Lascivious Exhibition Instructions May Include Defendant’s Intent; Sentence Affirmed via Assumed-Error Harmlessness — United States v. Tatum (4th Cir. 2025)

Note: This is an unpublished Fourth Circuit decision and is not binding precedent in the circuit.

Introduction

In United States v. David Tatum, the Fourth Circuit affirmed a conviction and 40-year sentence imposed on a psychiatrist for producing, transporting, and possessing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252A(a)(1), and 2252A(a)(5)(B). The appeal presented two principal issues:

• Whether the district court erred by instructing jurors that they could consider the defendant’s motivation and intent in deciding whether a video depicted a “lascivious exhibition” under 18 U.S.C. § 2256(2)(A)(v).
• Whether the court committed reversible error in applying certain Sentencing Guidelines enhancements—two separate “pattern of activity” increases and a four-level enhancement for “sadistic or masochistic” material (here, anime)—and whether the ultimate 40-year sentence was substantively reasonable.

Writing for a unanimous panel, Judge Rushing rejected the instructional challenge as foreclosed by the circuit’s recent authority and upheld the sentence. On the Guidelines issues, the court found no clear error in the district court’s pattern-of-activity findings and, as to the “sadistic/masochistic” enhancement for anime, declined to resolve the legal question because any potential error was harmless under the circuit’s assumed-error harmlessness framework.

Summary of the Opinion

• Jury instruction on “lascivious exhibition”: The court held it is permissible for a jury to consider the defendant’s motivation and intent as one among several contextual factors in determining whether a depiction is a “lascivious exhibition” (reaffirming United States v. Sanders, 107 F.4th 234 (4th Cir. 2024)). The trial court’s instructions contained adequate safeguards by directing jurors to assess “overall content” and clarifying that no single factor is dispositive (consistent with United States v. Deritis, 137 F.4th 209 (4th Cir. 2025)).
• Pattern-of-activity enhancements: The district court properly applied two separate five-level increases under U.S.S.G. § 2G2.2(b)(5) and § 4B1.5(b), finding by a preponderance of the evidence that Tatum engaged in multiple instances of sexual exploitation, including “up-skirt” videos of a patient believed to be a minor and secret shower recordings of minor relatives. The Fourth Circuit found no clear error in those factual findings.
• “Sadistic/masochistic” enhancement for anime: The panel did not decide whether anime can qualify for the four-level enhancement under U.S.S.G. § 2G2.2(b)(4). Instead, it held any potential error was harmless because (1) the district court explicitly stated it would impose the same 40-year sentence regardless of the Guidelines calculation, and (2) the sentence would remain within the properly calculated range even without the enhancement.
• Substantive reasonableness: The 40-year sentence—below the calculated Guidelines range and within the range even under the defendant’s assumptions—was presumptively reasonable. The defendant’s policy arguments against the child pornography Guidelines did not overcome that presumption, especially given the district court’s independent 18 U.S.C. § 3553(a) assessment.

Analysis

I. The “Lascivious Exhibition” Instruction

Issue and Procedural Context

During deliberations on the production count, jurors asked whether they should consider the defendant’s “point of view and his motivation” for recording the video or “view the video in a vacuum.” The court responded that jurors could consider all evidence and circumstances, including selection and positioning of the subject, the extent of nudity, the overall context of production, and the defendant’s motivation and intent. Tatum objected that subjective intent should play no role in determining “lascivious exhibition.”

Precedents Cited and Their Influence

• United States v. Sanders, 107 F.4th 234 (4th Cir. 2024): The Fourth Circuit held that a jury may consider the defendant’s intent to elicit a sexual response as a non-dispositive factor in determining whether a depiction constitutes a “lascivious exhibition.” Sanders thus expressly permits the consideration of subjective intent among other circumstances.
• United States v. Deritis, 137 F.4th 209 (4th Cir. 2025): The court underscored that instructions must contain “adequate safeguards,” emphasizing that the jury’s focus must remain on the depiction’s overall content, with subjective intent not serving as a standalone determinant.
• United States v. McCauley, 983 F.3d 690 (4th Cir. 2020): Sets the standard for reviewing jury instructions de novo to ensure they accurately convey the controlling legal principles and do not mislead or prejudice the defendant.

Legal Reasoning

The panel held that its recent decision in Sanders “squarely foreclosed” Tatum’s argument. The instruction here mirrored the Sanders approach: it permitted consideration of subjective intent within a larger, evidence-driven inquiry into overall content and context. The court further observed that the trial judge explicitly told jurors no single factor was dispositive and directed them to use “all of the evidence” in assessing whether the depiction was lascivious. This tracked Deritis’s requirement for safeguards and, when read as a whole, accurately stated the law under McCauley.

