United States v. Shouse

It is not abuse of discretion for the trial court to apply enhancement factors under United States Sentencing Guideline § 2G2.2(b)(4) or order the sentence run consecutively to an undischarged state sentence 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.

Jason Charles Shouse ("Shouse") pleaded guilty "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. [The] advisory sentencing guideline range was 360 to 720 months for both counts." Shouse was sentenced to "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." Shouse appealed the sentence imposed by the district court on the grounds that the court abused its discretion by enhancing his sentence contending that the child pornography that he possess, while abhorrent and deviant, was not sadistic or masochistic as required under the statute. Shouse also contended that the imposition of consecutive sentences to his undischarged state sentence constituted reversible error. The Ninth Circuit held that under the plain language of the statute and the standard meaning of the terms sadistic or masochistic, and the case law interpreting the meaning and applicability of the terms, the child pornography that Shouse possessed met the criteria for application of enhancement and was sadistic or masochistic by portraying that it involved "infliction of pain upon a love object as a means of obtaining sexual release, delight in physical or mental cruelty, or excessive cruelty . . . [or] sexual gratification through the acceptance of physical abuse or humiliation." The panel also held that the district court has the discretion to "impose a concurrent, partially concurrent, or consecutive sentence" and did so after explaining and examining the characteristics of the defendant and the facts. Lastly the panel held that by imposing a sentence within the guidelines the district court was reasonable, therefore the sentence imposed is AFFIRMED.