*1 181 keys, wallet where marshals phone, character of the items seized readily they provide had reason to believe would apparent Kenney to when he saw them in evidence of defendant’s interstate travel Key’s apartment. offender); register a sex and failure Accordingly, we affirm the district Delva, 269, F.Supp.3d United States v. 13 court’s deny Key’s suppression decision to (S.D.N.Y. 2014) (“Courts
276 have routine- motions and admit testimony regarding ly suppress denied motions to the seizure during evidence observed the Car phones, in the context of cell narcotics Stop, as well as evidence seized from the conspiracies, knowledge based on that the Stop Apartment Car Search. phones may contain contacts and other crime.”); of a evidence United States v. CONCLUSION (WHP), 11 Meregildo, No. CR 576 2012 (S.D.N.Y. 4378047, 24, Sept. at *4 WL above, For the stated the judg- reasons 2012) (“Because suspect- law enforcement ment of the district court is AFFIRMED. ed involvement in racketeer- [defendant’s]
ing conspiracies and narcotics —whose phones
members used cellular and social their criminal
media facilitate acts—the ...
iPhone and iPod Touch were immedi-
ately of criminal identifiable as evidence
conduct.”); Reyes, United States v. No. (SRU), 419636, 2007 at *6
3:06CR120 WL America, UNITED STATES (D. 2007) (“[T]he 30, Conn. Jan. cellular Appellee, fall telephones plainly within the standard. immediately apparent It was to [the] v. agent years
trained DEA over ten Joseph JENKINS, Vincent experience, enforcement that cellular law Defendant-Appellant. telephones logs, contain caller text mes- sages, phone books and other information No. 14-4295-cr highly drug relevant that would be Term, August prosecution very likely con- would of Appeals, United States Court activity.”). nected with criminal Second Circuit. The district court was entitled to credit Kenney’s testimony, which established 18, Argued: May probable cause to believe that the items April Decided: question Key’s would contain evidence of alleged activity. criminal See United States (2d 1986) Escobar,
v. 805 F.2d
(“[The agent’s] knowledge of the relation
ship between the evidence seized and the conspiracy, gleaned through
... months of
investigation, gave him probable cause seized]
believe were evi [items crime.”);
dence of United States v. Gam 2004)
ble, (per
curiam). appropri The district court thus
ately incriminating concluded that *3 Group Merchant Law DeMaeia,
Daniel LLP, York, NY, Defendant-Ap- New for pellant.
Rajit Dosanjh (Tamara Thomson, S. brief), Assistant United States Attor- Hartunian, neys, for Richard S. United Attorney, States Northern District of New York, NY, Syracuse, Appellee. for KEARSE, JACOBS, Before: PARKER, Judges. Circuit Judge part KEARSE concurs in part separate opinion. dissents in in a PARKER, BARRINGTON D. Circuit Judge:
A jury Joseph found Vincent Jenkins guilty possession of one count of of child pornography violation of 18 U.S.C. 2252A(a)(5)(B) his agents trans- bec. Canadian border searched and one count of laptop, a Toshiba in violation vehicle and discovered pornography of child portation 2252A(a)(l), thumb Compaq laptop, based on the and three USB of 18 U.S.C. proof at trial drives. government’s of child owned a collection prompted the Jenkins’s “demeanor” brought it across the U.S.-Canada finding After agents to search the devices. way family to a vacation border on the laptop child on the Toshiba personal viewing. drives, agents of the thumb and on one for the District Court The United States all the devices and arrested and seized (Glenn T. District of New York Northern charged por- him subsequently concurrent Suddaby, Judge) imposed Chief offenses under the Canadian nography possession for the sentences of 120 months Criminal Code. *4 maximum, count, statutory and bail, did being After released on Jenkins count, just transportation months for appear not on his scheduled trial date and statutory maximum of 240 below the court a bench the Canadian issued warrant imposed The court also a term of months. agents his arrest. Canadian subse- years supervised release. Jenkins Department contacted the quently U.S. challenges procedur- his conviction and the (“DHS”), Security inquiring Homeland al reasonableness of his and substantive in informa- whether DHS was interested sentence. tion about the case. DHS then commenced government’s evidence established investigation, an obtained Jenkins’s elec- offender, Jenkins, felony a first time authorities, tronic devices from Canadian pornogra- maintained a collection of child proceeded and to examine them. This ex- computer and thumb phy personal on a that the devices con- amination confirmed personal produce drive for use. He did not images depicting tained and videos child child and did or distribute pornography. subsequently Jenkins was attempt to contact a minor. not contact or enforcement officials arrested U.S. law in “transported” images He his the techni- charged possessing and and trans- brought family them on a cal sense he pornography. pro- The case porting crossing his the Ca-
