*

The Honorable John D. Holschuh, Senior United States District Judge for the Southern District

of Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0310p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DAVID L. BROWN,

 Defendant-Appellant.

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No. 07-4197

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 04-00083—John R. Adams, District Judge.

Submitted: April 22, 2009

Decided and Filed: August 26, 2009 

Before: CLAY and McKEAGUE, Circuit Judges; HOLSCHUH, District Judge.*

_________________

COUNSEL

ON BRIEF: Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S OFFICE,

Cleveland, Ohio, for Appellant. Daniel R. Ranke, ASSISTANT UNITED STATES

ATTORNEY, Cleveland, Ohio, for Appellee. 

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant David L. Brown appeals the district court’s

judgment imposing a 327-month sentence of imprisonment for charges involving the

sexual exploitation of children pursuant to 18 U.S.C. § 2251(b) and § 2252(a) et seq. In

an earlier appeal before this Court, we remanded the case for resentencing with

1
No. 07-4197 United States v. Brown Page 2

1

The district court applied the 2002 edition of the United States Sentencing Guidelines. At that

time, this sentencing enhancement was codified as U.S.S.G. § 2G2.1(c)(1).

instructions that the district court consider evidence relevant to whether Defendant had

exploited more than one minor as required for application of U.S.S.G. § 2G2.1(d)(1).1

The district court considered the evidence and determined that its prior sentencing

determinations were appropriate. Defendant now argues (1) that the court improperly

applied the Guidelines on remand and (2) that the sentence imposed is substantively

unreasonable. For the reasons that follow, we AFFIRM Defendant’s sentence. 

BACKGROUND

A. Procedural History

On February 18, 2004, a federal grand jury returned a four-count indictment

against Defendant. Count One alleged that Defendant violated 18 U.S.C. § 2251(b) by

being the legal guardian of a minor and knowingly permitting the minor to engage in

sexually explicit conduct for the purpose of producing a visual depiction of such conduct

using materials in interstate commerce. Counts Two and Three alleged that he violated

18 U.S.C. § 2252(a)(2) by receiving, through interstate commerce, computer images and

files which contained visual depictions of minors engaged in sexually explicit conduct.

Count Four alleged that he violated 18 U.S.C. § 2252(a)(4)(B) by possessing over 1500

computer images that depicted minors engaged in sexually explicit conduct and had been

shipped in interstate commerce and produced via materials that had been shipped in

interstate commerce. 

Defendant filed a motion to dismiss Count One, arguing that 18 U.S.C. § 2251(b)

was unconstitutional on its face and as applied to him, but the district court denied his

motion without a hearing. Defendant subsequently entered into a conditional written

plea agreement, in which the government agreed to dismiss Count Four and Defendant

pleaded guilty to Counts One through Three, while reserving his right to appeal the

denial of his motion to dismiss and any errors in the district court’s application of the

advisory Guidelines. 
No. 07-4197 United States v. Brown Page 3

At sentencing, Defendant objected to numerous sentencing enhancements

proposed in the presentence investigation report (“PSR”). The court overruled

Defendant’s objections and sentenced him to 327 months of imprisonment, at the top of

the advisory Guidelines. Defendant filed a timely notice of appeal. This Court affirmed

the denial of Defendant’s motion to dismiss but remanded the case for resentencing to

consider whether the offense charged in Count One involved the exploitation of more

than one minor under U.S.S.G. § 2G2.1. See United States v. Brown, No. 05-3732, 2006

U.S. App. LEXIS 27483 (6th Cir. Nov. 6, 2006).

The district court conducted a new sentencing hearing and considered evidence

submitted by both parties. The court overruled Defendant’s renewed objections to the

sentencing calculations, rejected his request for a downward variance, and resentenced

him to the same sentence of 327 months of imprisonment. The court entered judgment

on the sentence on September 14, 2007, and Defendant filed a timely notice of appeal.

B. Substantive Facts

Based on information received from international authorities, agents of the

Bureau of Immigration and Customs Enforcement in Cleveland, Ohio (“the agents” or

“customs agents”) executed a search warrant at Defendant’s residence in October 2003.

Pursuant to the warrant, the agents seized computers, compact discs (“CDs”), floppy

discs, digital cameras, video home system (“VHS”) tapes, child erotica books, and

miscellaneous documents and pictures from Defendant’s residence. After being advised

of his rights, Defendant agreed to speak with the agents. He admitted to downloading

images of child pornography from the internet, but denied ever having posted,

manufactured, produced, or made pornography. 

After examining the items that were seized in the search, agents determined that

Defendant’s computer hard drive contained 195 images of child pornography, and an

additional 945 images that had been deleted but were recovered by the agents. The

images involved pornographic depictions of infants and toddlers. In addition, the CDs

that were seized contained approximately 1,323 “.jpg” files (compressed photographic
No. 07-4197 United States v. Brown Page 4

image files) and 111 “.mpg” files (compressed digital video files) that contained child

pornography. 

