18

‐ 1574

‐ cr

United States v. Bleau



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

No. 18

‐ 1574

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

K EITH B LEAU

, AKA K EITH J. B LEAU

, Defendant

‐ Appellant

.

On Appeal from the United States District Court

for the Northern District of New York

S UBMITTED : A PRIL 1, 2019

D ECIDED : J ULY 8, 2019

Before: W ALKER

, C ABRANES

, and S ACK

, Circuit Judges

.2 The principal question on appeal is whether the four

‐ level

enhancement pursuant to § 2G2.2(b)(4) of the United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”) may be applied based on

images of sexual activity that would cause the depicted minor to

experience mental, but not physical, pain. We conclude that it may.

Accordingly, we AFFIRM the judgment of the United States District

Court for the Northern District of New York (Mae A. D’Agostino,

Judge ) on the question of the four

‐ level enhancement and the

procedural and substantive reasonableness of the sentence, but we

REMAND the cause to the District Court for further consideration of

a special condition of supervised release that broadly prohibits

Defendant

‐ Appellant from having direct contact with minors without

pre

‐ approval from the United States Probation Office (“Probation

Office”).

Michael D. Gadarian and Richard D. Belliss,

Assistant United States Attorneys, for Grant

C. Jaquith, United States Attorney, Northern

District of New York, Syracuse, NY, for

Appellee

.

Molly Corbett and James P. Egan, Assistant

Federal Public Defenders, for Lisa A.

Peebles, Federal Public Defender, Northern

District of New York, Albany, NY, for

Defendant

‐ Appellant

.3 P ER C URIAM :

The principal question on appeal is whether the four

‐ level

enhancement pursuant to § 2G2.2(b)(4) of the United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”) may be applied based on

images of sexual activity that would cause the depicted minor to

experience mental, but not physical, pain. We conclude that it may.

Accordingly, we AFFIRM the judgment of the United States District

Court for the Northern District of New York (Mae A. D’Agostino,

Judge ) on the question of the four

‐ level enhancement and the

procedural and substantive reasonableness of the sentence, but we

REMAND the cause to the District Court for further consideration of

a special condition of supervised release that broadly prohibits

Defendant

‐ Appellant from having direct contact with minors without

pre

‐ approval from the United States Probation Office (“Probation

Office”).

I. BACKGROUND

Defendant

‐ Appellant Keith Bleau (“Bleau”) appeals from a May

15, 2018 judgment of the District Court convicting him of receiving

child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and

(b)(1), and possessing child pornography, in violation of 18 U.S.C.

§§ 2252A(a)(5)(B) and (b)(2). Bleau pleaded guilty and was sentenced

to concurrent 78

‐ month terms of imprisonment, plus a 15

‐ year term of

supervised released.4 On appeal, Bleau challenges both the substantive and

procedural reasonableness of his sentence and one of the special

conditions of his supervised release. He argues that the District Court

procedurally erred in declining to apply a two

‐ level reduction

pursuant to § 2G2.2(b)(1) of the Guidelines, 1 and in applying a four

‐

level enhancement pursuant to § 2G2.2(b)(4). 2 He also challenges the

substantive reasonableness of his sentence. Finally, Bleau contends

that the District Court erred by imposing a special condition of

supervised release that broadly prohibits him from having direct

contact with minors without first obtaining permission from his

probation officer.

II. DISCUSSION

“We review a sentence for procedural and substantive

reasonableness under a deferential abuse

‐ of

‐ discretion standard.” 3 “A

1 Section 2G2.2(b)(1) allows for a two

‐ level reduction to a defendant’s

offense level if “the defendant’s conduct was limited to the receipt or solicitation of

material involving the sexual exploitation of a minor” and “the defendant did not

intend to traffic in, or distribute, such material.” U.S.S.G. § 2G2.2(b)(1).

2 Section 2G2.2(b)(4) calls for a four

‐ level enhancement of a defendant’s

offense level if the offense involved material that portrays “sadistic or masochistic

conduct or other depictions of violence” or “sexual abuse or exploitation of an

infant or toddler.” Id. § 2G2.2(b)(4).

