GUIDELINES LANGUAGE

USSG § 2G2.1(b)(4):
“If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an infant or toddler, increase by 4 levels.”
The application notes clarify that if subsection (b)(4)(B) applies, § 3A1.1(b) (vulnerable victim) does not apply.

SADISTIC OR MASOCHISTIC

What qualifies as sadistic or masochistic conduct is described in USSG § 2G2.2(b)(4) under section “(A) Sadistic or masochistic conduct or other depictions of violence.” Circuits have implicitly and explicitly stated that they follow the precedent set by the identical language in § 2G2.2(b)(4).[1]

There are nonetheless production-specific applications of the enhancement for sadomasochism.[2]

The Eleventh Circuit found that the enhancement applies even when the sadistic or masochistic conduct depicted was directed at the defendant and not the minor victim because the minor victim was necessarily involved in the conduct.[3]

[1] United States v. Shouse, 755 F.3d 1104, 1106 (9th Cir. 2014)

[2] United States v. Bevins, 848 F.3d 835 (8th Cir. 2017); United States v. Shouse, 755 F.3d 1104, 1107 (9th Cir. 2014); United States v. Cannon, 703 F.3d 407 (8th Cir. 2013); United States v. Johnson, 784 F.3d 1070, 1071 (7th Cir. 2015)

[3] United States v. Scheels, 846 F.3d 1341 (11th Cir. 2017)

INFANT OR TODDLER

The Elventh Circuit did not rule on whether or not a three-year-old qualifies as a toddler because the defendant’s sentence would have been the same regardless of whether or not the enhancement was applied.[4]

[4] United States v. King, No. 21-12467, 2022 WL 803404 (11th Cir. Mar. 17, 2022)