     14-4295-cr
     United States v. Joseph Vincent Jenkins




1                                              In the
2                  United States Court of Appeals
3                               For the Second Circuit
4                                              ________

5                                       August Term, 2015

6                                         No. 14-4295-cr

7                                UNITED STATES OF AMERICA,
8                                         Appellee,

9                                                v.

10                                  JOSEPH VINCENT JENKINS
11                                    Defendant-Appellant.
12                                         ________

13                   Appeal from the United States District Court
14                      for the Northern District of New York.
15                  No. 11-cr-602 ¯ Glenn T. Suddaby, Chief Judge.
16                                             ________

17                                   Argued: May 18, 2016
18                                   Decided: April 17, 2017
19                                         ________

20               Before: KEARSE, JACOBS, and PARKER, Circuit Judges.
21                                   ________

22         Defendant-appellant Joseph Vincent Jenkins appeals from a
23   judgment of conviction in the United States District Court for the
24   Northern District of New York (Suddaby, Chief Judge). Jenkins was
25   convicted of possession and transportation of child pornography
                                                                           No. 14-4295-cr




1    after he was found with a collection of child pornography on his
2    laptop and thumb drive as he crossed the U.S.-Canada border on his
3    way to a family vacation. The district court sentenced him
4    principally to 225 months in prison followed by 25 years of
5    supervised release. We conclude that this sentence was substantively
6    unreasonable. Accordingly, we vacate this sentence and remand for
7    resentencing.1
8          Judge KEARSE concurs in part and dissents in part in a
9    separate opinion.
10                                ________

11                           DANIEL DEMARIA, Merchant Law Group LLP,
12                           New York, NY, for Defendant-Appellant.

13                           RAJIT S. DOSANJH (Tamara Thomson, on the brief),
14                           Assistant United States Attorneys, for Richard S.
15                           Hartunian, United States Attorney, Northern
16                           District of New York, Syracuse, NY, for Appellee.
17                                       ________

18   BARRINGTON D. PARKER, Circuit Judge:
19         A jury found Joseph Vincent Jenkins guilty of one count of
20   possession of child pornography in violation of 18 U.S.C.
21   § 2252A(a)(5)(B) and one count of transportation of child
22   pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the
23   government’s proof at trial that Jenkins owned a collection of child
24   pornography and brought it across the U.S.-Canada border on the
25   way to a family vacation for his personal viewing.
26         The United States District Court for the Northern District of
27   New York (Glenn T. Suddaby, Chief Judge) imposed concurrent
28   sentences of 120 months for the possession count, the statutory

     1
      A summary order issued concurrently with this opinion affirms the judgment of conviction
     with respect to the remaining issues raised by Jenkins on his appeal.


                                                2
                                                          No. 14-4295-cr




1    maximum, and 225 months for the transportation count, just below
2    the statutory maximum of 240 months. The court also imposed a
3    term of 25 years of supervised release. Jenkins challenges his
4    conviction and the procedural and substantive reasonableness of his
5    sentence.
6           The government’s evidence established that Jenkins, a first
7    time felony offender, maintained a collection of child pornography
8    on a personal computer and thumb drive for personal use. He did
9    not produce or distribute child pornography and did not contact or
10   attempt to contact a minor. He “transported” his images in the
11   technical sense that he brought them on a family vacation that
12   involved his crossing the Canadian border and he was apprehended
13   at the Canadian side. For the reasons that follow, we hold that a
14   sentence of 225 months and 25 years of supervised release is
15   substantively unreasonable. Accordingly, we vacate the sentence
16   and remand for resentencing.


17                            BACKGROUND
18          On May 24, 2009, Jenkins attempted to enter Canada from the
19   United States at the border crossing in Landsdowne, Ontario.
20   Jenkins, who was 39 years old at the time, was traveling alone from
21   his home in Geneva, New York to spend a week with his parents at
22   their summer home in Quebec. Canadian border agents searched his
23   vehicle and discovered a Toshiba laptop, a Compaq laptop, and
24   three USB thumb drives.
25          Jenkins’s “demeanor” prompted the agents to search the
26   devices. After finding child pornography on the Toshiba laptop and
27   on one of the thumb drives, the agents seized all the devices and
28   arrested and subsequently charged him with child pornography
29   offenses under the Canadian Criminal Code.
30        After being released on bail, Jenkins did not appear on his
31   scheduled trial date and the Canadian court issued a bench warrant

                                      3
                                                             No. 14-4295-cr




1    for his arrest. Canadian agents subsequently contacted the U.S.
2    Department of Homeland Security (“DHS”), inquiring whether DHS
3    was interested in information about the case. DHS then commenced
4    an investigation, obtained Jenkins’s electronic devices from
5    Canadian authorities, and proceeded to examine them. This
6    examination confirmed that the devices contained images and
7    videos depicting child pornography. Jenkins was subsequently
8    arrested by U.S. law enforcement officials and charged with
9    possessing and transporting child pornography. The case proceeded
10   to trial, where the government introduced the devices and the
11   images into evidence, and presented both Canadian and DHS
12   officials as witnesses.
13          Jenkins testified at trial, making a number of contentions that
14   turned out to be false. First, he contended that contractors working
15   for his electrical contracting business had frequent access to all areas
16   on his laptops and could take his laptops home. Jenkins denied that
17   the thumb drives were in his truck and asserted that he had never
18   seen them before. Finally, he claimed that he was absent from the
19   Canadian trial because his lawyer there had suggested to him that
20   “you could just not return to Canada if you want to just not deal
21   with the charge.” App. 631. The jury ultimately credited the
22   government’s version of events and returned a guilty verdict on
23   both counts on February 6, 2014.
24          The Probation Office issued its Presentence Investigation
25   Report (“PSR”) in April 2014. Applying United States Sentencing
26   Guideline § 2G2.2 for child pornography offenses, the PSR
27   calculated Jenkins’ base offense level as 22. § 2G2.2(a)(2). The PSR
28   recommended four enhancements: (i) two levels for possessing
29   material involving a prepubescent minor, id. § 2G2.2(b)(2); (ii) four
30   levels for material portraying sadistic or masochistic conduct or
31   other forms of violence, § 2G2.2(b)(4); (iii) two levels because the
32   offenses involved the use of a computer, id. § 2G2.2(b)(6); and (iv)
33   five levels because the offenses involved 600 or more images, id.

