United States v. Patrick John Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0038p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-2407
v.
,
>
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Defendant-Appellant. -
PATRICK JOHN CORP,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 10-00182-001—Robert Holmes Bell, District Judge.
Argued: September 22, 2011
Decided and Filed: February 9, 2012
Before: MOORE, GRIFFIN, and WHITE, Circuit Judges.

_________________

COUNSEL
ARGUED: Paul Croushore, Cincinnati, Ohio, for Appellant. Daniel Y. Mekaru,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Paul Croushore, Cincinnati, Ohio, for Appellant. Daniel Y. Mekaru,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________

OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Patrick John
Corp entered an unconditional guilty plea to the government’s charge that he sexually
exploited a minor in violation of 18 U.S.C. § 2251(a). The district court imposed a
within-Guidelines, 360-month sentence. Corp now raises an as-applied Commerce
Clause challenge to his conviction, arguing that the government’s failure to demonstrate
a sufficient interstate nexus resulted in a lack of federal jurisdiction. He also contests

1
No. 10-2407 United States v. Corp Page 2

the length of his sentence on both procedural and substantive grounds. In his procedural
challenge, Corp argues that the district court improperly applied two provisions of the
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”): (1) the four-level
enhancement under § 2G2.1(b)(4) (2009), for an offense involving materials that depict
sadistic or masochistic conduct; and (2) the five-level enhancement under § 4B1.5(b)(1),
for engaging in a pattern of activity that involves prohibited sexual conduct. Corp’s
accompanying substantive-reasonableness argument centers on the assertion that Corp’s
sentence is unreasonable in light of other defendants’ sentences for similar offenses.

Because the district court considered only Corp’s conduct and did not apply
§ 2G2.1(b)(4) based on the objective nature of the photographs at issue, we agree that
the district court’s application of the four-level enhancement was in error. We therefore
VACATE Corp’s sentence and REMAND for resentencing in accordance with this
opinion.

I. BACKGROUND

On July 15, 2010, Corp entered an unconditional guilty plea to the government’s
charge that he violated 18 U.S.C. § 2251(a) by producing sexually explicit photographs
of a fifteen-year-old girl during a sexual encounter that took place in July 2009.
According to a Presentence Investigation Report (“PSR”), Corp met the minor, S.H., on
an adult-only dating website sometime in summer 2009. At that time, S.H. told him she
was eighteen years old, and the two agreed to meet. S.H. indicated that on the date of
their arranged meeting, Corp picked her up at her grandfather’s residence and drove her
to his home. Shortly after arriving, the two engaged in various sexual acts, including
sexual intercourse. After engaging in the sex acts, S.H. recalled that Corp took twenty
to thirty nude photographs of her in sexually explicit positions. S.H. also stated that over
the course of their encounter, Corp repeatedly asked if he could urinate in her mouth and
that she reluctantly acquiesced after Corp promised to allow her to spit out the urine
immediately afterward. S.H. testified that after Corp performed the act, however, he
grabbed her mouth and forced her to swallow. Corp has disputed this fact. Although he
No. 10-2407 United States v. Corp Page 3

admitted to urinating accidentally in S.H.’s mouth, he denied having forced her to
swallow and instead stated that he brought her a towel in which to dispose of the urine.

In early October 2009, the Michigan Department of State Police (“MSP”)
received a report from a Department of Human Services case worker indicating that S.H.
was having sexual relations with two adult men. After S.H. disclosed her encounter with
Corp to the MSP, officers executed a search warrant for Corp’s residence. During the
search, they seized a large number of sexually explicit photographs of women, Corp’s
laptop, and various other items. On the laptop, law enforcement later discovered about
18,000 images, including photos of S.H. with Corp’s penis penetrating her mouth and
photographs of S.H.’s face after Corp had ejaculated on it. The search also uncovered
a CD-ROM with seven images of another young female, five of which depicted her
performing oral sex on Corp. The young female in the photo had orthodontic braces, and
the government asserted that it believed her to be under the age of eighteen but was
unable to confirm her identity. Corp countered that of the 18,000 photos discovered on
his computer, the only ones involving a minor were those of S.H. Although he admitted
to having an interest in younger women, he denied ever targeting underage girls.

Corp was convicted of a previous child-pornography offense in July 1999 after
he pleaded guilty to violating 18 U.S.C. § 2252(a)(4)(B) by taking sexually graphic
pictures of a seventeen-year-old girl. The PSR described the previous case as involving
photos of the seventeen-year-old in the nude and in suggestive positions on the bed with
her legs spread apart. A government exhibit containing the actual photos, however,
shows the girl engaging in sexual intercourse with Corp and in oral sex with another
woman. A separate exhibit contains an excerpt from the 1999 plea hearing, in which
Corp admitted that the girl in the photographs was only seventeen. That conviction was
later dismissed on the ground that the charges lacked a sufficient nexus to interstate
commerce to justify federal jurisdiction. See United States v. Corp, 236 F.3d 325 (6th
Cir. 2001).

