United States v. Clifford Mecham, Jr.

Case: 19-40319 Document: 00515309833 Page: 1 Date Filed: 02/13/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 19-40319 February 13, 2020

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

CLIFFORD LAVERNE MECHAM, JR.

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, SMITH, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Real child pornography is not protected speech under the First

Amendment. Osborne v. Ohio, 495 U.S. 103 (1990); New York v. Ferber, 458

U.S. 747 (1982). But virtual child pornography—sexually explicit images

“created by using adults who look like minors or by using computer imaging”—

is protected speech. Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). This

appeal asks whether the First Amendment protects pornography that falls

between those two categories. The defendant superimposed the faces of actual

children on pornographic photos of adults to make it appear that the minors

were engaged in sexual activity. Unlike virtual pornography, this “morphed”

child pornography uses an image of a real child. Like virtual pornography,

however, no child actually engaged in sexually explicit conduct. Circuits

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disagree about whether morphed child pornography is protected speech. We

agree with the majority view that morphed child pornography does not enjoy

First Amendment protection, so we affirm the conviction. But the fact that the

pornography was created without involving a child in a sex act does mean that

a sentencing enhancement for images that display sadistic or masochistic

conduct does not apply, so we remand for resentencing.

I.

Clifford Mecham took his computer to a technician for repairs. The

technician discovered thousands of images showing nude bodies of adults with

faces of children superimposed. The technician reported the pornography to

the Corpus Christi Police Department.

After receiving this report, police executed a search warrant of Mecham’s

home and seized several electronic devices. Mecham waived his Miranda

rights and admitted he had added the faces of his four granddaughters to

photos and videos of adults engaged in sexual conduct.

Mecham later explained why he made the images. After Mecham spent

many years interacting with his grandchildren, his daughter prevented him

from having any contact with her children. By creating the images, he hoped

to get back at his family for cutting him off.

A forensic analysis of the items seized from Mecham’s home revealed

over 30,000 pornographic files. All these photos and videos were morphed child

pornography using the faces of Mecham’s grandchildren. The children were

four, five, ten, and sixteen in the photos Mecham used. Mecham emailed some

videos to his oldest granddaughter. One of those videos shows that

granddaughter’s face on an adult female having sex. Mecham superimposed

his face on the male in the video. The video uses computer animation to show

the male ejaculating, with the semen shooting to the granddaughter’s mouth.

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Although Mecham distributed at least some videos to his granddaughter,

the grand jury charged him only with possession of child pornography. The

video listed in that count lasts 8 minutes and 43 seconds. It adds the face of

Mecham’s five-year-old granddaughter to a montage of photos of an adult

female engaging in oral, vaginal, and anal sex. In parts of the video, Mecham’s

face is morphed onto the face of the men engaging in the acts.

Mecham moved to dismiss the indictment, arguing that the First

Amendment protects morphed child pornography from prosecution. The

district court disagreed.

The case proceeded to a stipulated bench trial, after which the court

found Mecham guilty. The court later sentenced Mecham to a prison term of

97 months.

II.

A.

Child pornography cases are frequently prosecuted in federal court. So

it may be surprising that such laws are of relatively recent vintage. The

history of obscenity law explains why child pornography laws are a modern

development. Before the Founding, most colonies treated profanity or

blasphemy as criminal offenses. Paris Adult Theatre I v. Slaton, 413 U.S. 49,

104 (1973) (Brennan, J., dissenting). During the nineteenth century, state

prosecutions for the publication of “lewd or obscene” material increased under

the common law and statutes. Id. The federal government joined in with the

Tariff Act of 1842, which barred importing obscene material, and especially

with the Comstock Act of 1873, which criminalized mailing obscene material.

Id.; Smith v. United States, 431 U.S. 291, 311−313 (1977) (Stevens, J.,

dissenting). From 1842 to 1956, Congress enacted 20 such obscenity laws.

