18‐1574‐cr
United States v. Bleau




                                     In the
              United States Court of Appeals
                           for the Second Circuit


                               AUGUST TERM 2018

                                  No. 18‐1574‐cr

                           UNITED STATES OF AMERICA,
                                    Appellee,

                                        v.

                         KEITH BLEAU, AKA KEITH J. BLEAU,
                               Defendant‐Appellant.



              On Appeal from the United States District Court
                  for the Northern District of New York



                             SUBMITTED: APRIL 1, 2019
                              DECIDED: JULY 8, 2019



Before: WALKER, CABRANES, and SACK, Circuit Judges.
      The principal question on appeal is whether the four‐level
enhancement pursuant to § 2G2.2(b)(4) of the United States Sentencing
Guidelines (“Guidelines” or “U.S.S.G.”) may be applied based on
images of sexual activity that would cause the depicted minor to
experience mental, but not physical, pain. We conclude that it may.
Accordingly, we AFFIRM the judgment of the United States District
Court for the Northern District of New York (Mae A. D’Agostino,
Judge) on the question of the four‐level enhancement and the
procedural and substantive reasonableness of the sentence, but we
REMAND the cause to the District Court for further consideration of
a special condition of supervised release that broadly prohibits
Defendant‐Appellant from having direct contact with minors without
pre‐approval from the United States Probation Office (“Probation
Office”).




                        Michael D. Gadarian and Richard D. Belliss,
                        Assistant United States Attorneys, for Grant
                        C. Jaquith, United States Attorney, Northern
                        District of New York, Syracuse, NY, for
                        Appellee.

                        Molly Corbett and James P. Egan, Assistant
                        Federal Public Defenders, for Lisa A.
                        Peebles, Federal Public Defender, Northern
                        District of New York, Albany, NY, for
                        Defendant‐Appellant.




                                    2
PER CURIAM:

      The principal question on appeal is whether the four‐level
enhancement pursuant to § 2G2.2(b)(4) of the United States Sentencing
Guidelines (“Guidelines” or “U.S.S.G.”) may be applied based on
images of sexual activity that would cause the depicted minor to
experience mental, but not physical, pain. We conclude that it may.
Accordingly, we AFFIRM the judgment of the United States District
Court for the Northern District of New York (Mae A. D’Agostino,
Judge) on the question of the four‐level enhancement and the
procedural and substantive reasonableness of the sentence, but we
REMAND the cause to the District Court for further consideration of
a special condition of supervised release that broadly prohibits
Defendant‐Appellant from having direct contact with minors without
pre‐approval from the United States Probation Office (“Probation
Office”).

                        I. BACKGROUND

      Defendant‐Appellant Keith Bleau (“Bleau”) appeals from a May
15, 2018 judgment of the District Court convicting him of receiving
child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and
(b)(1), and possessing child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2). Bleau pleaded guilty and was sentenced
to concurrent 78‐month terms of imprisonment, plus a 15‐year term of
supervised released.




                                 3
       On appeal, Bleau challenges both the substantive and
procedural reasonableness of his sentence and one of the special
conditions of his supervised release. He argues that the District Court
procedurally erred in declining to apply a two‐level reduction
pursuant to § 2G2.2(b)(1) of the Guidelines,1 and in applying a four‐
level enhancement pursuant to § 2G2.2(b)(4).2 He also challenges the
substantive reasonableness of his sentence. Finally, Bleau contends
that the District Court erred by imposing a special condition of
supervised release that broadly prohibits him from having direct
contact with minors without first obtaining permission from his
probation officer.

