Wisconsin Court Did Not Err When it Adjusted Man's Child Pornography Sentence Upward by Four Levels Due to Sadistic Nature of Images

By Reddin & Singer

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Under certain circumstances, a criminal sentence in a federal case may be adjusted upwards based on a defendant’s alleged conduct. In United States v. Johnson, a Wisconsin man was accused of possession of child pornography and production of pornography while on probation for second-degree assault of a child. The man apparently admitted to violating the terms of his probation by contacting minor females through various social media accounts and requesting sexually explicit photos of the girls that he stored on his cell phone. Several of the photos included a 12-year-old child inserting items such as a screwdriver into her vagina.

As part of a plea agreement, the man pleaded guilty to one count of producing child pornography and one count of possession of child pornography. At his sentencing, the court concluded that the photos depicting the child inserting items into her genitalia constituted masochistic or sadistic material. Although the pictures were allegedly taken at the request of the man, the girl testified at a preliminary hearing that she took the photos of her own volition. Despite this discrepancy, the district court found that whether the man requested the pictures at issue was irrelevant because he admitted to coercing the girl into creating pornographic images. As a result, the man’s punishment was adjusted upward by four levels pursuant to U.S.S.G. § 2G2.1(b)(4). The man was then sentenced to serve 20 years in prison and supervised release for life.

Next, the convicted man appealed the district court’s decision to apply § 2G2.1(b)(4) to his case to the Seventh Circuit Court of Appeals. According to the man, the lower court committed error when it adjusted his sentence upward because the photographs at issue were not masochistic or sadistic within the meaning of the law. The man claimed the pictures of the girl inserting items into her vagina were merely “distasteful, inappropriate, and offensive” but no more degrading than other instances of child pornography.

According to the Seventh Circuit Court of Appeals, a district court’s interpretation of sentencing guidelines must be reviewed de novo. In addition, the appellate court said any findings of fact made by a lower court are reviewed for clear error. Next, the appeals court examined the statute at issue. The Seventh Circuit said such a law must be examined using the ordinary or plain meaning of the text. The Court of Appeals then stated the man was correct in asserting that the lower court was required to determine whether the images at issue were objectively, rather than subjectively, sadistic.

After considering relevant case law, the age of the girl, and “the potentially violent connotations readily associated with a workshop tool such as a screwdriver,” the appellate court held that the lower court did not commit error when it applied § 2G2.1(b)(4) to the man’s case. Because of this, the Seventh Circuit Court of Appeals affirmed the district court’s judgment.

If you are accused of possessing or producing child pornography in Wisconsin, you are advised to consult a veteran Milwaukee criminal defense lawyer as soon as possible. To learn more about your rights and options, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call today at (414) 271-6400. We may also be reached through our phone number (414) 271-6400.

Additional Resources

United States v. Johnson, Court of Appeals, 7th Circuit 2015

Photo Credit: DodgertonSkillhause, MorgueFile