Reserved-Rights Plea Agreements Permit Government Advocacy for Additional Enhancements; Sadism Enhancement Applies to Morphed Images; Obstruction Adjustment Reaches Overlapping Investigations

Note: This Second Circuit disposition is an amended summary order and, by rule, does not have precedential effect. It may be cited consistent with Fed. R. App. P. 32.1 and Local Rule 32.1.1 as persuasive authority.

Introduction

This commentary examines the Second Circuit’s amended summary order in United States v. Hotaling, Nos. 24-434 (L), 24-436 (CON) (2d Cir. Oct. 15, 2025), affirming a sentence imposed by the Northern District of New York (Suddaby, J.) following a guilty plea to possession of child pornography and the revocation of supervised release. The panel—Chief Judge Livingston and Judges Newman and Sullivan—rejected claims that the government breached the plea agreement by supporting sentencing enhancements not stipulated in the agreement, and that the sentence was procedurally and substantively unreasonable.

At sentencing, Probation recommended enhancements beyond those the parties had stipulated to. The government endorsed the Presentence Report’s (PSR) calculation, which increased the total offense level and yielded a Guidelines range of 151–188 months; the district court imposed 188 months on the federal offense plus a consecutive 12 months for the revocation. On appeal, Hotaling challenged (1) the government’s compliance with the plea agreement, (2) the district court’s application and explanation of certain Guidelines provisions—particularly the “sadism” enhancement for morphed images under U.S.S.G. § 2G2.2(b)(4) and an obstruction adjustment under § 3C1.1—and (3) the substantive reasonableness of the 188-month sentence. He did not substantively brief any challenge to the revocation judgment, abandoning that issue.

Summary of the Opinion

• No breach of the plea agreement: The agreement expressly reserved the government’s right to urge specific offense levels, criminal history categories, departures, and ranges. The government’s endorsement of the PSR’s higher offense level and enhancements conformed to those terms and to the reasonable expectations communicated at the plea hearing (where the calculation was labeled an “estimate”).
• Procedural reasonableness: No error in the district court’s explanation or Guidelines calculations. Adoption of the PSR’s findings and applications sufficed for meaningful appellate review. The § 2G2.2(b)(4) “sadism” enhancement properly applied to a morphed image depicting an adult male vaginally penetrating a prepubescent girl. The § 3C1.1 obstruction adjustment was proper because defendant destroyed evidence during a Probation investigation that plainly encompassed the same conduct forming the basis for the later federal indictment.
• Substantive reasonableness: The 188-month sentence (and the 12-month consecutive revocation sentence) fell within the permissible range in light of the § 3553(a) factors, including recidivism, seriousness, deterrence, and respect for law. The district court also stated it would impose the same sentence even under the defense’s Guidelines view.
• Abandonment: Any challenge to the revocation judgment was abandoned by failure to brief it.

Analysis

Precedents Cited and Their Role

• Plea agreement interpretation:
  • United States v. Wilson, 920 F.3d 155, 162 (2d Cir. 2019); United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (de novo review; contract principles).
  • United States v. Granik, 386 F.3d 404, 413 (2d Cir. 2004); United States v. Altro, 180 F.3d 372, 375 (2d Cir. 1999) (contract principles tempered by due process concerns).
  • United States v. Lajeunesse, 85 F.4th 679, 692 (2d Cir. 2023) (resolve doubts in defendant’s favor).
  • United States v. Johnson, 93 F.4th 605, 616 (2d Cir. 2024) (reasonable expectations of defendant as to bargained-for sentence).
  • United States v. Taylor, 961 F.3d 68, 81 (2d Cir. 2020); United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005) (terms understood by parties).
  • United States v. McDermott, No. 24-511-cr, 2024 WL 5114132 (2d Cir. Dec. 16, 2024) (summary order) (no breach where substantively similar agreement allowed government to argue for enhancements beyond stipulations).
• Sentencing standards and procedure:
  • United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (per curiam) (abuse-of-discretion review for procedural/substantive reasonableness).
  • United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007) (plain error for unpreserved procedural claims).
  • United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (procedural error includes miscalculations or inadequate explanation; substantive reasonableness “range of permissible decisions”).
  • United States v. Rainford, 110 F.4th 455, 476 (2d Cir. 2024); United States v. Flores, 945 F.3d 687, 721 (2d Cir. 2019); United States v. Wagner-Dano, 679 F.3d 83, 90 (2d Cir. 2012) (adoption of PSR can satisfy obligation to make specific findings if PSR is sufficiently detailed).
• Specific Guidelines applications:
  • United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996); United States v. Freeman, 578 F.3d 142, 144, 147–48 (2d Cir. 2009) (images of a prepubescent child being vaginally penetrated by an adult are objectively sadistic because likely to cause pain).
  • United States v. Hotaling, 634 F.3d 725, 731 (2d Cir. 2011) (prior appeal by the same defendant; § 2G2.2(b)(4) applies to morphed images under an objective standard when the image portrays sexual activity involving a minor and sadistic conduct).
  • United States v. Ayers, 416 F.3d 131, 134 (2d Cir. 2005) (§ 3C1.1 obstruction applies if the obstructed investigation “plainly encompassed” the conduct underlying the federal offense; applies even if obstruction occurred in a different forum such as a state investigation).
• Substantive reasonableness:
  • United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020); United States v. Brown, 843 F.3d 74, 80 (2d Cir. 2016) (totality of circumstances; deference to district court).
  • United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (set aside only if shockingly high/low or otherwise unsupportable).
• Abandonment of issues:
  • Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (failure to brief constitutes abandonment).