                                        4
                                                           No. 14-4295-cr




1    § 2G2.2(b)(7)(D). These enhancements raised Jenkins offense level
2    from 22 to 35. Jenkins received no offense level reductions for
3    acceptance of responsibility. Because Jenkins only had a prior
4    misdemeanor offense, he was found to have a Criminal History
5    Category of I. In addition, at the sentencing hearing, the government
6    sought a two-level enhancement for obstruction of justice
7    contending that Jenkins had offered false exculpatory testimony at
8    trial. See id. § 3C1.1. The district court agreed and applied the
9    enhancement. It also adopted the factual findings and Guidelines
10   recommendations from the PSR. The result was a total offense level
11   of 37, yielding a Guidelines range of 210 to 262 months.
12         The sentencing hearing was a stormy one at which Jenkins, an
13   intemperate, out-of-control pro se litigant, repeatedly clashed with
14   the court. For example, the following colloquy transpired after
15   Jenkins conceded that it was too late for him to retain new counsel,
16   and the court informed Jenkins that the sentencing hearing would
17   nevertheless proceed:
18         THE DEFENDANT:
19         Well, I mean, I've pretty much demanded that -- I don't
20         feel you have any right to sentence me after all these
21         antics and there's a lot of screwing around here and I
22         don't agree with it and I've repeatedly asked Ms.
23         Peebles [Jenkins’s attorney] here to file a petition to
24         have you removed and I think that there's grounds for
25         it. I've been going over submissions the last few weeks
26         and court transcripts. I mean, that's what I want. I'd
27         rather -- I mean, you've set a record that -- I mean, she
28         hasn't done what I've asked her to do. We've been going
29         around for a few months arguing.
30         ...
31         THE COURT:



                                       5
                                                    No. 14-4295-cr




1    No attorney's done what you've asked them to do,
2    according to you, despite being represented by a
3    number of different counselors. You started with Mr.
4    Parry. You referred to him as an idiot and not knowing
5    what he was doing. The Court sent numerous attorneys
6    to meet with you in the jail so you could retain
7    someone. You made derogatory comments about the
8    people that were very well-regarded in this community,
9    legal community, as far as representing federal
10   defendants. Then we provided you with a list of CJA
11   attorneys that are admitted to the Northern District of
12   New York to give you an opportunity to retain
13   somebody. You did retain an Aaron Goldsmith out of
14   New York who represented you at trial and then he
15   requested to be relieved because of his irreconcilable
16   differences with you and not being able to get along
17   with you. And then, you know, the federal public
18   defender's office was assigned by Judge Peebles and has
19   represented you, in this Court's view, in a very capable
20   and competent manner and here we are again.


21   So, sir, you can demand all you want. You can criticize.
22   You can blame everybody else. You can say it's the
23   attorney's fault. But we're at a point, sir, where we're
24   going to proceed with sentencing. You have counsel.
25   You've been represented well and you've had an
26   opportunity to submit everything that you've wanted to
27   to this Court and I've reviewed everything that you
28   submitted, despite its derogatory tone and comments,
29   disrespectful comments to this Court and everybody
30   else that you've had to deal with, sir.




                                6
                                                                                No. 14-4295-cr




1            So, you'll be given a full opportunity to say anything
2            you want. If you're not going to retain somebody,
3            certainly this Court is not going to appoint another
4            attorney to represent you at this point.
5            ...
6            So you can proceed by representing yourself today.
7            That’s up to you, sir, but we’re going to proceed with
8            sentencing.
9    App. 835-37.
10          The district court imposed a sentence of 225 months for the
11   transportation charge and a concurrent sentence of 120 months for
12   the possession charge, the statutory maximum. See 18 U.S.C.
13   §§ 2252A(b)(1) and (2). Judge Suddaby also imposed on Jenkins 25
14   years of extensive conditions of supervised release. Some of them
15   were obviously appropriate but others were unexplained by the
16   sentencing judge and were imposed without regard to the personal
17   characteristics of the defendant and the circumstances of his offense.
18   In view of Jenkins’s age, this sentence effectively meant that Jenkins
19   would be incarcerated and subject to intense government scrutiny
20   for the remainder of his life.2
21          Jenkins was required to register as a sex offender in any state
22   in which he resided or worked. He was required not to “use or
23   possess any computer or any other device with online capabilities, at
24   any location, except at your place of employment, unless you
25   participate in the Computer Restriction and Monitoring Program.”
     2
       As a 44-year-old impecunious white male with a high school education, Jenkins’s life
     expectancy was 76.5 years at the time of his sentencing. See Kenneth D. Kochanek et al., Ctr.
     for Disease Control, U.S. Life Tables, 2014, Nat’l Vital Statistics Rep., June 30, 2016, at 8,
     available at: http://www.cdc.gov/nchs/data/nvsr/nvsr65/nvsr65_04.pdf. Although no one
     knows with any certainty how long Jenkins will live, we do know that, as a statistical matter,
     the life expectancy of an incarcerated person drops 2 years for each year of incarceration. See
     Evelyn J. Patterson, The Dose-Response of Time Served in Prison on Mortality: New York State,
     1989-2003, 103 Am. J. of Pub. Health 523, 526 (2013). Thus Jenkins’s life expectancy is likely
     significantly less than 76.5 years.

