     06-2716-cr
     United States v. Juwa

 1                           UNITED STATES COURT OF APPEALS
 2                               FOR THE SECOND CIRCUIT
 3
 4                            August Term 2007
 5    (Argued: September 5, 2007           Decided: November 28, 2007)
 6                          Docket No. 06-2716-cr
 7   -----------------------------------------------------x
 8   UNITED STATES OF AMERICA,
 9
10               Appellee,
11
12                             -- v. --
13
14   ARTHUR JUWA,
15
16               Defendant-Appellant.
17
18   -----------------------------------------------------x
19
20   B e f o r e :     WALKER, CALABRESI, and SACK, Circuit Judges.

21         Appeal by Defendant Arthur Juwa from a judgment of

22   conviction of one count of possession of child pornography in

23   violation of 18 U.S.C. § 2252A(a)(5)(B), challenging a sentence

24   of 90 months’ imprisonment, entered in the United States District

25   Court for the Southern District of New York (Stephen C. Robinson,

26   Judge).   Because it is unclear to what extent the district court

27   based its sentencing enhancement on unsubstantiated charged

28   conduct, we hold that the sentence was procedurally unreasonable.

29         VACATED AND REMANDED.

30                                              MALVINA NATHANSON, New York,
31                                              N.Y., for Defendant-Appellant.
32
33                                              EUGENE INGOGLIA, Assistant
34                                              United States Attorney, of
35                                              counsel, (Katherine Polk

                                          -1-
1                                           Failla, Assistant United
2                                           States Attorney, of counsel,
3                                           on the brief), for Michael J.
4                                           Garcia, United States Attorney
5                                           for the Southern District of
6                                           New York, New York, N.Y., for
7                                           Appellee.

8    JOHN M. WALKER, JR., Circuit Judge:

9         Defendant-Appellant Arthur Juwa, who pled guilty to one

10   count of possession of child pornography, asks us to vacate and

11   remand his sentence of 90 months’ imprisonment because it was

12   procedurally and substantively unreasonable.     In this case, the

13   recommended Sentencing Guidelines range was 24 to 30 months’

14   imprisonment, which both parties agreed would be reasonable.     The

15   district court (Stephen C. Robinson, Judge), however, imposed a

16   sentence of 90 months based, at least in part, on pending state

17   charges against Juwa for sexual abuse of a minor.     In declaring

18   its reasons for the upward departure, the district court cited

19   the fact that Juwa had engaged in sexual conduct with a minor

20   child “on repeated occasions.”   Yet Juwa had indicated his intent

21   to plead guilty only to one count of felony sexual abuse in the

22   state case.   Because it is unclear to what extent the district

23   court impermissibly based its sentencing enhancement on

24   unsubstantiated charged conduct, we hold that the sentence was

25   procedurally unreasonable, and we vacate and remand for

26   resentencing.

27


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1                                 BACKGROUND

2         On February 16, 2005, while investigating allegations of

3    sexual abuse of a minor in Rockland County, New York, state law

4    enforcement officers conducted a search of Juwa’s home and car.

5    In his car, they found a laptop computer containing images of

6    child pornography, at least one of which had been downloaded from

7    the Internet.   Juwa was charged federally with one count of

8    receiving and distributing images containing child pornography,

9    in violation of 18 U.S.C. § 2252A(a)(2)(B), and one count of

10   possessing child pornography, in violation of 18 U.S.C. §

11   2252A(a)(5)(B).

12        On October 19, 2005, Juwa agreed to plead guilty in federal

13   court to possession of child pornography.     In calculating the

14   applicable Sentencing Guidelines range, the parties and the

15   Probation Office determined that under U.S.S.G. § 2G2.2, Juwa’s

16   base offense level was 18.   A two-level increase for the use of a

17   computer and a three-level decrease for acceptance of

18   responsibility produced an adjusted offense level of 17.     With a

19   Criminal History Category of I, the resulting Guidelines range

20   was 24 to 30 months’ imprisonment.      In the plea agreement, Juwa

21   and the government agreed that they would not seek any downward

22   or upward departures, respectively, and that a sentence within

23   this range would be reasonable.