Applying the November 1, 2009 edition of the Guidelines, the PSR
recommended a base offense level of 32 under § 2G2.1(a). The PSR added two levels
No. 10-2407 United States v. Corp Page 4

because the offense involved a minor, who was fifteen years old, § 2G2.1(b)(1)(B), and
another two levels because the offense involved “the commission of a sexual act,”
§ 2G2.1(b)(2)(A). Based on the photos of Corp’s penis penetrating S.H.’s mouth and
those of Corp’s semen on S.H.’s face, the PSR included a four-level enhancement under
§ 2G2.1(b)(4), for depictions of sadistic or masochistic conduct. In addition, because
the probation officer determined that Corp had sexually exploited at least two minors,
the PSR recommended a five-level enhancement under § 4B1.5(b), for “engag[ing] in
a pattern of activity involving prohibited sexual conduct.” Finally, the PSR subtracted
two levels for acceptance of responsibility, § 3E1.1(a), and another level for Corp’s
timely notification of his intent to plead guilty, § 3E1.1(b).

Over Corp’s objections, the district court applied the § 2G2.1(b)(4) and
§ 4B1.5(b) enhancements. Rather than adopting the PSR’s justification for applying
§ 2G2.1(b)(4), however, the district court appeared to rely exclusively on S.H.’s
description of the urination act, which was not in fact depicted in any of the photographs.
After determining that the enhancements applied, the district court calculated Corp’s
total offense level after adjustments to be 42. Although the Guidelines range for a total
offense level of 42 and a criminal history category of I is 360 months to life, the
statutory maximum for a conviction under 18 U.S.C. § 2551(a) is 30 years. Thus, after
considering the recommended Guidelines range and statutory maximum and addressing
the 18 U.S.C. § 3553 factors, the district court imposed a sentence of 360 months of
imprisonment.

II. ANALYSIS

A. Corp’s Unconditional Guilty Plea Waived His Commerce Clause Challenge
on Appeal
We first address Corp’s arguments on the Commerce Clause issue. Relying
primarily on his earlier case, United States v. Corp, 236 F.3d 325 (6th Cir. 2001), Corp
argues that § 2251(a) is unconstitutional as applied because his case lacks a sufficient
nexus to interstate commerce. Specifically, Corp asserts that the mere fact that his
camera and computer traveled in interstate commerce is not enough to permit federal
No. 10-2407 United States v. Corp Page 5

jurisdiction. The government responds that Corp’s voluntary and conditional guilty plea
waived his right to raise the Commerce Clause issue. Furthermore, the government
contends that even if we were to consider the constitutional challenge, it is without merit.

We review de novo the question whether a defendant has waived his right to
appeal. United States v. Martin, 526 F.3d 926, 932 (6th Cir.), cert. denied, 129 S. Ct.
305 (2008). Because Corp entered an unconditional guilty plea, we conclude that he has
waived his right to raise his Commerce Clause argument on appeal.

“Generally, a voluntary and unconditional guilty plea ‘bars any subsequent non-
jurisdictional attack on the conviction.’” Id. (quoting United States v. Pickett, 941 F.2d
411, 417 (6th Cir. 1991)). Although a defendant may enter a conditional guilty plea that
reserves the right to appellate review of an adverse determination in the district court,
the defendant must affirmatively preserve such challenges if he wishes to present them
on appeal. Id. at 416; see also FED. R. CRIM. P. 11(a)(2). If the defendant fails to obtain
“a court-approved reservation of issues for appeal,” the guilty plea waives any
subsequent challenge to the prosecution that does not pertain to the fundamental question
of the court’s jurisdiction. Martin, 526 F.3d at 932 (internal quotation marks omitted).

Although Corp maintains that he has properly raised a jurisdictional challenge
to the felony information on which he was charged, we disagree. To assert a
jurisdictional challenge successfully, “a defendant who enters a guilty plea must
establish that the face of the indictment failed to charge the elements of a federal
offense.” Id. at 934. Corp’s arguments simply do not bring his conviction within this
narrow category of cases that surpass the bar against non-jurisdictional attacks.

