United States Court of Appeals
For the First Circuit
No. 07-1454
UNITED STATES OF AMERICA,
Appellee,
v.
RUSSELL R. HOEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Mary Davis with whom Tisdale & Davis, P.A. was on brief for
appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, U.S. Attorney, was on brief for appellee.
November 29, 2007
LYNCH, Circuit Judge. Two issues of law are raised as to
the interpretation of the sentencing guideline, U.S.S.G.
§ 2G2.2(b)(4), for possession of sadistic or masochistic child
pornography.
Russell Hoey appeals from his sixty-three month sentence,
but not from his conviction, for possession of child pornography.
He primarily objects to the sentencing judge's application of a
four-level increase under U.S.S.G. § 2G2.2(b)(4) for possession of
material "that portrays sadistic or masochistic conduct or other
depictions of violence." He argues (1) that the prosecution did
not meet its burden of proving these images were of actual
children, (2) that the conduct depicted does not qualify as
sadomasochistic, and (3) that even if it did, the prosecutor also
had to prove the conduct actually occurred. We reject the first
argument because there was adequate evidence to support the court's
determination that the image was of an actual child. As to the
second argument, the district court did not err in defining sadism
or masochism or in applying the definition to the pertinent image.
We reject the last argument as a matter of law: the Guidelines do
not require that the image represent actual sadism or masochism.
I.
As part of a broader investigation of a child pornography
ring in which Hoey was implicated as a customer, the U.S. Postal
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Inspection Service mailed Hoey a fake solicitation to purchase
further child pornography in August 2004. Based on Hoey's
affirmative response and payment of $45 for two videotapes entitled
"Kissing Cousins" and "Boys and Girls," an undercover postal
inspector made a controlled delivery of the tapes to Hoey's
residence that November. After Hoey accepted the package, other
inspectors secured the residence while a warrant was obtained.
Upon questioning, Hoey admitted that he expected to see
real children involved in sexual situations in the videos and that
he stored child pornography on his computer. The computer, seized
during the search, did contain pornographic images. These images
were submitted to the National Center for Missing and Exploited
Children ("Center") for identification purposes. The Center
reported that 131 of the images contained children previously
identified by law enforcement as actual children.
Hoey pleaded guilty on November 2, 2006, to a one-count
information for possession of child pornography under 18 U.S.C.
§ 2252A(a)(5)(B).1 He agreed that some of the material depicted
children under age twelve and that his offense involved the use of
a computer; he also admitted to the prosecution version of events,
which stated that the 131 images and the two videos depicted actual
1
That section criminalizes, inter alia, the "knowing[]
possess[ion of] any . . . videotape, computer disk, or any other
material that contains an image of child pornography that has been
mailed, or shipped or transported in interstate or foreign commerce
by any means, including by computer." 18 U.S.C. § 2252A(a)(5)(B).
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children. Consequently, Hoey's Presentence Report ("PSR")
recommended Guidelines increases under section 2G2.2(b)(2)
(material involving minors under age twelve), section 2G2.2(b)(6)
(use of a computer in the commission of the crime), and section
2G2.2(b)(7)(B) (possession of more than 150 but fewer than 300
images).2
The PSR also recommended a four-level increase under
section 2G2.2(b)(4) for possession of at least one image "that
portrays sadistic or masochistic conduct or other depictions of
violence." It based this recommendation on four images depicting
bondage of young boys obtained from Hoey's computer but not
included in the 131 images identified by the Center. The Assistant
U.S. Attorney subsequently submitted an additional purportedly
sadomasochistic image, not among the 131 images but also identified
by the Center as appearing to depict a known child.
Hoey objected to the four-level increase recommended by
the PSR and raised during the sentencing hearing the same arguments
he makes on appeal. He called a witness who owns a photography
shop to testify to the ease with which digital pictures can be
manipulated. That witness admitted that he had never created an
image of a person without using an actual person and knew no one
2
Pursuant to U.S.S.G. § 2G2.2 cmt. n.4(B)(ii), each
videotape was counted as containing seventy-five images. The PSR
consequently imputed 281 images to Hoey. Throughout, references to
the Guidelines refer to the 2006 edition of the U.S. Sentencing
Guidelines Manual.