                                                   7
                                                              No. 14-4295-cr




1    The Probation Office was further allowed “to conduct periodic,
2    unannounced examinations of any computer equipment you use or
3    possess, limited to all hardware and software related to online use.”
4    Notwithstanding the fact that he had never contacted or attempted
5    to contact any minor, he was forbidden from having “any direct
6    contact with a person under the age of 18 unless it is supervised by a
7    person approved of by the probation officer.” Further, he was
8    forbidden from having any “indirect contact [sic] with a person
9    under the age of 18 through another person or through a device
10   (including a telephone, computer, radio, or other means) unless it is
11   supervised by a person approved by the probation officer.” He was
12   further directed to “reasonably avoid and remove” himself from
13   “situations in which [he has] any other form of contact with a
14   minor.” He was directed “not to be in any area in which persons
15   under the age of 18 are likely to congregate, such as school grounds,
16   child care centers, or playgrounds, without the permission of the
17   probation officer.”
18          Jenkins’s possibility of any post-release employment during
19   the 25-year period was also severely limited by Judge Suddaby.
20   Jenkins was permitted to work only at locations approved by the
21   Probation Office. If his employment involved the use of a computer,
22   Jenkins was required to notify his prospective employer of the nature
23   of his conviction and the fact that his conviction was facilitated by the
24   use of a computer. Finally, Jenkins was effectively forbidden by the
25   district court from using credit cards during his supervised release.
26   Specifically, he was forbidden from incurring charges to his credit
27   cards or from opening additional lines of credit without prior
28   approval from the Probation Office.
29          The district court offered only formulaic reasoning for the
30   period of incarceration and the broad-ranging post-release
31   restrictions it imposed. The court’s reasoning centered on Jenkins’s
32   lack of respect for the law. The district court stated:



                                        8
                                                              No. 14-4295-cr




1            You’ve demonstrated that you have a total lack of
2            respect for the law and disdain for the law. That [is,]
3            in the Court’s view it is without question that, if
4            given the opportunity, you will do exactly what you
5            want to do in any situation and you are a very high
6            risk to reoffend.
7            You attempted to transport thousands of images and
8            videos of child pornography into Canada and then
9            later failed to appear for your Canadian trial. You
10           attempted to evade justice and when you were
11           arrested in the United States, you blamed Canada . . .
12            You have since demonstrated total disregard for the
13           law and a complete lack of respect for this Court and
14           any of the attorneys who have tried to help you.
15   App. 860-61. The district court concluded: “[b]ased on these factors
16   and your large collection of child pornography, the Court has
17   imposed a sentence that reflects the seriousness of your crime, that
18   promotes respect for the law, and that provides you with adequate
19   deterrence from committing further crimes, and that protects the
20   public.” App. 861. Jenkins timely appealed.


21                               DISCUSSION
22          A sentence is substantively unreasonable if it “cannot be
23   located within the range of permissible decisions.” United States v.
24   Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United
25   States v. Rigas, 409 F.3d 208, 298 (2d Cir. 2007)). In determining
26   whether a sentence falls within the permissible range, we “patrol the
27   boundaries of reasonableness,” cognizant of the fact that
28   responsibility for sentencing is placed largely with the district courts.
29   Id. at 191. Our review is limited because the district court is in a
30   different fact finding position, which allows it to interact directly
31   with the defendant, thereby gaining insights that are not always

                                        9
                                                              No. 14-4295-cr




1    conveyed by a transcript. United States v. Broxmeyer, 699 F.3d 265, 289
2    (2d Cir. 2012). Nonetheless, the length of a sentence may, with or
3    without far reaching post-release restrictions, make it excessively
 4   punitive or needlessly harsh. See Rigas, 583 F.3d at 123. Sentences that
5    fall into these categories are “shockingly high” ones that serve no
6    valid public purpose. United States v. McGinn, 787 F.3d 116, 129 (2d
7    Cir. 2015).
8           Our review of a sentence for substantive reasonableness is
9    governed by the factors set forth in 18 U.S.C. § 3553(a). United States
10   v. Carr, 557 F.3d 93, 107 (2d Cir. 2009). One important factor is the
11   need for the sentence to reflect the seriousness of the offense and to
12   promote respect for the law. 18 U.S.C. § 3553(a)(2)(A). Others are to
13   “provide just punishment for the offense;” “afford adequate
14   deterrence to criminal conduct;” and “protect the public from further
15   crimes of the defendant,” id. § 3553(a)(2), or more succinctly, to fulfill
16   the purposes of “retribution, deterrence, and incapacitation,” United
17   States v. Park, 758 F.3d 193, 200 (2d Cir. 2014). Additional factors are
18   supplied by the Guidelines under which sentencing courts are
19   required to consider “the nature and circumstances of the offense and
20   the history and characteristics of the defendant,” and “the need to
21   avoid unwarranted sentence disparities among defendants with
22   similar records who have been found guilty of similar conduct.” 18
23   U.S.C. §§ 3553(a)(1) and (6).
24          We are also obligated to consider whether conditions of
25   supervised release imposed by the district court are reasonably
26   related to certain statutory sentencing factors listed in §§ 3553(a)(1)
27   and (a)(2); involve no greater deprivation of liberty than is reasonably
28   necessary to implement the statutory purposes of sentencing; and are
29   consistent with pertinent Sentencing Commission policy statements.
30   United States v. Dupes, 513 F.3d 338, 343 (2d Cir. 2008) (citing 18 U.S.C.
31   § 3583(d)). While district courts have broad discretion to tailor
32   conditions of supervised release, United States v. Gill, 523 F.3d 107,
33   108 (2d Cir. 2008), that discretion is not unfettered, United States v.