Roth v. United States, 354 U.S. 476, 485 (1957). With this many general

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obscenity laws on the books, there was no need for laws targeting sexually

explicit material involving children.

Then obscenity laws came under constitutional scrutiny in the mid-

twentieth century. The Supreme Court held that obscenity “is not within the

area of constitutionally protected speech.” Id. But that did not resolve the

constitutional status of obscenity prosecutions. The Court also recognized that

“sex and obscenity are not synonymous,” meaning that some depictions of sex

are entitled to First Amendment protection. Id. at 487. Over the next several

years, the Court grappled with drawing the line between unprotected obscenity

and protected sexual material. In 1973, the Supreme Court tried to put an end

to its “intractable obscenity problem” with a test requiring the government to

prove that an allegedly obscene work appeals to the prurient interest, is

offensive in light of community standards, and lacks serious literary, artistic,

political, or scientific value. Miller v. California, 413 U.S. 15, 16, 24 (1973)

(quoting Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (Harlan, J.,

concurring and dissenting)). Although Miller stabilized the Supreme Court’s

obscenity jurisprudence, its “community standards” test did not “make

obscenity readily identifiable,” leaving its “prosecution difficult and fraught

with constitutional challenges.” Note, James H. Jeffries IV, Seizing Obscenity:

New York v. P.J. Video, Inc. and the Waning of Presumptive Protection, 65 N.C.

L. REV. 799, 804 (1987).

With post-Miller obscenity law an uncertain vehicle for regulating

sexually explicit materials, child pornography laws emerged. In 1977,

Congress passed the first federal law aimed at child pornography. See

Protection of Children Against Child Exploitation Act of 1977, Pub. L. No. 95-

225, 92 Stat. 7 (1978). At the time, only six states had such laws. S. REPORT

NO. 95-438, at 48 (1977). By 1980, less than a decade after Miller, twenty

states had laws “prohibit[ing] the distribution of material depicting children

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engaged in sexual conduct without requiring that the materially be legally

obscene.” Ferber, 458 U.S. at 749.

New York enacted one of the early child pornography laws. 1 Id. at 750.

Its law, which criminalized distribution but not possession of child

pornography, soon reached the Supreme Court. Id. at 750–51. The Court

rejected a First Amendment defense. It gave five reasons why “the States are

entitled to greater leeway in the regulation of pornographic depictions of

children.” Id. at 756. First, the government has a compelling interest in

“safeguarding the physical and psychological well-being of a minor.” Id. at

756–57 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607

(1982)). Second, distribution of child pornography compounds the sexual abuse

of children by circulating a “permanent record” of the abuse. Id. at 759. Third,

outlawing the sale of child pornography reduces the economic incentive to

create it. Id. at 761–62. Fourth, any value of child pornography is “exceedingly

modest, if not de minimis.” Id. at 762. Fifth, categorically excluding child

pornography from the First Amendment is consistent with the longstanding

recognition that bans on certain types of speech escape First Amendment

scrutiny when “the evil to be restricted so overwhelmingly outweighs the

expressive interests, if any, at stake.” Id. at 763–64. As examples of speech

categorically excluded from the First Amendment, the Court cited fighting

words or libel against nonpublic figures. Id. at 763.

Not long after Ferber the Supreme Court concluded that states may also

ban possession. See Osborne, 495 U.S. at 111. Osborne, largely echoing Ferber,

cited the following reasons for its holding: punishing possession reduces

demand for the pornography; a ban on possession may limit the reputational

1 A preenforcement challenge to the New York law resulted in the first use of the term

“child pornography” in a federal reporter. See St. Martin’s Press, Inc. v. Carey, 440 F. Supp.

1196, 1205–06 (S.D.N.Y. 1977), rev’d, 605 F.2d 41 (2d Cir. 1979).

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damage to the child by encouraging destruction of the images; and “evidence

suggests that pedophiles use child pornography to seduce other children into

sexual activity.” Id. at 109–11.