vacation involved trial, government where the in- ceeded at apprehended nadian and he was border images troduced the devices and the into side. For the reasons that Canadian evidence, presented both Canadian follow, we hold that a sentence of 225 officials as witnesses. DHS years supervised months and 25 release substantively Accordingly, unreasonable. trial, num- making Jenkins testified at the sentence and remand for we vacate ber of contentions that turned out to be resentencing. First, false. he contended that contractors contracting working for his electrical busi-
BACKGROUND frequent ness had access to all areas on his 24, 2009, attempted laptops laptops and could take his home. May On Jenkins denied that the thumb drives were enter Canada from United States Landsdowne, never crossing in Ontar- in his truck and asserted that he had the border Jenkins, Finally, he claimed that years was 39 old at the seen them before. io. who time, from the trial traveling alone from his home he was absent Canadian Geneva, lawyer suggested there had spend New York to week with because his just Que- “you him that could not return parents at their summer home just you if want to not deal with sentencing Canada Jenkins that the hearing would charge.” App. jury ultimately 631. The proceed: nevertheless government’s credited the version of THE DEFENDANT: guilty events and returned a verdict on Well, mean, I pretty I’ve much demand- February both 2014. counts ed that —I don’t you feel have right The Probation Office issued its Presen- to sentence me after all these antics and (“PSR”) Investigation tence Report there’s a lot of screwing around here April Applying 2014. United States Sen- I agree don’t with it and I’ve re- § tencing Guideline 2G2.2 for child por- peatedly asked Ms. Peebles [Jenkins’s offenses, nography the PSR calculated attorney] petition here to file a to have Jenkins’ base offense level as 22. you removed and I think that there’s 2G2.2(a)(2). The PSR recommended four grounds for it. going I’ve been over sub- (i) enhancements: two possessing levels for missions the last few weeks and court minor, involving prepubescent material mean, transcripts. I that’s what I want. (ii) 2G2.2(b)(2); §id. four levels for materi- mean, I’d rather —I you’ve set a record' portraying al sadistic masochistic con- mean, that —I she hasn’t done what I’ve violence, duct other forms asked going her to do. been We’ve (iii) 2G2.2(b)(4); two levels because the around for a arguing. few months a computer, offenses involved the use of (iv) 2G2.2(b)(6); *5 § id. and five levels be- THE
cause the offenses involved 600 or more COURT: 2G2.2(b)(7)(D). images, id. These en- attorney’s you’ve No done what asked hancements raised Jenkins offense level do, according you, them to to despite from 22 to 35. Jenkins received no offense being represented by a number of differ- level acceptance responsi- reductions for of ent counselors. You started with Mr. bility. only prior Because Jenkins had a Parry. You referred to him as an idiot offense, misdemeanor he was found to knowing and not what doing. he was The History Category have a Criminal of I. In attorneys sent Court numerous to meet addition, sentencing hearing, at the you jail you with in the so could retain government sought a two-level enhance- derogatory someone. You made com- justice contending ment for obstruction of people very ments about the that were that Jenkins had offered false exculpatory well-regarded community, legal in this testimony at trial. See id. 3C1.1. The community, as far as representing feder- agreed district court applied and the en- provided you al defendants. Then we adopted hancement. It also the factual attorneys with a list of CJA that are findings and Guidelines recommendations admitted to the Northern District of from the PSR. The result was a total give you opportunity New York to an to offense level of a yielding Guidelines somebody. retain You did retain an Aar- range of 210 to 262 months. rep- on Goldsmith out of New York who sentencing hearing The a stormy you was resented at trial and then re- he Jenkins, one at an intemperate, quested which out- to be relieved because of his pro litigant, of-control se repeatedly you irreconcilable differences with and example, being get along you. clashed with the court. For not able to with then, know, following colloquy transpired you public after Jenkins And federal assigned by Judge conceded that it was too late for him to office was defender’s counsel, you, retain new and court represented informed Peebles and has this view, of his offense. view of very capable in a and com- the circumstances Court’s again. effectively age, manner and here we are this sentence petent be incarcerated meant that Jenkins would So, sir, you all want. you can demand scruti- subject government to intense every- can blame can criticize. You You ny for the remainder of his life.2 attorney’s say can it’s the body else. You sir, point, a where fault. But we’re at register required was to sentencing. going proceed to with we’re any state in which he resid- sex offender repre- You’ve been You have counsel. required He not to “use ed or worked. opportuni- an you’ve had sented well any computer any or other de- possess or everything you’ve ty to submit any capabilities, vice with online at loca- this