### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-30234

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. CHRISTOPHER J. COMEAUX, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:05-CR-20183-1

Before REAVLEY, GARZA, and GRAVES, Circuit Judges. PER CURIAM: * Defendant Christopher Comeaux was convicted by a jury on one count of production of child pornography (“Count One”) and one count of possession of

c hild pornography (“Count Two”). When calculating Comeaux’s sentence , th e district court imposed several enhancements for specific offense characteristics, including a four level enhancement pursuant to § 2G2.1(b)(4) of the Sentencing Gui delin e s , to e ach c ou nt because the material portrayed “sadistic or masochis tic conduct or other depictions of violen c e .” Comeaux appeals the four level U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-30234 Document: 00511592253 Page: 1 Date Filed: 09/02/2011No. 10-30234

enhancement to Count One, arguing that the depictions do not rise to the level of sadistic, masochistic or violent. Judge Minaldi has answered that contention and we affirm the judgment. We review a district court’s interpretation of the Sentencing Guidelines de

novo . United States v. Lyckman , 235 F.3d 234, 237 (5th Cir. 2000). “The district court’s findings of fact and application of the Sentencing Guidelines to the specific facts of the case, however, are reviewed for clear error.” Id. Comeaux began a two-year pattern of sexual abuse of his step-da u gh ter when she was 8 years old, culminating in the videotape that is the basis for his indictment and subsequent conviction by a jury for production o f c h ild pornography, in violation of 18 U.S.C. § 2251(a). When his step-daughter was
ap p roxi m at ely 1 0 ye ars old, Comeaux video-taped himself (1) perf or min g or al s ex
on the child, including penetrating her with his tongue, (2) directing her to insert her fingers into her vagina and use a vibrator, and (3) forcing her to perform oral sex on him. In calculati n g t he offense level for count one, the Presentence Investigation Report (“PSR”) included a four point enhanceme n t p u r s uant to § 2G2.1(b)(4) for “material that portrays sadistic or masochistic conduct or other depictions of violence.” Comeaux objected. In a written ruling, the district court overruled Comeaux’s objection, stating that the act of penetration of the victim by the defendant’ s t o n gu e was sadistic. Citing our definition of sadism, “infliction of pain upon a love object as a means of obtaining sexual release,” the court went on to add that the emotional damage and pain of the abuse suffered by the child victim in this case was immeasurable. See Lyckman , 235 F.3d at 238–39 (defining sadism). At Comeaux’s sentenci n g, the district court again addressed Comeaux’s objection, saying sadism does not always involve pain alone. It also involves humiliation. And even if one might think there was n o physical

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pain involved in this crim e f o r w hich he was convicted, there is c ert ainly the factor of humiliation which was made painf ully evi de nt t o [t h e jury] during the trial when the victim testified from th e witness stand, and this is something I will never forget. On appeal, Comeaux argues that the district court was wrong to apply the enhancement because (1) the district court incorrectly applied the “penetrative sex” rule to an act that was not inherently physically painful, and (2) application of the enhancement for the acts depicted is duplicative because all of the factors that make the act reprehensible are fully accounted for in both the base offense level and the other specific offense characteristics applied by the district court. We disagree. The so-called penetrative sex rule is not a rule, but rather an amalgam of

cases that attempt to determine in an ad hoc manner what types of acts would qualify as sadistic or violent. In United States v. Lyckman , we agreed with the Second, Seventh, and Eleventh Circuits that sexual penetration of a child by an adult male likely causes pain and, therefore, qualifies as s adistic or violent within the meaning of the guideline. 235 F.3d at 238–39. Comeaux argues that because he penetrated his step-daughter with his tongue, he did not cause her pain and, thus, did not commit a sadistic or violent act. We need not descend into the abyss of deciding where or w h e t h e r a line could be drawn delineating which types of penetration are per se sadistic or violent because even absent the depiction of penetration, the district court correctly applied the enhancement. Violent acts or acts that cause physical pain to a child easily fall within the plain language of the guideline. However, although acts that inflict pain upon the ch i l d victim are sadistic and violent per se within the meaning of the guidelines, an absence of physical pain is n ot per se outside the ambit of the enhan c e m ent for sadistic acts under § 2G2.1(b)(4). “[S]adism

. . . do[es] not necessarily require violent conduct.” Un ited States v. Turchen , 187 F.3d 735, 7 3 9 (7th Cir. 1999). “[S]adistic and masochistic conduct includes sexual

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gratification which is purposefully degrading and h u m i liating, conduct that

causes mental suffering or psychological or emotional injury in the victim.” Id. In fact, many depictions which are unarguably sadistic in nature do not involve violence or pain, but rather subjugation and humiliation. See, e.g., United States

v. Wolk , 337 F.3d 997, 1007–08 (8th Cir. 2003) (pictures of young girl in a collar

were sadistic); Turchen , 187 F.3d at 740 (picture of adult males urinating on the face of a grimacing child were sadistic). In Lyckman , we held that the photographs at issue depicted conduct that “caused the children pain, physical

or emotional or both.” Id. at 23 9 ( e m p h a s i s added). And dictionaries define sadism to include mental and emotional pa i n . Se e e.g., W E B S T E R ’ S N E W C O L L E G IAT E D I C T I O NARY 1018 (1977) (“[A] s e x ual perversion in which gratification is obtained by infliction of physical or mental pain on others.”). Infliction o f e m o t ional pain may sometimes be classified as sadistic for the guideline. This is not to say that any depic t i o n that may have caused emotional trauma to the child victim is per se sadistic. We hold only that where, as here,

a district court finds that the child victim depicted in the child pornography at issue was humiliated or debased, the enhancement for depictions of sadistic or masochistic conduct or other depictions of violence may apply. In this case, we agree with the district court that the enhancement does apply. The district court observed the child victim’s testimony during a jury trial and made a factual finding on the rec o r d a t sentencing that the child victim had been humiliated. Comeaux has not argued that the district court’s finding was clearly erroneous. Because we hold that emotional trauma such as humiliation or debasement may be sadistic, the district court did not err in applyi n g t he enhancement to the facts in this case. Comeaux also argues t h a t a ll the factors making the act reprehensible have been fully addressed in the base offense level and the other specific

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characteristics enhancements. Comeaux’s adjusted offense level was 44. The district court enhanced the base offe n s e l e v el of 32 by 2 levels pursuant to § 2G2.1(b)(1)(A) because the victim was less than 12 years old; 2 levels pursuant to § 2G2.1(b)(2)(A) because the offense involved the commission of a sexual act

or sexual contact; 2 levels pursuant to § 2G2.1(b)(5) because the defendant was the child victim’s stepfather; and 4 levels pursuant to § 2G2.1(b)(4) because the acts depicted were sadistic for a total of 44. Only the increase for sadistic harm to which Comeaux subjected his step-daughter accounts for the four level enhancement. AFFIRMED.

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