United States v. Nesmith, No. 16-40196 (5th Cir. 2017)Annotate this Case
An image portrays sadistic conduct where it depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image's creation. In this case, defendant pleaded guilty to the sexual exploitation of a minor and was sentenced to 360 months in prison. The Fifth Circuit vacated the district court's application of the sadism enhancement under USSG 2G2.1(b)(4), because the victim in this case was asleep when the image was taken and thus no objective observer would conclude that the image portrayed sadistic conduct. The court remanded for resentencing.