UNITED STATES of America, Plaintiff-Appellee v. Christopher J. COMEAUX, Defendant-Appellant.
No. 10-30234.
United States Court of Appeals, Fifth Circuit.
Sept. 2, 2011.
443 Fed. Appx. 743
Robin Elise Schulberg, Assistant Federal Public Defender, Federal Public Defender‘s Office, New Orleans, LA, for Defendant-Appellant.
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Martinez, federal prisoner # 22231-034, appeals the denial of his motion to compel the government to move to reduce his sentence under Rule 35 of the Federal Rules of Criminal Procedure. He argued that the government orally agreed to file such a motion for substantial assistance that he had provided after sentencing and that the government had refused to file the motion.
Neither party makes a jurisdictional challenge, but we must consider this court‘s and the district court‘s jurisdictional basis. See United States v. Key, 205 F.3d 773, 774 (5th Cir.2000). The district court has jurisdiction to correct or modify Martinez‘s sentence in limited circumstances under
Assuming arguendo that a promise was made, the district court has jurisdiction to review the government‘s refusal to file a Rule 35 motion only where the defendant has made a substantial threshold showing that the government has refused based on an “unconstitutional motive.” United States v. Sneed, 63 F.3d 381, 388 n. 6 (5th Cir.1995). Martinez did not allege or demonstrate any unconstitutional motive that might have permitted the court to review the refusal to file a Rule 35(b) motion. The motion to compel was thus “an unauthorized motion which the district court was without jurisdiction to entertain,” because the “motion and situation do not fit any provision” of the Rule. United States v. Early, 27 F.3d 140, 142 (5th Cir.1994). Accordingly, we AFFIRM on the alternative grounds that the district court lacked jurisdiction to grant the motion. See id.
Christopher Albert Aberle, Mandeville, LA, for Defendant-Appellant.
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
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
In calculating the offense level for count one, the Presentence Investigation Report (“PSR“) included a four point enhancement pursuant to
sadism does not always involve pain alone. It also involves humiliation. And even if one might think there was no physical 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
Comeaux also argues that all the factors making the act reprehensible have been fully addressed in the base offense level and the other specific characteristics enhancements. Comeaux‘s adjusted offense level was 44. The district court enhanced the base offense level of 32 by 2 levels pursuant to
AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee v. David Lester McFADDEN, Defendant-Appellant.
No. 10-30095.
United States Court of Appeals, Fifth Circuit.
Sept. 12, 2011.
See also, 2010 WL 1643583.