No Per Se Sadism Rule for Foreign‑Object Penetration of Pubescent Minors:
Commentary on United States v. Vowels‑Harper, 6th Cir. (2025)

I. Introduction

In United States v. Jonathon Chase Vowels‑Harper, the United States Court of Appeals for the Sixth Circuit (Judge Bloomekatz writing for the court, joined by Judge Gilman, with Judge Clay dissenting) vacated a 226‑month sentence and remanded for resentencing after finding that the district court misapplied the “sadistic or masochistic conduct” enhancement under U.S.S.G. § 2G2.1(b)(4)(A).

The case arises from a young adult defendant’s online sexual exploitation of a 12‑year‑old girl (“Jane Doe”), including a video in which Doe inserts a marker into her vagina at his request. At sentencing, the district court treated that video as “sadistic” per se, drawing on an unpublished Sixth Circuit decision. The panel majority holds that this was legal error: when the victim is pubescent, the court may not apply a categorical, per se rule simply because the material shows penetration with a foreign object. Instead, the court must identify objective, on‑screen indicators of physical pain, emotional suffering, or humiliation.

The decision is recommended for publication and thus establishes binding circuit precedent. Its central contribution is to clarify and harmonize Sixth Circuit law on:

How the “sadistic or masochistic conduct or other depictions of violence” enhancement applies when the victim is pubescent, and
Whether penetration with foreign objects (like a marker, hairbrush, or pencil) is automatically “sadistic.”

The majority rejects a per se sadism rule for foreign‑object penetration of pubescent minors and instead mandates a fact‑intensive, objective, “four corners of the image” analysis. The dissent, by contrast, criticizes that framework as both under‑protective and unrealistic, and would move toward a presumption that any sexual exploitation of a minor is inherently sadistic.

II. Factual and Procedural Background

A. The Underlying Conduct

Jonathon Chase Vowels‑Harper, a 20‑year‑old autistic man, met Jane Doe through social media. Doe was 12, but told him she was 13. Their conversations progressed from casual texting to explicitly sexual exchanges. Among other things:

He asked about her breasts and pubic hair, confirming she appeared physically developed.
He inquired about when she began masturbating; she said she had been doing so for a couple of years.
He solicited sexually explicit images and videos of her, including nude and masturbatory content.

Of central importance is one 35‑second video. At his request that she smile, show her breasts, and “play” with and insert a “remote” or other “toy” into her vagina, Doe:

Appears fully nude,
Stands and repeatedly inserts what looks like a marker into her vagina.

The parties agree that Doe was pubescent at the time. The government concedes that she has fully developed breasts and pubic hair and acknowledges that “there is no point in the video in which the expression on [Doe]’s face is particularly pained.” The defense further asserts (and the government does not squarely dispute) that she appears “almost adult‑appearing,” moves her hand “vigorously, not tentatively,” and does not flinch or recoil.

B. Investigation, Charges, and Guilty Plea

After about five months of online contact, Doe reported Vowels‑Harper to law enforcement. Officers then:

Posed online as Doe,
Led him to believe Doe wanted to meet him for sex at a hotel, and
Arrested him when he arrived.

A federal grand jury charged him with:

Receiving child pornography, 18 U.S.C. § 2252A(a)(2),
Enticing a minor to engage in illegal sexual activity, 18 U.S.C. § 2422(b), and
Attempting to transfer obscene material to a minor, 18 U.S.C. § 1470.

He pleaded guilty to all charges.

C. Sentencing: Guidelines Calculation

The Probation Office prepared a Presentence Investigation Report (PSR) and grouped the three counts under the Guidelines. Because he induced Doe to create the sexually explicit material, the child pornography count was treated as an offense involving production, not mere receipt, via the cross‑reference in § 2G2.2(c)(1). That substantially increased his Guidelines range.