The constitutionality of child pornography laws seemed settled. But in

the 1990s Congress expanded the reach of the federal statute after child

pornography proliferated with the rise of personal computers and the internet.

The Child Pornography Prevention Act of 1996 added both virtual and

morphed child pornography to the types of depictions federal law prohibits.

Free Speech Coal., 535 U.S. at 239.

The ban on virtual child pornography did not last long. In 2002, the

Supreme Court held that images not depicting real children but that “appear”

to do so are protected speech. 2 Id. at 239–40, 256. The Supreme Court first

emphasized that “themes [of] teenage sexual activity and the sexual abuse of

children [] have inspired countless literary works,” including Romeo and Juliet.

Id. at 247. 3 The Supreme Court then distinguished its cases allowing child

pornography prosecutions. Unlike real child pornography, virtual

pornography is not “‘intrinsically related’ to the sexual abuse of children.” Id.

at 250 (quoting Ferber, 458 U.S. at 759). And unlike real child pornography,

2 The Court recognized at the outset of its opinion that some virtual child pornography

may be prosecutable under obscenity laws (obscene material need not depict real people).

Free Speech Coal., 535 U.S. at 240. But it was considering only the constitutionality of the

child pornography law’s prohibition on virtual pornography. Id. The video Mecham was

convicted of possessing would present a strong obscenity case, but we only consider the child

pornography law as that is the one the grand jury charged.

3 Free Speech Coalition read Ferber to recognize First Amendment protection for some

virtual pornography because of this artistic value, quoting Ferber’s acknowledgment that

some sexual depictions involving children might have “literary or artistic value,” but in those

cases “a person over the statutory age who perhaps looked younger could be utilized.” Id. at

251 (quoting Ferber, 458 U.S. at 763).

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which results in “injury to the child’s reputation and emotional well-being,” id.

at 249, no child is involved in the creation of virtual pornography, id. at 250. 4

The concern about child pornography’s reputational and emotional

impact on children also came up in Free Speech Coalition’s mention of the 1996

law’s separate ban on “morphed pornography.” That provision defines child

pornography as “any visual depiction . . . whether made or produced by

electronic, mechanical, or other means, of sexually explicit conduct, where . . .

such visual depiction has been created, adapted, or modified to appear that an

identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. §

2256(8)(C). Although the Supreme Court did not resolve whether the First

Amendment protects morphed pornography, it noted that images using photos

of identifiable minors to make it appear they are engaged in sexual acts

“implicate the interests of real children and are in that sense closer to the

images in Ferber.” Free Speech Coal., 535 U.S. at 242.

Free Speech Coalition thus tells us that morphed child pornography is

“closer” to real child pornography because the image makes it appear that an

“identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. §

2256(8)(C). But it does not say whether it is close enough to real child

pornography to constitute unprotected speech. That is the question this case

poses.

B.

Mecham’s video is morphed child pornography. He imposed the face of

his granddaughter on the body of an adult engaged in sexual acts to make it

appear that an identifiable minor was engaged in sexual conduct. He contends

Free Speech Coalition appears to recognize that one interest Osborne had cited for

4

why child pornography is unprotected could also apply to virtual child pornography: that the

images might be used to solicit minors to engage in sexual conduct. 535 U.S. at 250. The

Court held, however, that this rationale alone was not sufficient to categorically exclude

images from the First Amendment. Id.

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that the video is entitled to First Amendment protection because, even though

it uses an image of a real child, it does not depict the sexual abuse of that child.

That underlying criminal conduct is necessary, in his view, for an image to be

excluded from the First Amendment.