Initially, Corp’s assertion that his case lacks the requisite “jurisdictional element”
misses the fact that we have previously held analogous arguments to involve non-
jurisdictional issues subject to waiver. See, e.g., United States v. Turner, 272 F.3d 380,
390 (6th Cir. 2001) (“Although the Hobbs Act’s interstate commerce element is
commonly referred to as a ‘jurisdictional element,’ the failure of the government to
prove a nexus between the crime and interstate commerce is not jurisdictional in a sense
that it deprives the district court of subject matter jurisdiction.”). Indeed, in United
No. 10-2407 United States v. Corp Page 6

States v. Studabaker, 578 F.3d 423 (6th Cir. 2009), we applied these principles to a case
that involved a similar interstate-nexus issue under a related child-pornography
statute—18 U.S.C. § 2252A(a)(5)(B). There, we directly applied Martin and determined
that, in spite of the defendant’s attempt to characterize his claim as impacting our
jurisdiction, the interstate-commerce argument actually presented a non-jurisdictional
issue. Studabaker, 578 F.3d at 429. As a result, the defendant’s failure to reserve that
challenge at the plea hearing waived his right to appellate review. Id. at 429–30; see
also United States v. Sealed Appellant, 526 F.3d 241, 243 (5th Cir.) (holding that the
defendant’s unconditional guilty plea waived his as-applied Commerce Clause challenge
to his conviction under § 2251(a)), cert. denied, 129 S. Ct. 521 (2008).

Perhaps recognizing that Martin and Studabaker foreclose his argument, Corp’s
reply brief attempts to transform his claim into one alleging that the “face of the
indictment failed to charge the elements of a federal offense.” Reply Br. at 9 (quoting
Martin, 526 F.3d at 934). The facts clearly belie that assertion. The felony information
unambiguously lists all of the elements required for conviction under § 2251(a),
including a jurisdictional element expressly indicating that the visual depictions “were
produced using materials which had been shipped and transported in interstate and
foreign commerce,” and that Corp “produced approximately eighteen (18) digital images
of the sexually explicit conduct using . . . a Canon digital camera and Hewlett-Packard
brand laptop computer with components that were manufactured outside the State of
Michigan.” R. 1 (Felony Information at 1–2). At the plea hearing, the government
reiterated these allegations, and Corp pleaded guilty without objecting to them. R. 30
(Plea Hr’g at 5–6). In doing so, Corp effectively admitted to the basis for federal
jurisdiction. See Turner, 272 F.3d at 390 (“Through his guilty plea, [the defendant]
admitted the factual basis for jurisdiction as charged in his indictment. Thus, [the
defendant’s] challenge is nonjurisdictional and has been waived.”). Accordingly, there
No. 10-2407 United States v. Corp Page 7

is no question whether the information properly invoked federal jurisdiction, and Corp’s
unconditional guilty plea waived appellate review of his Commerce Clause challenge.1

B. Reasonableness Review of Corp’s 360-Month Sentence

1. Standard of Review

We review sentences for reasonableness under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 46 (2007). Reasonableness involves both procedural
and substantive components. See id. at 51. “First, an appellate court must ensure that
the district court did not commit significant procedural error . . . .” United States v.
Brown, 579 F.3d 672, 677 (6th Cir. 2009), cert. denied, 130 S. Ct. 1106 (2010). A
sentence is procedurally unreasonable if, for example, the district court “fail[ed] to
calculate (or improperly calculat[ed]) the Guidelines range, treat[ed] the Guidelines as
mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on
clearly erroneous facts, or fail[ed] to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. We then review for substantive reasonableness. “The essence of a
substantive-reasonableness claim is whether the length of the sentence is ‘greater than
necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United
States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). Thus, “[a] sentence
is substantively unreasonable if the district court selects the sentence arbitrarily, bases
the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or
gives an unreasonable amount of weight to any pertinent factor.” Id. at 633 (internal
quotation marks omitted).

In evaluating the reasonableness of Corp’s sentence, “[t]he district court’s
interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are

1
We pause to note that even if we were to decide Corp’s as-applied challenge, our opinion in
United States v. Bowers, 594 F.3d 522 (6th Cir.), cert. denied, 131 S. Ct. 340 (2010), would easily dispose
of his claim. Corp’s invitation for this court to apply the factors set out in the pre-Gonzales v. Raich, 545
U.S. 1 (2005), case United States v. Corp, 236 F.3d 325 (6th Cir. 2001), completely ignores Bowers, which
rejected a nearly identical as-applied challenge and, in doing so, “recognize[d] explicitly that [Corp] is no
longer the law of the Circuit.” Bowers, 594 F.3d at 524. Sounding the death knell for Commerce Clause
challenges such as this one, we further concluded that we “[could not] envision, after Raich, a
circumstance under which an as-applied Commerce Clause challenge to a charge of child-pornography
possession or production would be successful.” Id. at 530. Thus, even absent the waiver, Corp’s argument
would be destined to fail on the merits.
No. 10-2407 United States v. Corp Page 8

reviewed for clear error.” Brown, 579 F.3d at 677. “Whether the facts found warrant
the application of a particular guideline provision is a legal question reviewed de novo.”
United States v. Coleman, 627 F.3d 205, 211 (6th Cir. 2010), cert. denied, 131 S. Ct.
2743 (2011). If a defendant fails to raise an objection before the district court, however,
our review is only for plain error. Id.

