United States v. Jon Anderson

United States Court of Appeals
For the Eighth Circuit
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No. 21-1406
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jon Jason Anderson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: January 10, 2022
Filed: March 21, 2022
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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
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LOKEN, Circuit Judge.
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. He claimed that any images or
videos of children younger than 15 were inadvertently downloaded, and that he
thought that he deleted illegal files. At a bench trial, the government introduced
Anderson’s recorded interviews and called five witnesses. Anderson’s ex-wife
testified he had sexually abused his 12-to-13 year old stepdaughter. A computer
forensics expert described the evidence recovered from Anderson’s devices, including
image cache files of previously-viewed child pornography, past search terms for
toddlers, and software that automatically deletes files and user activity. Anderson
called no witnesses and declined to testify in his own defense. The district court1
convicted him of accessing the internet with intent to view child pornography in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).
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. See USSG § 3E1.1, comment. n.2. His advisory
guidelines sentencing range was 87 to 108 months’ imprisonment. The government
urged a within-Guidelines sentence. Anderson argued for a downward variance to
48 months. The district court imposed an 87-month sentence.
Anderson appeals, arguing the court abused its discretion by imposing a
substantively unreasonable sentence. “A district court abuses its discretion when it
(1) fails to consider a relevant factor that should have received significant weight; (2)
gives significant weight to an improper or irrelevant factor; or (3) considers only the
appropriate factors but in weighing those factors commits a clear error of judgment.”
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotations
omitted). “[I]t will be the unusual case when we reverse a district court sentence --
whether within, above, or below the applicable Guidelines range -- as substantively
unreasonable.” Id. at 464. Applying this deferential standard of review, we affirm.
At sentencing, defense counsel argued at length for a downward variance,
citing many factors -- Anderson’s early acceptance of responsibility, family support,
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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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. In initially weighing the 18 U.S.C. § 3553(a) sentencing
factors, the court noted that while there are mitigating factors to be credited,
Anderson’s offense conduct was “very aggravating.” The court also explained that,
like many others, it “has a policy disagreement with 2G2.2 of the guidelines,” and
almost always varies downward in § 2G2.2 cases.
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 Report2 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 . . . where the worst of the worst is stored and
available” -- and Anderson’s history, including his ex-wife’s testimony regarding
abuse of his minor stepdaughter. 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
2
United States Sentencing Comm’n, Report to Congress: Federal Child
Pornography Offenses 320-26 (Dec. 2012), available at
https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-re
ports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_12.pdf.
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based upon “the judge’s view that the Guidelines range fails properly to reflect
§ 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. Id. at 110-11. Here, the district court’s focus on the Sentencing
Commission’s 2012 Child Pornography Report was one way to do that. The district
court adopted a somewhat different approach in United States v. Abraham, 944 F.
Supp. 2d 723 (D. Neb. 2013). What is essential to remember is that “the
[Commission’s] report does not invalidate § 2G2.2.” United States v. Sigsbury, 817
F.3d 1114, 1115 (8th Cir. 2016). 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).
On appeal, Anderson argues his sentence is substantively unreasonable because
it is greater than necessary to satisfy the sentencing goals of § 3553(a).3 He argues
the district court did not give sufficient weight to mitigating factors he presented that
warrant a downward variance. The court directly addressed and gave Anderson credit
for these factors but concluded they did not outweigh aggravating factors and
imposed a guidelines-range sentence, even though it usually varies downward when
§ 2G2.2 enhancements apply. 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 and
3
He does not argue the district court committed procedural sentencing error;
that argument would be plainly without merit. See Feemster, 572 F.3d at 461.
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practice to view and delete as often as he could. The district court presided over
Anderson’s bench trial and was thus familiar with the evidence. The court found that
Anderson’s attempts to downplay his conduct in the law enforcement interviews were
contradicted by evidence he searched for and found videos of three or four year old
children, by his sophistication in regularly deleting images, and by his use of Dark
Web peer-to-peer file sharing technology. After careful review of the record, we
conclude the district court did not commit a clear error of judgment or abuse its
substantial sentencing discretion in weighing the § 3553(a) sentencing factors. See,
e.g., United States v. Adams, 12 F.4th 883, 887-88 (8th Cir. 2021); United States v.
Short, 2 F.4th 1076, 1081 (8th Cir.), cert. denied,142 S. Ct. 626 (2021).
The judgment of the district court is affirmed.
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