Case: 20-50171 Document: 00515961738 Page: 1 Date Filed: 08/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 2, 2021
No. 20-50171 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Shozo Tanaka,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-95-1
Before Stewart, Costa, and Willett, Circuit Judges.
Per Curiam:*
After Shozo Tanaka pled guilty to the production and possession of
child pornography, he was sentenced to 480 months’ imprisonment to be
followed by two concurrent supervised release terms. He now appeals his
sentence on several grounds. For the following reasons, we AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-50171 Document: 00515961738 Page: 2 Date Filed: 08/02/2021
No. 20-50171
I. Factual & Procedural Background
Tanaka pled guilty without the benefit of a plea agreement to the
production and possession of child pornography in violation of 18 U.S.C. §§
2251(a), (e), & 2252A(a)(5)(B). The investigation into Tanaka’s offenses
commenced after confirmed reports revealed that he had photographed and
video recorded himself repeatedly raping a 14-year-old child that he was
supposed to be babysitting.
During a consensual interview with investigators, Tanaka admitted
that he started sexually touching the victim when she was 12 and progressed
to having sex with her when she was 14. He admitted that he had sex with her
on five or six occasions, she told him to stop, and he used a PSP gaming
system to record the assaults. He also admitted that he took video of himself
forcing the victim to engage in oral sex with him. He further stated that he
had started surreptitiously viewing other women and girls through their
windows around five years prior, had watched one girl for three or four years,
and had secretly videoed young children he babysat using the bathroom. He
admitted that he had downloaded child pornography from the internet, and
he showed investigators where he stored the child pornography that he had
created and downloaded. One of the flash drives seized from Tanaka
contained videos of him raping the victim and forcing her to engage in oral
sex. In several of the videos, the victim was heard telling Tanaka “no” and
“stop.” Based on the quantity of child pornography found on Tanaka’s
electronic devices, the presentence report (“PSR”) held him accountable for
over 600 images and videos. Due to the nature of the offenses, the PSR
separately calculated the guidelines range for the production and possession
counts.
With respect to the production offense, the PSR assigned Tanaka a
base offense level of 32. His base offense level was increased by two levels
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because the victim was in his custody or care at the time of the offense, two
levels because the offense involved materials depicting a minor aged 12 to 15,
two levels because the offense involved the commission of a sexual act or
contact, and four levels because the offense involved material that portrayed
sadistic or masochistic conduct or other depictions of violence. See U.S.S.G.
§ 2G2.1(b)(1)–(5). The resulting adjusted offense level was 42.
Because the adjusted offense level for the production offense was
greater than that of the possession offense after application of the relevant
offense-specific enhancements, Tanaka was assigned an adjusted offense
level of 42. His adjusted offense level was increased by five levels under
U.S.S.G. § 4B1.5 for having engaged in a pattern of activity involving
prohibited sexual conduct, and he received a three-level reduction for timely
acceptance of responsibility. Tanaka’s total offense level of 43 and criminal
history category of I yielded an advisory guidelines range of 480 months.1
Although Tanaka’s guidelines range for supervised release was five years to
life, the Guidelines recommended that the maximum possible term be
imposed based on the § 4B1.5 enhancement. Tanaka did not object to the
PSR.
At sentencing, defense counsel noted that Tanaka was cooperative
from the start, his wife had divorced him, he likely would not see his son
again, he faced deportation, and a sentence in excess of 20 to 25 years would
be the equivalent of a life sentence given his age. The victim’s mother then
described the impact of Tanaka’s actions on the victim and on the family
1
Tanaka’s total offense level was capped at 43, which yields a guidelines range of
life for all criminal history categories. See U.S.S.G. Ch.5, Pt. A (Sentencing Table).
However, he was subject to maximum imprisonment terms of 30 years for the production
offense and 10 years for the possession offense, which resulted in the sentences being run
consecutively to achieve a maximum possible sentence of 480 months. See U.S.S.G. §
5G1.2(d).
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more generally and read a statement that the victim had prepared. Finally,
the government noted all that the victim had lost due to Tanaka’s repeated
assaults and the life-long consequences that she would endure as a result. It
further observed that in some of the videos the victim could be heard saying
“no” and “stop” and that Tanaka’s only response was to tell her that it
would be “okay.” The government argued that Tanaka deserved to be
sentenced to 480 months because his conduct demonstrated that he was “a
predator.” When offered final opportunities to speak, defense counsel asked
for mercy.
The district court adopted the PSR without objection and sentenced
Tanaka within the applicable guidelines range to the statutory maximum of
360 months of imprisonment on the production of child pornography count
to be followed by a consecutive 120-month term of imprisonment on the
possession of child pornography count, followed by concurrent life terms of
supervised release. Tanaka did not object to his sentence. He filed this
appeal.2
2
In Tanaka’s opening brief he argues in part that his guilty plea should be set aside
because the rearraignment transcript did not establish that he had been properly advised as
to the statutory penalty ranges for his offenses or the nature of the charges and because the
magistrate judge failed to confirm the factual basis for his plea. Thereafter, on the
government’s motion, the district court corrected the record to reflect that, during an
unrecorded bench conference, Tanaka had been properly advised of the statutory penalties
and the nature of the charges against him and that the magistrate judge had ascertained that
there was a factual basis for Tanaka’s guilty plea. Because the corrected record establishes
that the district court complied with Federal Rule of Criminal Procedure 11, Tanaka
explicitly withdraws his challenges to his guilty plea in his reply brief on appeal. For these
reasons, we do not address either party’s arguments pertaining to the validity of Tanaka’s
guilty plea.
