United States v. Batres , 284 F. App'x 584 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
July 16, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-3198
v. (D. Kansas)
IGNACIO BATRES, JR., (D.C. No. 07-CR-10019-WEB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
I. Introduction
Appellant Ignacio Batres, Jr. was convicted of possessing child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The Presentence
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Investigation Report (“PSR”) calculated a base offense level of eighteen to which
it recommended applying a four-level increase because the pornographic material
possessed by Batres portrayed “sadistic or masochistic conduct or other
depictions of violence.” U.S.S.G. § 2G2.2(b)(4). Batres filed a written objection
to the PSR, contesting, inter alia, this four-level increase to his base offense
level. The district court overruled the objection and sentenced Batres to seventy
months’ imprisonment, the low end of the advisory guidelines range. Batres
appeals, challenging the application of the four-level increase. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Batres’s sentence.
II. Discussion
Batres was charged in a three-count indictment with possessing child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), distributing child
pornography, in violation of 18 U.S.C. § 2252(a)(2), and criminal forfeiture,
pursuant to 18 U.S.C. § 2253(a)(3). He entered into a written plea agreement
with the Government and ultimately pleaded guilty to the possession and
forfeiture charges. A United States Probation Officer then prepared a PSR which
calculated Batres’s base offense level as eighteen. See U.S.S.G. § 2G2.2(a)(1).
Adjustments to the base offense level resulted in a net increase of twelve levels.
Batres filed written objections to the imposition of a recommended enhancement
pursuant to U.S.S.G. § 2G2.2(b)(4), which provides for a four-level increase to
the base offense level if the offense of conviction “involved material that portrays
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sadistic or masochistic conduct or other depictions of violence.” The district
court overruled the objection and applied the enhancement when it calculated
Batres’s advisory guidelines range. 1 The court sentenced Batres to seventy
months’ imprisonment based on a total offense level of twenty-five and a criminal
history of III. In this appeal, Batres argues his sentence is procedurally
unreasonable because the district court incorrectly calculated his advisory
guidelines range when it applied the § 2G2.2(b)(4) enhancement.
This court reviews federal criminal sentences for reasonableness, applying
a deferential standard of review. Gall v. United States, 128 S. Ct. 586, 591, 594
(2007). “A sentence is procedurally unreasonable if the district court incorrectly
calculates or fails to calculate the Guidelines sentence, treats the Guidelines as
mandatory, fails to consider the § 3353(a) factors, relies on clearly erroneous
facts, or inadequately explains the sentence.” United States v. Haley, No. 07-
5041, 2008 WL 2514156, at *3 (10th Cir. June 25, 2008). In this appeal, Batres
confines his argument to an assertion that the district court incorrectly calculated
his advisory guidelines range.
The base offense level of a defendant convicted of violating 18 U.S.C.
§ 2252(a)(4)(B) is properly increased by four levels if the material he possessed
“portrays sadistic or masochistic conduct or other depictions of violence.”
1
Batres also objected to a recommended five-level enhancement pursuant to
U.S.S.G. § 2G2.2(b)(3)(B). That objection was sustained by the district court and
the enhancement is not relevant to this appeal.
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U.S.S.G. § 2G2.2(b)(4). After viewing several of the images retrieved from
Batres’s computer, the district court found that they depicted sexual penetration
of prepubescent children by adults and Batres does not challenge this finding.
Applying our holding in United States v. Kimler, 335 F.3d 1132, 1143 (10th Cir.
2003), the district court concluded the factual basis for the § 2G2.2(b)(4)
enhancement was properly inferred “from the particular nature of the images and
what is portrayed therein.” It is clear that the district court did not err.
In Kimler, we held that an image of an adult sexually penetrating a
prepubescent child portrays conduct from which a court can presume that pain
and humiliation were inflicted upon the child as a means to give sexual
gratification to the viewer of the image and, thus, is inherently sadistic or violent
for purposes of § 2G2.2(b)(4). 335 F.3d at 1143; accord United States v. Hoey,
508 F.3d 687, 691-92 (1st Cir. 2007); United States v. Diaz, 368 F.3d 991, 992
(8th Cir. 2004); United States v. Myers, 355 F.3d 1040, 1043-44 (7th Cir. 2004);
United States v. Caro, 309 F.3d 1348, 1351-52 (11th Cir. 2002); United States v.
Lyckman, 235 F.3d 234, 238-39 (5th Cir. 2000); United States v. Delmarle, 99
F.3d 80, 83 (2d Cir. 1996). Contrary to Batres’s arguments, there is no further
burden on the part of the Government to prove that the adult in the image derived
sexual pleasure from the act. We also reject Batres’s argument that the facial
expressions of the child victims or the staging of the photograph to present these
heinous acts in a “positive light” is relevant to the inquiry. Once the district court
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has found that the images depict the sexual penetration of young children by
adults, the enhancement may be properly applied. Kimler, 335 F.3d at 1143.
III. Conclusion
The sentence imposed by the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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