In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2240

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JERMAINE L. JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 13 CR 018— Rudolph T. Randa, Judge.

ARGUED JANUARY 8, 2015 — DECIDED APRIL 20, 2015

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Jermaine L. Johnson pleaded guilty

to one count of production of child pornography, see 18 U.S.C.

§ 2251(a), and one count of possession of child pornography,

see 18 U.S.C. § 2252(a)(4)(B). At sentencing, the parties disputed

whether several photographs showing Johnson’s twelve-yearold victim inserting foreign objects into her vagina were

sadistic or masochistic. See U.S.S.G. § 2G2.1(b)(4). The court
2 No. 14-2240

concluded over Johnson’s objection that one of the photographs warranted the four level upward adjustment for

sadistic or masochistic images. On appeal, Johnson contends

that the district court erroneously enhanced his sentence under

§ 2G2.1(b)(4). Although our reasoning is slightly different than

that of the district court, we affirm. 

I.

While Johnson was on probation for a previous conviction

for second degree assault of a child in Waukesha County,

Wisconsin, his probation officers Jacob Leannais and Rebecca

Lesada discovered evidence suggesting that he may have

reoffended. Specifically, Agent Leannais found over 3,000

photos on Johnson’s phone. Most of the photos were sexually

explicit and Leannais believed several of the individuals

pictured may have been minors. Agent Lesada had also

received a tip from an individual who reported that Johnson

had a Facebook account and was posting ads on Craigslist.

Based on this information, Leannais and Lesada contacted

Special Agent Eric Szatkowski fromtheWisconsin Department

of Justice to assist with their investigation of Johnson. Lesada

then contacted Johnson and directed him to reportto her office. 

Although initially Johnson denied having violated his

probation, he eventually admitted that he had a Facebook

account, four e-mail accounts, and that he owned the phone

with the sexually explicit photos. Subsequent searches of

Johnson’s car and his apartment led to the discovery of a cell

phone, camera, and flash drive. These contained images of two

minor females—identified as Minor Female A and Minor

Female B—that Johnson had met on MySpace and Facebook.
No. 14-2240 3

Johnson connected with Minor Female A in July 2009, when

she had just turned twelve years old. Johnson identified

himself on MySpace with the username “DA photographer.”

After Johnson chatted online through MySpace with Minor

Female A, he added her as a “friend” and they exchanged

telephone numbers and photos of one another. Johnson told

the girl that he was twenty-three years old (he was in fact

thirty-three at the time), and she falsely claimed to be fifteen as

opposed to twelve (her birthday had been just three weeks

before). Johnson began asking her to meet him and also

instructed her to take various explicit photographs of herself

and text the pictures to him. Although she protested that his

requests made her feel “stupid,” Minor Female A proceeded to

take and send photographs of herself inserting her finger into

her vagina and also inserting a highlighter and the handle of a

screwdriver into her vagina. Johnson responded by sending

Minor Female A a photo of his erect penis.

Johnson also persuaded Minor Female A to meet him. He

picked her up from the bus stop at school and took her to a

hotel in Milwaukee where the two engaged in various sex acts,

including anal and vaginal intercourse. Agents recovered

twenty-one images of Minor Female A on a thumb drive

belonging to Johnson and on a personal computer hard drive

that belonged to Johnson’s girlfriend at the time. 

Minor Female B was a tenth-grade student in Milwaukee

who was contacted by Johnson on Facebook. He sent her a

friend request and suggested that he take pictures of her at the

Milwaukee lakefront. He then picked her up several times

from her home and took photographs of her both at the

lakefront and, ironically, at the group home for sex offenders
4 No. 14-2240

where he was living at the time. Agents recovered over 100

photographs from Johnson’s cell phone in a file labeled with

Minor Female B’s name. Twelve of these images are naked

photographs of the minor focusing primarily on her genitals.