24        The Presentence Report (“PSR”) prepared by the Probation


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1    Office on December 20, 2005, noted that Juwa’s laptop had been

2    seized during the Rockland County investigation into charges of,

3    inter alia, sexual abuse and sexual misconduct against a child

4    (“the Rockland County case”).    The PSR further noted that Juwa

5    had been arrested on March 22, 2005, on the following state

6    charges: course of sexual conduct against a child in the first

7    degree (one count); criminal sexual act in the first degree (four

8    counts); sexual abuse in the first degree (three counts); and

9    endangering the welfare of a child (one count).    The state

10   indictment alleged that, on various dates between December 25,

11   2001 and December 31, 2004, Juwa had engaged in oral sexual

12   conduct with his nephew, who was eight years old at the time of

13   Juwa’s arrest.    According to the PSR, however, Juwa had not

14   admitted to those allegations.    The Probation Office ultimately

15   recommended a term of 24 months’ imprisonment, at the bottom of

16   the Guidelines range, followed by three years’ supervised

17   release.

18        On January 26, 2006, Juwa appeared before the district court

19   for sentencing.    The district judge indicated that he had

20   received and read defense counsel’s submissions, which included

21   letters in support of Juwa, as well as two “victim impact

22   statements” submitted by Juwa’s nephew and the nephew’s mother

23   through the U.S. Attorney’s Office.    Defense counsel objected to

24   consideration of these letters because Juwa’s nephew was not a


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1    victim of the federal offense.   The district judge stated that he

2    would hear from both the defense and the prosecution, as well as

3    from the nephew and the nephew’s mother.   If he decided to

4    consider the latter’s statements or to consider an upward

5    departure, or both, he would adjourn the sentencing proceeding to

6    give defense counsel an opportunity to respond.

7         After giving all relevant parties a chance to speak, the

8    district judge stated that he would not consider the victim

9    impact statements but that he would consider an upward departure.

10   In particular, he was interested in the status and timeline of

11   the Rockland County case, whether Juwa was going to plead guilty

12   to those charges, and if and when he would be sentenced in that

13   case.   After asking the defense and the government “to contact

14   their corresponding parties in the Rockland County case” and

15   clarify these issues, the district judge adjourned the

16   proceeding.

17        Sentencing resumed on May 9, 2006.    The district judge began

18   by noting that, in the interim, he had received a letter from the

19   government indicating its understanding that the Rockland County

20   case would not be resolved until after Juwa’s federal sentencing;

21   that Juwa intended to plead guilty to one count of felony sexual

22   abuse; and that the anticipated sentence was five years’

23   imprisonment, to run concurrently with his federal sentence.

24   Defense counsel indicated that he had no objections to the


                                      -5-
1    contents of the government’s letter.

2         The defense then asked the district court to impose a

3    sentence within the Guidelines range, citing the nature of the

4    crime and Juwa’s lack of criminal history, and stating that,

5    “apart from the Rockland County matter, there is nothing that

6    would warrant either a departure or stepping outside the

7    guidelines in applying the sentence.”   The district court,

8    however, stated that it could not look past the Rockland County

9    case.   In response, the defense argued that if the Rockland

10   County case was taken into account, the district court should

11   apply U.S.S.G. § 2G2.2(b)(5), which states: “If the defendant

12   engaged in a pattern of activity involving the sexual abuse or

13   exploitation of a minor, increase by 5 levels.”   U.S.S.G. §

14   2G2.2(b)(5).   A five-level increase would result in a Guidelines

15   range of 41 to 51 months.   The defense also acknowledged

16   Application Note 6, which provides for an unspecified upward

17   departure “[i]f the defendant engaged in the sexual abuse or

18   exploitation of a minor at any time (whether or not such abuse or

19   exploitation occurred during the course of the offense or

20   resulted in a conviction for such conduct),” but argued that even

21   under this provision, a five-level increase would be sufficient.

22   U.S.S.G. § 2G2.2 Application Note 6.

23        The district judge then indicated that although he would not

24   consider the disposition of the Rockland County case, he would


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1    consider the underlying misconduct and would sentence “based on

2    the information before me.”   Prior to imposing the sentence, the

3    district judge noted the relevant factors before him, including

4    the recommended Guidelines range, the pending state charges, and

5    the representation that Juwa would plead guilty to one count of

6    felony sexual abuse.   He then discussed the factors that he was

7    directed to consider pursuant to 18 U.S.C. § 3553(a), as well as

8    the upward departure provisions of U.S.S.G. § 2G2.2(b)(5) and

9    Application Note 6.    Regarding the Rockland County conduct, the

10   district judge stated that “[t]his Court is permitted to consider

11   this abuse, even though Mr. Juwa has not yet pled guilty in state

12   court.   Considering this conduct, then, the Court imposes a

13   guidelines sentence of 90 months,” pursuant to Application Note

14   6.

