United States v. Jermaine Johnson , 784 F.3d 1070 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERMAINE L. JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13 CR 018— Rudolph T. Randa, Judge.
ARGUED JANUARY 8, 2015 — DECIDED APRIL 20, 2015
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Jermaine L. Johnson pleaded guilty
to one count of production of child pornography, see 18 U.S.C.
§ 2251(a), and one count of possession of child pornography,
see 18 U.S.C. § 2252(a)(4)(B). At sentencing, the parties disputed
whether several photographs showing Johnson’s twelve-year-
old victim inserting foreign objects into her vagina were
sadistic or masochistic. See U.S.S.G. § 2G2.1(b)(4). The court
2 No. 14-2240
concluded over Johnson’s objection that one of the photo-
graphs warranted the four level upward adjustment for
sadistic or masochistic images. On appeal, Johnson contends
that the district court erroneously enhanced his sentence under
§ 2G2.1(b)(4). Although our reasoning is slightly different than
that of the district court, we affirm.
I.
While Johnson was on probation for a previous conviction
for second degree assault of a child in Waukesha County,
Wisconsin, his probation officers Jacob Leannais and Rebecca
Lesada discovered evidence suggesting that he may have
reoffended. Specifically, Agent Leannais found over 3,000
photos on Johnson’s phone. Most of the photos were sexually
explicit and Leannais believed several of the individuals
pictured may have been minors. Agent Lesada had also
received a tip from an individual who reported that Johnson
had a Facebook account and was posting ads on Craigslist.
Based on this information, Leannais and Lesada contacted
Special Agent Eric Szatkowski from the Wisconsin Department
of Justice to assist with their investigation of Johnson. Lesada
then contacted Johnson and directed him to report to her office.
Although initially Johnson denied having violated his
probation, he eventually admitted that he had a Facebook
account, four e-mail accounts, and that he owned the phone
with the sexually explicit photos. Subsequent searches of
Johnson’s car and his apartment led to the discovery of a cell
phone, camera, and flash drive. These contained images of two
minor females—identified as Minor Female A and Minor
Female B—that Johnson had met on MySpace and Facebook.
No. 14-2240 3
Johnson connected with Minor Female A in July 2009, when
she had just turned twelve years old. Johnson identified
himself on MySpace with the username “DA photographer.”
After Johnson chatted online through MySpace with Minor
Female A, he added her as a “friend” and they exchanged
telephone numbers and photos of one another. Johnson told
the girl that he was twenty-three years old (he was in fact
thirty-three at the time), and she falsely claimed to be fifteen as
opposed to twelve (her birthday had been just three weeks
before). Johnson began asking her to meet him and also
instructed her to take various explicit photographs of herself
and text the pictures to him. Although she protested that his
requests made her feel “stupid,” Minor Female A proceeded to
take and send photographs of herself inserting her finger into
her vagina and also inserting a highlighter and the handle of a
screwdriver into her vagina. Johnson responded by sending
Minor Female A a photo of his erect penis.
Johnson also persuaded Minor Female A to meet him. He
picked her up from the bus stop at school and took her to a
hotel in Milwaukee where the two engaged in various sex acts,
including anal and vaginal intercourse. Agents recovered
twenty-one images of Minor Female A on a thumb drive
belonging to Johnson and on a personal computer hard drive
that belonged to Johnson’s girlfriend at the time.
Minor Female B was a tenth-grade student in Milwaukee
who was contacted by Johnson on Facebook. He sent her a
friend request and suggested that he take pictures of her at the
Milwaukee lakefront. He then picked her up several times
from her home and took photographs of her both at the
lakefront and, ironically, at the group home for sex offenders
4 No. 14-2240
where he was living at the time. Agents recovered over 100
photographs from Johnson’s cell phone in a file labeled with
Minor Female B’s name. Twelve of these images are naked
photographs of the minor focusing primarily on her genitals.