Impact

While unpublished, Tatum reinforces a clear trajectory in Fourth Circuit practice after Sanders and Deritis:

• Jury instructions may include defendant’s intent as a permissible factor within a holistic analysis of the depiction’s content and context.
• Guardrails matter: Courts should instruct jurors to evaluate overall content, consider multiple circumstances, and avoid treating intent as dispositive.
• Practical takeaway: Trial courts addressing questions like “view in a vacuum?” may safely instruct that jurors can evaluate production context—including the producer’s motivation and intent—so long as the depiction’s content remains the focal point of the analysis.

II. Sentencing: Pattern-of-Activity Enhancements

Enhancements Applied

• U.S.S.G. § 2G2.2(b)(5) (2023): +5 levels for engaging in a “pattern of activity involving the sexual abuse or exploitation of a minor.”
• U.S.S.G. § 4B1.5(b): +5 levels for engaging in a “pattern of activity involving prohibited sexual conduct” (the “repeat and dangerous sex offender against minors” provision).

The district court found by a preponderance of the evidence that Tatum created multiple recordings indicating a pattern: (1) two “up-skirt” videos of a patient he believed was still a minor and (2) secret shower recordings of minor female relatives, including the video at issue in the production count.

Precedents Cited and Standards Applied

• United States v. Velasquez-Canales, 987 F.3d 367 (4th Cir. 2021): Guidelines calculations are reviewed for clear error (facts) and de novo (legal conclusions).
• United States v. Johnson, 734 F.3d 270 (4th Cir. 2013): Where evidence supports two permissible views, a district court’s factual choice between them is not clear error.

Legal Reasoning

Both enhancements define “pattern” as two or more separate instances. The Guidelines commentary identifies “child pornography” production or attempted production as qualifying “sexual abuse or exploitation” and “prohibited sexual conduct.” The panel concluded that sufficient evidence supported the district court’s view that Tatum believed the patient was underage when he made “up-skirt” videos, and that the additional shower recordings—though older and not introduced at trial—were adequately established by testimony. Even acknowledging conflicting evidence, the panel held that the district court did not clearly err under Johnson’s deferential standard.

Impact

• Concurrent application: Tatum illustrates that § 2G2.2(b)(5) and § 4B1.5(b) can be applied together when the evidentiary record supports each enhancement.
• Preponderance and uncharged conduct: The case underscores that pattern findings may rest on uncharged instances proven by a preponderance of the evidence and need not hinge on convictions.
• Appellate posture: Clear-error review remains a substantial barrier to overturning fact-driven pattern findings in child-exploitation cases.

III. The “Sadistic or Masochistic” Enhancement and Anime

The Disputed Enhancement

The district court applied a four-level increase under U.S.S.G. § 2G2.2(b)(4) because Tatum possessed thousands of anime images and videos depicting violent sexual abuse of young girls. Tatum conceded possession but argued that anime, as animation, cannot qualify for this enhancement.

The Court’s Approach: Assumed-Error Harmlessness

• United States v. McDonald, 850 F.3d 640 (4th Cir. 2017): The Fourth Circuit’s “assumed error harmlessness inquiry” asks:
  • (1) Would the district court have imposed the same sentence even if it had decided the Guidelines issue in the defendant’s favor?
  • (2) Would the sentence be substantively reasonable even under the Guidelines range that would apply if the defendant were correct?
• Application here:
  • Same-sentence prong: The district court expressly stated in the judgment and at sentencing that it would impose the same 40-year sentence regardless of the precise Guidelines range (“whatever the guidelines are… this Court’s sentence of 40 years is what it considers the appropriate 3553(a) sentence”).
  • Reasonableness prong: Even without the challenged enhancement, the 40-year sentence would still fall within the properly calculated advisory range and thus be presumptively reasonable.

Related Substantive-Reasonableness Principles

• Gall v. United States, 552 U.S. 38 (2007): Substantive reasonableness is reviewed for abuse of discretion.
• United States v. Louthian, 756 F.3d 295 (4th Cir. 2014): Within- or below-Guidelines sentences are presumptively reasonable on appeal.
• United States v. Perry, 92 F.4th 500, 518 (4th Cir. 2024) (quoting United States v. Susi, 674 F.3d 278, 290 (4th Cir. 2012)): The defendant bears the burden to rebut the presumption of reasonableness.

