United States v. Reingold

Court did District conclude We issuing pro- discretion

not abuse its barring depositions of order

tective Deputy Bloomberg and former

Mayor Skyler.

Mayor

CONCLUSION parties’ all of the have considered

We appeal and find

remaining arguments on For the rea-

them to be without merit. above, judg- we AFFIRM stated

sons Court.

ment of the District America,

UNITED STATES

Appellant,

Corey REINGOLD, Defendant-A

ppellee.* No. 11-2826-CR.

Docket Appeals, Court of Circuit.

Second 4, 2012.

Argued: May Sept.

Decided: preserve in their brief. the district court” reference concerning protective To order. review, (2d States, arguments appellate appellants for 78 F.3d Frank v. United in their briefs their "contentions Cir.1996), must include grounds, vacated other them, with citations to reasons L.Ed.2d 1007 parts of the record on authorities brief, (1997) (mem.). plaintiffs refer In their appellant R.App. Fed. P. relies.” they argued "joint points” to "twelve 28(a)(9)(A). sufficiently argued Issues not Plain- the District Court. submitted to letter” ineligible ap- waived will be deemed not, however, as to elaborate further do tiffs Club, pellate Norton v. Sam’s review. points” are. "twelve what those (2d Cir.1998). Appellants do * amend the is directed to The Clerk of Court preserve questions appellate review caption as above. incorporating argument official shown “[mjerely made to this imma

applying punishment defendant would violate 19-year-old ture Punishment the Cruel and Unusual Const, amend. VIII. Clause. See U.S. disputes the further district government calculations. Sentencing court’s Guidelines brief), Busa, (Amy on the Ali Kazemi sentencing its explained The court Attorneys, for United States Assistant in and a 401- decisions both on record Attorney Lynch, E. Loretta accompanied by pages 55 page opinion York, District of New for Eastern C.R., See States v. 792 appendices. United Appellant. NY, Brooklyn, (E.D.N.Y.2011).2 Having F.Supp.2d 343 Bureau, Cassidy, Appeals P. Colleen opinion, the carefully appli reviewed that York, Inc., of New Federal Defenders law, whole, and the record as a we cable York, NY, Defendanb-Appellee. New court in that the district erred conclude govern by the respects both identified LOHIER, RAGGI, SACK, Before: therefore remand the case to ment. We Judges. Circuit the district court with directions vacate the sentence resentence RAGGI, Judge: Circuit REENA opinion. defendant consistent in the pleaded guilty Corey Reingold for the East- United States District Court Background I. (Jack B. Wein- ern District of New York Leading A. Pros- Events stein, distributing Judge) to one count ecution See 18 U.S.C. pornography. child 2252(a)(2). ap- agent On an of the The United States now November (“FBI”), Bureau Investigation 2011 Federal peals part from that June in an un- investigating Rein- child conviction as sentenced judgment gov- capacity, computer dercover accessed gold to 30 months’ incarceration. program “GigaTribe,” called which allows ernment contends that the district their com- refusing to the minimum users to download material onto impose erred in place then folders prison by puters term mandated some five-year 2252(b)(1) designated sharing with others. For ground on the investigation anony- filings, opinion, criminal circulated In its as well as various by Reingold mous accusations of doubtful the district court referred to and unverified time, that, uncharged persons. veracity against "C.R." We note same id. initials contrast, by Reingold By identified his full name was the named adult 1047-48. as electronically certain documents remain which defendant in criminal case in from the files of the Eastern District available adjudicated guilty, Reingold has ex- been no of New York. identity. pectation privacy in his See id. at (noting public’s presumptive right of identify shielding the We basis in law for no judicial pertaining to information access identity of an adult criminal defendant. Cf. adjudications); (recognizing at 1050-51 id. (providing privacy protec cf. Fed.R.Crim.P. 49.1 privacy par- third interests of "innocent circumstances). different in limited No tions exception presumption may ties” warrant v. Amo conclusion obtains from United States access). public We refer to Rein- deo, (2d Cir.1995), therefore cited gold by his name on our docket in this pro Reingold. case At issue Nevertheless, opinion. beсause the district unsealing investigative report priety of an that, reported published opinion is Unit- among things, identi court's would have other C.R., ongoing ed we cite it as such. States v. fied confidential informants each des users to access other’s files in GigaTribe designated fold- folders, sharing they must ignated ers with between 10 and 20 Giga- other buddies,” the same “closed network Tribe users. Report Pre-Sentence Id. at accomplished invitation.' ¶ (“PSR”) 9; C.R., see United States v. omitted) (cit (internal quotation marks F.Supp.2d Subsequent at 353. forensic Ladeau, ing States v. No. 09-CR- analysis would confirm that the seized 40021-FDS, at *1 WL linked computer GigaTribe (D.Mass. 2010) Apr. opera (describing contained more than video and at files GigaTribe)). tion of digital images least 208 pornogra- agent Gi- When undercover accessed phy, while the computer seized linked to on gaTribe November he observed LimeWire por- contained videos of child pornography mini-profile child in the of a nography. person “Boysuek0416.” the username with agent The also that this full noted user’s Reingold’s B. Admissions to Sexual

profile Love “Boy contained the terms Conduct with Minors BCP,” agent KDV PJK which the identi fied child search terms. pornography of part plea negotiations As initial with files, user to agent invited the share prosecutors, Reingold federal agreed to and the user the agreed, agent after down take a polygraph examination -withthe un image loaded ten videos and one still of derstanding that he would be allowed to the pornography desig child from user’s plead guilty possession to simple of child nated share folder. See United States pornography, see U.S.C. (“A Ladeau, at *1 WL user 2252(a)(4)(B),3 truthfully if could he state join Giga- can the of also networks other that he had not had sexual contact users, permission Tribe but the with minors. polygraph Even before the network.”). user the who сreated the examination, however, Reingold admitted proceeded He then trace the In user’s engaged to federal authorities that he had Protocol ternet address to residence at minor his half-sister sexual activities on Queens, 3-14 Beach 147th New Street three occasions over a course of three York, which turned to be out the home years. Specifically, Reingold stated that McLeod, Jamie and Brian the and mother (1) eight, when he was 15 and his he sister Reingold. stepfather Corey defendant manually penis; had the child stimulate his 15, 2009, January agents On FBI exe- (2) Reingold when was 16 and sister his a search cuted warrant the McLeod nine, again girl he had the stimu manually computers home and seized ex- two used penis late his his while rubbed hand by each clusively Reingold, of which con- underwear; through vagina over her her pornography. Reingold, tained child who when Reingold was 18 and search, present was the time girl manually sister he had stimu “Boysuck0416”; admitted he was penis vagina late his he rubbed while her opened he had GigaTribe account both her over beneath underwear. November and used and another Reingold subsequently admitted that dur LimeWire, sharing program, file to down- encounter, ing “a ton” of this third sexual he also load child onto the computers; perform seized he had the child oral sex on shared coached 2252(a)(4)(B) punishable prison A violation of 18 U.S.C. car- term of more "not 2252(b)(2). mandatory years.” penalty ries no minimum but than 10 18 U.S.C. treatment. offers inmates sex offender turn, oral sex on and, performed him at 520-24. id. her.4 10, 2011, initial sentencing May On Sentencing C. Plea accept date, the district court declined Entry Acceptance magis- guilty plea before Reingold’s Guilty Plea un- judge, questioning whether trate 18, 2009, was indict- On March child agent’s pornog- retrieval of dercover jury sitting in the Eastern grand ed Reingold’s designated from shared raphy New York on four counts District of GigaTribe enough make on folder distributing based under guilty the defendant distribution “sharing” specified of four GigaTribe 2252(a)(2). Although gov- agent on No- video files to undercover urged both ernment and defense counsel see 18 U.S.C. vember plea,5 the district court acceptance 2252(a)(2), (b)(1); of pos- and one count 16, 2011, adjourned May case id. pornography, sessing matter further. it to consider the allow (b)(2). 2252(a)(4)(B), On September guilty 16, 2011, before a ac- Reingold pleaded May On judge to the first distribution magistrate Reingold’s On the rec- cepted guilty plea. count. ord, acceptance that was explained its all other in- on the allocution and “based Reingold’s formally accepting Before May formation known to me.” now anticipation and in of sentenc- guilty plea In Sentencing pub- Tr. 5:21-22. its hearings conducted ing, the district court however, day, the opinion lished filed same May 2011 September 2009 and between expressed the court continued res- district expert “a wit- where it heard from dozen as the defendant had ervations to whether abuse; in the of child sexual nesses fields knowing inten- adequately admitted assessment; risk pornography; online child pornography tional distribution of child offenders; neuropsy- sex treatment of 2252(a)(2). proscribed by 18 U.S.C. develop- chology and adolescent brain C.R., C.R., F.Supp.2d States v. United ment.” States v. require proof to (construing 353-55 statute Together prosecu- F.Supp.2d 349. child intent[ ]” “active to transfer tors, counsel, both and two of his law defense and “active person to another clerks, judge the district also traveled delivery pornogra- participation” in of such personally toured FMC Massachusetts end, however, In the district Devens, facility phy).6 that the the Bureau Prisons that, guilty plea 5. that a 4.Reingold at times Defense counsel submitted further admitted engaged five-year carrying when he was either 18 he had a a distribution count ac- who were minors in sexual Reingold's three friends interest because minimum was (1) boy penis tivity: 15-year-old a whose considering superseding government was point ejacu- Reingold had stimulated advertising charge add the indictment to lation; (2) 15-year-old girl with a whom carrying 15-year mandatory sen- minimum performed genital Reingold had mutual stim- (e). 2251(d)(2), See U.S.C. tence. sex; 16-year-old and oral ulation Reingold girl- vagina whose had touched court, hearings the district In conducted through pants. gov- her sweat Because Reingold goal participating stated that Reingold’s activity focuses on sexual ernment GigaTribe website was "to receive in the than other encoun- with his sister rather these C.R., pornography.” making arguments appeal, ters on certain Nevertheless, F.Supp.2d at "in achiev- we discuss this additional conduct do not ing goal he had to make his he knew that further. guilty accepted plea, explaining gold’s crime of subject court conviction was to a distribution mandatory statute’s element prison minimum sentence of might Reingold’s to reach be construed pursuant five 18 U.S.C. conduct; reasonably jury that “a could find 2252(b)(1).. Further, based Sentenc- not truthful [Reingold] was when ing Guidelines calculations yielding a total testified that he did intend to distrib- level of offense 35 and a criminal history individual”; his files to another that a ute I,of category reported the PSR that Rein- guilty plea can accept court even when gold’s sentencing recommended range was innocence, defendant maintains his “as 168 to 210 imprisonment.8 months’ long strong as there is a factual basis The district court quite viewed the case plea”; record showed differently. Rejecting the Probation De- Reingold thoroughly to have considered partment’s application of various enhance- guilty sup- his decision plead with the calculation, ments to Guidelines counsel, port of close relatives and able court district appli- concluded accept and to have demonstrated a wish to Sentencing cable range Guidelines responsibility for his conduct. Id. at 356- Reingold’s case was 63 to 78 months’ im- (citing Alford, North Carolina prisonment.9 The 37-38, 27 L.Ed.2d further (1970)).7 determined that should not sentenced even within that reduced Guide- 2. Reingold’s Sentencing range lines because such term of impris- court, greater its PSR to the district necessary onment than Probation Department objectives advised that Rein- achieve 18 U.S.C. presence files available to others.” were warranted pre-pu- for the Id. images possession bescent and for the of 600 images pornography, or more of child and challenges sufficiency party 7. Because no the timely that a reduction was warranted for Reingold’s of plea allocution or of find- these acceptance responsibility. of See United ings by support the district court in of its C.R., F.Supp.2d v. States at 511-12. But accept plea, any decision to we deem impose any it declined to distribution en- challenge plea to the itself and forfeited do hancement, concluding Reingold’s that “ac- opinion. not discuss it further in this tions did not distribution constitute] under Id. at The district statute.” 511. court Department The at 8. Probation arrived of- rejected application pattern of also of by starting fense level 35 with a offense base abuse enhancement because two of the inci- 22, 2G2.2(a)(2), § of level see U.S.S.G. to Reingold’s dents with had half-sister occurred points presence which it added two for the of minor, id., Reingold while was a see and the 2G2.2(b)(2); pre-pubescent images, § see id. separat- trio activities "were of aberrant acts points two for distribution in a manner measure, long periods, large ed in due to Guidelines, otherwise described see id. proper supervision,” parental the failure of 2G2.2(b)(3)(F); § points pattern five for a 16, May Sentencing Tr. 15:24-16:1. Fi- abuse, Reingold's based on molestation his nally, appli- the district court concluded that half-sister, 2G2.2(b)(5); points see id. two computer-use cation of the enhancement 2G2.2(b)(6); computer, for use of a see id. counting would and "result[] double is not points five possession and for of 600 more particularized sufficiently to facts of the images pornography, id. of child see C.R., F.Supp.2d case.” United States v. at 2G2.2(b)(7)(D); which it after subtracted Accordingly, the district court calculat- timely points acceptance responsi- three 26, Reingold’s ed total level at offense bility, see id. 3E1.1. I, history category yielded with a criminal advisory imprisonment agreed Reingold’s range The district court that Guidelines 22, base offense that level was enhancements of 63 to months. mandatory holding 3553(a). Congress had statu- trict court erred Insofar unconstitutional. of at minimum sentence sentence

