United States v. Joshua Rogers (11th Cir. March 2021)

The Federal Docket

July 13, 2021

Sentencing Guidelines/Child Pornography – The enhancement for material involving sadistic or masochistic conduct or depicting violence was properly applied to a picture of the defendant choking a victim during sex.

Sentencing Guidelines/Child Pornography – The 5-point enhancement under USSG 4B1.5(b)(1), which applies when a defendant’s “instant offense of conviction is a covered sex crime . . . and the defendant engaged in a pattern of activity involving prohibited sexual conduct,” is intended to be imposed “cumulatively” to any other enhancement under Chapters 2 and 3 and thus cannot constitute double counting.

Joshua Rogers pleaded guilty and admitted to having sex and using drugs with a 16 year old girl who had run away from home. He had also recorded them having sex and posted images of them online. Rogers was sentenced to 360 months for distribution and production of child pornography and challenged several enhancements he received under the federal sentencing guidelines.

Rogers contested that the 4-level enhancement under USSG 2G2.2(b)(4) which applies “if the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler.” The district court imposed the enhancement based on two videos and one picture, which depicted Rogers’ hand around the victim’s neck while they were having intercourse.

On appeal, the Court held that the enhancement was appropriate based on the plain language definitions of “sadism,” “masochism,” and “violence” and the photo of Rogers choking the victim during sex. Since the question of whether the material is sadistic, masochistic, or depicts violence is an “objective” inquiry, Rogers’ intent was irrelevant. Moreover, the Court noted that the enhancement applies as long as one image depicts sadistic, masochistic, or violent conduct, so it was irrelevant whether the two videos qualified for the enhancement.

The Court also rejected Rogers’ argument that the district court engaged in impermissible “double counting” by imposing the enhancement under USSG 2G2.2(b)(5), which applies where the defendant engages in “a pattern of activity involving the sexual abuse or exploitation of a minor,” and USSG 4B1.5(b)(1), which applies where a defendant’s “instant offense of conviction is a covered sex crime . . . and the defendant engaged in a pattern of activity involving prohibited sexual conduct.”

The Court held that the district court did not plainly err, noting that 4B1.5(b)(1) specifically provides that the 5-point enhancement applies “plus the offense level determined under Chapters Two and Three” and thus reflects the Sentencing Commission’s intent for Chapter 4 to apply “cumulatively” to any other enhancement.

The Court also rejected Rogers’ claim that the district court improperly curtailed his right to cross-examine the detective at sentencing regarding the victim’s sexual relationship with two other men and held that Rogers’ sentence was not substantively unreasonable.

On appeal from the Southern District of Florida
Opinion by Branch, joined by Jordan and J. Pryor

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

Scroll to Top