Standard for Sadistic Depiction Enhancement is Objective, Requires Contemporaneously Infliction Pain

United States v. Nesmith, No. 16-40196, —F.3d—, 2017 WL 3393055 (5th Cir. Aug. 8, 2017) (King, Jolly, Prado)

Calvin Nesmith pleaded guilty to the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and (e). At sentencing, the district court applied a four-level enhancement under §2G2.1(b)(4) (depiction of sadistic conduct) because investigators found an explicit image of Nesmith standing next to the bed of a minor with his erect penis touching the minor’s lips. The Government conceded that the image did not depict physical violence, but argued that the enhancement was proper because the image had inflicted emotional pain on the victim once she learned of its existence. Nesmith objected.

The Court held that “an image portrays sadistic conduct where it depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation.” Id. at *4. Because the victim in the picture was asleep at the time the photo was taken, the image did not depict sadistic conduct. The Court vacated and remanded for resentencing.