Court and I’ve re- wanted to to tion, except your place employment, submitted, everything you viewed you Computer in the participate unless derogatory tone and com- despite its Monitoring Program.” Restriction and ments, comments to this disrespectful was further allowed “to Probation Office you’ve everybody else that Court and unannounced examina- periodic, conduct with, to deal sir. had you use any computer equipment tions of So, a full to you’ll given opportunity all possess, limited to hardware If say anything you you’re want. not use.” software related online Notwith- somebody, certainly to retain going standing the fact that he had never con- going appoint not another Court is minor, attempted tacted or to contact represent you point. at this attorney to having “any he was from forbidden direct age person contact with a under the you proceed by representing can So supervised by ap- a person unless sir, today. you, but yourself up That’s by the officer.” Fur- proved probation going proceed sentencing. with we’re ther, having any from he was forbidden App. 835-37.- person under “indirect contact [sic] age through person another imposed
The district court sentence of *6 (including telephone, a through device transportation charge for the 225 months means) radio, or other unless it computer, and a concurrent sentence of 120 months by person approved by the charge, statutory supervised the is possession for the 2252A(b)(l) probation §§ officer.” He was further directed maximum. See 18 U.S.C. (2). Suddaby “reasonably avoid and remove” himself Judge imposed also any in years [he has] of extensive conditions of from “situations which Jenkins 25 form of contact with a minor.” He supervised release. Some of them were other in any directed “not to be in area obviously appropriate but others were was by sentencing judge persons age and which under the of 18 are unexplained the likely such as school imposed regard per- congregate, without to the were centers, grounds, play- care sonal characteristics of the defendant and live, that, 44-year-old impecunious long will we do know as a 2. As a white male education, matter, expectancy high statistical the life of an with a school Jenkins's life person drops significantly for expectancy years at the time of his incarcerated was 76.5 al., Evelyn sentencing. year See J. Pat- See Kenneth D. Kochanek et each of incarceration. terson, Control, Tables, Dose-Response Time Served in Ctr. for Disease U.S. Life State, 2014, 30, Mortality: Rep., Vital June Prison on New York 1989- Nat'l Statistics 523, 2016, 8, 2003, http://www.cdc.gov/ 103 Am. J. of Pub. Health at available at: (2013). likely expectancy nchs/data/nvsr/nvsr65/nvsr65_04.pdf. Al- Thus Jenkins’s life is any certainty significantly years. though no how less than 76.5 one knows with grounds, permission without the of the collection of child pornography, the Court probation officer.” imposed has a sentence that reflects the crime, your seriousness of promotes possibility any post-release law, respect for the provides and that you employment during 25-year period adequate deterrence from committing severely by was also limited Judge Sudda- crimes, further protects and that pub- by. permitted only Jenkins was to work App. lic.” timely 861. Jenkins appealed. approved by locations the Probation Office. If employment his involved the use of a DISCUSSION computer, required notify Jenkins was A sentence substantively is un employer prospective of the nature of reasonable if it “cannot be located within his conviction and the fact that his convic- the range permissible decisions.” United by tion was facilitated the use of a comput- Cavera, States v. (2d 180, 189 550 F.3d Finally, er. Cir. effectively Jenkins was forbid- (en 2008) banc) (quoting United States v. den using the district court from credit Rigas, (2d 2007)). 490 F.3d during his Cir. supervised Spe- cards release. determining whether a cifically, he was forbidden sentence falls with incurring from permissible charges range, “patrol to his credit cards or from opening reasonableness,” boundaries of prior ap- cognizant additional lines of credit without proval responsibility from the Probation of the fact that Office. for sentenc ing placed largely with the district The district court offered only formulaic courts. Id. at 191. Our review is limited reasoning period for the of incarceration because the district court is in a different broad-ranging post-release and the restric- fact finding position, which it allows imposed. tions it The court’s reasoning defendant, interact directly with the there lack respect centered on Jenkins’s by gaining insights always that are not the law. The district stated: court United States v. conveyed by transcript. you You’ve demonstrated that have a (2d Broxmeyer, 699 F.3d respect total lack of for the law and 2012). Nonetheless, length of a sen [is,] for the law. disdain That may, reaching tence with or without far that, question Court’s view is without restrictions, post-release make it exces if given- opportunity, you will do harsh. See sively punitive needlessly exactly you what want to do Rigas, U.S. v. you very high situation and are a risk to 2009). Sentences that