United States v. David Malsch

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4391
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
David Malsch, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 16, 2007
Filed: February 26, 2007
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
David Malsch appeals the sentence imposed after he pleaded guilty to one count
of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). He argues
the district court1 erred in finding a preponderance of the evidence showed one of the
pictures attributed to Malsch portrayed sadistic conduct which warranted a four-level
increase in his base offense level under the U.S. Sentencing Guidelines (U.S.S.G. or
Guidelines). We affirm the judgment of the district court.
1
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
"On appeal of a sentence, we review de novo the district court's application of
the sentencing guidelines and its factual findings for clear error." United States v.
Davidson, 437 F.3d 737, 739-40 (8th Cir. 2006). Section 2G2.2(b)(3) of the 2003
Guidelines provides: "If the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence, increase by 4 levels." "We have
defined the term sadism as the infliction of pain on a love object to obtain sexual
release, and as delight in physical or mental cruelty" and "violence as the exertion of
physical force to injure or abuse." United States v. Diaz, 368 F.3d 991, 992 (8th Cir.
2004). Images depicting an adult penetrating or attempting to penetrate a minor are
per se sadistic because "[s]uch images portray conduct sufficient to presume the
infliction of mental or physical coercion or abuse upon a minor." United States v.
Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (per curiam).
The district court determined the picture in question depicted an adult male
sexually penetrating a minor. Malsch concedes the picture depicts a minor, "who
appears to be around twelve years old," being penetrated by a male penis. Appellant's
Br. 8. But Malsch argues it is impossible to tell if the male penetrating the minor is
an adult, because the picture is of poor quality and the male is positioned below the
minor leaving his face and much of his body obscured. The district court found the
male penetrating the minor possessed a quantity of pubic hair, mature genitalia, and
a mature hand inconsistent with a child's anatomy and consistent with an adult's
anatomy.
On clear error review, we will not reverse "the district court's account of the
evidence" if it "is plausible in light of the record viewed in its entirety." Anderson v.
City of Bessemer City, 470 U.S. 564, 574 (1985). "Where there are two permissible
views of the evidence, the factfinder's choice between them cannot be clearly
erroneous. . . . This is so even when the district court's findings . . . are based . . . on
physical or documentary evidence or inferences from other facts." Id. (citations
omitted). After a review of the record, we find the district court's determination the
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picture showed an adult male penetrating a minor is a permissible view of the
evidence. Therefore, under Belflower, the image is per se sadistic and application of
the specific offense adjustment set forth in U.S.S.G. § 2G2.2(b)(3) was not error.
Accordingly, we affirm.
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