                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1343
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Timothy DeFoggi

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                          Submitted: November 13, 2017
                             Filed: January 5, 2018
                                   [Published]
                                 ____________

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

      A jury 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 court1 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.

       At 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.

      We 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 Cir. 2014).

      A 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


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

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the second step and compares the sentence to others for similar conduct both within
and outside the sentencing jurisdiction. Id.

       Our 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.

      We next 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

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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.

       Finally, 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.

      The judgment of the district court is affirmed.
                     ______________________________




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