United States v. Osuba, 67 F.4th 56

Background

In 2018, Matthew Osuba recorded videos of himself masturbating near a fully clothed, sleeping 17‑year‑old in his girlfriend’s living room and sent the videos via Kik Messenger.
On Kik he also described sexually abusing his four‑year‑old daughter ("E") and exchanged child‑pornography images; law enforcement later found additional child‑pornography on his devices.
Osuba was convicted by a jury of production of child pornography (18 U.S.C. § 2251(a)), distribution and possession of child pornography (18 U.S.C. § 2252A).
The PSR and district court found a pattern of prohibited sexual conduct (including abuse of E) and applied a five‑level enhancement under U.S.S.G. § 4B1.5(b)(1); the court sentenced Osuba to consecutive terms totaling 840 months (70 years).
On appeal Osuba challenged (1) sufficiency of the evidence for the production count (whether the minor “engaged” in sexually explicit conduct), (2) the § 4B1.5 enhancement and underlying factual findings, and (3) substantive reasonableness of his sentence. The Second Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency: whether § 2251(a) requires the minor to "engage" and whether the minor engaged here	Gov't: statute requires minor to engage; minor can be a passive participant as the intended recipient; facts showed defendant directed conduct at the minor and filmed her as a passive object	Osuba: only he engaged in sexually explicit conduct (not the minor); clothed sleeping minor cannot be said to have "engaged"	Held: § 2251(a) requires the minor to engage (active or passive). On these facts a rational jury could find the minor passively engaged; conviction affirmed.
Sentencing enhancement (§ 4B1.5(b)(1)): whether district court clearly erred finding a pattern of prohibited sexual conduct	Gov't: PSR evidence, Kik admissions, victim and sibling interviews, other device evidence support finding of repeated abuse including of E	Osuba: factual findings (abuse of E) were erroneous or unsupported; PSR errors and no evidentiary hearing	Held: district court did not clearly err; preponderance‑of‑evidence supported finding that Osuba abused E; enhancement affirmed.
Procedural: failure to specify statutes for "prohibited sexual conduct" and denial of evidentiary hearing	Gov't: underlying conduct was plainly criminal under New York law; omission did not affect substantial rights; no hearing required where defendant had opportunity to rebut	Osuba: district court failed to identify statutory offenses (Phillips) and should have held Fatico hearing	Held: plain‑error review fails; omission did not affect outcome because conduct was clearly prohibited; no reversal.
Substantive reasonableness of 70‑year sentence	Gov't: within‑Guidelines, justified by danger to children, pattern of conduct, need for deterrence and public protection	Osuba: sentence is shockingly high compared to other cases and disproportionate	Held: sentence is within permissible range and not substantively unreasonable; affirmed.

Key Cases Cited

United States v. Howard, 968 F.3d 717 (7th Cir. 2020) (interpreting § 2251(a) and addressing whether minor must engage in the conduct)
United States v. Finley, 726 F.3d 483 (3d Cir. 2013) (holding a sleeping child may be passively involved and thus "used" under § 2251)
United States v. Lohse, 797 F.3d 515 (8th Cir. 2015) (recognizing a sleeping child can be treated as a sexual object and satisfy § 2251)
United States v. Brown, 843 F.3d 74 (2d Cir. 2016) (upholding lengthy sentence in production/possession child‑pornography case)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
McDonnell v. United States, 579 U.S. 550 (2016) (noscitur a sociis canon discussed in statutory interpretation)
United States v. Gershman, 31 F.4th 80 (2d Cir. 2022) (de novo review framework for sufficiency challenges)