To support his argument that child pornography falls outside the First

Amendment only when it depicts sexual abuse of a real minor, Mecham points

to a Supreme Court case decided after the child pornography decisions we have

discussed. United States v. Stevens, 559 U.S. 460 (2010), held that images

depicting cruelty to animals are not categorically excluded from the First

Amendment. Id. at 472. In rejecting the government’s emphasis on the

negligible value of animal “crush” videos, Stevens noted that its prior

recognition of categorical exclusions from the First Amendment did not depend

on “a simple cost-benefit analysis” of the speech’s worth. Id. at 471. The Court

acknowledged that it had discussed the “de minimis” value of child

pornography in excluding such images from the First Amendment but

explained that Ferber “did not rest on this ‘balance of competing interests’

alone.” Id. (quoting Ferber, 458 U.S. at 764). Ferber presented a “special case”

because “[t]he market for child pornography was ‘intrinsically related’ to the

underlying abuse” of children. Id. (quoting Ferber, 458 U.S. at 759). And,

Stevens continued, it has long been recognized that speech “used as an integral

part of conduct in violation of a valid criminal statute” does not enjoy First

Amendment protection. Id. (quoting Ferber, 458 U.S. at 762).

Stevens persuaded one circuit to conclude that morphed child

pornography created without any child’s being abused is protected First

Amendment speech. See United States v. Anderson, 759 F.3d 891, 894–95 (8th

Cir. 2014); see also State v. Zidel, 940 A.2d 255, 265 (N.H. 2008) (holding the

same before Stevens). The image in Anderson, like Mecham’s video, “digitally

superimposed” the face of a young girl over the face of an adult female having

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sex. 759 F.3d at 893. The Eighth Circuit distinguished its earlier decision

allowing prosecution of morphed child pornography when the face of a minor

was superimposed on the face of another minor engaging in sexually explicit

conduct. Id. at 894 (citing United States v. Bach, 400 F.3d 622 (8th Cir. 2005)).

The Eighth Circuit concluded that the key under Stevens is whether the

morphed child pornography depicts the underlying crime of sexual abuse of

any minor, even if not the minor whose face is displayed. Id. at 895. 5

Two circuits have reached the opposite conclusion, concluding that

morphed child pornography raises similar concerns as real child pornography

and thus shares its categorical exclusion from the First Amendment. See Doe

v. Boland, 698 F.3d 877 (6th Cir. 2012); United States v. Hotaling, 634 F.3d

725 (2d Cir. 2011). 6 By using identifiable images of real children, these courts

5 Anderson nonetheless affirmed the conviction for distributing the morphed image

after applying strict scrutiny to the protected speech. 759 F.3d at 895–96. As an alternative

ground for affirming, the government argues that the prosecution of Mecham’s video likewise

survives strict scrutiny even if it is subject to the First Amendment. Mecham counters that

prosecution of possession, as opposed to the distribution charge in Anderson, is not narrowly

tailored to further the government’s compelling interest in eliminating the reputational harm

of morphed child pornography. We need not address this question because we take the

majority view that morphed child pornography is categorically excluded from the First

Amendment. And on the categorical question, Mecham concedes it does not matter whether

he was charged with possession or distribution, just as that distinction does not matter for

real child pornography.

Mecham’s concession likely stems from the framing the parties (and other courts) have

used for the First Amendment issue: Should morphed child pornography be treated like the

real thing or like virtual child pornography? If the answer is that the First Amendment

treats morphed images like real child pornography, then Osborne would seem to reject any

distinction between possession and distribution offenses. But that distinction matters in at

least one other area. Although Roth held that obscenity is categorically excluded from the

First Amendment, the Supreme Court later ruled that criminalizing the private possession

of obscenity abridged the “personal liberties guaranteed by the First and Fourteenth

Amendments.” Stanley v. Georgia, 394 U.S. 557, 568 (1969). Because Mecham did not raise

the issue, we do not decide whether a Stanley-like privacy claim may provide a defense to a

defendant charged with only the private possession of morphed child pornography.