Agents also discovered images of Defendant’s identical twin stepgranddaughters, who were between 27 and 39 months old at the time they were

photographed. These images included digital photographs and videos of the stepgranddaughters naked in the bathtub, on the toilet, and on a bed. According to the PSR,

approximately six of the images of the step-granddaughters focused on the girls’ pubic

areas, and one image depicted one of the granddaughters lying on her back, using both

hands to spread her vagina open. At subsequent interviews with customs agents,

Defendant acknowledged that the images were of his twin step-granddaughters and that

he took the pictures while he was home alone with them. 

In his plea agreement, Defendant acknowledged that between November 2001

and November 2002, he was the legal guardian of his step-granddaughters, who were

born in August 1999. He acknowledged that during that time, “he permitted one or both

of said twin girls to engage in sexually explicit conduct for the purpose of producing

visual depictions of such conduct[.]” (Joint Appendix (“J.A.”) at 68-69.) 

The PSR calculated Defendant’s total offense level to be 39 with a criminal

history category of I. As part of these calculations, the PSR recommended that the court

apply an enhancement relative to Count One which provided: “If the offense involved

the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall

be applied as if the exploitation of each minor had been contained in a separate

conviction.” U.S.S.G. § 2G2.1(d)(1). At the sentencing hearing, Defendant conceded

that DSC07049.jpg, the picture of one of the twins lying on the bed with her legs spread

apart, was lascivious in nature. However, he argued that no other picture depicted

“sexually explicit conduct” as defined by statute to include “lascivious exhibition of the

genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). The government

admitted that it couldn’t “confidently prove beyond a reasonable doubt” that Defendant

had taken lascivious photographs of both step-granddaughters, but argued that a number

of images were borderline and that the court was entitled to make a determination as to
No. 07-4197 United States v. Brown Page 5

the nature of the photographs. (J.A. at 97-98.) Over Defendant’s objection, the district

court applied the enhancement to Count One after finding that Defendant had produced

sexually explicit depictions of both step-granddaughters. 

In his first appeal to this Court, Defendant challenged the aforementioned

enhancement to Count One along with various other offense level increases applied by

the district court. Brown, 2006 U.S. App. LEXIS 27483. This Court vacated the

sentence and remanded for resentencing, directing the district court to consider evidence

relevant to whether Defendant exploited more than one minor as required under U.S.S.G.

§ 2G2.1. Id. at *29. 

At resentencing, the district court heard testimony from a customs agent and

reviewed several evidentiary items, including CDs containing images and movie files

of Defendant’s step-granddaughters and pornographic images of other children that

Defendant had downloaded onto his computer from the internet. The court concluded

that the original sentence was appropriate because the evidence presented by the

government clearly demonstrated that there was more than one minor victim. The

district court overruled Defendant’s objections to the sentencing calculations under

U.S.S.G. § 2G2.1 and rejected his request for a downward variance. The court then

resentenced Defendant to 327 months of imprisonment: 240 months on Count One, to

be served consecutively to 87 months on Count Two and concurrently with 87 months

on Count Three. Defendant now appeals that sentence.

DISCUSSION

Standard of Review

On appeal, sentences are reviewed for reasonableness under an abuse of

discretion standard. United States v. Booker, 543 U.S. 220, 260-61 (2005); United States

v. Sedore, 512 F.3d 819, 822 (6th Cir. 2008). The reasonableness determination has both

a procedural and substantive component. United States v. Jones, 445 F.3d 865, 869 (6th

Cir. 2006). First, an appellate court must ensure that the district court did not commit

significant procedural error, such as: 
No. 07-4197 United States v. Brown Page 6

failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence

- including an explanation for any deviation from the Guidelines

range.

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). 

Assuming that the court’s sentencing decision is procedurally sound, this Court

should then consider the substantive reasonableness of the sentence. Id. Substantive

reasonableness turns on whether the length of the sentence is unreasonable because the

sentencing court “select[ed] the sentence arbitrarily, bas[ed] the sentence on

impermissible factors, . . . or [gave] an unreasonable amount of weight to any pertinent

factor.” United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005). This Court grants a

presumption of substantive reasonableness to sentences within the advisory Guidelines

range. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); see also Rita v.

United States, 551 U.S. 338, 355 (2007) (approving of presumption). The district court’s

interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are

reviewed for clear error. United States v. Kosinski, 480 F.3d 769, 774 (6th Cir. 2007).

Deference is given to the court’s application of the Guidelines to the facts. Id.

I.

In his first assignment of error, Defendant argues that because there is

insufficient evidence that he exploited more than one of his step-granddaughters, the

district court committed procedural error when it applied the enhancement set forth in

U.S.S.G. § 2G2.1(d)(1). 

