United States of America v. Jenkins

Filing

OPINION, vacating the judgment and remanding to the district court for resentencing, by ALK, DJ, BDP, FILED Judge ALK dissents by seperate opinion.[2012234] [14-4295]

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

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In the

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United States Court of Appeals

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For the Second Circuit

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________

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August Term, 2015

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No. 14-4295-cr

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UNITED STATES OF AMERICA,
Appellee,

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v.

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JOSEPH VINCENT JENKINS
Defendant-Appellant.
________

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

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________

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Argued: May 18, 2016
Decided: April 17, 2017
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Before: KEARSE, JACOBS, and PARKER, Circuit Judges.
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Defendant-appellant Joseph Vincent Jenkins appeals from a
judgment of conviction in the United States District Court for the
Northern District of New York (Suddaby, Chief Judge). Jenkins was
convicted of possession and transportation of child pornography

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after he was found with a collection of child pornography on his
laptop and thumb drive as he crossed the U.S.-Canada border on his
way to a family vacation. The district court sentenced him
principally to 225 months in prison followed by 25 years of
supervised release. We conclude that this sentence was substantively
unreasonable. Accordingly, we vacate this sentence and remand for
resentencing.1
Judge KEARSE concurs in part and dissents in part in a
separate opinion.
________
DANIEL DEMARIA, Merchant Law Group LLP,
New York, NY, for Defendant-Appellant.

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

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BARRINGTON D. PARKER, Circuit Judge:
A jury found Joseph Vincent Jenkins guilty of one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and one count of transportation of child
pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the
government’s proof at trial that Jenkins owned a collection of child
pornography and brought it across the U.S.-Canada border on the
way to a family vacation for his personal viewing.
The United States District Court for the Northern District of
New York (Glenn T. Suddaby, Chief Judge) imposed concurrent
sentences of 120 months for the possession count, the statutory
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A summary order issued concurrently with this opinion affirms the judgment of conviction
with respect to the remaining issues raised by Jenkins on his appeal.

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maximum, and 225 months for the transportation count, just below
the statutory maximum of 240 months. The court also imposed a
term of 25 years of supervised release. Jenkins challenges his
conviction and the procedural and substantive reasonableness of his
sentence.

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The government’s evidence established that Jenkins, a first
time felony offender, maintained a collection of child pornography
on a personal computer and thumb drive for personal use. He did
not produce or distribute child pornography and did not contact or
attempt to contact a minor. He “transported” his images in the
technical sense that he brought them on a family vacation that
involved his crossing the Canadian border and he was apprehended
at the Canadian side. For the reasons that follow, we hold that a
sentence of 225 months and 25 years of supervised release is
substantively unreasonable. Accordingly, we vacate the sentence
and remand for resentencing.

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BACKGROUND

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On May 24, 2009, Jenkins attempted to enter Canada from the
United States at the border crossing in Landsdowne, Ontario.
Jenkins, who was 39 years old at the time, was traveling alone from
his home in Geneva, New York to spend a week with his parents at
their summer home in Quebec. Canadian border agents searched his
vehicle and discovered a Toshiba laptop, a Compaq laptop, and
three USB thumb drives.

