United States v. Jermaine Johnson
2015 U.S. App. LEXIS 6500
| 7th Cir. | 2015Background
- Johnson (age 33) pleaded guilty to production and possession of child pornography involving two minor females; sentencing dispute concerned whether photos of a just-turned-12 victim inserting objects into her vagina were "sadistic or masochistic" under U.S.S.G. § 2G2.1(b)(4).
- Investigators recovered thousands of sexually explicit images from Johnson’s devices; images of Minor Female A showed insertion of a highlighter and screwdriver handle and sexual activity; Minor Female B’s images were also recovered but one production count involving her was dismissed under the plea.
- The PSR recommended a 4-level upward adjustment under § 2G2.1(b)(4) based on the object-insertion photos; district court adopted the enhancement, finding the image humiliating/degrading and noting Johnson’s persuasion and coercion of the victim.
- At sentencing Johnson argued the photograph did not depict sadistic/masochistic or violent conduct and that the court improperly relied on the victim’s subjective feeling of being "stupid."
- The district court imposed a 240-month sentence (within the guideline range) and life supervised release; Johnson appealed only the § 2G2.1(b)(4) enhancement.
Issues
| Issue | Johnson's Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Whether § 2G2.1(b)(4) applies to image of a 12-year-old inserting a screwdriver handle | Photo is distasteful but not objectively sadistic/masochistic or violent; relying on victim’s feelings improperly broadens the guideline | Image connotes violence/sadistic appeal given foreign-object insertion and Johnson’s manipulation/coercion | Affirmed: enhancement appropriate; image objectively connotes violence/sadistic conduct |
| Whether victim’s subjective testimony of feeling "stupid" is required to find sadistic/masochistic conduct | Court erred by focusing on victim’s subjective state—almost any child-porn victim would feel degraded | Proper inquiry is objective portrayal; subjective feeling not required but court may consider context and coercion | Court agreed objective standard controls; nonetheless enhancement supported on objective grounds |
| Whether lack of physical pain or self-infliction precludes § 2G2.1(b)(4) | No pain and apparent self-penetration weigh against finding sadistic/violent conduct | Pain not required; foreign-object insertion can reasonably connote violence or appeal to sadistic viewers | Held: physical pain not necessary; image sufficiently connotes potential pain/violence |
| Standard of review for guideline interpretation/facts | N/A (procedural) | N/A | Legal interpretation de novo; factual findings for clear error; district court’s factual findings upheld |
Key Cases Cited
- United States v. Turchen, 187 F.3d 735 (7th Cir. 1999) (defines sadistic/masochistic conduct to include purposefully degrading sexual conduct; violence or pain not always required)
- United States v. Raplinger, 555 F.3d 687 (8th Cir. 2009) (§ 2G2.1(b)(4) applies even if pictured subjects were not actually in pain)
- United States v. Starr, 533 F.3d 985 (8th Cir. 2008) (upheld masochism enhancement for depictions including penetration by a foreign object)
- United States v. Parker, 267 F.3d 839 (8th Cir. 2001) (images showing sexual penetration of a minor by a foreign object can qualify as violent)
- United States v. Hoey, 508 F.3d 687 (1st Cir. 2007) (an image portraying conduct a viewer would likely think causes pain to a child can portray sadistic conduct)
- United States v. Fletcher, 763 F.3d 711 (7th Cir. 2014) (standard: guideline interpretation reviewed de novo; factual findings for clear error)