Under U.S.S.G. § 2G2.1 (production), the PSR calculated:

Base offense level: 32, § 2G2.1(a)
+2: Victim was 12 years old, § 2G2.1(b)(1)(B)
+2: Involved “sexual contact” (self‑masturbation by a minor), § 2G2.1(b)(2)(A)
+2: Use of a computer, § 2G2.1(b)(6)
+4: Material depicted “sadistic or masochistic conduct or other depictions of violence,” § 2G2.1(b)(4)(A) — based on the marker penetration video
−3: Acceptance of responsibility, § 3E1.1

This yielded a total offense level of 39. Combined with a criminal history category I, the advisory Guidelines range was 262–327 months.

The sadism enhancement alone added four offense levels. Without it, the total offense level would drop to 35, with an advisory range of 168–210 months — roughly 8–10 years lower.

D. District Court’s Rulings

1. The Sadism Enhancement Dispute

Vowels‑Harper objected to the § 2G2.1(b)(4)(A) enhancement, arguing that:

The per se rule that sexual penetration of a prepubescent child is inherently sadistic does not apply because Doe was pubescent, and
The video does not depict “violence or the infliction of pain” under Sixth Circuit precedents.

The district court adjourned sentencing to review the video in camera. In a written order, it overruled the objection. Relying heavily on language from the Sixth Circuit’s unpublished decision in United States v. Preston, it concluded that:

As a matter of “common sense,” images “of a middle‑ and high‑school aged girl inserting [foreign] objects into her private parts are sadistic.”

The court emphasized two facts:

Doe was 12 years old, and
The video showed her inserting an “everyday object” (a marker) into her vagina.

On that basis, it found the enhancement applicable, without separately analyzing Doe’s pubertal status or any on‑screen manifestations of pain or humiliation.

2. Autism and the Requested Downward Variance

Independently, Vowels‑Harper sought a substantial downward variance, arguing that his autism produced significant developmental immaturity and reduced culpability. The district court:

Granted a 36‑month downward variance based on his young age and immaturity, but
Rejected a greater variance based on autism, finding insufficient evidence that he failed to appreciate the wrongfulness of his conduct.

The court ultimately imposed:

226 months’ imprisonment (just below the enhanced Guidelines range), and
25 years of supervised release.

E. The Appeal

On appeal, Vowels‑Harper argued that the sentence was:

Procedurally unreasonable (miscalculation of Guidelines range, misapplication of sadism enhancement; flawed consideration of autism), and
Substantively unreasonable (excessive in light of his personal characteristics and the nature of the conduct).

The panel focuses solely on procedural reasonableness, holding that the district court applied the wrong legal standard in determining that the video was “sadistic” under § 2G2.1(b)(4)(A). Having found procedural error, the court does not reach substantive reasonableness.

III. Summary of the Sixth Circuit’s Opinion

A. Standard of Review and Framing

The court reviews procedural reasonableness under the abuse‑of‑discretion standard, breaking it down as:

Legal questions: de novo,
Factual findings: clear error.

A procedurally reasonable sentence requires, among other things, a correctly calculated Guidelines range. Misapplication of the enhancement is a legal error.

The majority identifies three questions:

What is the correct legal standard for applying the sadism enhancement in this case?
Did the district court apply that standard?
If it did, did the video satisfy the standard?

The court answers the first two and leaves the third for the district court on remand.

B. The Clarified Legal Standard

Drawing on prior Sixth Circuit and out‑of‑circuit cases, the majority distills and clarifies the governing principles:

