Accordingly, we found "the enhancement is warranted when the offense involves the depiction of a sexual act that is `likely to cause pain in one so young.'" Id. (quoting United States v. Lyckman, 235 F.3d 234, 238-39 (5th Cir. 2000)). We agree with Quinn that penetrative sex between adults and prepubescent children is inherently sadistic, "[I]mages displaying vaginal or anal penetration of a prepubescent minor by either an adult male or foreign object is likely to be painful and constitutes sadistic conduct that justifies the enhancement."
Moreover, other circuits have construed this Guidelines provision according to the ordinary meaning of its terms, and we too are comfortable following this approach. See, e.g., United States v. Rearden, 349 F.3d 608, 614-15 (9th Cir. 2003); United States v. Lyckman, 235 F.3d 234, 238 (5th Cir. 2000); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996). To date, we have not spoken precedentially on the meaning of "sadistic," "masochistic," and "violent" as used within § 2G2.2(b)(4), or otherwise precisely determined what type of depictions warrant application of the four-level enhancement provided for in this Guidelines provision.
Whether the district court correctly interpreted the Sentencing Guidelines is a question of law that we review de novo. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000). But the district court's application of the Sentencing Guidelines to the facts of the case are reviewed only for clear error.Id.
Our starting point for interpretation is the plain text of the Guidelines. United States v. Lyckman , 235 F.3d 234, 238 (5th Cir. 2000). The plain text of § 2G2.1(b)(4) weighs in favor of an objective analysis.
We review a district court's interpretation of the Sentencing Guidelines de novo. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000). "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."
Because the Guidelines do not define "sadistic or masochistic conduct," we have turned to the dictionary in holding that such conduct is of the type likely to involve the "infliction of pain." United States v. Groenendal, 557 F.3d 419, 425 (6th Cir. 2009) (quoting United States v. Lyckman, 235 F.3d 234, 238 n. 19 (5th Cir. 2000)); see also United States v. Quinn, 257 Fed. Appx. 864, 866-67 (6th Cir. 2007); United States v. Fuller, 77 Fed.Appx. 371, 383-84 (6th Cir. 2003). The base offenses at issue here — receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) — need not involve the depiction of acts likely to cause pain.
Looking to Webster's Third New International Dictionary, the Fifth Circuit described "sadism" as "the infliction of pain upon a love object as a means of obtaining sexual release." United States v. Lyckman, 235 F.3d 234, 238 n. 19 (5th Cir. 2000). Other courts have held that "the application of 2G2.2(b)(3) is warranted when the offense involves the depiction of a sexual act that is `likely to cause pain in one so young.'" Lyckman, 235 F.3d at 238-39 (footnote omitted).
This court has found that the enhancement "is warranted when the sexual act depicted is likely to cause pain in one so young." United States v. Lyckman , 235 F.3d 234, 238 (5th Cir. 2000) (internal quotation marks and citation omitted). Specifically, we have upheld the enhancement in cases involving images of a child in bondage, United States v. Kimbrough , 69 F.3d 723, 734 (5th Cir. 1995), images "showing anal and vaginal penetration of minors through the use of sexual devices," United States v. Canada , 110 F.3d 260, 264 (5th Cir. 1997) (per curiam), and images "depict[ing] the physical penetration of a young child by an adult male," Lyckman , 235 F.3d at 240.
Similar prosecutions involving images that zoom in on a minor’s genitals, but that do not depict sexual abuse of a minor, have been brought in many federal circuits as well as in state courts. State v. Bolles , 541 S.W.3d 128, 136–37 (Tex. Crim. App. 2017) (citing cases from the Sixth, Eighth, Ninth, and Eleventh Circuits); see also United States v. Lyckman , 235 F.3d 234, 240 (5th Cir. 2000) (recognizing that "child pornography may involve merely ‘pictures of a [naked] child’ ... without physical sexual contact"). This application of child pornography laws to lewd or lascivious displays of a child’s genitals is not new; the New York child pornography law upheld in Ferber included "lewd exhibition of the genitals" among the banned material.
We review a challenge to the district court's interpretation of the Guidelines de novo, while we review a claim of mistaken factual findings or a misapplication of the Guidelines to the factual findings for clear error. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000). Albarran first contends that the district court erred by including five kilograms of cocaine in his base offense level; he maintains that he and his coconspirators merely offered to make such a sale and that the buyers did not agree to the purchase.