fall into cate these reoffend. gories “shockingly high” are ones that- attempted You to transport thousands of *7 serve no valid public purpose. United images and videos of child McGinn, (2d v. 116, States 787 F.3d 129 into Canada and then later failed to 2015). Cir. appear your for Canadian trial. You at- tempted justice you to evade and when Our review of a sentence for sub States, you were arrested the United governed by stantive reasonableness is the blamed ... Canada You have since dem- 3553(a). § factors forth in set 18 U.S.C. disregard onstrated total for the law and Carr, (2d 93, United States v. 557 F.3d 107 complete respect lack of for this Court 2009). important Cir. One factor is the attorneys and of the who have tried to need for the sentence reflect the seri help you. to promote ousness of the offense and to App. respect 860-61. The district court concluded: the law. 18 U.S.C. 3553(a)(2)(A). your large “provide § on these factors and are to “[b]ased Others 188 Cavera, offense;” in the case.” 550 F.3d at the “afford stances punishment for
just conduct;” upon 191. conclude that the factors criminal We deterrence to adequate which the district court relied —retribu- further public the from “protect and tion, deterrence, incapacitation, and and defendant,” 3553(a)(2), § of the id. crimes of and his crimes— the attributes succinctly, purposes to fulfill the or more weight of the sentence the cannot bear deterrence, “retribution, incapaci- and of conclusion that imposed. district court Our tation,” Park, v. 758 F.3d United States by is reinforced the sentence is excessive (2d 2014). 193, factors 200 Cir. Additional to avoid unwarranted sentence the need by under supplied the Guidelines are and the need to avoid exces- disparities to sentencing required courts are which sively supervised conditions of re- severe nature and circumstances of consider “the remand, we are confident that lease. On history character- offense and the eventually receive a sentence Jenkins will defendant,” and “the need istics of the punishes the crimes he com- properly disparities avoid unwarranted sentence Judge Suddaby, imposing But mitted. with similar records among defendants sentence, far went overboard. con- guilty have been found of similar who 3553(a)(1) (6). §§ 18 duct.” U.S.C. I. obligated to consider We are also with 18 U.S.C. Consistent release supervised conditions
whether
3553(a)(4),
starting
§
the district court’s
court are reason
imposed by the district
2G2.2,
guideline
§
point was U.S.S.G.
statutory
ably related to certain
sentenc
offenses. In
governing
3553(a)(1)
§§
ing factors listed
Dorvee,
v.
we held that this
United States
(a)(2);
greater deprivation
no
involve
fundamentally
“is
different from
Guideline
necessary
im
liberty
reasonably
than is
that,
great
applied
most and
unless
with
plement
statutory purposes
of sentenc
care,
sentences
can lead to unreasonable
pertinent
are
Sen
ing; and
consistent
that are inconsistent with what
3553 re
tencing
policy statements.
Commission
2010).
(2d
quires.” 616 F.3d
Cir.
Dupes,
States v.
513 F.3d
United
' First,
Sentencing
we observed that the
(2d
2008)
3583(d)).
(citing
Cir.
18 U.S.C.
apply
Commission has not been able
have
discretion
district courts
broad
While
increased
expertise
its
but
instead has
release,
supervised
to tailor conditions of
“at the direction
severity
penalties
(2d
Gill,
107, 108
v.
523 F.3d
United States
despite
openly op-
“often
Congress,”
2008), that discretion is not unfet
directed
pos[ing]
Congressionally
these
tered,
Doe,
v.
United States
Second, we not-
changes.” Id. at 184-86.
1996).
responsibility
It is the
sentencing
enhance-
ed that four of
carefully
court to
scrutinize condi
of our
so “run-of-the-mill” and “all
ments were
may
excessively
tions that
harsh or
of conviction”
but inherent
to the crime
punitive.
inexplicably
ordinary
first-time offender is
“[a]n
likely
for a sentence
qualify
in turn
each therefore
We evaluate
whether
factor,
least
to 210 months” based
sentencing
explained by
“as
of at
*8
court,
the base
an offense level increased from
weight
district
can bear
the
as
empha-
totality
circum-
of
to 35. Id. at 186. We
signed it under
the
of
level
violence,
is,
(iii)
(i)
computer, and
image
use of a
3. That
enhancements for
an
forms of
minor, (ii)
image
(iv)
prepubescent
portray-
an
images.
a
600 or more
ing
or other
sadistic or masochistic conduct
range
likely
sized that this
was
un-
Our conclusion that Jenkins’s sentence
shockingly high
reasonable
was
“rapidly ap-
by
because
is reinforced
important advances in our
proaching
statutory
maximum”
understanding
for
of non-production child pornography of-
of child pornography,
distribution
and be-
fenses since we decided
begin
Dorvee. To
cause
offense level failed to suffi-
with, the latest statistics on
application
ciently distinguish between “the most
sentencing
of
enhancements confirm that
dangerous
offenders” who “distribute
the enhancements Jenkins received under
pecuniary
child
gain and
this
Guideline are all-but-inherent. In
higher
who fall in
criminal history cate-
for example, 95.9% of defendants sen-
gories” and those who
per-
distribute for
§
tenced under
2G2.2 received the en-
sonal, non-commercial
reasons.