15        In the alternative, the district judge stated that he would

16   impose a non-Guidelines sentence of 90 months, given that there

17   were no restrictions on the type of information a sentencing

18   court could consider in arriving at an appropriate sentence.    But

19   in describing his reasons for imposing this non-Guidelines

20   sentence, the district judge stated that “Mr. Juwa has engaged in

21   sexual conduct with a minor child.     He has done so on repeated

22   occasions.”   In addition to the term of imprisonment, the

23   district judge ordered a three-year term of supervised release

24   and a mandatory special assessment of $100.


                                      -7-
1         Defense counsel objected to the sentence as excessive and

2    pointed out that Juwa had not agreed to plead guilty to every

3    count of the Rockland County indictment.     To this, the district

4    court replied, ”I said he intended to plead to one count. . . .

5    Sexual abuse.”    In the written judgment of conviction, the

6    district court provided the following explanation for imposing a

7    sentence outside the advisory Guidelines range: “The defendant,

8    through his attorney, and the gov’t informed the Court that the

9    defendant was going to enter a plea of guilt to an aggravated

10   sexual assault charge in State Ct.      That charge was for molesting

11   his nephew for 3 years from the ages of . 7-10.”

12        Juwa ultimately pled guilty to count six of the Rockland

13   County indictment (“sexual abuse in the first degree”), in that

14   he “subjected another person who was less than eleven years old .

15   . . to sexual contact on December 25, 2001" in violation of New

16   York Penal Law § 130.65.     This appeal followed.

17                                 DISCUSSION

18        We review a district court’s sentencing determination for

19   reasonableness.     United States v. Booker, 543 U.S. 220, 260-62

20   (2005).   Reasonableness review has both a procedural and a

21   substantive component; it involves “consideration not only of the

22   sentence itself, but also of the procedures employed in arriving

23   at the sentence.”     United States v. Fernandez, 443 F.3d 19, 26

24   (2d Cir. 2006); see also United States v. Rattoballi, 452 F.3d

                                       -8-
1    127, 131-32 (2d Cir. 2006).   “If a sentencing judge committed a

2    procedural error by selecting a sentence in violation of

3    applicable law, and that error is not harmless and is properly

4    preserved . . . for review . . . , the sentence will not be found

5    reasonable.”    United States v. Crosby, 397 F.3d 103, 114 (2d Cir.

6    2005) (citation omitted).

7         Juwa challenges his sentence on both procedural and

8    substantive grounds.    He argues that the district court committed

9    procedural error when it did not adequately explain the reasoning

10   behind its sentence, as required by 18 U.S.C. § 3553(c)(2), and

11   when it relied on a fact concerning Juwa’s other misconduct that

12   had not been established by admission or by a preponderance of

13   the evidence.   Juwa further argues that the sentence was

14   substantively unreasonable in light of his favorable background

15   and the relatively minor nature of his offense.   Because we agree

16   that the sentence was procedurally unreasonable, we need not

17   answer the question of substantive reasonableness.    See id. at

18   114 (“[A] sentence would not be ‘reasonable,’ regardless of

19   length, if legal errors, properly to be considered on appeal, led

20   to its imposition.”).

21   I.   The District Court’s Statement of Reasons

22        Section 3553(c)(2) of Title 18 requires a sentencing judge

23   to state in open court the reasons for imposing a particular

24   sentence.   If the sentence is outside the applicable Guidelines


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1    range, the district court must state its reasons for deviating

2    from the Guidelines “with specificity” in the written order of

3    judgment.   18 U.S.C. § 3553(c)(2).     As we have noted, the writing

4    and specificity requirements serve the important purpose of

5    facilitating effective review in the courts of appeals.      See

6    United States v. Jones, 460 F.3d 191, 197 (2d Cir. 2006) (“[I]t

7    will generally be helpful to the reviewing court . . . to have

8    the judge’s statement of reasons for a sentence outside an

9    applicable guideline conveniently set forth in the written order

10   of judgment and commitment.”).

11        In this case, the district judge discussed in open court the

12   § 3553(a) factors that every sentencing judge must consider,

13   including the nature and circumstances of the offense, the

14   history and characteristics of the defendant, the applicable

15   Guidelines range, and the need for the sentence to serve the

16   goals of retribution, deterrence, and incapacitation.      See 18

17   U.S.C. § 3553(a).   In the written order of judgment, the district

18   court identified the following reasons for imposing a non-

19   Guidelines sentence: “the nature and circumstances of the offense

20   and the history and characteristics of the defendant”; “to

21   reflect the seriousness of the offense, to promote respect for

22   the law, and to provide just punishment for the offense”; “to

23   afford adequate deterrence to criminal conduct”; and “to protect

24   the public from further crimes of the defendant.”     To this point


                                      -10-
1    the district judge’s recitation of the sentencing reasons set

2    forth in § 3553(a) was not objectionable, even though we have

3    stated our preference that the reasons be tied to the facts of

4    the case.   See Rattoballi, 452 F.3d at 133, 138.

