U.S. v. Lyckman

• Decision Date: 07 December 2000
• Docket Number: No. 99-40982,99-40982
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOYD WILLIAM LYCKMAN, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 234

235 F.3d 234 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOYD WILLIAM LYCKMAN, Defendant-Appellant.

No. 99-40982

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

December 7, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court For the Southern District of Texas.

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Appellant-Defendant Lyckman, a former Texas high school coach and teacher, pleaded guilty to three counts of distributing or receiving child pornography. Lyckman challenges the district court's enhancement of his sentence for offenses involving (1) material that depicts sadistic, masochistic, or other violent conduct, and (2) the distribution of child pornography. Lyckman also objects to the district court's refusal to "group" his counts of conviction. Finding no error, we affirm.

I. Facts and Proceedings

Lyckman came to the attention of authorities when the parents of a 15-year-old Corpus Christi girl whom he had contacted in a computer "chat room" complained to the police. Following this episode, police officers went to Lyckman's residence, where he consented to a search of his computer and his house. Child pornography was found on the hard drive of Lyckman's computer. Through America Online, Lyckman's internet service provider, investigators discovered that Lyckman had transmitted by computer a photographic image of a 12-year-old girl being sexually assaulted by an adult. Investigators also found in Lyckman's computer two images of prepubescent girls having sex with adult males. More specifically, each of the three images depicts the male sexual organ partially inserted into the sexual organ of a prepubescent female.

Lyckman was indicted with two counts of distributing child pornography involving the sexual exploitation of minors and five counts of receiving such material. Pursuant to a written agreement, Lyckman pleaded guilty to one count of distributing child pornography and two counts of receiving the same. The government agreed to recommend that Lyckman be given a Sentencing Guidelines reduction for acceptance of responsibility and that he be sentenced at the lowest end of the applicable imprisonment range.

Lyckman's presentence report ("PSR") recommended a base offense level of 17 as to all three counts.¹ The PSR also recommended the following increases applicable to all three counts: two levels because the material involved a prepubescent minor;² five levels because the offense involved distribution;³ four levels because the material depicted violence;⁴ and two levels because a computer was used to transmit the material.⁵ Lyckman's adjusted offense level as to each count was 30; after a multiple-count adjustment of three levels,⁶ he was left with a combined adjusted offense level of 33. Lyckman was entitled to a three-level reduction for acceptance of responsibility,⁷ which yielded a net offense level of 30. This level and his Category I criminal history score resulted in a guideline imprisonment range of 97 to 121 months.

Lyckman made the following objections to the PSR: (1) The increase based on material depicting sadism or violence was not supported by the evidence; (2) the increase for distribution was improper because "distribution" was defined as relating to "pecuniary gain," whereas he had only traded images with others via the internet; and (3) the three counts to which he pleaded guilty were "closely related" and should have been grouped together.⁸

At the sentencing hearing, the district court overruled in short order most of Lyckman's objections to the PSR.⁹ Specifically, the district court concluded that within the meaning of § 2G2.2(b)(3), which applies to material "that portrays sadistic or masochistic conduct or other depictions of violence," the term "violence" encompasses the sexual penetration of a child by an adult. In reaching this conclusion, the district court relied on the testimony of Officer Robert Lee McFarland, a Corpus Christi police officer experienced in the investigation of child pornography on the internet, that a photograph supporting Count One of the indictment depicted the sexual assault of a minor under Texas law and that the child depicted was under the age of 12. Officer McFarland was also of the opinion that the photograph depicted violence done to a child. The district court further concluded that among the photographs supporting Counts Three and Four of the indictment, the images portraying the physical penetration of children by adult males were depictions of violence within the meaning of § 2G2.2(b)(3). The district court sentenced Lyckman to concurrent 95-month prison terms and three-year terms of supervised release on each of the counts, and fined him $1000. Lyckman now appeals that sentence.

