15-2276-cr
United States v. Sawyer




          United States Court of Appeals
                                  for the
                          Second Circuit
                             August Term, 2017
                           Docket No. 15-2276-cr


                     THE UNITED STATES OF AMERICA,

                                                 Appellee,

                                     v.

                              JESSE SAWYER,

                                                 Defendant-Appellant.


                           Argued April 12, 2018
                           Decided June 19, 2018



Before:
    JACOBS, POOLER, Circuit Judges, CRAWFORD, District Judge.*

   Appeal from a judgment of the United States District Court for the
Northern District of New York (D’Agostino, J.) imposing a sentence of
300 months of imprisonment for the offenses of producing child
pornography and receiving child pornography. This court previously
vacated as substantively unreasonable a sentence of 360 months of
imprisonment for the same offenses, identifying specific deficiencies in
the district court’s analysis. The district court did not sufficiently




*Judge Geoffrey W. Crawford, United States District Court for the District of
Vermont, sitting by designation.




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address those deficiencies on remand and suggested that it would have
difficulty putting aside its previously-expressed views.

   VACATED AND REMANDED FOR RESENTENCING BEFORE A DIFFERENT
   JUDGE.

   Judge Jacobs dissents in a separate opinion.

              BRUCE R. BRYAN, Syracuse, New York, for Defendant-
                Appellant.

              STEVEN D. CLYMER, Assistant United States Attorney
                 (Lisa M. Fletcher and Michael D. Gadarian, Assistant
                 United States Attorneys, on the brief), of counsel, for
                 Grant C. Jaquith, United States Attorney for the
                 Northern District of New York, Syracuse, New York,
                 for Appellee.

GEOFFREY W. CRAWFORD, District Judge:

   This case returns on a second appeal following resentencing.

Because we conclude that the district court did not follow this panel’s

prior mandate, we vacate the sentence for the second time and order

resentencing before a different judge.


   Background


   In 2014, defendant Jesse Sawyer pled guilty to two counts of sexual

exploitation of children in violation of 18 U.S.C. § 2251(a) and one

count of receipt of child pornography in violation of 18 U.S.C. §§

2252A(a)(2)(A) and 2256(8)(A). The sexual exploitation charges arose

out of approximately 30 cellphone photos taken by Sawyer of two




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young girls, aged 4 and 6 at the time of the offenses. The girls had

close relationships with Sawyer. The photos depicted the children’s

genitals. Sawyer kept the photos and there was no evidence that he

took any steps to distribute them to third parties. The count of receipt

of child pornography concerned images which Sawyer downloaded from

the Internet.


   Each of the sexual exploitation charges carried a fifteen year

mandatory minimum sentence and a maximum of 30 years. See 18

U.S.C. § 2251(e). The receipt of child pornography count carried a

mandatory minimum sentence of five years and a maximum of 20

years. See 18 U.S.C. § 2252A(b)(1). The guideline range for the three

sentences was the combined maximum of 80 years. See United States

Sentencing Guidelines Manual (“USSG”) § 5G1.1(a) (“Where the

statutorily authorized maximum sentence is less than the minimum of

the applicable guideline range, the statutorily authorized maximum

sentence shall be the guideline sentence.”) In the absence of these

statutory limitations, the guidelines would have called for a life

sentence. See USSG § 2G2.1.




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   The Original Sentencing


   The presentence report and the defendant’s sentencing

memorandum described Sawyer’s personal history as a victim himself

of childhood sexual abuse. He was subjected to severe abuse, including

rape, as a small boy at the hands of men and women. At the first

sentencing, the judge described the defendant’s childhood as “horrid

[and] nightmarish” and marked by “a childhood that never was” and

“incredible sadness.” Transcript of Sentencing, July 7, 2015, at 30–31.

By the age of 7, he had been victimized sexually. He witnessed

prostitution and drug use in his home. Before the age of 10, he was

introduced to drugs and alcohol. The judge noted that a psychologist

retained by the defense described Sawyer as a moderate to high risk to

reoffend. She found that he presented a significant danger to the

community because he had “an inadequate and distorted perception of

rape and child molestation.” Id. at 32. She expressed great concern for

the violation of trust and victimization of the two girls. She stated, “I

can’t excuse what you did. I take into consideration your life but I can’t

excuse that darkness in your heart and soul that made you prey upon

two innocent children.” Id. at 35.