Id. at
hancement for an
image of victim under
Also,
186-87.
we held that
range
this
age
image
84.5% for an
of sadis-
“irrationality
demonstrated
2G2.2”
tic or masochistic conduct or other forms
substantially
because it was
more severe
violence,
79.3% for an
involving
offense
intentionally
than for an adult “who
600 or
images,
more
and 95.0% for the use
seeks out and contacts a twelve-year-old
of a computer.
Sentencing
See U.S.
internet,
on the
convinces the child to
Comm’n,
Specific
Use Guidelines and
meet and to cross state lines for the
Based),
(Offender
Characteristics
Offense
meeting,
engages
and then
in repeated
201) 42-43,
Fiscal Year
available at http://
sex with the child.” Id. at 187.
www.ussc.gov/sites/default/files/pdfr
expressed
we
concerns
in Dorvee
research-and-publications/federal-
apply with even more force here and none
sentencing-statistics/guideline-
appears
of them
to have been considered
application-frequencies/2014/Use_of_SOC_
pre-
the district court. Jenkins received
Offender_Based.pdf.
cisely the
“run-of-the-mill”
same
and “all-
Dorvee,
Since
Sentencing
Commis-
but-inherent” enhancements that
criti-
sion has
produced
comprehensive
also
Dorvee,
resulting
cized
in an increase in report
Congress
examining
2G2.2.
his offense level from 22 to 35. These
Comm’n,
Sentencing
U.S.
to the
Report
enhancements have caused Jenkins to be Congress:
Pornography
Federal Child
Of-
an
treated like
offender who seduced and
(2012)
Report”],
“USSC
[hereinafter
fenses
photographed a child and distributed the
http://www.ussc.gov/sites/
available
photographs and worse than one who default/files/pdf/news/congressional-
raped a child. Because he also received an testimony-and-reports/sex-offense-topics/
exculpatory
enhancement for his false
tes-
201212-federal-child-pornography-
trial,
timony at
which we conclude was
offenses/Full_Report_to_Congress.pdf.
appropriate,
pro-
his offense level was
report,
explains
the Commission
ducing
range
Guidelines
of 210 to 262 it
non-produc-
“believes that
the current
months.4 Even without this additional en-
tion
guideline warrants revision
view of
hancement,
range
the Guidelines
of 168 to
disproportionate
its outdated and
enhance-
statutory
210 months exceeds the
collecting
maxi- ments related to offenders’
be-
posses-
mum of 120 months for
fully
havior as well
its failure to account
charge.
sion
for some offenders’ involvement in child
offenses;
range
beyond
statutory
4. That
extends
severe of
Guideline
his two
Jenkins's
range
maximum of 240 months for his count of
is therefore 210 to 240 months. See
Dorvee,
transportation
pornography,
the more
worse. punish- he should receive stern While substantively unreasonable for the district crimes, ment for his the fact remains that applied court to have 2G2.2 enhance- fails, required the sentence he received way in at the placed ments 3553(a)(1), §by impor- to account for the very of- top range of the with the worst tant differences between the sentence belong. he fenders where did not produced Jenkins and those who dis- who physi- tributed child
II. For cally abused children received. exam- justified ple, upholding sixty-year court its sen sentence The district Brown, it sig- to the size of Jen States v. we found tence with reference United pornography, repeated collection of child his nificant that the defendant had kins’s multiple young at sexual contact with victims accept responsibility, refusal his others, production in the of child tempts disrespect engaged to blame law, of that reoffending. pornography during and his likelihood of the course 2016). language of 18 U.S.C. abuse. 843 F.3d Paraphrasing 3553(a)(2), Likewise, Broxmeyer, that a we affirmed a the court concluded *10 thirty-year pornography statutory sentence for child minimum and a-mere 15 months was of at- statutory where the defendant convicted below the maximum.