2. Procedural Reasonableness

a. Allegations of Sadistic or Masochistic Conduct Alone Do Not
Justify the § 2G2.1(b)(4) Enhancement; the Offense Must
Involve Materials that Actually Depict Such Conduct
Corp first challenges the district court’s application of U.S.S.G. § 2G2.1(b)(4).
Guideline § 2G2.1(b)(4) provides for a four-level sentencing enhancement “[i]f the
offense involved material that portrays sadistic or masochistic conduct or other
depictions of violence.” “Material” is defined to include “a visual depiction,” and
“minor” includes any individual “who had not attained the age of 18 years.” Id. cmt. n.1.

In support of his argument, Corp argues, among other things, that: (1) S.H.
assented to having the photographs taken and to engaging in the sexual acts; (2) the
images do not portray S.H. grimacing or otherwise showing discomfort or pain and
therefore fail to qualify as depicting sadistic or masochistic conduct; and (3) no image
depicts the act of urination that the district court relied on to impose the enhancement.
Although he concedes that the photos of S.H. with semen on her face depict “disgusting
conduct,” Appellant Br. at 25, Corp asserts that they do not rise to the level of sadistic
or masochistic and that S.H. was “neither degraded nor disgraced by the images at
issue,” id. at 26. Disagreeing with that characterization, the government observes that
“[t]he act of ejaculating on someone’s face is purposefully degrading and humiliating.
[Corp] . . . took several photos of the girl with her face covered with his semen. Those
images depict degrading and humiliating acts and the enhancement of 4 levels was
proper.” Appellee Br. at 21–22.

At the sentencing hearing, the district court’s application of § 2G2.1(b)(4)
appeared to rely exclusively on the urination act, which, as Corp correctly points out, is
No. 10-2407 United States v. Corp Page 9

not depicted in any photograph. Resting entirely on the disturbing nature of that
behavior, the district court applied § 2G2.1(b)(4) without making any further findings
concerning whether the materials themselves displayed sadistic or masochistic conduct;
in fact, the district court even stated that there was no “actual proof of photographs”
depicting the urination act that the court cited to justify the four-level enhancement. R.
31 (Sent. Hr’g Tr. at 12).

Initially, we note that although Corp made a general objection to the district
court’s application of § 2G2.1(b)(4), Corp failed to object to the district court’s
application of the enhancement on the basis of conduct alone. At sentencing, Corp’s
attorney cited cases addressing sadistic or masochistic depictions, but counsel’s
argument as applied to Corp rested more on the nature of Corp’s overall behavior—e.g.,
that there was “no violence, no pain inflicted in the particulars in this case.” Id. at 10.
The district court followed this argument by addressing S.H.’s statements regarding the
urination act. As the following exchange illustrates, rather than redirecting the district
court to the nature of the photographs, defense counsel merely disputed the facts
surrounding Corp’s behavior:

THE COURT: I look at Paragraph 17 [of the PSR] which has not been
objected to in the presentence report, and this S.H. is indicating that she
was asked if he could urinate in her mouth. She stated she refused, but
after repeated requests she allowed him to do so. She stated he agreed
to allow her to spit out the urine immediately afterward. She stated she
was scared and reluctant but allowed him to urinate in her mouth. She
stated he immediately grabbed her mouth and told her to swallow the
urine. She stated she only swallowed it because she was scared and
forced to do it. She stated his voice was very scary and demanding. Did
I read it correctly?
MR. DODGE: Yes, sir.
THE COURT: Has it not been objected to?
MR. DODGE: Your Honor, on that point Mr. Corp has a different
description of what happened and that there was not an act of urination.
THE COURT: So despite the fact that you did not object to this as being
inaccurate, your position is that your client stated that it was enjoyed and
it was not in any way forceful?
MR. DODGE: That there was no forced conduct, Your Honor. Nothing
was done that was non-consensual with the complainant.
No. 10-2407 United States v. Corp Page 10

Id. at 10–11. Based on that exchange, the district court determined the enhancement to
apply, concluding:

[t]he very nature of this is unbelievably disgusting, unbelievably
disgusting from any standpoint. I find that it is—if that’s not sadistic,
masochistic, I don’t know what is. Obviously there’s torture and things
like that, but this for a person who’s under the age of 18, I think this
clearly falls within the four-level adjustment that 2G2.1(b)(4) addresses.
Clearly, clearly. If this doesn’t, then you ask for scars and intentional
infliction, and I think this is as close as you can get without having actual
proof of photographs. I’ve seen photographs before of all kinds of
situations, but this is thoroughly disgusting. I think it’s well involved in
that. Your objection is noted, though, and preserved.