   The original sentence was 15 years, consecutive, on each of the

child exploitation counts and five years, concurrent, on the receipt of



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child pornography count, for a total effective sentence of 30 years of

imprisonment.


   The First Appeal


   On appeal, Sawyer contended that his sentence was both

procedurally and substantively unreasonable. We rejected the claims of

procedural unreasonableness. United States v. Sawyer, 672 F. App’x

63, 64–65 (2d Cir. 2016) (summary order). We concluded, however, that

the 30-year sentence was substantively unreasonable. Id. at 65–66. It

was not justified by concerns of public protection because Sawyer had

no history of sexual assault with these victims or other children, and

there was no specific evidence of a risk of such behavior in the future.

While Sawyer violated both children by exposing them to the camera

and touching them in the process, there was no evidence—and the

government does not suggest—that he engaged in penetrative sexual

assault in any form. A 30-year sentence would have been appropriate

for “extreme and heinous criminal behavior” and the conduct in this

case did not rise to such a level. Id. at 66.


   In remanding the case for resentencing, we also identified a specific

shortcoming in the district court’s consideration of the sentencing

factors set out at 18 U.S.C. § 3553(a). We noted that “the district court




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clearly failed to give appropriate weight to a factor listed in Section

3553(a) that should have mitigated the sentence substantially: the

history and characteristics of the defendant . . . . Particularly given

Sawyer’s scant criminal history (he was scored within the Criminal

History Category of I), the deplorable conditions of his childhood

should have militated in favor of a sentence less severe than the one

imposed.” Sawyer, 672 F. App’x at 67. We concluded that the

defendant’s own extraordinary history of childhood abuse and the

expert testimony that it contributed to the commission of the offense

justified “not just a departure from the Guidelines, but a significant

one indeed.” Id. We vacated the sentence and remanded for “imposition

of a new sentence that comports with this opinion.” Id.


    The Second Sentence


    The district court held a de novo sentencing hearing on July 7,

2017, and reduced the total sentence from 30 to 25 years.1 The judge’s

sentencing remarks identify Sawyer’s good conduct in prison following

the first sentencing as the basis for the five year reduction. The judge




1 The second sentence was 180 months each on Counts One and Two,
consecutive for 120 months and concurrent for 60 for a total of 300 months or
25 years. Count Three remained a concurrent sentence of 60 months.




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did not alter her sentence to reflect the direction in this panel’s

mandate. She stated:

       On the mandate, the issue, failure to afford sufficient weight to the
       way you were raised in determining your sentence, looking at the fact
       that I departed by 50 years from the [80 year] guideline range, I still
       can’t say in good conscience that my sentence at that time was
       substantively unreasonable. I would be surrendering the conviction of
       what I did.

Transcript of Sentencing, July 7, 2017 (“Resentencing Tr.”) at 34. The

judge explained that she remained persuaded, in light of Sawyer’s

childhood abuse and the findings of the defense psychologist, that

“because of the way you were raised, you do continue to be a clear and

present threat to society and specifically to children.” Id. at 37. She

reviewed at length the basis for her original sentence. She stated,

“[a]lthough the Court of Appeals disagreed, I did feel that I fully

considered a multitude of factors in imposing the prior sentence of 30

years. I still believe that sentence was an appropriate one and is

sufficient but not greater than necessary to meet the goals of

sentencing.” Id. at 40. In closing, the judge indicated that if a further

remand became necessary, for reasons of judicial economy, the case

would be best sent to a different judge.




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   Scope of Review


   “In sentencing, as in other areas, district judges at times make

mistakes that are substantive. At times, they will impose sentences

that are unreasonable. Circuit courts exist to correct such mistakes

when they occur.” Rita v. United States, 551 U.S. 338, 354 (2007). As a

reviewing court, we accord great latitude to the experience and

judgment of the sentencing court, but we retain authority to vacate

sentences which are unreasonable in length or in some other way fail

to meet the requirements of 18 U.S.C. § 3553.