                                II. DISCUSSION

       “We review a sentence for procedural and substantive
reasonableness under a deferential abuse‐of‐discretion standard.”3 “A

       1  Section 2G2.2(b)(1) allows for a two‐level reduction to a defendant’s
offense level if “the defendant’s conduct was limited to the receipt or solicitation of
material involving the sexual exploitation of a minor” and “the defendant did not
intend to traffic in, or distribute, such material.” U.S.S.G. § 2G2.2(b)(1).
       2  Section 2G2.2(b)(4) calls for a four‐level enhancement of a defendant’s
offense level if the offense involved material that portrays “sadistic or masochistic
conduct or other depictions of violence” or “sexual abuse or exploitation of an
infant or toddler.” Id. § 2G2.2(b)(4).
       3 United States v. Castillo, 896 F.3d 141, 148 (2d Cir. 2018) (internal quotation
marks omitted). We note that “‘abuse of discretion’ is a nonpejorative term of art;
it implies no misconduct on the part of the district court.” United States v. Bove, 888
F.3d 606, 607 n.1 (2d Cir. 2018) (citing In re City of New York, 607 F.3d 923, 943 n.21
(2d Cir. 2010)). The term merely describes circumstances in which a district court
“base[s] its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or render[s] a decision that cannot be located within




                                           4
sentence is procedurally unreasonable if the district court fails to
calculate (or improperly calculates) the Sentencing Guidelines range,
treats the Sentencing Guidelines as mandatory, fails to consider the [18
U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous
facts, or fails adequately to explain the chosen sentence.”4 We review
a district court’s interpretation of the Guidelines de novo and its
findings of fact for clear error.5

        A sentence is substantively unreasonable only if it “cannot be
located within the range of permissible decisions.”6 Generally, we will
only find substantive unreasonableness if the sentence is “shockingly
high, shockingly low, or otherwise unsupportable as a matter of law,”
such that allowing it to stand “would damage the administration of
justice.”7

       Finally, while we ordinarily review the imposition of conditions
of supervised release for abuse of discretion, we review for plain error
where, as here, the defendant had advance notice of the challenged


the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008)
(internal quotation marks and citation omitted).

       United States v. Sampson, 898 F.3d 287, 311 (2d Cir. 2018) (internal quotation
       4

marks omitted).
       5   United States v. Young, 910 F.3d 665, 668 (2d Cir. 2018).
       6United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal
quotation marks omitted).
       7 United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal
quotation marks omitted).




                                            5
condition and failed to object during sentencing.8 To establish plain
error, a defendant must demonstrate: “(1) error, (2) that is plain, and
(3) that affects substantial rights.”9 If all three conditions are met, we
will then exercise our discretion to rectify this forfeited error only if
“(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”10

   A. Procedural Reasonableness

       Bleau contends that the District Court procedurally erred by
failing to apply a two‐level reduction pursuant to § 2G2.2(b)(1) of the
Guidelines and by applying a four‐level enhancement pursuant to
§ 2G2.2(b)(4). Both arguments are without merit.

       1. Section 2G2.2(b)(1)

       Section 2G2.2(b)(1) allows for a two‐level reduction of a
defendant’s Guidelines offense level if the defendant’s “conduct was
limited to the receipt or solicitation of material involving the sexual
exploitation of a minor,” and the defendant “did not intend to traffic
in, or distribute, such material.”11 It is self‐evident from the Guideline
text that the requirements for § 2G2.2(b)(1) eligibility are in the


       8   See United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010).

       United States v. Boles, 914 F.3d 95, 107 (2d Cir. 2019) (internal quotation
       9

mark and brackets omitted).
       10   Id. (internal quotation mark and brackets omitted).
       11   U.S.S.G. § 2G2.2(b)(1).




                                             6
conjunctive,12 such that a defendant will not be eligible for a two‐level
reduction if, regardless of his intent, his conduct was “related to the
transfer of material involving the sexual exploitation of a minor.”13

       Here, Bleau does not dispute that his computer was equipped
with peer‐to‐peer file‐sharing software. Nor does he dispute that this
software enabled law enforcement to remotely gain access to his files
and download child pornography from his computer. Thus, regardless
of Bleau’s intent, his conduct was indisputably “related to” the transfer
and distribution of child pornography, and there was no error in the
District Court’s denial of a two‐level reduction in his offense level
pursuant to § 2G2.2(b)(1).