Count One of the indictment alleged that Defendant violated 18 U.S.C. § 2251(b)

by being the legal guardian of a minor and knowingly permitting the minor to engage in

sexually explicit conduct for the purpose of producing a visual depiction of such conduct

using materials in interstate commerce. The advisory Guidelines provide that “[i]f the

offense involved the exploitation of more than one minor, Chapter Three, Part D

(Multiple Counts) shall be applied as if the exploitation of each minor had been
No. 07-4197 United States v. Brown Page 7

contained in a separate conviction.” U.S.S.G. § 2G2.1(d)(1). The complexity in this case

arises because Defendant’s twin step-granddaughters are identical twins who are

virtually indistinguishable in photographs. Because the picture that is most clearly

lascivious does not include both girls, it is difficult to look at any one photograph and

determine whether Defendant exploited more than one minor. Although some of the less

graphic pictures and videos seized from Defendant’s home show both girls, the district

court did not determine whether those pictures were lascivious at Defendant’s first

sentencing hearing.

In Defendant’s first appeal, this Court made the following observations:

It is apparent that the district judge did not review any of the photographs

prior to applying the enhancement under § 2G2.1[d](1). Instead, he relied

solely on the findings contained in the pre-sentence report and made

inferences based on those findings. The parties have conceded that there

was one photo which was clearly lascivious. However, that photo

depicted only one minor. It is unclear based on the record before us

whether there was evidence submitted by the government by which the

court could have concluded that there was more than one minor victim.

Therefore, Brown is entitled to a remand to allow the government to

submit (and the court to fully consider) all evidence regarding the

number of victims involved in the offense charged in Count One. 

See Brown, 2006 U.S. App. LEXIS 27483, at *23-24.

On remand, the district court heard testimony from a senior special agent of the

Department of Homeland Security, Immigration and Customs Enforcement. The agent

identified exhibits which were entered into evidence. Exhibit A included a “Statement

of Rights” form signed by Defendant, along with images recovered from a disc seized

at Defendant’s home which were printed and signed by Defendant. Exhibit B included

printed photographs with a statement in which Defendant indicated that the attached

pictures were of his step-granddaughters. Exhibit C was a CD that contained

photographic and video images of Defendant’s step-granddaughters. Exhibit D was a

CD that contained images that Defendant had downloaded from the internet involving

unknown children in the bathtub, in the shower, or in the act of urination. 
No. 07-4197 United States v. Brown Page 8

The agent testified that all of the photographs and video images contained in the

CDs were seized during the search of Defendant’s residence and that, after being advised

of his rights, Defendant admitted that he had taken the photographs and videos of the

twins. The agent explained that Exhibit C included all of the images of the stepgranddaughters, but that Exhibit D was a “representative sample” of images of other

unknown children.

Defense counsel objected to the introduction of Exhibit D, arguing that the CD

of images of unknown children was not relevant to whether Defendant had sexually

exploited both step-granddaughters, and that “to show images that do not relate to Count

1 has no purpose here except to inflame the Court.” (J.A. at 147.) The prosecutor

argued that Exhibit D was relevant because Defendant’s downloading of the images of

unknown children in the bathtub or on the toilet “indicated his feeling that those pictures

were sexual in nature, and that had a bearing on his intent when he was taking pictures

of his step-granddaughters in the bathtub or on the toilet. And it shows that his purpose

for creating those photos was for his sexual gratification . . . .” (J.A. at 148.) Upon

defense counsel’s suggestion, the court determined that it would first look at the images

of the step-granddaughters (Exhibit C) before determining whether it needed to see

Exhibit D.

The district court indicated on the record that it was reviewing the images in

Exhibit C, which included numerous photographic images and three short movie files

of the two step-granddaughters, each approximately ten seconds in length. After the

court reviewed the evidence, defense counsel renewed his objection to the admission of

Exhibit D, but the court overruled the objection and stated:

I think, in abundance of caution, having seen the photos set forth in

Exhibit C, which are virtually all of the minor victims in a state of either

bathing and/or using the facilities, . . . I will review Exhibit D, as it may

be appropriate, of whether or not these are the types of photos that –

which the defendant found interest in, if that’s the way we would

characterize it. [. . .] [I]t would reaffirm and ratify that indeed the

defendant’s modus [operandi], so to speak, was to view child

pornography in this vein, that would be of some help to the Court that he
No. 07-4197 United States v. Brown Page 9

2

The district court indicated that the photographs identified as DSC00829.jpg, DSC00831.jpg,

DSC00832.jpg, DSC1016 through 1020.jpg, DSC1054.jpg, and DSC7049.jpg were clearly lascivious.

(J.A. at 163.) The court also found that the photograph identified as DSC0014.jpg was clearly lascivious,

but this appears to be a typographical error since Exhibit C contains no file with that name. We presume

that the court was referring to DSC00814.jpg, which depicts a girl who is naked from the chest down.

has the nature of other forms of pornography that were discovered in the

course of the investigation.

(J.A. at 153.) The court then viewed the photographs in Exhibit D. 

After hearing arguments by both attorneys the court concluded, by a

preponderance of the evidence, that “far more than one” of the pictures in Exhibit C was

“clearly lascivious” because more than one photograph “focused on the genital area of

these little girls.”2 (J.A. at 163.) With respect to whether both step-granddaughters were

victims, the court acknowledged that the girls were identical twins and stated the

following:

[P]erhaps the most compelling evidence in support of the fact that more

than one child is involved is set forth in the disturbing movie clips set

forth at 00455 and 00456, also of the Government’s Exhibit C, which

indicate and show two of these little girls in the bathtub. At that time

during the course of both of these very brief movie clips, they are being

fed with whipped cream, and it is clear to me that those disturbing videos

show both children. There is no dispute as to that. And there is certainly

no dispute as to the lascivious nature of those movie clips.