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Jenkins’s “demeanor” prompted the agents to search the
devices. After finding child pornography on the Toshiba laptop and
on one of the thumb drives, the agents seized all the devices and
arrested and subsequently charged him with child pornography
offenses under the Canadian Criminal Code.
After being released on bail, Jenkins did not appear on his
scheduled trial date and the Canadian court issued a bench warrant
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for his arrest. Canadian agents subsequently contacted the U.S.
Department of Homeland Security (“DHS”), inquiring whether DHS
was interested in information about the case. DHS then commenced
an investigation, obtained Jenkins’s electronic devices from
Canadian authorities, and proceeded to examine them. This
examination confirmed that the devices contained images and
videos depicting child pornography. Jenkins was subsequently
arrested by U.S. law enforcement officials and charged with
possessing and transporting child pornography. The case proceeded
to trial, where the government introduced the devices and the
images into evidence, and presented both Canadian and DHS
officials as witnesses.
Jenkins testified at trial, making a number of contentions that
turned out to be false. First, he contended that contractors working
for his electrical contracting business had frequent access to all areas
on his laptops and could take his laptops home. Jenkins denied that
the thumb drives were in his truck and asserted that he had never
seen them before. Finally, he claimed that he was absent from the
Canadian trial because his lawyer there had suggested to him that
“you could just not return to Canada if you want to just not deal
with the charge.” App. 631. The jury ultimately credited the
government’s version of events and returned a guilty verdict on
both counts on February 6, 2014.
The Probation Office issued its Presentence Investigation
Report (“PSR”) in April 2014. Applying United States Sentencing
Guideline § 2G2.2 for child pornography offenses, the PSR
calculated Jenkins’ base offense level as 22. § 2G2.2(a)(2). The PSR
recommended four enhancements: (i) two levels for possessing
material involving a prepubescent minor, id. § 2G2.2(b)(2); (ii) four
levels for material portraying sadistic or masochistic conduct or
other forms of violence, § 2G2.2(b)(4); (iii) two levels because the
offenses involved the use of a computer, id. § 2G2.2(b)(6); and (iv)
five levels because the offenses involved 600 or more images, id.
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§ 2G2.2(b)(7)(D). These enhancements raised Jenkins offense level
from 22 to 35. Jenkins received no offense level reductions for
acceptance of responsibility. Because Jenkins only had a prior
misdemeanor offense, he was found to have a Criminal History
Category of I. In addition, at the sentencing hearing, the government
sought a two-level enhancement for obstruction of justice
contending that Jenkins had offered false exculpatory testimony at
trial. See id. § 3C1.1. The district court agreed and applied the
enhancement. It also adopted the factual findings and Guidelines
recommendations from the PSR. The result was a total offense level
of 37, yielding a Guidelines range of 210 to 262 months.
The sentencing hearing was a stormy one at which Jenkins, an
intemperate, out-of-control pro se litigant, repeatedly clashed with
the court. For example, the following colloquy transpired after
Jenkins conceded that it was too late for him to retain new counsel,
and the court informed Jenkins that the sentencing hearing would
nevertheless proceed:

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THE DEFENDANT:

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Well, I mean, I've pretty much demanded that -- I don't
feel you have any right to sentence me after all these
antics and there's a lot of screwing around here and I
don't agree with it and I've repeatedly asked Ms.
Peebles [Jenkins’s attorney] here to file a petition to
have you removed and I think that there's grounds for
it. I've been going over submissions the last few weeks
and court transcripts. I mean, that's what I want. I'd
rather -- I mean, you've set a record that -- I mean, she
hasn't done what I've asked her to do. We've been going
around for a few months arguing.

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...

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THE COURT:

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

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

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So, you'll be given a full opportunity to say anything
you want. If you're not going to retain somebody,
certainly this Court is not going to appoint another
attorney to represent you at this point.

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So you can proceed by representing yourself today.
That’s up to you, sir, but we’re going to proceed with
sentencing.

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

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

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You’ve demonstrated that you have a total lack of
respect for the law and disdain for the law. That [is,]
in the Court’s view it is without question that, if
given the opportunity, you will do exactly what you
want to do in any situation and you are a very high
risk to reoffend.
You attempted to transport thousands of images and
videos of child pornography into Canada and then
later failed to appear for your Canadian trial. You
attempted to evade justice and when you were
arrested in the United States, you blamed Canada . . .
You have since demonstrated total disregard for the
law and a complete lack of respect for this Court and
any of the attorneys who have tried to help you.