torily prison mandated guilty defendant any least five Eighth to Applicable B. Standards pornography, the district distributing child Analysis Amendment such a sentence that concluded punish- and unusual constitute cruel would Eighth The Amendment states given particu- his ment in case required, nor shall not be bail “[e]xcessive immaturity passivity and the relative lar cruel un imposed, nor and excessive fines C.R., Const, v. States crime. inflicted.” punishments usual Accordingly, F.Supp.2d 509-10. cruel un identifying VIII. In amend. Reingold to 30 court sentenced punishments, Supreme has usual Court years’ super- five imprisonment, months’ conceptions” to not limited itself “historical release, special assess- vised a $100 sanctions, v. impermissible Graham Reingold recommended that ment. It Florida, 48, 2021, 2011, S.Ct. 560 U.S. in the FMC Devens Sex serve his term (2010), but looked 176 L.Ed.2d 825 “ allowed Program Treatment Offender evolving decency ‘the standards of ” him self-surrender.10 maturing society,’ progress mark Louisiana,

Kennedy v. 554 U.S. (2008) 2641, 171 L.Ed.2d 525 II. Discussion Dulles, 356 U.S. (quoting Trop Challenge A. Eighth Amendment (1958) 590, 2 (plurali S.Ct. L.Ed.2d 630 Mandatory Minimum Five-Year punishment A ty opinion)). will when deemed “cruel unusual” argues the district government barbaric,” “inherently it is also when but legally obligated court was “disproportionate crime.” Gra Reingold five-year prison to the minimum Florida, 2021; ham S.Ct. 2252(b)(1) term mandated 18 U.S.C. Michigan, 501 U.S. 997- Harmelin pornography. distribution of 98, 111 115 L.Ed.2d 836 It court erred as submits the district J., (Kennedy, concurring part con holding applica- a matter of law judgment) history curring (tracing in the minimum sentence tion of that mandated proportionality principle).11 Eighth violate the would de a district We review novo Amendment. Principles 1. General Constitutional law, including court’s “[e]onclusions Proportionality involving questions,” those constitutional (2d Fell, 197, appeal proportionali- 209 This focuses on the v. 531 Cir.2008), ty aspect Eighth jurispru- the dis- Amendment and here conclude that Florida, 2022; at also v. government argues that S.Ct. Marks 10. The self-surrender 130 3143(c)(1). States, 193, 990, 188, precluded by 18 U.S.C. 97 430 U.S. S.Ct. now ("When surrender and is (1977) Because did fragmented 260 51 L.Ed.2d moot, imprisoned, point gov- the which the single rationale court decides a case and no concedes, we do discuss it ernment and not explaining enjoys the five the result assent of appeal. on this further Justices, holding may the Court the by position mem viewed as that taken those Graham, recognized Supreme the 11. In Court judgments bers concurred in the who Kennedy’s concurring opinion in Justice (internal grounds.” quotation narrowest joined by and Harmelin. in Justices O'Connor omitted)). marks Souter, ''controlling” in its discussion of proportionality. v. Graham constitutional

211 The Court inter- a “lack Supreme objective [of] denee. first clear standards to preted Eighth prohibit Amendment to distinguish between sentences for different “ ” in ‘greatly disproportioned’ sentences years.” terms of v. Michigan, Harmelin States, 349, 371, v. 217 Weems United U.S. (Ken- 998-1001, 501 U.S. 111 S.Ct. 2680 (1910) 544, (quoting 30 L.Ed. S.Ct. 54 793 J., (internal nedy, concurring) quotation ‍​​‌‌​​​​​​​​‌‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌​‌‌‌‌​‌‌​​‌‌‌‌‌‍Vermont, 340, O’Neil v. U.S. omitted). marks (1892) (Field, J., S.Ct. L.Ed. 450 then,

dissenting)). Since the Court has Reviewing Proportionality aof emphasized that constitutional proportion- Punishment in a Particular Case ality principle is a in it “does “narrow” Supreme proportionality Court’s it require proportionality,” strict into cases fall two classifications. “The “forbids extreme sentences that are challenges first involves to the length of ‘grossly crime.” disproportionate’ all term-of-years given sentences the cir Michigan, Harmelin v. 501 U.S. at in particular cumstances case.” Gra J., (Kennedy, concur- Florida, ham at 2021 (empha v. 130 S.Ct. Helm, ring) U.S. (quoting Solem added). In making case-particular sis 277, 288, 77 L.Ed.2d 637 proportionality, assessment of the Court (1983)); Florida, accord Graham employed analysis, a two-step first S.Ct. at 2021. “comparing gravity of offense and A number nar- principles inform this severity of the sentence.” Id. at 2022. row view of the constitutional mandate of already discussed, principles Given the (1) proportionality: the “substantial defer- “ Court has observed that will be ‘the generally ence” reviewing owed courts in rare compari ease this threshold authority “to the legislatures broad son ... leads to an gross inference of necessarily determining possess ” disproportionality.’ (quoting Id. Harme types punishments limits Michigan, lin (2) crimes”; recognition Eighth that the (first J., (Kennedy, concurring) S.Ct. 2680 “any Amendment one does mandate omitted)). alteration Graham Should penological theory” “competing and that arise, however, inference the sec mandatory discretionary theories of analysis requires step ond court to sentencing have varying degrees been “compare defendant’s sentence with ascendancy beginning or decline since the other sentences received offenders (3) of the Republic”; respect for the jurisdiction the same the sen divergences underlying “marked both in imposed tences for the same crime other sentencing length theories of and in the jurisdictions.” Only Id. this compara “[i]f in- prescribed prison terms” that “are the analysis an initial judg tive ‘validate^] evitable, beneficial, often fed- result of the grossly dispro ment that [the] structure”; eral prudential under- ” portionate’ will the sentence deemed standing proportionality that review (quoting “cruel and unusual.” Id. Harme by objective “should be informed factors 1005, Michigan, lin v. 501 at 111 U.S. extent,” possible the maximum that (alter J., concurring) (Kennedy, S.Ct. 2680 prominent objective “most is the factor original)). in ations type of that punishment imposed,” and review, case-particular In while the Court the Su- Supreme frequently has objective cap- preme referenced has thus far identified a “the line between Court punishment grossly ital a imprisonment term-of-years dispro- sentence as years,” acknowledged term of portionate itself one occasion. Solem 212 of co- Helm, large of this amount sentenced a session Dakota court a South violence, crime, and so- of six non- terms of prior a record caine—in