(J.A. at 164.) 

The court then noted that even without the court’s review of the CD, the

“defendant’s admission to the Government’s Exhibit A and B also support the fact and

finding that indeed more than one minor child was involved in this conduct.” (Id.) In

addition, the court stated: 

The other pornographic images downloaded by this defendant, which are

set forth in government’s Exhibit D, clearly set forth beyond a shadow

of a doubt that the defendant’s proclivity, and “sickness” is the only word

to use, was focused on minor children, little children, in various states of

bathing and/or using the rest room. That is what feeds his sick desires,

and Exhibit D is evidence of that fact and supports all the Court’s

findings regarding the earlier photos set forth in Government’s Exhibit

C.
No. 07-4197 United States v. Brown Page 10

3

See United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003). See also United States

v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008);United States v. Frabizio, 459 F.3d 80, 87 (1st Cir. 2006); Doe

v. Chamberlin, 299 F.3d 192, 196 (3d Cir. 2002); United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999);

United States v. Wolf, 890 F.2d 241, 244-46 (10th Cir. 1989); United States v. Wiegand, 812 F.2d 1239

(9th Cir. 1987); United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987). Some of these courts have

criticized the Dost test, but have continued to use it to a limited extent. See Frabizio, 459 F.3d at 87

(warning that courts must take care not to give the factors greater weight than is warranted); United States

v. Hilton, 257 F.3d 50, 57 (1st Cir. 2001) (noting that the Dost factors, although generally relevant, are not

comprehensive). 

(J.A. at 165.) The court therefore reaffirmed its earlier advisory Guidelines calculations,

including the application of U.S.S.G. § 2G2.1(d)(1).

A.

First, we must determine the legal standard to apply in determining whether a

photograph or video is “lascivious.” Count One of the indictment required the

production of a depiction of sexually explicit conduct, which is defined to include the

“lascivious exhibition of the genitals or pubic area of any person[.]” 18 U.S.C.

§ 2256(2)(A)(v). Congress has not defined the term “lascivious.” This Court, in line

with other circuit courts, has applied a six factor test for “lasciviousness,” as set forth in

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).3

 Under Dost, the relevant factors include: 

1) whether the focal point of the visual depiction is on the child’s

genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e.,

in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate

attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness

to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual

response in the viewer.

636 F. Supp. at 832. In applying Dost, however, we have noted that “this list is not

exhaustive, and an image need not satisfy every factor to be deemed lascivious.”
No. 07-4197 United States v. Brown Page 11

Campbell, 81 F. App’x at 536; see also Frabizio, 459 F.3d at 87 (explaining that the

Dost factors “are neither comprehensive nor necessarily applicable in every situation”

and that “[t]he inquiry will always be case-specific.”) (internal quotation marks and

citations omitted).

B.

With the aforementioned considerations in mind, we now turn to the images

seized from Defendant’s house. As a preliminary matter, Defendant argues that because

the government conceded at the sentencing hearing that it could not prove beyond a

reasonable doubt that more than one of the twins had been exploited, the court should

not have applied the enhancement. We reject this argument out of hand. The

government’s concession did not prevent the district court from considering all of the

evidence to determine whether the government had proven by a preponderance of the

evidence, for the purposes of applying the sentencing enhancement, that Defendant had

exploited more than one twin. In fact, that is exactly what the district court was

instructed to do on remand.

With respect to the images at issue, a number of Dost factors are not in dispute.

All of the images presented by the government depict the girls nude, which satisfies the

fourth Dost factor and makes the portions of the third factor (the appropriateness of

attire) irrelevant. Moreover, whether the depiction “suggests sexual coyness or a

willingness to engage in sexual activity,” is not applicable given the age of the toddlers.

See Dost, 636 F. Supp. at 832. The salient factors are whether the images focus on the

genital regions of the girls and whether the images were intended to elicit a sexual

response in the viewer.

 We agree with the district court that the image “DSC07049.jpg” is clearly

lascivious. The image depicts one of the toddlers lying nude on a bed touching her

genitalia while her legs are spread. The toddler is fully nude, the photograph is focused

on the girl’s genitalia, and the positioning of the girl’s hand appears intended to be

sexually suggestive. By looking at nothing more than the four corners of this
No. 07-4197 United States v. Brown Page 12

photograph, it becomes clear that the photograph focuses on the genitals and was

intended or designed to elicit a sexual response in the viewer. See id.

 As discussed above, however, this image depicts only one girl. In order to

determine whether Defendant produced lascivious images of both girls, we must look

to the remaining images.

