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E-FILED

Thursday, 10 March, 2016 02:31:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ANDREW D. HOFF,
f/k/a John Doe #2,
Defendant.

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Case No.

14-CR-20048

THE UNITED STATES OF AMERICA’S SENTENCING MEMORANDUM
The United States of America, by its attorneys James A. Lewis, United States
Attorney for the Central District of Illinois, and Elly M. Peirson, Assistant United States
Attorney, and Keith A. Becker, Trial Attorney, hereby submits this memorandum
addressing the objections to the revised presentence report (“PSR”).
I.

The Defendant’s Conduct
Defendant Andrew D. Hoff (“Hoff” or “defendant”) pled guilty pursuant to a

plea agreement stipulating to his offense conduct in connection with this case and has
no objections to the factual recitation in the PSR ¶¶20-43. Hoff was a domestic
administrator of a prolific online bulletin board whose primary purpose was the
advertisement and distribution of child pornography (“the Website”). PSR ¶20,28. By
July of 2014, the Website was the largest and most sophisticated members-only child
pornography website in existence boasting over 29,000 members, with Hoff’s
contribution exceeding 4,500 postings. PSR ¶31, 39. The Website operated on the Tor

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anonymity network and required its users to upload and share child pornography to
keep membership or advance in status. PSR ¶22, 25. As an active part of the
administrative staff, Hoff enforced the rules of the board, reprimanded members for
violations of the rules, promoted members giving them more access to the fruits of the
crime and recruited new producers.
In addition to the administrative actions detailed in the PSR (¶28-33), the United
States intends to present 12 sentencing exhibits, which are other example postings in
support of the government’s argument that the four-level leader/organizer
enhancement is more appropriate in this case 1.
II.

Guideline Objections
A.

The Defendant was a leader/organizer

The United States has one objection to the findings in the PSR. The final report
correctly encompasses the defendant’s conduct, but undervalues his role in the
extensive criminal enterprise. The defendant maintained, administered and participated
in an online community dedicated to the advertisement and distribution of child
pornography involving tens of thousands of users and victims over a period of more
than two years. His conduct clearly rises to the level of an organizer or leader pursuant
to U.S.S.G. § 3B1.1(a) and this Court should accordingly apply the enhancement.