                                        10
                                                                              No. 14-4295-cr




1    Doe, 79 F.3d 1309, 1320 (2d Cir. 1996). It is the responsibility of our
2    court to carefully scrutinize conditions that may be excessively harsh
3    or inexplicably punitive.
4           We evaluate in turn whether each sentencing factor, “as
5    explained by the district court, can bear the weight assigned it under
6    the totality of circumstances in the case.” Cavera, 550 F.3d at 191. We
7    conclude that the factors upon which the district court relied—
8    retribution, deterrence, and incapacitation, and the attributes of
9    Jenkins and his crimes—cannot bear the weight of the sentence the
10   district court imposed. Our conclusion that the sentence is excessive
11   is reinforced by the need to avoid unwarranted sentence disparities
12   and by the need to avoid excessively severe conditions of supervised
13   release. On remand, we are confident that Jenkins will eventually
14   receive a sentence that properly punishes the crimes he committed.
15   But Judge Suddaby, in imposing his sentence, went far overboard.
16                                             I.
17          Consistent with 18 U.S.C. § 3553(a)(4), the district court’s
18   starting point was U.S.S.G. § 2G2.2, the guideline governing child
19   pornography offenses. In United States v. Dorvee, we held that this
20   Guideline “is fundamentally different from most and that, unless
21   applied with great care, can lead to unreasonable sentences that are
22   inconsistent with what § 3553 requires.” 616 F.3d 174, 184 (2d Cir.
23   2010).
24          First, we observed that the Sentencing Commission has not
25   been able to apply its expertise but instead has increased the severity
26   of penalties “at the direction of Congress,” despite “often openly
27   oppos[ing] these Congressionally directed changes.” Id. at 184–86.
28   Second, we noted that four of the sentencing enhancements3 were so
29   “run-of-the-mill” and “all but inherent to the crime of conviction”
30   that “[a]n ordinary first-time offender is therefore likely to qualify for
     3
      That is, enhancements for (i) an image with a prepubescent minor, (ii) an image portraying
     sadistic or masochistic conduct or other forms of violence, (iii) use of a computer, and (iv)
     600 or more images.

                                                    11
                                                                              No. 14-4295-cr




1    a sentence of at least 168 to 210 months” based on an offense level
2    increased from the base level of 22 to 35. Id. at 186. We emphasized
3    that this range was likely to be unreasonable because it was “rapidly
4    approaching the statutory maximum” for distribution of child
5    pornography, and because the offense level failed to sufficiently
6    distinguish between “the most dangerous offenders” who “distribute
7    child pornography for pecuniary gain and who fall in higher criminal
8    history categories” and those who distribute for personal, non-
9    commercial reasons. Id. at 186–87. Also, we held that this range
10   demonstrated “irrationality in § 2G2.2” because it was substantially
11   more severe than for an adult “who intentionally seeks out and
12   contacts a twelve-year-old on the internet, convinces the child to
13   meet and to cross state lines for the meeting, and then engages in
14   repeated sex with the child.” Id. at 187.
15          The concerns we expressed in Dorvee apply with even more
16   force here and none of them appears to have been considered by the
17   district court. Jenkins received precisely the same “run-of-the-mill”
18   and “all-but-inherent” enhancements that we criticized in Dorvee,
19   resulting in an increase in his offense level from 22 to 35. These
20   enhancements have caused Jenkins to be treated like an offender who
21   seduced and photographed a child and distributed the photographs
22   and worse than one who raped a child. Because he also received an
23   enhancement for his false exculpatory testimony at trial, which we
24   conclude was appropriate, his offense level was 37, producing a
25   Guidelines range of 210 to 262 months.4 Even without this additional
26   enhancement, the Guidelines range of 168 to 210 months exceeds the
27   statutory maximum of 120 months for Jenkins’s possession charge.
28         Our conclusion that Jenkins’s sentence was shockingly high is
29   reinforced by the important advances in our understanding of non-
     4
       That range extends beyond the statutory maximum of 240 months for his count of
     transportation of child pornography, the more severe of his two offenses; Jenkins’s Guideline
     range is therefore 210 to 240 months. See Dorvee, 616 F.3d at 182.




                                                  12
                                                               No. 14-4295-cr




1    production child pornography offenses since we decided Dorvee. To
2    begin with, the latest statistics on the application of sentencing
3    enhancements confirm that the enhancements Jenkins received under
4    this Guideline are all-but-inherent. In 2014, for example, 95.9% of
5    defendants sentenced under § 2G2.2 received the enhancement for an
6    image of a victim under the age of 12, 84.5% for an image of sadistic
7    or masochistic conduct or other forms of violence, 79.3% for an
 8   offense involving 600 or more images, and 95.0% for the use of a
9    computer. See U.S. Sentencing Comm’n, Use of Guidelines and Specific
10   Offense Characteristics (Offender Based), Fiscal Year 2014 42–43, available
11   at http://www.ussc.gov/sites/default/files/pdf/research-and-
12   publications/federal-sentencing-statistics/guideline-application-frequ
13   encies/2014/Use_of_SOC_Offender_Based.pdf.
14         Since Dorvee, the Sentencing Commission has also produced a
15   comprehensive report to Congress examining § 2G2.2. U.S.
16   Sentencing Comm’n, Report to the Congress: Federal Child Pornography
17   Offenses (2012) [hereinafter “USSC Report”], available at
18   http://www.ussc.gov/sites/default/files/pdf/news/congressional-
19   testimony-and-reports/sex-offense-topics/201212-federal-child-porno
20   graphy-offenses/Full_Report_to_Congress.pdf. In this report, the
21   Commission explains that it “believes that the current
22   non-production guideline warrants revision in view of its outdated
23   and disproportionate enhancements related to offenders’ collecting
24   behavior as well as its failure to account fully for some offenders’
25   involvement in child pornography communities and sexually
26   dangerous behavior.” Id. at xxi. Since the Commission has effectively
27   disavowed § 2G2.2, it should be clearer to a district court than when
28   we decided Dorvee that this Guideline “can easily generate
29   unreasonable results.” 616 F.3d at 188.
30         Here, § 2G2.2 yielded a sentence that derived substantially
31   from “outdated” enhancements related to Jenkins’s collecting
32   behavior. Meanwhile, the government has not alleged that he was
33   involved in the production or distribution of child pornography or

