IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-40982
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOYD WILLIAM LYCKMAN,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
___________________________________________________
December 7, 2000
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Appellant-Defendant Lyckman, a former Texas high school coach
and teacher, pleaded guilty to three counts of distributing or
receiving child pornography. Lyckman challenges the district
court’s enhancement of his sentence for offenses involving (1)
material that depicts sadistic, masochistic, or other violent
conduct, and (2) the distribution of child pornography. Lyckman
also objects to the district court’s refusal to “group” his counts
of conviction. Finding no error, we affirm.
I.
Facts and Proceedings
Lyckman came to the attention of authorities when the parents
of a 15-year-old Corpus Christi girl whom he had contacted in a
computer “chat room” complained to the police. Following this
episode, police officers went to Lyckman’s residence, where he
consented to a search of his computer and his house. Child
pornography was found on the hard drive of Lyckman’s computer.
Through America Online, Lyckman’s internet service provider,
investigators discovered that Lyckman had transmitted by computer
a photographic image of a 12-year-old girl being sexually assaulted
by an adult. Investigators also found in Lyckman’s computer two
images of prepubescent girls having sex with adult males. More
specifically, each of the three images depicts the male sexual
organ partially inserted into the sexual organ of a prepubescent
female.
Lyckman was indicted with two counts of distributing child
pornography involving the sexual exploitation of minors and five
counts of receiving such material. Pursuant to a written
agreement, Lyckman pleaded guilty to one count of distributing
child pornography and two counts of receiving the same. The
government agreed to recommend that Lyckman be given a Sentencing
Guidelines reduction for acceptance of responsibility and that he
be sentenced at the lowest end of the applicable imprisonment
range.
Lyckman’s presentence report (“PSR”) recommended a base
2
offense level of 17 as to all three counts.1 The PSR also
recommended the following increases applicable to all three counts:
two levels because the material involved a prepubescent minor;2
five levels because the offense involved distribution;3 four levels
because the material depicted violence;4 and two levels because a
computer was used to transmit the material.5 Lyckman’s adjusted
offense level as to each count was 30; after a multiple-count
adjustment of three levels,6 he was left with a combined adjusted
offense level of 33. Lyckman was entitled to a three-level
reduction for acceptance of responsibility,7 which yielded a net
offense level of 30. This level and his Category I criminal
history score resulted in a guideline imprisonment range of 97 to
121 months.
Lyckman made the following objections to the PSR: (1) The
increase based on material depicting sadism or violence was not
supported by the evidence; (2) the increase for distribution was
improper because “distribution” was defined as relating to
1
See U.S.S.G. § 2G2.2(a).
2
See id. at § 2G2.2(b)(1).
3
See id. at § 2G2.2(b)(2).
4
See id. at § 2G2.2(b)(3).
5
See id. at § 2G2.2(b)(5).
6
See id. at § 3D1.4.
7
See id. at § 3E1.1.
3
“pecuniary gain,” whereas he had only traded images with others via
the internet; and (3) the three counts to which he pleaded guilty
were “closely related” and should have been grouped together.8
At the sentencing hearing, the district court overruled in
short order most of Lyckman’s objections to the PSR.9
Specifically, the district court concluded that within the meaning
of § 2G2.2(b)(3), which applies to material “that portrays sadistic
or masochistic conduct or other depictions of violence,” the term
“violence” encompasses the sexual penetration of a child by an
adult. In reaching this conclusion, the district court relied on
the testimony of Officer Robert Lee McFarland, a Corpus Christi
police officer experienced in the investigation of child
pornography on the internet, that a photograph supporting Count One
of the indictment depicted the sexual assault of a minor under
Texas law and that the child depicted was under the age of 12.
Officer McFarland was also of the opinion that the photograph
depicted violence done to a child. The district court further
concluded that among the photographs supporting Counts Three and
Four of the indictment, the images portraying the physical
penetration of children by adult males were depictions of violence
within the meaning of § 2G2.2(b)(3). The district court sentenced
8
See id. at § 3D1.2.
9
The district court did agree with the Probation Office that
the five-level enhancement for distribution was not appropriate for
the receipt offenses, and accordingly reduced Lyckman’s guideline
imprisonment range to 87 to 108 months.
4
Lyckman to concurrent 95-month prison terms and three-year terms of
supervised release on each of the counts, and fined him $1000.