Definition of “sadistic”:
“Sadistic” means the infliction of physical or mental pain
Two‑step test (from Corp):
For § 2G2.1(b)(4)(A) to apply, the court must find, by a preponderance:
- The material depicts sexual activity involving a minor; and
- An objective viewer would perceive that the material portrays physical pain, emotional suffering, or humiliation of the minor.
“Four corners” limitation:
The analysis must be confined to what is visible within the four corners of the image or video. Courts may not rely on undepicted context, such as threats or subjective testimony, to satisfy this specific enhancement (though such evidence may matter for other enhancements or variances).
Prepubescent minors: per se rule continues.
For prepubescentinherently likely to cause pain.
Pubescent minors: no per se rule.
For pubescentcannot be based solely on the fact of sexual penetration (by penis or foreign object). It requires additional, visible indicators of pain or humiliation, such as:
- Bondage or similar restraints,
- Use of large or sharp objects,
- Urination, humiliating positions, or degrading costumes,
- Facial expressions showing distress, or
- Body language conveying discomfort or suffering.
Foreign objects: treated like male anatomy.
Penetration with a foreign object is subject to the same framework as penile penetration. There is no categorical rule that foreign‑object penetration by or of a pubescent minor is automatically sadistic.

C. Error in the District Court’s Approach

The district court, the majority explains, correctly quoted the general standard from Corp, but then effectively applied a per se rule based on Preston:

It focused only on Doe’s age (12) and the use of a household object (marker),
It did not analyze whether she was pubescent (even though the record indicated she was), and
It did not identify any visible signs of pain or humiliation in the video.

That approach conflicts with binding published precedents, particularly United States v. Corp and United States v. Cover, which require a more nuanced, fact‑specific analysis for pubescent minors.

D. Harmless Error and Remedy

Even if the district court erred, the sentence could stand if the error was harmless. However, applying the Sixth Circuit’s demanding harmless‑error standard (the government must show “with certainty” that the same sentence would have been imposed), the majority finds:

The sadism enhancement increased the advisory range by 8–10 years.
The government provided no evidence beyond the two facts relied on below (Doe’s age and the use of a household object).
The government conceded that Doe displays no visible pain in the video.

Accordingly, the panel vacates the sentence and remands for resentencing under the clarified standard. It does not decide whether the video actually qualifies as sadistic; that determination is left to the district court in the first instance.

The panel also notes, but does not resolve, a separate procedural challenge regarding the district court’s handling of autism as a mitigating factor, leaving that issue open on remand.

IV. Precedents and Their Influence on the Decision

A. The Guidelines Provision: § 2G2.1(b)(4)(A)

Section 2G2.1(b)(4)(A) provides a four‑level increase “[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The Guidelines do not define these terms, so courts have had to do so through case law.

The Sixth Circuit’s jurisprudence has evolved in two phases:

Early focus on prepubescent
Refinement to deal with pubescent

B. Early Cases: Per Se Rule for Prepubescent Penetration

In earlier (often unpublished) cases, such as Fuller, Quinn, and Groenendal, the court:

Defined “sadistic” in its ordinary sense as the infliction of pain for sexual gratification, and
Joined multiple circuits in holding that images of sexual penetration of a prepubescent child are inherently sadistic.

Reasoning: given the small size and developmental stage of prepubescent children, any penetration — whether by a penis or foreign object — is likely to cause pain. This per se rule dramatically simplifies application of the enhancement when the victim is clearly prepubescent.

C. United States v. Corp: Comprehensive Framework

Corp (2012) is foundational. There, the defendant photographed sexual acts with a 15‑year‑old, including:

Penetration of the minor’s mouth, and
Images showing semen on her face.

For the first time, the Sixth Circuit confronted the enhancement where the victim was pubescent. Corp did three key things:

Defined the terms:
- Sadism: “infliction of physical or mental pain” for sexual gratification.
- Masochism: sexual pleasure in being subjected to pain or humiliation.
- “Other depictions of violence”: a narrow residual category, covering depictions akin to sadism or masochism.
Created a two‑step, objective test:
The material must depict sexual conduct with a minor, and an objective viewer must see in the material itself an infliction of pain or humiliation.
Announced a “four corners” rule:
The court may not rely on undepicted context (such as testimony about threats or coercion) to apply the sadism enhancement; it must assess only what the photo or video portrays.

