United States of America v. Scott Tyree

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3985
UNITED STATES OF AMERICA
v.
SCOTT TYREE,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00019)
District Judge: Honorable William L. Standish
Submitted Under Third Circuit LAR 34.1(a)
February 17, 2005
Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges
(Filed: February 17, 2005)
OPINION
AM BRO, Circuit Judge
Appellant Scott Tyree appeals his conviction and sentence. For the reasons that

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follow, we affirm Tyree’s conviction. However, in light of United States v. Booker, 543
U.S. ___, 125 S. Ct. 738 (2005), we remand for resentencing.
I.
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291. As we write only for the parties, we need not
restate the facts. Because Tyree’s challenge to his conviction raises an issue of statutory
construction, we exercise plenary review. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir.
1998).
Tyree pleaded guilty to Counts Two and Four of his indictment, in which he was
charged with traveling in interstate commerce with intent to engage in a sexual act with a
juvenile in violation of 18 U.S.C. § 2423(b) and sexual exploitation of a minor in
violation of 18 U.S.C. § 2251(a), respectively. His plea to the sexual exploitation offense,
however, was conditioned on his preservation of the following issue for appeal: whether
the video of the child victim at issue depicts sexually explicit conduct as that term is
defined in 18 U.S.C. § 2256.
Specifically, 18 U.S.C. § 2256(2) defines “sexually explicit conduct” to include
five types of sexual activity, one of which is “sadistic or masochistic abuse.” 18 U.S.C.
§ 2256(2)(iv). Here, the video shows the child victim standing in her underwear, hands
bound, wearing a collar around her neck, and her buttocks red as if having just been
beaten. The focus of the video is plainly on the child victim’s bound body, which is in a

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submissive pose.
Courts have defined sadism as the “infliction of pain upon a love object as a means
of obtaining sexual release” and “delight in physical or mental cruelty.” United States v.
Wolk, 337 F.3d 997, 1007-08 (8th Cir. 2003) (quoting United States v. Parker, 267 F.3d
839, 847 (8th Cir. 2001)); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996)
(discussing definition of sadism as including “the infliction of pain upon a love object as
a means of obtaining sexual release,” “delight in physical or mental cruelty,” and the use
of “excessive cruelty.”). Here, the video conveys that pain had been inflicted on the
victim, and that the pain was inflicted for a sexual purpose. Thus, the video’s content
depicts sadistic acts. Cf. United States v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995)
(holding that computer files depicting female minors in bondage constitute “sadistic or
masochistic conduct” within the meaning of U.S.S.G. § 2G2.2(b)(3)); United States v.
Tucker, 136 F.3d 763, 764 (11th Cir. 1998) (stating that photographs depicting minors in
bondage are sufficient to establish sadistic conduct for purposes of enhancing the
defendant’s sentence).
Tyree nevertheless argues that the video fails to fall within the ambit of § 2256
because it does not depict the “abuse itself,” implying that the video must depict, for
example, the actual beating in order to sustain his conviction. Although Tyree cites cases
in which the depictions at issue show acts of inflicting pain, these cases do not establish
that such a showing is a requirement for a finding that sadistic abuse has been depicted.

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Significantly, Tyree has not cited any support for his contention that the video does not
involve sadistic abuse. Further, because the video depicts the child victim bound, nearly
naked, standing in a submissive position, and having apparently suffered (and as her
testimony establishes, actually having suffered) a beating, Tyree’s argument that the video
does not depict “sadistic or masochistic abuse” within the meaning of the statute is
unpersuasive.
We therefore affirm Tyree’s conviction.
II.
The remainder of the issues on appeal involve Tyree’s challenges to his sentence,
including a challenge to his sentence under Booker. Having determined that the
sentencing issues Tyree raises are best determined by the District Court in the first
instance, we remand for resentencing in accordance with Booker.
* * * * *
Accordingly, we affirm Tyree’s conviction and remand for resentencing.

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