Legal Reasoning

A. No Breach of the Plea Agreement

The agreement contained stipulations about the base offense level and some specific enhancements, but it conspicuously omitted any stipulation to the total offense level, criminal history category, or the final Guidelines range. Critically, it also included an express reservation: it “does not prevent the government from urging the sentencing Court to find that a particular offense level, criminal history category, ground for departure, or guidelines range applies.” The only numerical estimate the government provided was at the plea colloquy, where it stressed that the calculation was “just an estimate” and advised that an incorrect estimate would not permit withdrawal of the plea.

In this posture, the government’s endorsement of the PSR’s higher offense level—after Probation added two enhancements and one upward adjustment not stipulated in the agreement—did not contradict the agreement’s text or the defendant’s reasonable expectations. The panel emphasized that the proper analysis looks to the agreement’s precise terms and to the parties’ behavior to ascertain what a reasonable defendant would have understood to be the bargain; on that test, no breach occurred. The Court also cited its recent summary order in McDermott as persuasive support where a substantively identical reservation clause authorized the government’s advocacy for additional enhancements at sentencing.

Relatedly, the plea agreement’s appeal waiver by its terms applied only to a sentence “at or below” the 120‑month mandatory minimum (per U.S.S.G. § 5G1.1(b)). Because the district court imposed 188 months, the appeal waiver did not bar this appeal.

B. Procedural Reasonableness

1) Adequacy of Explanation and Adoption of the PSR

Hotaling argued for the first time on appeal that the court inadequately explained its application of the § 2G2.2(b)(4) “sadism” enhancement and the § 3C1.1 obstruction adjustment. Reviewing for plain error, the panel found none. A district court must make findings sufficient to enable meaningful appellate review, and it may do so by adopting a sufficiently detailed PSR at the sentencing hearing or in the written judgment. Here, the district court expressly adopted “the factual information and the guideline applications contained in the Presentence Investigation Report,” and the PSR provided adequate detail to permit review.

2) The § 2G2.2(b)(4) “Sadism” Enhancement and Morphed Images

Section 2G2.2(b)(4) calls for a four-level enhancement if the offense “involved material that portrays sadistic or masochistic conduct.” The PSR described an image that Hotaling created by “morphing”—superimposing the head of a minor girl from a nonpornographic photo onto an adult female in a sexually explicit photo—so that the resulting image depicted an adult male vaginally penetrating an “eleven-year-old prepubescent female.”

The key points in the panel’s reasoning were:

• The text of § 2G2.2(b)(4) focuses on whether the material “portrays” sadism; it does not require that a real child was actually harmed in producing the image. The “portrayal” is the operative concept.
• The Second Circuit uses an objective standard to determine whether an image is sadistic—asking whether the depicted act is likely to cause pain or reflects cruelty—without regard to the defendant’s subjective intent or whether actual pain occurred. In Delmarle and Freeman, the Court held that images depicting vaginal penetration of a prepubescent minor by an adult are per se sadistic because such penetration is likely to cause pain “to one so young.”
• In the defendant’s own earlier appeal (United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011)), the Court held that § 2G2.2(b)(4) applies to morphed images when they portray sexual activity involving a minor and sadistic conduct on an objective basis. The method of creation—morphing or otherwise—does not immunize the image from the enhancement if the portrayal meets the standard.

Applying these principles, the district court properly imposed the enhancement because the morphed image depicted vaginal penetration of a prepubescent minor, an act the Circuit has long recognized as objectively sadistic.

3) The § 3C1.1 Obstruction Adjustment and Overlapping Investigations

Section 3C1.1 requires a two-level increase if the defendant willfully obstructed, attempted to obstruct, or impeded the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense, and the obstructive conduct related to the offense or closely related conduct. The facts here were straightforward: during a Probation home visit, officers found unauthorized devices; a forensic review revealed child pornography and indications that a flash drive—later destroyed by Hotaling—had been connected and contained incriminating content (“girls/Real/Fakes/[victim’s name]”). Hotaling admitted he destroyed and discarded that drive after the initial search.

Hotaling conceded obstructive conduct but argued it was aimed only at the supervised release investigation, not the later federal prosecution for possession. The panel rejected that distinction. Citing Ayers, the Court held that obstruction applies so long as the obstructed investigation “plainly encompassed” the conduct underlying the federal offense of conviction. Because the federal indictment arose from the same conduct discovered during the Probation investigation, the adjustment was warranted.

