United States v. Demma

948 F.3d 722

UNITED STATES of America, Plaintiff-Appellant,

v.Andrew DEMMA, Defendant-Appellee.

No. 18-4143

United States Court of Appeals, Sixth Circuit.

Argued: December 12, 2019

Decided and Filed: January 24, 2020

ARGUED: Mary B. Young, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellant. Richard E. Mayhall, RICHARD E. MAYHALL, Springfield, Ohio, for Appellee. ON BRIEF: Mary B. Young, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellant. Richard E. Mayhall, RICHARD E. MAYHALL, Springfield, Ohio, for Appellee.

Before: GILMAN, KETHLEDGE, and READLER, Circuit Judges.

RONALD LEE GILMAN, Circuit Judge.

This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not. We therefore VACATE the sentence imposed by the district court and REMAND the case for resentencing.

I. BACKGROUND

In February 2015, FBI agents seized a computer server used to host a child-pornography website. The website operated through "Tor," a network designed for anonymous internet use. Users of Tor must download special software onto their computers, followed by the entry of an obscure web address not found on publicly available search engines, in order to access particular websites. The users’ IP addresses and locations are then shielded by Tor from the websites they visit.

Shortly after seizing the server, the FBI began monitoring the activity of a particular user, "domine21." Agents observed domine21 accessing 107 "threads" containing child pornography over a five-day period. The FBI traced the IP address associated with domine21 to Andrew Demma’s residence in Dayton, Ohio. In August 2015, the FBI executed a search warrant and seized several electronic devices from the residence, finding more than 3,600 images and 230 videos in Demma’s possession. Hundreds of the images depicted adult men raping and otherwise sexually abusing prepubescent girls.

Demma pleaded guilty to possessing child pornography, such possession being in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Under United States Sentencing Guidelines (U.S.S.G.) § 2G2.2, the base-offense level for violating the statute is 18. The probation officer’s Presentence Report called for enhancements of the base-offense level due to Demma’s possession of images displaying prepubescent children (a two-level increase); his possession of images involving sadomasochistic conduct, including images of insertion or intercourse with prepubescent children (a four-level increase); his use of a computer (a two-level increase); and the fact that the offense involved 600 or more images (a five-level increase). Demma’s acceptance of responsibility (a two-level decrease) and his assistance to authorities (a one-level decrease) were listed as mitigating factors. Based on the above calculations, the probation officer computed an adjusted offense level of 28. This offense level, together with Demma’s criminal history category of I, corresponds to a term of imprisonment between 78 and 97 months under U.S.S.G. § 2G2.2. The officer recommended a sentence of 78 months’ imprisonment.

Contrary to the probation officer’s recommendation, Demma submitted a sentencing memorandum asking the district court to impose a noncustodial sentence. The memorandum described Demma’s supportive upbringing, educational background, and lack of criminal history. It also described Demma’s experience in the Army, where Demma served honorably for over five years between 2005 and 2010. Demma, who admits to having been long addicted to adult pornography, said that he was introduced to child pornography during his second deployment to Iraq. He acknowledged that he continued to view child pornography up until the FBI searched his home in 2015.

The memorandum also offers an account of Demma’s experience with post-traumatic stress disorder (PTSD) as a result of his military service. Demma began seeing Dr. Frederick Peterson, a psychologist at a nearby Veterans Affairs Hospital, after the FBI searched Demma’s home. Dr. Peterson diagnosed Demma with PTSD, and the doctor’s records describe a range of violent and traumatic episodes during Demma’s tours of duty in Iraq. At the sentencing hearing, Dr. Peterson expressed his opinion that Demma’s use of child pornography stemmed from his "objectification" of children as a result of combat trauma.

The memorandum further cites Dr. David Tennenbaum, a forensic psychologist who submitted a report asserting that Demma’s use of child pornography "is directly resultant from experiencing the ravages of war as this impacts children, viewing the deaths of children." Dr. Tennenbaum, at Demma’s sentencing hearing, expressed his belief that Demma sought child pornography in order to "bring pain to himself, to redo within his mind the pain he experienced in Iraq."

