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,

1The 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

2United States Sentencing Comm’n, Report to Congress: Federal Child

P o r n o g r a p h y O f f e n s es 3 2 0 - 2 6 ( D e c . 2 0 1 2 ) , a v a i l a b l e a t

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

3He 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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