       2. Section 2G2.2(b)(4)

       Section 2G2.2(b)(4) of the Guidelines imposes a four‐level
enhancement if, inter alia, the offense involved material that portrays
“sadistic or masochistic conduct or other depictions of violence.”14 We
have defined the term “sadism” to include “‘the infliction of pain’ for
sexual gratification, ‘delight in physical or mental cruelty,’ and the use


       12  See United States v. Reingold, 731 F.3d 204, 228 (2d Cir. 2013); United States
v. Filippi, 705 F. App’x 16, 20 (2d Cir. 2017) (summary order) (“The requirements
for § 2G2.2(b)(1) eligibility . . . are in the conjunctive.”); see also United States v.
Abbring, 788 F.3d 565, 568 (6th Cir. 2015) (observing that § 2G2.2(b)(1)’s
“requirements are conjunctive” and that “distribution in the sense of transfer or
sharing (even without regard to knowledge)” precludes reduction).
       13   U.S.S.G. § 2G2.2 cmt. n.1 (defining the term “distribution”).
       14   Id. § 2G2.2(b)(4)(A).




                                            7
of ‘excessive cruelty.’”15 We have also explained that this enhancement
will apply where “(1) an image depicts sexual activity involving a
minor and (2) the depicted activity would have caused pain to the
minor.”16 We have not, however, expressly clarified whether the
depiction of mental, but not physical, cruelty suffices to trigger the
enhancement under § 2G2.2(b)(4). We confirm today that it does.17 We
note, however, that this enhancement has limitations and should not
be interpreted in such a way as to make it applicable in “routine” child



       15 United States v. Freeman, 578 F.3d 142, 145 (2d Cir. 2009) (quoting United
States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996), which itself quotes Webster’s Third
New International Dictionary 2254 (1986)).
       16   Freeman, 578 F.3d at 146.
       17 We hereby join several of our sister Courts of Appeal that have similarly
upheld the application of § 2G2.2(b)(4) to images that depict the infliction of mental
pain. See, e.g., United States v. Cover, 800 F.3d 275, 280 (6th Cir. 2015) (“Under our
precedent, there are two ways to show that an image is sadistic: (1) offer evidence
that the image depicts the sexual penetration of a prepubescent child . . . or (2) offer
evidence that the image depicts violence or the ‘infliction of pain,’ either mental or
physical.”); United States v. Lyckman, 235 F.3d 234, 239 (5th Cir. 2000) (“[I]t was
certainly reasonable for the district court to infer that the 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. Turchen, 187 F.3d 735, 739 (7th Cir. 1999) (“[S]adistic and masochistic conduct
includes sexual gratification which is purposefully degrading and humiliating,
conduct that causes mental suffering or psychological or emotional injury in the
victim.”); see also United States v. Johnson, 680 F. App’x 194, 198 (4th Cir. 2017)
(“Sadistic conduct is not limited to activity involving a rope, belt, whip, chains, or
other instruments, nor does it necessarily require violent conduct. Rather, images
portraying purposefully degrading and humiliating sexual gratification that causes
mental suffering or psychological or emotional injury in the victim may also qualify
as sadistic under the Guidelines.” (internal quotation marks and citations omitted)).




                                           8
pornography cases, which are awful in their own right but which may
not necessarily contain depictions of mental cruelty.

       Finally, we note that the analysis of whether an image is
“sadistic” under § 2G2.2(b)(4) is strictly objective.18 The district court
should not speculate on the subjective experience of the individual
depicted or of the particular defendant viewing the material.19 Rather,
the district court must determine only whether an outside viewer, as
he is watching, would perceive the depicted activity as causing
physical or mental pain to the minor during the course of the activity.20
Visible expressions of physical pain or mental suffering will generally
cause an objective viewer to believe that the depicted activity would
cause pain.

       As always, we urge district courts to “take seriously the broad
discretion they possess in fashioning sentences under § 2G2.2,”
recognizing that it is a unique Guideline that can “easily generate


       18   Freeman, 578 F.3d at 146.
       19 See id. (“A sentencing court need not determine whether the people
depicted in the image are deriving sexual pleasure from the infliction of pain; nor
need it gauge whether the viewer of the picture is likely to derive pleasure from the
fact that the image displays painful sexual acts. There is also no need for the
sentencing court to determine either why the defendant possessed the images or
whether he derived pleasure from them.”).
       20  See id. (“[T]he determination of whether an image is sadistic under
U.S.S.G. § 2G2.2(b)(4) is an objective one.”); see also United States v. Hotaling, 634
F.3d 725, 731 (2d Cir. 2011) (defining as “sadistic” conduct that includes the “likely
infliction of pain, delight in physical or mental cruelty, the use of excessive cruelty,
or other depictions of violence” (internal quotation marks omitted)).




