USA. v. Turchen, 98-2718

• Decision Date: 11 August 1999
• Docket Number: No. 98-2718,98-2718
• Citation: 187 F.3d 735
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTHUR J. TURCHEN, also known as ARTURO and R2RO, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 735

187 F.3d 735 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTHUR J. TURCHEN, also known as ARTURO and R2RO, Defendant-Appellant.

No. 98-2718

United States Court of Appeals, Seventh Circuit

Argued February 9, 1999

Decided August 11, 1999

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 CR 14--John C. Shabaz, Chief Judge.

Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Arthur Turchen pleaded guilty to one count of transportation of child pornography in interstate commerce, in violation of 18 U.S.C. sec. 2252(a)(1). The indictment alleged that he sent, over the internet, three image files of photographs. At sentencing, the district court focused its attention on one of the photographs. The court increased Mr. Turchen's sentence by four levels on the ground that the photograph was sadistic or masochistic. See U.S.S.G. sec. 2G2.2(b)(3). It also approved an upward departure in the criminal history category, from II to III, in order to represent more adequately his criminal history. On appeal, Mr. Turchen asserts that the district court abused its discretion in arriving at those determinations. For the reasons set forth in the following opinion, we affirm the judgment of the district court on these sentencing issues but vacate a later sentencing ruling of that court that was entered on June 30, 1999, during the pendency of this appeal. We remand the case to the district court for the limited purpose of permitting that court to enter a new order to accomplish what it intended to accomplish by that order.

I BACKGROUND

A. Facts

Arthur Turchen received and transmitted, over the internet, photographs depicting minor and prepubescent children in sexually explicit acts with minors and adults. When he electronically mailed three graphic files to the wrong person, that person returned them to the internet service provider, which notified the Federal Bureau of Investigation ("FBI").¹

Mr. Turchen pleaded guilty to one count of transporting (by means of his computer) child pornography in interstate commerce.² On June 30, 1998, he was sentenced to 63 months of imprisonment, 3 years of supervised release, and a criminal assessment of $100. He appeals the district court's increases in his sentence: the 4-level enhancement under sec. 2G2.2(b)(3) and upward departure from Criminal History Category II to III under sec. 4A1.3.

B. The Sentencing Determinations

At the sentencing hearing, the district court focused on a particular image in one of the graphic files. It depicts two nude adult males and a nude prepubescent male standing over a female child lying on a bed; they are urinating on her face and she is grimacing.³ The court determined that the image warranted a four-level enhancement under sec. 2G2.2(b)(3) because it depicts sadistic and masochistic conduct. The court also concluded that such conduct, in the alternative, merited an upward departure under U.S.S.G. sec. 5K2.0. In its review of Mr. Turchen's criminal history category, the court also determined that the defendant's criminal history was not adequately represented by Category II. The court believed that Mr. Turchen should be held accountable for a prior adjudication of "not guilty by reason of mental defect" that had not been assessed in his criminal history points. Therefore it imposed an upward departure to take into account this criminal behavior under U.S.S.G. sec.sec. 4A1.3 and 5K2.0. Mr. Turchen appeals those two increases.

II DISCUSSION

A. U.S.S.G. sec. 2G2.2(b)(3)--"Sadistic or Masochistic Conduct"

Section 2G2.2(b)(3) provides: "If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels."

1.

Mr. Turchen asserts that the district court erred in applying sec. 2G2.2(b)(3) because the photograph at issue is not sadistic, masochistic or violent. According to the defendant, every child pornography picture is, by its nature, a depiction that is humiliating or degrading to the victim. He points out that other circuits require that a heightened factor be present within the depiction, such as extreme cruelty being directed against the victim in the photograph or a sado- masochistic act like the bondage of the victim. See United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (concluding that an excessively cruel act that was quite likely to cause pain to the child victim was sadistic), cert. denied, 519 U.S. 1156 (1997); United States v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995) (finding no clear error in enhancement for pornography pictures of female minor in bondage), cert. denied, 517 U.S. 1157 (1996). Mr. Turchen argues that the image of men urinating on a grimacing girl does not depict an act that per se causes pain to the victim or is excessively cruel.

