Submitted, Seattle, Washington: June 3, 2014, [*]
Appeal from the United States District Court for the District of Montana. D.C. No. 4:12-cr-00071-DLC-1. Dana L. Christensen, Chief District Judge, Presiding.
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.
Before: Alfred T. Goodwin, M. Margaret McKeown, and Paul J. Watford, Circuit Judges. Opinion by Judge McKeown.
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 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 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)). 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 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 ...