C. Substantive Reasonableness

Even assuming arguendo any Guidelines error (none was found), the district court stated it would have imposed the same sentence regardless of the range—a statement that often reinforces the substantive reasonableness determination. Assessing the § 3553(a) factors, the court emphasized:

• Hotaling’s recidivism, including reoffending while awaiting sentencing in his 2009 case and again while on supervised release after sex-offender treatment.
• Revictimization of an earlier victim, multiple prior arrests for inappropriate contact with minors, and evidence that he molested a minor repeatedly between ages seven and nine.
• Repeated SORNA violations and destruction of evidence to conceal and continue his conduct.

Given these considerations—seriousness, need for deterrence, protection of the public, and respect for the law—the 188‑month sentence was within the range of permissible decisions and not shockingly high.

Impact and Practical Implications

Although nonprecedential, this decision offers several important, practical takeaways for federal criminal practice in the Second Circuit:

• Plea bargaining and reservations of rights: Where a plea agreement expressly reserves the government’s right to argue for particular offense levels, criminal history categories, departures, or ranges, the government may endorse PSR-recommended enhancements not itemized in the parties’ stipulations without breaching the agreement. Defense counsel who intend stipulations to be exclusive must negotiate explicit language barring the government from advocating any additional enhancements, and should avoid broad reservation clauses.
• Guidelines explanation via PSR adoption: A district court can satisfy its duty of explanation by adopting a detailed PSR’s findings and Guidelines applications on the record. Defense counsel should ensure the PSR is sufficiently specific; if it is not, request explicit findings at sentencing to preserve procedural challenges.
• Morphed/deepfake images and § 2G2.2(b)(4): The “sadism” enhancement is about what the image portrays, not how it was created. Morphed images depicting acts objectively likely to cause pain—such as adult penetration of a prepubescent child—remain squarely within § 2G2.2(b)(4). The 2011 Hotaling precedent and longstanding cases like Delmarle and Freeman continue to control this analysis.
• Obstruction across investigative contexts: Obstruction of a Probation or state investigation can support § 3C1.1 if that investigation “plainly encompassed” the conduct later prosecuted federally. Destroying digital media after a home visit that uncovers child pornography will typically qualify when the same conduct underlies the federal charge.
• Alternative sentencing statements: District courts strengthen their sentences against potential Guidelines-error challenges by making clear, on the record, that the same sentence would be imposed even under the defendant’s proposed range, based on § 3553(a) factors.
• Appeal waivers tethered to thresholds: Where an appeal waiver applies only to sentences at or below a specified threshold (e.g., a mandatory minimum), sentences exceeding that threshold leave appellate rights intact—though success depends on the merits, as here.

Complex Concepts Simplified

• Summary order: A nonprecedential appellate ruling that can be cited for persuasive value under Rule 32.1 but does not bind future panels.
• Presentence Report (PSR): A detailed report prepared by Probation that recommends Guidelines calculations and provides factual support; courts often adopt it in whole or part at sentencing.
• U.S.S.G. § 5G1.1(b): When a statutory mandatory minimum exceeds the calculated Guidelines range, the mandatory minimum becomes the Guidelines sentence.
• Procedural vs. substantive reasonableness: Procedural concerns focus on correct Guidelines calculation and adequate explanation; substantive concerns assess whether, considering all circumstances and § 3553(a) factors, the sentence falls within the range of reasonable outcomes.
• “Sadism” enhancement (§ 2G2.2(b)(4)): Adds four offense levels if the material “portrays” sadistic conduct. The inquiry is objective: would the depicted act be likely to cause pain or reflect cruelty? It applies to morphed/deepfake images if the portrayal qualifies.
• Obstruction adjustment (§ 3C1.1): Adds two levels if the defendant willfully obstructed an investigation, prosecution, or sentencing of the offense, including related or overlapping investigations (e.g., Probation home visits tied to the same conduct).
• Morphing/deepfake: Digitally altering an image—e.g., placing a minor’s face on an adult body—to create a depiction of a minor in sexual activity; such depictions can be criminal and carry enhancements under both statute and Guidelines.
• Abandonment on appeal: Issues not briefed are treated as forfeited; courts will not address them.

Conclusion

The Second Circuit’s decision in United States v. Hotaling affirms three important propositions, even if only as persuasive guidance: (1) when a plea agreement reserves the government’s right to argue for offense levels or ranges, the government does not breach by endorsing PSR enhancements beyond stipulations; (2) the § 2G2.2(b)(4) “sadism” enhancement turns on portrayal and applies to morphed images, especially those depicting objectively painful acts like adult penetration of a prepubescent child; and (3) § 3C1.1 obstruction can arise from efforts to thwart a Probation investigation that plainly encompasses the same conduct later prosecuted federally. The decision also underscores that adopting a detailed PSR can satisfy a court’s explanatory obligations, and that forceful § 3553(a) findings—particularly in recidivist, child-exploitation cases—will sustain lengthy sentences against substantive reasonableness challenges. While not precedential, the order provides clear, practical guidance for plea drafting, sentencing advocacy, and appellate preservation in the Second Circuit.