Submitted: November 13, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
convicted Timothy DeFoggi on multiple child-pornography
related offenses. He was sentenced on five counts: four
counts of accessing with intent to view child pornography,
and one count of engaging in a child exploitation enterprise.
The district court sentenced DeFoggi to 240 months for the
accessing counts and 300 months for the exploitation
enterprise count, with the sentences to run concurrently. On
appeal, this court affirmed DeFoggi's convictions for
accessing child pornography but reversed his conviction for
engaging in a child exploitation enterprise. See United
States v. DeFoggi, 839 F.3d 701, 709-11, 713 (8th Cir.
2016). We remanded for resentencing. Id. at 713-14.
resentencing, the district court imposed a 75-month sentence
for each of the four affirmed convictions and ordered that
those terms run consecutively, resulting in a total term of
300 months. DeFoggi appeals, arguing that the sentence was
cruel and unusual in violation of the Eighth Amendment, that
imposition of the same sentence after reversal of the
child-exploitation-enterprise conviction violated due
process, and that the district court abused its discretion in
weighing the sentencing factors.
review DeFoggi's constitutional challenges de novo.
United States v. Shelabarger, 770 F.3d 714, 717 (8th
Cir. 2014); United States v. Lee, 625 F.3d 1030,
1034 (8th Cir. 2010). We review the substantive
reasonableness of the sentence for an abuse of discretion.
United States v. Manning, 738 F.3d 937, 947 (8th
sentence is cruel and unusual when it is "grossly
disproportionate to the crime committed." United
States v. Weis, 487 F.3d 1148, 1153 (8th Cir. 2007).
Disproportionality is judged using a two-step framework. In
the first step, the court "compares the gravity of the
offense to the harshness of the penalty, considering the
defendant's culpability and the harm or threat of harm to
the victim or to society." Shelabarger, 770
F.3d at 717. If analysis of the first step raises an
"inference that the sentence is grossly disproportionate
to the crime committed, " the court proceeds to the
second step and compares the sentence to others for similar
conduct both within and outside the sentencing jurisdiction.
analysis stops at the first step. The full weight of
DeFoggi's crimes is recounted in our earlier opinion.
See DeFoggi, 839 F.3d at 704, 711-12. In short,
DeFoggi was a frequent user of the child pornography website
known as PedoBook, which was located on the Tor network.
Id. at 704, 711. "The Tor network is designed
to keep a user's identity anonymous by requiring special
software that obscures a user's physical location, "
making it more difficult to detect the user's activity.
Id. at 704. DeFoggi "exchanged numerous private
messages with other PedoBook members expressing, among other
things, an interest in the rape and murder of infants and
toddlers." Id. He also "asked other
members of PedoBook where he could find certain videos and
whether they had or could produce images for him."
Id. at 712. The district court expressly found that
DeFoggi "focused on obtaining the most violent
pornography possible directed against the youngest
children." The sentence imposed is undoubtedly long. But
taking into consideration the gravity of the offense conduct
and its harm to the victims and society, as the jury found at
trial and the district court found at sentencing, we cannot
conclude that a 300-month sentence raises an inference of
gross disproportionality. Therefore, we reject DeFoggi's
Eighth Amendment claim.
consider whether the district court's sentence violated
due process. DeFoggi argues that the district court should
not have considered his participation in PedoBook chats
because this court "expressly found insufficient
evidence to support that DeFoggi acted in concert with others
in furthering a child exploitation enterprise." In his
first appeal, we reversed DeFoggi's conviction on the
exploitation enterprise count because the government failed
to prove that DeFoggi committed the predicate offenses of
accessing child pornography in concert with three or
more people. Id. at 709-11. We did not conclude that
DeFoggi had not accessed child pornography, and the district
court gave no indication that it relied on a finding that he
had acted "in concert with" others when
resentencing him. DeFoggi also argues that the district
court's sentence was vindictive. However, this court has
explained "that no presumption of vindictiveness
arises" when the "total sentence imposed on remand
is no greater than the total original sentence."
United States v. Evans, 314 F.3d 329, 334 (8th Cir.
2002). That is what happened here, and DeFoggi cites no other
evidence that the district court's sentence was
punishment for the partial reversal on his first appeal.
DeFoggi's sentence did not violate due process.
we consider whether the district court abused its discretion
and imposed a substantively unreasonable sentence. DeFoggi
argues that the district court gave too much weight to his
"fantasy messages" to other PedoBook users, his use
of the Tor network to mask his identity while accessing child
pornography, and the victimization of children depicted in
child pornography. The district court weighed the relevant
factors, and concluded that the "overriding factor"
was protection of society. See 18 U.S.C. §
3553(a)(2)(C). The court further explained that DeFoggi
"pose[s] a very serious threat to society, particularly
the youngest, most vulnerable members of society." A
district court has "wide latitude to weigh the §
3553(a) factors" and to "assign some factors
greater weight than others in determining an appropriate
sentence." United States v. Bridges, 569 F.3d
374, 379 (8th Cir. 2009). Under the circumstances of this
case, we cannot say the district court abused its discretion
or imposed a substantively unreasonable sentence.
judgment of the district court is affirmed.