Corp reaffirmed the per se rule for prepubescent penetration but clarified that with pubescent

D. United States v. Cover: “Visibly Pained or Prepubescent”

Cover (2015) applied Corp to a video of an 11‑ to 13‑year‑old performing oral sex on an adult man. The district court had treated oral sex with a minor as per se sadistic. The Sixth Circuit rejected that approach and articulated the government’s options:

Show that the material depicts the sexual penetration of a prepubescent child (per se sadistic), or
Show that the minor is “visibly pained” — i.e., the material depicts visible physical or mental suffering.

Crucially, the court emphasized:

There is no presumption that all 11‑ to 13‑year‑olds are prepubescent.
Courts cannot rely on “broad generalizations” that all penetration of minors is inherently humiliating or painful for this enhancement.
If the material does not portray sadism, sentencing cannot be enhanced on that basis, even though all child pornography is gravely harmful and merits severe punishment.

Cover thus cemented the idea that, for pubescent minors, the enhancement is generally appropriate only when the minor is:

Prepubescent, or
Visibly suffering (physically or emotionally) in the depiction.

E. Preston and Foreign Objects

United States v. Preston (2024) — an unpublished decision — involved a 13‑year‑old victim coerced into recording herself:

Penetrating her vagina with a hairbrush, and
Penetrating her anus with a pencil.

The panel there affirmed application of the sadism enhancement, using broad language that “inserting foreign objects into a child’s body is objectively painful and humiliating.” The Preston panel also noted that 13‑year‑olds have not completed puberty.

In Vowels‑Harper, the majority reads Preston narrowly:

It recognizes Preston’s statement that foreign‑object penetration “raises similar concerns” to male anatomy.
But it refuses to treat Preston as establishing a new per se rule, especially where the victim is pubescent and where earlier published decisions (Corp, Cover) demand a case‑by‑case assessment.
The majority notes that Preston did not address pubescence or detailed on‑screen indicators of distress, and the defendant there effectively conceded that the acts caused some discomfort.

Because Preston is unpublished, it cannot override the published holdings of Corp and Cover. The majority explicitly invokes circuit practice of harmonizing precedents, and declines to read Preston in a way that would contradict those earlier, binding cases.

F. Out‑of‑Circuit Authorities and Circuit Split

The opinion references a modest but important inter‑circuit disagreement on foreign‑object penetration:

Fifth and Seventh Circuits (McGavitt, Johnson): reject a categorical per se rule for foreign‑object penetration; require contextual, fact‑specific analysis.
Eighth Circuit (Starr): adopts a more categorical approach that foreign‑object penetration of minors is per se sadistic.

The Sixth Circuit expressly aligns itself with the non‑categorical approach: foreign‑object penetration of a prepubescent child remains per se sadistic; foreign‑object penetration of a pubescent minor requires evidence of visible pain or humiliation within the material.

V. The Court’s Legal Reasoning in Depth

A. Textual and Conceptual Grounding of the Enhancement

The majority begins with the text of § 2G2.1(b)(4)(A) and existing Sixth Circuit definitions:

Sadism: inflicting physical or mental pain for sexual pleasure.
Masochism: sexual pleasure in being subjected to pain or humiliation.
Other depictions of violence: a narrow catch‑all, covering acts akin to sadism/masochism in severity.

From this, it reasons that the enhancement is intended to target conduct that is especially cruel or degrading beyond what is already encompassed in the base offense and other enhancements (such as those for age, sexual contact, and use of a computer). It cannot be interpreted to cover every instance of child sexual abuse, or it would effectively swallow the structure of § 2G2.1.

B. Structuring the Analysis by Victim’s Developmental Status

The majority draws a clean doctrinal line:

Prepubescent minors:
Due to their physical immaturity, any sexual penetration is inherently painful. Thus:
- Any depiction of sexual penetration — by penis or foreign object — is per se sadistic.
- No further evidence of pain or humiliation is required.
Pubescent minors:
The situation is more complex. Because:
- There is substantial variation in development among teenagers, even at the same age, and
- The base offense level already captures the fact of sexual activity with a minor,
the court holds:
- Penetration alone (even of a minor) is not automatically sadistic.
- Instead, the court must find additional on‑screen, objective indicia of physical pain or emotional humiliation.

