Argued January 8, 2015
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13 CR 018-- Rudolph T. Randa, Judge.
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
Jermaine L. Johnson pleaded guilty to one count of production of child pornography, see 18 U.S.C. § 2251(a), and one count of possession of child pornography, see 18 U.S.C. § 2252(a)(4)(B). At sentencing, the parties disputed whether several photographs showing Johnson's twelve-year old victim inserting foreign objects into her vagina were sadistic or masochistic. See U.S.S.G. § 2G2.1(b)(4). The court concluded over Johnson's objection that one of the photographs warranted the four level upward adjustment for sadistic or masochistic images. On appeal, Johnson contends that the district court erroneously enhanced his sentence under § 2G2.1(b)(4). Although our reasoning is slightly different than that of the district court, we affirm.
While Johnson was on probation for a previous conviction for second degree assault of a child in Waukesha County, Wisconsin, his probation officers Jacob Leannais and Rebecca Lesada discovered evidence suggesting that he may have reoffended. Specifically, Agent Leannais found over 3,000 photos on Johnson's phone. Most of the photos were sexually explicit and Leannais believed several of the individuals pictured may have been minors. Agent Lesada had also received a tip from an individual who reported that Johnson had a Facebook account and was posting ads on Craigslist. Based on this information, Leannais and Lesada contacted Special Agent Eric Szatkowski from the Wisconsin Department of Justice to assist with their investigation of Johnson. Lesada then contacted Johnson and directed him to report to her office.
Although initially Johnson denied having violated his probation, he eventually admitted that he had a Facebook account, four e-mail accounts, and that he owned the phone with the sexually explicit photos. Subsequent searches of Johnson's car and his apartment led to the discovery of a cell phone, camera, and flash drive. These contained images of two minor females--identified as Minor Female A and Minor Female B--that Johnson had met on MySpace and Facebook.
Johnson connected with Minor Female A in July 2009, when she had just turned twelve years old. Johnson identified himself on MySpace with the username " DA photographer." After Johnson chatted online through MySpace with Minor Female A, he added her as a " friend" and they exchanged telephone numbers and photos of one another. Johnson told the girl that
he was twenty-three years old (he was in fact thirty-three at the time), and she falsely claimed to be fifteen as opposed to twelve (her birthday had been just three weeks before). Johnson began asking her to meet him and also instructed her to take various explicit photographs of herself and text the pictures to him. Although she protested that his requests made her feel " stupid," Minor Female A proceeded to take and send photographs of herself inserting her finger into her vagina and also inserting a highlighter and the handle of a screwdriver into her vagina. Johnson responded by sending Minor Female A a photo of his erect penis.
Johnson also persuaded Minor Female A to meet him. He picked her up from the bus stop at school and took her to a hotel in Milwaukee where the two engaged in various sex acts, including anal and vaginal intercourse. Agents recovered twenty-one images of Minor Female A on a thumb drive belonging to Johnson and on a personal computer hard drive that belonged to Johnson's girlfriend at the time.
Minor Female B was a tenth-grade student in Milwaukee who was contacted by Johnson on Facebook. He sent her a friend request and suggested that he take pictures of her at the Milwaukee lakefront. He then picked her up several times from her home and took photographs of her both at the lakefront and, ironically, at the group home for sex offenders where he was living at the time. Agents recovered over 100 photographs from Johnson's cell phone in a file labeled ...