Johnson ultimately pleaded guilty to one count of production of child pornography and one count of possession of child

pornography. Pursuant to the plea agreement, the government

dismissed the remaining count of the indictment for production of child pornography involving Minor Female B. Based on

a total offense level of 36 and a criminal history category of III,

the presentence investigation report (“PSR”) calculated an

advisory guidelines range of 235 to 293 months. This calculation included a four-level upward adjustment under U.S.S.G.

§ 2G2.1(b)(4) for material portraying sadistic or masochistic

conduct or other depictions of violence. Specifically, the PSR

recommended the application of § 2G2.1(b)(4) based on the

photographs of Minor Female A inserting the screwdriver and

highlighter into her vagina. At sentencing, the parties focused

on whether the photograph with the screwdriver should be

considered sadistic or masochistic.

The probation officer who prepared the PSR recounted that

Johnson told the victim to get a screwdriver and insert the

handle into her vagina. At the preliminary hearing in

Waukesha County, however, the victim testified only that

Johnson asked her to take pictures of herself and also asked her

to “do certain things” in some of the photographs. When asked

ifJohnson specifically asked her to take pictures “depicting any

kind of objects” the victim testified, “I did [that] on my own.”

The district court did not resolve the factual discrepancy as to

whether the victim took the pictures with the screwdriver and
No. 14-2240 5

highlighter at Johnson’s request or on her own initiative.

Instead, the court noted that her testimony at the preliminary

hearing should be considered in the “context of a courtroom

setting where the Defendant was present.” The court further

opined that it was questionable whether a twelve-year-old

would be “of a mind to be clear” as to what she had done

voluntarily. The court ultimately deemed it irrelevant whether

Johnson requested those specific images or not given the

undisputed fact that Johnson had admittedly employed, used,

persuaded, induced, enticed, and coerced the victim’s participation.

Johnson argued at sentencing that as distasteful as the

photograph was, it did not rise to the level of a sadistic,

masochistic, or violent depiction under the relevant case law,

which generally considered circumstances where the adjustment more obviously applied, such as images depicting

bondage or the obvious infliction of pain. Here the district

court accepted as a factual matter that the screwdriver “was

not a size sufficient to cause pain.” The court then noted that

physical pain was not required for the application of

§ 2G2.1(b)(4)if the image portrayed humiliating anddegrading

conduct. The district court stated that “in the whole animal

kingdom, only human beings—in the whole animal kingdom

there’s only one purpose of the vagina. At least in the animal

kingdom, besides the human animal, besides the human

animal. And that’s for the insertion of a penis. And as explained by the defense, in the case of a young lady who has

reached that time in her life where she has to use something

like a tampon.” From this the court reasoned that any object

being used sexually for something other than its intended
6 No. 14-2240

purpose was “abnormal.” The district court went on to

conclude that the victim’s comment that she felt “stupid”

doing the things Johnson asked demonstrated that it was an act

of humiliation and degradation. The court further based its

conclusion on the fact that twelve-year-olds are vulnerable,

emotionally unstable, and generally not capable ofthinking for

themselves. The court determined that the adjustment was

appropriate because anyone seeing a picture of a twelve-yearold inserting the handle of a screwdriver into her vagina would

think “God that’s disgusting. How humiliated, how degraded

does one have to be to do that?” Given Johnson’s calculating

manipulation of the victim, the district court opined that the

image was humiliating and degrading and that § 2G2.1(b)(4)

applied.

The court sentenced Johnson to 240 months’ imprisonment,

a sentence at the low end of the 235 to 293-month range. The

court also imposed supervised release for life.Johnsonappeals,

challenging only the court’s application of § 2G2.1(b)(4). 

II.

Johnson argues that the district court erred by applying

§ 2G2.1(b)(4) because the photograph was neither sadistic,

masochistic, nor violent as required by the guideline. Johnson

acknowledges that the photograph, like all child pornography,

is distasteful, inappropriate, and offensive. He claims, however, that qualitatively it is no more degrading or humiliating

to the victim than child pornography generally, and therefore

does not rise to the level of inherently cruel, degrading, or

sadisticbehaviorthat would support the § 2G2.1(b)(4) enhancement. He also takes issue with the district court’s assessment
No. 14-2240 7

that the photograph was sadistic in part because the victim

reported feeling “stupid” about it. 