Lyckman now appeals that sentence.
II.
Analysis
A. Standard of Review
Whether the district court correctly interpreted the
Sentencing Guidelines is a question of law that we review de novo.10
We also review de novo the district court’s application of the
Sentencing Guidelines grouping rule.11 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.12
B. Issues
1. Enhancement for Offenses Involving Sadistic or Violent Conduct
Lyckman contends that the district court erred in applying §
2G2.2(b)(3) because the photographs at issue, which depict adult
males engaging in vaginal intercourse with prepubescent females,
are not “sadistic or violent” within the meaning of the guideline.
Neither the Sentencing Guidelines nor this court has defined either
“sadistic conduct” or “depictions of violence” within the meaning
10
United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998).
11
See Norris, 159 F.3d at 929.
12
Id.
5
of § 2G2.2(b)(3). Therefore, we must begin with the text of the
guideline and the plain meaning of its terms.13 In construing these
terms, we must give them their ordinary meaning,14 bearing in mind
the important distinction between how a word can be used and how it
ordinarily is used.15 Likewise, we must heed the familiar caveat
that “the meaning of a word cannot be determined in isolation, but
must be drawn from the context in which it is used.”16
Webster’s Third New International Dictionary defines
“violence” primarily as the “exertion of any physical force so as
to injure or abuse.”17 Similarly, Black’s Law Dictionary defines
“violence” as “[1] [u]njust or unwarranted exercise of force,
usually with the accompaniment of vehemence, outrage or fury. . .
. [2] Physical force unlawfully exercised; abuse of force; that
force which is employed against common right, against the laws, and
against public liberty. . . . [3] The exertion of any physical
force so as to injure, damage or abuse.”18
These definitions make clear that the term “violence,” as
13
See Norris, 159 F.3d at 929.
14
See United States v. Chapman, 500 U.S. 453, 461-62 (1991).
15
See Smith v. United States, 508 U.S. 223, 242 (Scalia, J.,
dissenting).
16
See Deal v. United States, 508 U.S. 129, 132 (1993).
17
Webster’s Third New International Dictionary (unabridged)
2554 (1986).
18
Black’s Law Dictionary 1570 (6th ed. 1990).
6
ordinarily used, is not limited to activity involving “whips,
chains, beatings . . . brutality or excessive cruelty,” as Lyckman
would restrict it. Given the ordinary meaning of “violence” as
“the exertion of any physical force so as to injure, damage or
abuse,” it is difficult to imagine that the sexual penetration of
a prepubescent female by an adult male would not qualify as
“violence.”
We must consider the term “violence” not in isolation, but in
the context in which it is used. The venerable principle of
ejusdem generis warns against expansive interpretations of broad
language —— here, the term “other depictions of violence” —— that
immediately follows narrow and specific terms —— here, the terms
“sadistic or masochistic conduct,”19 and counsels us to construe the
broad in light of the narrow. Therefore, the general term “other
depictions of violence” casts its net no wider than necessary to
capture images akin to those included by § 2G2.2(b)(3)’s more
specific terms.
Although case law interpreting § 2G2.2(b)(3) is sparse, the
Second, Seventh, and Eleventh Circuits have all construed the terms
“sadistic conduct” and “violence” so that the application of §
19
Webster’s defines “sadism” as “the infliction of pain upon
a love object as a means of obtaining sexual release,” “delight in
physical or mental cruelty,” and the use of “excessive cruelty.”
See Webster’s Third New International Dictionary (unabridged) 1997-
98 (1986). “Masochism” is defined as “a tendency to gain or
increase sexual gratification through the acceptance of physical
abuse or humiliation.” Id. at 1388.
7
2G2.2(b)(3) is warranted when the sexual act depicted is “likely to
cause pain in one so young.”20 Although our cases upholding
applications of § 2G2.2(b)(3) have all involved pornographic images
depicting bondage or the insertion of foreign objects into the body
canals of a child,21 such images hardly exhaust the malevolent
universe of sexual violence against children. As the government
notes, the sexual penetration of a young girl by an adult male is
certainly no less painful, either physically or emotionally, to
such a young child than the insertion of a foreign object.22 That
20
See United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996)
(holding that photograph of nude boy approximately 8-9 years of age
having an object inserted in his anus warranted the application of
§ 2G2.2(b)(3), on the ground that “subjection of a young child to
a sexual act that would have to be painful is excessively cruel and
hence is sadistic” within the meaning of § 2G2.2(b)(3)); United
States v. Turchen, 187 F.3d 735, 738-40 (7th Cir. 1999)(holding
that photograph depicting two adult males and a nude prepubescent
male standing over a female child while urinating on her face as
she grimaced warranted the application of § 2G2.2(b)(3) as a
depiction of sadistic and masochistic conduct); United States v.