                                         13
                                                             No. 14-4295-cr




1    that he was involved in any child pornography community. In
2    particular, the government did not claim he used peer-to-peer
3    sharing software, distributed images, or participated in chat rooms
4    devoted to child pornography. Nor does the government allege that
5    he contacted or attempted to contact a child or that he engaged in any
6    “sexually dangerous behavior” separate from his crimes of
7    conviction. Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight
8    assigned it” because the cumulation of repetitive, all-but-inherent,
9    enhancements yielded, and the district court applied, a Guideline
10   range that failed to distinguish between Jenkins’s conduct and other
11   offenders whose conduct was far worse. Cavera, 550 F.3d at 191. It
12   was substantively unreasonable for the district court to have
13   applied the § 2G2.2 enhancements in a way that placed Jenkins at the
14   top of the range with the very worst offenders where he did not
15   belong.
16                                   II.
17          The district court justified its sentence with reference to the
18   size of Jenkins’s collection of child pornography, his refusal to accept
19   responsibility, his attempts to blame others, his disrespect for the
20   law, and his likelihood of reoffending. Paraphrasing the language of
21   18 U.S.C. § 3553(a)(2), the court concluded that a sentence of 225
22   months would reflect the seriousness of Jenkins’s offenses, promote
23   respect for the law, provide adequate deterrence, and protect the
24   public. The purposes of retribution, deterrence, and incapacitation
25   are important, and we in no way condone either his consumption of
26   child pornography or his misconduct before various authorities
27   including the district court.
28         However, every Guidelines sentence is limited by § 3553(a)’s
29   “parsimony clause,” which instructs a district court to impose a
30   sentence “sufficient, but not greater than necessary,” to achieve
31   § 3553(a)(2)’s goals. Dorvee, 616 F.3d at 182. District courts are
32   required to carefully consider on an individualized basis “the nature
33   and circumstances of the offense and the history and characteristics

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1    of the defendant.” 18 U.S.C. § 3553(a)(1). Further, those
2    considerations must be applied in the context of the other § 3553(a)
3    factors. After the other factors are considered, upward adjustments
4    may be appropriate for the sake of retribution, deterrence, and
5    incapacitation. However, we conclude that the district court’s
6    considerations cannot reasonably justify regarding Jenkins as the
7    worst of the worst and sentencing him as such.
8           While he should receive stern punishment for his crimes, the
9    fact remains that the sentence he received fails, as required by
10   § 3553(a)(1), to account for the important differences between the
11   sentence Jenkins and those who produced or distributed child
12   pornography or who physically abused children received. For
13   example, in upholding a sixty-year sentence in United States v. Brown,
14   we found it significant that the defendant had repeated sexual
15   contact with multiple young victims and engaged in the production
16   of child pornography during the course of that abuse. 843 F. 3d 74, 83
17   (2d Cir. 2016). Likewise, in Broxmeyer, we affirmed a thirty-year
18   sentence for child pornography where the defendant was convicted
19   of attempted production of child pornography and committed
20   statutory rape of girls he was supposedly mentoring. 699 F.3d at 297.
21   Whether a child pornography offender has had or has attempted to
22   have contact with children is an important distinction. “The failure to
23   distinguish between contact and possession-only offenders [is]
24   questionable on its face,” and this failure “may go against the grain of
25   a growing body of empirical literature indicating that there are
26   significant, § 3553(a)-relevant differences between these two groups.”
27   United States v. Apodaca, 641 F.3d 1077, 1083 (9th Cir. 2011); see e.g.,
28   Shelley L. Clevenger et al., “A Matter of Low Self-Control? Exploring
29   Differences Between Child Pornography Possessors and Child
30   Pornography Producers/Distributers Using Self-Control Theory,” 28
31   Sexual Abuse 555 (2016) (finding online offenders have greater victim
32   empathy and greater levels of self-control than offline offenders).



                                        15
                                                          No. 14-4295-cr




1           Further, among defendants convicted of transportation,
2    Jenkins is relatively less culpable because he was bringing his
3    collection for his own personal use, rather than carrying child
4    pornography to sell or distribute to others. In 2010, 88.7% of those
5    convicted of transportation “engaged in knowing distribution to
6    another.” USSC Report 189 n.72. Along this dimension, then, Jenkins
7    is near the bottom of the distribution of offenders. However, the
8    district court imposed a sentence of 225 months, near the top of the
9    statutory range of 60 to 240 months. 18 U.S.C. § 2252A(b)(1).
10   Admittedly, Jenkins may be unlike many other transporters because
11   he refused to accept responsibility, offered false exculpatory
12   testimony at his trial, and was disrespectful to the district judge.
13   However, these factors cannot justify a sentence that is 165 months
14   above the statutory minimum and a mere 15 months below the
15   statutory maximum.
16          Moreover, bringing a personal collection of child pornography
17   across state or national borders is the most narrow and technical way
18   to trigger the transportation provision. Whereas Jenkins’s
19   transportation offense carried a statutory maximum of 20 years, the
20   statutory maximum for his possession offense was “only” 10 years.
21   Jenkins was eligible for an additional 10 years’ imprisonment because
22   he was caught with his collection at the Canadian border rather than
23   in his home. The government argues that Jenkins was “so captivated
24   by child pornography that he could not leave behind his collection
25   even for a short vacation to Canada,” Appellee Br. 84. We disagree
26   that bringing a personal collection to the start of a vacation as
27   opposed to leaving it at home supplies an appropriate basis for
28   sentencing a person to an additional 10 years in prison.
29          In addition, though we accept the district court’s observation
30   that Jenkins’s conduct at trial and during sentencing proceedings
31   reflected a “disdain for the law,” we find problematic the district
32   court’s exclusive reliance on this factor as justification for
33   dramatically increasing Jenkins’s sentence. See App. 860-61. While we