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App. 860-61. The district court concluded: “[b]ased on these factors
and your large collection of child pornography, the Court has
imposed a sentence that reflects the seriousness of your crime, that
promotes respect for the law, and that provides you with adequate
deterrence from committing further crimes, and that protects the
public.” App. 861. Jenkins timely appealed.

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DISCUSSION

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

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conveyed by a transcript. United States v. Broxmeyer, 699 F.3d 265, 289
(2d Cir. 2012). Nonetheless, the length of a sentence may, with or
without far reaching post-release restrictions, make it excessively
punitive or needlessly harsh. See Rigas, 583 F.3d at 123. Sentences that
fall into these categories are “shockingly high” ones that serve no
valid public purpose. United States v. McGinn, 787 F.3d 116, 129 (2d
Cir. 2015).
Our review of a sentence for substantive reasonableness is
governed by the factors set forth in 18 U.S.C. § 3553(a). United States
v. Carr, 557 F.3d 93, 107 (2d Cir. 2009). One important factor is the
need for the sentence to reflect the seriousness of the offense and to
promote respect for the law. 18 U.S.C. § 3553(a)(2)(A). Others are to
“provide just punishment for the offense;” “afford adequate
deterrence to criminal conduct;” and “protect the public from further
crimes of the defendant,” id. § 3553(a)(2), or more succinctly, to fulfill
the purposes of “retribution, deterrence, and incapacitation,” United
States v. Park, 758 F.3d 193, 200 (2d Cir. 2014). Additional factors are
supplied by the Guidelines under which sentencing courts are
required to consider “the nature and circumstances of the offense and
the history and characteristics of the defendant,” and “the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.” 18
U.S.C. §§ 3553(a)(1) and (6).
We are also obligated to consider whether conditions of
supervised release imposed by the district court are reasonably
related to certain statutory sentencing factors listed in §§ 3553(a)(1)
and (a)(2); involve no greater deprivation of liberty than is reasonably
necessary to implement the statutory purposes of sentencing; and are
consistent with pertinent Sentencing Commission policy statements.
United States v. Dupes, 513 F.3d 338, 343 (2d Cir. 2008) (citing 18 U.S.C.
§ 3583(d)). While district courts have broad discretion to tailor
conditions of supervised release, United States v. Gill, 523 F.3d 107,
108 (2d Cir. 2008), that discretion is not unfettered, United States v.
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Doe, 79 F.3d 1309, 1320 (2d Cir. 1996). It is the responsibility of our
court to carefully scrutinize conditions that may be excessively harsh
or inexplicably punitive.
We evaluate in turn whether each sentencing factor, “as
explained by the district court, can bear the weight assigned it under
the totality of circumstances in the case.” Cavera, 550 F.3d at 191. We
conclude that the factors upon which the district court relied—
retribution, deterrence, and incapacitation, and the attributes of
Jenkins and his crimes—cannot bear the weight of the sentence the
district court imposed. Our conclusion that the sentence is excessive
is reinforced by the need to avoid unwarranted sentence disparities
and by the need to avoid excessively severe conditions of supervised
release. On remand, we are confident that Jenkins will eventually
receive a sentence that properly punishes the crimes he committed.
But Judge Suddaby, in imposing his sentence, went far overboard.
I.

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Consistent with 18 U.S.C. § 3553(a)(4), the district court’s
starting point was U.S.S.G. § 2G2.2, the guideline governing child
pornography offenses. In United States v. Dorvee, we held that this
Guideline “is fundamentally different from most and that, unless
applied with great care, can lead to unreasonable sentences that are
inconsistent with what § 3553 requires.” 616 F.3d 174, 184 (2d Cir.
2010).
First, we observed that the Sentencing Commission has not
been able to apply its expertise but instead has increased the severity
of penalties “at the direction of Congress,” despite “often openly
oppos[ing] these Congressionally directed changes.” Id. at 184–86.
Second, we noted that four of the sentencing enhancements3 were so
“run-of-the-mill” and “all but inherent to the crime of conviction”
that “[a]n ordinary first-time offender is therefore likely to qualify for
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That is, enhancements for (i) an image with a prepubescent minor, (ii) an image portraying
sadistic or masochistic conduct or other forms of violence, (iii) use of a computer, and (iv)
600 or more images.