3 United States v. Castillo

, 896 F.3d 141, 148 (2d Cir. 2018) (internal quotation

marks omitted). We note that “‘abuse of discretion’ is a nonpejorative term of art;

it implies no misconduct on the part of the district court.” United States v. Bove

, 888

F.3d 606, 607 n.1 (2d Cir. 2018) (citing In re City of New York

, 607 F.3d 923, 943 n.21

(2d Cir. 2010)). The term merely describes circumstances in which a district court

“base[s] its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence, or render[s] a decision that cannot be located within5 sentence is procedurally unreasonable if the district court fails to

calculate (or improperly calculates) the Sentencing Guidelines range,

treats the Sentencing Guidelines as mandatory, fails to consider the [18

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

facts, or fails adequately to explain the chosen sentence.” 4 We review

a district court’s interpretation of the Guidelines de novo and its

findings of fact for clear error. 5

A sentence is substantively unreasonable only if it “cannot be

located within the range of permissible decisions.” 6 Generally, we will

only find substantive unreasonableness if the sentence is “shockingly

high, shockingly low, or otherwise unsupportable as a matter of law,”

such that allowing it to stand “would damage the administration of

justice.” 7

Finally, while we ordinarily review the imposition of conditions

of supervised release for abuse of discretion, we review for plain error

where, as here, the defendant had advance notice of the challenged

the range of permissible decisions.” In re Sims

, 534 F.3d 117, 132 (2d Cir. 2008)

(internal quotation marks and citation omitted).

4 United States v. Sampson

, 898 F.3d 287, 311 (2d Cir. 2018) (internal quotation

marks omitted).

5 United States v. Young

, 910 F.3d 665, 668 (2d Cir. 2018).

6 United States v. Cavera

, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal

quotation marks omitted).

7 United States v. Broxmeyer

, 699 F.3d 265, 289 (2d Cir. 2012) (internal

quotation marks omitted).6 condition and failed to object during sentencing. 8 To establish plain

error, a defendant must demonstrate: “(1) error, (2) that is plain, and

(3) that affects substantial rights.” 9 If all three conditions are met, we

will then exercise our discretion to rectify this forfeited error only if

“(4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” 10

A. Procedural Reasonableness

Bleau contends that the District Court procedurally erred by

failing to apply a two

‐ level reduction pursuant to § 2G2.2(b)(1) of the

Guidelines and by applying a four

‐ level enhancement pursuant to

§ 2G2.2(b)(4). Both arguments are without merit.

1. Section 2G2.2(b)(1)

Section 2G2.2(b)(1) allows for a two

‐ level reduction of a

defendant’s Guidelines offense level if the defendant’s “conduct was

limited to the receipt or solicitation of material involving the sexual

exploitation of a minor,” and the defendant “did not intend to traffic

in, or distribute, such material.” 11 It is self

‐ evident from the Guideline

text that the requirements for § 2G2.2(b)(1) eligibility are in the

8 See United States v. Green

, 618 F.3d 120, 122 (2d Cir. 2010).

9 United States v. Boles

, 914 F.3d 95, 107 (2d Cir. 2019) (internal quotation

mark and brackets omitted).

10 Id. (internal quotation mark and brackets omitted).

11 U.S.S.G. § 2G2.2(b)(1).7 conjunctive, 12 such that a defendant will not be eligible for a two

‐ level

reduction if, regardless of his intent, his conduct was “related to the

transfer of material involving the sexual exploitation of a minor.” 13

Here, Bleau does not dispute that his computer was equipped

with peer

‐ to

‐ peer file

‐ sharing software. Nor does he dispute that this

software enabled law enforcement to remotely gain access to his files

and download child pornography from his computer. Thus, regardless

of Bleau’s intent, his conduct was indisputably “related to” the transfer

and distribution of child pornography, and there was no error in the

District Court’s denial of a two

‐ level reduction in his offense level

pursuant to § 2G2.2(b)(1).

2. Section 2G2.2(b)(4)

Section 2G2.2(b)(4) of the Guidelines imposes a four

‐ level

enhancement if, inter alia

, the offense involved material that portrays

“sadistic or masochistic conduct or other depictions of violence.” 14 We

have defined the term “sadism” to include “‘the infliction of pain’ for

sexual gratification, ‘delight in physical or mental cruelty,’ and the use

12 See United States v. Reingold

, 731 F.3d 204, 228 (2d Cir. 2013); United States

v. Filippi

, 705 F. App’x 16, 20 (2d Cir. 2017) (summary order) (“The requirements

for § 2G2.2(b)(1) eligibility

. . . are in the conjunctive.”); see also United States v.

