United States v. Marcus Cover
800 F.3d 275
| 6th Cir. | 2015Background
- In Sept. 2013 FBI downloaded multiple child‑pornography files from Marcus Cover’s computer; Cover pleaded guilty to distributing child pornography in violation of 18 U.S.C. § 2252(a)(2).
- Presentence calculation: guidelines range 262–327 months, incorporating enhancements for distribution, victim under 12, sadistic/violent material (+4), and pattern of activity (+5).
- District court imposed 240 months’ imprisonment and a supervised‑release condition prohibiting possession of cameras/photographic devices without probation approval.
- Cover appealed, challenging each enhancement, the sentence’s substantive reasonableness, and the camera restriction on supervised release.
- The Sixth Circuit found insufficient record support for the sadistic/violent‑material enhancement and remanded for resentencing or additional factfinding; other objections were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Distribution enhancement (§2G2.2(b)(3)(F)) | Use of file‑sharing equates to distribution; enhancement proper | Cover: lacked intent to distribute | Held: enhancement proper; knowing use of file‑sharing suffices (intent not required) |
| Victim‑under‑12 enhancement (§2G2.2(b)(2)) | PSR describes image of prepubescent child; enhancement proper | Cover: complaint images showed older children; denies PSR image | Held: rejected Cover’s bare denial; district court may rely on PSR absent some contradictory evidence |
| Sadistic/violent‑material enhancement (§2G2.2(b)(4)) | Govt: video depicting 11–13 year old engaged in oral/genital intercourse qualifies as sadistic | Cover: no indication of violence or sadism; record unclear on prepubescence | Held: remand required — record lacks sufficient evidence that images portray sadistic conduct; district court must apply Corp standard and/or make factual findings |
| Pattern‑of‑activity enhancement (§2G2.2(b)(5)) | PSR cites prior conviction and admissions of additional sexualized acts with minors | Cover: contests victim age in prior conviction | Held: district court did not err; Cover failed to produce evidence contradicting PSR |
| Supervised‑release camera restriction | Govt: restriction reasonably related to public protection and rehabilitation | Cover: overbroad; no evidence cameras used in offense | Held: condition not an abuse of discretion given extensive history and risk of reoffense |
Key Cases Cited
- United States v. Lang, 333 F.3d 678 (6th Cir.) (standard for when a defendant must produce evidence to create a factual dispute in PSR)
- United States v. Adkins, 729 F.3d 559 (6th Cir.) (defendant must produce "some evidence" beyond bare denial to dispute PSR)
- United States v. Corp, 668 F.3d 379 (6th Cir.) (standard for applying §2G2.2(b)(4): image must portray conduct that an objective viewer would perceive as inflicting pain, suffering, or humiliation)
- United States v. Groenendal, 557 F.3d 419 (6th Cir.) (penetration of a prepubescent child is inherently sadistic)
- United States v. Cooper, 739 F.3d 873 (6th Cir.) (guidelines may be triggered by judicial factfinding beyond charging affidavits)
- United States v. Carter, 463 F.3d 526 (6th Cir.) (standard for reviewing special conditions of supervised release)
- United States v. Brogdon, 503 F.3d 555 (6th Cir.) (reasonableness review of supervised‑release conditions)