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a sentence of at least 168 to 210 months” based on an offense level
increased from the base level of 22 to 35. Id. at 186. We emphasized
that this range was likely to be unreasonable because it was “rapidly
approaching the statutory maximum” for distribution of child
pornography, and because the offense level failed to sufficiently
distinguish between “the most dangerous offenders” who “distribute
child pornography for pecuniary gain and who fall in higher criminal
history categories” and those who distribute for personal, noncommercial reasons. Id. at 186–87. Also, we held that this range
demonstrated “irrationality in § 2G2.2” because it was substantially
more severe than for an adult “who intentionally seeks out and
contacts a twelve-year-old on the internet, convinces the child to
meet and to cross state lines for the meeting, and then engages in
repeated sex with the child.” Id. at 187.
The concerns we expressed in Dorvee apply with even more
force here and none of them appears to have been considered by the
district court. Jenkins received precisely the same “run-of-the-mill”
and “all-but-inherent” enhancements that we criticized in Dorvee,
resulting in an increase in his offense level from 22 to 35. These
enhancements have caused Jenkins to be treated like an offender who
seduced and photographed a child and distributed the photographs
and worse than one who raped a child. Because he also received an
enhancement for his false exculpatory testimony at trial, which we
conclude was appropriate, his offense level was 37, producing a
Guidelines range of 210 to 262 months.4 Even without this additional
enhancement, the Guidelines range of 168 to 210 months exceeds the
statutory maximum of 120 months for Jenkins’s possession charge.
Our conclusion that Jenkins’s sentence was shockingly high is
reinforced by the important advances in our understanding of non4

That range extends beyond the statutory maximum of 240 months for his count of
transportation of child pornography, the more severe of his two offenses; Jenkins’s Guideline
range is therefore 210 to 240 months. See Dorvee, 616 F.3d at 182.

