Underwear-Only Images Outside the Frame of the Anus/Genitals/Pubic Area Are Not “Child Pornography” Under 18 U.S.C. § 2256

Introduction

In United States v. Stephen Regis, Jr. (11th Cir. Feb. 6, 2026) (per curiam) (unpublished), the Eleventh Circuit reviewed a multi-count conviction arising from Regis’s Snapchat communications with girls aged twelve to fifteen. The evidence showed that Regis supplied vapes, alcohol, and marijuana to minors and requested sexually suggestive images in return, while also sending explicit images and masturbation videos of himself.

The appeal presented two central issues:

  • Sufficiency/definition issue: whether certain images of minors—primarily in underwear or partially clothed—met the statutory definition of “child pornography” because they depicted a “lascivious exhibition of the anus, genitals, or pubic area.”
  • Sentencing issue: whether the district court plainly erred by applying “pattern of activity” enhancements under U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5(b) based on conduct involving multiple minors.

Summary of the Opinion

The Eleventh Circuit affirmed Regis’s conviction for production on Count Nine (Minor Female K2), concluding that the victim’s testimony—viewed in the government’s favor—permitted the jury to find she produced the nude images at Regis’s request.

The court reversed Regis’s convictions on Counts Five, Six, and Seventeen (involving Minor Female I and Minor Female J), holding that the images supporting those counts did not satisfy the statutory element requiring a “lascivious exhibition of the anus, genitals, or pubic area” under 18 U.S.C. § 2256(2)(A)(v). In the court’s view, the record was devoid of evidence of that essential statutory element.

On sentencing, applying plain-error review, the court found no plain error in applying the “pattern of activity” enhancements, rejecting Regis’s contention that the enhancements are limited to multiple acts against a single minor and cannot be based on multiple minors.

Analysis

Precedents Cited

1) Sufficiency review and issue preservation

  • United States v. Fries, 725 F.3d 1286 (11th Cir. 2013): supplied the “manifest miscarriage of justice” formulation and the benchmark that reversal is warranted only if the record is “devoid of evidence of an essential element” or the evidence on a key element is so tenuous that the conviction would be “shocking.” This standard governed because Regis did not move for acquittal after the close of all evidence.
  • United States v. Baston, 818 F.3d 651 (11th Cir. 2016): provided the framework distinguishing de novo review (preserved challenges), plain error (general but not specific challenge), and the “manifest miscarriage of justice” standard (no challenge after close of evidence).
  • United States v. Milkintas, 470 F.3d 1339 (11th Cir. 2006) (per curiam): emphasized that sufficiency review—especially under a defense-favorable posture—still requires viewing evidence in the light most favorable to the government and accepting reasonable inferences and credibility determinations supporting the verdict.

2) Statutory meaning of “child pornography” and “lascivious exhibition”

  • United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016): stressed that what counts as a “lascivious exhibition” is “not concrete” and must be judged from the actual depiction. The court used Holmes to ground a depiction-focused inquiry rather than a generalized “sexual” impression.
  • United States v. Williams, 444 F.3d 1286 (11th Cir. 2006), rev'd on other grounds, 553 U.S. 285 (2008): cited via Holmes for the depiction-specific approach, while acknowledging the Supreme Court’s later review on other grounds.
  • United States v. Williams, 553 U.S. 285 (2008): reinforced that material must “in fact” meet the statutory definition of “sexually explicit conduct” to qualify as illegal child pornography, preventing conviction based purely on intent, offensiveness, or an observer’s subjective reaction.
  • United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014): defined “lascivious exhibition” as one that “potentially excites sexual desires or is salacious.” Notably, Regis did not dispute “lasciviousness”; the fight was over whether the depictions “exhibited” the statutorily listed parts.

3) Out-of-circuit “clothed exhibition” cases the court distinguished

  • United States v. Knox, 32 F.3d 733 (3d Cir. 1994): upheld convictions where tight clothing and poses made the genital/pubic region “entirely visible to the viewer” (despite being covered), treating “exhibited” in an ordinary-language sense.
  • United States v. Horn, 187 F.3d 781 (8th Cir. 1999): found sufficient evidence where framing and freeze-framing centered and focused on pubic areas in swimsuit bottoms.

