     Case: 16-40196        Document: 00514107321         Page: 1    Date Filed: 08/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                       No. 16-40196
                                                                                  Fifth Circuit

                                                                                FILED
                                                                           August 8, 2017
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                Plaintiff–Appellee,

v.

CALVIN NESMITH,

                Defendant–Appellant.




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


Before KING, JOLLY, and PRADO, Circuit Judges.*
EDWARD C. PRADO, Circuit Judge:
      Defendant–Appellant Calvin Nesmith pleaded guilty to the sexual
exploitation of a minor after investigators found an explicit image of Nesmith
and the fourteen-year-old daughter of his girlfriend. In calculating Nesmith’s
Guidelines sentencing range, the district court applied a four-level
enhancement because the image purportedly depicted sadistic conduct.
Nesmith appeals the district court’s application of the sadism enhancement.
We VACATE and REMAND for resentencing.




      *   E. Grady Jolly, Circuit Judge, concurs in the judgment only.
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                              I. BACKGROUND
      In June 2015, Department of Homeland Security (“DHS”) agents began
investigating Calvin Nesmith after he responded to an undercover agent’s
online ad posing as the mother of two young girls. Nesmith arranged to meet
with the agent and one of her underage daughters for a “three-way sexual
encounter,” and was arrested at the scene of the meeting. DHS agents searched
his home the following day. During the search, agents discovered a thumb
drive containing pictures of Nesmith and Jane Doe, the then fourteen-year-old
daughter of a woman whom Nesmith had been dating and living with for over
five years. One image on the thumb drive, the image at issue, depicted Nesmith
“standing by [Doe’s] bed with his erect penis on the minor’s lips.”
      In November 2015, Nesmith pleaded guilty to the sexual exploitation of
a minor in violation of 18 U.S.C. § 2251(a) and (e). The presentence report
(“PSR”) recommended a four-level enhancement under U.S.S.G. § 2G2.1(b)(4),
which applies “[i]f the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence.” Nesmith objected to
application of the sadism enhancement, arguing that the image in question did
not depict “purposeful, violent, [or] aggressive conduct.” In its response, the
Government conceded that the image did not depict physical violence but
argued that the image had inflicted emotional pain on the victim. Apparently,
“[d]uring the course of the government’s investigation, the victim learned of
the existence of the image and exactly what it depicts.” After learning about
the image, the victim felt “humiliated and degraded,” which, according to the
Government, sufficed as the sort of infliction of emotional pain that justifies
application of the sadism enhancement.
      During Nesmith’s sentencing hearing, Doe testified that she had been
asleep when the picture was taken and “had no idea the picture [existed] until
court.” After being told about the content of the picture, Doe said she felt
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embarrassed, humiliated, and worried because she didn’t “know who’s seen it
or if it will ever get out and how it will affect [her] later.” Based on Doe’s
testimony, the Government reurged application of the enhancement. Nesmith
objected, arguing that the image did not portray sadistic or masochistic
conduct because it did not depict anyone inflicting or receiving pain. The
district court overruled Nesmith’s objection, and sentenced him to 360 months’
imprisonment. This appeal followed.
                               II. DISCUSSION
A.    Standard of Review
      The parties first dispute the applicable standard of review. The
Government contends that Nesmith’s argument on appeal differs from his
objection below and argues that plain error review should therefore apply.
Nesmith counters that the objection he made before the district court contained
the gist of his argument on appeal; he therefore urges us to apply de novo
review.
      “Generally, this Court reviews the district court’s application of the
Sentencing Guidelines de novo. . . .” United States v. Garcia-Perez, 779 F.3d
278, 281 (5th Cir. 2015) (quoting United States v. Medina-Anicacio, 325 F.3d