Abbring

, 788 F.3d 565, 568 (6th Cir. 2015) (observing that § 2G2.2(b)(1)’s

“requirements are conjunctive” and that “distribution in the sense of transfer or

sharing (even without regard to knowledge)” precludes reduction).

13 U.S.S.G. § 2G2.2 cmt. n.1 (defining the term “distribution”).

14 Id. § 2G2.2(b)(4)(A).8 of ‘excessive cruelty.’” 15 We have also explained that this enhancement

will apply where “(1) an image depicts sexual activity involving a

minor and (2) the depicted activity would have caused pain to the

minor.” 16 We have not, however, expressly clarified whether the

depiction of mental, but not physical, cruelty suffices to trigger the

enhancement under § 2G2.2(b)(4). We confirm today that it does. 17 We

note, however, that this enhancement has limitations and should not

be interpreted in such a way as to make it applicable in “routine” child

15 United States v. Freeman

, 578 F.3d 142, 145 (2d Cir. 2009) (quoting United

States v. Delmarle

, 99 F.3d 80, 83 (2d Cir. 1996), which itself quotes Webster’s Third

New International Dictionary 2254 (1986)).

16 Freeman

, 578 F.3d at 146.

17 We hereby join several of our sister Courts of Appeal that have similarly

upheld the application of § 2G2.2(b)(4) to images that depict the infliction of mental

pain. See, e.g.

, United States v. Cover

, 800 F.3d 275, 280 (6th Cir. 2015) (“Under our

precedent, there are two ways to show that an image is sadistic: (1) offer evidence

that the image depicts the sexual penetration of a prepubescent child

. . . or (2) offer

evidence that the image depicts violence or the ‘infliction of pain,’ either mental or

physical.”); United States v. Lyckman

, 235 F.3d 234, 239 (5th Cir. 2000) (“[I]t was

certainly reasonable for the district court to infer that the conduct depicted by the

photographs caused the children pain, physical or emotional or both, and therefore

constitutes sadism or violence within the meaning of the guideline.”); United States

v. Turchen

, 187 F.3d 735, 739 (7th Cir. 1999) (“[S]adistic and masochistic conduct

includes sexual gratification which is purposefully degrading and humiliating,

conduct that causes mental suffering or psychological or emotional injury in the

victim.”); see also United States v. Johnson

, 680 F. App’x 194, 198 (4th Cir. 2017)

(“Sadistic conduct is not limited to activity involving a rope, belt, whip, chains, or

other instruments, nor does it necessarily require violent conduct. Rather, images

portraying purposefully degrading and humiliating sexual gratification that causes

mental suffering or psychological or emotional injury in the victim may also qualify

as sadistic under the Guidelines.” (internal quotation marks and citations omitted)).9 pornography cases, which are awful in their own right but which may

not necessarily contain depictions of mental cruelty.

Finally, we note that the analysis of whether an image is

“sadistic” under § 2G2.2(b)(4) is strictly objective. 18 The district court

should not speculate on the subjective experience of the individual

depicted or of the particular defendant viewing the material. 19 Rather,

the district court must determine only whether an outside viewer, as

he is watching, would perceive the depicted activity as causing

physical or mental pain to the minor during the course of the activity. 20

Visible expressions of physical pain or mental suffering will generally

cause an objective viewer to believe that the depicted activity would

cause pain.

As always, we urge district courts to “take seriously the broad

discretion they possess in fashioning sentences under § 2G2.2,”

recognizing that it is a unique Guideline that can “easily generate

18 Freeman

, 578 F.3d at 146.

19 See id. (“A sentencing court need not determine whether the people

depicted in the image are deriving sexual pleasure from the infliction of pain; nor

need it gauge whether the viewer of the picture is likely to derive pleasure from the

fact that the image displays painful sexual acts. There is also no need for the

sentencing court to determine either why the defendant possessed the images or

whether he derived pleasure from them.”).

