                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3497
UNITED STATES   OF   AMERICA,
                                            Plaintiff-Appellee,
                              v.

MARTIN C. MYERS,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
          No. 02 CR 40057—Michael M. Mihm, Judge.
                        ____________
    ARGUED MAY 22, 2003—DECIDED JANUARY 22, 2004
                    ____________



  Before BAUER, KANNE, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Martin C. Myers was indicted on
four counts relating to child pornography. He pled guilty to
two counts, including receiving in interstate commerce
images of children engaged in sexually explicit conduct,
consisting of three videotapes, in violation of 18 U.S.C. §
2252(a)(2), and possession of three or more images of
children engaged in sexually explicit conduct in the form of
video-cassette tapes and computer-generated image files
which had been transported in interstate commerce, in
violation of 18 U.S.C. § 2252(a)(4)(B). The district court
sentenced him to 42 months incarceration, and he appeals
that sentence on two grounds.
2                                               No. 02-3497

  First, Myers argues that the district court erred in cal-
culating his base level as seventeen pursuant to U.S.S.G. §
2G2.2 which is the provision for receipt of child porno-
graphy, rather than a base level of fifteen pursuant to
U.S.S.G. § 2G2.4 which applies to possession of child
pornography. Although he pled guilty to receipt of child
pornography, he contends that the specification of a higher
offense level for the offense of receipt of child pornography
than for the possession of child pornography is irrational,
and therefore violative of the due process and equal protec-
tion guarantees of the Constitution. Second, Myers chal-
lenges the imposition of a four-level enhancement under
U.S.S.G. § 2G2.2(b)(3) based on the court’s determination
that the offense involved material portraying sadistic or
masochistic conduct, or other depictions of violence.


                             I.
  Count I to which Myers pled guilty, 18 U.S.C.
§ 2252(a)(2), proscribes the knowing receipt of child porn-
ography that has traveled in interstate commerce. Count
III, in contrast, criminalizes the knowing possession of such
child pornography. 18 U.S.C. § 2252(a)(4)(B). Because
Myers pled guilty to both receipt and possession of child
pornography, the court applied the stricter Sentencing
Guideline provision for receiving child pornography,
U.S.S.G. § 2G2.2, rather than the provision for possessing
such material, U.S.S.G. § 2G2.4, with the result that his
base offense level was 17 rather than 15. Myers essentially
argues that the distinction between receipt and possession
of child pornography is meaningless, because anyone in
possession of child pornography must have received it at
some point in time, and therefore he contends that it is
irrational to impose a higher sentence for the receipt than
for mere possession. Myers’ argument is without merit.
No. 02-3497                                                  3

  The Supreme Court has held that the prohibition on
receipt of child pornography in § 2252(a)(2) includes a
scienter requirement, and therefore encompasses only
situations in which the defendant knows that the material
he is receiving depicts minors engaged in sexually explicit
conduct. United States v. X-Citement Video, Inc., 513 U.S.
64, 78 (1994). Accordingly, a person who seeks out only
adult pornography, but without his knowledge is sent a mix
of adult and child pornography, will not have violated that
statutory provision. That same person, however, could be in
violation of the possession provision of § 2252(a) (4)(B) if he
or she decides to retain that material, thereby knowingly
possessing it. See 18 U.S.C. §§ 2252(a)(4)(B) and 2252(c)
(requiring knowing possession, and including an affirmative
defense where such material is promptly and in good faith
destroyed or reported to law enforcement.) It is certainly
not irrational to punish more severely the person who
knowingly receives such material, because it is that person
who is creating and/or perpetuating the market for such
material. As numerous courts have recognized, increasing
the punishment when the conduct involves receiving such
materials, trafficking in such materials, or producing such
materials, serves the purpose of the statute to end the
abuse of children because those actions are more directly
tied to the market for such products. United States v.
Ellison, 113 F.3d 77, 81 (7th Cir. 1997) (distinctions in §
2252 assigning a lower base level for mere possession are
intended to punish more harshly conduct that creates or
strengthens the market for child pornography; “even the
receipt of the prohibited materials for personal use, without
more, keeps producers and distributors of this filth in
business.”); United States v. Grosenheider, 200 F.3d 321,
332-33 (5th Cir. 2000) (“Congress established a series of
distinctly separate offenses respecting child pornography,
with higher sentences for offenses involving conduct more
likely to be, or more directly, harmful to minors than the
4                                               No. 02-3497

mere possession offense”); see also United States v.
Sromalski, 318 F.3d 748, 753 (7th Cir. 2003). Because
possession and receipt are not the same conduct and
threaten distinct harms, the imposition of different base
offense levels is not irrational and therefore Myers’ chal-
lenge must fail. Myers pled guilty to receiving such materi-
als, and therefore the district court properly calculated his
base offense level under § 2G2.2. See Ellison, 113 F.3d at
81-82.


