Record-Based Justification Standard: Tenth Circuit Affirms Adult Pornography Ban on Plain-Error Review and Clarifies Proof of “Sexual Act/Contact” via Child-Euphemism Testimony — United States v. Guinn

Note on precedential status: This is an unpublished Order and Judgment of the U.S. Court of Appeals for the Tenth Circuit. It is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel, but it may be cited for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Introduction

In United States v. Guinn, No. 24-5055 (10th Cir. Mar. 25, 2025), a Tenth Circuit panel (Judges Phillips, Baldock, and Rossman) affirmed a jury verdict convicting Darrel Dean Guinn of aggravated sexual abuse of a minor under twelve and abusive sexual contact of a minor, and upheld a special condition of supervised release barring possession or viewing of sexually explicit material as defined in 18 U.S.C. § 2256(2).

The case arises from allegations that Guinn sexually abused his then-11-year-old stepdaughter, K.L., and engaged in sexual contact with his teenage daughter, L.G. After an emergency-room visit and a Sexual Assault Nurse Examiner (SANE) exam, law enforcement became involved. A federal grand jury charged four counts; only count one (aggravated sexual abuse under 18 U.S.C. § 2241(c)) and count three (abusive sexual contact under 18 U.S.C. § 2244(a)(3)) were at issue on appeal. Counts two and four (coercion and enticement under 18 U.S.C. § 2422(b)) were dismissed on procedural grounds.

On appeal, Guinn raised two principal issues:

• Sufficiency of the evidence for (i) the “sexual act” element under 18 U.S.C. § 2241(c) and (ii) the “sexual contact” element under 18 U.S.C. § 2244(a)(3).
• Procedural error in imposing a special condition of supervised release (Special Condition 1(4)) that bans possession or viewing of sexually explicit material, arguing the district court failed to make defendant-specific, compelling findings as required when a condition implicates First Amendment rights.

The Tenth Circuit affirmed on all grounds. Most notably, the panel applied the plain-error framework to the First Amendment challenge and held that, although the district court’s on-the-record explanation was likely inadequate, the existing record supplied a sufficient factual basis to sustain the condition—emphasizing a “record reveals no basis” test for relief under plain-error review.

Summary of the Opinion

• Count One (§ 2241(c)): The evidence was sufficient for a rational jury to find Guinn committed a “sexual act” against K.L. The child’s testimony, using childlike terms and euphemisms (e.g., “no-no square,” “butterfly”), sufficed; the jury was entitled to credit those descriptions despite occasional use of terms (like “rape”) she did not fully understand. The absence of corroborating physical evidence from the SANE exam did not defeat sufficiency.
• Count Three (§ 2244(a)(3)): The evidence was sufficient to establish “sexual contact” with L.G. The testimony that Guinn “humped [her] backside,” pressed his “lower half” (the part used “for going to the bathroom”) against her “bum,” and made a “back and forth” motion allowed the jury to infer sexual intent. The statute does not require that a specific body part of the defendant do the touching; contact (including through clothing) coupled with context suffices.
• Special Condition 1(4) (Pornography ban): Reviewed for plain error (no objection below), the panel assumed the district court’s explanation likely failed to make the defendant-specific, compelling findings required for conditions burdening First Amendment rights. However, there was no prejudice because the record contained a basis for the restriction—testimony that Guinn, while sexually abusing his younger sister during their youth, used adult pornography to groom her. Given that record, there was no reasonable probability of a different outcome even had the district court articulated the proper findings. The condition therefore stands.