   The mandate rule, a component of the law of the case doctrine,

requires district courts to comply with circuit court mandates in

proceedings on remand. See Burrell v. United States, 467 F.3d 160, 165

(2d Cir. 2006). Issues implicitly or explicitly decided on appeal are not

open for contrary ruling on remand. The district court retains

authority over issues not addressed on appeal, but where an appellate

court has resolved an issue, the district court is not empowered to

ignore or reject the appellate court’s disposition of the issue.


   Discussion


   When we first heard this case on appeal, we ruled that a 30-year

sentence was substantively unreasonable in light of the circumstances




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of the case. See Sawyer, 672 F. App’x at 67. The substance of our prior

ruling is not at issue in this appeal, and we need not recapitulate our

earlier summary order in full detail here. It suffices to restate in brief

the two related shortcomings we identified in the first sentence: (1) the

district court’s failure to give sufficient downward weight to the effect

of the severe sexual abuse Sawyer endured at home throughout his

childhood, and (2) the district court’s overreliance on the factor of

Sawyer’s danger to the community.


   An extraordinary history of familial sexual abuse during childhood

has long been recognized as a potential basis for downward departure.

See United States v. Brady, 417 F.3d 326, 333 (2d Cir. 2005) (“[I]n

extraordinary circumstances a downward departure may be warranted

on the ground that ‘extreme childhood abuse caused mental and

emotional conditions that contributed to the defendant’s commission of

the offense.’”) (quoting United States v. Rivera, 192 F.3d 81, 85 (2d Cir.

1999)). Neither the district court nor this court had any difficulty

recognizing the horrific and extraordinary nature of the childhood

abuse Sawyer suffered. See Sawyer, 672 F. App’x at 67.


   In imposing a 30-year sentence, the district court also

misapprehended the danger posed to the community by Sawyer.

Sawyer produced a comparatively small number of images, and there



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was no evidence at sentencing that he had disseminated child

pornography to others or had sexual contact with any children beyond

the touching of the inner thigh. The danger posed to the community by

such an individual is assuredly less than that posed by someone who

has actually sexually assaulted children. The 30-year sentence in this

case flattened the real and meaningful distinction between Sawyer and

other child abusers who have shown themselves to be greater threats.

Id. at 66; see United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010);

compare, e.g., United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en

banc) (vacating a 210-month sentence and ordering the imposition of a

30-year sentence on a defendant who “raped, sodomized, and sexually

tortured fifty or more little girls, some as young as four years of age, on

many occasions over a four- or five-year period” and “scripted, cast,

starred in, produced, and distributed worldwide some of the most

graphic and disturbing child pornography that has ever turned up on

the internet.”).


   Moreover, when the district court discussed the examining

psychologist’s mention of Sawyer’s moderate to high risk to reoffend,

Resentencing Tr. at 259, it failed to take note of that same

psychologist’s view that Sawyer’s “risk would be reduced if he is able to

complete a sex offender treatment program.” App’x at 106. The




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psychologist noted that Sawyer had substantial untreated trauma and,

given that he “never witnessed a healthy parenting experience,” had

his “psychological development arrested at an early age.” Id. He “is

motivated to stay drug and alcohol free” and is “remorseful, guilt

ridden and self-loathing.” Id. This all suggests that Sawyer’s risk of

reoffending depends largely on his access to treatment.


   We vacated the sentence and remanded “for imposition of a new

sentence that comports with this opinion.” Sawyer, 672 F. App’x at 67.

We directed the district court to impose a new sentence that included a

significant downward departure reflecting Sawyer’s childhood history.

We also called for a reassessment of Sawyer’s risk to the community.


   The precise magnitude of the downward departures to be assessed

on the basis of Sawyer’s extraordinary history and risk to the

community were left to be determined by the district court. But our

mandate required some downward departure on the basis of Sawyer’s

history, and some downward departure based on a reassessment of the

danger posed by Sawyer. These were issues we explicitly addressed on

appeal, and the mandate rule compelled the district court to execute

our directions.