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who had succeeded in doing so, and that he was unable to say
whether the images were of real children or not. The judge
discounted this testimony, finding that the witness was not a
qualified expert and was not helpful. Hoey also argued that his
serious health problems, in addition to his lack of criminal record
and his good conduct between the 2004 sting and Hoey's guilty plea
in 2006, were grounds for a downward departure or variance.
The district court found that the last image submitted by
the prosecutor ("Exhibit 3A"), which the Center had identified as
a known child, and one of the images identified as sadomasochistic
by the PSR ("Exhibit 5") depicted real children and portrayed
sadistic conduct. It agreed with the prosecutor that for purposes
of this guideline, it made no difference if the pictures for the
enhancement were composites of real children -- that is, if they
were not accurate depictions of events that actually occurred. The
court then calculated Hoey's Guidelines range, adding a four-level
increase for the sadistic images; denied Hoey's requests for
downward departures; and sentenced him to sixty-three months, the
bottom of the calculated Guidelines range, as well as to three
years of supervised release with numerous conditions and a $100
mandatory assessment.
II.
A. Application of U.S.S.G. § 2G2.2(b)(4)
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In sentencing appeals, we review the district court's
interpretation of the Guidelines de novo and its determinations of
facts for clear error. United States v. Woodward, 277 F.3d 87, 91
(1st Cir. 2002). "The government has the burden of proving the
facts central to upward adjustments in offense levels by
preponderance of the evidence, not by proof beyond a reasonable
doubt." Id. For the enhancement under section 2G2.2(b)(4) to
apply, there is no requirement that the sadomasochistic image be
one of the images underlying the conviction. That is because the
possession of sadistic images is relevant conduct to Hoey's
offense. See U.S.S.G. § 1B1.3; United States v. Barevitch, 445
F.3d 956, 958-59 (7th Cir. 2006); United States v. Ellison, 113
F.3d 77, 82 (7th Cir. 1997).
1. The Depiction of Actual Children
Possession of child pornography that does not depict
actual children is not criminalized. See Ashcroft v. Free Speech
Coal., 535 U.S. 234 (2002). Thus the prosecutor must show by a
preponderance of the evidence that a picture relied on for
sentencing purposes depicts a real child. United States v.
Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007). Given this
standard, the prosecutor need not "rule out every conceivable way
the pictures could have been made other than by ordinary
photography." Id. at 444 (quoting United States v. Nolan, 818 F.2d
1015, 1020 (1st Cir. 1987)) (internal quotation mark omitted).
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"The question of whether or not a particular image is of a virtual
child or of a real child is an issue of fact, to be determined by
the trier of fact"; that determination stands unless it is clearly
erroneous. Id. at 438.
Whether an image is that of an actual child is evaluated
on the evidence as a whole. Id. at 442. There is no per se rule
that the prosecution is required to produce expert testimony in
every case to establish that the depicted child is real, for either
guilt or sentencing purposes. Id. at 437. That is the approach
taken in seven circuits. Id. at 440-41 (collecting cases from the
Second, Fifth, Sixth, Eighth, and Tenth Circuits holding that no
expert testimony is required); United States v. Salcido, --- F.3d
----, 2007 WL 3037350, at *3 (9th Cir. Oct. 19, 2007) (per curiam)
(same). No circuit has adopted a per se rule requiring expert
testimony.
Hoey argues that the judge cannot make this determination
based solely on his own examination of the image. As we have
previously noted, however, many circuits agree that "[factfinders]
are capable of distinguishing between real and virtual images,
without expert assistance." Id. at 441. The argument is
irrelevant here in any event. The prosecutor submitted additional
evidence -- the report from the Center -- that Exhibit 3A depicted
a real child. See id. at 443 (relying upon similar evidence). As
to Exhibit 3A, it was not clearly erroneous for the district court
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to conclude the image depicted a real child. It takes only one
such image for § 2G2.2(b)(4) to apply. We examine only Exhibit 3A
as to Hoey's remaining arguments.
2. What Constitutes Sadistic Conduct
We review the district court's interpretation of the
Guidelines de novo. The Guidelines do not specify what constitutes
"sadistic or masochistic conduct or other depictions of violence."
