768 Fed.Appx. 512 (6th Cir. 2019), 17-6093, United States v. Schrank
|Citation:||768 Fed.Appx. 512|
|Opinion Judge:||ALICE M. BATCHELDER, Circuit Judge.|
|Party Name:||UNITED STATES of America, Plaintiff-Appellant, v. Dane SCHRANK, Defendant-Appellee.|
|Attorney:||Debra Lynn Ireland, Office of the U.S. Attorney, Memphis, TN, for Plaintiff - Appellant Michael J. Benza, Law Office of Michael J. Benza, Chagrin Falls, OH, for Defendant - Appellee|
|Judge Panel:||Before: BATCHELDER, DONALD, and THAPAR, Circuit Judges.|
|Case Date:||April 16, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
Debra Lynn Ireland, Office of the U.S. Attorney, Memphis, TN, for Plaintiff - Appellant
Michael J. Benza, Law Office of Michael J. Benza, Chagrin Falls, OH, for Defendant - Appellee
Before: BATCHELDER, DONALD, and THAPAR, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge.
The government appeals the sentence imposed after a guilty plea to possession of child pornography. We VACATE and REMAND.
In February 2015, Dane Schrank was 21 years old, living with his parents, and working as a swimming-pool cleaner. But he had a computer and enough computer savvy to attempt to make himself anonymous on-line, access the "dark net," and find a child-pornography site named "Playpen." He visited Playpen multiple times— for three hours total over five days— and downloaded 840 images, 332 thumbnail images, and three videos of prepubescent children, including toddlers and babies, suffering sadistic sexual abuse. He also added a comment to a posted image, which was apparently a requirement for maintaining access to the Playpen site.
When a nationwide investigation of Playpen identified Schrank and police arrived at his fathers home with a search warrant, Schrank admitted everything and surrendered his two computers. He continued to cooperate, signing a plea agreement and entering a guilty plea on the same day the prosecutor formally charged him with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and criminal forfeiture of his computers.
The PSR tabulated Schranks base offense level at 18 and added several levels because: some images were of children younger than 12 years old; some images were sadistic, violent, or of infants or toddlers; he used a computer and the internet; and he had more than 600 images. Adjusted for his acceptance of responsibility, the total offense level was 28. Schranks criminal history included his being on diversion for the latter of two marijuana-possession convictions when he committed the child pornography offense, making his criminal history score four and his category III. This led to an advisory guidelines range of 97 to 120 months in prison.
At the sentencing hearing, the court adopted the PSR and recognized the authority of the advisory guidelines and the § 3553(a) factors. The prosecutor requested "a sentence at the low end of the advisory guideline range."
Schrank had submitted several letters to the court attesting to the troubled or tragic life events he had suffered leading up to his child-pornography crime, as well as his subsequent rehabilitation. His father made a statement to the court attesting to the same and Schrank himself made an apologetic statement. Schranks attorney requested a sentence of no prison time on the premise that incarceration would not help him...
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