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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0213p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

MARCUS W. COVER, 

Defendant-Appellant. 

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No. 14-3641 

Appeal from the United States District Court 

for the Northern District of Ohio at Akron. 

No. 5:14-cr-00015—Christopher A. Boyko, District Judge. 

Decided and Filed: September 1, 2015 

Before: GILMAN, ROGERS, and SUTTON, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Joseph V. Pagano, Rocky River, Ohio, for Appellant. Laura McMullen Ford, 

UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. 

_________________ 

OPINION

_________________ 

 PER CURIAM. Defendant Marcus Cover pled guilty to violating a federal child 

pornography statute. He now raises several objections to his sentence. A remand is required 

because there was not sufficient evidence to support a Guideline enhancement for material 

depicting sadistic conduct. Cover’s other objections are without merit. 

>
No. 14-3641 United States v. Cover Page 2 

I.

 In September 2013, an FBI agent downloaded multiple files depicting children engaged 

in sexually explicit conduct from Cover’s computer. The government arrested Cover, who pled 

guilty to distributing child pornography over the Internet. See 18 U.S.C. § 2252(a)(2). The court 

calculated a sentencing guidelines range of 262 to 327 months, which included: (1) a two-level 

increase for distributing material involving the sexual exploitation of a minor, U.S.S.G. 

§ 2G2.2(b)(3)(F); (2) a two-level increase for distributing material involving a minor under the 

age of 12, id. § 2G2.2(b)(2); (3) a four-level increase for distributing material that portrays 

violent or sadistic conduct, id. § 2G2.2(b)(4); and (4) a five-level increase for engaging in a 

pattern of activity involving the sexual exploitation of a minor, id. § 2G2.2(b)(5). 

 After considering Cover’s situation and the circumstances of the offense, the district 

court sentenced him to 240 months in prison. The court also ordered as a special condition of 

supervised release that Cover could not “own or possess any type of camera, photographic 

device, and/or . . . video recording equipment without the written approval of [his] probation 

officer.” 

On appeal, Cover challenges each of the enhancements as procedurally unreasonable and 

the length of the sentence and the special condition on supervised release as substantively 

unreasonable. The challenge to the sadistic-portrayal enhancement, however, is the only 

objection warranting reversal. 

II.

When a probation officer investigates the background and character of a defendant and 

publishes her findings in a presentence report, the district court is permitted to rely upon those 

facts at sentencing unless there is a “dispute.” Fed. R. Crim. P. 32(i)(3); United States v. Lang, 

333 F.3d 678, 681 (6th Cir. 2003). To create a factual dispute, a defendant “must produce some 

evidence that calls the reliability or correctness of the alleged facts into question”—a burden of 

production that requires “more than a bare denial.” Lang, 333 F.3d at 681 (quoting United States 

v. Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994)). Only when a defendant produces “some 

evidence” contradicting the presentence report must a district court, at sentencing, engage in 
No. 14-3641 United States v. Cover Page 3 

factfinding of its own. United States v. Adkins, 729 F.3d 559, 570 (6th Cir. 2013). With one 

exception, however, Cover’s factual objections to the presentence report were “bare denials,” 

and his legal objections are meritless. 

A.

First, Cover objects to the two-level enhancement for distributing material involving the 

sexual exploitation of a minor. See U.S.S.G. § 2G2.2(b)(3)(F). The guidelines define 

“distribution” as “any act . . . related to the transfer of material involving the sexual exploitation 

of a minor,” including “posting material involving the sexual exploitation of a minor on a 

website for public viewing.” Id. cmt. n.1. Cover concedes that he knowingly used a file-sharing 

program and that the program permitted an FBI agent to download illicit material from Cover’s 

hard drive. Still, Cover argues that the enhancement should not apply because he “had no intent 

to engage in distribution.” 

Yet intent in this respect is not an element of the two-level distribution enhancement. 

The “knowing use of [a file-sharing program], much like the posting of a file on a website, is 

sufficient.” United States v. Conner, 521 F. App’x 493, 500 (6th Cir. 2013); see also United 

States v. Bolton, 669 F.3d 780, 781–83 (6th Cir. 2012). Thus, even if Cover did not realize that 

an FBI agent could download child pornography files from Cover’s computer, he acknowledges 

that he knowingly used a file-sharing program that could distribute his files. That suffices to 

justify the enhancement. 

