United States v. Osuba, No. 20-3322 (2d Cir. 2023)
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A jury convicted Defendant of violating 18 U.S.C. Section 2251(a), which prohibits using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. The jury also convicted Defendant of possessing and distributing child pornography based on different images found on his phone. The district court sentenced Defendant to 70 years in prison. Defendant argued that the evidence was insufficient to convict him on the production charge, that the district court erred in applying a sentencing enhancement based on a finding that he was a repeat and dangerous offender and that his sentence was substantively unreasonable.
The Second Circuit affirmed. The court held that there was sufficient evidence for a rational jury to conclude, beyond a reasonable doubt, that Defendant “used” a minor “to engage in . . . sexually explicit conduct” under 18 U.S.C. Section 2251(a) when he filmed himself masturbating near the victim, directed his conduct toward her, and framed the visual depiction to show that she was a passive participant in his sexual activity. Further, the court held that the district court did not clearly err in applying the five-level repeat-and-dangerous-offender enhancement because sufficient evidence supported the finding that Defendant abused the victim. Finally, the court held that Defendant’s sentence was substantively reasonable.
This opinion or order relates to an opinion or order originally issued on April 17, 2023.
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