tempted production pornography of child Moreover, bringing personal a collection statutory rape girls of and committed he of pornography child across state or na- mentoring. supposedly was 699 F.3d tional borders is the most narrow and 297. Whether a child offend- way trigger technical the transportation attempted er has had or has to have con- provision. Whereas transporta- Jenkins’s important tact with children is an distinc- tion offense a statutory carried maximum distinguish tion. “The failure to between years, of 20 statutory maximum for his possession-only contact and offenders [is] possession “only” years. offense was face,” questionable on its and this failure eligible Jenkins was for an additional 10 “may go against grain growing of a years’ imprisonment because he was body of empirical indicating literature caught with his collection at the Canadian 3553(a)-relevant significant, there are border rather than in his gov- home. The differences groups.” between these two argues ernment cap- Jenkins was “so Apodaca, United States v. 641 F.3d tivated child pornography that he could (9th 2011); e.g., Shelley see L. not leave behind his collection even for a al., Clevenger et “A Matter of Low Self- Canada,” short Appellee vacation to Br. 84. Exploring Control? Differences Between disagree bringing personal We a col- Pornography Child Possessors and Child lection to the start of a vacation op- Pornography Us- Producers/Distributers posed leaving supplies it at home an ing Theory,” Self-Control 28 Sexual appropriate sentencing basis for a person (2016) (finding Abuse 555 online offenders years prison. to an additional 10 in greater empathy greater have victim addition, In though accept the dis levels of self-control than offline offend- ers). trict court’s observation that Jenkins’s con during duct at trial and sentencing pro Further, among defendants convicted law,” ceedings a reflected “disdain for the transportation, relatively less Jenkins problematic we find the district court’s culpable he bringing because was his col- justifi exclusive reliance on this factor as use, personal lection for his own rather dramatically increasing cation for Jen than carrying to sell or App. kins’s sentence. See 860-61. While we distribute to others. 88.7% of respect do not condone Jenkins’s lack of transportation “engaged those convicted of law, simply for the cannot bear the in knowing distribution to another.” USSC weight the district assigned court to it. dimension, Report Along 189 n.72. Dorvee, 183; 616 F.3d at United States then, near Jenkins is the bottom of the cf. Gerezano-Rosales, v. However, distribution of offenders. the dis- (5th 2012) (holding district court’s de trict court imposed sentence of 225 cision to increase a defendant’s sentence months, statutory near top from 71 108 months based defen range of 60 to 240 months. 18 U.S.C. 2252A(b)(l). disrespect dant’s for the law constituted Admittedly, may judgement balancing in clear error many transporters unlike other he because factors). already sentencing Jenkins had accept responsibility, refused to offered trial, paid heavily disrespectful for his behavior. exculpatory testimony false at his him disrespectful judge. and was to the district The Court denied offense level However, justify acceptance responsibility. these factors cannot reduction for Apparently concluding significant sentence that is 165 months that this above this, insufficient,- support judge case like be some the district sanction as, conclusion, years years onto such proceeded to add record for that light of his failure to sentence previous convictions example, record *11 responsibility, as demonstrated accept attempts to harm children. previous disrespect. rudeness and persistent there none. A sentence of 225 Here is judge’s appreciate the district While we never for a first-time offender who months frustration, unwilling are to sanction to, spoke approached much less dramatically increasing a sentence because touched, explicit a transmitted im- child or pro se defendant angry an out-of-control anybody is unreasonable. ages to fails to manifest facing prison decades prison months in are not Additional system for the that respect sufficient Those months have ex- simply numbers. to incarcerate him. about the in- ceptionally consequences severe for the district disagree also with We con- They carcerated individual. also have that Jenkins’s lack of court’s conclusion society both which bears sequences for high risk to respect very makes him “a of incarcera- the direct and indirect costs court’s App. reoffend.” 861. district justice tion and for the administration of available, ignores widely defini- conclusion when, here, which must be at its best as demonstrating that recidi- tive research highest.5 the stakes are their substantially age. See vism decreases Comm’n, Measuring e.g., Sentencing U.S. Finally, highlights the government History The Criminal Com- Recidivism: as a con- seriousness of Jenkins’s offenses Sentencing putation the Federal Guide- of that pornography, saying, of child he sumer http://www.ussc.gov/ lines available at market for content “encouraged the sites/default/files/pdf/research-and- spurred the abuse of other children and publications/research-publieations/2004/ necessary to exploitation whose would be 200405_Recidivism_CriminaLHistory.pdf. videos, images create new to feed the that offenders- That research documents Appel- like Jenkins.” demand of consumers I History Category be- with Criminal lee Br. 84. But this observation is true of ages 41 to 50 have a 6.9% recidivism tween virtually every child offender. rate, to a 29.5% recidivism rate opposed as undoubtedly correct that “[a]ll It is child Category for I offenders under 21. These extremely are seri- pornography offenses Commission, in- statistics from the which they perpetuate both harm to ous because accepted responsibili- clude offenders who and normalize and validate the sex- victims not, ty suggest as as those who did well Report children.” exploitation ual of USSC Jenkins, an offender with no criminal dispute do not for a moment 311. We history be 63 he is points who will when term of im- Jenkins deserves substantial sentence, lengthy prison released from his Nonetheless, of prisonment. types some high will be a low—not a reoffend —risk culpable are more conduct this area in his since more than 90% of individuals general- courts should than others. District age group Although do not reoffend. at or near the statuto- ly reserve sentences (cid:127)would well within a district court’s dis- offenders. ry maximum for worst cretion to increase a sentence based on a must, the worst of the worst reoffending, Treating of in a Jenkins as likelihood there Corrections, Ad- incarcerating 60-year- Correctional Healthcare: 5. The annual cost of III, $60,000 $70,000, Chronically Elderly, dressing prisoner is the Needs old state $27,000 Terminally available at compared younger III Inmates for inmates. Justice, Department http://static.nicic.gov/Library/018735.pdf. U.S. National Institute grounding has no in the record we are this mean and 105 months above this medi- reviewing par- and is inconsistent with the an is unreasonable.