Garrett, 190 F.3d 1220, 1223-24 (11th Cir. 1999) (holding that
photographs involving children between eight and eleven years of
age being penetrated vaginally and anally by adult males, including
a photograph depicting an 11 year old girl with a glass soda bottle
inserted in her vagina, portrayed acts that “would necessarily have
been painful to the young children involved” and therefore
justified the application of § 2G2.2(b)(3)).
21
See, e.g., United States v. Canada, 110 F.3d 260, 264 (5th
Cir. 1997) (involving photographs portraying anal and vaginal
penetration of children through the use of sexual devices); United
States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995) (involving
computer images of a child in bondage).
22
Lyckman attempts to distinguish Garrett, in which the
Eleventh Circuit held that photographs of children between eight
and eleven years of age being penetrated vaginally by adult males
justified the application of § 2G2.2(b)(3), on the basis of the
lack of medical testimony or evidence in the instant case that
8
being so, it was certainly reasonable for the district court to
infer that the conduct depicted by the photographs caused the
children pain, physical or emotional or both, and therefore
constitutes sadism or violence within the meaning of the guideline.
This conclusion draws additional support from cases that hold
indecency with a child by sexual contact and sexual abuse of a
child to be crimes of violence within the meaning of 18 U.S.C. §
16.23 In United States v. Velazquez-Overa,24 for example, we
reasoned that when an adult attempts sexual contact with a child,
such conduct is “inherently violent because the threat of violence
is implicit in the size, age, and authority position of the adult
in dealing with such a young and helpless child.”25 Similarly, in
vaginal intercourse with an adult male would be painful to a
prepubescent female. One hardly requires a medical degree to
ascertain that vaginal intercourse with an adult male would involve
pain, both physical and emotional, for a young girl.
23
18 U.S.C. § 16 defines a crime of violence as “(a) an offense
that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (b)
any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense.” See United States v. Velazquez-Overa, 100 F.3d 418, 422
(5th Cir. 1996) (holding categorically that indecency with a child
involving sexual conduct is a crime of violence within the meaning
of 18 U.S.C. § 16(b); see also United States v. Reyes-Castro, 13
F.3d 377, 379 (10th Cir. 1993) (holding that the sexual abuse of a
child is a crime of violence under 18 U.S.C. § 16(b)).
24
100 F.3d 418 (5th Cir. 1996).
25
Id. at 422 (quotations omitted).
9
United States v. Reyes-Castro,26 the Tenth Circuit concluded that
because attempted sexual abuse of a child involves a non-consensual
act upon another person, there is always a substantial risk that
physical force will be used to ensure the child’s compliance.27
Although the mere risk of violence is sufficient to trigger 18
U.S.C. § 16, whereas § 2G2.2(b)(3) requires actual “sadistic
conduct” or “depictions of violence,” these cases nevertheless
bolster our conclusion that when a pornographic image depicts an
adult male engaging in sexual intercourse with a young girl, the
conduct portrayed is sufficiently painful, coercive, abusive, and
degrading to qualify as sadistic or violent within the meaning of
§ 2G2.2(b)(3).
Lyckman contends, however, that “[i]f child pornography was
per se sadistic [or] violent, then the enhancement would always
apply.” This argument is easily debunked because it obviously
ignores that child pornography may involve merely “pictures of a
[naked] child,” as the district court correctly observed, without
physical sexual contact.28
Equally feckless is Lyckman’s argument that the district
26
13 F.3d 377 (10th Cir. 1993).
27
Id. at 379; see also United States v. Bauer, 990 F.2d 373
(8th Cir. 1993) (holding that statutory rape is a crime of
violence).
28
See 18 U.S.C. § 2256(2)(E) (stating that “sexually explicit
conduct” may consist of “lascivious exhibition of the genitals or
pubic area of any person”).