B.

Second, Cover objects to his two-level enhancement for an offense that involves material 

depicting a minor under the age of 12. See U.S.S.G. § 2G2.2(b)(2). According to the 

government’s presentence report, Cover’s computer contained an image of a prepubescent girl 

holding an adult man’s penis in her hands. Cover objected to the accuracy of this statement, 

noting that the affidavit attached to the criminal complaint mentioned images only of children 

older than 12. But the government’s evidence at sentencing is not limited to the affidavits that 

established the probable cause necessary to bring its criminal complaint. See United States v. 

Cooper, 739 F.3d 873, 884 (6th Cir. 2014) (noting that the guidelines may be triggered by 
No. 14-3641 United States v. Cover Page 4 

judicial factfinding). And “[a] defendant cannot show that a PSR is inaccurate by simply 

denying the PSR’s truth. Instead, beyond such a bare denial, he must produce some evidence 

that calls the reliability or correctness of the alleged facts into question.” Adkins, 729 F.3d at 570 

(quoting Lang, 333 F.3d at 681). Cover at best has shown that the evidence in the criminal 

complaint, considered alone, would not be sufficient to justify this enhancement. But he has 

produced nothing to contradict any of the evidence in the presentence report that does justify the 

enhancement. 

Cover alternatively maintains that the district court should have viewed the image 

described by the presentence report before overruling his objection. But without some evidence

disputing the content of the image, the district court was permitted to rely on the presentence 

report’s accuracy. Fed. R. Crim. P. 32(i)(3)(A); United States v. Gerick, 568 F. App’x 405, 410 

(6th Cir. 2014); cf. United States v. Groenendal, 557 F.3d 419, 425 (6th Cir. 2009). And the 

government offered to show the district court the objected-to image in case Cover disputed what 

it contained. Because Cover’s second objection is nothing more than a “bare denial,” we reject 

it. Adkins, 729 F.3d at 570. 

C.

Third, however, there is merit to Cover’s objection to his four-level enhancement for an 

offense involving material that portrays sadistic conduct or depictions of violence. See U.S.S.G. 

§ 2G2.2(b)(4). Some background is in order. As to this enhancement, the PSR said as follows: 

“Pursuant to subsection (b)(4), if the offense involved material that portrays sadistic or 

masochistic conduct or other depictions of violence, increase by 4 levels. One of the videos 

found on the defendant’s computer depicted an 11 to 13 year old female engaging in oral to 

genital intercourse with a male.” In response to the PSR, Cover filed written objections. As to 

this proposed enhancement, he said only this in his objection: “We object to the 4 level increase 

for material that involves sadistic or masochistic conduct. There is no indication of violence.” 

Cover said only this in his sentencing memorandum: “Defendant believes that the 4 level 

increase for material that portrays sadistic or masochistic conduct or other depictions of violence, 

pursuant to Section 2G2.2(b)(4) is also erroneous. The images on Defendant’s computer that 

depicted sexual conduct did not involve violence, sadistic or masochistic conduct.” The 
No. 14-3641 United States v. Cover Page 5 

probation officer responded: “This enhancement was applied because one of the videos found on 

the defendant’s computer depicted an 11 to 13 year old female engaging in oral to genital 

intercourse with a male. The actual penetration of the child is considered to be sadistic and/or 

masochistic.” Cover did not offer any further argument on this score—whether through a new 

written objection or through an oral objection at the beginning of the sentencing hearing. 

Consistent with the recommendation of the probation officer and consistent with Cover’s failure 

to respond to the officer’s explanation, the district court imposed the four-level increase to 

Cover’s advisory guidelines range. In the court’s words: “One of the videos found on his 

computer depicted an 11 to 13 year-old female engaging in oral and genital intercourse with a 

male. That is considered to be sadistic or masochistic as a matter of law.” Cover did not raise 

any objection to this analysis, even after the district court asked whether he had any other 

objections to the proposed sentence. 