defendant with enough to a non-manda- cial momentous felony displacement convictions violent —is imprisonment pa- without term of life and retribution tory warrant deterrence in the a bad amount passing parole.” check Id. at role of a life sentence without 279, 281-82, at 103 463 U.S. 1003, See $100. 111 S.Ct. 2680. a Supreme drew Court S.Ct. 3001. Thereafter, California, Ewing 538 disproportion- of gross threshold inference 1179, 108 11, 123 S.Ct. 155 L.Ed.2d fact that the crime convic- ality from the rejected (2003), Supreme pro a Court passive of the most felonies tion was “one prison to a portionality challenge sentence commit,” involving “neither person a could imposed pursuant years of 25 life any per- threat of violence nor violence Three Law on a recidi California’s Strikes (internal son,” 296, 103 3001 id. at S.Ct. $1,200 stealing vist felon convicted omitted), pun- while the quotation marks clubs, 16-18, at golf see id. worth of non-capital ishment “the most severe” was (plurality) (referencing Cal.Pe S.Ct. 1179 im- “that the State could have 667(e)(2)(A)). Declining nal Ann. Code crime,” any any criminal id. posed on gross dispropor- to draw an inference of 297, 3001. That inference of at 103 S.Ct. that tionality, plurality the Court reasoned disproportionality was then validated grand felony not one defendant’s theft was fact “Helm treated more se- was person a could passive of the most crimes been in verely than he would have commit, legislature the California 300, at other State.” Id. 103 S.Ct. 3001. pub judgment protecting “made Solem, the Court has Supreme Since safety requires incapacitating lic criminals chal- consistently rejected proportionality at already who been convicted of have lenges prison particular sentences crime[, and serious or violent least one Michigan, In Harmelin v. cases. njothing Eighth Amendment upheld statutorily mandated term Court making from prohibits California imprisonment parole of life without 25, 28, 1179; at 123 S.Ct. choice.” Id. Michigan case of recidivist defendant Andrade, 538 U.S. Lockyer grams co- possessing convicted of (reject S.Ct. 155 L.Ed.2d caine. See 601 U.S. S.Ct. 2680 habeas ing prisoner’s Eighth Amendment J., Declining to (Kennedy, concurring). years to life challenge to sentence of gross dispro- draw threshold inference Three law for under California’s Strikes Kennedy portionality, Justice observed approximately of vid stealing worth $150 distinguishable crime that Harmelin’s eotapes). minor, “relatively from the nonviolent plain, cases same these make at the As Solem,” crime at becаuse the issue Eighth prohibits time that the Amendment use, ille- “[possession, and distribution of sentences, it is grossly disproportionate drugs greatest gal represent one falling legis rare that a sentence within affecting problems the health welfare will be latively prescribed term population.” of our Id. at (internal omitted) grossly disproportionate. deemed quotation marks Michigan, Harmelin v. 501 U.S. range activity as- (recognizing criminal J., (Kennedy, concurring) possession). drug sociated with In such capital the context of circumstances, Legislature (noting “outside Michigan “the punishment, challenges to that the threat could with reason conclude successful are society proportionality particular sentences by pos- posed the individual and 213 (alterations Florida, practice internal at issue.” exceedingly rare” Graham v. (internal omitted; at 2022 quotation in 130 S.Ct. quotation emphasis marks omitted). Polk, marks But because “[c]ommuni original)); accord United States v. consensus, ty (1st Cir.2008) great while entitled to 74, (observing 546 F.3d 76 weight, itself determinative of gross disproportionality” that “instances of a punishment whether is cruel and unusu rare”). are “hen’s-teeth al,” it proceeds then to a step. second Id. (internal quotation 2026 marks omit Ensuring Proportionality Through ted). by the “[GJuided standards elabo Categorical Rules by controlling rated precedents “The of [proportion second classification own understanding Court’s and inter ality] categorical cases has used rules to pretation Eighth text, Amendment’s Eighth define Amendment standards.” history, meaning, and purpose, the Court Florida, Graham v. 130 S.Ct. at 2022. must determine the exercise of its own Graham, categorical pronounce Until independent judgment whether the pun respect single ments were to a made question ishment in violates Constitu penalty death fell punishment —and —the (internal tion.” Id. at 2022 quotation subsеts, into “two one na considering the omitted). In inquiry, marks this a court ture of the offense” which death was properly culpability considers “the of the ordered, considering “the other the charac offenders at in light [class of] issue teristics of the offender” sentenced to characteristics, their crimes and along Thus, Supreme death. Id. Court severity punishment with the categorically prohibited death sentences question.” Id. at 2026. It “also considers against for “nonhomicide crimes individu challenged whether the sentencing prac als,” id., rape, Kennedy such as see v. legitimate tice penological goals.” serves Louisiana, 413, 2641, 128 S.Ct. Id. felony par murder where'the defendant Florida, In the Supreme Graham ticipated felony but did kill or Court for first time this anal- applied intend kill anyone, see Flor Enmund v. ysis to pronounce categorical rule for a ida, 801, 3368, 458 U.S. S.Ct. non-capital sentencing practice: the impo- (1982). L.Ed.2d 1140 The Court has also imprisonment parole sition of life without categorically prohibited death sentences juvenile offenders for nonhomicide juvenile defendants, Roper see Sim just crimes. Court concluded that as mons, 551, 578, 543 U.S. Eighth categorically pro- Amendment (2005), persons L.Ed.2d are who punishment juvenile capital hibits of- retarded, mentally Virginia, Atkins fenders, so too it categorically pro- does 536 U.S. without parole hibit life for those same (2002). L.Ed.2d 335 when they offenders stand convicted of types In identifying types crimes or nonhomicide crimes. See S.Ct. at capital punish of defendants for whom conclusion, reaching categorically disproportionate, ment is kinship Court between sen- identified Supreme prescribed two-step Court has imprisonment death of life tences of analysis. objective It considers in- “first without that warranted certain cat- parole standards, society’s dicia of еxpressed egorical proportionality. rules to ensure legislative prac enactments and (observing state See id. at that al- tice to determine whether a na though there is State does not execute the “[t]he against sentencing parole,” tional consensus offender sentenced to life without imposing pos- will before the harshest stances guarantees sentence “Graham’s juveniles.” Id. Nevertheless, penalty sible for the Court in prison”). die Eighth Amendment construe the did not Man- Proportionality C. Review the re- juvenile be defendants require datory Five-Year Minimum Sen- during their natural some time leased at Applied tence as (“A not State is life. at 2030 See id. Court’s Mistaken Reli- District freedom guarantee eventual required to “Categorical Analysis Rule” ance on a non- juvenile convicted of to a offender Proportionality To Assess the crime.”). required only It homicide Mandatory Five-Year Sentence meaningful op- juveniles given “some be This Case Particular based on dem- portunity to obtain release appears The district court have con maturity and rehabilitation.” onstrated categorical rule strued Graham invite Id. sentence, in analysis any term-of-years term, pronounced anoth Last Court cluding mandatory five-year sentence of life er for sentence categorical rule C.R., at issue See United States v. here. mandatory ap barring its parole, without at 507. This misconstrues F.Supp.2d juvenile plication to offenders convicted Graham. Alabama, Miller homicide crimes. See First, recognized, Miller Graham’s as — U.S. -, L.Ed.2d “unprecedented” imposition categori (2012). Here, Supreme Court capital the context of sen cal ban outside constitutional re categorical identified no tencing recogni from the Court’s derives juveniles to life quirement that sentenced juveniles for parole tion life without imprisonment for afforded murder be penalty.” was “akin to the death Miller It ruled some for release. opportunity Alabama, Nothing 132 S.Ct. at 2466. only juve for parole that life without suggests Miller that a five- Gmham or mandatory nile not offenders could year prison inherently term is the sort of sentencing had to reflect individualized penal harsh that —like the death sentence determination. See id. at 2460. equivalent, life ty imprison or its deferred reaching conclusion, the Court parole requires categorical ment without — only analogy reiterated the Graham proportional rules to ensure constitutional and life drew between death sentence felony ity applied particular crimes parole, without but also clarified that Certainly, classes of defendants. a five- or possi- between these two harshest kinship does year deprive sentence a defen explained pro- ble sentences Graham’s release, the hope dant of all cate way a categorical nouncement of rule “in a gorical Supreme limitation the Court unprecedented imprison- for a term of thought constitutionally necessary for kin- Relying ment.” Id. on imposed juve mandatory life sentences on ship, precedent categorically bar- imprisoned for nile defendants nonhomi- ring capital punishment juveniles both Florida, 130 cide crimes. See Graham v. mandatory punishment capital five-year 2030. Much less does adults, Eighth Miller held that “the equate to one of law’s most “principle proportionality” Amendment’s punishments” as to serious so raise life categorically prohibited mandatory identified in Miller constitutional concerns parole juveniles. mandatory without at 2475. applica Id. v. Alabama about the Thus, juveniles. to all judge jury parolе “a must have tion of life without 2467, 2471; also opportunity mitigating circum- 132 S.Ct. at Harmelin consider

215 995, 111 Michigan, acknowledged v. 501 U.S. at it that qualities “[t]he (“[A] distinguish sentence which is not otherwise juveniles 2680 from adults do not and unusual” does not so an disappear “become[ ] cruel when individual turns 18.” (internal 574, 125 mandatory.” because it is simply U.S. at S.Ct. 1183. Neverthe omitted)). less, quotation Accordingly, marks “a line must be drawn” pronounce mandatory rule, five-year categorical minimum sentence is age because “[t]he sort of sentencing practice not the of 18 point society is the where draws the requires Court has Supreme signaled purposes ever line for many between childhood adulthood,” rules to categorical ensure constitutional the Court used age proportionality. distinguish class of offenders that cate gorically not could be sentenced to death Second, pur insofar as the court district from others whom no such categorical ported identify against five- consensus prohibition apply. would Id. This is not to year prison juveniles terms for convicted suggest an adult defendant’s immatu crimes, by of child are no we rity is irrelevant to sentencing. To the persuaded analysis. by means its We contrary, that circumstance is appropriate however, not point, need discuss the be ly by a judge considered in making a case- any such cause consensus is not relevant specific choice sentence within a statuto Reingold already here. 19 when he rily prescribed range. See generally 18 committed the crime of conviction. 3553(a), §§ 3661. We here con short, adult, he was an juvenile. not a The clude that the district court could district tries to blur distinction substitute the defendant’s relative immatu juvenile between and adult offenders rity age minority the actual in apply that, finding crime,” “at the time of the ing categorical-rule analysis to the man Reingold developmentally was “a imma five-year dated minimum sentence at issue. C.R., young ture adult.” v. United States F.Supp.2d Third, at 506.12 accept not, Even if we any court did assessment, however, event, hardly sup it employ Graham’s analytic ap categorical ports analysis rule in this case. proach pronounce a categorical rule. Rather, any employed Nowhere does the record con analysis reveal such to find sensus about how five-year immature adults should minimum “dispropor sentenced child pornography tionate to the offense” of conviction “as Moreover, immaturity, age, crimes. unlike applied to this defendant.” subjective criterion, C.R., is a ill F.Supp.2d suited to the at 510 (emphasis pronouncement of categorical quotation rules. See added and internal marks omit ted). generally Supreme Harmelin v. Michigan, The Court’s proportionali J., (Kennedy, ty jurisprudence S.Ct. 2680 con does support curring) (emphasizing proportionality categorical-rule substitution Graham’s objective review “should be approach informed particular-case for Harmelin’s factors to the maximum possible extent” approach to assess the proportionality (internal omitted)). quotation permissible marks an term-of-years otherwise when, Supreme recognized Court much applied particular as sentence as to a case. “[djrawing Graham, age” explained the line at As the Court where Simmons, eligibility for death in Roper proportionality term-of-years sen- Reingold’s "immaturity” have functioning did not its his "level of intellectual is in C.R., origins organic damage cogni high-average range.” brain States (internal contrary, F.Supp.2d tive limitations. To the at least one quotation omitted). who doctor interviewed found that marks case, a court must first considеr particu particular to a challenged applied tence is specific for a “gravity convicted of the offense and lar defendant whether the analytic crime, approach is that the proper give rise to severity of the sentence” Ewing, Harmelin and which employed in gross disproportionality.” of “inference comparison between “a threshold requires (in Florida, 130 S.Ct. at 2022 Graham penalty gravity and the severity of the the omitted). marks The dis quotation ternal Florida, the crime.” Graham of comparative this trict court failed to make “type It is a of at where S.Ct. here conclude We do so assessment. an challenged applies “as it to is sentence” inference comparison supports that the no have offenders who commit entire class of the gross disproportionality applying of “a that such thresh range a of crimes” ted by five-year minimum sentence mandated ... the comparison does not advance old 2252(b)(1) Reingold. to categorical approach” “the is analysis” and Thus, Id. at 2022-23. properly employed. Graham, Gravity a. The the categorical approach a of Offense proportionality a chal required to assess with of the offense Starting gravity the imprisonment to of life lenge a sentence issue, the question at there can be no the of parole applied as class