638, 643 (5th Cir. 2003)). However, “[w]hen a defendant objects to his sentence
on grounds different from those raised on appeal, we review the new
arguments raised on appeal for plain error only.” Id. (quoting Medina-Anicacio,
325 F.3d at 281). But the objection and argument on appeal need not be
identical; the objection need only “‘g[i]ve the district court the opportunity to
address’ the gravamen of the argument presented on appeal.” Id. at 281–82
(quoting United States v. Ocana, 204 F.3d 585, 588–89 (5th Cir. 2000)). In other
words, the “objection must be sufficiently specific to alert the district court to
the nature of the alleged error and to provide an opportunity for correction.”
Id. (quoting United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009)); see also
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United States v. Hernandez-Montes, 831 F.3d 284, 290 (5th Cir. 2015) (“Key is
whether the objection is specific enough to allow the [district] court to take
evidence and receive argument on the issue.”).
      Here, Nesmith’s objection to the sadism enhancement before the district
court preserved the argument he makes on appeal. Below, Nesmith essentially
argued that § 2G2.1(b)(4) was inapplicable because the image at issue does not
portray sadism—i.e., the conduct depicted did not inflict pain on the victim.
The core of Nesmith’s argument on appeal remains the same. On appeal,
Nesmith contends that the sadism enhancement should apply only where an
image portrays conduct that contemporaneously inflicts either physical or
emotional pain on the victim. Because Doe was asleep in the image at issue
and was thus unaware that the image was taken, Nesmith reasons that his
conduct did not inflict contemporaneous pain on Doe. Although Nesmith’s
argument is somewhat refined on appeal, the crux of his objection is the same:
the image does not depict the infliction of pain. Given that the “essence [of
Nesmith’s argument] was fairly presented to the district court,” we apply de
novo review. See Garcia-Perez, 779 F.3d at 282.
B.    Analysis
      We begin our consideration of the merits by determining the proper
standard by which to judge whether the image portrays sadistic conduct within
the meaning of § 2G2.1(b)(4). The parties disagree on two primary issues:
(1) whether the test for application of the sadism enhancement is subjective or
objective; and (2) whether an image must depict conduct that would
contemporaneously inflict physical or emotional pain on a victim to qualify as
sadistic.
      Our starting point for interpretation is the plain text of the Guidelines.
United States v. Lyckman, 235 F.3d 234, 238 (5th Cir. 2000). The plain text of
§ 2G2.1(b)(4) weighs in favor of an objective analysis. The Guidelines provide
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that the sadism enhancement applies “[i]f the offense involved material that
portrays sadistic     conduct     or    other     depictions    of   violence.”    U.S.S.G.
§ 2G2.1(b)(4) (emphases added). Thus, according to § 2G2.1(b)(4)’s plain text,
the inquiry should focus on an observer’s view of the image—what is portrayed
and depicted—rather than the viewpoint of either the defendant or the victim. 1
In other words, the text emphasizes what objectively appears to be happening,
not what actually occurred.
       In line with the text, the six other circuits to consider this issue have
held that the determination of whether the sadism enhancement applies is an
objective inquiry. See United States v. Johnson, No. 16-4005, 2017 WL 775856,
at *4 (4th Cir. Feb. 28, 2017) (per curiam) (“Whether a particular image
portrays sadistic conduct under the Sentencing Guidelines is, indeed, ‘an
objective determination.’” (quoting United States v. Corp, 668 F.3d 379, 389
(6th Cir. 2012))); United States v. Johnson, 784 F.3d 1070, 1074 (7th Cir. 2015)
(“[T]he proper question is whether the image itself would be objectively
considered sadistic.”); United States v. Corp, 668 F.3d 379, 389 (6th Cir. 2012)
(“[W]hether a particular image can be classified as portraying sadistic or
masochistic conduct under § 2G2.1(b)(4) is an objective determination.”);
United States v. Maurer, 639 F.3d 72, 80 (3d Cir. 2011) (holding that “this
factual inquiry is an objective one”); United States v. Freeman, 578 F.3d 142,
146 (2d Cir. 2009) (“[T]he determination of whether an image is sadistic . . . is
an objective one.”); United States v. Raplinger, 555 F.3d 687, 694 (8th Cir.



