UNITED STATES of America, Plaintiff-Appellee, v. Jermaine L. JOHNSON, Defendant-Appellant.
No. 14-2240.
United States Court of Appeals, Seventh Circuit.
Decided April 20, 2015.
require remand, we are not called upon today to weigh in on the standard of review. We simply flag this issue, as we did in Kappes, as one that is likely to arise in subsequent cases.
In sum, the conditions of supervised release must be imposed to fit the particular circumstances of the defendant being sentenced. In addition, they must be defined adequately еnough to put defendants on notice as to what behavior is proscribed, and they must involve no greater deprivation of liberty than is reasonably necessary.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s imposition of the 4-level “in connection with another felony” enhancement and its denial of the 3-level acceptance-of-responsibility reduction. We AFFIRM the district court’s imposition of a consecutive sentence. And we VACATE the conditions of supervised release and REMAND that portion of Sandidge’s sentence for resentencing consistent with this opinion.
I.
While Johnson was on probation for a previous conviction for second degree assault of a child in Waukesha County, Wisconsin, his probation officers Jacob Leannais and Rebecca Lesada discovered evidence suggesting that he may have reoffended. Specifically, Agent Leannais found over 3,000 photos on Johnson’s phone. Most of the photos were sexually explicit and Leannais believed several of the individuals piсtured may have been minors. Agent Lesada had also received a tip from an individual who reported that Johnson had a Facebook account and was posting ads on Craigslist. Based on this information, Leannais and Lesada contacted Special Agent Eric Szatkowski from the Wisconsin Department of Justice to assist with their investigation of Johnson. Lesada then contacted Johnson and directed him to report to her office.
Although initially Johnson denied having violated his probation, he eventually admitted that he had a Facebook account, four e-mail accounts, and that he owned the phone with the sexually explicit photos. Subsequent searches of Johnson’s car and his apartment led to the discovery of a cell phone, camera, and flash drive. These contained images of two minor females—identified as Minor Female A and Minor Female B—that Johnson had met on MySpace and Facebook.
Johnson connected with Minor Female A in July 2009, when she had just turned twelve years old. Johnson identified himself on MySpace with the username “DA phоtographer.” After Johnson chatted online through MySpace with Minor Female A, he added her as a “friend” and they exchanged telephone numbers and photos of one another. Johnson told the girl that
Johnson also persuaded Minor Female A to meet him. He picked her up from the bus stop at school and took her to a hotel in Milwaukee where the two engaged in various sex acts, including anal and vaginal intercourse. Agents rеcovered twenty-one images of Minor Female A on a thumb drive belonging to Johnson and on a personal computer hard drive that belonged to Johnson’s girlfriend at the time.
Minor Female B was a tenth-grade student in Milwaukee who was contacted by Johnson on Facebook. He sent her a friend request and suggested that he take pictures of her at the Milwaukеe lakefront. He then picked her up several times from her home and took photographs of her both at the lakefront and, ironically, at the group home for sex offenders where he was living at the time. Agents recovered over 100 photographs from Johnson’s cell phone in a file labeled with Minor Female B’s name. Twelve of these images аre naked photographs of the minor focusing primarily on her genitals.
Johnson ultimately pleaded guilty to one count of production of child pornography and one count of possession of child pornography. Pursuant to the plea agreement, the government dismissed the remaining count of the indictment for production of child pornograрhy involving Minor Female B. Based on a total offense level of 36 and a criminal history category of III, the presentence investigation report (“PSR”) calculated an advisory guidelines range of 235 to 293 months. This calculation included a four-level upward adjustment under
The probation officer who prepared the PSR recounted that Johnson, told the victim to get a screwdriver and insert the handle into her vagina. At the preliminary hearing in Waukesha County, however, the victim testified only that Johnson asked her to take pictures of herself and also asked her to “do certain things” in some of the photographs. When asked if Johnson specifically asked her to take pictures “depicting any kind of objects” the victim testified, “I did [that] on my own.” The district court did not resolve the factual discrepancy as to whether the victim took the pictures with the screwdriver and highlighter at Johnson’s request or on her own initiative. Instead, the court noted that her testimony at the preliminary hearing should be considered in the “context of a courtroom setting where the Defendant was present.” The court further opined that it was questionable whether a twelve-year-old would be “of a mind to be clear” as to what she had done voluntarily. The court ultimately deemed it irrelevant
Johnson argued at sentencing that as distasteful as the photograph was, it did not rise to the level of a sadistic, masochistic, or violent depiction under the relevant case law, which generally considered circumstances where the adjustment more obviously applied, such as images depicting bondage or the obvious infliction of pain. Here the district court accepted as a factual matter that the screwdriver “was not a size sufficient to cause pain.” The court then noted that physical pain was not required for the application of
The court sentenced Johnson to 240 months’ imprisonment, a sentence at the low end of the 235 to 293-month range. The court also imposed supervised release for life. Johnson appeals, challenging only the court’s application of
II.