Johnson ultimately pleaded guilty to one count of produc-
tion of child pornography and one count of possession of child
pornography. Pursuant to the plea agreement, the government
dismissed the remaining count of the indictment for produc-
tion of child pornography involving Minor Female B. Based on
a total offense level of 36 and a criminal history category of III,
the presentence investigation report (“PSR”) calculated an
advisory guidelines range of 235 to 293 months. This calcula-
tion included a four-level upward adjustment under U.S.S.G.
§ 2G2.1(b)(4) for material portraying sadistic or masochistic
conduct or other depictions of violence. Specifically, the PSR
recommended the application of § 2G2.1(b)(4) based on the
photographs of Minor Female A inserting the screwdriver and
highlighter into her vagina. At sentencing, the parties focused
on whether the photograph with the screwdriver should be
considered sadistic or masochistic.
The probation officer who prepared the PSR recounted that
Johnson told the victim to get a screwdriver and insert the
handle into her vagina. At the preliminary hearing in
Waukesha County, however, the victim testified only that
Johnson asked her to take pictures of herself and also asked her
to “do certain things” in some of the photographs. When asked
if Johnson specifically asked her to take pictures “depicting any
kind of objects” the victim testified, “I did [that] on my own.”
The district court did not resolve the factual discrepancy as to
whether the victim took the pictures with the screwdriver and
No. 14-2240 5
highlighter at Johnson’s request or on her own initiative.
Instead, the court noted that her testimony at the preliminary
hearing should be considered in the “context of a courtroom
setting where the Defendant was present.” The court further
opined that it was questionable whether a twelve-year-old
would be “of a mind to be clear” as to what she had done
voluntarily. The court ultimately deemed it irrelevant whether
Johnson requested those specific images or not given the
undisputed fact that Johnson had admittedly employed, used,
persuaded, induced, enticed, and coerced the victim’s partici-
pation.
Johnson argued at sentencing that as distasteful as the
photograph was, it did not rise to the level of a sadistic,
masochistic, or violent depiction under the relevant case law,
which generally considered circumstances where the adjust-
ment more obviously applied, such as images depicting
bondage or the obvious infliction of pain. Here the district
court accepted as a factual matter that the screwdriver “was
not a size sufficient to cause pain.” The court then noted that
physical pain was not required for the application of
§ 2G2.1(b)(4) if the image portrayed humiliating and degrading
conduct. The district court stated that “in the whole animal
kingdom, only human beings—in the whole animal kingdom
there’s only one purpose of the vagina. At least in the animal
kingdom, besides the human animal, besides the human
animal. And that’s for the insertion of a penis. And as ex-
plained by the defense, in the case of a young lady who has
reached that time in her life where she has to use something
like a tampon.” From this the court reasoned that any object
being used sexually for something other than its intended
6 No. 14-2240
purpose was “abnormal.” The district court went on to
conclude that the victim’s comment that she felt “stupid”
doing the things Johnson asked demonstrated that it was an act
of humiliation and degradation. The court further based its
conclusion on the fact that twelve-year-olds are vulnerable,
emotionally unstable, and generally not capable of thinking for
themselves. The court determined that the adjustment was
appropriate because anyone seeing a picture of a twelve-year-
old inserting the handle of a screwdriver into her vagina would
think “God that’s disgusting. How humiliated, how degraded
does one have to be to do that?” Given Johnson’s calculating
manipulation of the victim, the district court opined that the
image was humiliating and degrading and that § 2G2.1(b)(4)
applied.
The court sentenced Johnson to 240 months’ imprisonment,
a sentence at the low end of the 235 to 293-month range. The
court also imposed supervised release for life. Johnson appeals,
challenging only the court’s application of § 2G2.1(b)(4).
II.
Johnson argues that the district court erred by applying
§ 2G2.1(b)(4) because the photograph was neither sadistic,
masochistic, nor violent as required by the guideline. Johnson
acknowledges that the photograph, like all child pornography,
is distasteful, inappropriate, and offensive. He claims, how-
ever, that qualitatively it is no more degrading or humiliating
to the victim than child pornography generally, and therefore
does not rise to the level of inherently cruel, degrading, or
sadistic behavior that would support the § 2G2.1(b)(4) enhance-
ment. He also takes issue with the district court’s assessment
No. 14-2240 7
that the photograph was sadistic in part because the victim
reported feeling “stupid” about it.