Analysis

Precedents Cited and Their Role

• United States v. Burtrum, 21 F.4th 680 (10th Cir. 2021): Reaffirmed the highly deferential sufficiency-of-the-evidence standard—viewing evidence and reasonable inferences in the light most favorable to the government—and upheld a conviction based on a child’s use of non-technical, childlike descriptors of abuse. Guinn relies on Burtrum’s deferential posture to credit child testimony even when medically corroborative evidence is absent.
• United States v. Flechs, 98 F.4th 1235 (10th Cir.), cert. denied, 145 S. Ct. 310 (2024): Emphasized deference to the jury’s credibility determinations. The panel invoked this principle to reject Guinn’s “coaching” argument based on a child’s inconsistent grasp of terminology.
• United States v. Goldesberry, 128 F.4th 1183 (10th Cir. 2025): Instructs courts reviewing sufficiency not to parse evidence “in bits and pieces,” but to consider the “collective inferences” from the whole record. The panel cites Goldesberry to explain why corroborating accounts from L.G. and the SANE nurse matter even if the SANE exam revealed no physical injury.
• United States v. Simpkins, 90 F.4th 1312 (10th Cir. 2024): Clarifies preservation rules for Rule 29 motions—specific grounds not raised are forfeited, but a general motion challenges all essential elements. The panel noted Simpkins but found it unnecessary to fix the standard of review because the evidence satisfied either de novo or plain-error review on count three.
• United States v. Norman T., 129 F.3d 1099 (10th Cir. 1997): “The gravamen of [§ 2244] is contact.” This anchors the idea that the statute focuses on where the victim is touched rather than which body part of the defendant does the touching.
• United States v. Hayward, 359 F.3d 631 (3d Cir. 2004) and United States v. Gallardo, 970 F.3d 1042 (8th Cir. 2020): Recognize that sexual contact may occur through clothing and that the inherently sexual nature of “humping” conduct permits an inference of sexual intent. The panel uses these decisions to situate its intent analysis.
• United States v. Koch, 978 F.3d 719 (10th Cir. 2020): Sets the plain-error framework for supervised-release conditions, confirms the First Amendment protection of adult pornography, and articulates the need for defendant-specific, compelling reasons. Critically, Koch holds that under plain error an appellate court will not vacate if “the record reveals [a] basis” for the condition—i.e., no reasonable probability of a different outcome.
• United States v. Englehart, 22 F.4th 1197 (10th Cir. 2022): Requires on-the-record, defendant-specific findings to justify conditions infringing constitutional rights. The district court’s terse rationale here would likely fall short under Englehart if reviewed de novo—but plain-error posture controlled.
• United States v. Mike, 632 F.3d 686 (10th Cir. 2011): Notes cases approving adult-porn bans in child-porn prosecutions; cited to show a recognized—though not automatic—connection between adult porn and risk in sex-offense contexts.
• United States v. Rosas, No. 23-2085, 2024 WL 3813215 (10th Cir. Aug. 14, 2024) (unpublished): Upheld a similar ban where adult pornography was used to groom victims and where consumption at a young age supported risk mitigation. Guinn extends Rosas’s logic by allowing historical grooming of a different child victim using adult porn to supply the record basis.
• United States v. Garcia, 74 F.4th 1073, 1101 n.15 (10th Cir. 2023): Unpublished Tenth Circuit decisions may be persuasive though non-precedential—relevant to the panel’s reliance on Rosas.
• United States v. Chatwin, 60 F.4th 604 (10th Cir. 2023); United States v. Henry, 979 F.3d 1265 (10th Cir. 2020): Discuss “affecting substantial rights” under plain-error review and the absence of prejudice when the record supports the condition.
• United States v. Booker, 63 F.4th 1254 (10th Cir. 2023); United States v. Perez-Perez, 992 F.3d 970 (10th Cir. 2021); United States v. Trujillo, 960 F.3d 1196 (10th Cir. 2020): Supply the “reasonable probability” standard for prejudice and endorse bypassing step four when step three fails.

Legal Reasoning

Count One: Proving a “Sexual Act” with Child-Euphemism Testimony

Section 2241(c) criminalizes “sexual act[s]” with a child under 12 in Indian country by an Indian defendant. The only contested element was whether Guinn committed a “sexual act,” defined in § 2246(2) to include direct contact between the perpetrator’s penis, mouth, or finger and the child’s genitalia.

The trial record included K.L.’s testimony—expressed in childlike terms and euphemisms—that Guinn:

• placed his “balls” in her “no-no square” (the place she “pee[s] out of”),
• inserted his fingers into her “butterfly,” and
• put his face between her “no-no square” and licked it, after which it hurt to use the restroom.

The court held a rational jury could understand these descriptions to meet the statutory definition. Guinn’s attempt to discredit K.L. because she sometimes used the word “rape,” which she conceded she did not fully understand, failed for two reasons:

• Jury credibility is sacrosanct on appeal (Flechs). The jury could weigh the child’s partial misuse of a sophisticated term against her more concrete, childlike descriptions of anatomy and conduct, and still credit her account.
• The record included corroboration: both L.G. and the SANE nurse testified that K.L. related similar descriptions in their conversations—bolstering reliability when viewed holistically (Goldesberry).