The district court relied heavily on videotapes of the girls in a bathtub, but we

find this emphasis unwarranted. The videos show the girls being fed whipped cream by

a woman. At sentencing, the district court stated that these “disturbing” videos were

“perhaps the most compelling evidence in support of the fact that more than one child

is involved” and found that there was “certainly no dispute as to the[ir] lascivious

nature[.]” (J.A. at 164.) We do not agree that there is no dispute as to the nature of these

videos. Aside from the fact that the girls are nude, the videos do not seem to satisfy any

of the Dost factors, and we cannot agree that the videos are clearly lascivious. 

 Looking instead to the photographs, the district court found that images

DSC00[8]14.jpg, DSC00829.jpg, DSC00831.jpg, DSC00832.jpg, DSC01016 through

1020.jpg, and DSC01054.jpg were lascivious because they “focus on the genital area of

these little girls.” (J.A. at 163.) In each of these images, the girls are fully nude (as they

are in all of the images in the exhibit). The photographs do focus, at least arguably, on

the girls’ genitals insofar as the genitals are prominently visible at the center of the

photographs. Moreover, although it was not discussed by the district court, a number of

these and other photographs in the exhibit depict one or both girls from the shoulders

down, with the girls’ pubic area at the center of the photograph. The fact that the

photographs do not include the girls’ heads is odd and repeated, and when considered

together with the focus on the girls’ pubic area, suggests that there may have been an

inappropriate or lascivious focus. 

However, if we look only at the four corners of each of the aforementioned

images, it would not be clear that the photographs (nude photographs that arguably focus

on a child’s genital area) are lascivious. See Frabizio, 459 F.3d at 88 (“one dispute
No. 07-4197 United States v. Brown Page 13

[among the circuits] is . . . how many of [Dost] factors must be present in an image for

it to qualify as ‘lascivious’”). The setting of most of the photographs—the bathtub, the

toilet, and the floor—is not sexually suggestive, and the majority of the poses do not

appear to be unnatural. We are therefore compelled to assess whether the district court

could have properly looked beyond the four corners of the photographs.

The sixth Dost factor, which considers whether an image is intended to elicit a

sexual response in the viewer, does not make clear whether a factfinder should focus

only on the content of the image at issue, or whether it may consider the images in

context with other images and evidence presented at trial. In Campbell, 81 F. App’x at

536, we did not explicitly reach this issue. Other circuits have noted that the sixth Dost

factor is the “most confusing and contentious of the Dost factors” and begs a number of

questions:

Is this a subjective or objective standard, and should we be evaluating the

response of an average viewer or the specific defendant in this case?

Moreover, is the intent to elicit a sexual response analyzed from the

perspective of the photograph’s composition, or from extrinsic evidence

(such as where the photograph was obtained, who the photographer was,

etc.)?

United States v. Amirault, 173 F.3d 28, 34 (1st Cir. 1999). 

 A number of courts have addressed whether a court should limit its review to the

four corners of the image, and have reached conflicting conclusions. See Rivera, 546

F.3d at 250 (“[T]hese images have context that reinforces the lascivious impression.

[The victim] testified that Rivera arranged the poses and took the photographs. Rivera

was responsible for the mise-en-scene. A reasonable jury could therefore find that Rivera

composed the images in order to elicit a sexual response in a viewer--himself. These

images are unquestionably ‘lascivious’ material[.]”); but see Amirault, 173 F.3d at 34

(expressing doubt that a factfinder should consider “the context surrounding the creation

and acquisition of the photograph”). This Court has not decided if a factfinder can

consider evidence other than the photograph itself, or if it must discern the

photographer’s intent by examining only the content of the photograph.
No. 07-4197 United States v. Brown Page 14

4

As discussed above, Count One of the indictment required the production of a depiction of

sexually explicit conduct, and 18 U.S.C. § 2256(2)(A) defines sexually explicit conduct to include the

“lascivious exhibition of the genitals or pubic area of any person[.]” 18 U.S.C. § 2256(2)(A)(v). The

Dost test, in turn, is used to define the term “lascivious.”

 We, like our sister circuits, have adopted a test that considers whether “a visual

depiction is intended or designed to elicit a sexual response in the viewer.” See Dost,

636 F. Supp. at 832 (emphasis added). The use of the word “intended” seems to

establish that the subjective intent of the photographer is relevant. See United States v.

Williams, 128 S. Ct. 1830, 1839-40 (2008) (“[T]he other key phrase, ‘in a manner . . .

that is intended to cause another to believe,’ contains only a subjective element: The

defendant must ‘intend’ that the listener believe the material to be child pornography[.]”)

However, the word “intended” is found in the Dost court’s test, and not in a criminal

statute, so it is appropriate for us to determine if the element of intent should be

examined in determining whether the image is lascivious.4

 Some courts have accepted

arguments that lasciviousness should be determined from the image alone. See United

States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989) (holding, in the context of a

sufficiency-of-the-evidence challenge to a jury verdict, that “[w]e must . . . look at the

photograph, rather than the viewer,” because if “we were to conclude that the

photographs were lascivious merely because [the viewer] found them sexually arousing,

we would be engaging in conclusory bootstrapping rather than the task at hand–a legal

analysis of the sufficiency of the evidence of lasciviousness”). Other courts have

explicitly avoided the question. See Frabizio, 459 F.3d at 89 (“The issue of the four

corners rule, and even of what it means, has not been decided by this circuit, and we do

not decide it here. The issue is complicated, and there are arguments going different

ways.”).

