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: Second Circuit Sentencing BlogSadism And The Guidelines
United States v. Freeman, Docket No. 08-1886-cr., 2009 WL 2430667 (2d Cir. Aug. 10, 2009)
On appeal, Freeman challenged the district court's application of a four level enhancement for the possession of images containing sadistic or masochistic conduct. See U.S.S.G. 2G2.2(b)(4) ("If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels"). Freeman did not prevail. Indeed, the Second Circuit held that "when a District Court makes an objective determination that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, the court establishes an adequate basis for the application of the enhancement set forth in section 2G2.2(b)(4)."
More specifically, the Second Circuit relied on its prior decision in United States v. Delmarie, 99 F.3d 80 (2d Cir. 1996), finding that that case set forth two principles. First, the determination of whether an image is sadistic . . . is an objective one." As the Second Circuit explained:
the purpose of the act depicted [and] the reaction of the actor are irrelevant to this determination. A sentencing court need not determine whether the people depicted in the image are deriving sexual pleasure from the infliction of pain; nor need it gauge whetehr the viewer of the picture is likely to derive pleasure from the fact that the image displays painful sexual acts. There is also no need for the sentencing court to determine either why the defendant possessed the images or whether he derived pleasure from them. . . . In sum, the subjective intent of those depicted in the image and of those who view the image are entirely irrelevant to the application of this enhancement. All that matters, as the text of the relevant provision of the Guidelines makes clear, is whether the material portrays masochistic conduct or other depictions of violence. This determination must e made based on an objective analysis of the material in question.
Second, the Second Circuit found that "if a sentencing court finds that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, that court need not make any additional findings in order to impose a four-level enhancement" under Section 2G2.2(b)(4) of the Guidelines.
Full post as published by Second Circuit Sentencing Blog on October 21, 2009 (boomark / email).

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