20 See id. (“[T]he determination of whether an image is sadistic under

U.S.S.G. § 2G2.2(b)(4) is an objective one.”); see also United States v. Hotaling

, 634

F.3d 725, 731 (2d Cir. 2011) (defining as “sadistic” conduct that includes the “likely

infliction of pain, delight in physical or mental cruelty, the use of excessive cruelty,

or other depictions of violence” (internal quotation marks omitted)).10 unreasonable results.” 21 And, of course, while a district court “must

still give respectful consideration to the now

‐ advisory Guidelines,” 22

it has the discretion to “tailor the sentence” 23 as it sees fit, and to choose

what it deems an appropriate sentence irrespective of the Guidelines

range. 24

* * *

Here, the videos that Bleau possessed portray a minor victim

performing sex acts upon herself while using a vibrator and other sex

toys. The District Court could not conclude one way or another

whether the depicted activity would have caused the minor victim to

experience physical pain. 25 It did, however, find that the videos “depict

a child between the ages of 12 and 14

. . . being mentally degraded and

humiliated and harmed” 26 and that “objectively, the child is being

21 United States v. Dorvee

, 616 F.3d 174, 188 (2d Cir. 2010).

22 Pepper v. United States

, 562 U.S. 476, 501 (2011) (internal quotation marks

omitted).

23 Id. at 491.

24 See Molina

‐ Martinez v. United States

, 136 S. Ct. 1338, 1346 (2016) (“The

sentencing process is particular to each defendant, of course, and a reviewing court

must consider the facts and circumstances of the case before it. The record in a case

may show, for example, that the district court thought the sentence it chose was

appropriate irrespective of the Guidelines range.” (internal citation omitted)).

25 J.A. 120 (“I cannot say that there is necessarily physical pain associated

with the placement of the vibrators and the penis sex toy into the child’s vagina,

nor can I exclude that there is physical pain

. . . .”).

26 Id.11 degraded and humiliated having to use this vibrator and the male sex

toy.” 27 It also found that one of the videos portrayed a child who

“appear[ed] to be quite nervous,” was “biting her fingernails,” “ha[d]

a look that [the District Court could] only describe as sadness,” and

“[a]t one point place[d] her hand over her face to partially obscure her

face.” 28

We have reviewed the disputed videos and, while we believe

this is a very close case, we cannot conclude that the District Court’s

findings were “clearly erroneous.” 29 Accordingly, we affirm the

District Court’s application of a four

‐ level enhancement under

§ 2G2.2(b)(4) of the Guidelines.

B. Substantive Reasonableness

Having found no procedural error in the District Court’s

Guidelines calculation, we now address the substantive

reasonableness of Bleau’s sentence. Bleau received a 78

‐ month

sentence, a substantial downward variance from his advisory

27 Id. at 121.

28 Id. at 120.

29 See Anderson v. City of Bessemer City, N.C.

, 470 U.S. 564, 573–74 (1985) (“If

the district court’s account of the evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have weighed the evidence

differently. Where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.”).12 Guidelines range of 121 to 151 months. He also faced a mandatory

minimum five

‐ year term of imprisonment. 30

During the sentencing hearing, the District Court acknowledged

Bleau’s lack of criminal history, his steady employment history, and

his lack of known inappropriate contact with minors. 31 It also

considered several mitigating factors, including the relatively low

number of child pornography videos in Bleau’s possession. 32

Nevertheless, the District Court expressed considerable concern over

Bleau’s apparent social isolation, including his lack of recent

relationships, his long

‐ term residence at his sister and brother

‐ in

‐ law’s

house, and his prior employment at an elementary school. 33 Bleau

contends that the District Court substantively erred by giving undue

consideration to these “social isolation” factors.

The weight to be afforded any sentencing factor “is a matter

firmly committed to the discretion of the sentencing judge and is

beyond our review, as long as the sentence ultimately imposed is

reasonable.” 34 During sentencing, a district court is statutorily

required to consider the need for the sentence “to protect the public

30 See 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1).

31 J.A. 122.

32 Id. at 123.

33 Id. at 122–23.

34 United States v. Verkhoglyad

, 516 F.3d 122, 131 (2d Cir. 2008) (internal

quotation marks omitted).13 from further crimes of the defendant.” 35 A defendant’s sociability and

the degree of his integration in the community may be relevant to a

district court’s assessment of the defendant’s likelihood to reoffend

and the concomitant threat that the defendant poses to the public.