U.S.S.G. § 2G2.2(b)(4). Webster's Third New International
Dictionary defines "sadism" as "the infliction of pain upon a love
object as a means of obtaining sexual release," "the satisfaction
of outwardly directed destructive impulses as a source of libidinal
gratification," "a delight in physical or mental cruelty," or
"excessive cruelty." 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. See, e.g.,
United States v. Myers, 355 F.3d 1040, 1043 (7th Cir. 2004).
Exhibit 3A portrays a young boy with an expression of
pain and disgust who is being anally penetrated by the penis of a
much older man. The relative sizes of the man's penis and the
small boy, in addition to the boy's expression, all suggest the
likelihood of ongoing pain. We agree with the many circuits which
have found that images depicting the sexual penetration of young
and prepubescent children by adult males represent conduct
sufficiently likely to involve pain such as to support a finding
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that it is inherently "sadistic" or similarly "violent" under the
terms of section 2G2.2(b)(4). See United States v. Belflower, 390
F.3d 560, 562 (8th Cir. 2004) (per curiam); Myers, 355 F.3d at
1043; United States v. Kimler, 335 F.3d 1132, 1143 (10th Cir.
2003); United States v. Caro, 309 F.3d 1348, 1351-52 (11th Cir.
2002); United States v. Lyckman, 235 F.3d 234, 238 (5th Cir. 2000);
United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996).3
Hoey argues that the image depicts a man about to
penetrate, but not yet penetrating, the child, so the image
necessarily cannot be of sadism. The record does not support the
argument; more importantly, as a matter of law, the proposition is
wrong. First, the district court found that the image depicted "a
young boy, prepubescent, being . . . penetrated by the sexual organ
of a much older man," a finding of fact that we can only overturn
if clearly erroneous, which it is not.
Second, even if the image depicted only the moment and
not the consummation of actual penetration, the conduct is
sadistic. Here an image of attempted sexual penetration combined
with this young child's pained expression is sufficient to
3
The bondage of children has also been held to constitute
sadistic behavior. See United States v. Wolk, 337 F.3d 997, 1008
(8th Cir. 2003); Caro, 309 F.3d at 1352; see also United States v.
Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995). Exhibit 5, which
involves a young boy gagged and hanging in chains from a wall,
clearly depicts sadistic conduct.
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establish that the picture is intended to give the viewer pleasure
based on the child's actual or anticipated pain.
Finally, Hoey argues that these pictures do not depict
"the gratuitous infliction of pain above and beyond that of child
pornography." This argument fails to acknowledge that pictures of
naked children alone can constitute child pornography if they
involve a "lascivious exhibition of the genitals or pubic area of
any person." 18 U.S.C. § 2256(2)(A)(v), (8). A four-level
increase is warranted when a young child has been subjected to the
additional pain of penetration or similarly violent conduct. See
Myers, 355 F.3d at 1044; Lyckman, 235 F.3d at 240.
3. What Constitutes the Portrayal of Sadistic Conduct
Hoey argues that there was insufficient evidence to
support the finding that the image portrayed sadistic or
masochistic conduct. He argues that the image must portray
sadistic conduct that actually occurred: the prosecutor must show
not only that the child is real, but that the sadism is as well.
This is a matter of interpretation of the Guidelines, which provide
that "[i]f the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence, increase by 4
levels." U.S.S.G. § 2G2.2(b)(4).
The premise of Hoey's argument is wrong, and we reject
it. That an image "portrays sadistic or masochistic conduct" does
not require that it depict actual sadistic conduct, id. (emphasis
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added); if that were the Sentencing Commission's intent, there
would be express language to that effect. The language it did
choose is to the contrary. Webster's Third New International
Dictionary defines "portray" as "to represent by drawing, painting,
engraving," "to describe in words," and to "enact." The Guidelines
simply do not require the image to be an accurate documentation of
real sadistic conduct.
There is no conflict between section 2G2.2(b)(4) and the
child pornography statute as interpreted by Ashcroft v. Free Speech
Coalition and New York v. Ferber, 458 U.S. 747 (1982). Ferber
upheld a criminal ban on the distribution of child pornography
because of the legitimate state interest in protecting "the
physiological, emotional, and mental health of the child." Id. at
758. The Court emphasized that the child is harmed not only
through the actual production of pornography, but also by the
knowledge of its continued circulation. Id. at 756-59 & n.10; see
also Ashcroft, 535 U.S. at 249 ("Like a defamatory statement, each
new publication of the speech would cause new injury to the child's
reputation and emotional well-being."). Based in significant part
on this psychological harm, the Court later upheld a statute
criminalizing the mere possession of child pornography. Osborne v.