                                      16
                                                            No. 14-4295-cr




1    do not condone Jenkins’s lack of respect for the law, it simply cannot
2    bear the weight the district court assigned to it. Dorvee, 616 F.3d at
3    183; cf. United States v. Gerezano Rosales, 692 F.3d 393, 401 (5th Cir.
4    2012) (holding district court’s decision to increase a defendant’s
5    sentence from 71 to 108 months based on defendant’s disrespect for
6    the law constituted clear error in judgement in balancing the
7    sentencing factors). Jenkins had already paid heavily for his
8    disrespectful behavior. The Court denied him any offense level
9    reduction for acceptance of responsibility. Apparently concluding
10   that this significant sanction was insufficient, the district judge
11   proceeded to add years and years onto Jenkins’s sentence in light of
12   his failure to accept responsibility, as demonstrated by his persistent
13   rudeness and disrespect. While we appreciate the district judge’s
14   frustration, we are unwilling to sanction dramatically increasing a
15   sentence because an angry out-of-control pro se defendant facing
16   decades in prison fails to manifest sufficient respect for the system
17   that is about to incarcerate him.
18          We also disagree with the district court’s conclusion that
19   Jenkins’s lack of respect makes him “a very high risk to reoffend.”
20   App. 861. The district court’s conclusion ignores widely available,
21   definitive research demonstrating that recidivism substantially
22   decreases with age. See e.g., U.S. Sentencing Comm’n, Measuring
23   Recidivism: The Criminal History Computation of the Federal Sentencing
24   G u i d e l i n e s           8 ,      a v a i l a b l e          a t
25   http://www.ussc.gov/sites/default/files/pdf/research-and-publications
26   /research-publications/2004/200405_Recidivism_Criminal_History.pd
27   f. That research documents that offenders with a Criminal History
28   Category I between ages 41 to 50 have a 6.9% recidivism rate, as
29   opposed to a 29.5% recidivism rate for Category I offenders under
30   21.These statistics from the Commission, which include offenders
31   who accepted responsibility as well as those who did not, suggest
32   that Jenkins, an offender with no criminal history points who will be
33   63 when he is released from his lengthy prison sentence, will be a


                                       17
                                                                            No. 14-4295-cr




1    low–not a high–risk to reoffend since more than 90% of individuals in
2    his age group do not reoffend. Although it would be well within a
3    district court’s discretion to increase a sentence based on a likelihood
4    of reoffending, there must, in a case like this, be some support in the
5    record for that conclusion, such as, for example, a record of previous
6    convictions or previous attempts to harm children. Here there is
7    none. A sentence of 225 months for a first-time offender who never
8    spoke to, much less approached or touched, a child or transmitted
9    explicit images to anybody is unreasonable.
10         Additional months in prison are not simply numbers. Those
11   months have exceptionally severe consequences for the incarcerated
12   individual. They also have consequences both for society which bears
13   the direct and indirect costs of incarceration and for the
14   administration of justice which must be at its best when, as here, the
15   stakes are at their highest.5
16         Finally, the government highlights the seriousness of Jenkins’s
17   offenses as a consumer of child pornography, saying that he
18   “encouraged the market for this content and spurred the abuse of
19   other children whose exploitation would be necessary to create new
20   images and videos, to feed the demand of consumers like Jenkins.”
21   Appellee Br. 84. But this observation is true of virtually every child
22   pornography offender. It is undoubtedly correct that “[a]ll child
23   pornography offenses are extremely serious because they both
24   perpetuate harm to victims and normalize and validate the sexual
25   exploitation of children.” USSC Report 311. We do not for a moment
26   dispute that Jenkins deserves a substantial term of imprisonment.
27   Nonetheless, some types of conduct in this area are more culpable
28   than others. District courts should generally reserve sentences at or
29   near the statutory maximum for the worst offenders. Treating Jenkins

     5
      The annual cost of incarcerating a 60-year-old state prisoner is $60,000 to $70,000, as
     compared to $27,000 for younger inmates. U.S. Department of Justice, National Institute of
     Corrections, Correctional Healthcare: Addressing the Needs of Elderly, Chronically Ill, and
     Terminally Ill Inmates 11, available at http://static.nicic.gov/Library/018735.pdf.

                                                 18
                                                                                 No. 14-4295-cr




1    as the worst of the worst has no grounding in the record we are
2    reviewing and is inconsistent with the parsimony clause.

3                                                III.

4            The sentence the district court imposed also created the type
5    of unwarranted sentence disparity that violates § 3553(a)(6).6
6    Statistics from the Sentencing Commission validate our concern. In
7    general, a district court need not consult the Commission’s statistics
8    because there is “no assurance of comparability.” United States v.
9    Irving, 554 F.3d 64, 76 (2d Cir. 2009). Here, however, the
10   Commission’s statistics, which were readily available to the district
11   court at the time of sentencing, allow for a meaningful comparison of
12   Jenkins’s behavior to that of other child pornography offenders.

13         First, just as § 2G2.2 produces Guidelines ranges that are
14   higher than those for individuals who engage in sexual conduct with
15   a minor, Jenkins’s sentence is longer than typical federal sentences for
16   sexual offenses against in-person victims. In 2013, the latest year
17   available to the district court at the time of sentencing, the mean
18   sentence in the category of “sexual abuse” was 137 months, and the
19   median was 120 months. U.S. Sentencing Comm’n, 2013 Sourcebook of
20   Federal Sentencing Statistics tbl.13, available at http://www.ussc
21   .gov/sites/default/files/pdf/research-and-publications/annual-reports-
22   and-sourcebooks/2013/Table13.pdf. We believe Jenkins’s sentence



     6
       In the ordinary case, a court implicitly gives sufficient weight to the need to prevent
     unwarranted sentence disparities when it has “correctly calculated and carefully reviewed
     the Guidelines range.” See 18 U.S.C. § 3553(a)(6); Gall v. United States, 552 U.S. 38, 54 (2007).
     However, we have held that § 2G2.2 tends to produce unreasonable results. See Dorvee, 616
     F.3d at 184. Recognizing this difficulty, district courts have routinely imposed lower
     sentences for child pornography offenses, and the government even occasionally moves for
     a lower sentence. In 2010, 44.3% of cases of non-production child pornography offenses in
     2010 involved courts’ imposition of a below-Guidelines sentence, and another 10.3%
     involved a government motion for such a sentence. USSC Report 221, 223.


                                                    19
                                                               No. 14-4295-cr




1    that is 88 months above this mean and 105 months above this median
2    is unreasonable.