Accordingly, we conclude that Bleau’s below

‐ Guidelines, 78

‐ month

sentence—just 18 months above his mandatory minimum five

‐ year

sentence—was substantively reasonable under the circumstances.

C. Special Condition of Supervised Release

Bleau argues for the first time on appeal that the District Court

erred by imposing a special condition of supervised release

prohibiting him from having direct contact with minors without first

obtaining permission from his probation officer (“Special Condition

No. 2” or “special condition”). Bleau contends that this special

condition is not reasonably related to the nature and circumstances of

his offense and/or his personal history and characteristics. He further

asserts that this special condition involves a greater deprivation of

liberty than is reasonably necessary and that it is inconsistent with

pertinent policy statements issued by the Sentencing Commission. 36

While there may be reasonable arguments to support the

imposition of this special condition, we cannot conclude that, on the

present record

, this condition is warranted. A district court must

ordinarily conduct “an individualized assessment” into the necessity

35 18 U.S.C. § 3553(a)(2)(C).

36 See 18 U.S.C. §§ 3553, 3563(b).14 of a special condition of supervised release. 37 And, unless obvious

from the record, the district court must articulate its reasons for

imposing the special condition; its failure to do so is error. 38

Here, the District Court did not adequately explain why a

condition prohibiting direct contact with minors without pre

‐ approval

from the Probation Office was reasonably necessary to promote the

relevant 18 U.S.C. § 3553(a) factors. Nor is it obvious from the record

why such a condition was reasonably necessary. Bleau was not alleged

to have engaged in, or attempted to engage in, inappropriate contact

with minors, even while working at an elementary school. 39 The record

is also devoid of any justification by the District Court for why this

condition imposes “no greater deprivation of liberty than is reasonably

necessary.” 40

The District Court’s failure to explain its rationale is plain error

because it is not obvious from the record why such a condition was

reasonably necessary. Thus, there is a “reasonable probability that

the error affected the outcome” of Bleau’s sentence. 41 Accordingly,

37 United States v. Betts

, 886 F.3d 198, 202 (2d Cir. 2018).

38 Id.

39 See United States v. Jenkins, 854 F.3d 181, 194 (2d Cir. 2017) (vacating district

court’s imposition of a condition barring direct contact with minors without

supervision because the defendant “never contacted or attempted to contact any

minors”).

40 18 U.S.C. § 3583(d)(2).

41 United States v. Marcus, 560 U.S. 258, 262 (2010).15 we remand the cause to the District Court for further consideration of

only Special Condition No. 2, with instructions that (1) the District

Court provide a statement of reasons if it decides to adhere to Special

Condition No. 2; or (2) if it does not so decide, to modify the sentence

to eliminate that special condition. 42

III. CONCLUSION

To summarize, we hold as follows:

(1) A defendant is not eligible for a two

‐ level reduction under

§ 2G2.2(b)(1) of the Guidelines where his use of peer

‐ to

‐ peer

file

‐ sharing software enabled law enforcement officers to

remotely access and download images of child pornography

from his computer, regardless of whether he intended to

distribute this content or not.

(2) A district court may apply a four

‐ level enhancement under

§ 2G2.2(b)(4) of the Guidelines where an image depicts

sexual activity involving a minor and the depicted activity

would have objectively caused the depicted minor to

experience either physical pain or mental cruelty.

42 See United States v. McGeoch, 546 F. App’x 44, 49 (2d Cir. 2013) (summary

order).16 (3) The District Court did not procedurally err in assessing a

four

‐ level enhancement under § 2G2.2(b)(4) of the

Guidelines where the videos depict activity that would have

caused a minor victim to experience mental degradation and

harm.

(4) The defendant’s below

‐ Guidelines sentence of 78 months’

imprisonment was not substantively unreasonable.

(5) The District Court plainly erred by failing to adequately

justify its imposition of a special condition of supervised

release that prohibited the defendant from having direct

contact with minors without pre

‐ approval from the

Probation Office.

For the foregoing reasons, we AFFIRM the May 15, 2018

judgment of the District Court, but REMAND the cause for further

consideration only as to Special Condition No. 2, with instructions that

the District Court either state on the records its reasons for imposing

that special condition, or modify the sentence to eliminate that special

condition.