Id. at 11–12. Despite the district court’s clear misapplication of the Guidelines, when
provided the opportunity to make any final legal objections at the end of the hearing,
defense counsel again failed to raise anything more than his earlier general objection to
the enhancement.

To avoid plain-error review, “[a] party must object with that reasonable degree
of specificity which would have adequately apprised the trial court of the true basis for
his objection.” United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004) (internal
quotation marks omitted). We have emphasized the importance of such objections, both
because they give the district court an opportunity to correct its own errors and because
they provide a better record for appellate review. Id. (“A specific objection provides the
district court with an opportunity to address the error in the first instance and allows this
court to engage in more meaningful review.”). In this case, however, we need not
evaluate whether Corp’s objection was sufficient to permit de novo review rather than
the more deferential plain-error review. The district court’s application of § 2G2.1(b)(4)
was erroneous under either standard. While we cannot deny that the district court’s
disgusted reaction to Corp’s behavior was justified, we nonetheless conclude that,
despite its disturbing nature, the undepicted act of urination was irrelevant to the court’s
application of § 2G2.1(b)(4). The district court’s determination to the contrary is alone
enough to warrant remand. Because our cases have not previously set out a
No. 10-2407 United States v. Corp Page 11

comprehensive framework for applying this enhancement, however, we first establish
principles for the proper application of § 2G2.1(b)(4).

Because the Guidelines do not define the phrase “sadistic or masochistic conduct
or other depictions of violence,” we “look to the common meaning[s] of those terms to
determine their application.” United States v. Groenendal, 557 F.3d 419, 425 (6th Cir.
2009) (internal quotation marks omitted). We have previously defined “sadism” as “the
infliction of pain upon a love object as a means of obtaining sexual release.” Id.
(quoting United States v. Lyckman, 235 F.3d 234, 238 n.19 (5th Cir. 2000), cert. denied,
532 U.S. 986 (2001)). Although our earlier cases have generally involved only the
infliction of physical pain, see United States v. Phillips, 383 F. App’x 527, 533 n.2 (6th
Cir. 2010) (unpublished opinion), we do not believe that the ordinary definition of
sadism is so limited. See Merriam Webster’s Collegiate Dictionary 1029 (10th ed.
1995) (defining sadism as “a sexual perversion in which gratification is obtained by the
infliction of physical or mental pain on others (as on a love object)” (emphasis added)).
Indeed, the inclusion of more than just physical pain in this context is consistent with the
precedent of many of our sister circuits. See United States v. Maurer, 639 F.3d 72, 80
(3d Cir. 2011) (noting other circuits’ inclusion of mental harm in the definition of sadism
and indicating the court’s “belief that the application of § 2G2.2(b)(4) is not limited to
circumstances where the pain that would result from the depicted conduct is the result
of sexual penetration by an adult or bondage of a child”); United States v. Freeman, 578
F.3d 142, 145–46 (2d Cir. 2009) (identifying “delight in physical or mental cruelty” as
an ordinary definition of “sadistic” (quoting Webster’s Third New International
Dictionary 2254 (1986)); United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007)
(same); United States v. Rearden, 349 F.3d 608, 615 (9th Cir. 2003) (same); United
States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001) (stating that “the terms ‘violence’
and ‘sadism,’ as ordinarily used, are not limited to activity involving a rope, belt, whip,
chains, or other instruments” and determining that “painful, coercive, abusive, and
degrading” conduct also qualify as “sadistic” under the Guidelines), cert. denied, 535
U.S. 1011 (2002); United States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999)
(concluding that the terms sadistic and masochistic also include “sexual gratification
No. 10-2407 United States v. Corp Page 12

which is purposefully degrading and humiliating [and] conduct that causes mental
suffering or psychological or emotional injury in the victim” and that the enhancement
may therefore be warranted even when images do not portray any kind of violence);
United States v. Comeaux, No. 10-30234, 2011 WL 3911083, at *2 (5th Cir. Sept. 2,
2011) (unpublished opinion) (observing that “many depictions which are unarguably
sadistic in nature do not involve violence or pain, but rather subjugation and
humiliation”).2