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   On resentencing, the district court identified Sawyer’s good conduct

in prison since the original sentencing as a basis for a five-year

reduction of the sentence, and imposed a sentence of 25 years of

imprisonment. The district court ordered no downward departure on

either of the grounds specifically identified in our summary order as

grounds for significant downward departures. It thereby failed to

comply with the mandate rule. Its sentence, imposed in violation of the

mandate rule, cannot stand.


   The reduction of the sentence from 30 years to 25 years for a reason

not available at the time of the original sentencing did not satisfy our

prior mandate. While the total sentence was shortened, the errors

identified in our original summary order remained uncorrected. It may

well be that Sawyer’s good conduct in prison warrants an additional

downward departure. Sawyer’s good conduct might also support a

conclusion that the risk to the community caused by his untreated

trauma and the lack of moral guidance from his childhood can be

significantly mitigated via rehabilitation. It was entirely appropriate

for the district court to consider Sawyer’s good conduct, and it could

properly have done so in addition to, not instead of, addressing the

errors we identified.




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   In reviewing the second sentencing, we do not question the good

faith of the district judge in responding to a serious offense in a

manner which she believed would best protect the victims and the

community. Crimes involving the sexual abuse of children, especially

very young children as in this case, are appropriately the subject of

indignation and revulsion. But every federal sentence is potentially

subject to review for reasonableness, including sentences for crimes

which are deeply offensive. Where an appellate court determines that

certain deficiencies render a sentence substantively unreasonable, a

district court must correct those deficiencies on remand, even if the

district court judge disagrees with the appellate court’s determination.


   “Three considerations . . . are useful in deciding whether to reassign

a case on remand: (1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty in putting out of

his or her mind previously-expressed views or findings determined to

be erroneous, (2) whether reassignment is advisable to preserve the

appearance of justice, and (3) whether reassignment would entail

waste and duplication out of proportion to any gain in preserving the

appearance of fairness.” United States v. DeMott, 513 F.3d 55, 59 (2d

Cir. 2008) (quotation marks omitted). We have previously determined

that “[h]aving reimposed an identical sentence after the first remand,




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the district judge may reasonably be expected to have substantial

difficulty ignoring his previous views during a third sentencing

proceeding.” Id. The same reasoning favors reassignment in this case,

where the district judge has noted on the record her continuing

disagreement with this court and has informed us that “it would

probably be better for judicial economy if another judge sentence for a

third time.” Resentencing Tr. at 53.


   The sentence imposed on July 7, 2017 is VACATED, and this

matter is REMANDED for resentencing. The clerk of the United

States District Court for the Northern District of New York is

respectfully directed to assign the matter to a different judge for

resentencing.




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DENNIS JACOBS, Circuit Judge, dissenting:


   I respectfully dissent.


   The law of the case is that a 30-year sentence is substantively

unreasonable. Although Sawyer argues now, after remand, that 25

years is also substantively unreasonable, the single issue on this

appeal is the district court’s compliance (or not) with the mandate of

our summary order.


   In terms, the mandate directed the court to re-sentence after

reconsideration of Sawyer’s horrible upbringing and his potential

danger to the community. At resentencing, the district judge concluded

in effect that Sawyer’s horrible upbringing had so warped his psyche

that he fails to grasp the difference between sex between adults and

sex with a child—from which the district judge drew the available

inference that Sawyer is likely to remain a threat to the community for

a long long time. The district judge thus registered disagreement with

our summary order, but nevertheless reduced the sentence by 60

months to reflect his rehabilitation in prison, a reduction that is

undoubtedly substantial.


   I would affirm for the following reasons:




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   1. It is not unheard of for a district judge to disagree with an

appellate ruling. But it is not necessary that a district judge should

agree with an appellate ruling, or endorse it. The mandate rule

“compels compliance on remand with the dictates of the superior

court,” not endorsement. United States v. Ben Zvi, 242 F.3d 89, 95 (2d

Cir. 2001). We ordered a substantial sentence reduction; it was

reduced; it was reduced substantially; and the majority opinion is

unwilling to find it substantively unreasonable.