5         The problem arose when the district judge discussed the

6    Rockland County conduct that figured into his decision to depart

7    upwardly from the Guidelines.   He stated that he was applying

8    U.S.S.G. § 2G2.2 Application Note 6, which permits an upward

9    departure if the defendant engaged in sexual abuse of a minor at

10   any time.   And twice, after noting Juwa’s sexual misconduct with

11   a minor, the district judge declared, “Considering this conduct,

12   then, the Court imposes a . . . sentence of 90 months.”

13        But there is uncertainty from both the sentencing transcript

14   and the written order surrounding whether and to what extent the

15   district judge based his sentencing enhancement on the assumption

16   that Juwa had engaged in multiple instances of sexual abuse, as

17   opposed to the single instance to which Juwa had anticipated

18   pleading guilty in state court.   Indeed, there is evidence in the

19   record that the district judge was aware that Juwa intended to

20   plead guilty to just one count in the indictment, but there is

21   also evidence that he believed that Juwa had engaged in multiple

22   instances of sexual abuse.   In describing the circumstances

23   relevant to sentencing, the district judge stated:

24        [T]he government has informed me by letter dated February
25        27, 2006, a letter which defense counsel has received and

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1         agrees with, that the defendant’s case in Rockland County is
2         expected to be resolved with a guilty plea by the defendant
3         to one count of felony sexual abuse after my sentencing
4         today.
5    But immediately afterward, he stated, “Mr. Juwa’s counsel has

6    represented to this Court that Mr. Juwa will plead guilty to

7    those charges.”   The district judge later reiterated, “Mr. Juwa

8    has been charged with engaging in sexual conduct with a minor

9    child, and will plead guilty to that offense when he is before

10   another judge.”   But he went on to say, “Mr. Juwa has engaged in

11   sexual conduct with a minor child.    He has done so on repeated

12   occasions.   Considering this conduct, this Court imposes a

13   nonguidelines sentence of 90 months.”   When defense counsel

14   attempted to clarify that Juwa had not agreed to plead to every

15   count in the Rockland County indictment, the district court

16   indicated that it understood: “I said he intended to plead to one

17   count.”   However, in the written statement of reasons, the

18   district judge cited as a reason for his departure the fact that

19   Juwa “was going to enter a plea of guilt to an aggravated sexual

20   assault charge . . . for molesting his nephew for 3 years.”     In

21   fact, consistent with his stated intention, Juwa ultimately pled

22   guilty to just one instance of sexual contact with his nephew, on

23   December 25, 2001.   Thus, it is insufficiently clear whether the

24   district court based its sentence on charged conduct that had

25   neither been sufficiently established nor admitted to by the

26   defendant.   The confusion surrounding the basis for the district


                                    -12-
1    court’s determination rendered the sentence procedurally

2    unreasonable, and a remand is necessary to resolve that

3    uncertainty.

4    II.   Reliance on an Unsubstantiated Fact

5          If, as Juwa argues, the district court sentenced him in

6    reliance on the assumption that Juwa had sexually abused a minor

7    on more than one occasion, this reliance was improper on the

8    record before us.   Because Juwa agreed to admit only to a single

9    incident charged in the Rockland County indictment, and because

10   the district court had ruled out reliance on the oral and written

11   testimony of Juwa’s nephew and the nephew’s mother, the district

12   court, as far as we can tell, was not presented with reliable

13   substantiation for the remaining charges in the state indictment.

14   Under such circumstances, a sentence enhancement based solely on

15   unproven charges in an indictment would be improper.

16         A sentencing court is not limited to considering only

17   evidence of the convicted offense; it may take into account other

18   relevant conduct, see U.S.S.G. § 1B1.3 cmt. (“Conduct that is not

19   formally charged or is not an element of the offense of

20   conviction may enter into the determination of the applicable

21   guideline sentencing range.”), and even acquitted conduct, see

22   United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005); see

23   also Wasman v. United States, 468 U.S. 559, 563 (1984)

24   (describing sentencing court’s discretion to “consider any and


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1    all information that reasonably might bear on the proper sentence

2    for the particular defendant”).