We review the district court’s interpretation of the sentenc-
ing guidelines de novo, and its findings of fact for clear error.
See, e.g., United States v. Fletcher, 763 F.3d 711, 715 (7th Cir.
2014). Section 2G2.1(b)(4) simply instructs the district court to
increase the base offense level by four levels “[i]f the offense
involved material that portrays sadistic or masochistic conduct
or other depictions of violence.” When interpreting the
guidelines, courts must begin with the text of the provision and
the plain meaning of the words in the text. See United States v.
Turchen, 187 F.3d 735, 739 (7th Cir. 1999). Undefined guideline
terms that do not have a common law meaning are given their
ordinary meaning. Id. The district court relied on Turchen,
where we recognized that the ordinary dictionary definitions
of sadism and masochism make clear that violence and
physical pain and suffering are not a prerequisite for sadistic
or masochistic conduct. Id. (Noting that sadistic and masoch-
istic conduct includes “sexual gratification which is purpose-
fully degrading and humiliating” and that “violence is not
necessarily found in such conduct.”); see also United States v.
Raplinger, 555 F.3d 687, 694 (8th Cir. 2009) (“[Section
2G2.1(b)(4)] applies to material depicting sadistic, masochistic,
or violent conduct even if those pictured were not truly
engaging in painful activities.”) (emphasis in original); United
States v. Starr, 533 F.3d 985, 1001 (8th Cir. 2008) (rejecting
defendant’s argument that victim must suffer “pain or injury”
in order for masochism enhancement to apply). The Oxford
English Dictionary defines sadism as “[e]nthusiasm for
inflicting pain, suffering, or humiliation on others; spec. a
8 No. 14-2240
psychological disorder characterized by sexual fantasies, urges,
or behaviour involving the subjection of another person to
pain, humiliation, bondage, etc.” (Third ed. Mar. 2008). It
defines masochism as “The urge to derive pleasure, esp. sexual
gratification, from one's own pain or humiliation; the pursuit
of such pleasure.” Id. Given that Johnson responded to the
image in question by sending the victim a photograph of his
erect penis, it is undisputed that he derived sexual pleasure
from the image.
After noting that sadistic and masochistic conduct may
include purposefully humiliating or degrading depictions, the
district court focused on whether this image depicted an act
that would be “humiliating and degrading to a just-turned 12
year old.” Because the court concluded that the screwdriver
did not necessarily cause the victim pain, it focused solely on
whether the depiction was humiliating and degrading. In
concluding that it was, the district court focused on the victim’s
statement that she felt “stupid” about taking the pictures
Johnson requested. The district court extrapolated from the
victim’s statement that it was “a degradation” and “a humilia-
tion” because she was used and persuaded to take the photo-
graphs.
Johnson asserts that by improperly focusing on the victim’s
subjective emotions instead of whether the image would be
objectively considered degrading or humiliating to the point
that it would be recognized as sadistic, the court’s analysis
would subject almost any defendant who had created child
pornography to the upward adjustment.
No. 14-2240 9
We agree with Johnson that given the language of the
guideline, the proper question is whether the image itself
would be objectively considered sadistic. See Raplinger,
555 F.3d at 695 (noting counsel’s concession that “the guideline
applies to what the material portrays rather than what the
victim experiences”). Once physical pain or suffering is taken
from the equation, it would be a slippery slope if courts
inquired in each instance whether a particular victim felt
degraded. Indeed, presumably any victim of child pornogra-
phy has been humiliated and degraded to an extent. We thus
focus on whether a depiction of a young girl inserting the
handle of a screwdriver into her vagina would be considered
objectively sadistic in nature.
