United States v. Clark, No. 14-2772 (8th Cir. 2015)
Annotate this CaseClark filmed himself touching and attempting to penetrate the vagina and anus of a seven-year-old girl with his penis. The child reported Clark's conduct and Clark ultimately pleaded guilty to producing child pornography, 18 U.S.C. 2251(a) and (b). The presentence investigation report recommended a two-level sentencing enhancement under U.S.S.G. 2G2.1(b)(2)(A) because the offense involved "sexual contact” and recommended a four-level enhancement under U.S.S.G. 2G2.1(b)(4) because the offense involved "material that portrays sadistic or masochistic conduct." Clark objected, asserting impermissible double counting. The district court disagreed, however, finding that "[u]nlike the enhancement for sadistic or violent conduct, the 'sexual contact' enhancement does not require penetration, nor even attempted penetration." The Guidelines' range for Clark's crime was 360 months to life imprisonment. The district court sentenced Clark to only 276 months' imprisonment, stating that the sentence was "about the offense, [the] victim and [his] prior history." The Eighth Circuit affirmed.
Court Description: Criminal case - Sentencing. No error in imposing enhancements under both Guidelines Sections 2G2.1(b)(2)(A) and 2G2.1(b)(4) as application of both enhancements is not impermissible double counting; alternatively, the court clearly stated it would impose the same sentence with or without the enhancements, and any error in imposing them would be harmless.
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