This framework is expressly designed to avoid “broad generalizations,” especially the notion that all sexual conduct with pubescent minors is inherently humiliating for purposes of this enhancement.

C. Applying the Framework to Foreign‑Object Penetration

The government urged the court to adopt a categorical rule that a minor’s self‑penetration with a non‑sexual “household” object is always sadistic (at least where the object is not designed for sexual use). The majority declines to do so, for several reasons:

Consistency with existing precedent:
Corp and Cover speak of “sexual penetration” broadly and do not distinguish between penile and foreign‑object penetration. Both reject per se rules for pubescent minors.
Physical variability:
The pain associated with penetration depends not only on age but on:
- Degree of pubertal development,
- Size and sharpness of the object,
- Who is doing the penetration (adult vs. minor, coercive vs. self‑directed), and
- Other on‑screen circumstances (restraints, force, degrading props, etc.).
Doctrinal anomaly:
A per se rule for foreign objects would create an odd situation:
- If a pubescent minor is penetrated by an adult man’s penis, the conduct is not automatically sadistic under Cover.
- Yet, under the government’s proposal, if that same minor penetrates herself with a (smaller) marker, the conduct would be per se sadistic.
The majority rejects such asymmetric treatment as doctrinally unsound.
Objective comparison of harms:
The government argued that use of a non‑sexualized household object is uniquely humiliating. The court responds that one cannot simply assume, as an objective matter, that masturbating with a marker is categorically more humiliating than being the victim of a completed sex crime (e.g., sexual intercourse with an adult).

Instead, foreign‑object penetration is treated like penile penetration: per se sadistic when the victim is prepubescent; otherwise subject to a fact‑specific, objective inquiry for pubescent minors.

D. The “Four Corners” Constraint and Its Consequences

The majority reaffirms Corp’s rule that the sadism enhancement must be based solely on what the image or video portrays:

No reliance on testimony about the victim’s subjective experience,
No reliance on coercive threats or psychological manipulation that are not visible in the material, and
No inference drawn from harms that occur before or after the recorded event.

The court expressly acknowledges that this approach may under‑capture the full harm that minors suffer, particularly the psychological and emotional trauma that is not evident on their faces in the recording. But it notes that this limitation flows from the text of the enhancement and the structure of the Guidelines:

The enhancement applies to material that portrays sadistic conduct.
Other enhancements (and statutory considerations) already account for the inherent harms of child sexual abuse more broadly, including the victim’s age and the sexual acts involved.

The majority stresses that an enhancement cannot apply to all conduct already covered by the base offense; otherwise, it would amount to double counting and distort the Guidelines’ graduated scheme.

E. Finding Error and Rejecting Harmlessness

Applying the clarified standard to the district court’s reasoning, the majority finds:

The district court in effect adopted a per se rule for foreign‑object penetration of a 12‑year‑old, drawn from Preston.
It did not examine Doe’s pubescent status, although the record clearly indicated she was pubescent.
It did not identify any visible markers of pain, suffering, or humiliation in the video.

These omissions constitute legal error under Corp and Cover.

Because the sadism enhancement added 8–10 years to the advisory range, and because the government did not offer alternative, specific facts supporting the enhancement beyond those already rejected, the error was not harmless. The government could not show, “with certainty,” that the district court would have imposed the same sentence absent the error.

Accordingly, resentencing is required.

VI. The Dissent’s Vision: A Presumption of Sadism for Sexual Exploitation of Minors

A. Critique of the Majority’s Framework

Judge Clay’s dissent is a robust challenge to the majority’s doctrinal and practical premises. He raises three main objections.