The lack of consensus among our sister circuits is understandable, given that

there are important considerations weighing in favor of both perspectives. On one hand,

there are strong arguments for considering context. Ignoring the contextual evidence

construes the statute too narrowly as it inevitably fails to capture behavior that is

“intended” to exploit children. This result is cause for particular concern in a context

where young children are at risk. See New York v. Ferber, 458 U.S. 747, 761 (1982)
No. 07-4197 United States v. Brown Page 15

(stating that there is a “particular and more compelling interest in prosecuting those who

promote the sexual exploitation of children”). Moreover, strict adherence to a four

corners test could harm criminal defendants in some circumstances by limiting

consideration of contextual evidence that would show that images are art or innocent

family photographs. See United States v. Wolf, 890 F.2d 241, 247 (10th Cir. 1989)

(noting that “lasciviousness is not a characteristic of the child photographed but of the

exhibition that the photographer sets up for an audience that consists of himself or likeminded individuals.”). 

 On the other hand, if we frame the inquiry too broadly and place too much

emphasis on the subjective intent of the photographer or viewer (in this case, the same

person), a seemingly innocuous photograph might be considered lascivious based solely

upon the subjective reaction of the person who is taking or viewing it. See, e.g.,

Amirault, 173 F.3d at 34 (recognizing that if the focus of the inquiry is on an individual’s

“subjective reaction” to a photograph, “a sexual deviant’s quirks could turn a Sears

catalog into pornography”). This could invoke the constitutional concerns associated

with criminalizing protected expressive activity. See Williams, 128 S. Ct. at 1841

(analyzing whether a statute that criminalized the pandering or solicitation of child

pornography reached too far because it “criminalize[d] a substantial amount of protected

expressive activity.”); Osborne v. Ohio, 495 U.S. 103, 112 (1990) (“We have stated that

depictions of nudity, without more, constitute protected expression.”). Moreover, as in

many areas of criminal law, a rule that considers too much prejudicial context—e.g.,

facts such as the past behavior of the defendant, other alleged deviancies of the

defendant, and criminal conduct that is not directly related to the charge at hand—could

pose due process concerns and could be used to convict defendants for acts other than

those for which he or she is prosecuted. 

 In sum, while the context in which an image was taken likely helps a factfinder

understand whether an image was intended to elicit a sexual response in the viewer, there

is a countervailing and significant risk that a context-specific test could reach too broadly

and “over-criminalize” behavior. In light of these competing concerns, we find that it
No. 07-4197 United States v. Brown Page 16

5

Testimony from qualified experts about the metadata underlying digital images could be helpful

in ascertaining when photographs were taken and whether photographs were taken in sequence.

is appropriate to apply a “limited context” test that permits consideration of the context

in which the images were taken, but limits the consideration of contextual evidence to

the circumstances directly related to the taking of the images. 

 A number of factors can illuminate the context in which photographs were taken.

These include, inter alia, evidence about (1) where, when, and under what circumstances

the photographs were taken, (2) the presence of other images of the same victim(s) taken

at or around the same time,5

 and (3) any statements a defendant made about the images.

Consideration of these factors can help factfinders consider the way a defendant

“arranged the poses and took the photographs” as discussed in Rivera, 546 F.3d at 250,

and can help them resolve close judgment calls about whether an image inadvertently

focuses on a child’s genitalia, or whether it is intended to elicit a sexual response in the

viewer. 

 However, we explicitly reject consideration of factors that do not relate directly

to the taking of the images, such as past bad acts of the defendant, the defendant’s

possession of other pornography (pornography of another type or of other victims), and

other generalized facts that would relate only to the general “unseemliness” of the

defendant. This will avoid the undue prejudice associated with criminalizing behavior

not targeted by the statute, and thus will avoid the constitutional concerns discussed

above. See Amirault, 173 F.3d at 34; Williams, 128 S. Ct. at 1841 (discussed supra).

Applying the limited context test in the instant case, we find that the evidence

supports the district court’s determination that Defendant took lascivious photographs

of more than one minor. First, there are over seventy photographic images and three

video images of the step-grandchildren, each of which depicts one or both of the girls

fully nude in the bathtub, standing in the bathroom, sitting on the toilet, lying on the

carpet, or lying on a bed. The photographs capture the girls from a variety of angles,

with a general tendency to focus on the girls’ genitals. If there were a handful of

photographs of a naked child playing in the bathtub, it could be believed that a picture
No. 07-4197 United States v. Brown Page 17

inadvertently focused on a child’s genitalia. Here, however, the sheer number of

photographs in which the girls’ genitals are prominently visible suggests that

photographs were taken to elicit a sexual response in the viewer.