Mr. Turchen further asserts that the district court could not know the feelings of the people in the photograph and should not have speculated that the men were deriving pleasure at the infliction of this act or that the girl's grimace reflected pain. According to Mr. Turchen, the girl's grimace reflects mere disgust or aversion rather than actual pain. Thus the depiction is not clearly sadistic, masochistic or violent, by any definition, and does not merit the 4-level enhancement under sec. 2G2.2(b)(3).

2.

Because Mr. Turchen has challenged whether the district court correctly applied the guidelines, we review de novo the court's decision to apply a specific guideline, in this case sec. 2G2.2(b)(3). See United States v. Ellison, 113 F.3d 77, 79 (7th Cir.), cert. denied, 118 S. Ct. 235 (1997). We also conduct a plenary review of the court's interpretation of terms used in the guidelines, for such an interpretation involves a legal determination of the meaning of guidelines language. See United States v. Eyoum, 84 F.3d 1004, 1007 (7th Cir.), cert. denied, 519 U.S. 941 (1996). However, we review the district court's findings of fact only for clear error. See United States v. Hall, 142 F.3d 988, 997-98 (7th Cir. 1998). We have reviewed the record, including the sentencing transcript and presentence report, along with the parties' briefs, and conclude that the district court did not err in either regard. We reached this conclusion by considering first the methodology employed by the district court at sentencing.

At the sentencing hearing, the district court recited the undisputed description of the image at issue, the description incorporated in the presentence report, and that report's unchallenged conclusion that the depiction is "certainly a very degrading act." R.30 at 12. To determine whether the depiction meets the special offense characteristics described in sec. 2G2.2(b)(3)--by portraying sadistic or masochistic conduct or other depictions of violence--the court examined definitions from various dictionaries and other sources in making its evaluation.⁴ The court commented that sadistic perversion involves "gratification . . . obtained through cruelty" and masochism is "abnormal sexual passion in which one finds pleasure in . . . being abused or dominated." Id. at 13. It concluded that sadism and masochism do not require the kind of violence "we normally consider" as violence. Id. at 14.

The district court then made factual findings about the image. It found that the "urinators were finding pleasure in abusing and cruelly treating a child who had not reached puberty and hence they had pleasure in abusing the person or dominating the person." Id. The court also described the little girl's reaction: "She certainly wasn't enjoying it. She was grimacing and attempting to turn her head away." Id. It concluded that the photograph "did indeed suggest an abnormal sexual passion," one that depicted mental anguish, mental violence and physical violence. Id. at 14-15. It specifically concluded that the conduct shown in the image was degrading, depraved, sadistic, masochistic, perverse, and a form of violence. In the written judgment of the court, in its "Statement of Reasons," the court repeated the definitions of sadism and masochism and concluded that the "grimacing prepubescent nude female reflects that pain which can be attributed to those actions of the urinating males and certainly must address that violence to which the Sentencing Commission referred when addressing sadism and masochistic behavior." R.22 at 8-9. The court then departed upward 4 levels under sec. 2G2.2(b)(3).

After our plenary review of the district court's decision to apply sec. 2G2.2(b)(3) to increase Mr. Turchen's sentence, we find ourselves in complete agreement with the court's methodology. When interpreting a provision of the sentencing guidelines, a court must begin with the text of the provision and the plain meaning of the words in the text. See United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998), cert. denied, 119 S. Ct. 1153 (1999); United States v. Barakat, 130 F.3d 1448, 1453 (11th Cir. 1997). If a term in the guideline is not defined and does not have an established common-law meaning, it must be given its ordinary meaning. See Chapman v. United States, 500 U.S. 453, 461-62 (1991); United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999). We note that the Second Circuit, in Delmarle, used the Webster's Dictionary definition of "sadism" when analyzing a picture of a sexual act. See 99 F.3d at 83.

In light of those precepts, we believe the district court quite properly consulted definitions of sadism and masochism to confirm both the ordinary meanings of the terms and more clinically precise explanations. See, e.g., Norris, 159 F.3d at 929 (consulting dictionary for definition of "victim"). Those definitions make clear that sadistic 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. In...