                                                                                PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                        FILED
                                                                  U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                          09/29/99
                                                                      THOMAS K. KAHN
                                        No. 98-6337                        CLERK

                            D. C. Docket No. 97-CR-176-001


UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                           versus

THOMAS SAMUEL GARRETT,
a.k.a. Fire-Man,
                                                                      Defendant-Appellant.




                      Appeal from the United States District Court
                         for the Southern District of Alabama

                                  (September 29, 1999)

Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.

DUBINA, Circuit Judge:

___________________________
*Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia sitting
by designation.
      This is a child pornography case. A federal grand jury in the Southern

District of Alabama charged defendant Thomas Samuel Garrett (“Garrett”) in a

three count indictment. Count One of the indictment charged sexual exploitation

of a minor, in violation of 18 U.S.C. § 2252(a)(2); Count Two charged transporting

child pornography, in violation of 18 U.S.C. § 2252(a)(1); and Count Three

charged enticement of a minor, in violation of 18 U.S.C. § 2422(b). Garrett pled

guilty to Counts One and Two of the indictment and the government dismissed

Count Three pursuant to a plea agreement. The district court sentenced Garrett to

60 months imprisonment. He then perfected this appeal.

                                I. BACKGROUND

      Officers of the Hillsborough County, Florida, Sheriff’s Department

conducted an investigation of child pornography displayed on the Internet. As part

of the investigation, deputies would log on to sex chat rooms and identify

themselves as underage children. In this case, the investigator contacted Garrett

by identifying himself as “Katrina,” a 15 year old girl.

      Garrett and “Katrina” maintained contact over the Internet for a two-month

period of time. During these contacts, Garrett talked about sexual acts that he and

“Katrina” could perform.

      Garrett had numerous pornographic photographs on his computer that


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involved minors as young as eight years old engaging in vaginal and anal

intercourse, and one minor female inserting a glass soda bottle into her vagina.

Garrett illustrated his intentions of wanting to have sex with “Katrina” by

transmitting these pornographic photos from Alabama to “Katrina” in Florida, and

asking her if she would perform the depicted acts if he would travel to meet her.

      Garrett was scheduled for job related training in Florida and discussed

meeting “Katrina” in a hotel room to have sex. He provided his office telephone

number to “Katrina.” A female detective called Garrett and identified herself as

“Katrina.” After his training session was canceled in Florida, Garrett and

“Katrina” discussed the possibility of Garrett taking a vacation to meet her.

Subsequently, based on this information, the FBI obtained a search warrant for

Garrett’s residence and his office and arrested him.

      At the sentencing hearing, the government presented the testimony of Dr.

John N. Shriner, a physician who works primarily with the Child Advocacy Center

in Mobile, Alabama. In the course of his career, Dr. Shriner has examined

approximately 1200 children that have been sexually abused. He has also been

admitted as an expert witness in child sexual and physical abuse cases in state and

federal courts over 50 times. Dr. Shriner testified, among other things, that he

examined the photographs which were recovered from Garrett’s computer.


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Importantly, he testified that, in his opinion, the acts depicted in the photographs

would have caused the children involved physical pain.

                                     II. ISSUES

      1. Whether the district court erred in finding that Garrett distributed child

pornography in an effort to seduce a minor and that this finding warranted an

upward adjustment pursuant to U.S.S.G. § 2G2.2(b)(2).

      2. Whether the district court erred in finding that child pornography which

depicted acts which would necessarily have been painful to the young children

involved constituted sadistic material which warranted an upward adjustment

pursuant to U.S.S.G. § 2G2.2(b)(3).

                         III. STANDARD OF REVIEW

      This court reviews the district court’s factual findings for clear error, and

application of the sentencing guidelines de novo. See United States v. Miller, 166

F.3d 1153, 1155 (11th Cir. 1999)(per curiam).