II. Analysis

A. Standard of Review

Whether the district court correctly interpreted the Sentencing Guidelines is a question of law that we review de novo.¹⁰ We also review de novo the district court's application of the Sentencing Guidelines grouping rule.¹¹ The district court's findings of fact and application of the Sentencing Guidelines to the specific facts of the case, however, are reviewed for clear error.¹²

B. Issues

1. Enhancement for Offenses Involving Sadistic or Violent Conduct

Lyckman contends that the district court erred in applying § 2G2.2(b)(3) because the photographs at issue, which depict adult males engaging in vaginal intercourse with prepubescent females, are not "sadistic or violent" within the meaning of the guideline. Neither the Sentencing Guidelines nor this court has defined either "sadistic conduct" or "depictions of violence" within the meaning of § 2G2.2(b)(3). Therefore, we must begin with the text of the guideline and the plain meaning of its terms.¹³ In construing these terms, we must give them their ordinary meaning,¹⁴ bearing in mind the important distinction between how a word can be used and how it ordinarily is used.¹⁵ Likewise, we must heed the familiar caveat that "the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used."¹⁶

Webster's Third New International Dictionary defines "violence" primarily as the "exertion of any physical force so as to injure or abuse."¹⁷ Similarly, Black's Law Dictionary defines "violence" as "[1] [u]njust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury. . . . [2] Physical force unlawfully exercised; abuse of force; that force which is employed against common right, against the laws, and against public liberty. . . . [3] The exertion of any physical force so as to injure, damage or abuse."¹⁸

These definitions make clear that the term "violence," as ordinarily used, is not limited to activity involving "whips, chains, beatings . . . brutality or excessive cruelty," as Lyckman would restrict it. Given the ordinary meaning of "violence" as "the exertion of any physical force so as to injure, damage or abuse," it is difficult to imagine that the sexual penetration of a prepubescent female by an adult male would not qualify as "violence."

We must consider the term "violence" not in isolation, but in the context in which it is used. The venerable principle of ejusdem generis warns against expansive interpretations of broad language ---- here, the term "other depictions of violence" ---- that immediately follows narrow and specific terms ---- here, the terms "sadistic or masochistic conduct,"¹⁹ and counsels us to construe the broad in light of the narrow. Therefore, the general term "other depictions of violence" casts its net no wider than necessary to capture images akin to those included by § 2G2.2(b)(3)'s more specific terms.

Although case law interpreting § 2G2.2(b)(3) is sparse, the Second, Seventh, and Eleventh Circuits have all construed the terms "sadistic conduct" and "violence" so that the application of § 2G2.2(b)(3) is warranted when the sexual act depicted is "likely to cause pain in one so young."²⁰ Although our cases upholding applications of § 2G2.2(b)(3) have all involved pornographic images depicting bondage or the insertion of foreign objects into the body canals of a child,²¹ such images hardly exhaust the malevolent universe of sexual violence against children. As the government notes, the sexual penetration of a young girl by an adult male is certainly no less painful, either physically or emotionally, to such a young child than the insertion of a foreign object.²² That being so, it 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.

This conclusion draws additional support from cases that hold indecency with a child by sexual contact and sexual abuse of a child to be crimes of violence within the meaning of 18 U.S.C. § 16.²³ In United States v. Velazquez-Overa,²⁴ for example, we reasoned that when an adult attempts sexual contact with a child, such conduct is "inherently violent because the threat of violence is implicit in the size, age, and authority position of the adult in dealing with such a young and helpless child."²⁵ Similarly, in United States v. Reyes-Castro,²⁶ the Tenth Circuit concluded that because attempted sexual abuse of a child involves a non-consensual act upon another person, there is always a substantial risk that physical force will be used to ensure the child's compliance.²⁷ Although the mere risk of violence is sufficient to trigger 18 U.S.C. § 16, whereas § 2G2.2(b)(3) requires actual "sadistic conduct" or "depictions of violence," these cases nevertheless bolster our conclusion that when a pornographic image depicts an adult male engaging in sexual intercourse with a young girl, the conduct portrayed is sufficiently painful, coercive, abusive, and...