Also warranting application of § 2G2.1(b)(4) are images that contain depictions
of masochistic conduct and images that fall into the catch-all category “other depictions
of violence.” Under a plain-meaning analysis, masochistic images would include those
depicting “a sexual perversion characterized by pleasure in being subjected to pain or
humiliation, esp[ecially] by a love object.” Merriam Webster’s Collegiate Dictionary,
supra, at 714. To round out these foundational principles, we turn finally to the phrase
“other depictions of violence.” Here, however, it is not enough simply to look to
ordinary meaning. Rather, because of its association with the terms “sadism” and
“masochism,” the reach of the phrase “other depictions of violence” is limited by those
definitions. See Lyckman, 235 F.3d at 238. Thus, as the Fifth Circuit aptly observed,
although the “ordinary meaning of ‘violence’ [is] ‘the exertion of any physical force so
as to injure, damage or abuse,’” the term cannot be construed so broadly in the present
context. Id. (quoting Black’s Law Dictionary 1570 (6th ed. 1990)). Instead, citing “[t]he
venerable principle of ejusdem generis,” Lyckman appropriately clarified that “the
general term ‘other depictions of violence’ casts its net no wider than necessary to
capture images akin to those” encompassed by the more specific terms “sadistic” and
“masochistic.” Id.

2
We note that some of the citations in the preceding paragraph involved U.S.S.G. § 2G2.2(b)(4),
which is the enhancement for trafficking, rather than producing materials involving the sexual exploitation
of a minor. Guideline § 2G2.2(b)(4), however, contains the identical four-level enhancement for offenses
involving “material that portrays sadistic or masochistic conduct or other depictions of violence” as the
provision at issue here. Furthermore, because some of the cases involve earlier versions of the Guideline
enhancements, we also observe that both § 2G2.2(b)(4) and § 2G2.1(b)(4) were renumbered in the
November 1, 2004 version of the U.S. Sentencing Guidelines from § 2G2.2(b)(3) and § 2G2.1(b)(3),
respectively. The language in each of those Guidelines remains the same as it was before the 2004
amendment.
No. 10-2407 United States v. Corp Page 13

While the above definitions provide a worthy starting point for sentencing courts
seeking to apply § 2G2.1(b)(4), a few additional principles apply. First, we agree with
our sister circuits that whether a particular image can be classified as portraying sadistic
or masochistic conduct under § 2G2.1(b)(4) is an objective determination. See, e.g.,
Maurer, 639 F.3d at 80; United States v. Raplinger, 555 F.3d 687, 694–95 (8th Cir.),
cert. denied, 129 S. Ct. 2814 (2009); Freeman, 578 F.3d at 146. Thus, the court must
consider what the material at issue actually portrays rather than making subjective
determinations about the thoughts or intentions of the specific individuals being
depicted. In other words, whether an adult in the image is in fact intending to inflict
physical or mental pain and whether the minor in fact experiences such pain are
immaterial. Rather, the court must determine, based on the contents within the four
corners of the image, whether the circumstances being portrayed are such that an
outsider would perceive them as depicting the infliction of pain or humiliation on the
minor. In sum, we hold that in order to apply the § 2G2.1(b)(4) enhancement, a
sentencing court must determine by a preponderance of the evidence that an image or
material (1) depicts sexual activity involving a minor and (2) portrays conduct that
would cause an objective viewer to believe—without regard to the undepicted
circumstances of the sexual encounter—that the pictured activity is inflicting physical
pain, emotional suffering, or humiliation on that minor.

In some cases, the above framework presents a straightforward inquiry. As we
have previously held, cases involving the sexual penetration of prepubescent children
are inherently sadistic. Groenendal, 557 F.3d at 425–26; see also United States v.
Fuller, 77 F. App’x 371, 383–84 (6th Cir. 2003) (unpublished opinion), cert. denied, 541
U.S. 968 (2004). This is because, from the standpoint of an objective viewer, such cases
unquestionably involve “the depiction of a sexual act that is likely to cause pain in one
so young.” Groenendal, 557 F.3d at 425 (internal quotation marks omitted)). The same
is true for images depicting bondage, which, even if engaged in by consenting adults
experiencing no pain at all, would be objectively perceived as portraying a sadistic act.
Cf. Raplinger, 555 F.3d at 694–95 (emphasizing the need to focus on “what the material
No. 10-2407 United States v. Corp Page 14

portrays” rather than permitting the defendant to avoid the enhancement on the basis
that, despite the depiction of bondage, the minor was not actually in pain).