A courtesy copy of this memorandum and exhibits will be provided to the court in
advance of the sentencing hearing.
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A defendant who is more criminally culpable should receive the harsher
organizer/leader enhancement based on their role in the offense. United States v. Weaver,
716 F.3d 439, 442 (7th Cir. 2013); U.S.S.G. § 3B1.1(a). “A 4–level increase is warranted
under § 3B1.1(a) if the defendant participated in a criminal activity involving at least five
participants (including himself) and organized or led at least one of the other
participants.” U.S.S.G. § 3B1.1(a); United States v. Haywood, 777 F.3d 430, 433 (7th Cir.
2015)
The Guideline Application Notes for Section 3B1.1 give the Court insight on the
commission’s intent in applying this enhancement:
This section provides a range of adjustments to increase the offense level based
upon the size of a criminal organization (i.e., the number of participants in the
offense) and the degree to which the defendant was responsible for committing
the offense. This adjustment is included primarily because of concerns about
relative responsibility. However, it is also likely that persons who exercise a
supervisory or managerial role in the commission of an offense tend to profit
more from it and present a greater danger to the public and/or are more likely to
recidivate. The Commission’s intent is that this adjustment should increase with both the
size of the organization and the degree of the defendant’s responsibility.
U.S.S.G. § 3B1.1 (emphasis added)
1. Size and Scope of Criminal Organization
U.S.S.G. § 3B1.1 directs the district court to increase a defendant’s offense level
“[i]f the defendant was an organizer or leader of a criminal activity that involved five or
more participants....” United States v. Cooper, 767 F.3d 721, 733 (7th Cir. 2014) cert. denied,
135 S. Ct. 1015, 190 L. Ed. 2d 884 (2015) and cert. denied sub nom. McDowell v. United States,
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135 S. Ct. 1016, 190 L. Ed. 2d 884 (2015). Undoubtedly, the criminal organization here
involved tens of thousands of participants, each contributing the success of the widely
extensive global criminal enterprise.
2. Defendant’s Role in the Organization
In determining whether the defendant held a leadership or organizational role,
the district court should consider, among other things, “the exercise of decision making
authority, the nature of participation in the commission of the offense, ... the degree of
participation in planning or organizing the offense, ... and the degree of control and
authority exercised over others.” § 3B1.1 cmt. n. 4; United States v. Reynolds, 714 F.3d
1039, 1043 (7th Cir. 2013), United States v. Robertson, 662 F.3d 871, 877 (7th Cir. 2011). “The
central concern of § 3B1.1 is the defendant’s relative responsibility for the commission of
the offense.” United States v. Vasquez, 673 F.3d 680, 685 (7th Cir. 2012) (quoting United
States v. Mendoza, 576 F.3d 711, 717 (7th Cir. 2009)).
The United States will present evidence of postings/messages the defendant
made to members promoting their status, thereby giving them more access to the fruits
of the organization. (Ex. 1-2, 3-4) The evidence will also show that the defendant
recruited and directed “producers” to share their own material with the members of the
community, increasing the volume and quality of child pornography material available
to the criminal enterprise. (Ex. 5-7, 9) In addition, the defendant warned members about
how to maintain their anonymity and security ensuring the success of the criminal
organization. (Ex. 7, 8) Further, the defendant warned members who violated the rules
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of possible reprimand, exhibiting his authority. (Ex. 10,11, 12) The defendant was
integral in the success of the criminal enterprise. He played a prominent role in
recruiting, directing and ensuring the success of this extensive operation. See United
States v. Herrera, 878 F.2d 997, 1000 (7th Cir. 1989) (“Organizers and leaders of criminal
activity play an important role in the planning, developing, directing, and success of the
criminal activity. Thus, organizers and leaders generally are deemed more culpable than
mere managers or supervisors.”).
While there were certainly others on the administrative team that were higher in
the hierarchy than the defendant, that is not the end of the court’s analysis. “Although
the nature and purposes of the enhancement certainly require the defendant to have
played a leading role in the offense, he need not literally have been the boss of his
cohorts in order to qualify for the enhancement, for a leader can influence others through
indirect as well as direct means.” United States v. Wasz, 450 F.3d 720, 729-30 (7th Cir.
2006). Hoff clearly directed and controlled other members’ actions and enforced rules to
advance the goals of the conspiracy.
The organization at issue had over 29,000 members. That included one head
administrator, four site administrators, and eight co-administrators (including Hoff and
three of Hoff’s co-defendants). While Hoff admits he had control and authority over the
members of the conspiracy, he wants the Court to focus solely on the fact that there were
five others out of over 29,000 who had what he claims to be more authority than he did.
Yet, his argument ignores the extensive nature of this conspiracy and is inconsistent with
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the law in this circuit. United States v. Cooper, 767 F.3d at 732 (finding the four-level,
rather than two-level enhancement applied because the defendant “exercised decision
making authority over the drug operation, gave instructions to other participants, and
resolved consumer disputes”); United States v. Jones, 763 F.3d 777, 815 (7th Cir. 2014)
vacated sub nom. United States v. Drake, 774 F.3d 1104 (7th Cir. 2014) and cert. denied sub
nom. Young v. United States, 135 S. Ct. 2068, 191 L. Ed. 2d 969 (2015) (rejecting the
defendant’s argument that the four-level enhancement should not apply because he was
a mere “buyer and seller of drugs in a large-scale conspiracy” but “did not have any ‘real
or direct influence’ over other members in the conspiracy”); United States v. Kennedy, No.
12 CR 284, 2014 WL 2742798, at *9 (N.D. Ill. June 12, 2014) (even if other participants
were higher in the hierarchy of the organization, the defendant could still receive a
four-level increase, “as there can be more than one organizer or leader”); United States v.
Williams, 250 F. App'x 725, 730 (7th Cir. 2007) (finding the four-level enhancement
applied to defendant who “recruited accomplices” to participate in “sex parties,” where
they created sexually explicit photos and videos of minors, some of which he posted on
his website).
The § 3B1.1(a) enhancement has been upheld in contexts similar to this case. In
United States v. Tagore, 158 F.3d 1124 (10th Cir. 1998), the Tenth Circuit upheld the
imposition of a § 3B1.1(a) enhancement regarding a defendant who was a member of an
on-line “chat room” used by members including that defendant to “discuss child
pornography” and to “trade digital image files via computer.” 158 F.3d at 1126-27.
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The Tenth Circuit found that the defendant acted at least as an organizer of the
conspiracy in part because he “operated an important ftp site through which he
coordinated distribution of the members’ pornography and provided members with
copies of previously distributed pornography,” and “coordinated approval of new chat
room members,” all of which made his role “critical to the success of the organization.”
Id. at 1127.
In United States v. Reedy, the Fifth Circuit upheld the application of a § 3B1.1(a)
enhancement involving a “sophisticated, international child pornography scheme.”
304 F.3d 358, 370-371 (5th Cir. 2002). The Court noted in that case that the criminal
activity itself “involved at least five knowing participants . . . [engaged in] the
transportation, for remuneration, of child pornography all over the world via the
Internet.” Id. The Reedy Court found that the defendant “actively recruited Webmasters
to utilize” the service and “determined whether the Webmaster would be cut off from
the system.” Id.
Similarly in United States v. McGrath, No. 8:12CR422, 2014 WL 351975, at *7 (D.
Neb. Jan. 31, 2014), the court found that defendant qualified as a leader or organizer
under U.S.S.G. § 3B1.1(a), for child pornography websites he maintained, administered
and participated in. Hoff’s extensive involvement in the Website parallels the factors the
Tenth and Fifth Circuits and District of Nebraska found sufficient to support the
§ 3B1.1(a) enhancement in Tagore, Reedy and McGrath.

