Federal Judiciary

United States v. Freeman, Docket No. 08-1886-cr., 2009 WL 2430667 (2d Cir. Aug. 10, 2009)

On appeal, Freeman challenged the district court's application of 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").  Freeman did not prevail.  Indeed, the Second Circuit held 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)."

More specifically, the Second Circuit relied on its prior decision in United States v. Delmarie, 99 F.3d 80 (2d Cir. 1996), finding that that case set forth two principles.  First, the determination of whether an image is sadistic . . . is an objective one."  As the Second Circuit explained:

Second, the Second Circuit found that "if a sentencing court finds that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, that court need not make any additional findings in order to impose a four-level enhancement" under Section 2G2.2(b)(4) of the Guidelines.