without a pornography of child is dissemination age persons under the of 18 convicted of injury to serious crime that causes real By range of nonhomicide crimes. con As Con particularly vulnerable victims. trast, here, mandatory minimum sen courts, all gress, recognize, and scholars as years challenged applied of is tence five de crimes their core particular of im because his maturity and the circumstanсes under exploitation mand the sexual and abuse pornography. distributed seriously Not are children children. inquiry properly That is proportionality emotionally, and men physically, harmed — conducted reference to Harmelin’s tally such process producing the —in case-specific rather than cate Graham’s but that harm then exac pornography, is analysis. gorical-rule circulation, years erbated often particular-case analy- fact, When conduct graphic we after the of a record here, indo next sis as we section New exploitation child’s and abuse. See opinion, this we conclude that statuto- Ferber, & York v. 458 U.S. 757-59 five-year rily mandated minimum sentence nn.9-10, S.Ct. 73 L.Ed.2d pun- does constitute cruel and unusual scholarly (citing congressional and applied Reingold.13 ishment as cases). reports, and court Mandatory 2. The Five-Year Minimum do not The circumstances of case Grossly Disproportionate Not Sentence Is severity crimi- mitigate general of such Applied Reingold as nal is conduct.14 The subject count Reingold’s distribution reviewing proportionality applied depicting a of video a female challenged sentence as conviction so, congressionally-mandated five-year doing categorical pro- we 13. In make no elude prescribed five-year con- nouncement that a man- sentence for much serious minimum less datory minimum sentence can never ran duct. Eighth guarantee ‍​​‌‌​​​​​​​​‌‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌​‌‌‌‌​‌‌​​‌‌‌‌‌‍afoul of Amendment's necessary case-specif- proportionality noncapital discuss these criminal sen- It tencing. open possi- explain why ic the district We therefore leave circumstances to mitigating Eighth them bility may pre- court's characterization of as that the Amendment child, old, (1995), approximately eight reprinted un- at 3-4 in 1995 clоthed, penetrates 760-61)). adult male her U.S.C.C.A.N. precisely But places erect and then penis mouth because the prevention exploitation on her It is not vagina. his mouth neces- and abuse government objective is “a depictions for us to detail sary similar surpassing importance,” New York v. Fer sexual of children in exploitation ber, 757, 102 3348; 458 U.S. at see id. designated that Reingold materials (“It 756-57, 102 S.Ct. 3348 is evident i.e., sharing distribution to—other with — beyond the need for elaboration users, GigaTribe to confirm the serious- State’s safeguarding interest in physi of the criminal conduct at issue. ness cal and psychological well-being of a minor (internal any compelling.” quotation can mitigation Nor located marks omitted)), that Reingold’s fact crimes were facilitated we cannot view the distribution by “digital a recent revolution” that has of child pornography, however accom ways “enormously that child plished, increased as anything but a serious crime created, accessed, can be pornography real, violent, frequently threatens C.R., v. distributed.” United States victims, harm to vulnerable Hamelin cf. F.Supp.2d at 367. ease with which a 1002-03, v. Michigan, 501 can person por access and distribute child J., 2680 (Kennedy, concurring) (observing nography from his home—-often with no that drug characterization of possession comput more effort than a few clicks on a with intent to distribute “nonviolent and may perpetrators make it easier er— victimless” crime “is false to point of conduct delude themselves that their is not absurdity” given “pernicious effects” of technological or harmful. deviant But ad use). drug

vances that child pornography facilitate No different conclusion is warranted be crimes no more the real mitigate harm Reingold professed cause a principal inter technologi these than do caused crimes est in rеceiving distributing rather than making perpetrate cal advances easier pornography. child fraud, traffic drugs, engage or even acts C.R., F.Supp.2d Reingold at 354. ac terrorism — all at a distance from vic knowledged joined GigaTribe that when he mitigate If anything, those crimes. tims— he knew that in order to secure child digital noted may actually revolution others, pornography from he would have aggravate child crimes pornography inso pornography share child with them in expanding far as an market for por child short, Reingold return. understood nography greater per fuels demand for that, from the start in this barter-like mar children, depictions sexual making verse ket, integral receipt. distribution was prevent it more difficult for authorities to arrangements only To the extent such ex sexual exploitation their abuse. See Lewis, pand the market in which child pornogra generally United States (6th Cir.2010) disseminated, Reingold’s phy interest (noting that distri augmenting collection of through por “is his own computers particularly bution nography an not render his harmful because it can reach almost does distribution (internal of such quotation pornography limitless audience” less serious omitted) H.R.Rep. crime. (citing marks No. 104- therefore, and, persuasive step per- proportionality analysis.

is not does not first Reingold amit conclusion at the favorable C.R., F.Supp.2d mitigated by crime the United States Reingold’s Nor is 511; that, 15:24- Giga- May Sentencing he Tr. fact once established folder, correct, users on same Tribe share Even if cannot 16:1. excuses buddies,” id. at 352 “closed network three encounters transform admitted omitted), (internal could quotation marks something benign, deny into their scar- its without further action access content these ring on the Much less do girl. effect Reingold obliged in the Reingold. harm mitigate exacerbating excuses instance to create a share folder first by Reingold’s to children distribu- caused materials to be included designate had to they tion in which are materials elected to therein. The he share depicted. among pornography,

were child reasons, For all these distribution designated for shar appropriately viewed crime of conviction is depicting described video ing was the as a serious offense. eight-year-old exploitation sexual ac girl. totality From the of affirmative Seventy at Issue b. The the Sentence took to allow

tions others file, gain to his share we cannot access gravity offense With among his was the “most conclude that balance, in the weighing heavily we thus Helm, passive” felony crimes. Solem v. congressionally man- consider whether a (internal 296, 463 U.S. at 103 S.Ct. 3001 five-year minimum is dated sentence omitted). Nor, quotation marks for rea grossly disproportionate to the crime. discussed, can we conclude already sons The no question requires extended discus- that the of child distribution sion. posing a crime or one no victimless long recognized, has “it is diffi As been physical threat of harm. id. violence Cf. cult, impossible if not to halt” the sexual (noting passing posed bad check no violence); exploitation by pursu abuse of minors threat of Harmelin Michi (Ken 1002, ing only producers pornogra gan, 501 at 111 S.Ct. 2680 child Ferber, J., nedy, concurring) (declining at phy. to view New York v. 458 U.S. drug possession 759-60, Thus, with intent distribute as the Su 102 S.Ct. 3348. crime). “nonviolent victimless” preme acknowledged that “[t]he Court expeditious only practical most if not the a particularly Such conclusion seems un- dry may method of law enforcement be to here, warranted where admitted up by impos market this material viewing distributing that in addition ” ing penalties per on all severe criminal pornography, repeatedly engaged in the chain. Id. at sons distribution рre-pubescent activity. sister in sexual added). With (emphasis Indeed, reported his last sexual interaction mind, H.R. precisely objective child, with the when he was 18 and she 108-66, (2003), Rep. reprinted Conf. at *28 disturbingly was similar to the was (quoting in 2003 New U.S.C.C.A.N. conduct on the video that is the depicted Ferber, York v. 458 U.S. 102 S.Ct. subject of the distribution count convic- 3348), Congress, established tion. The court concluded that graduated sentencing regime for crimes Reingold’s sexual conduct with his sister any involving child with by pornography, mitigated adequate the lack of knowing receipt or distribution of child parental Reingold’s minority supervision, encounters, during interstate or the first two and his transmitted immaturity prison foreign punishable continued as an adult. See commerce years sure, than and not life. To of “not less five those term sentences prison. years” more than 20 were informed prior defendants’ 2252(b)(1).15 question ap on this Nevertheless, criminal records. a large is not whether we would ourselves peal of federal felony carry number crimes if precise policy have made that decision possibility of five-year prison terms for charged legislative responsibility. with first time offenders.16 In such circum- judicial simply our we conclude capacity, stances, we can hardly gross dispro- infer “gross no disproportional inference of portionality Congress’s from decision to ity” Congress’s can be drawn from enact apply punishment felony to a crime minimum five-year ment presenting the serious harms associated felony as serious a crime as the distribu distribution pornography. of child pornography. tion See Harmelin No different conclusion is warranted be Michigan, 501 U.S. at Congress cause mandated minimum five- J., 2680 (Kennedy, concurring) (emphasiz year sentence rather leaving pos than ing reviewing “substantial deference” sibility punishment of such a to the discre authority legislature’s courts owe “broad tion sentencing judge. As the Su types ... limits of determining (internal preme Court observed in quota Harmelin v. punishments for crimes” “ omitted)). Michigan, legislature’s ‘power marks tion to de punishments fine criminal without giving determination, In making that need we ” the courts sentencing discretion’ beyond depicted exploi not look sexual “beyond question.” 501 U.S. tation of an old on eight-year the distribut (Kennedy, J., concurring) (quot S.Ct. 2680 ed video to conclude that the crime of States, ing Chapman 500 U.S. conviction here is more serious offense 453, 467, 111 S.Ct. 114 L.Ed.2d 524 golf videotape than the club and thefts (1991)); 999, 111 see id. at Ewing Lockyer, for which the Su S.Ct. 2680 preme prison Court of 25 upheld (recognizing “competing sentences theories of scheme, graduated simple ery); § (providing up Pursuant to this id. 371 sentence for to possession pornography of child no § carries years conspiracy); (provid- five for id. 471 mandatory possible sentence minimum and a ing up years forgery sentence for for to 20 years.” more maximum of “not than 10 18 securities); § (providing 545 id. 2252(b)(2). Meanwhile, § produc- up years smuggling); for sentence to 20 for pornography tion of child com- interstate (providing up § id. 659 for sentence to 10 publication merce or the of an "advertisement years goods theft of for in interstate com- receive, seeking exchange, offering or ... merce); § (providing up id 892 for sentence distribute, buy, produce, display, repro- or years making to 20 for an extortionate exten- pornography punishable duce” such child is credit); 924(c)(1) § (providing id. sion of for prison years a term of “not less than 15 mandatory years consecutive of five sentence 2251(d), (e). years.” § nor more than 30 Id. carrying during for firearm crime of violence penalties proscribed each of for these trafficking, drug possible enhance- with are with activities increased for defendants used, firearm, gun type how ments for prior See id. convictions. record); (providing § 1001 criminal id. 2251(e), 2252(b)(2)-(2). §§ up years making for to five for false sentence official); § (pro- statement federal id. 1341 See, e.g., (providing for 18 U.S.C. 81 viding up years for sentence to 20 for mail arson); up years sentence to 25 for id. fraud); (b)(1) (providing up id. for sentence (B)(ii)-(iv) (providing for sentence fraud); passport years to 10 for id. up years physical to 10 for assault on federal official, (providing up years to five higher for sentence for possible with de- sentences pending degree injury); (pro- perjury); (providing id. for sentence id. viding up up years money laundering). for sentence to 15 for brib- to 20 for discretionary sentencing of the defendant determine whether

