “This enhancement was applied because one of the videos found on defendant’s computer depicted an 11 to 13 year old female engaging in oral to genital intercourse with a male. The actual penetration of a child is considered to be sadistic and/or masochistic.”


The trial court came down on the side of the probation officer, finding that an 11 to 13 year old minor engaging in oral to genital intercourse is, as a matter of law, sadistic.


Appeals Court Reverses Sentencing that Included Enhancement


On September 1, 2015, the Sixth Circuit Court of Appeals reversed the sadistic enhancement and remanded the case for resentencing. The court specifically found there was insufficient evidence to support the enhancement that increased Cover’s sentence by 7 years. The court based its reversal on the following reasoning:


“ … The only indication in the record that sadistic conduct was portrayed is the fact that the victim was 13 years old or younger and that she engaged in oral sex with a man. There is no indication that she was visibly pained or prepubescent. Downloading and distributing such material is certainly despicable, harmful to the victim, and legitimately deserving of harsh punishment. But if the material does not portray sadism, then the punishment should not be increased on that basis.


“U.S.S.G. § 2G2.2 (b) (4) provides that a defendant’s base offense level shall be increased by four levels ‘[i]f the … material … portrays sadistic or masochistic conduct or other depictions of violence.’ The general meaning of sadism is ‘the infliction of pain upon a love object as a means of obtaining sexual release’ … under our precedent, there are two ways to show that an image is sadistic: (1) offer evidence that the image depicts the sexual penetration of a prepubescent child, in which case we presume that the image is ‘inherently sadistic’ … largely because such conduct is ‘likely to cause pain in one so young’ … or (2) offer evidence that the image depicts violence or ‘infliction of pain,’ either mental or physical …


“There is no indication in the record that the image depicted violence or the infliction of pain, either mental or physical. It is very culpable to have and distribute an image depicting a 13 year old or younger victim engaged in oral sex with a man, but such a depiction is not automatically—without more—sadistic. As sad as it is, there is no denying that many eighth-graders these days voluntarily engage in oral sex, presumably without experiencing pain.”


This case offers two significant observations.


Probation Officer Got it Wrong


First, the probation officer who prepared the report is not a lawyer and interpreted Sixth Circuit precedent to mean that the very depiction of an 11 to 13 year old female engaged in oral sex with a male is sadistic. That interpretation was erroneous regardless of the facts that the district court was in agreement.


Probation officers are not always correct in their interpretation of the Sentencing Guidelines.  Attorneys who believe they are do their clients a disservice.  Criminal defense attorneys must be vigilant and thoroughly read PSRs, especially in cases that involve inflammatory facts, and provide detailed objections to findings in the reports that either misinterpret or expand circuit authority.


Appeals Court Followed the Law


Second, while the nature of the facts obviously distressed the three-judge appeals panel, the court was able to detach itself from popular public opinion and apply the rule of law; namely, that the mere depiction of a minor engaged in oral sex with an adult is not per se sadistic. It is illegal and constitutes child abuse, but it is not sadistic as the term in generally defined and applied by the courts.


Reality in Today’s World


Like it or not, children are engaging in oral sex at increased rates.


In 2013, CNN carried a shocking report about 4 and 5 year old preschool children engaging in oral sex with each other at a religious center in Carson, California. The behavior was occurring on the “playground” and during “nap time.”


In 2012, the CDC reported that young teenagers were increasingly engaging in oral sex, contributing to the spread of sexually transmitted diseases. Two-thirds of the more than 6,000 teenagers surveyed by the federal agency reportedly had experience oral sex, an activity that some teens do not consider sex.


As the Sixth Circuit pointed out, sexual activity between an adult and a minor is offensive but such activity is not always “sadistic” within the framework of U.S.S.G. 2G2.2 (b) (4). There must be evidence of the infliction of pain, either mental or physical, before the guideline’s four-level enhancement can be applied.


Cases Involving Child Pornography Difficult


Cases involving child abuse and child pornography are very difficult to defend.  The very nature of allegations involving children strike at a primal need to defend our children and strike back.  It is in cases like these, those which inflame the passions, that defense lawyers must stand resolute and demand fairness and justice from the criminal justice system.  These cases are already prosecuted and punished very harshly and it is unnecessary to pile years onto sentences that can be in excess of decades in prison.


Criminal defense attorneys must be honest with themselves when accepting child pornography cases or any cases involving child abuse.  They must be prepared to set their emotions aside and not allow their passions to further penalize the client by failing to fight as vigorously as they would in other criminal cases.  If they cannot, they should refuse to accept them or withdraw from representation.


It is in defending those that are the most scorn-worthy that criminal defense attorneys must stand tall and demand that justice be just, rather than stand by and allow the criminal justice system to become abusive and sadistic itself.