     Case: 14-41346      Document: 00513262192         Page: 1    Date Filed: 11/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41346                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         November 6, 2015
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

VANESSA LISLA CLOUD,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-130


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Vanessa Cloud appeals the application of the “sadism” enhancement
under U.S.S.G. § 2G2.1(b)(4) to her offense of aiding and abetting sexual
exploitation of a child. Cloud contends that the sadism enhancement requires
a finding that she “purposefully” intended to humiliate or degrade her son.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Because the district court did not clearly err in making the factual
determination that Cloud’s conduct was sadistic, we AFFIRM.
                                           I.
      Vanessa Cloud confessed to Child Protective Services that she had been
sexually molesting her then seven-year-old son, John Doe. Cloud admitted
that she performed oral sex on Doe; that Doe had sucked her breast and
penetrated Cloud’s vagina with his sexual organ and fist; and that Doe’s father
had videotaped the activity. When Doe was eight years old, he was interviewed
and said that he had had sexual intercourse with his mother and he had been
made to do “sexual things.” Cloud’s cell phone was seized and found to contain
five videos—all showing sexual activity between Cloud and John Doe with both
giggling during oral sex.
      Cloud pleaded guilty to aiding and abetting the sexual exploitation of a
child for the purpose of producing child pornography, in violation of 18 U.S.C.
§§ 2251(a), 2251(e), and 2. The Presentence Report applied the four-point
section 2G2.1(b)(4) enhancement for an offense that involved material
portraying sadistic or masochistic conduct or other depictions of violence.
Cloud objected on the ground that humiliation “was not the purpose behind the
material being made the way it was made.” She also argued that her conduct
lacked the traditional hallmarks of sadism, and that her conduct didn’t “rise to
a level of humiliation” under the guidelines. The government agreed with
Cloud and added that in this case, unlike others in which the enhancement
had been applied, it was the mother rather than the child who was penetrated.
In response to Cloud’s objections, the probation office stated that the sadism
enhancement was appropriate because “the victim was debased, causing
mental pain, for the purpose of sexually gratifying the defendant.” The district
court rejected Cloud’s objection and the government’s concurrence stating:


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       This law protects all children. There is lifelong humiliation and
       degradation to these children from the behavior in Count One. A mother
       imposing upon a seven-year-old child an act that she did of oral sex and
       then attempting an act of intercourse and then also achieving
       penetration of herself by another one of his limbs humiliates and
       degrades children. You cannot take the definition of what would
       humiliate and degrade an adult and apply it to children to the same
       degree. Children are more sensitive, have less defenses built into
       themselves, a greater trust of adults. Their relationship is totally
       different. How John Doe will get over those memories is John Doe's
       struggle.

The district court then adopted the PSR “as written.”

                                                  II.
       Whether the district court correctly interpreted the Sentencing
Guidelines is a question of law that we review de novo. United States v.
Lyckman, 235 F.3d 234, 237 (5th Cir. 2000). But the district court’s application
of the Sentencing Guidelines to the facts of the case are reviewed only for clear
error. 1 Id.
                                                  III.
       Section 2G2.1(b)(4) applies when the “offense involved material that
portrays sadistic or masochistic conduct or other depictions of violence.”
U.S.S.G. § 2G2.1(b)(4). The Guidelines do not define the term “sadistic.” We
thus have interpreted “sadistic conduct” by looking to Webster’s definition of
sadism — “the infliction of pain upon a love object as a means of obtaining
sexual release,” the “delight in physical or mental cruelty,” and the use of
“excessive cruelty.” Lyckman, 235 F.3d at 238 n.19. We have also noted that


       1  The government argues that Cloud’s objections in the district court were insufficient
to alert the court to Cloud’s argument on appeal. An objection must be sufficiently specific to
alert the court to the nature of the error argued on appeal. United States v. Neal, 578 F.3d
270, 272 (5th Cir. 2009). The record reflects that Cloud’s objections, insofar as they centered
on whether the material depicted sadistic conduct for purposes of § 2G2.1(b)(4), sufficiently
alerted the district court to the argument that Cloud raises on appeal.
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application of the enhancement is warranted when the “sexual act depicted is
likely to cause pain in one so young.” Id. at 238. And we have not limited pain
to the physical type. See id. at 239 (“[T]he conduct depicted by the photographs
caused the children pain, physical or emotional or both, and therefore
constitutes sadism or violence within the meaning of the guideline.”); United
States v. Comeaux, 445 F. App'x 743, 745 (5th Cir. 2011) (“[A]n absence of
physical pain is not per se outside the ambit of the enhancement for sadistic
acts under § 2G2.1(b)(4)”).
      Cloud argues that our case law requires a specific finding that the
defendant engaged in the conduct for the purpose of degrading and humiliating
the victim, a finding that she contends the district court did not make.        She
relies on the following sentence in Comeaux: “sadistic and masochistic conduct
includes   sexual    gratification    which   is    purposefully   degrading    and
humiliating.” 445 F. App’x at 745. This gives too much effect to a single
sentence in an unpublished opinion that did not purport to describe the only
situation to which the enhancement applies, especially when the holding in
that same opinion refers not to intent but to effect: “We hold only that where,
as here, a district court finds that the child victim depicted in the child
pornography at issue was humiliated or debased, the enhancement . . . may
apply.” Id. at 746. That effect on the victim has often been the inquiry in our
case law. See Lyckman, 235 F.3d at 239 (finding that the “conduct depicted by
the photographs caused the children pain, physical or emotional or both” and
“therefore constitutes sadism . . . within the meaning of the guideline”); United
States v. Desadier, 495 F. App'x 501, 502 (5th Cir. 2012); see also United States
v. Maurer, 639 F.3d 72, 80 (3d Cir. 2011) (finding that the enhancement should
apply “whenever an image depicts sexual activity involving a prepubescent
minor that would have caused pain”); United States v. Delmarle, 99 F.3d 80,
83 (2d Cir. 1996) (“whatever might be inferred as to the purpose of the act
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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”). And the Guideline itself
does not require a “purposeful” finding. U.S.S.G. § 2G2.1(b)(4).
      Because the district court was not required to separately find that Cloud
“purposefully” intended to humiliate or degrade John Doe through her conduct,
we only need review for clear error its finding that the conduct portrayed was
in fact “humiliating and degrading” for the seven-year-old victim.
      That is not a difficult determination.      The district court correctly
recognized that application of the sadism enhancement to cases involving
young victims is not limited to the situation when an adult male penetrates a
young girl. Lyckman, 235 F.3d at 239. The horrendous conduct inflicted on
John Doe in this case can easily support a finding that he was humiliated and
degraded. The judgment is AFFIRMED.




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