United States v. Nesmith, 080817 FED5, 16-40196

Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
Judge Panel:Before KING, JOLLY, and PRADO, Circuit Judges.
Opinion Judge:EDWARD C. PRADO, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CALVIN NESMITH, Defendant-Appellant.
Case Date:August 08, 2017
Docket Nº:16-40196



CALVIN NESMITH, Defendant-Appellant.

No. 16-40196

United States Court of Appeals, Fifth Circuit

August 8, 2017

          Appeal from the United States District Court for the Southern District of Texas

          Before KING, JOLLY, and PRADO, Circuit Judges. [*]

          EDWARD C. PRADO, Circuit Judge:

         Defendant-Appellant Calvin Nesmith pleaded guilty to the sexual exploitation of a minor after investigators found an explicit image of Nesmith and the fourteen-year-old daughter of his girlfriend. In calculating Nesmith's Guidelines sentencing range, the district court applied a four-level enhancement because the image purportedly depicted sadistic conduct. Nesmith appeals the district court's application of the sadism enhancement. We VACATE and REMAND for resentencing.

          I. BACKGROUND

         In June 2015, Department of Homeland Security ("DHS") agents began investigating Calvin Nesmith after he responded to an undercover agent's online ad posing as the mother of two young girls. Nesmith arranged to meet with the agent and one of her underage daughters for a "three-way sexual encounter, " and was arrested at the scene of the meeting. DHS agents searched his home the following day. During the search, agents discovered a thumb drive containing pictures of Nesmith and Jane Doe, the then fourteen-year-old daughter of a woman whom Nesmith had been dating and living with for over five years. One image on the thumb drive, the image at issue, depicted Nesmith "standing by [Doe's] bed with his erect penis on the minor's lips."

         In November 2015, Nesmith pleaded guilty to the sexual exploitation of a minor in violation of 18 U.S.C. § ; 2251(a) and (e). The presentence report ("PSR") recommended a four-level enhancement under U.S.S.G. § 2G2.1(b)(4), which applies "[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence." Nesmith objected to application of the sadism enhancement, arguing that the image in question did not depict "purposeful, violent, [or] aggressive conduct." In its response, the Government conceded that the image did not depict physical violence but argued that the image had inflicted emotional pain on the victim. Apparently, "[d]uring the course of the government's investigation, the victim learned of the existence of the image and exactly what it depicts." After learning about the image, the victim felt "humiliated and degraded, " which, according to the Government, sufficed as the sort of infliction of emotional pain that justifies application of the sadism enhancement.

         During Nesmith's sentencing hearing, Doe testified that she had been asleep when the picture was taken and "had no idea the picture [existed] until court." After being told about the content of the picture, Doe said she felt embarrassed, humiliated, and worried because she didn't "know who's seen it or if it will ever get out and how it will affect [her] later." Based on Doe's testimony, the Government reurged application of the enhancement. Nesmith objected, arguing that the image did not portray sadistic or masochistic conduct because it did not depict anyone inflicting or receiving pain. The district court overruled Nesmith's objection, and sentenced him to 360 months' imprisonment. This appeal followed.


         A. Standard of Review

         The parties first dispute the applicable standard of review. The Government contends that Nesmith's argument on appeal differs from his objection below and argues that plain error review should therefore apply. Nesmith counters that the objection he made before the district court contained the gist of his argument on appeal; he therefore urges us to apply de novo review.

         "Generally, this Court reviews the district court's application of the Sentencing Guidelines de novo. . . ." United States v. Garcia-Perez, 779 F.3d 278, 281 (5th Cir. 2015) (quoting...

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