Monday, April 17th, 2017

Second Circuit Vacates 225-month Sentence in Child Pornography Case as Substantively Unreasonable

Today, in United States v. Jenkins, the Second Circuit concluded that a 225-month sentence for the possession and transportation of child pornography was substantively unreasonable and vacated and remanded for resentencing, concluding that the district court’s sentence “went far overboard” and was “shockingly high”  Opinion at 11, 12.

Jenkins was convicted after trial of one count of possession of child pornography (18 U.S.C. 2252A(a)(5)(B)) and one count of transportation of child pornography (18 U.S.C. 2252A(a)(1)).  He was sentenced to concurrent time of 120 months on the possession count (the statutory maximum) and 225 months on the transportation count (just below the statutory maximum of 240 months), and to 25 years of supervised release.  The child pornography he possessed (and brought with him on a family vacation to Canada) was for personal use.  He did not produce or distribute child pornography and did not attempt to contact a minor.  This was his first felony conviction.  He testified at trial and made “a number of contentions that turned out to be false.” Opinion at 4.  After granting the government’s request to apply a 2-level enhancement for obstruction of justice, the district court found a total offense level of 37, resulting in a guidelines range of 210-262 months.  Jenkins represented himself at sentencing.

The Second Circuit described the district court’s sentencing reasoning “formulaic” and took issue with the length of incarceration and the length and conditions of supervision because “the factors upon which the district court relied – retribution, deterrence, and incapacitation, and the attributes of Jenkins and his crimes – cannot bear the weight of the sentence the district court imposed.”  Opinion at 11.  The conclusion that “the sentence is excessive is reinforced by the need to avoid unwarranted sentence disparities and by the need to avoid excessively severe conditions of supervised release.”  Id.

The Circuit’s review of the sentence began with the reminder from United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010), that the child pornography guideline “is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what Section 3553 requires,” and a reminder of some of the problems with the guideline:  (1) It does not reflect the Sentencing Commission’s expertise, but rather Congressional directives; (2) four of the enhancements are “run-of-the-mill” and “all but inherent in the crime of conviction,” meaning “[a]n ordinary first time offender is therefore likely to qualify for a sentence of at least 168-210 months;” (3) this range is “likely to be unreasonable” because it “rapidly approach[es] the statutory maximum and fails “to sufficiently distinguish between ‘the most dangerous offenders’ who ‘distribute child pornography for pecuniary gain and who fall in higher criminal history categories’ and those who distribute for personal, non-commercial reasons;” and (4) the guidelines range that results of Section 2G2.2 is “substantially more severe than for an adult ‘who intentionally seeks out and contacts a twelve-year-old on the internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child.”  Opinion at 11-12.  The Circuit found that all of these concerns were present in Jenkins’ case and that the district court did not appear to have considered them.

The Circuit went beyond merely reiterating Dorvee.  It relied on the 2012 report issued by the Sentencing Commission in which the Commission “effectively disavowed Section 2G2.2,” and said “it should be clearer to a district court than when we decided Dorvee that this Guideline ‘can easily generate unreasonable results.'”  You can access the Sentencing Commission’s report here.  The Circuit called the enhancements disavowed by the Commission “outdated.” When it came to calculating Jenkins’ guidelines, Section 2G2.2 “cannot ‘bear the weight assigned it’ because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’ conduct and other offenders whose conduct was far worse.”  Opinion at 14.  The Circuit used the report to find an unwarranted sentencing disparity and stressed that the statistics related to Section 2G2.2 “allow for meaningful comparison” between child pornography offenders.  Opinion at 19.

The Circuit also discussed Section 3553(a)’s so-called parsimony clause and concluded that the district court’s considerations “cannot reasonably justify regarding Jenkins as the worst of the worst and sentencing him as such.”  Opinion 15.  While Jenkins “should receive stern punishment for his crimes, the fact remains that the sentence he received fails, as required by Section 3553(a)(1), to account for the important differences between the sentence Jenkins and those who produced or distributed child pornography or who physically abused children received.”  Id.

The Circuit also chastised the district court for its conclusions regarding the likelihood Jenkins would recidivate and pointed to “widely available, definitive research demonstrating that recidivism substantially decreases with age.”  Opinion at 17.  “There must be some support in the record” for a conclusion that an individual will reoffend, such as a similar previous conviction.  Where there is none, the 225-month sentence was unreasonable. Opinion at 18.

The Court took issue with the Government’s argument, often made in child pornography cases in the ED and SDNY, that, as a consumer of child pornography, Jenkins “encouraged the market for this content and spurred the abuse of other children whose exploitation would be necessary to create new images and videos, to feed the demand of consumers like Jenkins.”  This “observation is true of virtually every child pornography offender,” the Court wrote, but “[n]onetheless, some types of conduct in this area are more culpable than others. District courts should generally reserve sentences at or near the statutory maximum for the worst offenders.”  Opinion at 18.

In addition to the Circuit’s 2G2.2-specific reasoning, the opinion contains some more broadly-applicable reasoning.

For example, the Court notes that the combination of the 225-month sentence and the 25 years of supervised release “effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the rest of his life” and then cited life expectancy data including statistics that incarceration decreases a person’s life expectancy two years for every one year of incarceration.  Opinion at 7 and n.2.

The Circuit also took issue with the district court’s reliance on its own conclusion that Jenkins was intemperate, rude, and disrespectful of the court and the law.  The loss of acceptance of responsibility and application of the 2-level obstruction of justice enhancement were sufficient to address that behavior.  The Circuit was “unwilling to sanction dramatically increasing a sentence because an angry, out-of-control pro se defendant facing decades in prison fails to manifest sufficient respect for the system that is about to incarcerate him.”  Opinion at 17.

The Circuit wrote “Additional months in prison are not simply numbers.  Those months have exceptionally severe consequences for the incarcerated individual.  They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are highest.”  Opinion at 18.  The Court went on to cite the financial cost of imprisonment.  Opinion at 18 and n.5.

Finally, the Court’s conclusions regarding the conditions of supervision are broadly applicable as well.  The Circuit concluded that the conditions would ensure that Jenkins “will never be able to pay his debt to society,” “develop or maintain meaningful relationship to others,” “obtain employment,” or “ever lead anything that remotely resembles a ‘normal’ life.”  Opinion at 23.  The Court concluded that “what is particularly depressing is that the Assistant United States Attorney and the probation officer who appeared at sentencing either believed they were appropriate or did not believe they were appropriate but nonetheless stood mute as they were imposed.”  Opinion at 23-24.






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