                                           9
unreasonable results.”21 And, of course, while a district court “must
still give respectful consideration to the now‐advisory Guidelines,”22
it has the discretion to “tailor the sentence”23 as it sees fit, and to choose
what it deems an appropriate sentence irrespective of the Guidelines
range.24

                                     *       *       *

       Here, the videos that Bleau possessed portray a minor victim
performing sex acts upon herself while using a vibrator and other sex
toys. The District Court could not conclude one way or another
whether the depicted activity would have caused the minor victim to
experience physical pain.25 It did, however, find that the videos “depict
a child between the ages of 12 and 14 . . . being mentally degraded and
humiliated and harmed”26 and that “objectively, the child is being


       21   United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010).
       22   Pepper v. United States, 562 U.S. 476, 501 (2011) (internal quotation marks
omitted).
       23   Id. at 491.
       24See Molina‐Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (“The
sentencing process is particular to each defendant, of course, and a reviewing court
must consider the facts and circumstances of the case before it. The record in a case
may show, for example, that the district court thought the sentence it chose was
appropriate irrespective of the Guidelines range.” (internal citation omitted)).
       25 J.A. 120 (“I cannot say that there is necessarily physical pain associated
with the placement of the vibrators and the penis sex toy into the child’s vagina,
nor can I exclude that there is physical pain . . . .”).
       26   Id.




                                            10
degraded and humiliated having to use this vibrator and the male sex
toy.”27 It also found that one of the videos portrayed a child who
“appear[ed] to be quite nervous,” was “biting her fingernails,” “ha[d]
a look that [the District Court could] only describe as sadness,” and
“[a]t one point place[d] her hand over her face to partially obscure her
face.”28

       We have reviewed the disputed videos and, while we believe
this is a very close case, we cannot conclude that the District Court’s
findings were “clearly erroneous.”29 Accordingly, we affirm the
District Court’s application of a four‐level enhancement under
§ 2G2.2(b)(4) of the Guidelines.

   B. Substantive Reasonableness

       Having found no procedural error in the District Court’s
Guidelines          calculation,   we      now      address      the     substantive
reasonableness of Bleau’s sentence. Bleau received a 78‐month
sentence, a substantial downward variance from his advisory




       27   Id. at 121.
       28   Id. at 120.
       29  See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985) (“If
the district court’s account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.”).




                                          11
Guidelines range of 121 to 151 months. He also faced a mandatory
minimum five‐year term of imprisonment.30

       During the sentencing hearing, the District Court acknowledged
Bleau’s lack of criminal history, his steady employment history, and
his lack of known inappropriate contact with minors.31 It also
considered several mitigating factors, including the relatively low
number of child pornography videos in Bleau’s possession.32
Nevertheless, the District Court expressed considerable concern over
Bleau’s apparent social isolation, including his lack of recent
relationships, his long‐term residence at his sister and brother‐in‐law’s
house, and his prior employment at an elementary school.33 Bleau
contends that the District Court substantively erred by giving undue
consideration to these “social isolation” factors.

       The weight to be afforded any sentencing factor “is a matter
firmly committed to the discretion of the sentencing judge and is
beyond our review, as long as the sentence ultimately imposed is
reasonable.”34 During sentencing, a district court is statutorily
required to consider the need for the sentence “to protect the public


       30   See 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1).
       31   J.A. 122.
       32   Id. at 123.
       33   Id. at 122–23.
       34United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008) (internal
quotation marks omitted).




                                            12
from further crimes of the defendant.”35 A defendant’s sociability and
the degree of his integration in the community may be relevant to a
district court’s assessment of the defendant’s likelihood to reoffend
and the concomitant threat that the defendant poses to the public.
Accordingly, we conclude that Bleau’s below‐Guidelines, 78‐month
sentence—just 18 months above his mandatory minimum five‐year
sentence—was substantively reasonable under the circumstances.