Outcome and Open Question

The panel declined to decide whether anime can satisfy § 2G2.2(b)(4), resolving the appeal instead on harmless-error grounds. The question whether animated depictions can trigger the “sadistic or masochistic” enhancement thus remains unresolved by published Fourth Circuit authority in the child-pornography context. Practitioners should note the court’s willingness to bypass novel guideline questions when the record establishes both prongs of harmlessness.

Policy Disagreement with the Guidelines

Tatum’s only substantive-reasonableness argument was that courts should reject the child-pornography Guidelines on policy grounds as “draconian.” The Fourth Circuit emphasized the district court’s statement that it independently selected 40 years under § 3553(a) regardless of the range. That independent assessment, coupled with the within-/below-range posture, left the sentence presumptively reasonable and unrebutted on this record.

Complex Concepts Simplified

• Lascivious exhibition: A statutory term in 18 U.S.C. § 2256(2)(A)(v) referring to images that focus on the genitals, anus, or pubic area in a sexually suggestive way. Juries can consider multiple factors—such as the camera’s focus, the subject’s pose, the amount of nudity, and the production context—including the producer’s motivation and intent—while evaluating the depiction’s overall content. No single factor controls.
• Pattern of activity (U.S.S.G. §§ 2G2.2(b)(5), 4B1.5(b)): Requires two or more separate instances of sexual abuse, exploitation, or prohibited sexual conduct involving a minor. It can be proven by a preponderance of the evidence and may include uncharged conduct.
• Sadistic/masochistic enhancement (U.S.S.G. § 2G2.2(b)(4)): Adds four levels if the offense involved material portraying sadistic or masochistic conduct or depictions of violence, or sexual abuse of an infant/toddler. Whether animated material (anime) can qualify remained undecided in this case.
• Assumed-error harmlessness: An appellate tool allowing courts to assume (without deciding) that a Guidelines error occurred and affirm anyway if the district court stated it would impose the same sentence and the sentence would be reasonable even under the defendant’s preferred range.
• Standards of review:
  • De novo for legal accuracy of jury instructions.
  • Clear error for factual findings underlying Guidelines enhancements; deference is given if the record supports two permissible views.
  • Abuse of discretion for the substantive reasonableness of the sentence under § 3553(a).
• Presumption of reasonableness: A sentence within or below the advisory Guidelines range is presumed reasonable on appeal; the defendant must rebut this presumption with compelling arguments under § 3553(a).

Broader Implications

• Jury instructions post-Sanders: Trial courts in the Fourth Circuit can confidently include the defendant’s motivation and intent as a non-dispositive factor in “lascivious exhibition” instructions, provided jurors are directed to evaluate overall content and consider all the circumstances.
• Fact-finding for pattern enhancements: The decision underscores the importance of developing a robust factual record; on appeal, clear error review will typically sustain pattern findings if supported by credible evidence, even where counter-evidence exists.
• Strategic use of harmlessness: The panel’s reliance on the assumed-error harmlessness framework illustrates a pragmatic approach to unsettled guideline questions. Where sentencing judges make clear alternative rulings and explain § 3553(a) reasons independent of the precise range, appellate courts may affirm without resolving novel issues.
• Open legal question—animated depictions: Whether animated or purely virtual depictions can trigger § 2G2.2(b)(4) remains open in this circuit. Litigants should preserve the issue, but also address harmlessness and reasonableness given the court’s approach here.
• Policy challenges to the Guidelines: Although district courts may vary based on policy disagreements with the Guidelines, they are not required to do so. A well-explained, independent § 3553(a) analysis will often insulate the sentence from appellate reversal.

Conclusion

United States v. Tatum reinforces two important themes in Fourth Circuit criminal practice. First, consistent with Sanders and Deritis, juries may consider a defendant’s motivation and intent as part of a holistic assessment of whether a depiction is a “lascivious exhibition,” so long as the instruction includes safeguards emphasizing overall content and the non-dispositive nature of any single factor. Second, on sentencing, fact-intensive pattern-of-activity findings will be upheld absent clear error, and unresolved guideline questions—such as whether anime can support a “sadistic/masochistic” enhancement—may be bypassed on appeal under the assumed-error harmlessness doctrine when the district court makes clear its sentence would be the same and remains reasonable either way.

Although unpublished, Tatum offers practical guidance for trial judges crafting jury instructions in sexual exploitation cases and for sentencing courts seeking to insulate their judgments on appeal: state alternative rulings, articulate independent § 3553(a) justifications, and ensure the record supports key factual determinations. The decision thereby contributes to a coherent application of existing Fourth Circuit precedent while leaving open, for a published case, the question of animated depictions under § 2G2.2(b)(4).