mandatory sentence, the five- varying degrees of ascendan- some other between have been maximum, beginning twenty-year cy year or decline since minimum and statutorily Republic”). Precisely because might be to serve the interests warranted represent not mandated sentences justice. In this more respect afforded single judge a but “the collec- judgment of for consideration of individu “mechanisms and, Legislature the ... as tive wisdom of in child dis al circumstances” citizenry,” ... consequence, than tribution cases were available the Court accorded defer- great Harmelin drug trafficking Harmelin. Harmelin legislature’s policy decision ence a state Michigan, at persons who to mandate life sentences J., (Kennedy, concurring); see id. grams possessed (approxi- more than 650 (noting “[p]rosecutorial discretion be half) mately Id. pound and a cocaine. or legislative fore and executive sentence Indeed, the Court S.Ct. 2680. clemency provide afterwards means that it “never there noted had invalidated unjust the State to avert or correct sen penalty by legislature mandated based tences”). sentence, and, only length espe- on the Reingold’s immaturity give Nor does cially [drug as crime as severe gross disproportion rise to an inference of do so in the possession], we should ality. immaturity An adult defendant’s most extreme circumstance.” Id. may culpability, his moral but it mitigate present This does not that extreme case the harmful of his does reduce effects The crime here at issue is circumstance. crime, which, explained, as we have are Harmelin, harmful as that in as while properly quite viewed as serious in cases five-year minimum far less challenged pornography. of distribution of child In than life sen unforgiving” “severe and deed, where sentence issue for such 1008, 111 tence in that ease. Id. at upheld prison a minimum term a serious crime is Indeed, Congress here did not S.Ct. 2680. years, punishment five not so single persons mandate a for all permit gross severe us to infer dis- set pornography, who distribute child nor from proportionality Congress’s decision a maximum sentence that was the harshest imposition mandate all its on adult defen permitted by term of incarceration law. dants, regard ma without to their relative Alabama, generally See Miller v. Alabama, turity. generally Miller v. See Rather, provided at 2467-68. a sentenc (prohibiting mandatory 132 S.Ct. at 2460 years ing range of “not than 5 less imprisonment parole only life without years” more than 20 for the distribution adult, offenders); juvenile, not United 18 U.S.C. pornography. Merchant, 12-12957, v. States No. 2013 2252(b)(1). every To the extent sen (11th 2013) 461218, 7, *1 WL Cir. Feb. tence function com is a of both crime (rejecting argument 25-year-old de mitted and the character of the defendant sophistication, it, fendant’s lack of limited life who committed Congress decided experience, amenability to treatment child pornography the distribution of 17.5-year rendered sentence distribu sufficiently awas serious crime as to re pornography large quantity tion quire five-year at least a sentence even for cf United grossly disproportionate); But hav States sympathetic most defendant. (6th Cir.2011) Moore, floor, 451, F.3d 454 ing Congress set this left it v. 643 then entirely (rejecting 15-year claim that imposition to district courts assess particulars mandatory of the crime and character minimum on four-time sentence

221 carrying Sentencing firearm or statutorily felon convicted of Guidelines man- ” light terms,’ in disproportionate of defen dated ... grossly id. at 134 n. 11 (quoting capacity). diminished mental ‍​​‌‌​​​​​​​​‌‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌​‌‌‌‌​‌‌​​‌‌‌‌‌‍Yousef, 56, dant’s We United States v. 327 F.3d 163 point (2d Cir.2003)) (second reiterate the we made nevertheless and third alterations course, may, Ramos). earlier: district court in immaturity

take defendant’s into ac Our sister have similarly reject circuits in deciding pre within the count where Eighth ed challenges Amendment to man statutory range scribed sentence Rein- datory minimum sentences child por 3553(a), 3661; §§ See 18 gold. U.S.C. nography or exploitation cases. Moore, also United States v. 643 F.3d at Hart, United States v. 635 F.3d 859 (noting 455 district court’s consideration of (6th Cir.2011) 15-year (upholding manda capacity defendant’s reduced mental in im tory minimum 18 under U.S.C. 2251 for very sentence at bottom of posing Guide persuading engage minor to in sexually Stern, range); v. lines United States 590 explicit conduct purpose of producing (N.D.Ohio 2008) (con F.Supp.2d 953 depictions, visual noting same ruling cluding began fact that defendant with respect to 10-year mandatory mini downloading child at 14 mum for enticing minor into sexual rela “weighted] heavily in favor deviation 2422(b) §§ tions violation of U.S.C. 3553(a)”); Guidelines under range] [from 2251); Nagel, United States v. Wachowiak, United States v. cf. (7th Cir.2009) F.3d (holding 10- (E.D.Wis.2006) F.Supp.2d (impos year mandatory minimum sentence under ing 70-month on defendant sentence sub 2422(b) grossly dispro ject to mandatory minimum sentence of portionate to of attempting crime to en aрplicable range five Guidelines tice minor to engage criminal sexual imprisonment to 151 months’ act); factors). Malloy, light of various States 568 F.3d mitigating But it (4th Cir.2009) rely cannot 180 & n. 14 (upholding relative immatu 15-year rity five-year hold a minimum mandatory minimum sentence for the distribution 2251); of child to under 18 U.S.C. Gross, (7th

be cruel and punishment. Cir.2006) unusual (concluding 15-year mandatory mini imposition Our conclusion that mum sentence under 18 U.S.C. five-year mandatory minimum sentence in 2252A(b)(l) for distribution of child this case does not to an give rise inference pornography by who defendant was for gross disproportionality finds further mer victim perpetrator of child sexu support precedent. our own In United al abuse was not grossly disproportionate (2d Ramos, States 685 F.3d 120 Cir. to crime in light high Supreme bar 2012), a case in recidivist defen claims, Court has set for such seriousness receiving possessing dant convicted of crime, record); prior of and defendant’s 15-year a pornography faced mini MacEwan, United States v. 445 F.3d sentence, easily rejected mum we an (3d Cir.2006) (rejecting gross dispro- challenge Eighth high Amendment to that to minimum, portionality challenge 15-year mini noting er it was well that below mum sentence mandated range the defendant’s Guidelines and that U.S.C. “ (b)(1) § 2252(a)(2)(B), ‘[l]engthy prison repeat ... sentences do not offender pornography); the convicted of of child Eighth prohibi receipt violate Amendment’s Dwinells, against punishment tion cruel unusual see also (1st Cir.2007) when based on proper application (rejecting of the F.3d regardless sentence of challenge imposed mandato- the same to Eighth Amendment guideline range.” Ap- to the recommended attempting ry sentence minimum induce, entice, pellee’s Br. 43. minor coerce persuade, activity in sexual to in criminal engage identification of a Guidelines calcu Our 2242(b), noting of 18 U.S.C. violation to lation as “harmless” allows us error thе function of proper not the “it is valid sentence and to uphold otherwise pass- super-legislatures, to act as courts where is clear avoid vacatur remand Congress’s penological ing judgment upon impose the district court would determinations”). in same sentence event. (2d Jass, Cir. States mandatory sum, application a 2009). case, however, we In this cannot five-year sentence to distribution resentencing we avoid remand and because particular case crime of conviction this a have identified non-Guidelines sentenc gross rise an inference of give does not to error, i.e., court’s ing the district refusal suggestive of cruel disproportionality mandatory impose five-year minimum Thus, punishment. we need unusual Eighth on an sentence based erroneous any sentencing engage comparison Thus, Amendment determination. on re determine, here, we that the district do mand, the district court will not be able to concluding Eighth court that the erred impose recognize same sentence. We application Amendment barred may well district choose five-year minimum mandatory impose remand non-Guidelines sen Accordingly, we remand the case. Nevertheless, tence. have “we indicated case the district court its to vacate that a correct Guidelines calculation must original Rein- sentence and resentence normally precede [such decision.” a] man- gold statutory consistent with the Rodriguez, United States v. 587 F.3d date. (2d Cir.2009). Accordingly, pro we D. ceed to Applicable government’s Calculation consider Guide Range challenge. lines calculation