                                  IV. ANALYSIS

      A. Distribution Enhancement

      Garrett first argues that the district court erred in imposing a distribution

enhancement because the enhancement requires distribution for a pecuniary gain

which he did not receive. The government argues that Garrett distributed the


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photographs to receive sex, which is a “valuable gain” sufficient for the

enhancement. The guideline section provides for an increase in the base offense

level if the offense involved distribution of pornography. See U.S.S.G. §

2G2.2(b)(2). Specifically, the guideline states that “[i]f the offense involved

distribution, increase by the number of levels from the table in § 2F1.1

corresponding to the retail value of the material, but in no event by less than five

levels.” Id. Application Note 1 to this section states that “[‘d]istribution’ includes

any act related to distribution for pecuniary gain, including production,

transportation, and possession with intent to distribute.” U.S.S.G. § 2G2.2,

commentary, n.1.

      The type of gain needed for a distribution enhancement is an issue of first

impression in this circuit. Three circuits have held that the enhancement is not

limited to instances involving distribution for pecuniary gain. See United States v.

Lorge, 166 F.3d 516, 518-19 (2nd Cir.), cert. denied, 119 S.Ct. 1372 (1999);

United States v. Hibbler, 159 F.3d 233, 237-38 (6th Cir. 1998), cert. denied, 119

S.Ct. 1278 (1999); United States v. Canada, 110 F.3d 260, 263 (5th Cir.)(per

curiam), cert. denied, 118 S.Ct. 195 (1997). At least one circuit has held that the

enhancement is limited to transactions for pecuniary gain, but includes swaps,

barter, in-kind transactions, and other valuable consideration. See United States v.


                                          5
Black, 116 F.3d 198, 202-03 (7th Cir.), cert. denied, 118 S.Ct. 341 (1997).

      We agree with the approach taken by the Fifth Circuit in Canada, a case

with very similar facts to the present case. In Canada, the defendant transmitted

child pornography for the purpose of enticing a 13 year old child to have sex with

him. 110 F.3d at 263. The Fifth Circuit upheld the five-level enhancement for

distribution and held that the identification of distribution as used in § 2G2.2(b)(2)

is not limited to transactions for pecuniary gain. See id. The court was persuaded

that while Application Note 1 included distribution with pecuniary gain, it was not

intended to be an exhaustive list of what constitutes distribution. See id. We hold

that Garrett’s distribution of materials depicting sexual acts of minors and adults is

sufficient to trigger the enhancement characteristic of U.S.S.G. § 2G2.2(b)(2).

Garrett distributed these photographs to “Katrina” for the purpose of enticing her

to engage in deviant sexual acts with him. The record does not dispute this fact.

As the Canada court stated:




             [w]hile § 2G2.2(b)(2) calls upon the sentencing court to
             impose enhancement based on the retail value of the
             material distributed, in cases such as this where the
             material was distributed for a purpose which is difficult
             to evaluate monetarily, the sentencing court is within its
             province to impose the threshold five-level enhancement.

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110 F.3d at 263.

      Therefore, although Garrett did not distribute these photographs for

commercial gain, he did distribute them in order to receive what he considered to

be another “valuable gain.” Accordingly, the enhancement was warranted.

      Garrett also argues that the district court erred in its factual finding that he

transmitted photographs in order to seduce the child to have sex with him. This

argument is belied by the record. Garrett first contacted “Katrina” in a sex chat

room. During the two month investigation, Garrett contacted “Katrina” 25

different times. During these contacts, he transmitted five photographs to

“Katrina.” One photograph depicted a child between 10 and 15 years of age

engaging in sexual intercourse with an adult male. Garrett accompanied these

photographs with suggestions that he and “Katrina” engage in similar conduct.