Ohio, 495 U.S. 103, 110-11 (1990) ("[T]he materials produced by
child pornographers permanently record the victim's abuse. The
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pornography's continued existence causes the child victims
continuing harm by haunting the children in years to come.").
It is this continuing psychological harm that Hoey
overlooks. An image of an identifiable, real child involving
sadistic conduct -- even if manipulated to portray conduct that was
not actually inflicted on that child -- is still harmful, and the
amount of emotional harm inflicted will likely correspond to the
severity of the conduct depicted.
For these reasons, the child pornography statute defines
"child pornography" as including a "visual depiction [that] has
been created, adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct." 18 U.S.C.
§ 2256(8)(C) (emphasis added). While the Supreme Court in Ashcroft
held that the definitions of child pornography previously contained
in § 2256(8)(B) and (D) were unconstitutional because they reached
images that were completely fabricated, it carefully reserved
consideration of § 2256(8)(C) and noted that manipulated images of
identifiable children "implicate the interests of real children and
are in that sense closer to the images in Ferber." Aschroft, 535
U.S. at 242. Based on similar reasoning, the Eighth Circuit has
held that an image in which the face of a known child was
transposed onto the naked body of an unidentified child constituted
child pornography outside the scope of First Amendment protection.
United States v. Bach, 400 F.3d 622, 629-32 (8th Cir. 2005). We
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agree. The district court committed no error in interpreting or
applying the guideline.
B. Reasonableness of the Sentence
There was no error by the court in calculating the
Guidelines range, including the relevant departures. We turn to
whether the district court provided a reasoned explanation for the
sentence imposed. See United States v. Jiménez-Beltre, 440 F.3d
514, 518-19 (1st Cir. 2006) (en banc).
Hoey argues that the district court did not provide an
adequate explanation because it did not address to his satisfaction
his arguments for downward departures or variances, and that as a
result the sentence imposed was unreasonably severe. This argument
fails.
First, the court directly addressed Hoey's concerns. It
noted that even though Hoey possessed very few sadistic images, the
number he possessed did not make a difference under
section 2G2.2(b)(4); at any rate, those he did possess were so
graphic as to warrant no lenity. The court also acknowledged
Hoey's serious health problems, but explained that "the extent of
that illness is not such that it could not be adequately treated in
a prison facility and is not such that it calls for a departure."
See U.S.S.G. § 5H1.4 (a departure may be warranted in the case of
"an extraordinary physical impairment" (emphasis added)); United
States v. Derbes, 369 F.3d 579, 582 (1st Cir. 2004) (a health-
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related departure might be justified in the unusual case where the
defendant "would not get, or was at least unlikely to get, adequate
treatment in prison"). Hoey complains that the court did not
consider his lack of criminal history beyond assigning him to
criminal history category I, yet that is exactly how criminal
histories are accounted for under the Guidelines.
Second, the court did discuss the applicability of the 18
U.S.C. § 3553(a) factors, emphasizing the number of images Hoey
possessed, "the nature of some of these images, the nature of the
children depicted in these images," and the very young age of the
victims. No more detailed analysis of these factors is required.
United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006) ("[The
court] is not required to address those factors, one by one, in
some sort of rote incantation when explicating its sentencing
decision.").
Third, to the extent that Hoey argues these
considerations were cursory, we note once more that "a court's
reasoning can often be inferred by comparing what was argued by the
parties or contained in the pre-sentence report with what the judge
did." Jiménez-Beltre, 440 F.3d at 519; see also Rita v. United
States, 127 S. Ct. 2456, 2469 (2007) ("Where a matter is as
conceptually simple as in the case at hand and the record makes
clear that the sentencing judge considered the evidence and
arguments, we do not believe the law requires the judge to write
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more extensively."). The court heard all of Hoey's concerns,
discussed many of them with the attorneys during the hearing, and
noted that it had taken them all into account. This was not an
unusual case, and the court's subsequent explanation was
sufficient.
The court correctly determined the applicable Guidelines
range, provided an adequate explanation for its sentence, and
imposed a sentence that is reasonable. The sentence is affirmed.
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