United States v. Gregory McCloud ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2177
___________________________
United States of America
Plaintiff - Appellee
v.
Gregory McCloud
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 14, 2020
Filed: May 26, 2020
[Unpublished]
____________
Before BENTON, GRASZ, and STRAS, Circuit Judges.
____________
PER CURIAM.
After Gregory McCloud pleaded guilty to two child-pornography counts, the
district court1 sentenced him to 240 months in prison. See 18 U.S.C. § 2251(a)
1
The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
(exploiting a minor for the purpose of producing child pornography). McCloud
argues that he should not have received a four-level sentence enhancement for
producing “material that portrays . . . sadistic or masochistic conduct or other
depictions of violence.” U.S.S.G. § 2G2.1(b)(4)(A); see United States v. Morgan,
842 F.3d 1070, 1075 (8th Cir. 2016) (reviewing the district court’s interpretation of
the Sentencing Guidelines de novo). Our cases say otherwise, so we affirm.
McCloud took photographs of a minor “in various stages of undress,”
including one in which McCloud had pulled her underwear to one side and used his
fingers to penetrate her as she slept. We have repeatedly held that sexual penetration
of a minor is “per se sadistic or violent” conduct under the Sentencing Guidelines.
United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (per curiam); accord,
e.g., United States v. Dodd, 598 F.3d 449, 453 (8th Cir. 2010). Digital penetration
is no exception. Morgan, 842 F.3d at 1076.
Nor is there an exception, as McCloud suggests, for penetrating a minor who
is asleep. What matters is the conduct depicted, not the victim’s subjective
awareness of it. See Dodd, 598 F.3d at 453 (declining to “undertak[e] a fact-specific
analysis” to determine if the conduct in the video was “sufficiently painful” (citation
omitted)); United States v. Raplinger, 555 F.3d 687, 694–95 (8th Cir. 2009)
(allowing an enhancement for sexually explicit photographs of a minor wearing “toy
handcuffs” that she “voluntarily put on and which did not cause her pain”); United
States v. Starr, 533 F.3d 985, 1001–02 (8th Cir. 2008) (rejecting an “unpersuasive”
argument that the enhancement could not apply in “the absence of evidence” of “pain
or injury suffered”). Under our precedent, the conduct depicted here is “necessarily
violent.” Belflower, 390 F.3d at 562. 2
2
To the extent United States v. Nesmith, 866 F.3d 677 (5th Cir. 2017), holds
otherwise, our responsibility is to follow our own precedent. See Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (explaining that we are bound by
what prior panels have decided).
-2-
We accordingly affirm the judgment of the district court.
______________________________
-3-