United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)
In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court’s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a “young child [subject] to a sexual act that would have to be painful.”
Here, the defendant challenged the imposition of that same enhancement. He argued that the district court’s findings were inadequate because the court did not specifically use the word “sadistic” in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that “(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor,” the findings are adequate. Since the district court made those findings here, the circuit affirmed.