   C. Special Condition of Supervised Release

      Bleau argues for the first time on appeal that the District Court
erred by imposing a special condition of supervised release
prohibiting him from having direct contact with minors without first
obtaining permission from his probation officer (“Special Condition
No. 2” or “special condition”). Bleau contends that this special
condition is not reasonably related to the nature and circumstances of
his offense and/or his personal history and characteristics. He further
asserts that this special condition involves a greater deprivation of
liberty than is reasonably necessary and that it is inconsistent with
pertinent policy statements issued by the Sentencing Commission.36

      While there may be reasonable arguments to support the
imposition of this special condition, we cannot conclude that, on the
present record, this condition is warranted. A district court must
ordinarily conduct “an individualized assessment” into the necessity


      35   18 U.S.C. § 3553(a)(2)(C).
      36   See 18 U.S.C. §§ 3553, 3563(b).




                                             13
of a special condition of supervised release.37 And, unless obvious
from the record, the district court must articulate its reasons for
imposing the special condition; its failure to do so is error.38

        Here, the District Court did not adequately explain why a
condition prohibiting direct contact with minors without pre‐approval
from the Probation Office was reasonably necessary to promote the
relevant 18 U.S.C. § 3553(a) factors. Nor is it obvious from the record
why such a condition was reasonably necessary. Bleau was not alleged
to have engaged in, or attempted to engage in, inappropriate contact
with minors, even while working at an elementary school.39 The record
is also devoid of any justification by the District Court for why this
condition imposes “no greater deprivation of liberty than is reasonably
necessary.”40

        The District Court’s failure to explain its rationale is plain error
because it is not obvious from the record why such a condition was
reasonably necessary. Thus, there is a “reasonable probability that
the error affected the outcome” of Bleau’s sentence.41 Accordingly,


        37   United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018).
        38   Id.

         See United States v. Jenkins, 854 F.3d 181, 194 (2d Cir. 2017) (vacating district
        39

court’s imposition of a condition barring direct contact with minors without
supervision because the defendant “never contacted or attempted to contact any
minors”).
        40   18 U.S.C. § 3583(d)(2).
        41   United States v. Marcus, 560 U.S. 258, 262 (2010).




                                              14
we remand the cause to the District Court for further consideration of
only Special Condition No. 2, with instructions that (1) the District
Court provide a statement of reasons if it decides to adhere to Special
Condition No. 2; or (2) if it does not so decide, to modify the sentence
to eliminate that special condition.42


                                   III. CONCLUSION

          To summarize, we hold as follows:

          (1) A defendant is not eligible for a two‐level reduction under
                § 2G2.2(b)(1) of the Guidelines where his use of peer‐to‐peer
                file‐sharing software enabled law enforcement officers to
                remotely access and download images of child pornography
                from his computer, regardless of whether he intended to
                distribute this content or not.

          (2) A district court may apply a four‐level enhancement under
                § 2G2.2(b)(4) of the Guidelines where an image depicts
                sexual activity involving a minor and the depicted activity
                would have objectively caused the depicted minor to
                experience either physical pain or mental cruelty.




          42   See United States v. McGeoch, 546 F. App’x 44, 49 (2d Cir. 2013) (summary
order).




                                             15
      (3) The District Court did not procedurally err in assessing a
         four‐level   enhancement      under   §   2G2.2(b)(4)   of   the
         Guidelines where the videos depict activity that would have
         caused a minor victim to experience mental degradation and
         harm.

      (4) The defendant’s below‐Guidelines sentence of 78 months’
         imprisonment was not substantively unreasonable.

      (5) The District Court plainly erred by failing to adequately
         justify its imposition of a special condition of supervised
         release that prohibited the defendant from having direct
         contact with minors without pre‐approval from the
         Probation Office.

      For the foregoing reasons, we AFFIRM the May 15, 2018
judgment of the District Court, but REMAND the cause for further
consideration only as to Special Condition No. 2, with instructions that
the District Court either state on the records its reasons for imposing
that special condition, or modify the sentence to eliminate that special
condition.




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