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Hoff did everything necessary for the website to operate and succeed as a
community in which he and other users could sexually exploit children online.
Accordingly, the § 3B1.1 enhancement is amply supported.
B.

The Defendant’s Objection – Use of Computer Enhancement

Hoff objects to the use of computer enhancement under U.S.S.G § 2.6(b)(4),
arguing that while the enhancement is factually supported by the evidence, this Court
should ignore the enhancement on policy grounds because the offense could not have
been committed without a computer. This argument lacks merit.
Hoff argues that because a large proportion of defendants receive the
enhancement for use of a computer, it is all but inherent to the crime of conviction.
There is significant irony to Hoff’s claim. This enhancement was enacted to curb the
explosion of child pornography on the internet; the fact that internet pornography is so
prevalent is not a basis to reduce penalties. Indeed, there is no other area of criminal
law where, when severe crimes become more common, the penalties are reduced.
Therefore, this Court should reject the defendant’s claim.
When penalties for child pornography were first established, they were directed
to the receipt and distribution of child pornography via the mails. By the mid 1980’s,
law enforcement could confidently assert that it had the resources to address the
distribution of child pornography and believed it to be on the decline. Pornography
distribution over the internet, however, emerged as its primary concern. S. Rep. 99-537
at 44; H.R. Rep. 99-910 at 4-5; see also United States v. Williams, 553 U.S. 285, 306 (2008)
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(“child pornography harms and debases the most defenseless of our citizens. Both the
State and Federal Governments have sought to suppress it for many years, only to find
it proliferating through the new medium of the Internet.”).
In 1995, Congress observed this emerging trend, finding “that as the use of
computers and the use of electronic communications increase for people in business and
personal use, it has, unfortunately, also increased for criminal use, including the sale of
pornographic materials.” 141 Cong.Rec. H4122-01 at H4123. As a result, Congress
sought not only to toughen penalties for child pornography and child exploitation, but
also to address the impact of the rise of internet usage on these crimes. Id. It therefore
enacted the Sex Crimes Against Children Prevention Act of 1995 (SCACPA), Pub. L.
104-71, directing the Sentencing Commission to raise the Base Offense Level and to add
an enhancement in cases under 18 U.S.C. § 2251(c)(1)(A) or § 2252(a)(1)-(3) where a
computer was used to “transmit the notice of” or “transport or ship” the images. H.R.
REP. 104-90. Congress provided ample justification for application of the enhancement
not only to distribution, but also to receipt and possession. While the Commission has
subsequently suggested further refinements to the application of this enhancement,
based on the greater impact of a large-scale distributor of pornography versus someone
who downloaded pornography for his own use, Congress provided reasonable

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justification for applying the enhancement to any use of a computer, particularly
emphasizing the difficulty of detecting consumption of child pornography. 2
“Distributing child pornography through computers is particularly harmful
because it can reach an almost limitless audience. Because of its wide dissemination and
instantaneous transmission, computer-assisted trafficking is also more difficult for law
enforcement officials to investigate and prosecute. Additionally, the increasing use of
computers to transmit child pornography substantially increases the likelihood that this
material will be viewed by, and thus harm, children.” United States v. Lebovitz, 401 F.3d
1263, 1271 (11th Cir. 2005)(quoting H.R.Rep. No. 104-90, at 3-4 (1995), as reprinted in
Senator Grassley specifically spoke about the need to make penalties for
various violations of child pornography statutes stronger when a computer was used:
2