We review the district court’s interpretation of the sentencing guidelines de novo, and its findings of fact for clear error.

See, e.g., United States v. Fletcher, 763 F.3d 711, 715 (7th Cir.

2014). Section 2G2.1(b)(4) simply instructs the district court to

increase the base offense level by four levels “[i]f the offense

involved material that portrays sadistic or masochistic conduct

or other depictions of violence.” When interpreting the

guidelines, courts must begin with the text of the provision and

the plain meaning of the words in the text. See United States v.

Turchen, 187 F.3d 735, 739 (7th Cir. 1999). Undefined guideline

terms that do not have a common law meaning are given their

ordinary meaning. Id. The district court relied on Turchen,

where we recognized that the ordinary dictionary definitions

of sadism and masochism make clear that violence and

physical pain and suffering are not a prerequisite for sadistic

or masochistic conduct. Id. (Noting that sadistic and masochistic conduct includes “sexual gratification which is purposefully degrading and humiliating” and that “violence is not

necessarily found in such conduct.”); see also United States v.

Raplinger, 555 F.3d 687, 694 (8th Cir. 2009) (“[Section

2G2.1(b)(4)] applies to material depicting sadistic, masochistic,

or violent conduct even if those pictured were not truly

engaging in painful activities.”) (emphasis in original); United

States v. Starr, 533 F.3d 985, 1001 (8th Cir. 2008) (rejecting

defendant’s argument that victim must suffer “pain or injury”

in order for masochism enhancement to apply). The Oxford

English Dictionary defines sadism as “[e]nthusiasm for

inflicting pain, suffering, or humiliation on others; spec. a
8 No. 14-2240

psychological disorder characterizedby sexualfantasies,urges,

or behaviour involving the subjection of another person to

pain, humiliation, bondage, etc.” (Third ed. Mar. 2008). It

defines masochism as “The urge to derive pleasure, esp. sexual

gratification, from one's own pain or humiliation; the pursuit

of such pleasure.” Id. Given that Johnson responded to the

image in question by sending the victim a photograph of his

erect penis, it is undisputed that he derived sexual pleasure

from the image.

After noting that sadistic and masochistic conduct may

include purposefully humiliating or degrading depictions, the

district court focused on whether this image depicted an act

that would be “humiliating and degrading to a just-turned 12

year old.” Because the court concluded that the screwdriver

did not necessarily cause the victim pain, it focused solely on

whether the depiction was humiliating and degrading. In

concluding that it was, the district court focused on the victim’s

statement that she felt “stupid” about taking the pictures

Johnson requested. The district court extrapolated from the

victim’s statement that it was “a degradation” and “a humiliation” because she was used and persuaded to take the photographs. 

Johnson asserts that by improperly focusing on the victim’s

subjective emotions instead of whether the image would be

objectively considered degrading or humiliating to the point

that it would be recognized as sadistic, the court’s analysis

would subject almost any defendant who had created child

pornography to the upward adjustment. 
No. 14-2240 9

We agree with Johnson that given the language of the

guideline, the proper question is whether the image itself

would be objectively considered sadistic. See Raplinger,

555 F.3d at 695 (noting counsel’s concession that “the guideline

applies to what the material portrays rather than what the

victim experiences”). Once physical pain or suffering is taken

from the equation, it would be a slippery slope if courts

inquired in each instance whether a particular victim felt

degraded. Indeed, presumably any victim of child pornography has been humiliated and degraded to an extent. We thus

focus on whether a depiction of a young girl inserting the

handle of a screwdriver into her vagina would be considered

objectively sadistic in nature. 