simony clause. Second, the mean federal sentence the “child pornography” category in 2013
III.
months,
was 136
and the median was 120
The sentence the district court im months. Id. This category included several
posed
type
also created the
hundred
produced
unwarrant
individuals who
disparity
(333,
ed
sentence
compared
1,609
violates
sen-
3553(a)(6).6
Statistics from
tenced
trafficking
the Sentenc
possession
of-
fenses).
ing Commission validate our
Comm’n,
concern. In
U.S. Sentencing
Use of
*12
general, a district court need not consult Guidelines
Specific
Charac-
Offense
Based),
(Offender
Commission’s statistics because there
teristics
Fiscal Year
39-40,
is “no
comparability.”
assurance of
2013
United
available at http://www.ussc.
(2d
64,
v. Irving,
States
gov/sites/default/files/pdf/research-and-
2009). Here, however, the Commission’s publications/federal-sentencing-statisties/
statistics,
readily
which were
available to guideline-application-frequencies/2013/
the district court at
sentencing,
the time of
Use_of_Guidelines_and_Specifie_Offense_
Charaeteristies_OffenderJBased_Revised.
allow for a meaningful comparison of Jen
kins’s
por
pdf.
presence
behavior
that of other child
of such individuals in
nography offenders.
the distribution is a further indication that
a sentence that
is 89 months above the
First, just
§
produces
2G2.2
Guide-
2013 mean
for child
sen-
ranges
higher
lines
that are
than those for
tences and 105 months above the median is
engage
individuals who
sexual conduct
not reasonable.
minor,
with a
Jenkins’s sentence
longer
is
typical
Third,
than
federal sentences for sexual
Sentencing
Commission’s
against
2013,
in-person
offenses
victims. In
2012 report analyzed sentences of offend-
year
the latest
available to the
possession
district
ers convicted of
without a dis-
court at the
of sentencing,
enhancement,
the mean tribution
but with the run-
time
sentence in the category of “sexual abuse”
of-the-mill
previously
enhancements
de-
months,
was 137
and the median was 120
supra
Among
scribed. See
at 188-89.
these
Comm’n,
Sentencing
offenders,
months. U.S.
the mean sentence was 52
Sentencing
Sourcebook
Federal
highest
Statis- months and the
sentence was
tbl.13,
tics
http://www.ussc.
available at
months.
Report
fig.8.3.
USSC
Admit-
offenders,
Jenkins,
gov/sites/defauh/ffles/pdf/research-and-
tedly, these
unlike
ac-
publications/annual-reports-and-
cepted responsibility and did not all en-
sourcebooks/2013/Tablel3.pdf. We
gage
during
believe
misconduct
their criminal
Nonetheless,
Jenkins’s sentence that is 88 months
proceedings.
above
we see no rea-
case,
ordinary
implicitly gives
6.
In the
difficulty,
routinely
a court
district courts have
im-
weight
prevent
sufficient
posed
to the need to
un-
lower sentences for child
offenses,
disparities
warranted sentence
government
when it has
and the
even occasion-
"correctly
carefully
ally
calculated and
reviewed
moves for a lower sentence. In
range.”
the Guidelines
See
non-production
por-
18 U.S.C.
of cases of
44.3%
3553(a)(6);
States,
nography
Gall v. United
552 U.S.
offenses
2010 involved courts’
38, 54,
sentence,
imposition
128 S.Ct.
Likewise the between the posed by Judge Suddaby mean that Jen- employment restrictions on Jenkins’s and kins will never be pay able to his debt to Jenkins’s offense and society. likely circumstances is not He will never be able to readily apparent. develop See United States v. and maintain meaningful relation- Brown, 2005) 133, 138-39 ships others, employment to obtain *14 (vacating condition “seeming where was and remain employed any- or to ever lead ly thing unrelated to offense and that remotely [Defendant’s] resembles a “normal” circumstances”). earlier, As mentioned the life.
