    14‐4295
    United States v. Jenkins

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


          At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
    Square, in the City of New York, on the 10th day of May, two thousand nineteen.

    PRESENT:
               AMALYA L. KEARSE,
               DENNIS JACOBS,
               BARRINGTON D. PARKER,
                     Circuit Judges.
    _____________________________________
    UNITED STATES OF AMERICA,

                           Appellee,
             ‐v.‐                                                         14‐4295

    JOSEPH VINCENT JENKINS,

                     Defendant‐Appellant.1
    __________________________________



    1
        The Clerk of Court is directed to amend the caption as stated above.
FOR UNITED STATES OF AMERICA: Rajit S. Dosanjh, Assistant United States
                              Attorney, for Grant C. Jaquith, United
                              States Attorney for the Northern District
                              of New York, Syracuse, NY.

FOR JOSEPH VINCENT JENKINS:              Lisa A. Peebles, Federal Public
                                         Defender, and James P. Egan, Assistant
                                         Federal Public Defender, Office of the
                                         Federal Public Defender, Syracuse, NY.

     Appeal from a judgment of the United States District Court for the
Northern District of New York (Suddaby, Ch.J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED and REMANDED.

       This sentencing appeal comes to us for the second time. In his first
appeal, Joseph Vincent Jenkins challenged the procedural and substantive
reasonableness of his sentence for possession and transportation of child
pornography. We rejected Jenkins’ procedural arguments. See United States v.
Jenkins, 687 F. App’x 71, 73‐74 (2d Cir. 2017). However, a majority concluded
that 225 months of imprisonment was substantively unreasonable because
Jenkins’s conduct could not justify a sentence nearly at the statutory maximum.
See United States v. Jenkins, 854 F.3d 181, 187‐94 (2017) (“Jenkins I”). The panel
also ruled (unanimously) that the conditions of supervised release were
unreasonable. The sentence was vacated, and the case remanded for
resentencing to the United States District Court for the Northern District of New
York (Suddaby, Ch.J.).

      On remand, Jenkins was resentenced principally to 200 months’
imprisonment and 25 years’ supervised release, with slightly modified
conditions. Jenkins appeals this sentence. We assume the parties’ familiarity
with the relevant facts, the procedural history, and the issues on appeal.




                                        2
       Jenkins I rejected as baseless the district court’s conclusion that Jenkins
was a high risk to reoffend; for all the record showed, Jenkins “never spoke to,
much less approached or touched, a child.” Jenkins I, 854 F.3d at 192 (noting
that there was no “record of previous convictions or previous attempts to harm
children”). On remand for resentencing, the district court characterized as an
“assumption” that Jenkins was a first‐time offender; the court was “unwilling to
make such conclusions.” JA 272. The judge cited studies showing that sexual
offenses against children are underreported, and that the actual rate of offenders’
criminally sexually dangerous behavior is higher than the known rate. The
court highlighted personality traits identified in Jenkins’s competency report as
supposedly correlated with sexually dangerous behavior, and observed that
“[e]xisting studies have yielded inconsistent findings concerning the prevalence
rate of sex offending by non‐production offenders.” JA 275‐76.

       These statistics and studies, according to the district court, show that
“caution should be exercised when concluding that someone has never
committed another sex offending behavior”: “[w]ithout polygraph testing, we
will likely never know more about Mr. Jenkins’ offense conduct or his sex
offending history.” JA 275‐76. The district court thus deduced that it was
likely that Jenkins had committed a prior‐‐undetected‐‐sex offense, that he
therefore had a high risk of recidivism, and that a lengthy sentence was justified.
Jenkins argues that the district court’s assumption that he had committed a prior
sex offense was error.

       The offense of conviction is Jenkins’s possession and transport of thumb
drives and laptops containing child pornography. He transported the files for
his own purposes as he traveled to his parents’ vacation home in Canada. There
is no evidence that Jenkins has committed any other sex offense. See Jenkins I,
854 F.3d at 192. At trial, the Government supplied a photo of Jenkins with an
“unidentified young girl,” JA 272, but there is nothing compromising about the
photo, and the girl is Jenkins’s niece. In any event, the district judge did not rely
on this photo, and based the finding that Jenkins had committed prior sexual
offenses almost exclusively on studies and statistics about sexually deviant
behaviors among child pornography offenders. This was error. See United


                                         3
States v. Lee, 818 F.2d 1052, 1057 (2d Cir. 1987) (facts used at sentencing must be
found by a preponderance of the evidence); see also United States v. Cossey, 632
F.3d 82, 88‐89 (2d Cir. 2011) (finding plain error and remanding to a new
district judge for re‐sentencing in a child pornography case when the district
court relied on an unsupported theory, not found in the record evidence, that
the defendant was likely to re‐offend based on his genetic makeup); see also
United States v. Dorvee, 616 F.3d 174, 183‐84 (2d Cir. 2010) (“[W]e are
troubled by the district court’s apparent assumption that [the defendant] was
likely to actually sexually assault a child, a view unsupported by the record
evidence yet one that plainly motivated the court’s perceived need ‘to protect
the public from further crimes of the defendant.’” (citation omitted)); United
States v. Juwa, 508 F.3d 694, 700‐01 (2d Cir. 2007) (determining that if “the
district court sentenced [the defendant] in reliance on the assumption that
[he] had sexually abused a minor on more than one occasion, this reliance
was improper . . . . [because] [f]actual matters considered as a basis for
sentence must have some minimal indicium of reliability beyond mere
allegation” (internal citations and quotation marks omitted)).

        Judges may of course consider statistics and studies to estimate the
likelihood that a defendant will reoffend; but here the district judge used
statistics and studies to presume that Jenkins had actually committed prior
sexual offenses, and relied on that assumption to lengthen Jenkins’s sentence. If
this were right, there would be no more first‐time offenders. Moreover, by
refusing to accept that the record reflected a clean past, the district court
impermissibly placed the burden on Jenkins to prove that he had never
committed another offense, with the suggestion that defendants might do so by
submitting to a polygraph test.

     Accordingly, we conclude that the district court procedurally erred by
presuming that Jenkins must have committed one or more prior sexual offenses,
and by factoring that presumption into Jenkins’s risk of recidivism.

      Jenkins’s sentence must be vacated and the case remanded for a re‐
sentencing. We further exercise our “considerable discretion” to re‐assign the
re‐sentencing to a different district court judge. United States v. Hernandez, 604

                                         4
F.3d 48, 55 (2d Cir. 2010). Judge Suddaby candidly disagreed with our
conclusions in Jenkins I, and therefore “would reasonably be expected upon
remand to have substantial difficulty in putting out of . . . mind
previously‐expressed views or findings determined to be erroneous.” United
States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008) (per curiam) (quotation marks
omitted) (alterations in original).

      Because we conclude that vacatur is required on this ground, we decline to
address Jenkins’s other arguments regarding the procedural and substantive
reasonableness of his sentence and conditions of supervised release. For the
foregoing reasons, we VACATE the judgment and REMAND for a re‐sentencing
before a different district judge.

                        FOR THE COURT:
                        Catherine O’Hagan Wolfe, Clerk of Court




                                       5