Unworkable prepubescent distinction:
The majority’s reliance on whether the victim is “prepubescent” is, in his view, both:
- Ill‑defined — the court offers no medical or legal definition of prepubescence, and
- Ill‑applied — judges and lawyers lack the necessary expertise to determine pubertal status by viewing images or videos.
He notes that Doe was 12 (right at a key Guideline threshold) and suggests she may actually have been prepubescent, but the record is too limited to decide, and the parties’ concessions are not dispositive.
Overreliance on “visible distress” in the image:
The dissent argues that:
- Focusing on facial expressions and body language within the “four corners” of the material is speculative and unreliable.
- Victims often mask their pain to appease abusers or out of fear, or exhibit distress only after the recording ends.
- It is unrealistic to require minors to “signal” their suffering on camera in order for the enhancement to apply.
He underscores that the majority’s framework ignores the likely reality that a minor cannot meaningfully consent to sexual acts with adults, so such acts are inherently abusive and damaging, whether or not the victim looks upset in the footage.
Too narrow focus on the image rather than the defendant’s conduct and surrounding circumstances:
The dissent notes that the majority’s approach:
- Excludes the broader course of conduct (grooming, manipulation, threats, victim’s vulnerabilities), and
- Disregards evidence about the victim’s experiences before and after the recorded conduct.
He advocates a broader, totality‑of‑the‑circumstances inquiry that looks at the defendant’s conduct as a whole, not simply the on‑screen depiction of the victim’s reaction.

B. Proposed Alternative: Presumption of Sadism

Judge Clay would adopt an almost opposite presumption: that material depicting sexual misconduct with a minor is inherently sadistic, because:

A minor cannot give informed, legal consent to sexual acts with adults.
Such misconduct is intrinsically likely to cause physical or mental pain, emotional suffering, or humiliation.

Under his approach:

The court should presume material is sadistic whenever it depicts sexual misconduct involving a minor.
The burden would shift to the defendant to rebut this presumption by showing, under the totality of circumstances, that the case is different.
The district court would have wide discretion to consider all relevant evidence, not just what appears on the screen, in a fact‑intensive inquiry already contemplated by Corp.

He analogizes to the existing presumption that sexual penetration of prepubescent children is inherently sadistic, arguing that all minors are likely to experience at least mental or emotional pain from sexual abuse, even if their physical development and pain thresholds vary.

C. Application to Vowels‑Harper and Autism

Judge Clay sees little value in remand. In his view:

The district court has already considered the video carefully and reasonably concluded it was sadistic, in line with Preston.
Under his broader standard, or even a more flexible reading of current law, penetration of the 12‑year‑old Doe with a marker at an adult’s request is readily sadistic.
There is no evidence that autism caused Vowels‑Harper’s criminal conduct, so the district court correctly rejected a larger autism‑based variance.

He regards remand as largely “futile,” implying that the district court would almost certainly reach the same conclusion under any realistic standard.

D. Doctrinal and Policy Stakes

The dissent’s position would:

Greatly expand the reach of the sadism enhancement, making it applicable in a high percentage of child sexual exploitation cases.
Shift the focus from the victim’s on‑screen manifestation of distress to the inherent nature of adult–minor sexual misconduct.
Potentially blur the line between the base offense and enhanced sadistic conduct, making the enhancement nearly automatic.

The majority’s decision can thus be read as a deliberate effort to resist such expansion and preserve a meaningful distinction between the base offense and the sadism enhancement.

VII. Complex Concepts Simplified

A. Key Sentencing Guideline Concepts

Base Offense Level:
A starting numerical value assigned to each federal crime under the Guidelines; higher numbers correspond to longer recommended prison terms.
Enhancement:
An increase (in offense levels) based on specific aggravating factors, such as the victim’s age, use of a computer, or especially cruel conduct (like sadism).
Cross‑Reference:
A rule that tells courts to apply a different Guideline section when certain conditions are present. Here, the receipt Guideline (§ 2G2.2) cross‑referred to the production Guideline (§ 2G2.1) because the defendant caused the creation of child pornography.
Variance:
A sentence above or below the advisory range, based on the statutory sentencing factors (18 U.S.C. § 3553(a)), including the defendant’s history and characteristics, such as autism.