6 The United States argues that the circuit split is more lopsided. But the cases it

cites did not directly hold that morphed child pornography is categorically excluded from the

First Amendment. Shoemaker v. Taylor, 730 F.3d 778, 787 (9th Cir. 2013) (holding in the

habeas context that it is not clearly established that the First Amendment protects morphed

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conclude, morphed child pornography implicates the reputational and

emotional harm to children that has long been a justification for excluding real

child pornography from the First Amendment. Doe, 698 F.3d at 883; Hotaling,

634 F.3d at 729–30. The Sixth Circuit also pointed out that a ban on morphed

child pornography does not raise the “Romeo and Juliet” threat to literary and

artistic expression that the unconstitutional ban on adult actors appearing like

children engaged in sexually explicit conduct created. Doe, 698 F.3d at 883–

84 (citing Free Speech Coal., 535 U.S. at 247). And, the Sixth Circuit added,

morphed child pornography has “relatively weak expressive value.” Id. at 883.

That final point about the negligible value of morphed pornography may

not carry much weight in light of Stevens’s warning against relying solely on a

balancing approach when determining if a category of speech is excluded from

the First Amendment. Indeed, neither the Second nor Sixth Circuit considered

Stevens when ruling that morphed child pornography is not protected speech.

See Doe, 698 F.3d at 883−84 (not addressing Stevens though it had issued two

years earlier); Hotaling, 634 F.3d at 725 (issued after Stevens). But those

circuits’ conclusion that morphed child pornography falls outside the First

Amendment came less from a balancing test than from the interest in

preventing reputational and emotional harm to children that bans on real and

morphed pornography share. See Free Speech Coal., 535 U.S. at 242. Does

Stevens undercut that interest in preventing reputational and emotional harm

to children, which has long been one of the primary reasons child pornography

may be prosecuted?

As is typically the case when a circuit split exists, there are reasoned

arguments on both sides of this issue. In deciding which side has the better

child pornography); United States v. Hoey, 508 F.3d 687, 693 (1st Cir. 2007) (reasoning that

morphed child pornography causes psychological harm, justifying the application of a

sadistic-conduct sentence enhancement, but not addressing a First Amendment challenge).

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argument, we begin with a larger jurisprudential point about the restraint

lower courts should show when Supreme Court caselaw is arguably in flux. We

are not supposed to get ahead of the Supreme Court and read tea leaves to

predict where it might end up. The Supreme Court’s child pornography

decisions—from Ferber through Free Speech Coalition—invoke the concern

about reputational and emotional harm to children; a one-paragraph

discussion of child pornography in a case involving animal crush videos does

not allow us to overrule those decisions. United States v. Price, 775 F.3d 828,

838 (7th Cir. 2014) (noting that Stevens discussed child pornography “only in

passing” and “then only to reject an analogy between it and depictions of

animal cruelty”); cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”). That is especially true

when Stevens makes no mention of the interest in preventing reputational or

emotional harm to children. See Stevens, 559 U.S. at 471. It had no reason to,

as that interest could not be a justification for banning videos depicting animal

torture (the minimal value of the crush videos was urged as a reason they

should not be considered protected speech, which is why the Court addressed

that aspect of Ferber). Nor does Stevens say that a connection to underlying

sexual abuse is the only one of Ferber’s many rationales that now matters; it

instead said that feature made Ferber a “special case.” Id. If Stevens’s

emphasis on child pornography’s connection to criminality meant that such

images could be prosecuted only when they depict sexual abuse of a minor,

“[t]hat would have been a significant doctrinal development, and not likely to

be hidden in a case about crush videos.” Price, 775 F.3d at 839.

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Why would limiting the categorical exclusion of child pornography to

images depicting criminal abuse of children be so significant? Because the

federal definition of real child pornography is not limited to images that depict

sexual abuse of a minor. Among the images long treated as “sexually explicit”

are those showing a “lascivious exhibition of the anus, genitals, or pubic area”

of a minor. 18 U.S.C. § 2256(2)(A)(v). This definition was used to prosecute a

father who took images of his young stepdaughters through a hidden bathroom

camera and cropped the images to focus on their genitals. United States v.