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II. Discussion
On appeal, Tanaka argues that the district court reversibly erred by
imposing the four-level sentencing enhancement under § 2G2.1(b)(4)(A)
because the images of the victim were not objectively sadistic, masochistic,
or violent. He further asserts that the district court imposed a procedurally
unreasonable sentence by failing to consider the 18 U.S.C. § 3553(a)
sentencing factors and by failing to state its reasons for imposing the
maximum aggregate term of imprisonment provided by statute and
concurrent life terms of supervised release. We disagree.
A. Sentencing Enhancement
Under § 2G2.1(b)(4), a defendant is subject to a four-level upward
adjustment “[i]f the offense involved material that portrays (A) sadistic or
masochistic conduct or other depictions of violence; or (B) an infant or
toddler.” Because the victim was over 12 years old at the time Tanaka made
the photographs and videos of his sexual assaults of the victim, the question
here is whether any of the photographs or videos that Tanaka produced
depict conduct that is sadistic or otherwise violent. Id.
“An image is sadistic if it depicts conduct that an objective observer
would perceive as causing the victim in the image physical or emotional pain
contemporaneously with the image’s creation.” United States v. Mecham, 950
F.3d 257, 267 (5th Cir. 2020) (internal quotation marks and citation omitted). The standard focuses on the viewpoint of an objective viewer rather than the viewpoint of the defendant or victim because the enhancement applies to “material that portrays sadistic conduct or other depictions of violence.” United States v. Nesmith,866 F.3d 677
, 679 (5th Cir. 2017) (internal quotation
marks and citation omitted). The “contemporaneous” requirement
“ensures that not every child pornography conviction receives the
enhancement as all victim children are likely to experience emotional pain
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once they learn that pornography depicting them exists.” Mecham, 950 F.3d
at 267.
Review here is for plain error because Tanaka failed to object to the
enhancement in the district court. See Nesmith, 866 F.3d at 679. To establish
plain error, Tanaka must show a forfeited error that is clear or obvious that
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes this showing, this court has the discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.Id.
As this court observed in Mecham, images of a victim being forcibly
restrained during a sex act may depict sufficiently painful and cruel conduct
to be deemed sadistic even if the victim is an adult. See 950 F.3d at 268.
Furthermore, this court has twice upheld application of the enhancement
where a young child was forced to orally copulate a parent on grounds that
such conduct would humiliate and degrade the victim. See United States v.
Cloud, 630 F. App’x 236, 237–39 (5th Cir. 2015) (per curiam); United States
v. Comeaux, 445 F. App’x 743, 745 (5th Cir. 2011) (per curiam) (observing
that many depictions of sadistic conduct “do not involve violence or
[physical] pain, but rather subjugation and humiliation”).
According to the PSR, video footage in this case depicted Tanaka
subjecting the victim to various forms of sexual assault, including rape and
forced oral sex, over her verbal objections. Tanaka’s victim endured his
filming the assaults and described him manipulating her body and forcing her
to perform various sex acts so that he could take specific pictures of her from
numerous angles and document himself assaulting her. Because Tanaka did
not adduce any evidence that refuted the victim’s allegations, the district
court could credit them. See United States v. Torres-Magana, 938 F.3d 213,
217 (5th Cir. 2019).
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An objective observer viewing the foregoing depictions could
reasonably conclude that Tanaka’s actions caused the victim to
contemporaneously suffer subjugation, emotional distress, and humiliation.
See Mecham, 950 F.3d at 267–68. Consequently, the district court’s
application of the § 2G2.1(b)(4) enhancement was not clearly erroneous. See
Puckett, 556 U.S. at 135.
B. Procedural Challenge to Sentence
Tanaka also argues that his 480-month sentence is procedurally
unreasonable because the district court failed to consider the § 3553(a)
sentencing factors and failed to state its reasons for imposing Tanaka’s
sentence and supervised release terms.3 Notwithstanding Tanaka’s
argument to the contrary, he did not preserve his procedural challenge by
requesting a specific sentence. See United States v. Coto-Mendoza,
986 F.3d 583, 585–86 (5th Cir. 2021);4 United States v. Mondragon-Santiago,564 F.3d 357
, 361 (5th Cir. 2009). Thus, this court’s review is for plain error,
which requires Tanaka to establish plain or obvious error that affects his
substantial rights. See Coto-Mendoza, 986 F.3d at 585.
District courts are required at the time of sentencing to state in open
court the reasons for the particular sentence imposed. See 18
3
Although Tanaka argues that some of the special conditions of supervised release
imposed by the district court “were extremely onerous,” he offers no discernible argument
as to whether their imposition constitutes reversible error. See United States v. Brace, 145
F.3d 247, 255–56 (5th Cir. 1998) (en banc) (holding that this court does not search the record to find the factual basis for a claim); Beasley v. McCotter,798 F.2d 116
, 118 (5th Cir. 1986) (noting that counseled briefs are not entitled to liberal construction). Therefore, he has waived any challenges to the imposition of these conditions. See United States v. Scroggins,599 F.3d 433
, 446–47 (5th Cir. 2010).
4
Coto-Mendoza held that Holguin-Hernandez v. United States, 140 S. Ct. 762
(2020), does not override this court’s precedent concerning what is required to preserve a
claim of procedural sentencing error. See 986 F.3d at 585–86.
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U.S.C. § 3553(c). “When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so, little explanation is required.” United States v. Mares,402 F.3d 511
, 519 (5th Cir. 2005). Here, the district court did not reference the Guidelines or provide reasons for the sentence imposed. Tanaka’s sentence, however, was within the Guideline range and he has failed to show that a more detailed explanation would have resulted in a lower sentence. See Mondragon- Santiago,564 F.3d at 365
. Accordingly, the district court’s failure to adequately explain Tanaka’s sentence did not affect his substantial rights.Id.
Thus, we find no reversible plain error.
III. Conclusion
The district court’s judgment is AFFIRMED.
8
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