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production child pornography offenses since we decided Dorvee. To
begin with, the latest statistics on the application of sentencing
enhancements confirm that the enhancements Jenkins received under
this Guideline are all-but-inherent. In 2014, for example, 95.9% of
defendants sentenced under § 2G2.2 received the enhancement for an
image of a victim under the age of 12, 84.5% for an image of sadistic
or masochistic conduct or other forms of violence, 79.3% for an
offense involving 600 or more images, and 95.0% for the use of a
computer. See U.S. Sentencing Comm’n, Use of Guidelines and Specific
Offense Characteristics (Offender Based), Fiscal Year 2014 42–43, available
at http://www.ussc.gov/sites/default/files/pdf/research-andpublications/federal-sentencing-statistics/guideline-application-frequ
encies/2014/Use_of_SOC_Offender_Based.pdf.
Since Dorvee, the Sentencing Commission has also produced a
comprehensive report to Congress examining § 2G2.2. U.S.
Sentencing Comm’n, Report to the Congress: Federal Child Pornography
Offenses (2012) [hereinafter “USSC Report”], available at
http://www.ussc.gov/sites/default/files/pdf/news/congressionaltestimony-and-reports/sex-offense-topics/201212-federal-child-porno
graphy-offenses/Full_Report_to_Congress.pdf. In this report, the
Commission explains that it “believes that the current
non-production guideline warrants revision in view of its outdated
and disproportionate enhancements related to offenders’ collecting
behavior as well as its failure to account fully for some offenders’
involvement in child pornography communities and sexually
dangerous behavior.” Id. at xxi. Since the Commission has effectively
disavowed § 2G2.2, it should be clearer to a district court than when
we decided Dorvee that this Guideline “can easily generate
unreasonable results.” 616 F.3d at 188.
Here, § 2G2.2 yielded a sentence that derived substantially
from “outdated” enhancements related to Jenkins’s collecting
behavior. Meanwhile, the government has not alleged that he was
involved in the production or distribution of child pornography or
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that he was involved in any child pornography community. In
particular, the government did not claim he used peer-to-peer
sharing software, distributed images, or participated in chat rooms
devoted to child pornography. Nor does the government allege that
he contacted or attempted to contact a child or that he engaged in any
“sexually dangerous behavior” separate from his crimes of
conviction. Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight
assigned it” because the cumulation of repetitive, all-but-inherent,
enhancements yielded, and the district court applied, a Guideline
range that failed to distinguish between Jenkins’s conduct and other
offenders whose conduct was far worse. Cavera, 550 F.3d at 191. It
was substantively unreasonable for the district court to have
applied the § 2G2.2 enhancements in a way that placed Jenkins at the
top of the range with the very worst offenders where he did not
belong.
II.
The district court justified its sentence with reference to the
size of Jenkins’s collection of child pornography, his refusal to accept
responsibility, his attempts to blame others, his disrespect for the
law, and his likelihood of reoffending. Paraphrasing the language of
18 U.S.C. § 3553(a)(2), the court concluded that a sentence of 225
months would reflect the seriousness of Jenkins’s offenses, promote
respect for the law, provide adequate deterrence, and protect the
public. The purposes of retribution, deterrence, and incapacitation
are important, and we in no way condone either his consumption of
child pornography or his misconduct before various authorities
including the district court.
However, every Guidelines sentence is limited by § 3553(a)’s
“parsimony clause,” which instructs a district court to impose a
sentence “sufficient, but not greater than necessary,” to achieve
§ 3553(a)(2)’s goals. Dorvee, 616 F.3d at 182. District courts are
required to carefully consider on an individualized basis “the nature
and circumstances of the offense and the history and characteristics
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of the defendant.” 18 U.S.C. § 3553(a)(1). Further, those
considerations must be applied in the context of the other § 3553(a)
factors. After the other factors are considered, upward adjustments
may be appropriate for the sake of retribution, deterrence, and
incapacitation. However, we conclude that the district court’s
considerations cannot reasonably justify regarding Jenkins as the
worst of the worst and sentencing him as such.
While he should receive stern punishment for his crimes, the
fact remains that the sentence he received fails, as required by
§ 3553(a)(1), to account for the important differences between the
sentence Jenkins and those who produced or distributed child
pornography or who physically abused children received. For
example, in upholding a sixty-year sentence in United States v. Brown,
we found it significant that the defendant had repeated sexual
contact with multiple young victims and engaged in the production
of child pornography during the course of that abuse. 843 F. 3d 74, 83
(2d Cir. 2016). Likewise, in Broxmeyer, we affirmed a thirty-year
sentence for child pornography where the defendant was convicted
of attempted production of child pornography and committed
statutory rape of girls he was supposedly mentoring. 699 F.3d at 297.
Whether a child pornography offender has had or has attempted to
have contact with children is an important distinction. “The failure to
distinguish between contact and possession-only offenders [is]
questionable on its face,” and this failure “may go against the grain of
a growing body of empirical literature indicating that there are
significant, § 3553(a)-relevant differences between these two groups.”
United States v. Apodaca, 641 F.3d 1077, 1083 (9th Cir. 2011); see e.g.,
Shelley L. Clevenger et al., “A Matter of Low Self-Control? Exploring
Differences Between Child Pornography Possessors and Child
Pornography Producers/Distributers Using Self-Control Theory,” 28
Sexual Abuse 555 (2016) (finding online offenders have greater victim
empathy and greater levels of self-control than offline offenders).