Traweek, 707 F. App’x 213, 215 (5th Cir. 2017). In affirming the conviction, we

rejected the defendant’s argument that Ferber requires “that the minor

affirmatively commit a sexual act or be sexually abused.” Id. at 215 n.2 (citing

United States v. Steen, 634 F.3d 822, 826–28 (5th Cir. 2011)). The Seventh

Circuit likewise rejected a Stevens challenge to images with a lascivious

exhibition of the genitals that may “stop short of depicting illegal child abuse.”

Price, 775 F.3d at 839. It concluded that “nothing in [Stevens’s] brief discussion

addresses the definition of child pornography or limits the category to visual

depictions of criminal child abuse.” Id.

Similar prosecutions involving images that zoom in on a minor’s genitals,

but that do not depict sexual abuse of a minor, have been brought in many

federal circuits as well as in state courts. State v. Bolles, 541 S.W.3d 128, 136–

37 (Tex. Crim. App. 2017) (citing cases from the Sixth, Eighth, Ninth, and

Eleventh Circuits); see also United States v. Lyckman, 235 F.3d 234, 240 (5th

Cir. 2000) (recognizing that “child pornography may involve merely ‘pictures

of a [naked] child’ . . . without physical sexual contact”). This application of

child pornography laws to lewd or lascivious displays of a child’s genitals is not

new; the New York child pornography law upheld in Ferber included “lewd

exhibition of the genitals” among the banned material. Ferber, 458 U.S. at 765

(quoting N.Y. PENAL LAW § 263.00(3)) (approving that aspect of the definition

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as a “permissible regulation”); see also United States v. Williams, 553 U.S. 285,

296 (2008) (recognizing that Ferber “constitutionally approved” of the New

York law’s definition of “sexual conduct,” which largely mirrors the federal

child pornography law’s definition of “sexually explicit conduct”). Reading

Stevens to allow a First Amendment defense to any child pornography

prosecution when the images do not depict an underlying sexual abuse crime

would thus limit the reach not just of the ban on morphed child pornography

but of the decades-old bans on real child pornography.

We do not read Stevens to have made that significant a departure from

the Court’s child pornography decisions. Those decisions have consistently

cited the interest in preventing reputational and emotional harm to children

as a justification for the categorical exclusion of child pornography from the

First Amendment. Free Speech Coalition and every circuit to consider the

question have recognized that morphed child pornography raises this threat to

a child’s psychological well-being. We conclude that because morphed child

pornography depicts an identifiable child, it falls outside the First Amendment.

Mecham’s conviction is affirmed.

III.

Having affirmed Mecham’s conviction, we now turn to his sentence.

Mecham argues that the district court erred in applying the four-level

enhancement for a child pornography offense that “involve[s] material that

portrays sadistic or masochistic conduct or other depictions of violence.”

U.S.S.G. § 2G2.2(b)(4)(A). The Presentence Report concluded that “numerous

morphed images and videos” among the thousands that made up Mecham’s

relevant conduct qualified for this enhancement. Mecham objected, and the

government’s response argued only that the video that served as the count of

conviction portrayed sadistic conduct. Without making findings, the district

court overruled Mecham’s objection and applied the enhancement. The four

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points meant Mecham’s advisory Guidelines range was 97–121 months instead

of 63–78 months. After “look[ing] at the Guidelines . . . and us[ing] the factors

in [18 U.S.C. §] 3553(a) for sentencing,” the district court sentenced Mecham

to the low end of the range it adopted: 97 months.

An image is sadistic if 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.” United States v. Nesmith, 866

F.3d 677, 681 (5th Cir. 2017). Requiring the pain to be “contemporaneous with

the image’s creation” ensures that not every child pornography conviction

receives the enhancement as all victim children are likely to experience

emotional pain once they learn that pornography depicting them exists. See

id. Nesmith rejected the sadism enhancement for images depicting a

defendant’s penis placed on the lips of an unconscious child. Id. at 678, 681.

It reasoned that if a child is not being harmed in the image and does not know

the image is being made, creation of the image does not cause contemporaneous

physical or emotional pain. Id. at 681.