Under our precedents, there was not sufficient evidence to support the sadism 

enhancement. Application of that enhancement increased defendant’s guideline range by more 

than 7 years. The only indication in the record that sadistic conduct was portrayed is the fact that 

the victim was 13 years old or younger and that she engaged in oral sex with a man. There is no 

indication that she was visibly pained or prepubescent. Downloading and distributing such 

material is certainly despicable, harmful to the victim, and legitimately deserving of harsh 

punishment. But if the material does not portray sadism, then the punishment should not be 

increased on that basis. 

U.S.S.G. § 2G2.2(b)(4) provides that a defendant’s base offense level shall be increased 

by four levels “[i]f the . . . material . . . portrays sadistic or masochistic conduct or other 

depictions of violence.” The general meaning of sadism is “the infliction of pain upon a love 

object as a means of obtaining sexual release.” Webster’s Third New International Dictionary

1997−98 (2002); see also United States v. Groenendal, 557 F.3d 419, 425 (6th Cir. 2009). 

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, in which case we presume that 

the image is “inherently sadistic,” United States v. Corp, 668 F.3d 379, 390 (6th Cir. 2012);

Groenendal, 557 F.3d at 426, largely because such conduct is “likely to cause pain in one so 
No. 14-3641 United States v. Cover Page 6 

young,” Corp, 668 F.3d at 390; or (2) offer evidence that the image depicts violence or the 

“infliction of pain,” either mental or physical. The government has not shown either. 

There is no indication in the record that the image depicted violence or the infliction of 

pain, either mental or physical. It is very culpable to have and distribute an image depicting a 

13-year-old or younger victim engaged in oral sex with a man, but such a depiction is not 

automatically—without more—sadistic. As sad as it is, there is no denying that many eighthgraders these days voluntarily engage in oral sex, presumably without experiencing pain. 

Remand is accordingly required by our decision in United States v. Corp, 668 F.3d 379 

(6th Cir. 2012). In Corp we held that oral penetration of a non-prepubescent child—even with 

greater evidence of the humiliating nature of the fellatio than in the present case—required 

resentencing to determine whether the images showed the infliction of pain. We distinguished 

other cases on the ground that “the photographs do not depict a prepubescent child and [the 

child’s] expression does not seem to convey what could objectively be perceived as a 

manifestation of humiliation or disgust.” Id. at 390. We explained as follows: 

[T]he court must consider what the material at issue actually portrays rather than 

making subjective determinations about the thoughts or intentions of the specific 

individuals being depicted. In other words, whether an adult in the image is in fact 

intending to inflict physical or mental pain and whether the minor in fact 

experiences such pain are immaterial. Rather, the court must determine, based on 

the contents within the four corners of the image, whether the circumstances 

being portrayed are such that an outsider would perceive them as depicting the 

infliction of pain or humiliation on the minor. In sum, we hold that in order to 

apply the § 2G2.1(b)(4) enhancement, a sentencing court must determine by a 

preponderance of the evidence that an image or material (1) depicts sexual 

activity involving a minor and (2) portrays conduct that would cause an objective 

viewer to believe—without regard to the undepicted circumstances of the sexual 

encounter—that the pictured activity is inflicting physical pain, emotional 

suffering, or humiliation on that minor. 

Id. at 389−90. This is not to say that the district court must view images before determining 

whether there is sadism; nor is it to say that the depiction of a 13-year-old girl engaging in oral 

sex with a man can never be sadistic. But the determination outlined in Corp must be made to 

show that there was a portrayal of sadism. 
No. 14-3641 United States v. Cover Page 7 

It is true that, as we have held in our published decision in Groenendal, “penetration of a 

prepubescent child by an adult male constitutes inherently sadistic conduct.” Groenendal, 

557 F.3d at 426. That case is different from both Corp and this case because in Groenendal the 

victim was clearly prepubescent. Here, the only indication in the record relevant to whether the 

victim was prepubescent is that she was 11- to 13-years old. The only possible rationale in this 

case for a prepubescence determination is that because the victim was 11- to 13-years old, she 

was probably prepubescent. Nothing supports such an assumption. “[I]n girls, puberty usually 

starts around 11 years of age,”1 and the Sentencing Guidelines themselves use “prepubescent 

minor” and “minor who has not attained the age of 12” together. U.S.S.G. § 2G2.2(b)(2). 

