Summary
finding enhancement applicable where video showed 15-year-old inserting foreign object into vagina and anus
Summary of this case from Olvera v. United StatesOpinion
No. 19-1195
01-02-2020
United States of America Plaintiff - Appellee v. John Charles Schnekenburger Defendant - Appellant
Appeal from United States District Court for the Southern District of Iowa - Davenport [Unpublished] Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. PER CURIAM.
John Charles Schnekenburger pled guilty to production of child pornography in violation of 18 U.S.C. § 2251(a). The district court enhanced his sentence under U.S.S.G. § 2G2.1(b)(4)(A) ("sadistic or masochistic conduct") and U.S.S.G. § 2G2.1(b)(6)(B) ("the use of a computer"). He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.
Schnekenburger argues the district court erred in applying two sentencing enhancements. This court reviews the application of the sentencing guidelines de novo, and the district court's factual findings review for clear error. United States v. Cannon, 703 F.3d 407, 415 (8th Cir. 2013).
A sentencing enhancement under U.S.S.G. § 2G2.1(b)(4)(A) applies when the "offense involved material that portrays . . . sadistic or masochistic conduct or other depictions of violence." U.S.S.G. § 2G2.1(b)(4)(A). The enhancement also "applies to material depicting sadistic, masochistic, or violent conduct even if those pictured were not truly engaging in painful activities." Cannon, 703 F.3d at 415. This court has held that "images involving the sexual penetration of a minor girl by an adult male . . . are per se sadistic or violent." United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (construing the meaning of "sadistic or masochistic" in the context of U.S.S.G. § 2G2.2(b)). Here, Schnekenburger produced videos of a fifteen-year-old inserting a foreign object into her vagina and anus. The district court did not err in determining this conduct meets the definition of "sadistic or masochistic conduct or other depictions of violence." U.S.S.G. § 2G2.1(b)(4)(A). See United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001) (holding that self-penetration by a foreign object qualifies as violence).
A sentencing enhancement under U.S.S.G. § 2G2.1(b)(6) applies when the defendant used "a computer or an interactive computer service to . . . persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct." U.S.S.G. § 2G2.1(b)(6)(B). This enhancement applies "to the use of a computer or an interactive computer service to communicate directly with a minor." U.S.S.G. § 2G2.1, comment. n.6(B). Schnekenburger did not object to portions of the Presentence Investigation Report that said he: (1) created social media accounts pretending to be a young male; (2) befriended multiple minor females; (3) requested and received child pornography from the minors via the computer; and (4) stored the pornography on his electronic devices. Based on this evidence, the court did not err in applying this enhancement.
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The judgment is affirmed.