In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-3497

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARTIN C. MYERS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Central District of Illinois.

No. 02 CR 40057—Michael M. Mihm, Judge.

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ARGUED MAY 22, 2003—DECIDED JANUARY 22, 2004

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Before BAUER, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Martin C. Myers was indicted on

four counts relating to child pornography. He pled guilty to

two counts, including receiving in interstate commerce

images of children engaged in sexually explicit conduct,

consisting of three videotapes, in violation of 18 U.S.C. §

2252(a)(2), and possession of three or more images of

children engaged in sexually explicit conduct in the form of

video-cassette tapes and computer-generated image files

which had been transported in interstate commerce, in

violation of 18 U.S.C. § 2252(a)(4)(B). The district court

sentenced him to 42 months incarceration, and he appeals

that sentence on two grounds.
2 No. 02-3497

First, Myers argues that the district court erred in calculating his base level as seventeen pursuant to U.S.S.G. §

2G2.2 which is the provision for receipt of child pornography, rather than a base level of fifteen pursuant to

U.S.S.G. § 2G2.4 which applies to possession of child

pornography. Although he pled guilty to receipt of child

pornography, he contends that the specification of a higher

offense level for the offense of receipt of child pornography

than for the possession of child pornography is irrational,

and therefore violative of the due process and equal protection guarantees of the Constitution. Second, Myers challenges the imposition of a four-level enhancement under

U.S.S.G. § 2G2.2(b)(3) based on the court’s determination

that the offense involved material portraying sadistic or

masochistic conduct, or other depictions of violence.

I.

Count I to which Myers pled guilty, 18 U.S.C.

§ 2252(a)(2), proscribes the knowing receipt of child pornography that has traveled in interstate commerce. Count

III, in contrast, criminalizes the knowing possession of such

child pornography. 18 U.S.C. § 2252(a)(4)(B). Because

Myers pled guilty to both receipt and possession of child

pornography, the court applied the stricter Sentencing

Guideline provision for receiving child pornography,

U.S.S.G. § 2G2.2, rather than the provision for possessing

such material, U.S.S.G. § 2G2.4, with the result that his

base offense level was 17 rather than 15. Myers essentially

argues that the distinction between receipt and possession

of child pornography is meaningless, because anyone in

possession of child pornography must have received it at

some point in time, and therefore he contends that it is

irrational to impose a higher sentence for the receipt than

for mere possession. Myers’ argument is without merit. 
No. 02-3497 3

The Supreme Court has held that the prohibition on

receipt of child pornography in § 2252(a)(2) includes a

scienter requirement, and therefore encompasses only

situations in which the defendant knows that the material

he is receiving depicts minors engaged in sexually explicit

conduct. United States v. X-Citement Video, Inc., 513 U.S.

64, 78 (1994). Accordingly, a person who seeks out only

adult pornography, but without his knowledge is sent a mix

of adult and child pornography, will not have violated that

statutory provision. That same person, however, could be in

violation of the possession provision of § 2252(a) (4)(B) if he

or she decides to retain that material, thereby knowingly

possessing it. See 18 U.S.C. §§ 2252(a)(4)(B) and 2252(c)

(requiring knowing possession, and including an affirmative

defense where such material is promptly and in good faith

destroyed or reported to law enforcement.) It is certainly

not irrational to punish more severely the person who

knowingly receives such material, because it is that person

who is creating and/or perpetuating the market for such

material. As numerous courts have recognized, increasing

the punishment when the conduct involves receiving such

materials, trafficking in such materials, or producing such

materials, serves the purpose of the statute to end the

abuse of children because those actions are more directly

tied to the market for such products. United States v.

Ellison, 113 F.3d 77, 81 (7th Cir. 1997) (distinctions in §

2252 assigning a lower base level for mere possession are

intended to punish more harshly conduct that creates or

strengthens the market for child pornography; “even the

receipt of the prohibited materials for personal use, without

more, keeps producers and distributors of this filth in

business.”); United States v. Grosenheider, 200 F.3d 321,

332-33 (5th Cir. 2000) (“Congress established a series of

distinctly separate offenses respecting child pornography,

with higher sentences for offenses involving conduct more

likely to be, or more directly, harmful to minors than the
4 No. 02-3497

mere possession offense”); see also United States v.

