IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 99-40982

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BOYD WILLIAM LYCKMAN,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

___________________________________________________ December 7, 2000

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Appellant-Defendant Lyckman, a former Texas high school coach

and teacher, pleaded guilty to three counts of distributing or

receiving child pornograph y

. Lyckman challenges the district

court’s enhancement of his sente nce for offenses involving (1)

material that depicts sadistic, masochistic, or other v i olent

conduct, and (2) the distribution of c hild pornography. Lyckman

also objects to the district court’s refusal to “group” his counts

of conviction. Finding no error, we affirm.

I.

Facts and Proceedings2

Lyckman came to the attention of authorities when the parents

of a 15-year-old Corpus Christi girl whom he had con tacted in a

computer “chat room” complained to the police. Following this

episode, police officers we nt to Lyckman’s residence, where he

c onsented to a search of his computer and his house. Child

pornography was found on the hard drive of Lyckman’s computer.

Through America Online, Lyckman’s internet service provider,

investigators discovered that Lyckman had transmitted by computer

a photographic image of a 12-year-old girl being sexually assaulted

by an adult. Investigators also found in Lyckman’s computer two

images of prepubescent girls having sex with adult males. More

specifically, each of the three images depicts the male sexual

organ partially inserted into the sexual organ of a pre pubescent

female.

Lyckman was indicted with two count s of distributing child

pornography involving the sexual exploitation of mino rs and five

counts of receiving such material. Pursuant to a written

agreement, Lyckman plea ded guilty to one count of distributing

child pornography and two counts of receiving the same. The

government agreed to recommend that Lyckman be given a Sentencing

Guidelines reduction for acceptance of responsibility and that he

be sentenced at the lowest end of the applicable imprisonment

range.

Lyckman’s presentence report (“PSR”) recommended a base1 See U.S.S.G. § 2G2.2(a).

2 See id. at § 2G2.2(b)(1).

3 See id. at § 2G2.2(b)(2).

4 See id. at § 2G2.2(b)(3).

5 See id. at § 2G2.2(b)(5).

6 See id. at § 3D1.4.

7 See id. at § 3E1.1.

3 o ffense level of 17 as to all three counts. 1 The PSR also

recommended the following increases applicable to all three counts:

two levels because the material involved a prepubescent minor; 2

five levels because the offense involved distribution; 3 four levels

because the material de picted violence; 4 and two levels because a

computer was used to transmit the material. 5 Lyckman’s adjusted

offense level as to each count was 30; after a multiple-count

adjustment of th ree levels, 6 he was left with a combined adjusted

offense level of 33. Lyckman was entitled to a three-level

reduction for acceptance of responsibility, 7 which yielde d a net

offense level of 30 . This level and his Category I criminal

history score resulted in a guideline imprisonment range of 97 to

121 months.

Lyckman made the following objections to the PSR: (1) The

increase based on material depicting sadism or violence was not

supported by the evidence; (2) the increase for distr ibution was

improper because “distribution” was defined as relating to8 See id. at § 3D1.2.

9 The district court did agree with the Probation Office that

the five-level enhancement for distribution was not appropriate for

the receipt offenses, and accordingly reduced Lyckman’s guideline

imprisonment range to 87 to 108 months.

4 “pecuniary gain,” whereas he had only traded images with others via

the internet; and (3) the three counts to which he pleaded guilty

were “closely related” and should have been grouped together. 8

At the sentencing hearing, th e district court overruled in

sho rt order most of Lyckman’s objections to the PSR. 9

Specifically, the district court concluded that within the meaning

of § 2G2.2(b)(3), which applies to material “that portrays sadistic

or masochistic conduct or other depictions of violence,” the term

“violence” encompasses the sexual penetration of a child by an

adult. In reaching this conclusion, the district court relied on

the testimony of Officer Robert Lee McFarland, a Corpus Christi

police office r experienced in the investigation of child

pornography on the internet, that a photograph supporting Count One

of the indictment depicted the sexual assault of a minor under

Texas law and t hat the child depicted was under the age of 12.

Officer McFarland was also of the opinion that the photograph

depicted violence done to a child. The district court further

concluded that among the photographs supporting Counts Three and

Four of the indictment, the images portraying the phy sical

penetration of children by adult males were depictions of violence

within the meaning of § 2G2.2(b)(3). The district court sentenced10 United States v. Norris , 159 F.3d 926, 929 (5th Cir. 1998).

11 See Norris , 159 F.3d at 929.

12 Id.

5 Lyckman to concurrent 95-month prison terms and three-year terms of

supervised release on each of the counts, and fined him $1000.

