Case: 11-31110 Document: 00512034672 Page: 1 Date Filed: 10/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2012
No. 11-31110
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RONNY LEE DESADIER, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:11-CR-35-1
Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Ronny Lee Desadier, Jr., pleaded guilty pursuant to a written plea
agreement to distribution of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2)(A). He was sentenced below the advisory guideline range to 120
months of imprisonment. He appeals his sentence, arguing that the district
court erred in applying a four-level enhancement under U.S.S.G. § 2G2.2(b)(4),
based on its finding that the offense involved material that portrayed sadistic
images; the district court erred in applying a two-level enhancement under
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-31110
§ 2G2.2(b)(6), based on the use of a computer; the district court erred in applying
a five-level enhancement under § 2G2.2(b)(3)(B), based on its finding that the
offense involved the distribution of pornographic materials for the receipt of a
thing of value, but not for pecuniary gain; and the district court erred in denying
his request for a downward departure based on what he contends was his role
as a minimal participant in the offense.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Where,
as in this case, the defendant raised his arguments in the district court, we
review the district court’s interpretation and application of the Guidelines de
novo and the district court’s factual findings and application of the Guidelines
to the specific facts of the case for clear error. See United States v Lyckman, 235
F.3d 234, 237 (5th Cir. 2000).
Desadier argues that the four-level increase under § 2G2.2(b)(4) was not
warranted because the district court made no findings of fact regarding what
images portrayed sadistic conduct and because the photographs show no
evidence of actual pain. We have held that the sexual penetration of a child by
an adult male is conduct that “cause[s] . . . pain, physical or emotional or both,
and therefore constitutes sadism or violence within the meaning of
[§ 2G2.2(b)(4)].” Id. at 239. Further, in considering what acts qualify as sadistic
or violent, we have recognized that “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 § 2G2.2(b)(4). United States v. Comeaux, 445 F. App’x 743,
745 (5th Cir. 2011). Sadistic conduct can include sexual gratification that is
purposefully degrading and humiliating to the victim. Id.
The Government, in its appellate brief, specifically describes the
photographs that were submitted as exhibits at sentencing and reviewed by the
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district court in camera, and Desadier does not refute that the photographs
depict the images described by the Government. The photographs contain the
same kind of images that this court has found to be sadistic, see Lyckman, 235
F.3d at 239; Comeaux, 445 F. App’x at 745, and we are satisfied that those
images were viewed by the district court. The district court did not err in
applying the four-level enhancement under § 2G2.2(b)(4) based on those images.
Desadier also argues that the application of the two-level enhancement
under § 2G2.2(b)(6) constituted unwarranted double-counting because the
statute of conviction contemplates the use of a computer to commit the crime as
one of the elements of the offense. Although § 2552A(a)(2)(A) provides that the
offense can be committed by “any means or facility of interstate or foreign
commerce . . . including by computer,” § 2G2.2(b)(6) does not expressly forbid
double-counting. Thus, the district court’s application of the Guideline did not
constitute impermissible double-counting. See United States v. Calbat, 266 F.3d
358, 364 (5th Cir. 2001) (holding that double-counting is prohibited only if the
relevant Guideline expressly forbids it).
We also find that the district court did not err in applying a five-level
enhancement under § 2G2.2(b)(3)(B). Although Desadier argues that a purely
gratuitous dissemination of pornographic images should not trigger the
enhancement, this court has upheld § 2G2.2(b)(3)(B) enhancements in other
cases presenting facts similar to those here at issue. See United States v. Onken,
440 F. App’x 304, 305 (5th Cir. 2011); United States v. Moore, 328 F. App’x 308,
309 (5th Cir. 2009); United States v. Roman, 393 F. App’x 149, 149-50 (5th Cir.
2010), cert. denied, 131 S. Ct. 964 (2011). In those cases, we held that
defendants who, like Desadier, shared child pornography on peer-to-peer
networks properly received § 2G2.2(b)(3)(B) enhancements because their actions
evidenced an interest in sharing and receiving child pornography. While these
cases are not binding, they are persuasive. See Ballard v. Burton, 444 F.3d 391,
401 & n.7 (5th Cir. 2006).
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Finally, to the extent that Desadier argues that the district court erred in
its resolution of his motion for a downward departure, we lack jurisdiction to
review the district court’s refusal to depart downwardly. See United States v.
Sam, 467 F.3d 857, 861 (5th Cir. 2006). To the extent that Desadier challenges
the district court’s failure to apply an adjustment under § 3B1.2, the district
court’s determination was not clearly erroneous. See United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Desadier was held accountable
for distributing child pornography, and the record reflects that he understood
how the file-sharing system worked and knowingly distributed hundreds of
images of child pornography to others. Thus, the district court did not err in
refusing to apply a minimal-participant adjustment under § 3B1.2. See § 3B1.2,
comment. (n.2); Villanueva, 408 F.3d at 203-04; United States v. Garcia, 242
F.3d 593, 598-99 (5th Cir. 2001).
The judgment of the district court is AFFIRMED.
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