Sromalski, 318 F.3d 748, 753 (7th Cir. 2003). Because

possession and receipt are not the same conduct and

threaten distinct harms, the imposition of different base

offense levels is not irrational and therefore Myers’ challenge must fail. Myers pled guilty to receiving such materials, and therefore the district court properly calculated his

base offense level under § 2G2.2. See Ellison, 113 F.3d at

81-82.

II.

Myer also argues that the court erred in concluding that

the child pornography he pled guilty to receiving supported

the four-level enhancement under U.S.S.G. § 2G2.2(b)(3) as

material “that portrays sadistic or masochistic conduct or

other depictions of violence.” Moreover, Myers contends that

imposition of that enhancement impermissibly doublecounts conduct already accounted for in the base offense

and in the two-level enhancement under U.S.S.G.

§ 2G2.2(b)(1) for the involvement of prepubescent children.

The child pornography that formed the basis for the

challenged enhancement was a video entitled “Doctor’s

Appointment.” That video depicted an adult male engaging

in vaginal intercourse with a prepubescent girl. When the

video was described to Myers prior to his purchase of it, the

girl was identified as 8 years old, although a doctor using

the Tanner Scale of Human Development estimated that

the girl was actually between 5 and 6 years old. The district

court held that vaginal intercourse between a prepubescent

girl of such a young age with an adult male would necessarily cause pain to the girl, and therefore fell within the

enhancement as conduct that was “sadistic” or “otherwise

violent conduct.” 

As the district court noted, that holding was consistent

with the holdings of other courts to consider the issue. For
No. 02-3497 5

instance, in United States v. Garrett, 190 F.3d 1220, 1224

(11th Cir. 1999), the court held that a photograph is sadistic

under § 2G2.2(b)(3) when it depicts the subjection of

a young child to sexual acts that would have to be painful,

including vaginal or anal penetration by adult males.

Similarly, the Fifth Circuit in United States v. Lyckman,

235 F.3d 234, 240 (5th Cir. 2000), held that “when the

sexual act depicted is the physical penetration of a young

child by an adult male, . . . [s]uch conduct is . . . sufficiently

likely to cause pain and injury so as to qualify as ‘sadistic’

or ‘violent’ for purposes of the guideline [§ 2G2.2(b)(3)].” We

approved of a similar definition in United States v. Turchen,

187 F.3d 735, 740 (7th Cir. 1999) quoting United States v.

Delmarle, 99 F.3d 80, 83 (2d Cir. 1996), in which we agreed

with the Second Circuit that sadistic conduct includes

conduct “quite likely to cause pain in one so young.”

In this case, the age of the girl was between 5 and 8, and

the district court properly held that vaginal intercourse

would have been painful. In fact, the district court made

findings further supporting that holding, stating that in the

video there appeared to be some difficulty in the adult

actually inserting the penis into the vagina because of the

size disparity. That disparity was even noted in the description of the video given to Myers, which stated “[i]t is

amazing how much of his big [penis] is able to fit in the

eight year olds’ [vagina].” There is no doubt that the videotape here portrayed conduct that would have caused pain to

the child, and therefore the district court properly held that

the video portrayed “sadistic conduct” or “other depictions

of violence.”

Myers contends, however, that even if that definition is

met, the enhancement is nevertheless improper because it

impermissibly double-counts conduct already taken into

account in the base level offense (for depictions of sexual

conduct with a minor) and the two-level enhancement
6 No. 02-3497

under § 2G2.2(b)(1) (for the involvement of prepubescent

children). This argument is meritless. To be guilty of the

base offense, Myers must knowingly receive materials

depicting a child engaged in “sexually explicit conduct.” 18

U.S.C. § 2252. Such conduct includes “lascivious exhibition

of the genitals or pubic area of any person.” 18 U.S.C.

§ 2256(2). Therefore, photos of a minor alone could violate

the statute. If that child is prepubescent, the two-level

enhancement under § 2G2.2(b)(1) is appropriate, as is

the case here, but neither the base offense conduct nor

the prepubescent status of the minor would implicate the

four-level enhancement under § 2G2.2(b)(3). It is the

conduct taken with respect to that prepubescent child that

justifies that four-level enhancement. In this case, the

videotape had the added element of depicting an act that

would have caused pain to the prepubescent child. Accordingly, the conduct for which the four-level enhancement was

applied is distinct from that which formed the base offense

and which supported the two-level enhancement, and

therefore Myers’ claim of impermissible double-counting

must fail. The decision of the district court is affirmed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-22-04