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United States v. Freeman

August 10, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
BRANDAN R. FREEMAN, DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) sentencing defendant-appellant principally to a seventy-eight month term of imprisonment for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). Defendant-appellant challenges the District Court's imposition of a four-level sentencing enhancement pursuant to U.S.S.G § 2G2.2(b)(4) for the possession of materials portraying sadistic or masochistic conduct. Where, as here, a district court finds that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, the court provides an adequate explanation of its decision to impose an enhancement under section 2G2.2(b)(4).

Affirmed.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: May 8, 2009

Before: CABRANES and WALLACE*fn1, Circuit Judges.*fn2

Brandan R. Freeman appeals from a judgment of conviction entered on April 8, 2008, in the United States District Court for the Western District of New York (Charles J. Siragusa, Judge), for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2).*fn3 On appeal, Freeman challenges his sentence on the ground that the District Court erred by imposing a four-level enhancement for the possession of images containing sadistic or masochistic conduct. See U.S.S.G. § 2G2.2(b)(4) ("If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels."). In light of the District Court's finding that the acts depicted in the photographs "would have to be painful," J.A. 123, and our holding in United States v. Delmarle that it is "within the [district] court's discretion to conclude that the subjection of a young child to a sexual act that would have to be painful is excessively cruel and hence is sadistic within the meaning of § 2G2.2(b)[(4)]," 99 F.3d 80, 83 (2d Cir. 1996), we reject Freeman's challenge. We hold that when a District Court makes an objective determination that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, the court establishes an adequate basis for the application of the enhancement set forth in section 2G2.2(b)(4).

BACKGROUND

During the summer of 2006, Freeman, then a resident of Spencerport, New York, applied for a position in the Sheriff's Office of Maricopa County, Arizona. As part of the application process, Freeman was interviewed by a polygraph examiner, and, in the course of that examination, he admitted that he had previously obtained child pornography from the internet in his New York home. The Sheriff's Office informed New York State authorities of Freeman's admission, and the New York authorities commenced an investigation, obtaining a warrant to search the computers located at Freeman's residence. On August 17, 2006, police officers executed the search warrant, seizing two computers. They also gave Freeman the opportunity to accompany them to the police station in order to make a statement. At the station, Freeman admitted that he viewed child pornography over the internet-an admission that was corroborated by a subsequent examination of the computers seized from Freeman's residence, which contained over two hundred images of child pornography. Several of the images stored on Freeman's computers depicted adult males vaginally penetrating prepubescent females.

The local New York authorities referred the matter to the U.S. Attorney's Office for the Western District of New York. On January 3, 2008, Freeman pleaded guilty, pursuant to a plea agreement, to a one-count information alleging that he received child pornography, in violation of 18 U.S.C. § 2252A(a)(2). At his plea colloquy, Freeman admitted that he "knowingly received images of child pornography on a computer" and that the "images had been shipped or transported in interstate and foreign commerce." J.A. 49. The District Court accepted Freeman's plea of guilty and ordered his detention pending sentencing.

The District Court held a sentencing hearing on April 4, 2008. According to a presentence investigative report ("PSR") prepared by United States Probation Office, Freeman's total offense level under the U.S. Sentencing Guidelines was 30, and his criminal history category was I, corresponding to an advisory Guidelines range of 97 to 121 months' imprisonment. Freeman's total offense level in the PSR included, among other things, a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1,*fn4 and a four-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4) for his possession of sadistic or masochistic images. Counsel for Freeman objected to these two enhancements, and the District Court sustained the objection to the obstruction of justice enhancement, concluding that the facts of this case did not show that Freeman had obstructed justice within the meaning of the relevant provision.*fn5

The District Court denied defense counsel's objection to the four-level enhancement authorized by section 2G2.2(b)(4) of the Guidelines for the possession of images containing sadistic or masochistic conduct. In what the District Court described as "one of the more difficult aspects of its responsibilities," J.A. 122, it reviewed the photographs in question to determine whether they "portray[ed] sadistic or masochistic conduct or other depictions of violence," U.S.S.G. § 2G2.2(b)(4). The District Court described a sampling of the photographs as follows:

One depicts an obviously prepubescent [girl] engaging in intercourse with an adult male. The second photograph . . . depicts . . . , again, a prepubescent girl, I judge, to be 7 or 8 with a penis inserted in her vagina; . . . [another] is a picture of an obviously prepubescent girl with a penis in her mouth and an adult penis in her vagina at the same time; . . . [another] picture [is] of an obviously prepubescent child with her legs spread open, an adult male holding his penis in close proximity to her vagina and there appears to be a sock stuck in her mouth; . . . [another picture showed] obviously, prepubescent children with their hands-with one's hands tied to the other's legs.

J.A. 121-22. Relying on our holding in Delmarle that it is "within the [district] court's discretion to conclude that the subjection of a young child to a sexual act that would have to be painful is excessively cruel and hence is sadistic within the meaning of [section] 2G2.2(b)([4])," 99 F.3d at 83, the District Court concluded, based on its review of the photographs, that "an adult male inserting his penis into the vagina of a prepubescent child . . . [who in some cases was] as young as 6 or 7 years old would have to be painful," J.A. 123. Having made this determination, the Court ruled that the enhancement applied to Freeman's conduct. Defense counsel objected to the ruling.

Additional argument from defense counsel and the government ensued. The District Court then calculated Freeman's sentencing range under the advisory Guidelines, determining that Freeman's total offense level was 28 and his criminal history category was I, which corresponded to an advisory sentencing range of 78 to 97 months' imprisonment. The District Court sentenced Freeman at the low end of the Guidelines range-78 months' ...


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