Lyckman now appeals that sentence.

II.

Analysis

A. Standard of Review

Whether the district court correctly interpreted the

Sentencing Guidelines is a question of law that we review de novo

. 10

We also review de novo the district court’s application of the

Sentencing Guidelines grouping rule. 11 The district court's

findings of fact and application of the Sentenc ing Guidelines to

the specific facts of the case, however, are reviewed for clear

error. 12

B. Issues

1. Enhancement for Offenses Involving Sadistic or Violent Conduct

Lyckman contends that the district court erred in applying §

2G2.2(b)(3) because the photographs at issue, which dep ict adult

males engaging in vaginal interco urse with prepubescent females,

are not “sadistic or violent” within the meaning of the guideline.

Neither the Sentencing Guidelines nor this court has defined either

“sadistic conduct” or “depictions of violence” within the meaning13 See Norris , 159 F.3d at 929.

14 See United States v. Chapman , 500 U.S. 453, 461-62 (1991).

15 See Sm ith v. United States , 508 U.S. 223, 242 (Scalia, J.,

dissenting).

16 See Deal v. United States , 508 U.S. 129, 132 (1993).

17 Webster’s Third New International Dictionary (unabridged)

2554 (1986).

18 Black’s Law Dictionary 1570 (6th ed. 1990).

6 of § 2G2.2(b)(3). Therefore, we must begin with the text of the

guideline and the plain meaning of its terms. 13 In construing these

terms, we must give them their ordinary meaning, 14 bearing in mind

the important distinction between how a word can be used and how it

ordinarily is used. 15 Likewise, we must heed the familiar caveat

that “the meaning of a word cannot be determined in isolation, but

must be drawn from the context in which it is used.” 16

Webster’s Third New International Dictionary defines

“violence” primarily as the “exertion of any physical force so as

to injure or abuse.” 17 Similarly, Black’s Law Dictionary defines

“violence” as “[1] [u]njust or unwarranted exercise of force,

usually with the accompaniment of vehemence, outrage or fury. . .

. [2] Physical force unlawfully exercised; abuse of force; that

force which is employed against common right, against the laws, and

against public liberty. . . . [3] The exertion of any physical

force so as to injure, damage or abuse.” 18

T hese definitions make clear that the term “violence,” as19 Webster’s defines “sadism” as “the infliction of pain upon

a love object as a means of obtaining sexual release,” “delight in

physical or mental cruelty, ” and the use of “excessive cruelty.”

See Webster’s Third New International Dictionary (unabridged) 1997-

98 (1986). “Masochism” is defined as “a tendency to gain or

increase sexual gratification through the acceptance of ph ysical

abuse or humiliation.” Id. at 1388.

7 ordinarily used, is not limited to activity involving “whips,

chains, beatings

. . . brutality or excessive cruelty,” as Lyckman

would restrict it. Given the ordinary meaning of “violence” as

“the exertion of any physic al force so as to injure, damage or

abuse,” it is difficult to imagine that the sexual penetration of

a prepubescent female by an adult male would not qualify as

“violence.”

We must consider the term “violence” not in isolation, but in

the context in which it is used. The venerable principle of

ejusdem generis warns against expansive interpretations o f broad

language —— here, the term “other depictions of violence” —— that

immediately f ollows narrow and specific terms —— here, the terms

“sadistic or masochistic conduct,” 19 and counsels us to construe the

broad in light of the narrow. Therefore, the general term “other

depictions of violence” casts its net no wider than necessary to

capture images akin to those incl uded by § 2G2.2(b)(3)’s more

specific terms.

Although case law inte rpreting § 2G2.2(b)(3) is sparse, the

Second, Seventh, and Eleventh Circuits have all construed the terms

“sadistic conduct” and “violence” so that the application of §20 See United States v. Delmarle

, 99 F.3d 80, 83 (2d Cir. 1996)

(holding that photograph of nude boy approximately 8-9 years of age

having an object inserted in his anus warranted the application of

§ 2G2.2(b)(3), on the ground that “subjection of a young child to

a sexual act that would have to be painful is excessively cruel and

hence is sadistic” within t he meaning of § 2G2.2(b)(3)); United

States v. Turchen , 187 F.3d 735, 738-40 (7th Cir. 1999)(holding

that photograph depicting two adult males and a nude prepubescent

male standing over a female child while urinating on her face as

she grimaced warranted the ap plication of § 2G2.2(b)(3) as a

depict ion of sadistic and masochistic conduct); U nited States v.

