United States v. Calvin Nesmith
866 F.3d 677
| 5th Cir. | 2017Background
- Defendant Calvin Nesmith pleaded guilty to sexual exploitation of a minor after agents found an explicit image of Nesmith and the 14‑year‑old daughter (Doe) of his girlfriend.
- The image at issue showed Nesmith with an erect penis on the minor’s lips; Doe was asleep and unaware when the picture was taken.
- The PSR recommended a 4‑level enhancement under U.S.S.G. § 2G2.1(b)(4) for material that "portrays sadistic or masochistic conduct or other depictions of violence."
- Nesmith objected, arguing the image did not depict conduct that inflicted contemporaneous physical or emotional pain; the Government argued later awareness and resulting humiliation sufficed.
- The district court applied the sadism enhancement and sentenced Nesmith to 360 months; Nesmith appealed challenging the enhancement’s application.
- The Fifth Circuit vacated and remanded, holding the sadism enhancement requires an objective showing that the image depicts conduct causing contemporaneous physical or emotional pain.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Nesmith) | Held |
|---|---|---|---|
| Standard of review for appellate challenge to guideline enhancement | Apply plain‑error if issue on appeal differs from district objection | De novo because district objection preserved the gist of the argument | De novo review applied (objection sufficiently raised the issue) |
| Whether sadism inquiry is subjective (intent/effect on victim) or objective (appearance to observer) | Enhancement can be applied based on victim's later emotional harm | Objective: focus on what the image portrays, not later reactions | Objective standard governs the inquiry |
| Whether sadism enhancement requires contemporaneous infliction of pain | Enhancement may apply if victim later suffers emotional harm upon learning | Enhancement should require the image depict conduct causing contemporaneous physical or emotional pain | Enhancement requires contemporaneous pain; later discovery alone insufficient |
| Application to facts where victim was asleep and unaware when image taken | Government argued later awareness produced humiliation sufficient to support enhancement | Nesmith argued no contemporaneous pain depicted so enhancement inapplicable | Enhancement did not apply to this image; remand for resentencing |
Key Cases Cited
- United States v. Garcia‑Perez, 779 F.3d 278 (5th Cir. 2015) (standard for appellate review of sentencing objections)
- United States v. Medina‑Anicacio, 325 F.3d 638 (5th Cir. 2003) (preservation and review principles for sentencing objections)
- United States v. Ocana, 204 F.3d 585 (5th Cir. 2000) (objection specificity requirement to preserve appellate review)
- United States v. Neal, 578 F.3d 270 (5th Cir. 2009) (need for specific objections to alert district court)
- United States v. Hernandez‑Montes, 831 F.3d 284 (5th Cir. 2015) (evidence and argument necessity at sentencing)
- United States v. Lyckman, 235 F.3d 234 (5th Cir. 2000) (definition of sadism and interpretive guidance for § 2G2.1(b)(4))
- United States v. Corp, 668 F.3d 379 (6th Cir. 2012) (holding sadism determination is objective)
- United States v. Maurer, 639 F.3d 72 (3d Cir. 2011) (objective inquiry for sadistic depiction)
- United States v. Freeman, 578 F.3d 142 (2d Cir. 2009) (same)
- United States v. Raplinger, 555 F.3d 687 (8th Cir. 2009) (enhancement can apply even if pictured subjects were not actually in pain)
- United States v. Johnson, 784 F.3d 1070 (7th Cir. 2015) (image evaluated by whether an objective observer would find it sadistic)