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Further, among defendants convicted of transportation,
Jenkins is relatively less culpable because he was bringing his
collection for his own personal use, rather than carrying child
pornography to sell or distribute to others. In 2010, 88.7% of those
convicted of transportation “engaged in knowing distribution to
another.” USSC Report 189 n.72. Along this dimension, then, Jenkins
is near the bottom of the distribution of offenders. However, the
district court imposed a sentence of 225 months, near the top of the
statutory range of 60 to 240 months. 18 U.S.C. § 2252A(b)(1).
Admittedly, Jenkins may be unlike many other transporters because
he refused to accept responsibility, offered false exculpatory
testimony at his trial, and was disrespectful to the district judge.
However, these factors cannot justify a sentence that is 165 months
above the statutory minimum and a mere 15 months below the
statutory maximum.
Moreover, bringing a personal collection of child pornography
across state or national borders is the most narrow and technical way
to trigger the transportation provision. Whereas Jenkins’s
transportation offense carried a statutory maximum of 20 years, the
statutory maximum for his possession offense was “only” 10 years.
Jenkins was eligible for an additional 10 years’ imprisonment because
he was caught with his collection at the Canadian border rather than
in his home. The government argues that Jenkins was “so captivated
by child pornography that he could not leave behind his collection
even for a short vacation to Canada,” Appellee Br. 84. We disagree
that bringing a personal collection to the start of a vacation as
opposed to leaving it at home supplies an appropriate basis for
sentencing a person to an additional 10 years in prison.
In addition, though we accept the district court’s observation
that Jenkins’s conduct at trial and during sentencing proceedings
reflected a “disdain for the law,” we find problematic the district
court’s exclusive reliance on this factor as justification for
dramatically increasing Jenkins’s sentence. See App. 860-61. While we
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do not condone Jenkins’s lack of respect for the law, it simply cannot
bear the weight the district court assigned to it. Dorvee, 616 F.3d at
183; cf. United States v. Gerezano Rosales, 692 F.3d 393, 401 (5th Cir.
2012) (holding district court’s decision to increase a defendant’s
sentence from 71 to 108 months based on defendant’s disrespect for
the law constituted clear error in judgement in balancing the
sentencing factors). Jenkins had already paid heavily for his
disrespectful behavior. The Court denied him any offense level
reduction for acceptance of responsibility. Apparently concluding
that this significant sanction was insufficient, the district judge
proceeded to add years and years onto Jenkins’s sentence in light of
his failure to accept responsibility, as demonstrated by his persistent
rudeness and disrespect. While we appreciate the district judge’s
frustration, we are unwilling to sanction dramatically increasing a
sentence because an angry out-of-control pro se defendant facing
decades in prison fails to manifest sufficient respect for the system
that is about to incarcerate him.
We also disagree with the district court’s conclusion that
Jenkins’s lack of respect makes him “a very high risk to reoffend.”
App. 861. The district court’s conclusion ignores widely available,
definitive research demonstrating that recidivism substantially
decreases with age. See e.g., U.S. Sentencing Comm’n, Measuring
Recidivism: The Criminal History Computation of the Federal Sentencing
G u i d e l i n e s
8 ,
a v a i l a b l e
a t
http://www.ussc.gov/sites/default/files/pdf/research-and-publications
/research-publications/2004/200405_Recidivism_Criminal_History.pd
f. That research documents that offenders with a Criminal History
Category I between ages 41 to 50 have a 6.9% recidivism rate, as
opposed to a 29.5% recidivism rate for Category I offenders under
21.These statistics from the Commission, which include offenders
who accepted responsibility as well as those who did not, suggest
that Jenkins, an offender with no criminal history points who will be
63 when he is released from his lengthy prison sentence, will be a
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low–not a high–risk to reoffend since more than 90% of individuals in
his age group do not reoffend. Although it would be well within a
district court’s discretion to increase a sentence based on a likelihood
of reoffending, there must, in a case like this, be some support in the
record for that conclusion, such as, for example, a record of previous
convictions or previous attempts to harm children. Here there is
none. A sentence of 225 months for a first-time offender who never
spoke to, much less approached or touched, a child or transmitted
explicit images to anybody is unreasonable.
Additional months in prison are not simply numbers. Those
months have exceptionally severe consequences for the incarcerated
individual. They also have consequences both for society which bears
the direct and indirect costs of incarceration and for the
administration of justice which must be at its best when, as here, the
stakes are at their highest.5

