Skip to main content

Sentencing enhancement for sadistic, masochistic, or violent materials and two special conditions of supervised release upheld

In United States v. Maurer, No. 10-3049 (April 22, 2011) the Third Circuit affirmed the procedural reasonableness of a 60-month sentence for possession of child pornography and two special conditions of supervised release.

The Court rejected Maurer’s challenge to application of a four-level sentencing enhancement for material “that portrays sadistic or masochistic conduct or other depictions of violence,” U.S.S.G. § 2G2.2(b)(4), and held that a sentencing court “need only find, by a preponderance of the evidence, that the image depicts sexual activity involving a prepubescent minor that would have caused pain to the minor.”

The Court found that the application of U.S.S.G. § 2G2.2(b)(4) did not constitute an abuse of discretion, nor was the enhancement unconstitutionally vague or overly broad. The ordinary meaning of the terms sadism and masochism provides courts with sufficient guidance. Although violence can be interpreted broadly, courts must construe its meaning narrowly because it follows “sadistic and masochistic conduct.” Despite the narrow definitions, the Court explained that the application of § 2G2.2(b)(4) is not limited to circumstances where pain is the result of sexual penetration by an adult or bondage of the child. Citing cases from other circuits, the Court gave the examples of other acts which would justify the enhancement: sexual gratification which is purposefully degrading or humiliating or conduct which causes mental suffering or psychological or emotional injury. Expert testimony is not required for the court to make the finding. Finally, it is a strict liability enhancement: the sentencing court need not determine the defendant intended to possess the images or actually derived pleasure from viewing them. Applying this standard, the Court found the sentencing court made the appropriate findings.

Maurer also challenged two special conditions to be imposed over his five years of supervised release: (1) a prohibition on internet use, unless specifically approved by Probation; and (2) a prohibition on “any contact with children of either sex, under the age of 18, without the expressed approval” of Probation. The Court found that the nature of Maurer’s computer use, the character and size of his collection, and his stated sexual interest in minors justified both conditions.

As for internet use, the Court considered the length and coverage of the restriction, and underlying conduct. Although Maurer only pled guilty to possession, his internet use went beyond simply obtaining child pornography. He did not sexually exploit a minor, but was willing to use the internet to facilitate a sexual encounter and told a supposed 18-year old boy that he was interested in meeting younger boys. Thus, his use triggered concerns of predation. Also, the restriction was sufficiently narrow because it did not restrict all computer – just internet – access and a five-year restriction fell comfortably within the range of restrictions previously upheld.

Similarly, the facts showed that Maurer was a risk to children such that restriction on “any contact” with minors was appropriate, regardless of his offense of conviction. The “any contact” restriction was permissibly cabined to Probation’s ministerial role, unlike previously invalidated restrictions (1) to “follow the directions [of Probation] regarding any contact with children,” or (2) on “any contact” with children, imposed for a lifetime, on a defendant who had young children.


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …