United States v. Jason Shouse ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30134
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-00071-DLC-1
JASON CHARLES SHOUSE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Submitted June 3, 2014*
Seattle, Washington
Filed June 24, 2014
Before: Alfred T. Goodwin, M. Margaret McKeown,
and Paul J. Watford, Circuit Judges.
Opinion by Judge McKeown
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. SHOUSE
SUMMARY**
Criminal Law
The panel affirmed a sentence imposed following the
defendant’s guilty plea to one count of production of child
pornography and one count of penalties for registered sex
offenders.
Applying case law interpreting identical language in
United States Sentencing Guideline § 2G2.2(b)(4), the panel
held that the district court did not abuse its discretion in
applying an enhancement under § 2G2.1(b)(4) for sexual
exploitation of a minor by production of sexually explicit
visual or printed material that portrayed sadistic or
masochistic conduct or other depictions of violence.
The panel held that the district court did not abuse its
discretion by ordering the sentence to run consecutively to the
defendant’s undischarged state sentence.
The panel rejected the defendant’s plea for
reconsideration of the Ninth Circuit’s sentencing review
standard and his argument that the district court imposed an
unreasonable sentence by ignoring his arguments in favor of
leniency and downward sentencing adjustments.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SHOUSE 3
COUNSEL
Anthony R. Gallagher, Federal Defender, District of
Montana, Great Falls, Montana, for Defendant-Appellant.
Michael W. Cotter, United States Attorney; Cyndee L.
Peterson, Assistant United States Attorney, District of
Montana, Missoula, Montana, for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
Jason Charles Shouse appeals a sentence imposed by the
district court following his guilty plea to one count of
production of child pornography in violation of 18 U.S.C.
§ 2251(a) and one count of penalties for registered sex
offenders in violation of 18 U.S.C. § 2260A. Shouse’s
advisory sentencing guideline range was 360 to 720 months
for both counts. The district court sentenced Shouse within
this guideline range—480 months’ imprisonment for the
production of child pornography offense, a mandatory
consecutive term of 120 months’ imprisonment for the
penalties for registered sex offenders count, and a small
assessment, for a total of 50 years’ imprisonment followed by
a lifetime term of supervised release. We affirm the sentence
imposed by the district court.
I. Sentence Enhancement Challenge
At issue is United States Sentencing Guideline
§ 2G2.1(b)(4), which falls under sentencing enhancements for
“sexually exploiting a minor by production of sexually
4 UNITED STATES V. SHOUSE
explicit visual or printed material.” U.S. Sentencing
Guidelines Manual § 2G2.1 (2012). Section 2G2.1(b)(4)
provides a four-level sentence enhancement “[i]f the offense
involved material that portrays sadistic or masochistic
conduct or other depictions of violence.” Shouse argues that
the images and videos obtained by law enforcement, “while
distasteful and deviant, are not possessed of the kind of pain,
coercion, abuse and denigration that implicate[]
§ 2G2.1(b)(4).” We disagree.
Because the terms “sadistic,” “masochistic,” and
“depictions of violence” are not defined in the guidelines, we
employ their plain meaning. See United States v. Flores,
729 F.3d 910, 914 (9th Cir. 2013) (“[U]nless defined, words
in a statute will be interpreted as taking their ordinary,
contemporary, common meaning.” (internal quotation marks
omitted)); see also United States v. Maurer, 639 F.3d 72,
77–78 (3d Cir. 2011) (relying on plain meaning to interpret
“sadistic or masochistic conduct” and “depictions of
violence” under § 2G2.2(b)(4)). “Sadistic” content involves
“infliction of pain upon a love object as a means of obtaining
sexual release,” “delight in physical or mental cruelty,” or
“excessive cruelty.” Webster’s Third New International
Dictionary 1997–98 (1993). “Masochism” is “sexual
gratification through the acceptance of physical abuse or
humiliation,” while “violence,” as applied in this narrow
context, is the “exertion of any physical force so as to injure
or abuse.” Id. at 1388, 2554.
Although we have not considered the application of these
terms with respect to the production of child pornography
under § 2G2.1(b)(4), we see no reason to deviate from our
precedent with respect to identical language in § 2G2.2(b)(4)
for the receipt and possession of child pornography, both of
UNITED STATES V. SHOUSE 5
which stem from the same chapter on “sexual exploitation of
a minor.” See, e.g., United States v. Rearden, 349 F.3d 608,
615–16 (9th Cir. 2003) (interpreting and applying
enhancement pursuant to current § 2G2.2(b)(4)1).