10
court’s application of § 2G2.2(b)(3) impermissibly constitutes
“double counting” because the victim’s prepubescence was already
taken into account by the enhancement of his sentence under §
2G2.2(b)(1). Lyckman was convicted under a statute criminalizing
the distribution, by any means, including computer, of materials
depicting minors engaged in sexually explicit conduct, including
“lascivious exhibition of the genitals or pubic area.”29 A
pornographic image of a prepubescent minor engaged solely in
lascivious exhibition of the genitals would be subject to
enhancement under § 2G2.2(b)(1), which provides for a sentencing
increase if the offense involved a prepubescent minor under the age
of twelve, but would not come within the ambit of § 2G2.2(b)(3)’s
provision for sadistic or violent conduct. The district court
could therefore consider the factor of the child’s prepubescence in
assessing the sadistic or violent quality of the images without
rendering § 2G2.2(b)(1) superfluous. Moreover, the district court
clearly relied on more than the prepubescence of the victims in
making its determinations. In limiting its finding to those images
that depicted sexual penetration, the district court stated that
not all of the photographs of the prepubescent children depicted
violence.
We are comfortable in following the lead of the Second,
Seventh, and Eleventh Circuits by holding that the application of
29
See id. at § 2252(a)(2)(B) and 2256(2)(E).
11
§ 2G2.2(b)(3) is warranted when the sexual act depicted is the
physical penetration of a young child by an adult male. Such
conduct is not only “reprehensible,” as even Lyckman concedes, but
also sufficiently likely to cause pain and injury so as to qualify
as “sadistic” or “violent” for purposes of the guideline.
Consequently, we find that the district court correctly applied §
2G2.2(b)(3) to enhance Lyckman’s sentence on the basis of the
particular pornographic images at issue in this appeal.
2. Enhancement for Distribution
Lyckman next contends that the district court misapplied the
Sentencing Guidelines by enhancing his sentence on the ground that
the offense involved the “distribution” of child pornography.30
Lyckman stresses that he was not paid for any of the pornographic
images that he sent to others over the internet, but admits that he
“traded” such images.
Lyckman’s argument is foreclosed by our decision in United
States v. Canada,31 in which we held that “distribution” is not
limited to transactions entered into for pecuniary gain.32 In
Canada, we concluded that “the definition of ‘distribution’ for the
sake of the guideline is meant to be inclusive of pecuniary gain
30
See 1995 U.S.S.G. § 2G2.2(b)(2).
31
110 F.3d 260 (5th Cir. 1997).
32
See id. at 263.
12
purposes, but not exclusive of all other purposes.”33 Accordingly,
Lyckman’s “trading” of pornographic images falls within the ambit
of “distribution” as we defined that term in Canada. Furthermore,
even those courts that have defined “distribution” to require
“pecuniary gain” have recognized that “pecuniary gain” is itself an
elastic concept and does not exclude the possibility of swaps,
barter, and in-kind transactions.34 We therefore find the district
court’s application of § 2G2.2(b)(2) to enhance Lyckman’s sentence
eminently correct.
3. Refusal to Group Counts of Conviction
Lyckman also contends that the district court erred by
refusing to group his three convictions pursuant to U.S.S.G. §
3D1.2(b), which provides that when a defendant has been convicted
of more than one count, the district court must group all counts
that involve the same victim and the same act or transaction. The
district court concluded that each child depicted was a “victim”
for purposes of § 3D1.2(b), so the grouping rule does not apply.
Lyckman implicitly acknowledges that we are bound by our
holding in Norris that the grouping rule does not apply to offenses
involving child pornography because the victim of child pornography
33
See id.
34
See, e.g., United States v. Laney, 189 F.3d 954, 959-61 (9th
Cir. 1999); United States v. Black, 116 F.3d 198, 202-203 (7th Cir.
1997).
13
is the individual child rather than society at large.35
Consequently, we find appropriate the district court’s refusal to
group Lyckman’s counts of conviction.
III.
Conclusion
For the reasons explained above, we find proper the district
court’s application of § 2G2.2(b)(3) and § 2G2.2(b)(2) to enhance
Lyckman’s sentence. Likewise, we find proper the district court’s
refusal to group Lyckman’s counts of conviction pursuant to §
3D1.2(b). Consequently, his sentence is
AFFIRMED.
35
See Norris, 159 F.3d at 931.
14