3           Second, the mean federal sentence in the “child pornography”
4    category in 2013 was 136 months, and the median was 120 months.
5    Id. This category included several hundred individuals who produced
6    child pornography (333, compared to 1,609 sentenced for trafficking
7    and possession offenses). U.S. Sentencing Comm’n, Use of Guidelines
8    and Specific Offense Characteristics (Offender Based), Fiscal Year 2013 39-
9    40, available at http://www.ussc.gov/sites/
10   default/files/pdf/research-and-publications/federal-sentencing-statisti
11   cs/guideline-application-frequencies/2013/Use_of_Guidelines_and_S
12   pecific_Offense_Characteristics_Offender_Based_Revised.pdf. The
13   presence of such individuals in the distribution is a further indication
14   that a sentence that is 89 months above the 2013 mean for child
15   pornography sentences and 105 months above the median is not
16   reasonable.

17           Third, the Sentencing Commission’s 2012 report analyzed
18   sentences of offenders convicted of possession without a distribution
19   enhancement, but with the run-of-the-mill enhancements previously
20   described. See supra at 11-12. Among these offenders, the mean
21   sentence was 52 months and the highest sentence was 97 months.
22   USSC Report 215 fig.8.3. Admittedly, these offenders, unlike Jenkins,
23   accepted responsibility and did not all engage in misconduct during
24   their criminal proceedings. Nonetheless, we see no reasonable
25   justification on the record as to why he should receive 128 months
26   above the longest sentence in this category and 173 months above the
27   mean among possessors with the four all-but-inherent enhancements.

28                                      IV.

29          In addition, the conditions of supervised release imposed on
30   Jenkins, including broad restrictions on his movements, his ability to
31   obtain gainful employment, and use of credit cards for 25 years upon
32   his release from prison, are not “reasonably related,” to “the nature

                                         20
                                                            No. 14-4295-cr




1    and circumstances of the offense” or Jenkins’s “history and
2    characteristics;” nor are they “reasonably necessary” to the
3    sentencing purposes set forth in § 3553(a)(2). See 18 U.S.C. §§ 3553
4    and 3563(b). We would reach this same conclusion about the duration
5    and terms of Jenkins’s supervised release even if the period of
6    incarceration he had received had been lower.

7           To start, the duration of the supervised release, on top of
8    nearly 19 years in prison, make the restrictions excessive and
9    unreasonable. Jenkins will be 63 years old when he is released from
10   prison. He will be under supervised release for the next 25 years until
11   he is 88 years old. While this term of supervised release does not
12   violate the Guidelines or the Policy Statement of § 5D1.2(b)(2), we
13   may not presume the reasonableness of the sentence on that basis.
14   United States v. Hayes, 445 F.3d 536, 537 (2d Cir. 2006). This is
15   particularly true where the district court offered no explanation that
16   might justify imposing what amounts to a lifetime of the most intense
17   post-release supervision that prevents Jenkins from ever re-engaging
18   in any community in which he might find himself. By contrast, in
19   United States v. Bowles, 260 F. App’x 367, 369-70 (2d Cir. 2008)
20   (summary order), we held that Bowles’s problems with sexual
21   deviance, his perception that the children enjoyed the contact, and his
22   long-term alcohol and drug abuse and mental illness formed a
23   reasonable basis for lifetime supervised release. No congruent
24   concerns are presented in the record we are reviewing. Ordinarily, a
25   district court is under no obligation to provide elaborate reasons for
26   the sentence it imposes. In many instances the reasons for a sentence
27   can be garnered from the record. That is not the case here. Where a
28   sentence is unusually harsh, meaningful appellate review is
29   frustrated where it is not possible to understand why the sentence
30   was imposed.

31        Moreover, we are troubled by specific conditions of release. For
32   example, one of them prohibits Jenkins from having direct contact
33   with anyone under the age of 18 unless supervised by a person

                                       21
                                                           No. 14-4295-cr




1    approved by the probation office. As mentioned above, Jenkins never
2    contacted or attempted to contact any minors. But under this
3    condition, Jenkins is prohibited during the 25-year period from
4    interaction with family members or friends who might have children
5    under the age of 18 unless he goes through a preapproval process
6    with the Probation Office which presumably would entail some sort
7    of investigation and finding by that office. This restriction would
8    apply with full force to all routine family interaction–for example,
9    Thanksgiving dinners or seders or christenings.

10          Another condition bars Jenkins from any “indirect contact”
11   with a person under the age of 18 “through another person or
12   through a device (including a telephone, computer, radio, or other
13   means)” unless it is supervised by a person approved by the
14   Probation Office. It is difficult to know what the boundaries of this
15   restriction might be. If, for example, members of a little league
16   baseball team were soliciting in front of a supermarket, could Jenkins
17   approach them or later call in and contribute? Common sense would
18   say “yes” but the problem for Jenkins would be that the
19   consequences of an incorrect guess would be sufficiently serious that
20   he would be ill advised to run any risks at all. That same restriction
21   required him to “reasonably avoid and remove himself . . . from
22   situations in which [he] has any other form of contact with a minor.”
23   Again it is unclear what Jenkins is expected to do for the 25 years
24   during which he must comply with this restriction. Is he required to
25   stay away from sporting events or natural history museums or street
26   fairs? The reasonable necessity for these restrictions which apply to
27   Jenkins when he is in his 70s and 80s eludes us.

28         Likewise the relationship between the restrictions on Jenkins’s
29   employment and Jenkins’s offense and circumstances is not readily
30   apparent. See United States v. Brown, 402 F.3d 133, 138–39 (2d Cir.
31   2005) (vacating condition where it was “seemingly unrelated to
32   [Defendant’s] offense and circumstances”). As mentioned earlier, the


                                       22
                                                              No. 14-4295-cr




1    nature of these employment restrictions mean that, as a practical
2    matter, he may never be employable.