Johnson argues that the district court erred by applying
We review the district court’s interpretation of the sentencing guidelines de novo, and its findings of fact for clear error. See, e.g., United States v. Fletcher, 763 F.3d 711, 715 (7th Cir. 2014). Section
F.3d 735, 739 (7th Cir. 1999). Undefined guideline terms that do not have a cоmmon law meaning are given their ordinary meaning. Id. The district court relied on Turchen, where we recognized that the ordinary dictionary definitions of sadism and masochism make clear that violence and physical pain and suffering are not a prerequisite for sadistic or masochistic conduct. Id. (Noting that sadistic and masochistic conduct includes “sexual gratification which is purposefully degrading and humiliating” and that “violence is not necessarily found in such conduct.”); see also United States v. Raplinger, 555 F.3d 687, 694 (8th Cir. 2009) (“[Section
After noting that sadistic and masochistic conduct may include purposefully humiliating or degrading depictions, the district court focusеd on whether this image depicted an act that would be “humiliating and degrading to a just-turned 12 year old.” Because the court concluded that the screwdriver did not necessarily cause the victim pain, it focused solely on whether the depiction was humiliating and degrading. In concluding that it was, the district court focused on the victim’s statement that she felt “stupid” about taking the pictures Johnson requested. The district court extrapolated from the victim’s statement that it was “a degradation” and “a humiliation” because she was used and persuaded to take the photographs.
Johnson asserts that by improperly focusing on the victim’s subjective emotions instead of whether the image would be objectively considered degrading or humiliating to the point that it would be recognized as sadistic, the court’s analysis would subject almost any defendant who had created child pornography to the upward adjustment.
We agree with Johnson that given the language of the guideline, the proper question is whether the image itself would be objectively considered sadistic. See Raplinger, 555 F.3d at 695 (noting counsel’s conсession that “the guideline applies to what the material portrays rather than what the victim experiences”). Once physical pain or suffering is taken from the equation, it would be a slippery slope if courts inquired in each instance whether a particular victim felt degraded. Indeed, presumably any victim of child pornography has been humiliated and degraded to an extent. We thus focus on whether a depiction of a young girl inserting the handle of a screwdriver into her vagina would be considered objectively sadistic in nature.
Given the age of the victim and the potentially violent connotations readily associated with a workshop tool such as a screwdriver, we conclude that the district court did not err by imposing the four-level increase under
Notwithstanding this, we agrеe that on these facts the image connotes violence of a sort that would likely appeal to a sadistic audience. See United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007) (“It follows that an image’s portrayal of sadistic conduct includes portrayal of conduct a viewer would likely think is causing pain to a depicted young child.”). In short, the district court’s conclusion that the victim may not hаve suffered any pain and the fact that she inserted the screwdriver herself do not preclude a finding that the image is nonetheless sadistic or violent in nature. In addition to its conclusion that the image depicted a degrading and humiliating act, the district court specifically found that Johnson “persuaded, induced, enticed, and coerced” the victim to take these photographs and he succeeded because he was very “clever,” “careful,” and “calculating.” These factual findings support the notion that Minor Female A was not inserting a screwdriver into her vagina for her own pleasure, nor would she have conceived of doing such a thing had she not been manipulated and coerced by Johnsоn.
We thus conclude that an image of a young girl inserting a screwdriver into her vagina connotes a degree of potential pain and violence such that the upward adjustment under
tain
III.
For the foregoing reasons we AFFIRM the judgment of the district court.