Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Thomas Vivirito

Case No.: 22-2167

Officials: Easterbrook, Wood, and St. Eve, Circuit Judges.

Focus: Sentencing Guidelines

Thomas Vivirito solicited sexual images and videos from young girls. One of them, called Minor A in this litigation, was 12 at the time. When Minor A expressed reluctance to provide videos, Vivirito threatened to expose their sexual text exchanges unless she complied. He also threatened to kill himself. That prompted Minor A to send Vivirito videos of herself penetrating her vagina and anus with the handle of a hairbrush.

Vivirito pleaded guilty to receiving child pornography, 18 U.S.C. §2252A(a)(2)(A), and was sentenced to 216 months’ imprisonment. When calculating the offense level under the Sentencing Guidelines, the district judge added four based on a conclusion that the videos of Minor A portray “sadistic or masochistic” conduct. U.S.S.G. §2G2.1(b)(4)(A). Neither the Guideline nor the accompanying commentary defines those words. The Seventh Circuit held in United States v. Johnson, 784 F.3d 1070 (7th Cir. 2015), that, under an objective standard, pictures of a minor penetrating her vagina with the handle of a screwdriver qualify for this enhancement. Vivirito asks to distinguish hairbrushes from screwdrivers on the ground that young girls often use hairbrushes, while they view screwdrivers as tools that do not belong in bedrooms or body cavities.

Affirmed.

Decided 04/13/23

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