Cover adequately raised an objection to the sadism enhancement, arguing that the image 

described was not violent. Cover cannot be faulted for not having contended that the child 

portrayed in the video was not prepubescent. Neither the presentence report nor the district 

judge ever stated that the 11-to-13-year-old child in the allegedly sadistic video was 

“prepubescent,” and no precedent indicates that an 11-to-13 year old is even presumptively—let 

alone always—considered prepubescent under the guidelines. Cover can hardly be faulted for 

failing to address an argument not presented below. 

As in Corp, the most appropriate course is to leave to the district court the determination 

whether the sadism-portrayal enhancement applies in light of the proper standard. 

D.

Fourth, Cover objects to the five-level enhancement for engaging “in a pattern of activity 

involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5). The guidelines 

define a “pattern” to mean “any combination of two or more separate instances of the sexual 

abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation 

. . . occurred during the course of the offense.” Id. cmt. n.1. “Sexual abuse or exploitation,” in 

turn, includes sexual conduct with a person at least 12 years old and not yet 16 who “is at least 

four years younger than the person so engaging.” Id.; 18 U.S.C. § 2243(a). The district court 

 1

See, e.g., For Parents: What to Expect When Your Child Goes Through Puberty, FAMILYDOCTOR.ORG, http://familydoctor.org/familydoctor/en/teens/puberty-sexuality/puberty-what-to-expect-when-your-child-goesthrough-puberty.html.
No. 14-3641 United States v. Cover Page 8 

based this enhancement on Cover’s prior state felony conviction for taking indecent liberties 

with a 12 year old when he was 16, as well as his polygraph testimony that while he was on 

probation for this felony he had sex with 14- and 15-year-old girls when he was 17 and 18. 

Cover claims that his conviction in fact involved a 15-year-old victim. But he again 

failed to support this point with “some evidence” that contradicted the evidence on which the 

court relied. See Adkins, 729 F.3d at 570. Nor has Cover disputed that his sexual conduct while 

on probation was a separate instance of “sexual abuse or exploitation.” See U.S.S.G. 

§ 2G2.2(b)(5). The district court did not err in relying on the presentence report’s investigation. 

E.

Fifth, Cover objects to the substantive reasonableness of his 240-month sentence. 

Because of our remand with respect to the sadism-portrayal enhancement, it is premature for us 

to rule on the substantive reasonableness of the overall sentence. 

F.

Sixth, Cover objects to the district court’s imposition of a special condition of supervised 

release: that Cover “not own or possess any type of camera, photographic device, and/or 

equipment, including video recording equipment without the written approval of the probation 

officer.” The question is not whether we would have imposed the condition; it is whether the 

district court abused its discretion in imposing the condition. United States v. Carter, 463 F.3d 

526, 528–29 (6th Cir. 2006). As to that, all we ask is “whether the district court adequately 

stated in open court at the time of sentencing its rationale for mandating special conditions of 

supervised release,” and whether the “condition of supervised release is reasonably related to the 

dual goals of probation[:] the rehabilitation of the defendant and the protection of the public.” 

United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007) (quoting Carter, 463 F.3d at 529, 

and United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997)) (internal quotation marks 

omitted). 

Cover argues that the condition is substantively unreasonable because it is “overly broad” 

and there is no evidence that he used cameras or photographic devices in the commission of his 

offenses. But Cover possessed more than 600 images of child pornography, he was convicted 
No. 14-3641 United States v. Cover Page 9 

before for an offense involving a minor, and he admitted to continuing to view child 

pornography and continuing to have sex with minors despite this earlier conviction. It was not 

unreasonable for the district court to conclude that a probation officer’s supervision might be 

necessary to protect the public and deter Cover from collecting new images for himself. See also

United States v. Morrison, 771 F.3d 687, 695–96 (10th Cir. 2014) (collecting cases from other 

circuits upholding camera restrictions even where the defendant did not use a camera to commit 

his offense). No abuse of discretion occurred. 

For these reasons, we vacate and remand the district court either to resentence Cover or to 

make the requisite factfinding needed for the sadism-portrayal enhancement.