B. “Sadistic or Masochistic Conduct or Other Depictions of Violence”

Sadistic conduct: Conduct where the perpetrator finds sexual pleasure in inflicting physical or emotional pain on the victim.
Masochistic conduct: Conduct where the person being harmed takes sexual pleasure in their own pain or humiliation.
Other depictions of violence: Extreme acts of violence or cruelty not strictly fitting sadism or masochism, but similarly severe.

C. “Per Se” Rules vs. Case‑By‑Case Analysis

Per se rule:
A rule that says a certain type of conduct always meets the standard, without further factual analysis. Example: any penetration of a prepubescent
Case‑by‑case / fact‑specific approach:
Courts must examine all relevant facts and circumstances in each case instead of applying a one‑size‑fits‑all rule. For pubescent minors, the majority requires this approach.

D. “Prepubescent” vs. “Pubescent”

Prepubescent: A child who has not yet entered puberty; physically immature.
Pubescent: A minor who has begun or passed through puberty; may show developed breasts, pubic hair, and other signs of sexual maturity.

This distinction matters because of how likely penetration is to cause physical pain and because the Guidelines already separately enhance punishment for younger victims.

E. “Four Corners of the Image”

This phrase means that, for this enhancement, the court looks only at what is visibly depicted in the photo or video — facial expressions, body language, objects, positions, etc. It must not rely on evidence about what happened off‑camera or on the victim’s later testimony about their feelings, at least for purposes of this specific enhancement.

F. Procedural vs. Substantive Reasonableness

Procedural reasonableness:
Whether the sentencing court followed the correct legal process — including correctly calculating the Guidelines range, considering the right factors, and adequately explaining the sentence.
Substantive reasonableness:
Whether the length of the sentence is fair and justified in light of the facts and statutory sentencing goals.

Here, the Sixth Circuit finds a procedural error (misapplication of the enhancement) and does not reach substantive reasonableness.

G. Harmless Error and “With Certainty” Standard

Even if a district court makes a mistake, the sentence can still be affirmed if the error is harmless — that is, if it clearly made no difference to the outcome. In this circuit, the government must show “with certainty” that the district court would have imposed the same sentence had it used the correct Guidelines range.

VIII. Impact and Future Implications

A. Narrowing the Sadism Enhancement for Pubescent Minors

Vowels‑Harper significantly constrains how often § 2G2.1(b)(4)(A) can be applied in cases involving pubescent

They must do more than show that the minor was penetrated (by penis or foreign object).
They must identify and explain visible indicators of physical pain or humiliation directly in the images or videos.
They cannot rely on general assumptions that all sexual penetration of a minor is inherently humiliating or painful for purposes of this particular enhancement.

Defendants, correspondingly, have a clearer path to contesting the enhancement when:

The victim is clearly pubescent, and
The material does not visibly show distress, coercion, bondage, or other objectively degrading features.

B. Practical Effects on Sentencing Practice

Going forward, district courts in the Sixth Circuit will likely:

Conduct more detailed, on‑the‑record analyses of the images or videos in question.
Describe specific features (e.g., facial expressions, body movements, props, positions) that support or undermine a finding of sadism.
Distinguish carefully between:
- Base offense conduct (e.g., sexual activity with a minor, already punished severely), and
- Additional features of exceptional cruelty or humiliation warranting the enhancement.

This may lead to:

More granular and, inevitably, more disturbing descriptions of child sexual abuse at sentencing, as judges articulate the basis (or lack thereof) for the enhancement, and
More frequent appellate review when district courts either:
- Apply the enhancement without specifying objective on‑screen indicators, or
- Refuse the enhancement despite arguably visible markers of distress.

C. Strategic Considerations for Litigants

For the government:

Ensure that PSRs and sentencing memoranda detail the victim’s apparent expressions, posture, and surroundings in the footage.
Where appropriate, introduce expert testimony (consistent with the “four corners” rule) about what certain physical reactions may objectively indicate, though care must be taken not to rely on off‑screen context.
When relying on foreign‑object penetration, emphasize factors such as:
- Object size and sharpness,
- Obvious physical strain or discomfort,
- Inherently degrading scenarios (e.g., urination, public display, dog collars).