Guidelines so, In doing interpret we relevant Guide The United States submits that the dis- novo, provisions lines de but we defer failing trict to apply court erred certain findings perti the district court’s of facts Sentencing Guidеlines enhancements nent to the absent clear error. Guidelines applicable calculation of v. Broxmeyer, See United States 699 F.3d range. Specifically, it contends Guidelines (2d Cir.2012). (1) were warranted for enhancements in a Reingold’s engagement pattern of sex- Enhancement Pattern Abuse minor, exploitation ual abuse or (2) 2G2.2, 2G2.2(b)(5); applies U.S.S.G. the use Guideline to de computer to commit the convic- fendants of child crime of convicted tion, 2G2.2(b)(6); pursuant pro crimes to 18 see id. see id. for a in of pornography, distribution vides five-level enhancement 2G2.2(b)(3)(F). engaged fense level the defendant in a responds “[i]f activity court correctly ap- pattern involving declined to the sexual enhancements, that, ply exploitation these but asserts abuse or minor.” 2G2.2(b)(5). error, § if harm- at necessarily there was it was U.S.S.G. This Guideline abundantly tempts less because “the record is to assess both a defendant’s risk clear Judge potential have recidivism and the harm to oth Weinstein would if present. that such recidivism could the offense ers had occurred within the Laraneta, United States v. 700 F.3d special or jurisdic- maritime territorial (7th Cir.2012) 983, that, (observing States; (C) tion of the United or an 2G2.2(b)(5), respect §to with defendant’s attempt or to conspiracy any commit “[ojther ... predation acts of sexual have (A) the offenses under subdivisions or predictive significance regard to the (B). recidivism, ... relevant [a] likelihood Id. The specifically note also excludes from how deciding long consideration a defen the definition of exploita- “sexual abuse or incapacitated (by being should be im dant tion” “possession, accessing with intent committing

prisoned) from further view, receipt, trafficking or in material crimes”). Department The Probation ini relating to the sexual abuse or exploitation recommended, tially government of a minor.” Id. urged, this five-level enhancement be on his Read applied together, based admitted these signal definitions 2G2.2(b)(5) § three sexual his contacts with half-sister. is narrow in respect one disagreed, finding The expansive in another. The specifically 2G2.2(b)(5) § inapplicable because Rein- referenced federal cabin statutes the con- gold was minor when the first two con duct that qualifies as “sexual abuse or Further, tacts with his sister occurred. exploitation” purposes were observed acts attributable 2G2.2(b)(5) § enhancement. At the same largely “proper parental super a lack of time, expansive word “any” in the vision,” lacking in temporal were so phrase “any combination of two or more proximity appear May as to “aberrant.” separate instances of the sexual abuse or 16, 2011 Sentencing Tr. 15:24-16:1. These sexual exploitation of a minor the de- not, fact, circumstances do make signals any fendant” conduct de- 2G2.2(b)(5) § inapplicable here. specified scribed within one of statutes properly is “pattern activity making

The considered involving 2G2.2(b)(5) § nothing exploitation abuse or of a assessment and that sexual minor” 2G2.2(b)(5) § required to warrant a more than separate en- two instances of such specifically hancement defined in the conduct is required demonstrate the application “any notes to mean Guideline’s requisite pattern. separate combination of more in- two or Thus, temporal proximi the lack or

stances sexual abuse sexual ex- ty sexual contacts with defendant, ploitation minor permissible ground sister was not a or or exploitation whether not the abuse 2G2.2(b)(5) refusing apply § enhance (A) during occurred the course of the of- ment. See United (B) generally States v. Sal fense; (C) minor; involved the same im, (2d Cir.2008) 67, (holding 549 F.3d in а such resulted conviction for conduct.” it legal impose error to additional require § appli- U.S.S.G. 2G2.2 cmt. n.l. same Guideline). beyond language ment plain exploi- cation note defines “sexual abuse or circuits, our holding, join to mean so we sister tation” uniformly which have concluded that no (A) conduct described 18 U.S.C. temporal among acts proximity of sexual 2251(a)-(c), § § § § satisfy exploitation required abuse or 2251(d)(1)(B), 2251A, 2260(b), 2G2.2(b)(5). (B) 2423; pattern requirement §or an of- See, law, Woodard, e.g., under state that would fense have (8th Cir.2012); been offense under section 953-54 224 (1st the district Clark, conclude that 79 We further F.3d Cir. v. 685

States in excluding from court erred 669 2012); McGarity, v. United States 2G2.2(b)(5) § consideration of Cir.2012); (11th 1218, 1260 United F.3d his half- first sexual contacts with two (5th Bacon, F.3d 221 v. 646 States ground sister that defendant was Olfano, Cir.2011); v. 503 United States then a minor. This court not himself (3d Cir.2007); F.3d consider wheth previously had occasion to (9th Cir.2007); Garner, 739, 743 490 F.3d exploitation er of sexual abuse or acts Gawthrop, F.3d States United support minor a by minor a can (6th Cir.2002); Lo States v. 2G2.2(b)(5) § enhancement. We have (7th Cir.2001). vaas, 900, 904 241 F.3d however, simi question considered that 2G2.2(b)(5) appli and its Nor can they lar and held that can. circumstances to exclude con notes be construed cation Phillips, See United States Cir.2005). satisfying (2d its definition sexual duct 90-93 con exploitation pattern from abuse and In a convicted of Phillips, defendant mitigating based on circums sideration a in violation of sexually exploiting minor noted, strictly As the Guideline tances.17 2251(a) (b) argued U.S.C. “ qualifying sexual limits the activities 4B1.5(b) pat- a for enhancement exploitation, but where conduct abuse does not prohibited tern of sexual behavior within narrowly sphere, defined falls unadjudicated perpetrat- apply to conduct more of two or instanc “any combination by neither the ed an adolescent because exploitation any of such abuse or es” —not Notes ex- Application Guidelines nor by cir unexplained mitigating combination at 90. plicitly say that it does.” Id. “pattern” a war qualifies as rejecting argument, we noted one cumstances— mitigating That ranting an enhancement. defining supporting conduct statutes to partic are not relevant a circumstances 2243,18 enhancement, does not, applicability does ular Guideline’s coverage not its to violators over “limit[ ] however, may mean that a district making eighteen,” thus “sexual age rely on such circumstances properly prohibited a ... abuse a minor minor deciding appli within the either where constituting conduct an offense under fed- range to sentence a de cable Guidelines eral law.” Id. at 91. further observed We that, Guidelines, which deciding or in to sentence a defen contrast other fendant condition enhancements on whether rele- to a non-Guidelines sentence. dant pattern satisfying requirement parental supervision conducl inadequate Even if might Rein- somehow have contributed to an enhancement. sister, gold's with first sexual contact 15-year-old boy eight-year- and his when the felony any 18 U.S.C. makes it vacation, family it shared a bed on old sister person: mitigates apparent the second is not how juris- special and territorial maritime that no and third contacts absent conclusion of the United or in Federal diction States boy responsible parent teenage leave a would engage[ prison, knowingly [to] ] ... sister, pre-pubescent with his alone person act with who— sexual another hardly pur- We need seems warranted. (1) age but has has attained further, question essentially sue this factual age years; and not attained however, light legal our conclusion that years younger than the is at least four 2G2.2(b)(5) provides language §of attempts to person engaging; do so аny satisfying conduct its limited definition of so.... exploitation to be abuse and consid- sexual ered, 2243(a). Id. separate of such two instances convictions, 2G2.2(b)(5) § Reingold were adult warrants a vant offenses en- 4B1.5(b) § no lan- comparable depends contained hancement. That on whether his “placing on the use of a guage constraints sexual contacts with sister qualify his as age.” based on the defendant’s conviction “sexual or exploitation,” abuse a factual 93; 4A1.1, §§ Id. at 4B1.1. finding U.S.S.G. district court never made. that, Accordingly, we concluded under observed, As already we have “sexual 4B1.5(b), per- § “the district [was] abuse exploitation,” or as used sexually exploi- to take into account mitted 2G2.2(b)(5), § means conduct as tive conduct that occurred when defen- in certain described criminal statutes. juvenile.” a dant was himself United The pur- definition “sexual act” for Phillips, F.3d at States v. 2241(c), § poses appears which to be the here, relevant statute applies derives from 18 reasoning The same 2G2.2(b)(5). 2246(2)(D), § Among which defines the statutes whose mean, alia, phrase to inter the sexual or ex “the intentional conduct describes abuse touching, through the clothing, of a minor ploitation relevant this genitalia 2241(c), of another person who Guideline 18 U.S.C. which has age attained a “in with an intent knowingly engage makes it crime abuse, humiliate, harass, degrade, or person sexual act with another who has arouse gratify or age any not attained the of 12” within sexual desire of person.” jurisdiction of States. Like 2241(c) does not limit its cover Of Reingold’s three sexual contacts with age age to offenders over the of 18. Nor sister, his the last—-when he was 2G2.2(b)(5) §in or language does its appears plainly she was to qualify. 11— application require making retrieve and distribute law, those it easier to federal by acts

sexual as defined сomputers have ex pornography, or child sexual abuse instances of separate two pornography, en- the market for child panded a exploitation warrant five-level would a greater turn a demand for level which in fuels his Guidelines offense hancement to only produced by product that can be to pursuant U.S.S.G. calculation gener 2G2.2(b)(5). abusing exploiting children. See Lewis, 605 ally United States v. F.3d Computer Enhancement 2. Use a Moreover, child is pornography once by it almost computer, circulated becomes 2G2.2(b)(6) provides Guideline destroy. or impossible to remove the of enhancement “[i]f for a two-level unreasonable, circumstances, hardly it was computer.” of a involved use fense for the counting, much less double Sen apply to court declined The district that the tencing to conclude Commission case, finding it to in enhancement all applicable base offense level to distribu “double count impermissible constitute pornography tors of child those who C.R., F.Supp.2d v. ing.” States —even United non-electronically be share items was unwarranted —should That conclusion persons enhanced for who commit the Johnson, 221 v. light of United States using a by computer. crime (2d Cir.2000), we which F.3d double-counting rejected a specifically submits that since Johnson a challenge application has expressed this court reservations 2G2.2(b)(6) As enhancement. Johnson 2G2.2(b)(6) enhancement be about the observed, computer of a is the use cause, many pornogra child now so child distributing act of essential phy by ‍​​‌‌​​​​​​​​‌‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌​‌‌‌‌​‌‌​​‌‌‌‌‌‍computer, crimes are committed “can traffic pornography. person A applies virtually the enhancement “in ev using comput pornography without child ery have case” so “the flavor” robbery like er much one could commit counting. Tutty, v. dоuble (internal Id. gun.” without the use (2d Cir.2010); 612 F.3d see Unit omitted). Thus, the en quotation marks (2d Dorvee, ed 616 F.3d States count hancement does not result double Cir.2010).19 case, however, In neither did ing not “increase a defen it does because we reverse Johnson hold would harm to reflect the kind of dant’s sentence counting to impermissible apply double be fully accounted for” already that has been 2G2.2(b)(6) dis enhancement when the by the base offense level. States tribution is effected Cir.2000) (inter (2d Volpe, Rather, by the noted reserva computer. omitted). nal marks quotation tions the observation sub informed ear- concerns could by This is reinforced our stantive reasonableness conclusion revolution, imposed arise where sentences near digital lier observation that the courts statutory child the maximum as a result of may responsible more that now seemed being committed Guidelines enhancements pornography crimes’ epidemic crimes fronting an of such 19. Neither case had occasion to consider resources, prosecutori- many focused its of the same limited whether reason so presenting ag- apply in al efforts on those cases these enhancements gravating government, we con- factors. cases review is Watkins, (2d United v. every Cir.2012) case.” apply virtually “in 667 F.3d Tutty, States 612 F.3d at 132. (stating impermissible double count ing occurs when Guidelines enhancement Here, do not we review the substantive applied already harm “fully reflect top at the reasonableness accounted for part guide another statutory range. consider We (alterations quotation lines” and internal whether in con- court erred omitted)). The marks conclusion unwar cluding impermissible that it would be dou- ranted. ble en- counting apply computer use of Reingold’s hancement to calculation First, present distribution nеed not be Johnson, In light Guidelines. we con- every conviction under the statute issue. clude that the district did On court so err. 2252(a)(2) Section proscribes knowing