The facts here, however, are more complicated. Although the images involve
conduct that depicts more than ordinary sexual intercourse with a minor—an offense for
which Corp has already been sentenced under U.S.S.G. § 2G2.1(a)—the question is
whether the images of S.H. with Corp’s semen on her face reach the level of objectively
depicting sadistic or masochistic conduct. Although we have never confronted
analogous circumstances, other circuits have found portrayals of somewhat comparable
behavior to fall within these definitions. In United States v. Parker, for example, the
Eighth Circuit determined that an image of “an adult male ejaculating into the face and
open mouth of a crying baby” was a depiction of sadistic conduct because it involved
“the infliction of pain upon a love object as a means of obtaining sexual release.” 267
F.3d at 847 (internal quotation marks omitted). Similarly, United States v. Turchen
concerned an image that depicted a “grimacing prepubescent nude female” with three
males urinating on her face. 187 F.3d at 739 (internal quotation marks omitted). There,
the Seventh Circuit deemed the enhancement appropriate based on the view that the
image portrayed “the infliction of harm, in fact violent harm, both physical and mental,
on the child victim.” Id. at 740. The child’s grimacing expression further conveyed to
any objective viewer a sense that the circumstances involved the infliction of serious
pain.

On the other hand, it is also apparent that the materials at issue in Parker and
Turchen were an order of magnitude different from those at issue here. In this case, the
photographs do not depict a prepubescent child and S.H.’s expression does not seem to
convey what could objectively be perceived as a manifestation of humiliation or disgust.
Furthermore, both Parker and Turchen involved materials that portrayed individuals who
were presently engaged in the sadistic or masochistic conduct. Here, however, the
materials display only S.H.’s face and do not show Corp engaged in the act of
ejaculation. Thus, the conduct that the government identifies as “purposefully degrading
No. 10-2407 United States v. Corp Page 15

and humiliating,” Appellee Br. at 21–22, is not actually depicted in the photographs,
although the photographs do show the results of that conduct.

As this analysis illustrates, evaluating materials pursuant to § 2G2.1(b)(4) often
involves a case-by-case determination. Although the foregoing paragraphs raise some
potential considerations in deciding whether § 2G2.1(b)(4) ultimately applies in this
case, because of the inherently fact-based nature of the inquiry, we do not believe it
prudent for us to resolve the issue in the first instance. Because the district court is
better suited to resolving such questions initially, we instead conclude that the most
appropriate course is to leave to the district court the determination whether the
§ 2G2.1(b)(4) enhancement applies in light of the framework set forth above. On that
basis, we therefore remand for resentencing in accordance with this opinion.

b. The District Court Did Not Err in Determining that Corp
Engaged in a Pattern of Activity Involving Prohibited Sexual
Conduct
Guideline § 4B1.5(b)(1) provides for a five-level increase if “the defendant’s
instant offense of conviction is a covered sex crime . . . and the defendant engaged in a
pattern of activity involving prohibited sexual conduct.” The application notes define
“prohibited sexual conduct” as including “the production of child pornography.”3 Id.
cmt. n.4(A). A pattern of activity may exist “if on at least two separate occasions, the
defendant engaged in prohibited sexual conduct with a minor,” id. cmt. n.4(B)(i), with
“minor” again defined as “an individual who had not attained the age of 18 years,” id.
cmt. n.1. “An occasion of prohibited sexual conduct may be considered . . . without
regard to whether the occasion (I) occurred during the course of the instant offense; or
(II) resulted in a conviction for the conduct that occurred on that occasion.” Id. cmt.
n.4(B)(ii). Because Corp raised an objection to the application of this enhancement both
in his objections to the PSR and at sentencing, we review the factual findings underlying

3
Child pornography, in turn, is defined as “any visual depiction . . . of sexually explicit conduct,”
18 U.S.C. § 2256(8), with the term “sexually explicit” defined in relevant part as “graphic sexual
intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of
the same or opposite sex,” id. § 2256(2)(B)(i).
No. 10-2407 United States v. Corp Page 16

the district court’s application of § 4B1.5(b)(1) for clear error. See Brown, 579 F.3d at
677.

The government points to three separate instances of prohibited sexual conduct
that support the district court’s application of the five-level enhancement: (1) the instant
offense; (2) photographs of a seventeen-year-old girl engaged in sexual acts, which
surfaced in the 1999 case; and (3) pictures of an unidentified, young-looking girl with
orthodontic braces performing oral sex. At sentencing, Corp initially challenged the
second instance by stating that there was no lascivious exhibition of the seventeen-year-
old’s genitals in the photos in the prior case and that it therefore did not count as an
occurrence of prohibited sexual conduct. The government, however, responded with
exhibits containing the photos from the 1999 case, and those photos indisputably refute
Corp’s disingenuous contentions regarding their sexually explicit nature. That the prior
conviction was overturned on Commerce Clause grounds is also of no consequence. Cf.
United States v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc) (permitting acquitted
conduct that has been proved by a preponderance of the evidence to be taken into
account when fashioning a sentence), cert. denied, 129 S. Ct. 2071 (2009). The plain
language of § 4B1.5(b)(1) supports application of the enhancement when the
government demonstrates by a preponderance of the evidence that a defendant, on more
than one occasion, produced sexually explicit images of an individual under the age of
eighteen. United States v. Berringer, 393 F. App’x 257, 262 (6th Cir. 2010)
(unpublished opinion) (“The applicability of the pattern-of-abuse enhancement is a
factual determination that the sentencing court need find only by a preponderance of
evidence.”). There is no question that the government successfully met that burden here.

