Bottom line for child porn offenses:
United States v. Cover, 14-3641 holds that the depiction of an 11- or 12-year-old child penetrated orally by an adult penis is not per se a depiction of sadistic or masochistic conduct. There was no evidence in the record that the image was violent or depicted the infliction of physical or psychological pain. The Sixth ruled this holding was not in conflict with United States v. Groenendal, 557 F.3d 419 (6th Cir. 2009) ("penetration of a pre-pubescent child by an adult male constitutes inherently sadistic conduct") because an 11- or 12-year-old child is not necessarily pre-pubescent. The Court also noted, "As sad as it is, there is no denying that many eighth-graders these days voluntarily engage in oral sex, presumably without experiencing pain."
IMPORTANT discussion for anyone filing Shepard-based objections to Presentence Reports regarding ACCA, Career Offender, 2K2.1, etc. etc. etc.:
Remember, a "district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object." United States v. Bondurant, 146 F. App'x 762, 763 (6th Cir. 2005) (quoting United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001). In Cover, the Sixth reminds us the district court can rely on facts in the PSR unless there is a "dispute." "To create a factual dispute, a defendant 'must produce some evidence that calls the reliability or correctness of the alleged facts into question' - a burden of production that requires 'more than bare denial.'" Cover at *2(citing United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003).
It would be insufficient for prosecution or defense to file an objection that merely stated, "defendant/government objects to the information contained in paragraph 30" or "objects... because it is not true." For instance, in the context of information that might ultimately be used in a Shepard analysis, the objection should contain a discussion about how the probation officer preparing the report is allowed to glean information from non-Shepard sources and those have not been deemed reliable enough for a Shepard analysis, as well as an offense-specific discussion of what the Shepard documents do show about a particular offense.