 Second, the fact that Defendant took at least one clearly lascivious photograph

of one of his step-granddaughters casts doubt upon any contention that the photographs

were innocent family photographs and could help a factfinder understand Defendant’s

intent in taking and viewing any “borderline” photographs. While this fact alone would

not make otherwise innocuous pictures lascivious, it provides “context that reinforces

the lascivious impression.” See Rivera, 546 F.3d at 250.

 Third, according to Defendant’s PSR, Defendant stated that he took the

photographs of the twins when he was home alone with the girls, and that he put

seventeen images of the twins on a CD with pornographic images of other children that

he had downloaded from the internet. In addition, Defendant’s plea agreement

acknowledged that he “permitted one or both of said twin girls to engage in sexually

explicit conduct for the purpose of producing visual depictions of such conduct.” (J.A.

at 68-69.) These acknowledgments suggest that the images at issue were “intended or

designed to elicit a sexual response in the viewer” as discussed in Dost, 636 F. Supp. at

832.

 Finally, many of the images highlighted by the district court, (DSC00[8]14.jpg,

DSC00829.jpg, DSC00831.jpg, DSC00832.jpg, and DSC01054.jpg), as well as number

of other images, (DSC00815.jpg, DSC07061.jpg, and DSC07063.jpg), depict one of the

twins from the neck down with her genitals prominently visible in the center of the

photograph. The district court could reasonably conclude that each of these images

focuses on the girls’ genitals. 

In sum, considering the images themselves, the context of the photographs as a

group, and Defendant’s admissions, the district court could reasonably conclude that

each of the images it highlighted, as well the other images highlighted by this Court, was

lascivious.
No. 07-4197 United States v. Brown Page 18

6

For example, there are pictures of both girls, nude, playing on a bed, immediately followed by

pictures of one nude girl on the same bed. Later, there is a photograph depicting the rear of both girls,

standing next to the bathtub from the neck down, followed by two photographs depicting a naked girl in

the same bathroom, from the chest down. And as mentioned above, nearly half of the images show both

girls together.

C.

The remaining, and critical, question is whether the district court properly found,

by a preponderance of the evidence, that the aforementioned photographs depict both

girls.

A number of factors support the district court’s conclusion. The girls are

together in approximately half of the seventy plus photographs and videos in Exhibit C,

and it does not appear that Defendant had a particular affinity toward one of the girls.

It appears that many of the photographs were taken in sequence, within minutes of one

another in the same location, which suggests that Defendant was actively photographing

both girls, and not one in isolation.6

 Moreover, we found that at least eight photographs

other than DSC07049.jpg—DSC00814.jpg, DSC00815.jpg, DSC00829.jpg,

DSC00831.jpg, DSC00832.jpg, DSC01054.jpg, DSC07061.jpg, and

DSC07063.jpg—properly could be found lascivious. Based on the totality of the

evidence, it seems more likely than not that at least one of these pictures portrays the

other twin. 

Finally, as discussed above, Defendant admitted that he “permitted one or both

of said twin girls to engage in sexually explicit conduct for the purpose of producing

visual depictions of such conduct.” (J.A. at 68-69 (emphasis added).) While the phrase

“one or both” is not a clear admission that he exploited both girls, if Defendant believed

that he exploited only one of the twins, he could have refused to sign the plea agreement

as drafted.

In sum, considering the images themselves, the number and sequence of the

images, and Defendant’s admissions, the district court did not err in finding, by a

preponderance of the evidence, that Defendant took lascivious images of more than one

minor.
No. 07-4197 United States v. Brown Page 19

7

Counts Two and Three of the indictment alleged that Defendant violated 18 U.S.C. § 2252(a)(2)

by receiving, through interstate commerce, computer images and files which contained visual depictions

of minors engaged in sexually explicit conduct. Count Four alleged that he violated 18 U.S.C.

§ 2252(a)(4)(B) by possessing over 1500 computer images that had been shipped in interstate commerce

and produced via materials that had been shipped in interstate commerce and depicted minors engaged in

sexually explicit conduct. 

8

Our discussion addresses only whether it was proper for the district court to consider Exhibit

D in the context of determining whether pictures of Defendant’s step-granddaughters were lascivious. To

be sure, the court was entitled to consider all of Defendant’s criminal history when determining the length

of his sentence. See 18 U.S.C. § 3553(a)(1) (directing courts to consider the “history and characteristics

of the defendant[.]”) 

D.

Finally, Defendant also argues that the district court improperly considered

Exhibit D, which included images of other children downloaded by Defendant. He

argues that these images were wholly irrelevant to the nature of the photographs at issue

and that the prosecution’s introduction of the exhibit only served to “inflame” the court.

Reviewing this issue de novo, we agree that the court erred in considering these

images. See United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005) (applying de

novo review to a district court’s conclusions of law and to mixed questions of law and

fact). To be sure, the downloaded images of other children might shed light on

Defendant’s subjective intent in taking photographs of his step-granddaughters.