       1 Nesmith counters that an objective inquiry cannot be proper given this Court’s
statement in United States v. Cloud, that the “effect on the victim has often been the inquiry
in our case law.” 630 F. App’x 236, 238 (5th Cir. 2015) (per curiam). But even if Cloud, an
unpublished opinion, were binding, it did not determine whether the sadism-enhancement
inquiry is subjective or objective. In making the statement relied upon by Nesmith, the Court
was simply refuting the proposition that it was the defendant’s intent, not the effect on the
victim, that mattered. Id.

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2009)       (“The   enhancement . . . applies       to    material     depicting     sadistic,
masochistic, or violent conduct even if those pictured were not truly engaging
in painful activities.”). 2 Because Nesmith has not provided a compelling reason
to create a circuit split, we likewise hold that an objective standard governs
the assessment of whether an image portrays sadistic conduct under
§ 2G2.1(b)(4).
        Nesmith also argues that the sadism enhancement should only apply if
an image depicts conduct that an objective observer would view as causing a
victim emotional or physical pain contemporaneous to creation of the image.
The Government, on the other hand, suggests that an image can portray
sadistic conduct even if, as here, the victim is unaware of the conduct when the
picture was taken but would likely experience mental or emotional suffering if
he or she later learned of it. The Government does not argue that the conduct
caused the victim any pain contemporaneous with the image’s creation.
        As above, we begin with the text of the Guidelines. In Lyckman, this
Court defined sadism as “the infliction of pain upon a love object as a means of
obtaining sexual release.” 235 F.3d at 238 n.19 (quoting Sadism, Webster’s
Third New International Dictionary (1986)). This interpretation suggests a
causal relationship—the victim’s experience of contemporaneous physical or
emotional pain is what prompts the sadist’s sexual release. In other words, a
sadist would only experience sexual gratification while inflicting pain or
humiliation on another; a sadist would not obtain sexual release from the




        2 Although some of these cases address § 2G2.2(b)(4) rather than § 2G2.1(b)(4), the
language of these two provisions is identical. Cf. United States v. Shouse, 755 F.3d 1104, 1106
(9th Cir. 2014) (considering issue involving application of § 2G2.1(b)(4) and finding “no reason
to deviate from [Ninth Circuit] precedent with respect to identical language in
§ 2G2.2(b)(4) . . . both of which stem from the same [Guidelines] chapter on ‘sexual
exploitation of a minor’”).
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                                 No. 16-40196
foreseeable, but uncertain, possibility that the victim will at some point in the
future feel emotional pain.
      This Court has never faced application of the sadism enhancement in a
scenario like this one—where the minor victim is completely unconscious and
unaware of the sexual exploitation occurring at his or her expense. But in all
the cases where we have found the sadism enhancement appropriate, the
infliction of emotional or physical pain that was the basis for the enhancement
has been contemporaneous with the creation of the image. See, e.g., United
States v. Cloud, 630 F. App’x 236, 237–39 (5th Cir. 2015) (per curiam); United
States v. Comeaux, 445 F. App’x 743, 745–46 (5th Cir. 2011) (per curiam);
United States v. Hewitt, 326 F. App’x 756, 759 (5th Cir. 2009) (per curiam);
Lyckman, 235 F.3d at 238–40.
      Even aside from the guidance provided by our case law, it would be
unwise to expand the sadism enhancement to apply in all situations where it
is reasonably foreseeable that the conduct depicted in the image will later
manifest itself in pain. As an initial matter, without a contemporaneousness
requirement, § 2G2.1(b)(4) would apply in every child pornography case
regardless of the content of the images in question. After all, it is foreseeable
that any child who discovers that he or she was depicted in pornography would
feel humiliated and debased. Like the plaintiff here, all child victims would
likely find it “nerve-wracking” not knowing who had seen the images or if they
would become public later and not knowing what effect that would have on
their lives. Moreover, without requiring the pain inflicted on the victim to be
contemporaneous with creation of the image in question, the sadism
enhancement could apply even where a victim never becomes aware that he or
she is the subject of child pornography. Any connection between the victim and
the defendant would make it foreseeable that the victim would later learn of
the conduct depicted in the images and consequently experience emotional
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                                  No. 16-40196
pain. In our view, it is inappropriate to apply an enhancement in such a broad
manner that it essentially becomes part of the base offense level.
      Under the Government’s reasoning, even if § 2G2.1(b)(4) were only to
apply where the victim actually became aware of the sexual exploitation
depicted in the image, application of the enhancement would then turn on the
conduct of individuals other than the defendant. If, as was the case here, the
Government tells the victim that the image exists and describes its content,
that victim will most likely testify to feeling humiliated and debased, and the
sadism enhancement would apply. On the other hand, where the victim
remains totally unaware of the image, a court could find that such humiliation
and debasement are unlikely to happen in the future. Again, this is true
regardless of the actual content of the image. In either situation, application of
the enhancement would inappropriately be predicated on the conduct of
individuals other than the defendant.
      Given the plain text of the Guidelines, our case law, and the strong policy
reasons in favor of such an approach, we conclude that a contemporaneity
requirement is appropriate. Accordingly, we hold 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. Because the victim in this case
was asleep when the image was taken, no objective observer would conclude
that the image portrayed sadistic conduct—namely, the defendant obtaining
sexual release through the infliction of physical or emotional pain on another.
                              III. CONCLUSION
      For the foregoing reasons, we VACATE and REMAND for resentencing.




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