remand, apply district court should or receipt pornogra distribution of child this enhancement its calculation of Rein- Salim, phy. See United States gold’s range. recommended Guidelines (holding at 76 no counting double concern arises where Guidelines enhance 3. Distribution Enhancement for “additional pres factor will not be calculating Reingold’s Guidelines every ent in conviction under the statute” range, the district court further declined to (internal omitted)). quotation marks apply the two-level enhancement for distri Second, Guideline, applicable neither the bution provided U.S.S.G. 2G2.2, § U.S.S.G. nor the base offense lev- 2G2.2(b)(3)(F). § The court district found case, el dictated that Guideline base offense level limited to distribution crimes. Guideline 2G2.2(a)(2) § already accounted for § broadly sweeps 2G2.2 to address a wide distribution, making harms attributable to range occurring criminal conduct after enhancement “a form double count produced. child been As 16,2011 ing.” May Sentencing Tr. 13:8-10. indicates, that Guideline’s title such con- Moreover, Reingold’s it found that primary (1) (2) duct includes “Trafficking,” “Receiv- objective using the GigaTribe file shar (3) (4) (5) ing,” “Transporting,” “Shipping,” ing program pornogra was to child receive “Soliciting,” and Material “Advertising phy rather than to it to others. distribute Involving Exploitation Sexual Mi- ground Neither makes the distribution en nor,” (7) “Possessing” as well as such ma- inapplicable hancement to this ease. terial, both with and without intent dis- tribute.20 a. A 2G2.2 Distribution Enhancement Not

Does Constitute Double sentencing judges To assist distin- Counting in This Case guishing among such crimes and varied cases, assessing severity in particular their be district concluded that draws To 2G2.2 various distinctions. be- necessary cause distribution was a element gin, conviction, gross the Guideline draws distinction Reingold’s crime of any harm implicating between crimes of conviction associated with distribution necessari ly fully only simple possession pornogra- accounted for in the of child base offense crimes, Guideline. See United States phy level of his and all assign- other covered applies production 20. Guideline 2G2.2 to defendants 21. This first set also includes and myriad proscribed convicted of offenses involving adapted distribution crimes or mod- 1466A, 2251(d)(1)(A), §§ by 18 U.S.C. 2252A(a) (b), 2260(b). See United Commission, Sentencing States Guidelines Manual, Appendix A. former, to defen- apply tion enhancement did of 18 to the a base level ing offense crime); 2G2.2(a)(l), of distribution and a base of- dant convicted see U.S.S.G. latter, Frakes, see id. 22 to the 402 Fed.Appx. fense level of 2G2.2(a)(2). Cir.2010) (“Rather (10th the latter set— Within than 335-36 solicitation, receipt, which includes the forbidding double-counting, § 2G2.2 ex- transportation, advertisement pressly a two-level enhancement for allows or well as its sale distri- pornography, as distribution,” such that minimum two- for the provides bution—the Guideline always apply” to point enhancement “will level to be reduced two levels base offense of- convicted of distribution defendants defendant’s conduct in cases where “the (emphasis original)). fenses receipt to the or solicitation” of was limited agree We that minimum two-level en- “the did pornography, defendant to the applies hancement for distribution distribute, traffic, intend Guidelines, calculation 2G2.2(b)(l). At the material.” Id. same that the court erred as we conclude however, time, provides Guideline in holding of law that such an matter to the base offense level an enhancement impermissible enhancement constituted that involved the distribution offenses counting. double pornography. child id. 2G2.2(b)(3). § Specifically, it dictates b. Involved Offense an of- two-levеl enhancement whenever Distribution distribution, involved id. fense 2G2.2(b)(3)(F), § possibility with the No different conclusion warranted be- if greater enhancements the distribution court concluded that cause pecuniary tangible gain, other or Reingold’s primary purpose committing 2G2.2(b)(3)(A)-(B), minor, § to a see id. the distribution offense conviction was 2G2.2(b)(3)(C)-(E). § see id. to receive rather than to distribute child pornography. This structure cannot be understood harm address the associated with dis § application notes to 2G2.2 define in a pornography tribution of child base “distribution” to mean applies equally that to a offense level act, possession with in- including offenses, variety involving some distri distribute, production, tent to transmis- Rather, § bution and others not. 2G2.2 is sion, advertisement, transportation, that range structured so of harms of material in- related to transfer be ad associated with distribution can volving exploitation of mi- the sexual through dressed various enhancements. Accordingly, distribution includes nor. Indeed, so that conclusion been obvi involving posting material the sexual ex- ous to of our sister circuits have those ploitation of a minor on a website for question they considered the that have public viewing but does not include the reject employed little discussion double solicitation material mere of such counting challenges application to the of a defendant. 2G2.2(b)(3)(F) § enhancement to defen § (emphasis cmt. n.l add- U.S.S.G. 2G2.2 dants convicted of distribution offenses. ed). “any” Chiaradio, modify Use word See United States v. 684 F.3d (1st Cir.2012) signals phrase that should (identifying “act” “abso Similarly, lutely inferring broadly. no use basis” distribu- construed 2252A(a)(7). depictions of ified a minor. See on “including” Reingold’s “buddy word first sentence and sons list” then could signals in the computer, just “includes” second share “not his whole [but] are that the cited acts of distribution illus May 10, [files] selected.” trative rather than exhaustivе. See Unit 12:24-25, Tr. Sentencing In- 14:13-14. Ramos, ed States deed, Reingold “admitted he shared (10th Cir.2012) (construing “including” in his pornography child folders with an esti- application note’s 2G2.2 definition dis mated 10 20 GigaTribe users on his “non-exhaustive”). as Nothing tribution ¶ buddy invited list.” con- PSR Such suggests application the definition plainly supports duct defendant’s convic- 2G2.2(b)(3) enhancement depends tion for distributing as being primary- distribution a defendant’s 2G2.2(b)(3)(F) well as application of the committing intent in the offense of convic enhancement. Indeed,

tion. a number of our cir sister recently As we in a summary stated cuits have construed enhancement order upholding enhancement, such an apply regard without to a defendant’s in “knowingly placing files long tent as the offense of conviction ain shared folder peer-to-peer on a file- involved distribution. See United States v. sharing network constitutes distribution 12-11346, Hayden, No. 2013 WL 2G2.2, under U.S.S.G. even if one no (11th 2013) at *5 (observing Cir. Mar. actually an image obtains from the folder.” 2G2.2(b)(3)(F) ap “neither nor the United v. Farney, Fed.Appx. States plication impose require 12-3210, 1490109, (6th Ramos, (hold 2013 WL at *6 Cir. 695 F.3d at 1041 Cir.] [10th 2013) 11, Apr. (holding that use ing “knowing that “intent to distribute is not re [file-sharing service], quired for act much qualify to as ‘distribution’ like the 2G2.2(b)” website, § under of a file on (emphasis original)). posting in a is sufficient 2B2.2(b)(3)(F)’s trigger to section two-level Here, even if Reingold’s primary intent enhancement”); Ramos, United States v. in joining GigaTribe was “not to distribute F.3d (concluding [10th Cir.] just but to pornogra more receive” child that when “individual a peer-to-peer uses May phy, Tr. 16:10- Sentencing file-sharing network with knowl program plain record makes that both edge program deposit that the will down knew from the start that a distribution was loaded files a child-pornography into necessary of receipt, condition see id. at shared folder accessible to other users— 16:9, (admitting 19-22 that “in order to e.g., rendering files a only mouse-click materials, GigaTribe “requires receive” away person engaged that in an and, you to with people”), share other with —then pornog act related to transfer child knowledge, pur took deliberate and 2G2.2(b)(3)(F) raphy” § en warranting poseful distribution, actions to effect that hancement); United v. Glassgow, States generally Kelly, United States v. (8th Cir.2012) (2d Cir.1998) 1107, 1110 F.3d (holding (approving def 2G2.2(b)(3)(F) enhancement warranted “intentionally” inition of that requires de alia, where, “knowingly to inter defendant deliberately fendant have “acted distribution”); made available purposefully”). agent, A federal discuss files worked, ing GigaTribe explained Spriggs, how that United States 666 F.3d (11th Cir.2012) (stating “specifically pick had to which 1287 that “[w]hen share”; per- knowingly folders or files he to the user the files accessi- wantfed] makes sentencing exercising its others, Accordingly, in com the distribution ble to case, district court Layton, 564 F.3d this discretion plete”); States United Cir.2009) (4th (holding that defen lesser impose prison cannot a file-sharing a “knowingly statutorily us[es] mandated minimum. dant who than to access child others allows program calculating defendant’s Sentenc- the transfer files” commits pornography range distributing child ing Guidelines 2G2.2(b)(3)(F) necessary act to warrant pornography: Carani, enhancement); States Cir.2007) (conclud (7th 492 F.3d pursuant A to pattern a. enhancement “could ing “notion” defendant 2G2.2(b)(5) defen- applies U.S.S.G. make his child knowingly acts fitting commits two dant who download to access and available for others or “sexual abuse Guidelines definition as ‘distribution’ qualifying without minor,” regard without exploitation square meaning plain does acts, the temporal of those proximity word”). at the time of minority defendant’s own acts, mitigating circumstances. controlling here reiterate We may inform a district Such circumstances Famey, summary and we our conclusion selecting court’s exercise of discretion regard clarify applies without in imposing within-Guidelines sentence or primary purpose whether defendant’s sentence, they but do not a non-Guidelines in file- placing child files applying from permit the court refrain to receive or to dis sharing program was 2G2.2(b)(5) en- an otherwise warranted pornography. tribute of a defen- hancement to the calculation remand, Thus, on the district court range. dant’s Guidelines Reingold’s Guidelines should recalculate resentencing, enhance applying before computer is not essential b. Because 2G2.2(b)(3)(F), ments under U.S.S.G. pornogra- distributing crime (b)(6), (b)(5), and as warranted consistent pro- phy, computer-use enhancement opinion. with this While the district court 2G2.2(b)(6) does vided U.S.S.G. correctly fairly required calculate counting impermissible double constitute Guidelines, see 18 consider the U.S.C. larger an ever number of simply because 3553(a)(4), in nothing opinion this is distribution crimes are child district court’s discre tended limit the committed computers. with tion to consider a non-Guidelines sentence neither the statute of con- c. Because Booker, pursuant United States v. 2252(a)(2), viction, ap- nor the 18 U.S.C. 245, 220, 738, 160 L.Ed.2d U.S. Guideline, 2G2.2, plicable is limited to (2005). crimes, en- distribution the distribution 2G2.2(b)(3)(F) provided in hancement III. Conclusion impermissible does not constitute double summarize, we conclude as follows: To counting. application five-year mini- 1. The the to the Accordingly, we remand this ease by 18 mum sentence mandated direction that vacate 2252(b)(1) with grossly dispropor- is not so him Reingold’s sentence and distributing the tionate to crime Resentence re- opinion, specifically this consistent with precluded to be in this pornography as calculating Sentencing Guidelines by the and Unusual Punish- case Cruel herein, adhering and Eighth range as indicated ment of the Amendment. Clause statutorily objective minimum sen- mandated ment of surpassing importance,” Ferber, years’ еw v. imprisonment. tence of five York 458 U.S. at N 3348]; id., [102 S.Ct. at 756-57 in a separate concurs Judge SACK (“It beyond S.Ct. is [102 3348] evident opinion. need for elaboration that a State’s in safeguarding interest physical and SACK, Judge, concurring. Circuit psychological well-being of a minor is agreement judg- I am in full with the (internal compelling.” quotation marks only I to express ment of the Court. write omitted)), we cannot view the distribu my parts concern about section 2.A pornography, tion however ac majority opinion. complished, anything but a serious with which take Amendment majority confine itself ready ty-of-the-offense aspect I would straightforward fully I have much included as inquiry. issue, analysis of That preferred to a part of as follows: analysis more narrow the section Eighth gravi- al- Harmelin 836] possession with internet to distribute as violent, (observing that 1002-03 [111 S.Ct. crime that (1991) harm to vulnerable threatens Michigan, (Kennedy, characterization real, J., 115 L.Ed.2d U.S. concurring) victims, frequently of drug ^[957] cf. at

