1 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

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

M ARCUS W. C OVER , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3641

Appeal from the United St ates 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, a nd SUTTON, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Joseph V. Pagano, Rocky River, Ohi o, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE , Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ PER CURIAM. Defendant Marcus Cover pl ed guilty to violating a federal child pornography statute. He now raises several object ions 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 governme nt 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, whic h included: (1) a two-level increase for distributing materi al involving the sexual exploita tion of a minor, U.S.S.G. § 2G2.2(b)(3)(F); (2) a two-level increase for distributing materi al involving a minor under the age of 12, id. § 2G2.2(b)(2); (3) a four-level increase for distributing mate rial that portrays violent or sadistic conduct, id. § 2G2.2(b)(4); and (4) a five-l evel increase for engaging in a pattern of activity i nvolving the sexual e xploitation of a minor, id. § 2G2.2(b)(5).
After considering Cover’s situ ation and the circumstances of the offense, the district court sentenced him to 240 months in prison. Th e 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 appr oval of [his] probation
officer.”
On appeal, Cover challenges each of the enha ncements as procedurally unreasonable and the length of the sentence and the special cond ition 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 presente nce report, the di strict court is permit ted to rely upon those facts at sentencing unless there is a “dispute.” Fe d. 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 f acts 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 inNo. 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 factua l objections to the presentence report were “bare denials,” and his legal objections are meritless.

A.

First , Cover objects to the two-level enhancemen t 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 tran sfer of material involvi ng the sexual exploitation of a minor,” including “posti ng material involving the sexua l 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 ag ent to download illicit material from Cover’s hard drive. Still, Cover argues that the enhanc ement 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-sha ring program], much like the pos ting 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, ev en if Cover did not realize that an FBI agent could download child pornography files from Cover’s co mputer, he acknowledges that he knowingly used a file-sharing program that could distribute his file s. That suffices to justify the enhancement.

B.

Second , Cover objects to his two-level enhancemen t for an offense that involves material depicting a minor und er 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. Cove r objected to the accuracy of this statement, noting that the affidavit attached to the crimin al complaint mentioned images only of children older than 12. But the government’s evidence at se ntencing 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 guideli nes may be triggered byNo. 14-3641 United States v. Cover Page 4

judicial factfinding). And “[a] defendant ca nnot show that a PSR is inaccurate by simply denying the PSR’s truth. Instead, beyond su ch a bare denial, he must produce some evidence that calls the reliability or correctness of the alle ged facts into question.” Adkins , 729 F.3d at 570 (quoting Lang , 333 F.3d at 681). Cover at best has show n that the evidence in the criminal complaint, considered alone, would not be suffici ent 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 dist rict court should have viewed the image described by the presentence report befo re 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 objecti on to his four-level enhancement for an offense involving material that portrays sadi stic 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 violen ce, 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 f iled written objections. As to this proposed enhancement, he sa id only this in his obj ection: “We object to the 4 level increase
for material that involves sadist ic or masochistic conduct. Ther e is no indication of violence.” Cover said only this in his sentencing memorandum: “Def endant believes that the 4 level increase for material that portray s sadistic or masochistic conduct or other depictions of violence, pursuant to Section 2G2.2(b)(4) is also erroneou s. The images on Defendant’s computer that depicted sexual conduct did not involve violence, sadistic or masochistic conduct.” TheNo. 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 furthe r 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 probati on officer and consistent with Cover’s failure to respond to the officer’s expl anation, the district court imposed the four-level increase to Cover’s advisory guidelines range. In the cour t’s words: “One of the videos found on his computer depicted an 11 to 13 year-old female engaging in oral and gen ital intercourse with a
male. That is considered to be sadistic or ma sochistic 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 suffi cient evidence to su pport the sadism enhancement. Application of that enhancemen t increased defendant’s guideline range by more than 7 years. The only indication in the record that sa distic conduct was portray ed 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 th e victim, and legitimately deserving of harsh punishment. But if the material does not portr ay 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 leve l shall be increased by four levels “[i]f the . . . material . . . por trays sadistic or masochistic conduct or other depictions of violence.” The general meaning of sadism is “the inflic tion of pain upon a love object as a means of obta ining 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 th at an image is sadistic: (1) offer evidence that the image depicts the sexual pene tration 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 soNo. 14-3641 United States v. Cover Page 6

young,” Corp , 668 F.3d at 390; or (2) offer evidence th at the image depicts violence or the “infliction of pain,” either me ntal or physical. The governme nt 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 cu lpable 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 requi red 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 th e fellatio than in the present case—required resentencing to determine whether the images showed th e 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 materi al 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 adu lt in the image is in fact intending to inflict physical or mental pain and whether the minor in fact experiences such pain are immaterial. Ra ther, 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 woul d 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 cons titutes 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 b ecause 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 ag e 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. C over cannot be faulted for not ha ving contended that the child portrayed in the video was not prepubescent. Neither the pres entence 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 gui delines. Cover can hardly be faulted for failing to address an argume nt not presented below.

As in Corp , the most appropriate course is to leav e 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 enhancemen t for engaging “in a pattern of activity involving the sexual abuse or explo itation 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 defe ndant, whether or not the abuse or exploitation . . . occurred during the course of the offense.” Id. cmt. n.1. “Sexual abus e or exploitation,” in turn, includes sexual conduct with a person at le ast 12 years old and not yet 16 who “is at least four years younger than th e 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 , F AMILY D OCTOR

. ORG , http://familydoctor.org/familydoctor/en /teens/puberty-sexuality/puberty-wh at-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 i nvolved 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 reas onableness 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 speci al condition of supervised release: that Cover “not own or possess any type of camera, photographic device, and/or equipment, including video recording equipmen t without the written approval of the probation officer.” The question is not whether we woul d have imposed the condition; it is whether the
district court abused its discre tion in imposing the condition. United States v. Carter , 463 F.3d 526, 528–29 (6th Cir. 2006). As to that, all we as k is “whether the dist rict court adequately stated in open court at the time of sentencing its rationale for mandati ng special conditions of supervised release,” and whethe r the “condition of supervised rel ease is reasonably related to the dual goals of probation[:] the rehabilitation of th e 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 de vices in the commission of his offenses. But Cover possessed more than 600 images of child pornography, he was convictedNo. 14-3641 United States v. Cover Page 9

before for an offense involving a minor, and he admitted to con tinuing to view child pornography and continuing to have sex with minor s 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) (c ollecting cases from other circuits upholding camera restrictions even wher e 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.