The district court seemed resistant to applying Nesmith. When Mecham

cited the case at sentencing, the district court did not distinguish it. Instead,

it noted the seriousness of the conduct in Nesmith (it had presided over that

case) and commented “We’re going to give [the Fifth Circuit] more cases, then,

to look at.” But Nesmith needed to be considered. It means that the

postcreation emotional harm to Mecham’s granddaughters does not warrant

the enhancement.

Without contemporaneous emotional harm, an image must portray

physical pain to be deemed sadistic. Sexual penetration of an actual

prepubescent child qualifies. See Lyckman, 235 F.3d at 238–40. But for

morphed pornography involving the obvious use of an adult body, intercourse

alone does not involve the requisite pain. That is not to say that morphed

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pornography can never qualify for the sadism-or-masochism enhancement.

The body image may be of a prepubescent child, just not the one whose face is

shown. See Bach, 400 F.3d at 632. Or the body image may show conduct that

is painful or cruel even for an adult; when, for example, the adult engaged in

the sex act is forcibly restrained. See Hotaling, 634 F.3d at 731–32. Or it may

reasonably appear that the body image is of a prepubescent child (even though

it is not) for whom the sex act would be painful. See id.; see also Nesmith, 866

F.3d at 680 (holding that the standard is objective). The key inquiry is whether

a reasonable viewer would conclude that the image depicts the

contemporaneous infliction of pain. See Nesmith, 866 F.3d at 681.

The district court did not make that finding here. Nor does the

Presentence Report or our review of the record support the sadism

enhancement. The district court thus erred in including those four points in

its Guidelines calculation.

The government contends this discussion of the sadism enhancement

was unnecessary because the district court would have applied the same 97-

month sentence without it. To show a sentencing error is harmless, the

government must “convincingly demonstrate[] both (1) that the district court

would have imposed the same sentence had it not made the error, and (2) that

it would have done so for the same reasons it gave at the prior sentencing.”

United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).

The government’s harmlessness argument fails at the first step. The

district court did not say it would have given the same 97-month sentence

without the enhancement, and that is the most straightforward way to prove

harmlessness. See, e.g., United States v. Richardson, 676 F.3d 491, 510–11

(5th Cir. 2012) (affirming a sentence despite a calculation error when the

district court stated it would impose the same sentence under either potential

sentencing range). Although there are other situations in which the

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Case: 19-40319 Document: 00515309833 Page: 16 Date Filed: 02/13/2020

No. 19-40319

government may be able prove harmlessness, the feature of Mecham’s

sentencing that it emphasizes—that the court considered the section 3553(a)

statutory sentencing factors—is unexceptional. Under the advisory Guidelines

regime, a court is supposed to consider those sentencing factors when

determining the sentence. See Gall v. United States, 552 U.S. 38, 49–50 (2007)

(explaining that after determining the advisory Guidelines range, “the district

judge should then consider all of the § 3553(a) factors”). So without more, a

court’s commonplace consideration of the statutory sentencing factors does not

render a sentencing error harmless. We have found that to be the case even

when the court imposes an out-of-Guidelines sentence. See Ibarra-Luna, 628

F.3d at 718–19 (holding that a court’s analyzing the 3553(a) factors and

assigning an out-of-range sentence was not enough to demonstrate the court

would have assigned the same sentence but-for its sentencing error). When

the court imposes a sentence at the low end of the Guidelines, making it more

likely the advisory range had an anchoring effect, a court’s mere consideration

of the section 3553(a) factors is an even weaker basis for finding harmlessness.

Application of the sadism-or-masochism enhancement was not harmless.

And it was error. The sentence is vacated and the case is remanded for

Mecham to be sentenced with an advisory range of 63–78 months.

* * *

Mecham’s conviction is AFFIRMED. The sentence is VACATED and the

case REMANDED for resentencing consistent with this opinion. We express

no view on what sentence the district court should announce on remand.

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