UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐ Plaintiff-Appellant, │ │ > No. 18-4143 v. │ │ │ ANDREW DEMMA, │ Defendant-Appellee. │ ┘

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:17-cr-00062-1—Walter H. Rice, District Judge.

Argued: December 12, 2019

Decided and Filed: January 24, 2020

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

_________________

COUNSEL 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. _________________

OPINION _________________

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 No. 18-4143 United States v. Demma Page 2

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