Starting gravity the offense a “nonviolent and victimless” crime “is issue, at there can no question point false to the of absurdity” given child pornography dissemination of use). “pernicious drug effects” of injury ais serious crime that causes real Maj. op. 216-18. particularly vulnerable As victims. all[1] Congress, courts and scholars rec Perhaps we cannot conclude from ognize, child pornography crimes excerpt alone that the sentence in this case them the sexual exploita core demand was “fair”—but that issue is simply tion abuse of are children. Not posed by Eighth inquiry. Amendment seriously physically, children harmed — me, though, It language seems that the emotionally, mentally pro the—in does answer clearly completely the producing cess of but pornography, legal question that before the Court: is then harm exacerbated the Whether this is “rare in which case” circulation, fact, oftеn for after the comparison punish- between crime and graphic exploi record child’s ment leads “to an inference gross dis- tation and abuse. New York Fer See Florida, proportionality.” Graham ber, 458 U.S. 757-59 & nn. 9-10 S.Ct. 73 L.Ed.2d [102 1113] (2010) (quoting L.Ed.2d 825 Harmelin v. congressional and re (citing scholarly 957, 1005, Michigan, cases).[2] ports, and court J., (Kennedy, 115 L.Ed.2d 836

concurring in in part concurring and the [Precisely And, prevention part)). the in It is judgment because not. that answered, exploitation govern- question having such and abuse is “a I think the been might “many opinion, powerfully 1. I have said scholars” the and on illustrate the nature theory likely that one is to find scholar who severity injuries resulting the their from disagrees point nearly any of view. receipt and at dissemination material C.R., issue. See United States v. case, 2. The victims’ in statements this which (E.D.N.Y.2011). F.Supp.2d 378-404 length are set at the forth in district court's there, distributing porno- the receiving and and not stopped have majority should ever so images; that never graphic legal issues the other proceeded being human much as touched female raised. have been Are we to believe than his mother. other opinion includes Instead, majority’s the facts vaguely similar any that on one of the descriptions porno- graphic two the reflected in the light law 216-17, evidence, id. at graphic images opinion set forth in haec of its paragraphs pornogra- the effect on discusses above, or would majority the could verba revolution,” id. digital “recent the phy year five have decided 217-18; views as explains what at unusual constitute “cruel and here did professed ... “Reingold’s irrelevance of punishment”? receiving than rather interest principal And, am assuming I I don’t think so. 217; pornography,” id. at distributing child correct, verbiage ex- to which I take “GigaTribe” the nature describes unnecessary to the consideration ception is it, interаction with id. the defendant’s I there- resolution of this case. would 218; reference the defen- and makes it. fore have omitted of his minor half- sexual molestation dant’s any not be based on omission would sister,3 at 218-19. id. my part judge on must general view observations, may interesting These be opinion saying averse to more be they necessary are to the resolution but I think strictly necessary. do not than appeal? hardly Suppose I think so. phrase death- so.4 But to borrow a from contrary. Suppose facts were it, penalty pornogra- cases and twist were images somewhat pornographic Focusing subjects on phy is different.5 described; graphic than the one less powerful that are associated with our most pho- taboos, they strong, received and distributed uniquely were these cases evoke (as moral, emotional, was tographs pornographic material if and cultural6 differing, Ferber) electronically through necessarily file judges, and not reactions from based Internet; beliefs, values, differing did sharing on sensitivi- ties, experiences judges.7 was in and life of those allege principal that his interest Adler, generally, e.g. Amy 6. See The Perverse 3. That is the characterization used Pornography, Colum. Law Child government. Gov. Br. at 6. (refer- (2001); also id. L.Rev. 209 at 211 ring [as] to "child law ... addi- 4. Even we were to characterize these if maelstrom”). caught up ain cultural dicta, colleague our tional statements as Judge right surely he wrote: Leval when criticism; This it is an 7. observation. purposes. We perceive hardly unique "[DJictum can serve useful I are And issues arena, legal film as illustrated a recent purge opin- have no need to dictum from our Times, begins: review in The New York which by its ions and we shouldn't be embarrassed peo- against "Violence children strikes most Leval, presence." Judging Under Pierre N. ple uniquely phеnomenon, as a terrible Dicta, Dicta About 81 N.Y.U. Constitution: may why it.” are so fond of filmmakers (2006). L.Rev. Vanish, Scott, Agony A.O. Children Two After Recklessness, Times, September Begets N.Y. Harmelin, 501 U.S. Cf. 20, 2013, p. be obvious in C It should J., concurring (Kennedy, part major- suggesting not that the event that I am concurring part) ("Propor- judgment in the by ity's judgment compromised the na- tionality respects review is one of several any personal ture of case or reaction all, differ- agree which we have held that 'death is judgment I with the it—after ...”) Court. ent’. appeals I no doubt that there are have America, UNITED require reviewing

in such STATES cases Appellee, engage carefully, pain- in a even fully, analysis pornog- detailed the child not raphy and abuse at issue. This is one BOUT, Viktor also known as An Victor go beyond of them. And when we what is atoliyevich Bout, also known Vik as case, necessary this sort of resolve Bulakin, tor also known as Viktor unnecessary setting forth or irrelevant Butt, also known Vadim as Marko or aspects detail the circumstances other Aminov, vich also known as Viktor crime, of the we risk the appearance Budd, But, known also as Victor also explicitly moral implicitly voicing our Boris, known Defendant-Appellant. as our indignation exercising rather than le- gal our judgment, only which is course No. 12-1487-cr. charge. Appeals, United States Court of then, I I preferred would have have Second Circuit.

said, majority opinion for the to have rigorously ‍​​‌‌​​​​​​​​‌‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌​‌‌‌‌​‌‌​​‌‌‌‌‌‍legal hewed more to the line Argued: Aug.

inquiry in the matter us. before Decided: Sept.

I majority also concur with the as to the caption

use of name in the

this case. Whether would I do so were his record, already

name not I am

quite general I am Although sure.

view that the more appeal about better,

public including of course the parties,

names of the the dissection of

Reingold’s mental condition and the nature

of his behavior is forth in unusual- set

ly meticulous detail in the district court’s

lengthy can opinion that I understand that identify

court’s him his ini- decision only.

tials But the fact that name available in the files of the district court,

court and this it can also be found using Google

on-line on the —attributed

website to Reuters —seems to to make me

the decision much easier. See http://www.

caringforourchildrenfoundation.org/?p= (last 2013). visited Sept. notes consideration of a Reingold occasion, on admitted that age past defendant’s at the time of instanc “manually he had his sister stimulate his exploitation. es of abusе or In the sexual penis, while he her rubbed breasts and language, absence of such consistent manually vagina, stimulated over her both with our decision in here con Phillips, we ¶ 11, panties,” and under her PSR clude that sexual exploitation abuse perform “coached on her how to oral sex minor undertaken who by defendant was her, performed on him” sex oral on id. a juvenile at the time of the incident is ¶ siblings’ might 3. The first encounter also properly applying considered qualify Reingold in that on admitted that 2G2.2(b)(5) pattern enhancement. The occasion, that first when he was his 15 and two of our sister circuits to consid have he eight, manually sister had her sister question ered this have reached same penis stimulate his while he touched the Woodard, conclusion. See United States v. girl’s “privates, clothing.” under her Id. Cir.]; United States v. [8th Less clear is whether the second encoun- Olfano, 243 [3d 503 F.3d at Cir.]. as a qualifies ter sexual act. On that occasion, We therefore conclude that the district his Reingold when 16 and nine, court erred relying Reingold’s again minor- had his sister manual- sister ity, ly of temporal proximity, penis, lack and inade- stimulate his but admit- quate supervision grounds un- rubbing vagina only as not to con- ted her over her derpants. his sider his contacts with sister as basis leave it to the district court We 2G2.2(b)(5) open questions for a enhancement to resolve these factual rejecting grounds case. these for deci- “a contacts involved sion, not, however, dowe conclude that sexual act.” rather than mit computer, aggravated two however, that on If, the facts show associated with such igated the harms Reingold engaged occasions or more By II.C.2.a. twelve, supra at Part than crime. See sister, younger girl then

Notes

notes intent (2d Cir.2013). Our sister circuits ment” in upholding applica district court’s agree. Conner, See United States v. No. enhancement); tion of States v.

Case Details

Case Name: United States v. Reingold

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 26, 2013

Citation: 731 F.3d 204

Docket Number: 11-2826-cr

Court Abbreviation: 2d Cir.