Given the age of the victim and the potentially violent
connotations readily associated with a workshop tool such as
a screwdriver, we conclude that the district court did not err by
imposing the four-level increase under § 2G2.1(b)(4). The
Eighth Circuit has recognized that images depicting the
insertion of a foreign object into a minor’s genitalia are likely
to be sadistic or masochistic in nature. In Starr, the panel
rejected the defendant’s contention that § 2G2.1(b)(4) did not
apply in circumstances similar to the one here with one
noteworthy distinction—the victim was seventeen as opposed
to barely twelve. 533 F.3d at 990, 1001. The defendant in Starr
had asked the victim to take video photos and video footage of
herself, id. at 990. The victim had thereafter created a video
chronicling her daily life that also showed her masturbating
and “performing anal penetration.” Id. On appeal, the defen-
dant objected to the upward adjustment for masochism,
arguing that there was no evidence that the victim had
10 No. 14-2240
experienced any pain or injury. He also attempted to distin-
guish previous cases applying § 2G2.1(b)(4) involving “pene-
tration by a foreign object” as inapplicable because his victim
was seventeen years old as opposed to a young child. Id. The
Eighth Circuit rejected these arguments as unpersuasive. In
doing so, Starr relied on United States v. Parker, 267 F.3d 839
(8th Cir. 2001), where the court considered images depicting,
among other things, “sexual penetration by a minor girl upon
herself by using a large carrot,” id. at 847. The court in Parker
noted that “[g]iven the plain meaning of ‘violence,’ it is
difficult to imagine that the sexual penetration with a foreign
object of a minor female would not qualify as ‘violence’ even
if self-inflicted,” Id. We would not go so far as the Eighth
Circuit in suggesting the self-penetration by a minor of a
foreign object would always be violent or sadistic. As Johnson
points out, certainly there are circumstances where self-
penetration by a foreign object would be within the realm of
sexual exploration or self-pleasuring—it is certainly not our
place to opine on the varied and creative sexual proclivities of
even minor individuals. Nor do we countenance the district
court’s commentary opining that the sole purpose of the
vagina is for the insertion of the penis. Indeed, among the other
potential purposes for the vagina, the indisputably significant
purpose of childbirth comes to mind as but one example
beyond “the insertion of the penis.”
Notwithstanding this, we agree that on these facts the
image connotes violence of a sort that would likely appeal to
a sadistic audience. See United States v. Hoey, 508 F.3d 687, 691
(1st Cir. 2007) (“It follows that an image’s portrayal of sadistic
conduct includes portrayal of conduct a viewer would likely
No. 14-2240 11
think is causing pain to a depicted young child.”). In short, the
district court’s conclusion that the victim may not have
suffered any pain and the fact that she inserted the screwdriver
herself do not preclude a finding that the image is nonetheless
sadistic or violent in nature. In addition to its conclusion that
the image depicted a degrading and humiliating act, the
district court specifically found that Johnson “persuaded,
induced, enticed, and coerced” the victim to take these photo-
graphs and he succeeded because he was very “clever,”
“careful,” and “calculating.” These factual findings support the
notion that Minor Female A was not inserting a screwdriver
into her vagina for her own pleasure, nor would she have
conceived of doing such a thing had she not been manipulated
and coerced by Johnson.
We thus conclude that an image of a young girl inserting a
screwdriver into her vagina connotes a degree of potential pain
and violence such that the upward adjustment under
§ 2G2.1(b)(4) is appropriate. A screwdriver is ordinarily used
in a workshop setting for applying force with a sharp and
potentially dangerous point. Although the district court
focused on humiliation and degradation, we are less certain
that this particular image would be universally considered
degrading. The district court relied on Turchen, 187 F.3d at 737,
where we concluded that although it did not necessarily depict
pain, an image of individuals urinating on a minor victim’s
grimacing face were undoubtedly purposefully degrading and
humiliating under § 2G2.1(b)(4). The image here may fall short
of the sort of excessive cruelty and humiliation depicted in
Turchen, but it carries a sufficient connotation of violence and
cruelty that the district court did not err by applying the
12 No. 14-2240
§ 2G2.1(b)(4) enhancement for images portraying sadistic
conduct or other depictions of violence. Cf. id. at 740 (noting
that violent conduct is unnecessary and § 2G2.1(b)(4) applies
when image portrays physical and mental harm or excessive
cruelty).
III.
For the foregoing reasons we AFFIRM the judgment of the
district court.