Computers are now the preferred business forum for child pornographers.
Due to modern technology, predatory pedophiles sell, purchase and swap
the most vile depictions of children engaged in the most outrageous types
of sexual conduct.
Simply put, child pornography on computers is dangerous and must be
stopped. In the past, whenever State or Federal law enforcement agents
arrested a child pornographer, or ring of child pornographers, they seized
and then destroyed the child pornography. This kept child pornography
out of the hands of child molesters and preserved the privacy of the
children who had been so callously exploited. But now, because of digital
computer technology, it is nearly impossible to actually destroy child
pornography. That means there will be more child pornography for child
molesters and less privacy for abused children. We in Congress must do
something. H.R. 1240 and the Grassley-Hatch-Thurmond amendment
would discourage child pornographers from using computers to trade in
child pornography. And when the U.S. Sentencing Commission reports to
us this fall on how computer child pornographers are being punished, I
will take a close look to see if there is anything the Senate can do to
provide even more protection to children.
141 Cong. Rec. S5509-02.
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1995 U.S.C.C.A.N. 759, 760-61). Thus, the enhancement for use of a computer aims at
punishing a distinct harm beyond the mere distribution of child pornography, and
application of this enhancement does not result in double-counting. United States v.
Tenuto, 593 F.3d 695, 698-99 (7th Cir. 2010). Moreover, the use of a computer is not an
element of the crime and the offense could be committed without the use of a computer,
such as by mail. Id.
Similarly here, the elements of Engaging in a Child Exploitation Enterprise do
not require that the defendant use a computer to commit the crime. “Although using a
computer may be typical of engaging in a child exploitation crime in the modern era,
the crime can be committed without using a computer, i.e., in running a prostitution
ring.” United States v. McGrath, No. 8:12CR422, 2014 WL 351975, at *7; see e.g. United
States v. Daniels, 653 F.3d 399 (6th Cir. 2011) (prosecution under 2252A(g) for
prostitution ring involving minors).
Most importantly, the use of a computer enhancement should apply under the
unique circumstances of this case. Hoff and his confederates used computers and the
Internet in a highly sophisticated manner to advertise and distribute child pornography
to a vast, global market. The web server was set up as a Tor hidden service in order to
make it harder to detect by law enforcement. Hoff and his confederates used Tor
network computers to access the site, and to access and distribute child pornography,
from their personal computers, while protecting their identity. Child pornography
images and videos were required to be hosted on computer servers that site
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administrators such as Hoff identified as acceptably secure. As a co-administrator, Hoff
enforced site rules and procedures proscribed how its members were to use computers
to prevent law enforcement detection and interdiction. Accordingly, looking not just at
the fact of computer use, but the sophisticated way in which Hoff used computers to
promote and advance the goals of a massive criminal enterprise, the United States
agrees with the assessment in the PSR that the use of a computer in this case allowed
the criminal enterprise to maintain growth and anonymity and ensured its continued
success. Therefore, the enhancement is appropriately applied in this case.

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III.

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CONCLUSION
For the reasons stated above, the United States respectfully submits that the

Court should properly apply a four-level guideline enhancement pursuant to U.S.S.G.
§ 3B1.1(a) and the two-level enhancement pursuant to U.S.S.G. § 2.6(b)(4).
Respectfully submitted,
JAMES A. LEWIS
UNITED STATES ATTORNEY
s/Elly M. Peirson
Elly M. Peirson, IL Bar No. 6298075
Assistant United States Attorney
201 South Vine Street, Suite 226
Urbana, Illinois 61802
Telephone: (217) 373-5875
Fax: (217) 373-5891
elly.peirson@usdoj.gov
s/Keith A. Becker
Keith A. Becker, NY Bar No. 4287967
Trial Attorney, Child Exploitation and
Obscenity Section
Department of Justice, Criminal Division
1400 New York Ave. NW, 6th Floor
Washington, DC 20530
Telephone: (202) 305-4104
keith.becker@usdoj.gov

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CERTIFICATE OF SERVICE
I hereby certify that on March 10, 2016, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which will send notification of such
filing to the following:
Elisabeth R. Pollock, Esq.
Assistant Federal Public Defender
300 West Main Street
Urbana, Illinois 61801

s/Elly M. Peirson
Elly M. Peirson, IL Bar No. 6298075
Assistant United States Attorney
201 South Vine Street, Suite 226
Urbana, Illinois 61802
Telephone: (217) 373-5875
Fax: (217) 373-5891
elly.peirson@usdoj.gov

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