United States v. Cook

91 F. App'x 580

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2004
• Docket: No. 03-50139
• Status: Published

Opinion

MEMORANDUM

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We affirm the district court’s sentencing determination. The images possessed by-Cook depicting a prepubescent girl engaged in vaginal intercourse with an adult male clearly portray “sadistic” conduct under United States Sentencing Guideline (U.S.S.G.) § 2G2.2. See United States v. Rearden, 349 F.3d 608, 615 (9th Cir.2003). Regardless of whether U.S.S.G. § 2G2.2(b)(3) contains a scienter requirement, in Trial Exhibits 4 and 11 the government introduced evidence sufficient to demonstrate that Cook in fact intended to possess sadistic material. See id. at 616. Because of the limited nature of the prior remand from this court the district court did not err in concluding that it had no authority to depart downward. See United States v. Matthews, 278 F.3d 880, 889 (9th Cir.2002).

We also DENY Cook’s motion for bail pending appeal for the reasons set forth in this disposition.

AFFIRMED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.