   2. The district judge’s decision to reduce the sentence on a stated

ground other than the ones specified in our mandate was arrived at

after weighing the two variables we identified—upbringing and

dangerousness—and after finding that the one intensifies the other. I

take this to be compliance; it is conscientious and thorough, albeit (in

my view) wrong. An appellate mandate to resentence forecloses

reconsideration of the merits of the conviction but does not foreclose a

de novo balancing of the discretionary factors. See United States v.

Cavera, 550 F.3d 180, 188, 196 (2d Cir. 2008) (en banc); Gall v. United

States, 552 U.S. 38, 50 (2007); see also Resentencing Tr. at 11–12.


   Moreover, this sentence reduction for rehabilitation does reflect

(implicitly) a reduced assessment of danger to the community. Since

danger to the community drove the 30-year sentence, it makes sense to



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reduce it for rehabilitation only if rehabilitation has in some measure

mitigated that danger. It surely would have made little sense to reduce

it solely because (as the district judge observed) Sawyer performed

admirably in his prison coursework. Being prison valedictorian does

not logically bear on one’s propensity to produce child pornography.


   So I think it clear that the new sentence would have been deemed

compliant with our mandate if the district judge had spoken other

words to justify the reduction. I decline to remand (to this judge or

another one) in order to script other reasons for doing what was in fact

ordered. This remand is provoked by the judge’s candor and

transparency rather than by her ruling itself. It all comes down to who

is charged with making the ultimate sentencing decision. And since no

one knows what this defendant will be like in a decade or two, it comes

down to who is assigned the power to err.


   3. In decrying the 25-year sentence, the majority opinion observes

(fairly) that this case is not the most heinous or egregious on record. At

the same time, however, this is not a case such as United States v.

Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843

F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed

solely for looking at images created by others, and in which any harm

to a child was inflicted at one or more removes. This defendant was



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hands-on.1 He produced the pornography, and he used a 4-year-old and

a 6-year-old to do it. For these acts, a 25-year sentence is not a

shocking departure from sentences routinely imposed in federal courts

for comparable offenses2—especially considering that the mandatory

minimum is fifteen. The sentence is barbaric without being all that

unusual.


    That said, I ultimately agree with the majority opinion that

sentencing in this case would benefit from further review and

consideration. For one thing, no account has been taken that danger to

the community is mitigated by lifetime supervised release, and by the

restraints imposed by sex-offender registration. Although I cannot

regret this remand to push for a further reduction, the only question on


1  The majority opinion treats the offense with bland understatement. Thus,
Sawyer is said to have had no sexual contact with any children “beyond the
touching of the inner thigh.” Op. at 10. And Sawyer’s abuse is characterized
as “touching [the children] in the process” of taking photographs, Op. at 5, as
if it were unavoidable.
2 Sentences of 25 years or more are regularly upheld for defendants involved
in the production (as opposed to mere possession) of child pornography. See,
e.g., United States v. Smith, 697 F. App’x 31 (2d Cir. 2017) (summary order)
(affirming sentence as substantively reasonable and distinguishing activities
involved in a production offense from Dorvee); United States v. Rafferty, 529
F. App’x 10, 13 (2d Cir. 2013) (summary order) (upholding 60-year sentence
for production of child pornography); United States v. Ketcham, 507 F. App’x
42 (2d Cir. 2013) (same); United States v. Levy, 385 F. App’x 20, (2d Cir.
2010) (summary order) (upholding 30-year sentence for production of three
images of one child).




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this appeal is whether our mandate was executed. It was doubted, but

it was done.


                                * * *


   The district judge expressly acknowledged that any further remand

should best go to another judge. And a reassignment lies within our

discretion. But it bears observing that the district judge approached

the remand with seriousness and with respect for this Court’s

directives. She wrestled with the problem, and did all that she could do

in good conscience.


   The majority opinion does not provide that this case will return to

this panel after the second remand—which is just as well.




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