For the defense:

Highlight pubescent status and the absence of visible distress or degrading elements.
Distinguish the case from prepubescent per se sadism precedents.
Emphasize that the base offense and other enhancements already fully capture the victim’s age and the sexual acts, making the sadism enhancement duplicative if applied without additional on‑screen factors.

D. Doctrinal Harmonization and Circuit Landscape

By explicitly rejecting a per se rule for foreign‑object penetration of pubescent minors, the Sixth Circuit:

Brings its law into line with the Fifth and Seventh Circuits’ more nuanced approaches,
Departs from the Eighth Circuit’s broader per se rule, and
Solidifies an intra‑circuit framework that harmonizes Corp, Cover, and Preston.

This clarification may influence other circuits grappling with similar fact patterns, and contributes to a developing division over how expansively to read the sadism enhancement in cases involving older minors and foreign objects.

E. Autism and Individualized Sentencing

Although the panel does not resolve the autism‑related procedural challenge, its willingness to flag the issue suggests that, on remand:

The district court may need to more precisely articulate whether and how autism (or other neurodevelopmental conditions) affects culpability and appropriate sentencing.
Future litigants may more carefully develop the record on the nexus between mental health conditions and criminal behavior when asking for variances.

Judge Clay’s dissent, by contrast, underscores skepticism about attributing such sexual misconduct to autism in the absence of clear causal evidence.

F. Victim Protection vs. Doctrinal Precision

At a policy level, the decision exposes a tension:

The majority’s constrained, text‑driven approach may leave some serious harms uncompensated by the sadism enhancement because the victim’s suffering is not visible in the material.
The dissent’s presumption‑of‑sadism approach would better reflect the pervasive physical and psychological trauma associated with child sexual abuse, but at the cost of collapsing the distinction between base conduct and sadistic enhancements, and conflicting with the structure of the Guidelines as interpreted to date.

Vowels‑Harper ultimately comes down on the side of doctrinal precision: the enhancement is reserved for depictions that show, on their face, a level of pain or humiliation beyond the already grave wrong of sexual exploitation of a minor.

IX. Conclusion

United States v. Vowels‑Harper is a significant sentencing decision in the Sixth Circuit’s child‑exploitation jurisprudence. It:

Reaffirms that sexual penetration of prepubescent children is per se sadistic for Guideline purposes,
Clarifies that for pubescent minors, the sadism enhancement:
- Does not apply per se simply because there is penetration (even with foreign objects), and
- Requires visible, on‑screen evidence of physical pain, emotional suffering, or humiliation, beyond ordinary sexual exploitation,
Rejects a categorical rule that foreign‑object penetration by or of pubescent minors is always sadistic,
Cabins the influence of an unpublished decision (Preston) to avoid conflict with binding predecessors (Corp and Cover), and
Insists on accurate Guidelines calculations as a matter of procedural reasonableness, remanding when error could have increased the defendant’s exposure by nearly a decade.

The case also illuminates a deep normative divide between the majority and the dissent: whether the law should treat virtually all sexual exploitation of minors as inherently sadistic for sentencing enhancement purposes, or reserve that label for a subset of cases where the cruelty is apparent on the face of the material. In answering that question, the majority adheres closely to the text and structure of the Guidelines and to prior circuit precedent, while the dissent emphasizes the lived reality of victimization and the limits of what a still image or brief video can convey.

As a published decision, Vowels‑Harper will guide district courts, prosecutors, and defense counsel throughout the Sixth Circuit in the sensitive and consequential task of evaluating whether particular child‑exploitation materials cross the line from grievous illegality to sadistic

No Per Se Sadism Rule for Foreign‑Object Penetration of Pubescent Minors: Commentary on United States v. Vowels‑Harper, 6th Cir. (2025)