The government also adequately demonstrated the existence of a third instance
of prohibited conduct. The PSR stated that Corp possessed seven images of a young-
looking female performing oral sex. The PSR noted that the female in the photos had
orthodontic braces and appeared to be under the age of eighteen, though authorities had
been unable to confirm that fact. Corp, however, never even attempted to contest these
facts, either in his objections to the PSR or at sentencing. Because Corp failed to
No. 10-2407 United States v. Corp Page 17

produce any evidence to contradict the facts stated in the PSR on this issue, the district
court was entitled to rely on them in fashioning a sentence. United States v. Geerken,
506 F.3d 461, 467 (6th Cir. 2007). Moreover, after reviewing the images, the district
judge also made independent findings as to the age of the girl in the photograph, stating
that the girl with braces “look[ed] about 12 or 13 and maybe even 14 in the picture.” R.
31 (Sent. Hr’g Tr. at 15). Based on our review of the evidence, that finding was not
clearly erroneous.

As the Guidelines language plainly indicates, the sexual encounter with S.H. that
forms the basis for Corp’s present conviction counts as one of the two instances of
prohibited sexual conduct required to support the district court’s application of
§ 4B1.5(b)(1). Thus, citing the above occurrences, as well as testimony that Corp has
been involved with 450 to 500 usually young-looking women, the district court
concluded,

I think there’s a pattern here. There’s clearly a pattern. If there isn’t one
here, I don’t know where you’d find one. . . . [I]t seems to be a pattern of
activity including prohibited sexual conduct with young persons, and the
factual basis that goes back even to that previous conviction this Court
believes is relevant because there appears with that many women and
that many circumstances that the defendant has admitted clearly to be a
pattern. Clearly to be a pattern.
So therefore, I think it can stand. I think it’s been established in
this case. I think the government has presented a sufficient amount of
factual basis and the presentence report substantiates that in this case.

Id. Although when imposing the sentence, the district court appeared to consider Corp’s
entire sexual history—most of which did not involve minors—the court specifically
cited the photos of the girl with braces, the current offense, and Corp’s prior conviction
as support for its application of § 4B1.5(b)(1). Those three instances were more than
enough to justify the five-level enhancement.
No. 10-2407 United States v. Corp Page 18

3. Substantive Reasonableness

Corp’s final argument relates to the substantive reasonableness of his sentence.
His sole argument to support that claim is based on a handful of cases involving
similarly situated defendants who received lesser sentences but were convicted of
arguably more egregious offenses. Predictably, the government responds to Corp’s
argument by pointing out a similar number of cases in which comparable offenses
received much greater sentences.

Because we remand on procedural grounds, we need not wade into this dispute
at this time. See United States v. Taylor, 648 F.3d 417, 433 (6th Cir. 2011). We note,
however, that although national sentencing disparities are undoubtedly a factor under
18 U.S.C. § 3553(a) that sentencing judges must consider, we have previously “criticized
the comparison of the defendant’s sentence to those imposed in other singular cases as
weak evidence to show a national sentencing disparity.” United States v. Rossi, 422 F.
App’x 425, 435 (6th Cir. 2011) (unpublished opinion) (collecting cases). The mere fact
that a defendant cites other cases in which courts determined certain defendants to be
deserving of different sentences does not demonstrate abuse of discretion in the instant
case. See id.; cf. United States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009) (“[T]he fact
that a judge in an unrelated case found a specific individual deserving of a downward
departure does not mean that the judge in this case plainly erred by sentencing
[defendant] within the Guidelines after considering the nature of his crime and his
personal characteristics.”). Our remand provides the district judge with the opportunity
to address explicitly this issue raised by Corp.

III. CONCLUSION

Because the district court’s application of § 2G2.1(b)(4) was based solely on
conduct that was not depicted in the photographs, its application of the four-level
enhancement was procedurally unreasonable. Thus, for the reasons discussed above, we
VACATE Corp’s sentence and REMAND for resentencing in accordance with this
opinion.