United States v. Schrank, 091420 FED6, 19-5903

Docket Nº:19-5903
Opinion Judge:THAPAR, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellant, v. Dane Schrank, Defendant-Appellee.
Attorney:Debra L. Ireland, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellant. Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellee.
Judge Panel:Before: BATCHELDER, DONALD, and THAPAR, Circuit Judges.
Case Date:September 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

United States of America, Plaintiff-Appellant,

v.

Dane Schrank, Defendant-Appellee.

No. 19-5903

United States Court of Appeals, Sixth Circuit

September 14, 2020

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:17-cr-20129-1-Sheryl H. Lipman, District Judge.

Debra L. Ireland, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellant.

Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellee.

Before: BATCHELDER, DONALD, and THAPAR, Circuit Judges.

OPINION

THAPAR, CIRCUIT JUDGE.

We have seen this case before. Dane Schrank visited the dark web and downloaded "nearly 1, 000 images of babies and toddlers being forcibly, violently, and sadistically penetrated." United States v. Schrank, 768 Fed.Appx. 512, 515 (6th Cir. 2019). After a government investigation identified Schrank, he confessed and pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

The Sentencing Guidelines called for a sentence of 97 to 120 months in prison. Yet the district court imposed a noncustodial sentence of just 12 months' home confinement. The government appealed, and we vacated the sentence because it was substantively unreasonable. It both "ignored or minimized the severity of the offense" and "failed to account for general deterrence." Schrank, 768 Fed.Appx. at 515.

Yet on remand, the district court imposed the same sentence. The district judge criticized our court for "second-guess[ing]" her sentence and said that she refused to impose a sentence that "does not make sense." R. 47, Page ID 249, 271. But the district judge didn't stop there. She also found time to criticize the "sophistication of the judges on the Sixth Circuit when it comes to computers" and said that Schrank's misconduct-accessing the dark web over the course of five days and downloading nearly 1, 000 images of children being raped-was "much less exaggerated" than "the Sixth Circuit judges realize." Id. at 250. She concluded by noting, "maybe the Sixth Circuit will reverse me again." Id. at 271.

We now do just that. Because Schrank's sentence remains substantively unreasonable, we vacate it and remand for resentencing. And given the district judge's conduct, we order that the case be reassigned on remand.

I.

A sentence is substantively unreasonable when it is not "proportionate to the seriousness of the circumstances of the offense and offender." See United States v. Robinson, 778 F.3d 515, 519 (6th Cir. 2015) (citation omitted); see also 18 U.S.C. § 3553(a)(2). Thus, we have repeatedly held that sentences are substantively unreasonable in child pornography cases when they require little or no jail time. See, e.g.,

United States v. Demma, 948 F.3d 722, 732 (6th Cir. 2020); United States v. Bistline, 720 F.3d 631, 634 (6th Cir. 2013); United States v. Robinson, 669 F.3d 767, 777 (6th Cir. 2012); United States v. Camiscione, 591 F.3d 823, 833 (6th Cir. 2010). Indeed, in this very case we held that Schrank's noncustodial sentence was substantively unreasonable given his misconduct. Schrank, 768 Fed.Appx. at 515.

Because the district court imposed the same sentence on remand, the sentence remains substantively unreasonable for the reasons set forth in our earlier opinion. Id. Despite Schrank's alleged proficiency in computer systems, there is no "ease of moving" through the dark web, as the district court suggests. R. 47, Page ID 250. It takes a conscious effort, which includes downloading special software (normally Tor routing software) and using a specific sixteen-digit web address that...

To continue reading

FREE SIGN UP