U.S. Court of Appeals for the Ninth Circuit, 2004

United States v. Cook

U.S. Court of Appeals for the Ninth Circuit · Decided March 22, 2004 · Fisher, Hawkins, Weiner

91 F. App'x 580

Counsel

Richard Cheng, AUSA, San Diego, CA, for Plaintiff-Appellee., Robert L. Swain, Esq., San Diego, CA, for Defendant-Appellant.

Cases that cite this one

2 later published cases cite this decision.

Cook v. United States (Supreme Court of the United States 2005)
Meza v. United States (Supreme Court of the United States 2005)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

MEMORANDUM **

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.

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