Consequently, the operative phrase in these two guidelines
carries precisely the same meaning, and our key cases
pertaining to § 2G2.2(b)(4)—United States v. Rearden and
United States v. Holt—apply with equal force to the
§ 2G2.1(b)(4) enhancement at issue here. See, e.g., United
States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004)
(holding that the term “crime of violence” is identical in
meaning regardless of its exact location in the guidelines).
In Rearden, we joined multiple circuits in holding that
images involving an adult male penetrating prepubescent
children are sadistic or masochistic because the conduct
depicted “necessarily hurt the child.” 349 F.3d at 614–16
(noting accord with the Second, Fifth, and Eleventh Circuits).
The sadistic nature of the material arose from the “adult
male’s pleasure at the expense of the child’s pain,” due to acts
that were “necessarily painful” to the child. Id. at 615. We
reiterated this conclusion in Holt, stating that “a district court
can apply the sadistic conduct enhancement any time images
portray the penetration of prepubescent children by adult
males because such images are necessarily pleasurable for the
participant and painful for the child.” 510 F.3d 1007, 1011
(9th Cir. 2007).
Here, the undisputed evidence is that Shouse produced
child pornography that portrayed sadistic, masochistic, or
1
At the time of Rearden’s sentencing, the corresponding and
substantively identical guideline provision was § 2G2.2(b)(3). U.S.
Sentencing Guidelines Manual § 2G2.2(b)(3) (2001).
6 UNITED STATES V. SHOUSE
other violent content warranting an enhancement under
§ 2G2.1(b)(4). Shouse was found to have an expansive cache
of child pornographic material, including 82 child
pornography images on an iPhone, and an old cellular phone
SD card containing 264 child pornography images as well as
18 child pornography videos, nearly all of which Shouse
produced himself as he committed sexual acts on a female
infant. The videos reveal Shouse penetrating and ejaculating
on the infant while she cries for her “mom or mommy” and
the images show pre-pubescent children being penetrated and
children that Shouse admits are in “bondage.” Rearden and
Holt leave no doubt that this material qualifies as sadistic or
masochistic content. Rearden, 349 F.3d at 615–16; Holt,
510 F.3d at 1011–12. The meaning of sadistic or masochistic
with respect to Shouse’s conduct is not ambiguous, as he
contends; the photographic material that he possessed
indisputably fits the bill.
Shouse relies on an Eighth Circuit case, United States v.
Parker, to assert that there is a distinction between deviant
depictions that do not warrant the application of an
enhancement for sadistic or masochistic content or material
depicting violence from those that do. 267 F.3d 839 (8th Cir.
2001). Yet Parker does not stand for this proposition.
Rather, the court in Parker held that the district court erred in
deciding that the conduct portrayed in the photographs at
issue, including an adult male ejaculating onto a crying baby,
“was merely deviant and not violent or sadistic.” Id. at 847.
We acknowledge Shouse’s point that child pornography,
albeit abhorrent and deviant, may not necessarily qualify as
sadistic in all instances. Our case law, however, demands
more than mere possession or production of child
pornography to fall under the rubric of sadistic or masochistic
content; it also requires the taking of delight in inflicting pain
UNITED STATES V. SHOUSE 7
or in acting cruelly or violently. See Rearden, 349 F.3d at615–16; Holt, 510 F.3d at 1011–12.
Shouse further argues that, for the § 2G2.1(b)(4)
enhancement to apply, the government must demonstrate that
he specifically intended to produce the sadistic materials.
Nothing in the text of § 2G2.1(b)(4) requires a finding of
intent, and we see no reason to read one in. To the extent that
the Sentencing Commission has provided any guidance on the
matter, the application notes appended to § 2G2.2(b)(4) and
§ 2G3.1(b)(4), which prescribe the sadism enhancements for
related offenses, clarify that the other enhancements apply
“regardless of whether the defendant specifically intended to
possess, access with intent to view, receive, or distribute such
materials.” U.S. Sentencing Guidelines Manual § 2G2.2 cmt.
n.2 (2012); see U.S. Sentencing Guidelines Manual § 2G3.1
cmt. n.3 (2012). Shouse’s argument, which relies on out-of-
circuit precedent that predates the application notes to
§ 2G2.2 and § 2G3.1, is unpersuasive.
Finally, because § 2G2.1(b)(4) is not ambiguous, the rule
of lenity is inapplicable to Shouse’s claim. See United States
v. LeCoe, 936 F.2d 398, 402 (9th Cir. 1991). The district
court did not abuse its discretion in applying an enhancement
under § 2G2.1(b)(4).2
2
An intra-circuit split remains as to whether we review the district
court’s application of the guidelines to the facts de novo or for abuse of
discretion. See United States v. Tanke, 743 F.3d 1296, 1306 (9th Cir.