nature of employment these restrictions release, As we review these conditions of that, matter, mean a practical may he what is particularly depressing is that the employable. never be Attorney Assistant United States and the prohibits
Another condition probation officer who appeared sentenc- incurring charges open from new credit ing they either believed appropriate were ing ap additional lines of credit without they appropriate or did not believe were proval probation Nothing of a officer. in they but nonetheless stood mute as were suggests the record these imposed. restrictions on do not We doubt for a moment Jenkins’s use of credit cards are “reason that there are other cases in which some 3563(b)(5), ably necessary,” 18 U.S.C. or all of the' conditions imposed by the protect public the or to deter Jenkins from district court required would be and rea- continuing to engage given the conduct for sonable. But personal Jenkins’s which he was possession of characteristics and the nature of his of- convicted— pornography. fense, restrictions, United States v. this constellation of Cf. (1st 1996) (hold 19, Peppe, duration, 80 F.3d compounded by 25-year 23 Cir. their ing that incurring a bar on debt without greater deprivation” “inflicts a on his liber- prior approval reasonably ty related than “reasonably necessary.” is United offense, (2d 122, defendant’s Sofsky, which involved the ex States v. 287 F.3d 126 Cir. credit). tortionate extension of This is es- 2002). your that reflects the seriousness tence
CONCLUSION law, crime, respect for the promotes that substantively un- is sentence adequate deter- provides you that with we vacate it and Accordingly, reasonable. crimes, committing rence from further resentencing. panel This will for remand (Sentencing protects* public.” the any subsequent ap- jurisdiction over retain 30.) (“S.Tr.”) that it stating Transcript notify the may Clerk peal. party Either “this sentence sufficient but [to be] found days of fourteen appeal a renewed within necessary comply with greater than not United court’s new sentence. the district (S.Tr. 29), sentencing” the purposes (2d 612 F.3d Cir. Tutty, v. States heavily by its view court was influenced Jacobson, 2010) v. (citing United States term, that, lengthy prison Jen- without 1994)).7 (2d 19, 22 F.3d repeat his offenses. likely kins would be said, It inter alia: KEARSE, Judge, dissenting Circuit part: your attorney disagree I couldn’t you’re not a says more when she from so much of respectfully
I
dissent
again.
this crime
threat
to commit
majority’s opinion as rules that
you
have a
You’ve demonstrated
of the sentence
imprisonment component
the law and
respect
total
lack of
Jenkins,
Joseph
imposed on defendant
is,]
for the law.
That[
disdain
range, is
applicable
Guidelines
within
that,
question
without
Court’s view it is
substantively unreasonable.
opportunity, you
will do
given
if
summary order
is revealed in the
As
to do in
exactly
you
what
want
case,
in this
contemporaneously
filed
very high
risk
you
situation and
are
sentencing
court in
Jenkins did not
district
to reoffend.
any procedural error. Where we
commit
“
added).)
(S.Tr.
district court’s
This view
(emphasis
determined ‘that the
29-30
have
alia,
procedurally
supported by,
is
inter
Jenkins’ eva-
sentencing
decision
”
Cavera,
sound,’
against
him in Canada
charges
States v.
sion of the
United
(en banc)
2008)
(quoting
repeated
throughout
insistence
States,
38, 51,
nothing
had done
prosecution
v.
552 U.S.
that he
Gall United
(2007)),
validly
prosecuted.
wrong
at STATES Appellee, The district court noted that after Jen- “attempted to transport kins thousands of v.
images and videos of child DIAZ, Defendant-Appellant. Jose into appear Canada and then later failed to Canadian trial” and was [his] arrested Docket No. 15-3776-cr States, in the United he somehow “blamed August Term, 2016 (S.Tr. 30.) fact, Canada.” the court not- ed that Jenkins “has everybody blamed United States Court of Appeals, (Id. everyone for his activity.” criminal Second Circuit. 29.) Indeed, Jenkins even blamed the Argued: November depicted children pornographic im- ages and transported, stating videos he Decided: April images of those “are “[m]ost” ‘web- (victims) videos, they cam’ intentionally (themselves)
produced and broadcast over
the internet prosecuted and should be
(themselves).” (Jenkins’ pro sentencing se added).)
memorandum at 2 (emphases Jenkins,
Given this record inter which
alia, any justification disputed authority him,
for prosecuting argued that in-
stead the who children were victims of the should prose- have been
cuted, the district court’s concern for the that, lengthy
likelihood without a prison
term, Jenkins would re-offend was not un-
reasonable, I and cannot conclude that the
imposition prison of the term that was no
higher midway than top between the
bottom of the range Guidelines “cannot be range
located within the permissible
decisions.”