Understanding Downward Variance in Sentencing in Child Pornography Cases

United States v. Anderson, 21-1406

Following a consensual search of his home, Jon Jason Anderson admitted in recorded interviews to using Freenet, a “Dark Web” peer-to-peer file sharing software, to find and download child pornography. The court then stated that to determine whether a downward variance was appropriate in this case, it would apply the approach proposed by the United States Sentencing Commission in Chapter 12(C) of its 2012 Child Pornography Report to “differentiate between offenders based on the content of the pornography at issue.”

The court applied each of the factors proposed by the Commission to Anderson and his offense conduct, an analysis that included the internet community involved — “peer-to-peer sharing on the Dark Web” – based upon “the judge’s view that the Guidelines range fails properly to reflect 18 U.S.C. § 3553(a) considerations even in a mine-run case.” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quotations omitted)

Following a consensual search of his home, Jon Jason Anderson admitted in recorded interviews to using Freenet, a “Dark Web” peer-to-peer file sharing software, to find and download child pornography. At sentencing, the court applied multiple offense-specific enhancements under USSG § 2G2.2 and denied a reduction for acceptance of responsibility because Anderson exercised his right to trial.

The defense counsel argued at length for a downward variance, citing lack of criminal history, and good behavior on pretrial release — and asserting that the § 2G2.2 enhancements overstate the severity of his offense. The district court then explained at length its reasons for imposing a sentence at the bottom of Anderson’s advisory guidelines range.

The court then stated that, to determine whether a downward variance was appropriate in this case, it would apply the approach proposed by the United States Sentencing Commission in Chapter 12(C) of its 2012 Child Pornography Report to “differentiate between offenders based on the content of the pornography at issue.” The court applied each of the factors proposed by the Commission to Anderson and his offense conduct, an analysis that included the internet community involved — “peer-to-peer sharing on the Dark Web.” The court concluded that overall, his offense is “either typical or a little bit more aggravating than typical vis-a-vis other child pornography offenders.” The court then examined at length each of the mitigating factors cited by Anderson, gave him considerable credit for those factors, but concluded that the § 2G2.2 guideline “gets it right in your particular case, and the lower end of that range…is appropriate.” .

The standard for reviewing whether a sentence is substantively unreasonable under the advisory guidelines is more controversial when the sentencing judge varies based upon “the judge’s view that the Guidelines range fails properly to reflect 18 U.S.C. § 3553(a) considerations even in a mine-run case.” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quotations omitted). We follow the Supreme Court’s lead in Kimbrough – the sentence “should survive appellate inspection” when, as in this case, the district court properly weighed the impact of its overall disagreement with the § 2G2.2 enhancements in this case by calculating and considering the guidelines range, explicitly addressing the § 3553(a) factors, and considering the nature and circumstances of the crime and the defendant’s criminal history and offender characteristics. Thus, if a district court “opts to adhere to § 2G2.2, the normal standards of appellate review apply.” United States v. Lynde, 926 F.3d 275, 281 (6th Cir.), cert. denied, 140 S. Ct. 326 (2019); see United States v. Burns, 834 F.3d 887 (8th Cir. 2016).

Anderson claims that, in doing so, the court “made several erroneous assumptions about Mr. Anderson’s conduct in this case,” based upon law enforcement interview admissions that suggested he had a custom practice to view and delete as often as he could.