The absence of physical injury in the SANE exam did not undermine sufficiency. Appellate sufficiency review asks whether any rational trier of fact could find the element beyond a reasonable doubt when viewing the evidence and inferences for the government (Burtrum). On this record, the panel affirmed.

Count Three: “Humping,” Clothing-Through Contact, and Inferring Sexual Intent

Section 2244(a)(3) criminalizes “sexual contact” with a child aged 12–15 (and at least four years younger than the defendant). “Sexual contact” under § 2246(3) is an intentional touching of the victim’s genitalia, anus, groin, breast, inner thigh, or buttocks, “either directly or through the clothing,” with intent to abuse, humiliate, harass, degrade, or arouse/gratify sexual desire.

L.G. testified that Guinn entered a room where she was watching a movie and “humped [her] backside,” pressing his “lower half” (the part used “for going to the bathroom”) against her “bum,” moving “back and forth.” She also recounted that on another occasion Guinn asked her to “have intercourse,” and that he made other sexualized comments.

The court rejected Guinn’s argument that the testimony was too vague to prove sexual intent or required testimony specifying contact by the penis:

• The statute focuses on where the victim was touched and permits clothing-through contact; it does not require a particular body part of the perpetrator (Norman T.; Hayward).
• “Humping” with a “back and forth” motion directed at a teenager’s buttocks is “so clearly sexual that a jury can infer the defendant’s intent” (Gallardo).
• The context—prior sexualized request (“have intercourse”) and comments—reinforced the inference of sexual intent.

The evidence satisfied sufficiency under either de novo or plain-error review; the panel did not decide which standard applied because both yielded affirmance (Simpkins).

Special Condition 1(4): Adult Pornography Ban under Plain-Error Review

Special Condition 1(4) bars Guinn from possessing or viewing “material depicting or describing sexually explicit conduct” as defined in § 2256(2). At sentencing, the district court justified the condition generally by (a) the nature of the offenses, (b) the asserted difficulty of distinguishing teenagers from adults in pornography, and (c) the claim that pornography often glorifies violent sexual behavior. Guinn did not object below; accordingly, review was for plain error (Koch).

Legal framework:

• Adult pornography involving consenting adults is protected by the First Amendment. A supervised release condition infringing that right requires on-the-record, defendant-specific findings showing a compelling interest, and must be reasonably related to statutory factors without imposing greater restraint than necessary (Koch; Englehart; 18 U.S.C. § 3583(d)).
• Under plain-error review, even if the district court’s explanation was erroneous and the error plain, reversal requires prejudice—a reasonable probability that the district court would not have imposed the condition had it performed the required analysis (Koch; Henry; Chatwin). If “the record reveals [a] basis” supporting the condition, there is no such probability (Koch).

Application:

• The government conceded the district court’s explanation “likely” failed to meet the Tenth Circuit’s defendant-specific, compelling-interest standard (first two plain-error prongs).
• The panel focused on prejudice and found the record provided a sufficient basis: Guinn’s younger sister testified that during their youth he sexually abused her and used adult pornography to groom her—at times directing her to mimic acts shown in the videos. This history links adult pornography to Guinn’s sexual offending and supports a forward-looking, risk-mitigation rationale.
• The panel cited Rosas (unpublished) as persuasive authority for upholding adult-porn bans where adult pornography was used to groom child victims, and noted that Guinn’s consumption of porn at a young age further supports the nexus (as Rosas recognized).
• Because the record revealed a sound basis for the restriction, Guinn failed to show a reasonable probability of a different outcome had the district court articulated proper, defendant-specific findings. The panel therefore affirmed without reaching the fourth plain-error prong (Booker; Perez-Perez; Trujillo).

Impact and Implications

1) Child-Euphemism Testimony as Sufficient Proof

Guinn reinforces that child victims’ non-technical descriptions—especially euphemisms for anatomy and conduct—can suffice to prove “sexual act” and “sexual contact” elements. It also underscores that lack of physical injury in a SANE exam is not dispositive in sufficiency review. For trial practitioners:

• Prosecutors can rely on child-appropriate terminology and should elicit clarifying questions linking euphemisms to anatomical references (as the government did), and corroborating statements from other witnesses.
• Defense challenges premised on “coaching” or inconsistent vocabulary face a steep appellate hill due to deference to juries on credibility.