3           Another condition prohibits Jenkins from incurring new credit
4    charges or opening additional lines of credit without approval of a
5    probation officer. Nothing in the record suggests these restrictions on
6    Jenkins’s use of credit cards are “reasonably necessary,” 18 U.S.C.
7    § 3563(b)(5), to protect the public or to deter Jenkins from continuing
8    to engage in the conduct for which he was convicted–possession of
9    child pornography. Cf. United States v. Peppe, 80 F.3d 19, 23 (1st Cir.
10   1996) (holding that a bar on incurring debt without prior approval
11   was reasonably related to defendant’s offense, which involved the
12   extortionate extension of credit). This is especially true when the use
13   of credit cards or other forms of credit will likely be necessary to
14   function in the society that will exist after Jenkins’s eventual release
15   from prison. See United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001)
16   (per curiam) (vacating a special condition imposing restrictions on
17   computer ownership because, in part, “[c]omputers and Internet
18   access have become virtually indispensable in the modern world of
19   communications and information gathering”). Why Jenkins should
20   be prohibited from buying a drink on an airplane or taking an Uber
21   ride or making a purchase on Amazon unless the transaction is pre-
22   approved by a probation officer cannot be divined from the record
23   we are reviewing.

24         The conditions of supervised release imposed by Judge
25   Suddaby mean that Jenkins will never be able to pay his debt to
26   society. He will likely never be able to develop and maintain
27   meaningful relationships with others, to obtain employment and
28   remain employed or to ever lead anything that remotely resembles a
29   “normal” life.
30         As we review these conditions of release, what is particularly
31   depressing is that the Assistant United States Attorney and the
32   probation officer who appeared at sentencing either believed they
33   were appropriate or did not believe they were appropriate but

                                        23
                                                                          No. 14-4295-cr




1    nonetheless stood mute as they were imposed. We do not doubt for a
2    moment that there are other cases in which some or all of the
3    conditions imposed by the district court would be required and
4    reasonable. But given Jenkins’s personal characteristics and the
5    nature of his offense, this constellation of restrictions, compounded
6    by their 25-year duration, “inflicts a greater deprivation” on his
7    liberty than is “reasonably necessary.” United States v. Sofsky, 287 F.3d
8    122, 126 (2d Cir. 2002).

9                                  CONCLUSION
10          Jenkins’s sentence is substantively unreasonable. Accordingly,
11   we vacate it and remand for resentencing. This panel will retain
12   jurisdiction over any subsequent appeal. Either party may notify the
13   Clerk of a renewed appeal within fourteen days of the district court’s
14   new sentence. United States v. Tutty, 612 F.3d 128, 133 (2d Cir. 2010)
15   (citing United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).7




     7
      On the remand of this case, the conditions of supervised release should be sufficiently
     explained by the district court to permit meaningful appellate review.

                                                24
14-4295
United States v. Jenkins


      1        KEARSE, Circuit Judge, dissenting in part:

      2                        I respectfully dissent from so much of the majority's opinion as rules that the

      3        imprisonment component of the sentence imposed on defendant Joseph Jenkins, within the applicable

      4        Guidelines range, is substantively unreasonable.

      5                        As is revealed in the summary order filed contemporaneously in this case, the district

      6        court in sentencing Jenkins did not commit any procedural error. Where we have determined "'that

      7        the district court's sentencing decision is procedurally sound,'" United States v. Cavera, 550 F.3d 180,

      8        190 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)), we reverse on

      9        the basis of substantive unreasonableness only if the sentence "cannot be located within the range of

     10        permissible decisions," Cavera, 550 F.3d at 189 (internal quotation marks omitted).

     11                        In sentencing Jenkins to imprisonment for 225 months-- within the Guidelines range

     12        (which was either 210-262 months if the district court chose to impose the sentences consecutively

     13        or 210-240 months if it did not (240 months being the statutory maximum on one count))--the district

     14        court stated that it was imposing "a sentence that reflects the seriousness of your crime, that promotes

     15        respect for the law, and that provides you with adequate deterrence from committing further crimes,

     16        and that protects the public." (Sentencing Transcript ("S.Tr.") 30.) In stating that it found "this

     17        sentence [to be] sufficient but not greater than necessary to comply with the purposes of sentencing"

     18        (S.Tr. 29), the court was heavily influenced by its view that, without a lengthy prison term, Jenkins

     19        would be likely to repeat his offenses. It said, inter alia:

     20                        I couldn't disagree with your attorney more when she says that you're not a
     21                        threat to commit this crime again. You've demonstrated that you have a total
     22                        lack of respect for the law and disdain for the law. That[ is,] in the Court's
 1                  view it is without question that, if given the opportunity, you will do exactly
 2                  what you want to do in any situation and you are a very high risk to reoffend.

 3   (S.Tr. 29-30 (emphasis added).) This view is supported by, inter alia, Jenkins' evasion of the charges

 4   against him in Canada and his repeated insistence throughout this prosecution that he had done

 5   nothing wrong and could not validly be prosecuted. For example, in his supplemental sentencing

 6   memorandum submitted pro se, he asserted, inter alia,

 7                          # that "[t]here is no justification or cause legally for the proceeding";

 8                          # that the United States had "no jurisdiction" to try him;

 9                         # that the jury's verdict of guilt "was obtained through conspired fraud,
10                  misrepresentation," and "perjury"; and

11                          # that "the[] whole case" was "unsubstantiated garbage."

12   (Jenkins' pro se sentencing memorandum at 1-3.)

13                  The district court noted that after Jenkins "attempted to transport thousands of images

14   and videos of child pornography into Canada and then later failed to appear for [his] Canadian trial"

15   and was arrested in the United States, he somehow "blamed Canada." (S.Tr. 30.) In fact, the court

16   noted that Jenkins "has blamed everybody and everyone for his criminal activity." (Id. at 29.) Indeed,

17   Jenkins even blamed the children depicted in the pornographic images and videos he transported,

18   stating that "[m]ost" of those images "are 'webcam' videos, they (victims) intentionally produced and

19   broadcast (themselves) over the internet and should be prosecuted (themselves)." (Jenkins' pro se

20   sentencing memorandum at 2 (emphases added).)

21                  Given this record in which Jenkins, inter alia, disputed any justification or authority

22   for prosecuting him, and argued that instead the children who were victims of the child pornography

23   should have been prosecuted, the district court's concern for the likelihood that, without a lengthy


                                                       2
1   prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition

2   of the prison term that was no higher than midway between the top and bottom of the Guidelines range

3   "cannot be located within the range of permissible decisions."




                                                     3