However, as discussed above, when a court considers context in too broad a fashion, it

can find an otherwise innocuous photograph lascivious, and runs the risk of convicting

a defendant for conduct unrelated to the charges at hand. The district court’s

consideration of the evidence in Exhibit D crosses that line. The downloading of

pornographic images of other children is a separate criminal act, accounted for in other

counts of the indictment.7

 As we discussed above, evidence of other criminal acts and

conduct relating to other alleged victims strays too far from the context of the

photographs at hand and should not bear on whether a given image is lascivious.

Consequently, the district court erred in considering these images.8

Because it is highly prejudicial in nature, consideration of this type of evidence

could, in many cases, taint a court or jury’s factual findings. However, in the instant

case, the district court’s legal error in considering Exhibit D was harmless. The court
No. 07-4197 United States v. Brown Page 20

explicitly stated that it found images involving more than one minor to be lascivious

based on its independent review of the images of the step-granddaughters in Exhibit C,

and our review of the matter supports that conclusion. Moreover, any argument

regarding an alleged intent by the prosecution to “inflame” the court is tempered by the

fact that the evidence in Exhibit D was previously submitted to the court and deemed

admissible to support the conduct charged in other counts of the indictment.

Furthermore, in the absence of any indication to the contrary, we presume that the court

is impervious to being “inflamed” or otherwise manipulated by the prosecution in ways

that a jury might not be.

In sum, because the court explicitly stated that it found the images to be

lascivious based on the images alone, and because there was sufficient evidence to

support this determination, the court did not err in concluding that Defendant created

lascivious images involving more than one minor. Giving deference to the court’s

application of the advisory Guidelines to the facts, see Kosinski, 480 F.3d at 774, we

conclude that district court did not commit procedural error in applying U.S.S.G.

§ 2G2.1(d)(1). 

II.

Defendant also argues that his 327-month sentence is substantively unreasonable

because it is greater than necessary to comply with the purposes set forth in 18 U.S.C.

§ 3553(a)(2). At resentencing, Defendant argued that the court should exercise its

discretion to impose a sentence below the advisory Guidelines range. He argued and

continues to argue that a sentence of ten years was sufficient because he has only a

ninth- grade education, has on two previous occasions been evaluated as borderline

mentally retarded, was himself abused as a child, and was never previously accused or

convicted of having improper sexual contact with a minor. 

We find the sentence to be substantively reasonable notwithstanding these

arguments. A sentence is substantively unreasonable if the court “selects the sentence

arbitrarily, bases the sentence on impermissible factors, . . . or gives an unreasonable

amount of weight to any pertinent factor.” Webb, 403 F.3d at 385. 
No. 07-4197 United States v. Brown Page 21

First, the record reflects that the district court considered the relevant § 3553(a)

factors and Defendant’s arguments regarding what he considered to be the appropriate

length of his sentence at both sentencing hearings. This supports a finding that the

sentence was not arbitrary or based on impermissible factors, as condemned in Webb.

See id.

Second, the district court explained why it discounted Defendant’s argument that

he should be given a lower sentence in light of his diminished mental capabilities. More

specifically, the court stated that it was not aware of any studies that would indicate that

mental retardation would cause an individual to engage in Defendant’s conduct and

noted that Defendant had undergone a competency evaluation in which he indicated that

he understood the wrongfulness of his conduct. The court also reasoned that Defendant

was able to demonstrate significant sophistication in his use of computers. These factual

findings undercut Defendant’s arguments.

Finally, while the court downplayed the characteristics of Defendant and

emphasized factors such as the nature of the offense, the likelihood of recidivism, and

the need for protection of the public, the weight the court assigned to each § 3553(a)

factor was not unreasonable. It was within the court’s discretion to emphasize the need

to protect young children. See Ferber, 458 U.S. at 761 (acknowledging that there is a

particularly compelling interest in prosecuting and punishing offenders that sexually

exploit children). Moreover, the fact that the sentence was within the Guidelines weighs

in favor of affirming it. See United States v. Poynter, 495 F.3d 349, 352 (6th Cir. 2007)

(“[t]he farther the judge’s sentence departs from the guidelines sentence . . . the more

compelling the justification based on factors in section 3553(a) must be.”) (internal

quotation marks and citations omitted); see also Williams, 436 F.3d at 708 (attaching a

rebuttable presumption of reasonableness to sentences within the Guidelines range).

 Ultimately, Defendant’s arguments appear to contend that, given his personal

characteristics, a different sentence was justified. While we might agree, he has not

shown that a different sentence was required. See United States v. Jackson, 466 F.3d

537, 540 (6th Cir. 2006) (holding that “the fact that the district court did not give the
No. 07-4197 United States v. Brown Page 22

defendant the exact sentence he sought is not a cognizable basis to appeal, particularly

where the district court followed the mandate of section 3553(a) in all relevant

respects.”). 

In view of these circumstances and the deference this Court applies to a district

court’s application of the Guidelines to the facts, see Kosinski, 480 F.3d at 774, we hold

that the sentence imposed by the district court was substantively reasonable.

CONCLUSION

For the reasons stated above, we AFFIRM Defendant’s sentence.