Given the age of the victim and the potentially violent

connotations readily associated with a workshop tool such as

a screwdriver, we conclude that the district court did not err by

imposing the four-level increase under § 2G2.1(b)(4). The

Eighth Circuit has recognized that images depicting the

insertion of a foreign object into a minor’s genitalia are likely

to be sadistic or masochistic in nature. In Starr, the panel

rejected the defendant’s contention that § 2G2.1(b)(4) did not

apply in circumstances similar to the one here with one

noteworthy distinction—the victim was seventeen as opposed

to barely twelve. 533 F.3d at 990, 1001. The defendant in Starr

had asked the victim to take video photos and video footage of

herself, id. at 990. The victim had thereafter created a video

chronicling her daily life that also showed her masturbating

and “performing anal penetration.” Id. On appeal, the defendant objected to the upward adjustment for masochism,

arguing that there was no evidence that the victim had
10 No. 14-2240

experienced any pain or injury. He also attempted to distinguish previous cases applying § 2G2.1(b)(4) involving “penetration by a foreign object” as inapplicable because his victim

was seventeen years old as opposed to a young child. Id. The

Eighth Circuit rejected these arguments as unpersuasive. In

doing so, Starr relied on United States v. Parker, 267 F.3d 839

(8th Cir. 2001), where the court considered images depicting,

among other things, “sexual penetration by a minor girl upon

herself by using a large carrot,” id. at 847. The court in Parker

noted that “[g]iven the plain meaning of ‘violence,’ it is

difficult to imagine that the sexual penetration with a foreign

object of a minor female would not qualify as ‘violence’ even

if self-inflicted,” Id. We would not go so far as the Eighth

Circuit in suggesting the self-penetration by a minor of a

foreign object would always be violent or sadistic. As Johnson

points out, certainly there are circumstances where selfpenetration by a foreign object would be within the realm of

sexual exploration or self-pleasuring—it is certainly not our

place to opine on the varied and creative sexual proclivities of

even minor individuals. Nor do we countenance the district

court’s commentary opining that the sole purpose of the

vagina is for the insertion of the penis. Indeed, among the other

potential purposes for the vagina, the indisputably significant

purpose of childbirth comes to mind as but one example

beyond “the insertion of the penis.” 

Notwithstanding this, we agree that on these facts the

image connotes violence of a sort that would likely appeal to

a sadistic audience. See United States v. Hoey, 508 F.3d 687, 691

(1st Cir. 2007) (“It follows that an image’s portrayal of sadistic

conduct includes portrayal of conduct a viewer would likely
No. 14-2240 11

think is causing pain to a depicted young child.”). In short, the

district court’s conclusion that the victim may not have

suffered any pain and the fact that she inserted the screwdriver

herself do not preclude a finding that the image is nonetheless

sadistic or violent in nature. In addition to its conclusion that

the image depicted a degrading and humiliating act, the

district court specifically found that Johnson “persuaded,

induced, enticed, and coerced” the victim to take these photographs and he succeeded because he was very “clever,”

“careful,” and “calculating.”These factual findings support the

notion that Minor Female A was not inserting a screwdriver

into her vagina for her own pleasure, nor would she have

conceived of doing such a thing had she not been manipulated

and coerced by Johnson. 

We thus conclude that an image of a young girl inserting a

screwdriver into her vagina connotes a degree of potential pain

and violence such that the upward adjustment under

§ 2G2.1(b)(4) is appropriate. A screwdriver is ordinarily used

in a workshop setting for applying force with a sharp and

potentially dangerous point. Although the district court

focused on humiliation and degradation, we are less certain

that this particular image would be universally considered

degrading. The district court relied on Turchen, 187 F.3d at 737,

where we concluded that although it did not necessarily depict

pain, an image of individuals urinating on a minor victim’s

grimacing face were undoubtedly purposefully degrading and

humiliating under § 2G2.1(b)(4). The image here may fall short

of the sort of excessive cruelty and humiliation depicted in

Turchen, but it carries a sufficient connotation of violence and

cruelty that the district court did not err by applying the
12 No. 14-2240

§ 2G2.1(b)(4) enhancement for images portraying sadistic

conduct or other depictions of violence. Cf. id. at 740 (noting

that violent conduct is unnecessary and § 2G2.1(b)(4) applies

when image portrays physical and mental harm or excessive

cruelty). 

III.

For the foregoing reasons we AFFIRM the judgment of the

district court.