Garrett

, 190 F.3d 1220, 1223-24 (11th Cir. 1999) (holding that

photographs involving children between eight and eleven years of

age being penetrated vaginally and anally by adult males, including

a photograph depicting an 11 year old girl with a glass soda bottle

inserted in her vagina, portrayed acts that “would necessarily have

been p ainful to the young children involved” and therefore

justified the application of § 2G2.2(b)(3)).

21 See

, e.g.

, Uni ted States v. Canada , 110 F.3d 260, 264 (5th

Cir. 1997) (involving pho t ographs portraying anal and vaginal

penetration of children through the use of sexual devices); United

States v. Kimbrough

, 69 F.3d 723, 733 (5th Cir. 1995) (involving

computer images of a child in bondage).

2 2 Lyckman attempts to distinguish G arrett

, in which the

Eleventh Circuit held that photographs of children between eight

and eleven years of age being penetrated vaginally by adult males

justified the application of § 2G2.2(b)(3), on the basis of the

lack of medical testimony or evidence in the instant case that

8 2G2.2(b)(3) is warranted when the sexual act depicted is “likely to

cause pain in one so youn g.” 2 0 Although our cases upholding

applications of § 2G2.2(b)(3) have all involved pornographic images

depicting bondage or the insertion of foreign objects into the body

canals of a child, 2 1 such images hardly exhaust the malevolent

universe of sexua l violence against children. As the government

notes, the sexual penetration of a young girl by an adult male is

certainly no less painful, either physically or emotionall y, to

such a young child than the insertion of a foreign object. 22 Thatvaginal intercourse with an adult male would be painful to a

prepubescent female. One hardly requires a medical degree to

ascertain that vaginal intercourse with an adult male would involve

pain, both physical and emotional, for a young girl.

23 18 U.S.C. § 16 defines a crime of violence as “(a) an offense

that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another, or (b)

any other offens e that is a felony and that, by its nature,

involves a substantial risk that physical force against the person

or property of another may be used in the course of committing the

offense.” S ee United States v. Velazquez-Overa

, 100 F.3d 418, 422

(5th Cir. 1996) (holding categorically that indecency with a child

involving sexual conduct is a crime of violence within the meaning

of 18 U.S.C. § 16(b); see also United States v. Reyes-C astro , 13

F.3d 377, 379 (10th Cir. 1993) (holding that the sexual abuse of a

child is a crime of violence under 18 U.S.C. § 16(b)).

24 100 F.3d 418 (5th Cir. 1996).

25 Id. at 422 (quotations omitted).

9 being so, it was certainly reasonable for the district court to

infer that the cond uct depicted by the photographs caused the

children pain, physical or emot ional or both, and therefore

constitutes sadism or violence within the meaning of the guideline.

This conclusion draws additional support from cases that hold

indecency with a child by sexual contact and sexual abuse o f a

c hild to be crimes of violence within the meaning of 18 U.S.C. §

16. 23 In U nited States v. Velazquez-Overa

, 24 for example, we

reasoned that when an adult attempts sexual contact with a child,

such conduct is “inherently violent because the threat of violence

is implicit in the size, age, and authority position of the adult

in dealing with such a young and helpless child.” 25 Similarly, in26 13 F.3d 377 (10th Cir. 1993).

27 Id. at 379; see also United States v. Bauer , 990 F.2d 373

(8th Cir. 1993) (holding that statutory rape is a crime of

violence).

28 See 18 U.S.C. § 2256(2)(E) (stating that “sexually explicit

conduct” may consist of “lascivious exhibition of the genitals or

pubic area of any person”).

10 United States v. Reyes-Castro

, 26 the Tenth Circuit concluded that

because attempted sexual abuse of a child involves a non-consensual

act upon another person, there is always a substantial risk that

physical for ce will be used to ensure the child’s compliance. 2 7

Although the mere risk of violence is sufficient to trigger 18

U.S.C. § 16, whereas § 2G2.2( b)(3) requires actual “sadistic

conduct” or “depictions of violence ,” these cases nevertheless

bolster our conclusion that when a po rnographic image depicts an

adult male engaging in sexual intercourse with a young girl, the

conduct portrayed is sufficiently painful, coercive, abusive, and

degrading to qualify as sadistic or violent within the meaning of

§ 2G2.2(b)(3).

Lyckman contends, howev er, that “[i]f child pornography was

p er se sadistic [or] violent, then the enhancement would always

apply.” This argument is easily debunked because it obviously

ignores that child pornography may involve merely “pi ctures of a

[naked] child,” as the district court correctly observed, without

physical sexual contact. 28

Equally feckless is Lyckman ’ s argument that the district29 See id. at § 2252(a)(2)(B) and 2256(2)(E).