2) Sexual Contact and Intent: “Humping” and Clothing-Through Touchings

The opinion aligns the Tenth Circuit with other circuits in recognizing that:

• Clothing-through contact with a victim’s protected areas satisfies § 2246(3).
• The inherently sexual nature of “humping” allows juries to infer sexual intent, especially when contextualized by sexual comments or proposals.
• The statute does not require proof that a particular body part (e.g., the penis) made the contact; the “gravamen is contact.”

3) Supervised Release Conditions Burdening First Amendment Rights

The most salient doctrinal refinement is in the supervised-release context. Guinn illustrates that, under plain-error review:

• Even where a district court fails to make the required defendant-specific findings for a pornography ban, the condition may be affirmed if the appellate record contains facts establishing a nexus between adult pornography and the defendant’s risk (e.g., prior grooming of a child victim using adult porn).
• Historical conduct involving different victims can supply the necessary link—i.e., the nexus need not be confined to the instant offense conduct.
• Practically, defendants who do not object at sentencing face a substantial barrier to relief on appeal; the “record reveals a basis” test from Koch will often foreclose plain-error relief where any plausible nexus appears.

Practice pointers:

• For prosecutors and probation: Build a robust, defendant-specific record articulating how adult pornography consumption relates to the defendant’s sexual offending or risk (e.g., grooming history, escalation patterns, treatment needs). This will insulate conditions on appeal.
• For defense counsel: Object contemporaneously and demand Englehart/Koch-compliant findings under § 3583(d), including narrower tailoring (e.g., limiting scope to visual pornography, excluding art/education, permitting sex-offender treatment exceptions, defining “sexually explicit conduct” with specificity).
• For district courts: Make explicit, individualized findings connecting the condition to § 3553(a) factors and the defendant’s history, and explain why lesser restrictions will not suffice. Guinn’s affirmance was driven by plain-error posture; the same record might warrant a remand for fuller findings if properly preserved.

Complex Concepts Simplified

• Sexual act vs. sexual contact:
  • Sexual act (§ 2246(2)): Generally involves direct contact between the perpetrator’s penis, mouth, or finger and the victim’s genitalia or other specified areas (including penetration, oral-genital contact).
  • Sexual contact (§ 2246(3)): Intentional touching of the victim’s genitalia, anus, groin, breast, inner thigh, or buttocks, directly or through clothing, with intent to abuse, humiliate, harass, degrade, or arouse/gratify sexual desire.
• SANE exam: A medical/forensic exam by a Sexual Assault Nurse Examiner. A negative or non-injury finding does not preclude conviction; juries may still credit witness testimony.
• Indian country jurisdiction (§§ 1151, 1153): Federal jurisdiction applies to certain crimes committed by Indians in Indian country. In Guinn, Indian status and Indian country were uncontested; only the “sexual act/contact” elements were litigated on appeal.
• Supervised release condition and First Amendment:
  • Adult pornography is generally protected speech. To restrict it as a condition of supervised release, courts must make defendant-specific findings showing a compelling need and tailor the condition to be no more restrictive than necessary (§ 3583(d); Koch; Englehart).
  • “Sexually explicit conduct” (§ 2256(2)) typically includes depictions of sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area.
• Plain-error review (four prongs): Error; that is plain; that affects substantial rights (prejudicial—reasonable probability of a different outcome absent the error); and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Under Koch, if the appellate record shows a basis for the condition, the defendant fails the third prong.
• Grooming: A process by which an offender prepares a child for sexual activity, sometimes by normalizing sexual behavior—here, using adult pornography to desensitize and instruct the victim.

Conclusion

United States v. Guinn offers two principal teachings—one evidentiary and one sentencing-related. On the evidence, the Tenth Circuit confirms that child victims’ age-appropriate, euphemistic testimony can satisfy the “sexual act” and “sexual contact” elements, even absent physical injury evidence, and that “humping” conduct directed at protected areas permits an inference of sexual intent. On sentencing, the panel underscores a powerful plain-error principle: where the record shows a concrete nexus between adult pornography and the defendant’s sexual offending (here, historical grooming of a child victim using adult pornography), a categorical adult-pornography ban can be affirmed despite inadequate on-the-record findings.

Although unpublished and non-binding, Guinn is a persuasive signal of how the Tenth Circuit will apply sufficiency standards in child-sex cases and will evaluate supervised-release conditions that implicate First Amendment rights under plain-error review. The message to litigants is clear: preserve objections and build individualized records. Where that is not done, Guinn shows that appellate courts will sustain conditions if the file “reveals a basis,” and will defer to juries that credit a child’s account expressed in the language a child naturally uses.