### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 41346 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v. VANESSA LISLA CLOUD,

Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:14

- CR

- 130

Before WIENER, HIGGINSON, and COSTA, Circuit Judges

. PER CURIAM: * Vanessa Cloud appeals the application of the “sadism” enhancement under U.S.S.G. § 2G2.1(b)(4) to her offense of aiding and abetting sexual exploitation of a child. Cloud contends that the sadism enhancement requires a finding that she “purposefully” intend ed to humiliate or degrade her son.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 6, 2015 Lyle W. Cayce Clerk Case: 14-41346 Document: 00513262192 Page: 1 Date Filed: 11/06/2015No. 14

- 41346

2 Because the district court did not clearly err in making the factual determination that Cloud’s conduct was sadistic , we AFFIRM.
I. Vanessa Cloud confessed to Child Protective Services that she had been
sexuall y molesting her then seven

- year
- old son, John Doe. Cloud admitted
that she performed oral sex on Doe ; that Doe had sucked her breast and penetrated Cloud’s vagina with his sexual organ and fist ; and that Doe’s father had videotaped the activity. When Doe was eight years old, he was interviewed
and said that he had had sexua l intercourse with his mother and he had been made to do “sexual things.” Cloud’s cell phone was seized and found to contain five videos

— all showing sexual activity between Cloud and John Doe with both giggling during oral sex. Cloud pleaded guilty to a iding and abetting the sexual exploitation of a child for the purpose of producing child pornography, in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 2. The Presentence Report applied the four

- point
section 2G2.1(b)(4) enhancement for an offense that i nvolved material portraying sadistic or masochistic conduct or other depictions of violence. C loud objected on the ground that humiliation “was not the purpose behind the material being made the way it was made.” She also argued that her conduct
lacked the t raditional hallmarks of sadism, and that her conduct didn’t “rise to a level of humiliation” under the guideline s

. The government agreed with Cloud and added tha t in this case, unlike others in which the enhancement had been applied, it was the mothe r rather than the child who was penetrated. In response to Cloud’s objections, the probation office stated that the sadism enhancement was appropriate because “the victim was debased, causing mental pain, for the purpose of sexually gratifying the defenda nt.” The district court rejected Cloud’s obj ection and the government’s concurrence stating: Case: 14-41346 Document: 00513262192 Page: 2 Date Filed: 11/06/2015No. 14

- 41346

3 This law protects all children. Ther e is lifelong humiliation and degradation to these children fro m the behavior in Count One. A mother imposing upon a seven

- y ear
- old child an act that she did of oral sex and then attempti ng an act of intercourse and then also achieving penetration of herself by another one of his limbs humiliates and degra des children. You cannot take the definition of what would humiliate and degra de an adult and apply it to children to the sa me degree. Children are more sensitive, have less defenses buil t into themselves, a greater trust of adults. Their relationsh ip is totally different. How John Doe will get over those memories is John D oe's struggle.
The district court then adopted the PSR “as written.”

II. Whether the district court correctly interpreted the Sentencing Guidelines is a question of law that we review de novo

. United States v. Lyckman , 235 F.3d 234, 237 (5th Cir. 2000)

. But t he district court’s application of the Sentencing Guidelines to the facts of the case are reviewed only for clear

error. 1 Id.
III. Section 2G2. 1(b)(4) applies when the “offense involved material that portrays sadistic or masochistic conduct or ot her depictions of violence.” U.S.S.G. § 2G2.1(b)(4). T he Guidelines do not define the term “sadistic.” We
thus have inte rpre ted “sadistic conduct” by looking to Webster’ s definition of
sadism

— “the infliction of pain upon a love object as a means of obt aining sexual release,” the “delight in physical or mental cruelty,” and the use of “excessive cruelty.” Lyckman , 235 F.3d at 238 n.19. We have also noted that

1 The government argues that Cloud’s objections i n the district court were insufficient to alert the court to Cloud’s argument on appeal. An objection must be sufficiently specific to alert the court to the nature of the error argued on appeal. United States v. Neal , 578 F.3d 270, 272 (5th Cir. 2009). Th e record reflects that Cloud’s objections, insofar as they centered on whether the material depicted sadistic conduct for purposes of § 2G2.1(b)(4), sufficiently alerted the district court to the argument that Cloud raises on appeal. Case: 14-41346 Document: 00513262192 Page: 3 Date Filed: 11/06/2015No. 14

- 41346

4 application of the enhancement is warranted when the “sexual act depicted is likely to cause pa in in one so young.” Id. at 238. And we have not limited pain
to the physical type

. See id. at 239 (“ [T] he conduct depicted by the photographs caused the children pain, physical or emotional or both, and therefore
constitutes sadism or violence within the m eaning of the guideline

. ”); United States v. Comeaux , 445 F. App'x 743, 745 (5th Cir. 2011) (“[A]n absence of physical pain is not per se outside the ambit of the enhancement for sadistic acts under § 2G2.1(b)(4)”)

. Cloud argues that our case law requires a specific finding that the defendant engaged in the conduct for the purpose of degrading and humiliating the victim, a finding that she contends the district court did no t make. She relies on the following sentence in Comeaux : “sa distic and masochistic conduct includes sexual gratification which is purposefully degrading and humiliating.” 445 F. App’x at 745. This gives too much effect to a single sentence in an unpublished opinion that did not purport to describe the only
situati on to which the enhancement applies , especially when the holding in that same opinion refers not to intent but to effect: “We hold only that where, as here, a district court finds that the child victim depicted in the child pornography at issue was humili ated or debased, the enhancement . . . may apply.” Id . at 746. T hat effect on the victim has often been the inquiry in our
case law. See Lyckman , 235 F.3d at 239 (finding that the “conduct depicted by the photographs caused the children pain, physical o r emotional or both” and

“ therefore constitutes sadism . . . within the meaning of the guideline ” ) ; United States v. Desadier , 495 F. App'x 501, 50 2 (5th Cir. 2012) ; see also United States
v. Maurer , 639 F.3d 72, 80 (3d Cir. 2011) (finding that the enhancement should apply “ whenever an im age depicts sexual activity involving a prepubescent minor that would have caused pain ” ); United States v. Delmarle , 99 F.3d 80, 83 (2d Cir. 1996) (“ whatever might be inferred as to the purpose of the act Case: 14-41346 Document: 00513262192 Page: 4 Date Filed: 11/06/2015No. 14

- 41346

5 depicted or the reaction of the actor, it was within the 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 ” ). And the Guideline itself
does not require a “purposeful” fin d i ng . U.S.S.G. § 2G2.1(b)(4). Because the district court was not required to separately find that Cloud “purposefully” intended to humiliate or degrade John Doe through her conduct, we only need review for clear error its fin ding that the conduct portrayed was in fact “humiliating and degrading” for the seven

- year
- old victim. That is not a difficult determination. The district court correctly recognized that application of the sadism enhancement to cases involving young vict ims is not limited to the situation when an adult male penetrates a
young girl. Lyckman , 235 F.3d at 239. The horrendous conduct inflicted on John Doe in this case can easily support a finding that he was humiliated and degraded. The judgment is AFFIRMED. Case: 14-41346 Document: 00513262192 Page: 5 Date Filed: 11/06/2015