Finally, Demma offered the testimony of psychologist Dr. David Roush, who runs a sex-offender treatment program in which Demma enrolled following his arrest. Dr. Roush, contrary to the opinions of Dr. Peterson and Dr. Tennenbaum, did not believe that Demma’s use of child pornography was directly caused by Demma’s service in Iraq. He was instead of the opinion that Demma was already attracted to minors and simply happened to be in Iraq when he became exposed to child pornography.

The government submitted its own sentencing memorandum, arguing that the factors outlined in 18 U.S.C. § 3553(a) supported the imposition of a custodial sentence on Demma. Highlighting the sophistication of Demma’s access to the pornography, as well as the large number of images of "prepubescent children being anally and vaginally penetrated by adult males," the government emphasized the need for just punishment and the sentencing goal of providing deterrence. The government also contended that Demma could successfully continue his treatment in the Bureau of Prisons Residential Sex Offender Treatment Program and the Sex Offender Management Program during incarceration.

After hearing from Demma, his parents, and his treating psychologists, as well as considering several victim statements read into evidence, the district court rejected the sentence recommended by the Sentencing Guidelines. It instead sentenced Demma to only one day for time already served. The court also required Demma to undergo 10 years of supervised release and pay $45,000 in total restitution to nine identified victims.

In declining to impose a custodial sentence, the district court articulated its disagreement with the Sentencing Guidelines on policy grounds, explaining that "the guidelines, while certainly they’re a starting point and they do achieve a certain amount of consistency," are "artificially high because everyone secures most of the enhancements." It further explained that the Guidelines made it difficult to distinguish between offenders.

The district court also cited the need to impose a sentence reflecting Demma’s individualized characteristics, noting that "Mr. Demma, because of his experiences, is to be treated differently than someone who simply allowed his curiosity to get the better of him." In particular, the court focused on Demma’s PTSD diagnosis. The court, pointing to the reports of the three psychologists, commented that "very few people come home from a combat situation without suffering lasting damage." It relied most heavily on Dr. Tennenbaum’s testimony that Demma’s experience in Iraq was "the direct cause of his involvement with child pornography." In light of the doctors’ opinions, the court determined that Demma "wound up in criminal court as an unintended consequence" of his voluntary service in the Army.

The district court nevertheless noted the impact of Demma’s crime on his victims, explaining that the possession of child pornography is "an offense that has no finite ending." It also discussed the role of such possession in creating a market for the production and distribution of child pornography, and it described the number of images possessed by Demma as "if not the highest the Court has ever seen in a possession of child pornography [case], certainly not the lowest either." Other considerations, however, carried greater weight in the court’s analysis.

The district court specifically discussed Demma’s decision to voluntarily seek out treatment after he was arrested, his low risk of reoffending, and the potentially detrimental effect of a prison sentence on Demma’s treatment, as articulated by Dr. Peterson and Dr. Roush. It also considered Demma’s low risk for committing a "contact offense," an inquiry that the court called the "overarching question" to be answered prior to sentencing. Discussing general deterrence, the court noted that, while it "recognize[d] the need to consider general deterrence, there are certain types of crimes, this being one of them, for which general deterrence is ... more myth than reality."

The government timely appealed, arguing that the one-day sentence was substantively unreasonable under 18 U.S.C. § 3553(a). We now turn to the merits of the government’s argument.

II. ANALYSIS

A. Standard of review

The federal Sentencing Guidelines are no longer mandatory after the Supreme Court’s decision in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). "[T]hey still," however, " ‘should be the starting point and the initial benchmark’ for choosing a defendant’s sentence." United States v. Bistline , 665 F.3d 758, 761 (6th Cir. 2012) ( Bistline I ) (quoting Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). The district court must calculate the range prescribed by the Guidelines before varying from them. Gall , 552 U.S. at 49, 128 S.Ct. 586. And, after allowing the parties to argue for a particular sentence, the district court must weigh and apply the range of factors outlined in 18 U.S.C. § 3553(a). Id. at 49–50, 128 S.Ct. 586.

A sentence may be...