11 court’s application of § 2G2.2(b)(3) impermissibly constitutes

“double counting” because the victim’s pr epubescence was already

taken into account by the enhancement of his sentence under §

2G2.2(b)(1). Lyckman was convicted under a statute criminalizing

the distribution, by any means, includi ng computer, of materials

depicting minors engaged in sexually explicit conduct, including

“ lascivious exhibition of the genitals or pubic area.” 29 A

p ornographic image of a prepubescent minor engaged solely in

lascivious exhibition of the genitals would be subject to

enhancement under § 2G2.2(b)(1), which provides for a sen tencing

increase if the offense involved a prepubescent minor under the age

of twelve, but would not come within the ambit of § 2G2.2(b)(3)’s

provision for sadistic or violent conduct. The district court

could therefore consider the factor of the child’s prepubescence in

assessing the sadistic or violent quality of the images without

rendering § 2G2.2(b)(1) superfluous. Moreover, the district court

clearly relied on more than the prepubescence of the victims in

making its determinations. In limiting its finding to those images

that depicted sexual penetration, the district cour t stated that

not all of the photographs of the prepubescent children depicted

violence.

We ar e comfortable in following the lead of the Second,

Seventh, and Eleventh Circuits by holding that the application of30 See 1995 U.S.S.G. § 2G2.2(b)(2).

31 110 F.3d 260 (5th Cir. 1997).

32 See id. at 263.

12 § 2G2.2(b)(3) is warranted when the sexual act depicted is the

physical pene tration of a young child by an adult male. Such

conduct is not only “reprehensible,” as even Lyckman concedes, but

also sufficiently likely to cause pain and injury so as to qualify

as “sadistic” or “violent” for purposes of the guideline.

Consequently, we find that the district court correctly applied §

2G2.2(b)(3) to enhance Lyckman’s sentence on the basis of the

particular pornographic images at issue in this appeal.

2. Enhancement for Distribution

Lyckman next contends that the district court misapplied the

Sentencing Guidelines by enhancing his sentence on the ground that

the offense involved the “distribution” of child pornography. 30

Lyckman stresses that he was not paid for any of the pornographic

images that he sent to others over the internet, but admits that he

“traded” such images

.

Lyckman’s argument is foreclosed by o ur decision in U nited

States v. Canada

, 31 in which we held that “distribution” is not

limited to transactions entered into for pecuniary gain. 3 2 In

Canada

, we concluded that “the definition of ‘distribution’ for the

sake of the guideline is meant to be inclusive of pecuniary gain33 See id.

34 See

, e.g.

, United States v. Laney

, 189 F.3d 954, 959-61 (9th

Cir. 1999); United States v. Black

, 116 F.3d 198, 202-203 (7th Cir.

1997).

13 purposes, but not exclusive of all other purposes.” 33 Accordingly,

Lyckman’s “trading” of pornographic images falls within the ambit

of “distribution” as we defined that term in Canada

. Furthermore,

even those courts that have defined “distribution” to require

“pecuniary gain” have recognized that “pecuniary gain” is itself an

elastic concept and does not exclude the possibility of swaps,

barter, and in-kind transactions. 34 We therefore find the district

court’s application of § 2G2.2(b)(2) to enhance Lyckman’s sentence

eminently correct.

3. Refusal to Group Counts of Conviction

Lyckman also contends that the distri ct court erred by

refusing to group his three convictions pursuant to U.S.S.G. §

3D1.2(b), which provides that when a defendant has been convicted

of more than one count, the district court must gro up all counts

that involve the same victim and the same act or transaction. The

distric t court concluded that each child depicted was a “victim”

for purposes of § 3D1.2(b), so the grouping rule does not apply.

Lyckman implicitly acknowledges that we are bound by our

holding in Norris that the grouping rule does not apply to offenses

involving child pornography because the victim of child pornography35 See Norris , 159 F.3d at 931.

14 is the individual child rather tha n society at large. 3 5

Consequently, we find appropriate the district court’s refusal to

group Lyckman’s counts of conviction.

III.

Conclusion

For the reasons explained above, we find proper the district

court’s application of § 2G2.2(b)(3) and § 2G2.2(b)(2) to enhance

Lyckman’s sentence. Likewise, we find proper the district court’s

refusal to group Lyckman’s co unts of conviction pursuant to §

3D1.2(b). Consequently, his sentence is

AFFIRMED.