                             II.
  Myer also argues that the court erred in concluding that
the child pornography he pled guilty to receiving supported
the four-level enhancement under U.S.S.G. § 2G2.2(b)(3) as
material “that portrays sadistic or masochistic conduct or
other depictions of violence.” Moreover, Myers contends that
imposition of that enhancement impermissibly double-
counts conduct already accounted for in the base offense
and in the two-level enhancement under U.S.S.G.
§ 2G2.2(b)(1) for the involvement of prepubescent children.
   The child pornography that formed the basis for the
challenged enhancement was a video entitled “Doctor’s
Appointment.” That video depicted an adult male engaging
in vaginal intercourse with a prepubescent girl. When the
video was described to Myers prior to his purchase of it, the
girl was identified as 8 years old, although a doctor using
the Tanner Scale of Human Development estimated that
the girl was actually between 5 and 6 years old. The district
court held that vaginal intercourse between a prepubescent
girl of such a young age with an adult male would necessar-
ily cause pain to the girl, and therefore fell within the
enhancement as conduct that was “sadistic” or “otherwise
violent conduct.”
 As the district court noted, that holding was consistent
with the holdings of other courts to consider the issue. For
No. 02-3497                                                     5

instance, in United States v. Garrett, 190 F.3d 1220, 1224
(11th Cir. 1999), the court held that a photograph is sadistic
under § 2G2.2(b)(3) when it depicts the subjection of
a young child to sexual acts that would have to be painful,
including vaginal or anal penetration by adult males.
Similarly, the Fifth Circuit in United States v. Lyckman,
235 F.3d 234, 240 (5th Cir. 2000), held that “when the
sexual act depicted is the physical penetration of a young
child by an adult male, . . . [s]uch conduct is . . . sufficiently
likely to cause pain and injury so as to qualify as ‘sadistic’
or ‘violent’ for purposes of the guideline [§ 2G2.2(b)(3)].” We
approved of a similar definition in United States v. Turchen,
187 F.3d 735, 740 (7th Cir. 1999) quoting United States v.
Delmarle, 99 F.3d 80, 83 (2d Cir. 1996), in which we agreed
with the Second Circuit that sadistic conduct includes
conduct “quite likely to cause pain in one so young.”
  In this case, the age of the girl was between 5 and 8, and
the district court properly held that vaginal intercourse
would have been painful. In fact, the district court made
findings further supporting that holding, stating that in the
video there appeared to be some difficulty in the adult
actually inserting the penis into the vagina because of the
size disparity. That disparity was even noted in the descrip-
tion of the video given to Myers, which stated “[i]t is
amazing how much of his big [penis] is able to fit in the
eight year olds’ [vagina].” There is no doubt that the video-
tape here portrayed conduct that would have caused pain to
the child, and therefore the district court properly held that
the video portrayed “sadistic conduct” or “other depictions
of violence.”
  Myers contends, however, that even if that definition is
met, the enhancement is nevertheless improper because it
impermissibly double-counts conduct already taken into
account in the base level offense (for depictions of sexual
conduct with a minor) and the two-level enhancement
6                                              No. 02-3497

under § 2G2.2(b)(1) (for the involvement of prepubescent
children). This argument is meritless. To be guilty of the
base offense, Myers must knowingly receive materials
depicting a child engaged in “sexually explicit conduct.” 18
U.S.C. § 2252. Such conduct includes “lascivious exhibition
of the genitals or pubic area of any person.” 18 U.S.C.
§ 2256(2). Therefore, photos of a minor alone could violate
the statute. If that child is prepubescent, the two-level
enhancement under § 2G2.2(b)(1) is appropriate, as is
the case here, but neither the base offense conduct nor
the prepubescent status of the minor would implicate the
four-level enhancement under § 2G2.2(b)(3). It is the
conduct taken with respect to that prepubescent child that
justifies that four-level enhancement. In this case, the
videotape had the added element of depicting an act that
would have caused pain to the prepubescent child. Accord-
ingly, the conduct for which the four-level enhancement was
applied is distinct from that which formed the base offense
and which supported the two-level enhancement, and
therefore Myers’ claim of impermissible double-counting
must fail. The decision of the district court is affirmed.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-22-04