Garrett told “Katrina” that he had been scheduled for travel to Florida. They

discussed getting a hotel room in order to have sex. Garrett later advised “Katrina”

that his business trip had been canceled so he would take vacation days to meet

her. Garrett also provided “Katrina” his office telephone number. A female police

officer called Garrett and identified herself as “Katrina.” Despite Garrett’s claim at

the time of his arrest that he thought the chances were “slim to none” that he would

have actually traveled to Florida to meet “Katrina,” Garrett did go so far as to make

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preliminary inquiry on a motel room. Based on these facts, we conclude that the

district court did not clearly err in finding that Garrett transmitted the photographs

in an effort to seduce “Katrina.” This finding is not changed by the fact that

Garrett was arrested before he could actually travel to Florida. Accordingly, we

affirm the upward adjustment pursuant to U.S.S.G. § 2G2.2(b)(2).

      B. Sadistic or Masochistic Conduct

      Garrett asserts the enhancement for sadistic or masochistic conduct is not

warranted, as this court has never defined those terms, and the photographs do not

fall within the traditional understanding of those terms as they relate to bondage or

acts of violence. The government argues that the district court correctly

determined that the photographs involved conduct that would have been painful to

the minor children involved. This conduct, the court reasoned, is excessively cruel

and therefore, sadistic.

      The sentencing guidelines provide for a four-level enhancement if the

material depicts minors and sadistic and masochistic or violent acts. See U.S.S.G. §

2G2.2(b)(3). Neither the guidelines nor this circuit has ever defined these terms.

In fact, no circuit has addressed whether photographs depicting minors in a

situation that would have caused them pain could be considered sadistic such that

an enhancement is warranted pursuant to U.S.S.G. § 2G2.2(b)(3).


                                           8
      As previously noted, at the sentencing hearing, the government called Dr.

Shriner, who testified that young girls have extremely sensitive genitalia and that

as a medical doctor he must use extreme care in their examinations. Moreover, he

testified that he had examined the photographs that were downloaded from

Garrett’s computer. He testified that they involved children between eight and 11

years of age being penetrated vaginally and anally by adult males. One photograph

depicted an 11 year old girl with a glass soda bottle in her vagina. Dr. Shriner

testified that, based on his expert opinion, the acts portrayed in these photographs

would necessarily have been painful to the young children involved.

      In United States v. Delmarle, 99 F.3d 80 (2nd Cir. 1996), the Second Circuit

reviewed application of this enhancement and noted that the term “sadism” is not

defined by the sentencing guidelines. Id. at 83. The court reviewed a photograph

of an eight or nine year old boy and found that the anal penetration depicted was

likely to cause the child pain. See id. The court concluded that, “whatever might

be inferred as to the purpose of the act depicted or the reaction of the actor, it was

within the court’s discretion to conclude that the subjection of a young child to a

sexual act that would have to be painful is excessively cruel and hence is sadistic

within the means of § 2G2.2(b)(3).” Id.

      Based on Dr. Shriner’s testimony at the sentencing hearing in the present


                                           9
case, we agree with the district court’s finding that an upward adjustment was

warranted pursuant to U.S.S.G. § 2G2.2(b)(3). Moreover, we conclude that

Garrett’s reliance on United States v. Tucker, 136 F.3d 763 (11th Cir. 1998)(per

curiam), is misplaced. In Tucker, we held that intent is a requirement of a §

2G2.2(b)(3) enhancement. Id. at 964. The court found that the evidence was

sufficient that Tucker intended to possess material depicting minors involved in

sadistic conduct based on his Internet conversations in which he stated that he was

into “young action” and would “like to start trading.” Id. The court did not require

evidence that Tucker wanted photographs of children who had been tortured,

beaten or tied up. See id. Likewise, Garrett never argued that he did not intend to

receive child pornography. He did not dispute that he intended to receive

photographs that depicted very young children who were vaginally and anally

penetrated by adult men, as well as a photograph of a young girl who was vaginally

penetrated by a glass bottle. In our opinion, this is sufficient to satisfy the intent

requirement of § 2G2.2(b)(3).

      In conclusion, because we see no reversible error in this record, we affirm

Garrett’s sentences in all respects.

      AFFIRMED.




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