The Eleventh Circuit did not adopt Knox/Horn as governing law; instead it assumed arguendo their approach and still found Regis’s images lacking because the relevant anatomical areas were outside the camera frame, obscured by the body itself, or covered by opaque clothing without the kind of discernibility, centering, or focus present in those cases.

4) Attempt theory explicitly not at issue

  • United States v. Burch, 113 F.4th 815 (8th Cir. 2024): cited to underscore a path not taken—attempt liability—because Regis was not charged with or convicted of attempt. The panel emphasized it was not deciding whether evidence could support an attempt conviction.

5) Sentencing: standards and “pattern” enhancements

  • United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc): stated the general rule of de novo review for guideline interpretation/application when preserved.
  • United States v. Corbett, 921 F.3d 1032 (11th Cir. 2019): supplied the principle that absent explicit statutory/guideline language or controlling Supreme Court/Eleventh Circuit precedent, an issue is unlikely to be “plain” error.
  • United States v. Rogers, 989 F.3d 1255 (11th Cir. 2021): set the four-part plain-error test.
  • United States v. Fox, 926 F.3d 1275 (11th Cir. 2019): held U.S.S.G. § 4B1.5(b) can apply to repeated conduct “with the same minor,” rejecting the claim it requires multiple victims. Regis tried to invert Fox to argue the guideline requires one minor; the panel read Fox as confirming the guideline does not impose a “multiple victims” requirement.
  • United States v. Warren, 820 F.3d 406 (11th Cir. 2016) (per curiam): used for the linguistic point that “a” can mean “any,” supporting the panel’s conclusion that “a minor” in U.S.S.G. § 2G2.2(b)(5) is not plainly limited to one minor.

6) Remand after partial reversal; sentencing-package doctrine

  • United States v. Fowler, 749 F.3d 1010 (11th Cir. 2014): explained that when some counts are vacated, the district court may “reconstruct the sentencing package” on remand to maintain coherence with the Guidelines and 18 U.S.C. § 3553(a).
  • Greenlaw v. United States, 554 U.S. 237 (2008): cited for the practical point that partial success on appeal may yield no net benefit after resentencing.

7) Why the court reached the merits despite concurrent sentences

  • Ray v. United States, 481 U.S. 736 (1987): required review of challenged counts even with concurrent imprisonment/supervision because each count carried a separate mandatory assessment.

Legal Reasoning

A) Count Nine (production) survived because the jury could credit “made for him” testimony

The panel treated the victim’s testimony as sufficient even if parts were “confusing or ambiguous.” Crucially, Minor Female K2 testified she took the photos “specifically for [Regis] to send to him.” Under the deferential posture of review (and with credibility determinations left to the jury), that testimony supported the causation element: that Regis “persuade[d], induce[d], [or] entice[d]” the minor to engage in sexually explicit conduct for the purpose of producing the depiction.

B) Counts Five, Six, and Seventeen failed because the images did not “exhibit” the statutorily listed parts

The core holding is narrow but significant: even if an image is sexually suggestive (and even if the defendant’s purpose is plainly sexual), the statute demands an actual depiction meeting § 2256. The government conceded the images did not show intercourse, masturbation, sadism/masochism, etc., leaving only § 2256(2)(A)(v): “lascivious exhibition of the anus, genitals, or pubic area.”

Regis argued the statute requires nudity. The court declined to resolve that broader interpretive dispute, instead concluding that the convictions fail even under the government’s more expansive view (that clothing can still “exhibit”). Distinguishing Knox and Horn factually, the court emphasized:

  • Buttocks are not the “anus.” The government’s reliance on buttocks shots did not satisfy the text because § 2256(2)(A)(v) does not list buttocks as a qualifying body part.
  • Opaque underwear without discernible anatomy is insufficient. The images did not display discernible genital/pubic detail through sheer fabric.
  • Framing and focus matter. Unlike Horn (pubic area centered/focused), these images did not place the pubic area at the center or as the focus; in some, the relevant areas were outside the frame or obscured.

