U.S. v. Belflower, 04-1450.

• Decision Date: 03 December 2004
• Docket Number: No. 04-1450.,04-1450.
• Citation: 390 F.3d 560
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary BELFLOWER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

390 F.3d 560

UNITED STATES of America, Plaintiff-Appellee, v. Gary BELFLOWER, Defendant-Appellant.

No. 04-1450.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2004.

Filed: December 3, 2004.

Anne M. Laverty, Cedar Rapids, IA, for appellant.

Sean R. Berry, Asst. U.S. Attorney, Cedar Rapids, IA, for appellee.

Before MURPHY, LAY, and MELLOY, Circuit Judges.

PER CURIAM.

Gary Belflower took part in e-mail chat rooms with a person he believed to be a fourteen year-old girl named "Jenny." He also e-mailed images of child pornography to "Jenny." Unfortunately for Belflower, "Jenny" was actually an undercover detective. On February 21, 2002, Belflower's residence was searched and a number of incriminating images were seized from his computer files. Ultimately, Belflower pled guilty to one count of knowingly transporting in interstate commerce, by means of a computer, visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(1) and (b)(1), and one count of possession of visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The Presentence Report (PSR) recommended a four-level enhancement to Belflower's offense level because the images involved in the offenses "portray [ed] sadistic or masochistic conduct or other depictions of violence...." United States Sentencing Guidelines (U.S.S.G.) § 2G2.2(b)(3) (2002).¹ Belflower objected to the enhancement. At the sentencing hearing, the Government submitted Exhibit 2, which contained one image sent by Belflower to "Jenny" during their on-line conversations. The Government also submitted Exhibit 3, which contained seventeen images seized from Belflower's computer. After reviewing these images, the district court found that several images contained in Exhibit 3 met the definition of "sadistic" or "violent" depictions, while the image in Exhibit 2 did not. The court overruled Belflower's objection to the enhancement. He was sentenced to sixty-three months of imprisonment for the trafficking count and sixty months of imprisonment for the possession count, with the terms of imprisonment running concurrently.

Belflower now appeals the enhancement of his sentence. He claims that the district court failed to make adequate findings explaining why the images contained in Exhibit 3 constituted "sadistic" or "violent" depictions pursuant to U.S.S.G. § 2G2.2(b)(3), and claims the images show, "at worst," attempted and actual anal and vaginal penetration of male and female children by adult males which "do not depict a child experiencing physical cruelty or pain" and "may or may not [be] a violent act." Appellant's Brief at 9-10.

We reject these arguments. This circuit recently ruled that images involving the sexual penetration of a minor girl by an adult male and images of an adult male performing anal sex on a minor girl or boy are per se sadistic or violent within the meaning of U.S.S.G. § 2G2.2(b)(3). See United States v. Diaz, 368 F.3d 991, 992 (8th Cir.2004). Today, we hold that images of an adult attempting such acts are likewise "sadistic" or "violent" for the purpose of U.S.S.G. § 2G2.2(b)(3). Such images portray conduct sufficient to presume the infliction of mental or physical coercion or abuse upon a minor. They also bespeak a sadistic intent to achieve sexual pleasure through the necessarily violent depiction of a minor as either a sexual object ripe for or deserving of sexual exploitation, or as a sexual subject desirous of and complicit in his or her own sexual exploitation.

Belflower next argues that even if the images in Exhibit 3 were sadistic or otherwise violent, the images which supported his possession offense should not be used to enhance the sentence for his trafficking offense. He claims that U.S.S.G. § 2G2.2(b)(3) permits an enhancement only for the trafficking offense, and there is no evidence that the images in Exhibit 3, which were merely stored in his computer files, were trafficked in any way. Belflower acknowledges the Eighth Circuit's rule that a defendant's contemporaneous possession of violent images during the same time frame that he or she engaged in the trafficking offense is "relevant conduct" for the purposes of the trafficking charge. See United States v. Stulock, 308 F.3d 922, 926 (8th Cir.200...