Case Information
*1 Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
Vanessa Cloud appeals the application of the “sadism” enhancement under U.S.S.G. § 2G2.1(b)(4) to her offense of aiding and abetting sexual exploitation of a child. Cloud contends that the sadism enhancement requires a finding that she “purposefully” intended to humiliate or degrade her son. Because the district court did not clearly err in making the factual determination that Cloud’s conduct was sadistic, we AFFIRM.
I. Vanessa Cloud confessed to Child Protective Services that she had been sexually molesting her then seven-year-old son, John Doe. Cloud admitted that she performed oral sex on Doe; that Doe had sucked her breast and penetrated Cloud’s vagina with his sexual organ and fist; and that Doe’s father had videotaped the activity. When Doe was eight years old, he was interviewed and said that he had had sexual intercourse with his mother and he had been made to do “sexual things.” Cloud’s cell phone was seized and found to contain five videos—all showing sexual activity between Cloud and John Doe with both giggling during oral sex.
Cloud pleaded guilty to aiding and abetting the sexual exploitation of a child for the purpose of producing child pornography, in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 2. The Presentence Report applied the four-point section 2G2.1(b)(4) enhancement for an offense that involved material portraying sadistic or masochistic conduct or other depictions of violence. Cloud objected on the ground that humiliation “was not the purpose behind the material being made the way it was made.” She also argued that her conduct lacked the traditional hallmarks of sadism, and that her conduct didn’t “rise to a level of humiliation” under the guidelines. The government agreed with Cloud and added that in this case, unlike others in which the enhancement had been applied, it was the mother rather than the child who was penetrated. In response to Cloud’s objections, the probation office stated that the sadism enhancement was appropriate because “the victim was debased, causing mental pain, for the purpose of sexually gratifying the defendant.” The district court rejected Cloud’s objection and the government’s concurrence stating:
This law protects all children. There is lifelong humiliation and degradation to these children from the behavior in Count One. A mother imposing upon a seven-year-old child an act that she did of oral sex and then attempting an act of intercourse and then also achieving penetration of herself by another one of his limbs humiliates and degrades children. You cannot take the definition of what would humiliate and degrade an adult and apply it to children to the same degree. Children are more sensitive, have less defenses built into themselves, a greater trust of adults. Their relationship is totally different. How John Doe will get over those memories is John Doe's struggle.
The district court then adopted the PSR “as written.”
II.
Whether the district court correctly interpreted the Sentencing
Guidelines is a question of law that we review
de novo
.
United States v.
Lyckman
,
III.
Section 2G2.1(b)(4) applies when the “offense involved material that
portrays sadistic or masochistic conduct or other depictions of violence.”
U.S.S.G. § 2G2.1(b)(4). The Guidelines do not define the term “sadistic.” We
thus have interpreted “sadistic conduct” by looking to Webster’s definition of
sadism — “the infliction of pain upon a love object as a means of obtaining
sexual release,” the “delight in physical or mental cruelty,” and the use of
“excessive cruelty.”
Lyckman
,
Cloud argues that our case law requires a specific finding that the
defendant engaged in the conduct for the purpose of degrading and humiliating
the victim, a finding that she contends the district court did not make. She
relies on the following sentence in
Comeaux
: “sadistic and masochistic conduct
includes sexual gratification which
is purposefully degrading and
humiliating.” 445 F. App’x at 745. This gives too much effect to a single
sentence in an unpublished opinion that did not purport to describe the only
situation to which the enhancement applies, especially when the holding in
that same opinion refers not to intent but to effect: “We hold only that where,
as here, a district court finds that the child victim depicted in the child
pornography at issue was humiliated or debased, the enhancement . . . may
apply.”
Id
. at 746. That effect on the victim has often been the inquiry in our
case law.
See Lyckman
,
Because the district court was not required to separately find that Cloud “purposefully” intended to humiliate or degrade John Doe through her conduct, we only need review for clear error its finding that the conduct portrayed was in fact “humiliating and degrading” for the seven-year-old victim.
That is not a difficult determination. The district court correctly
recognized that application of the sadism enhancement to cases involving
young victims is not limited to the situation when an adult male penetrates a
young girl.
Lyckman
,
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] The government argues that Cloud’s objections in the district court were insufficient to alert the court to Cloud’s argument on appeal. An objection must be sufficiently specific to alert the court to the nature of the error argued on appeal. United States v. Neal , 578 F.3d 270, 272 (5th Cir. 2009). The record reflects that Cloud’s objections, insofar as they centered on whether the material depicted sadistic conduct for purposes of § 2G2.1(b)(4), sufficiently alerted the district court to the argument that Cloud raises on appeal.