28

Finally, the government highlights the seriousness of Jenkins’s
offenses as a consumer of child pornography, saying that he
“encouraged the market for this content and spurred the abuse of
other children whose exploitation would be necessary to create new
images and videos, to feed the demand of consumers like Jenkins.”
Appellee Br. 84. But this observation is true of virtually every child
pornography offender. It is undoubtedly correct that “[a]ll child
pornography offenses are extremely serious because they both
perpetuate harm to victims and normalize and validate the sexual
exploitation of children.” USSC Report 311. We do not for a moment
dispute that Jenkins deserves a substantial term of imprisonment.
Nonetheless, some types of conduct in this area are more culpable
than others. District courts should generally reserve sentences at or

29

near the statutory maximum for the worst offenders. Treating Jenkins

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5

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

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as the worst of the worst has no grounding in the record we are

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reviewing and is inconsistent with the parsimony clause.
III.

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The sentence the district court imposed also created the type
of unwarranted sentence disparity that violates § 3553(a)(6).6
Statistics from the Sentencing Commission validate our concern. In
general, a district court need not consult the Commission’s statistics
because there is “no assurance of comparability.” United States v.
Irving, 554 F.3d 64, 76 (2d Cir. 2009). Here, however, the
Commission’s statistics, which were readily available to the district
court at the time of sentencing, allow for a meaningful comparison of
Jenkins’s behavior to that of other child pornography offenders.
First, just as § 2G2.2 produces Guidelines ranges that are
higher than those for individuals who engage in sexual conduct with
a minor, Jenkins’s sentence is longer than typical federal sentences for
sexual offenses against in-person victims. In 2013, the latest year
available to the district court at the time of sentencing, the mean
sentence in the category of “sexual abuse” was 137 months, and the
median was 120 months. U.S. Sentencing Comm’n, 2013 Sourcebook of
Federal Sentencing Statistics tbl.13, available at http://www.ussc
.gov/sites/default/files/pdf/research-and-publications/annual-reportsand-sourcebooks/2013/Table13.pdf. We believe Jenkins’s sentence

6

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

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that is 88 months above this mean and 105 months above this median
is unreasonable.
Second, the mean federal sentence in the “child pornography”
category in 2013 was 136 months, and the median was 120 months.
Id. This category included several hundred individuals who produced
child pornography (333, compared to 1,609 sentenced for trafficking
and possession offenses). U.S. Sentencing Comm’n, Use of Guidelines
and Specific Offense Characteristics (Offender Based), Fiscal Year 2013 3940, available at http://www.ussc.gov/sites/
default/files/pdf/research-and-publications/federal-sentencing-statisti
cs/guideline-application-frequencies/2013/Use_of_Guidelines_and_S
pecific_Offense_Characteristics_Offender_Based_Revised.pdf. The
presence of such individuals in the distribution is a further indication
that a sentence that is 89 months above the 2013 mean for child
pornography sentences and 105 months above the median is not
reasonable.

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

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IV.