3         Nevertheless, there are distinct limits to this discretion,

4    and they include a defendant’s due process right to be sentenced

5    based on accurate information.    See United States v. Tucker, 404

6    U.S. 443, 447 (1972); see also Townsend v. Burke, 334 U.S. 736,

7    740-41 (1948) (noting that “whether caused by carelessness or

8    design, [it] is inconsistent with due process of law” for a

9    defendant to be sentenced based on assumptions concerning his

10   criminal record that were materially untrue, when the defendant’s

11   sentence had been influenced by other criminal charges to which

12   he had not pled guilty).    As the Third Circuit stated in United

13   States v. Matthews, “[f]actual matters considered as a basis for

14   sentence must have ‘some minimal indicium of reliability beyond

15   mere allegation.’”   773 F.2d 48, 51 (3d Cir. 1985) (quoting

16   United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982)).

17        We have held that facts relevant to sentencing must be found

18   by a preponderance of the evidence.     Vaughn, 430 F.3d at 525;

19   United States v. Concepcion, 983 F.2d 369, 388 (2d Cir. 1992).

20   Here, the district judge applied the upward departure provision

21   of U.S.S.G. § 2G2.2 Application Note 6 in imposing “a guidelines

22   sentence of 90 months.”    In the alternative, he imposed “a

23   nonguidelines sentence of 90 months” based, at least in part, on

24   the Rockland county conduct.    If he imposed this sentence based


                                      -14-
1    on a finding that Juwa had sexually abused a minor on multiple

2    occasions, that finding would have to have been substantiated by

3    a preponderance of the evidence.    There was, however, no evidence

4    of which we are aware to support that finding apart from the

5    charges contained in the state indictment, and a bare-bones

6    indictment, without more, is insufficient to support a factual

7    underpinning for sentencing purposes.

8         It is axiomatic that in a criminal trial “an indictment is

9    not evidence of guilt,” nor may it alter the presumption of

10   innocence with which every defendant is cloaked; it is “only a

11   finding of probable cause that a crime has been committed.”

12   United States v. Romano, 706 F.2d 370, 374 (2d Cir. 1983)

13   (emphasis added).    While the evidentiary standard at sentencing

14   is more relaxed than at trial, and the burden of proof on the

15   government is a preponderance of the evidence and not beyond a

16   reasonable doubt, probable cause is a lower standard than

17   preponderance of the evidence; it “requires only a probability or

18   substantial chance of criminal activity, not an actual showing of

19   such activity.”     United States v. Bakhtiari, 913 F.2d 1053, 1062

20   (2d Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13

21   (1983)).   Moreover, an indictment is not meant to serve an

22   evidentiary function.    Its primary purpose is to “acquaint the

23   defendant with the specific crime with which he is charged,”

24   United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir. 1973)


                                      -15-
1    (internal quotation marks and citation omitted), allow him to

2    prepare his defense, and protect him from double jeopardy, United

3    States v. Doe, 297 F.3d 76, 87 (2d Cir. 2002); see also United

4    States v. Dhinsa, 243 F.3d 635, 667 (2d Cir. 2001) (describing

5    notice function); United States v. D’Anna, 450 F.2d 1201, 1204

6    (2d Cir. 1971) (notice and protection from double jeopardy).

7         We therefore adhere to the prescription that at sentencing,

8    an indictment or a charge within an indictment, standing alone

9    and without independent substantiation, cannot be the basis upon

10   which a criminal punishment is imposed.   Some additional

11   information, whether testimonial or documentary, is needed to

12   provide evidentiary support for the charges and their underlying

13   facts.

14        Given that Juwa intended to plead guilty, and ultimately did

15   plead guilty in state court, to only one instance of sexual

16   abuse, and given the lack of reliable independent information to

17   support the other charges in the state indictment, it was

18   impermissible for the district court to simply assume the

19   multiple charges to be true and to enhance Juwa’s sentence

20   accordingly.   As we have discussed, however, it is unclear from

21   the record whether the district court did rely on the assumption

22   that Juwa had engaged in sexual misconduct on more than one

23   occasion.   Therefore, we remand the case to the district court

24   with instructions to resentence the defendant consistent with


                                    -16-
1   this opinion and to make clear the basis upon which the sentence

2   rests.

3                              CONCLUSION

4        For the foregoing reasons, the judgment of sentence is

5   VACATED and the case is REMANDED for resentencing.

6




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