     Case: 10-30234     Document: 00511592253         Page: 1     Date Filed: 09/02/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 2, 2011

                                       No. 10-30234                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

CHRISTOPHER J. COMEAUX,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 2:05-CR-20183-1


Before REAVLEY, GARZA, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant Christopher Comeaux was convicted by a jury on one count of
production of child pornography (“Count One”) and one count of possession of
child pornography (“Count Two”). When calculating Comeaux’s sentence, the
district court imposed several enhancements for specific offense characteristics,
including a four level enhancement pursuant to § 2G2.1(b)(4) of the Sentencing
Guidelines, to each count because the material portrayed “sadistic or masochistic
conduct or other depictions of violence.”            Comeaux appeals the four level

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-30234    Document: 00511592253      Page: 2    Date Filed: 09/02/2011



                                  No. 10-30234

enhancement to Count One, arguing that the depictions do not rise to the level
of sadistic, masochistic or violent. Judge Minaldi has answered that contention
and we affirm the judgment.
      We review a district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000). “The district
court’s findings of fact and application of the Sentencing Guidelines to the
specific facts of the case, however, are reviewed for clear error.” Id.
      Comeaux began a two-year pattern of sexual abuse of his step-daughter
when she was 8 years old, culminating in the videotape that is the basis for his
indictment and subsequent conviction by a jury for production of child
pornography, in violation of 18 U.S.C. § 2251(a). When his step-daughter was
approximately 10 years old, Comeaux video-taped himself (1) performing oral sex
on the child, including penetrating her with his tongue, (2) directing her to insert
her fingers into her vagina and use a vibrator, and (3) forcing her to perform oral
sex on him.
      In calculating the offense level for count one, the Presentence
Investigation Report (“PSR”) included a four point enhancement pursuant to
§ 2G2.1(b)(4) for “material that portrays sadistic or masochistic conduct or other
depictions of violence.” Comeaux objected. In a written ruling, the district court
overruled Comeaux’s objection, stating that the act of penetration of the victim
by the defendant’s tongue was sadistic.        Citing our definition of sadism,
“infliction of pain upon a love object as a means of obtaining sexual release,” the
court went on to add that the emotional damage and pain of the abuse suffered
by the child victim in this case was immeasurable. See Lyckman, 235 F.3d at
238–39 (defining sadism). At Comeaux’s sentencing, the district court again
addressed Comeaux’s objection, saying
      sadism does not always involve pain alone. It also involves
      humiliation. And even if one might think there was no physical


                                         2
   Case: 10-30234    Document: 00511592253      Page: 3    Date Filed: 09/02/2011



                                  No. 10-30234

      pain involved in this crime for which he was convicted, there is
      certainly the factor of humiliation which was made painfully evident
      to [the jury] during the trial when the victim testified from the
      witness stand, and this is something I will never forget.
      On appeal, Comeaux argues that the district court was wrong to apply the
enhancement because (1) the district court incorrectly applied the “penetrative
sex” rule to an act that was not inherently physically painful, and (2) application
of the enhancement for the acts depicted is duplicative because all of the factors
that make the act reprehensible are fully accounted for in both the base offense
level and the other specific offense characteristics applied by the district court.
We disagree.
      The so-called penetrative sex rule is not a rule, but rather an amalgam of
cases that attempt to determine in an ad hoc manner what types of acts would
qualify as sadistic or violent. In United States v. Lyckman, we agreed with the
Second, Seventh, and Eleventh Circuits that sexual penetration of a child by an
adult male likely causes pain and, therefore, qualifies as sadistic or violent
within the meaning of the guideline. 235 F.3d at 238–39. Comeaux argues that
because he penetrated his step-daughter with his tongue, he did not cause her
pain and, thus, did not commit a sadistic or violent act. We need not descend
into the abyss of deciding where or whether a line could be drawn delineating
which types of penetration are per se sadistic or violent because even absent the
depiction of penetration, the district court correctly applied the enhancement.
      Violent acts or acts that cause physical pain to a child easily fall within the
plain language of the guideline. However, although acts that inflict pain upon
the child victim are sadistic and violent per se within the meaning of the
guidelines, an absence of physical pain is not per se outside the ambit of the
enhancement for sadistic acts under § 2G2.1(b)(4). “[S]adism . . . do[es] not
necessarily require violent conduct.” United States v. Turchen, 187 F.3d 735,
739 (7th Cir. 1999). “[S]adistic and masochistic conduct includes sexual

                                         3
   Case: 10-30234     Document: 00511592253    Page: 4   Date Filed: 09/02/2011



                                  No. 10-30234

gratification which is purposefully degrading and humiliating, conduct that
causes mental suffering or psychological or emotional injury in the victim.” Id.
In fact, many depictions which are unarguably sadistic in nature do not involve
violence or pain, but rather subjugation and humiliation. See, e.g., United States
v. Wolk, 337 F.3d 997, 1007–08 (8th Cir. 2003) (pictures of young girl in a collar
were sadistic); Turchen, 187 F.3d at 740 (picture of adult males urinating on the
face of a grimacing child were sadistic).      In Lyckman, we held that the
photographs at issue depicted conduct that “caused the children pain, physical
or emotional or both.” Id. at 239 (emphasis added). And dictionaries define
sadism to include mental and emotional pain.          See e.g., WEBSTER’S NEW
COLLEGIATE DICTIONARY 1018 (1977) (“[A] sexual perversion in which
gratification is obtained by infliction of physical or mental pain on others.”).
Infliction of emotional pain may sometimes be classified as sadistic for the
guideline.
      This is not to say that any depiction that may have caused emotional
trauma to the child victim is per se sadistic. 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 for depictions of sadistic or
masochistic conduct or other depictions of violence may apply. In this case, we
agree with the district court that the enhancement does apply. The district court
observed the child victim’s testimony during a jury trial and made a factual
finding on the record at sentencing that the child victim had been humiliated.
Comeaux has not argued that the district court’s finding was clearly erroneous.
Because we hold that emotional trauma such as humiliation or debasement may
be sadistic, the district court did not err in applying the enhancement to the
facts in this case.
      Comeaux also argues that all the factors making the act reprehensible
have been fully addressed in the base offense level and the other specific

                                        4
   Case: 10-30234   Document: 00511592253      Page: 5   Date Filed: 09/02/2011



                                  No. 10-30234

characteristics enhancements. Comeaux’s adjusted offense level was 44. The
district court enhanced the base offense level of 32 by 2 levels pursuant to §
2G2.1(b)(1)(A) because the victim was less than 12 years old; 2 levels pursuant
to § 2G2.1(b)(2)(A) because the offense involved the commission of a sexual act
or sexual contact; 2 levels pursuant to § 2G2.1(b)(5) because the defendant was
the child victim’s stepfather; and 4 levels pursuant to § 2G2.1(b)(4) because the
acts depicted were sadistic for a total of 44. Only the increase for sadistic harm
to which Comeaux subjected his step-daughter accounts for the four level
enhancement.
      AFFIRMED.




                                        5