2014). Either way, the standard of review does not affect the outcome of
this case. Id.8 UNITED STATES V. SHOUSE
II. Consecutive Sentence Challenge
Shouse’s argument that the district court erred by ordering
the sentence to run consecutive to Shouse’s undischarged
state sentence rather than concurrently or partially
concurrently is also unavailing. Under U.S.S.G. § 5G1.3, the
district court has broad discretion to determine how the
sentence imposed should run: in cases “involving an
undischarged term of imprisonment, the sentence for the
instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term
of imprisonment to achieve a reasonable punishment for the
instant offense.” Id.; see 18 U.S.C. § 3584(a) (“[I]f a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms
may run concurrently or consecutively. . . .”). The district
court need not “always specifically justify its choice between
concurrent and consecutive sentences” but may support its
consecutive sentence by clearly explaining “its choice of the
sentence as a whole with reference to the factors listed in
§ 3553(a).” United States v. Fifield, 432 F.3d 1056, 1066
(9th Cir. 2005); see United States v. Chea, 231 F.3d 531, 538
(9th Cir. 2000) (requiring that the district court “give careful
consideration to each of the factors specifically enumerated
in the guideline and determine, based on those factors,
whether a concurrent, partially concurrent, or consecutive
sentence will achieve a reasonable punishment and avoid
unwarranted disparity” (internal quotation marks omitted)).
The district court did just that. It acknowledged its
discretion to impose a concurrent, partially concurrent, or
consecutive sentence. It examined the § 3553(a) factors,
considering the very serious, “horrific,” “dangerous,” and
“predatory” nature of Shouse’s offenses, the number of
UNITED STATES V. SHOUSE 9
images, and the disturbing nature of the videos found. It
discussed Shouse’s personal history and characteristics,
including ineffective prior treatment, which actually helped
Shouse to determine how he “might further offend young
girls,” and his subsequent re-offense within 14 months of
release from custody. It weighed what sentence would
constitute just punishment and evaluated “the need to protect
the public from further criminal behavior” by Shouse. It
deliberated “what [would be] a sufficient but not greater than
necessary sentence” under § 3553(a), and ultimately chose a
sentence in accordance with an application note to § 5G1.3
recommending a consecutive sentence when a defendant is on
probation or parole at the time of the offense. U.S.
Sentencing Guidelines Manual § 5G1.3, cmt. n.3(C) (2012).
Accordingly, the district court did not abuse its discretion in
selecting a consecutive sentence. See United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008).
III. Reasonableness Challenge
Finally, Shouse relies on United States v. Booker to argue
that the district court imposed an unreasonable sentence by
ignoring his arguments in favor of leniency and downward
sentencing adjustments. 543 U.S. 220, 264 (2005) (plurality
opinion). Rather than pointing to specific arguments or
claims that the district court failed to consider, Shouse makes
a general plea for reconsideration of our court’s sentencing
review standard. We have no basis, or authority, to conduct
such a review here. See Avagyan v. Holder, 646 F.3d 672,
677 (9th Cir. 2011) (“A three-judge panel cannot reconsider
or overrule circuit precedent unless an intervening Supreme
Court decision undermines an existing precedent of the Ninth
Circuit, and both cases are closely on point.” (internal
quotation marks omitted)).
10 UNITED STATES V. SHOUSE
Upon review, if “[t]he record makes clear that the
sentencing judge listened to each argument” and “considered
the supporting evidence,” the reasons the district court
provides for a within-guideline sentence are “legally
sufficient.” Rita v. United States, 551 U.S. 338, 358 (2007).
The district court need only explain the sentence as a whole,
while considering the § 3553(a) factors and whether the
sentence is “sufficient, but not greater than necessary.”
Carty, 520 F.3d at 991–92 (internal quotation marks omitted).
In imposing a sentence within the guideline range, the
district court’s explanation was neither brief nor cursory. The
court discussed the specific nature of the offense involving
“an extremely young female of approximately 3 years of age”
and “horrific predatory and dangerous behavior.” The record
is clear that the court considered the § 3553(a) factors,
including Shouse’s criminal history and probation violations
for similar offenses, the need for just punishment that was
“sufficient but not greater than necessary,” public safety, and
deterrence, as discussed above. The court weighed all of the
evidence provided, including the comprehensive presentence
investigation report and Shouse’s objections to the report,
Shouse’s sentencing memorandum, and extensive arguments
by counsel, plus a statement by Shouse. The court explained
that it had conducted a thorough review of Shouse’s claims
and the § 3553(a) factors and it demonstrated sufficient
consideration of all of the supporting evidence provided to
the court. Nothing more was required. See Rita, 551 U.S. at358–59; Carty, 520 F.3d at 991.
AFFIRMED.