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The “Sadistic Conduct” Enhancement in Federal Child Pornography Cases
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.
Take the first step toward protecting your freedom by contacting us now
Testimonials
John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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