On that record, the panel concluded the evidence was “devoid” of an essential element for those counts, requiring reversal under the strict statutory definition. The court also drew a boundary between completed offenses and attempt: there was “little doubt” Regis wanted qualifying child pornography, but he was not charged with attempt.

C) No plain error on “pattern of activity” enhancements involving multiple minors

Regis’s sentencing argument was structurally a limitation claim: that the enhancements require repeated conduct against a single minor and therefore do not apply to a multi-victim pattern. The panel rejected that as a matter of ordinary meaning and, critically, under plain-error review:

  • For U.S.S.G. § 4B1.5(b), the court read “pattern of activity involving prohibited sexual conduct” broadly enough to include repeated acts with one minor, a single act with multiple minors, or repeated acts with multiple minors. It treated United States v. Fox as foreclosing the idea that multiple victims are required and as consistent with a broad understanding of “pattern.”
  • For U.S.S.G. § 2G2.2(b)(5), the phrase “a minor” was not plainly limited to one minor; United States v. Warren supplied the interpretive premise that “a” can mean “any.” Given that ambiguity and United States v. Corbett, any error was not “plain.”

Impact

Although unpublished, the decision is practically important in three ways:

  • Statutory discipline in image-based prosecutions: The opinion reinforces that conviction under § 2256(2)(A)(v) turns on what the image actually depicts, not merely on sexual intent, suggestive context, or general “lasciviousness.”
  • Textual boundary-setting: By holding that buttocks are not a listed body part and that images failing to depict the anus/genitals/pubic area cannot qualify, the panel narrows prosecutions that might otherwise blur “sexually suggestive” with “sexually explicit conduct” as statutorily defined.
  • Charging decisions—attempt vs. completed offenses: The court’s explicit mention of United States v. Burch highlights a roadmap for prosecutors: where the defendant solicits explicit content but receives images that do not meet § 2256, attempt charges (where provable) may fit better than completed-offense charges.

On sentencing, the ruling signals that—at least under plain-error review—“pattern” enhancements are unlikely to be undone merely because the conduct spans multiple victims rather than one, and that defendants must preserve guideline objections to obtain meaningful appellate scrutiny.

Complex Concepts Simplified

  • “Lascivious exhibition of the anus, genitals, or pubic area”: The statute targets images that (1) are sexually suggestive (“lascivious”) and (2) actually display (“exhibit”) one of three listed anatomical areas. The court held that showing buttocks is not the same as showing the anus, and that underwear shots do not qualify unless the relevant area is truly shown in the depiction (often via framing/focus or discernibility).
  • “Manifest miscarriage of justice” sufficiency review: Because Regis did not move for acquittal at the close of all evidence, he faced an exceptionally difficult standard: reversal occurs only when an essential element has essentially no evidentiary support.
  • Plain error: An appellate court generally will not correct an unpreserved sentencing issue unless the mistake is clear/obvious under existing law and affected the outcome. If the guideline language is ambiguous and there is no controlling precedent, the error typically is not “plain.”
  • Sentencing-package doctrine: When some convictions are vacated, the district court may revisit the overall sentencing structure on remand to craft a coherent aggregate sentence consistent with the remaining counts.

Conclusion

United States v. Stephen Regis, Jr. draws a firm statutory line: sexually suggestive images of minors do not become “child pornography” unless they actually depict “sexually explicit conduct” as Congress defined it—here, a “lascivious exhibition” must genuinely exhibit the anus, genitals, or pubic area, and buttocks or non-focused underwear images will not suffice on these facts.

At the same time, the opinion illustrates two procedural realities: (1) preserving sufficiency and guideline objections is critical to meaningful appellate review, and (2) partial reversals commonly trigger resentencing where the district court can repackage the sentence consistent with the remaining convictions.