United States v. Drew Alexander Young ( 2017 )

Case: 16-11774 Date Filed: 01/04/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11774
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-10013-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DREW ALEXANDER YOUNG,
a.k.a. Drew Y,
a.k.a. dyshizzl,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 4, 2017)
Before MARCUS, WILSON, and FAY, Circuit Judges.
PER CURIAM:
Case: 16-11774 Date Filed: 01/04/2017 Page: 2 of 3
Drew Young appeals his 235-month sentence, imposed after he pleaded
guilty to one count of sexually exploiting a minor for the purpose of producing a
visual depiction of sexually explicit conduct, in violation of 18 U.S.C. § 2251(a).
Specifically, Young appeals the district court’s application of a four-level
enhancement, under U.S.S.G. § 2G2.1(b)(4), for an offense involving material
portraying sadistic, masochistic, or otherwise violent content. Young argues that
the photo did not depict subjugation or pain, as the minor acted of her own volition
and was not directed by Young.
“We review a sentencing court’s findings of fact for clear error and its
application of the guidelines de novo.” United States v. Victor, 719 F.3d 1288,
1290 (11th Cir. 2013). Ultimately, “[t]he government bears the burden of
establishing the applicability of a sentencing enhancement by a preponderance of
the evidence.” Id.
Here, the district court properly applied the four-level enhancement. Among
the evidence produced was an image of a 13-year-old girl penetrating herself with
a stick. Section 2G2.1(b)(4) provides a four-level enhancement for an offense that
“involved material that portrays sadistic or masochistic conduct or other depictions
of violence.” U.S.S.G. § 2G2.1(b)(4). In interpreting § 2G2.1(b)(4) and similar
guidelines, we have repeatedly held that photographs depicting children being
vaginally or anally penetrated, regardless of whether it is by adults or foreign
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objects, are sadistic. See United States v. Hall, 312 F.3d 1250, 1262–63 (11th Cir.
2002) (involving an image of an adult male penetrating a girl under the age of 12);
United States v. Caro, 309 F.3d 1348, 1351 (11th Cir. 2002) (involving photos of
“prepubescent girls being anally and vaginally penetrated by use of foreign
objects”); United States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002)
(involving photographs of children being vaginally and anally penetrated by adult
males); United States v. Garrett, 190 F.3d 1220, 1224 (11th Cir. 1999) (involving a
photo of “an 11 year old girl with a glass soda bottle in her vagina”).
Further, we have never applied a subjugation requirement for § 2G2.1(b)(4).
We have instead focused on the content that is depicted in the image at issue. See
generally Hall, 312 F.3d 1250; Caro, 309 F.3d 1348; Bender, 290 F.3d 1279;
Garrett, 190 F.3d 1220. We decline to adopt such a requirement now. Upon
review of the record and consideration of the parties’ briefs, we affirm.
AFFIRMED.
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