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

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and circumstances of the offense” or Jenkins’s “history and
characteristics;” nor are they “reasonably necessary” to the
sentencing purposes set forth in § 3553(a)(2). See 18 U.S.C. §§ 3553
and 3563(b). We would reach this same conclusion about the duration
and terms of Jenkins’s supervised release even if the period of
incarceration he had received had been lower.
To start, the duration of the supervised release, on top of
nearly 19 years in prison, make the restrictions excessive and
unreasonable. Jenkins will be 63 years old when he is released from
prison. He will be under supervised release for the next 25 years until
he is 88 years old. While this term of supervised release does not
violate the Guidelines or the Policy Statement of § 5D1.2(b)(2), we
may not presume the reasonableness of the sentence on that basis.
United States v. Hayes, 445 F.3d 536, 537 (2d Cir. 2006). This is
particularly true where the district court offered no explanation that
might justify imposing what amounts to a lifetime of the most intense
post-release supervision that prevents Jenkins from ever re-engaging
in any community in which he might find himself. By contrast, in
United States v. Bowles, 260 F. App’x 367, 369-70 (2d Cir. 2008)
(summary order), we held that Bowles’s problems with sexual
deviance, his perception that the children enjoyed the contact, and his
long-term alcohol and drug abuse and mental illness formed a
reasonable basis for lifetime supervised release. No congruent
concerns are presented in the record we are reviewing. Ordinarily, a
district court is under no obligation to provide elaborate reasons for
the sentence it imposes. In many instances the reasons for a sentence
can be garnered from the record. That is not the case here. Where a
sentence is unusually harsh, meaningful appellate review is
frustrated where it is not possible to understand why the sentence
was imposed.
Moreover, we are troubled by specific conditions of release. For
example, one of them prohibits Jenkins from having direct contact
with anyone under the age of 18 unless supervised by a person
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approved by the probation office. As mentioned above, Jenkins never
contacted or attempted to contact any minors. But under this
condition, Jenkins is prohibited during the 25-year period from
interaction with family members or friends who might have children
under the age of 18 unless he goes through a preapproval process
with the Probation Office which presumably would entail some sort
of investigation and finding by that office. This restriction would
apply with full force to all routine family interaction–for example,
Thanksgiving dinners or seders or christenings.
Another condition bars Jenkins from any “indirect contact”
with a person under the age of 18 “through another person or
through a device (including a telephone, computer, radio, or other
means)” unless it is supervised by a person approved by the
Probation Office. It is difficult to know what the boundaries of this
restriction might be. If, for example, members of a little league
baseball team were soliciting in front of a supermarket, could Jenkins
approach them or later call in and contribute? Common sense would
say “yes” but the problem for Jenkins would be that the
consequences of an incorrect guess would be sufficiently serious that
he would be ill advised to run any risks at all. That same restriction
required him to “reasonably avoid and remove himself . . . from
situations in which [he] has any other form of contact with a minor.”
Again it is unclear what Jenkins is expected to do for the 25 years
during which he must comply with this restriction. Is he required to
stay away from sporting events or natural history museums or street
fairs? The reasonable necessity for these restrictions which apply to
Jenkins when he is in his 70s and 80s eludes us.
Likewise the relationship between the restrictions on Jenkins’s
employment and Jenkins’s offense and circumstances is not readily
apparent. See United States v. Brown, 402 F.3d 133, 138–39 (2d Cir.
2005) (vacating condition where it was “seemingly unrelated to
[Defendant’s] offense and circumstances”). As mentioned earlier, the

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nature of these employment restrictions mean that, as a practical
matter, he may never be employable.
Another condition prohibits Jenkins from incurring new credit
charges or opening additional lines of credit without approval of a
probation officer. Nothing in the record suggests these restrictions on
Jenkins’s use of credit cards are “reasonably necessary,” 18 U.S.C.
§ 3563(b)(5), to protect the public or to deter Jenkins from continuing
to engage in the conduct for which he was convicted–possession of
child pornography. Cf. United States v. Peppe, 80 F.3d 19, 23 (1st Cir.
1996) (holding that a bar on incurring debt without prior approval
was reasonably related to defendant’s offense, which involved the
extortionate extension of credit). This is especially true when the use
of credit cards or other forms of credit will likely be necessary to
function in the society that will exist after Jenkins’s eventual release
from prison. See United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001)
(per curiam) (vacating a special condition imposing restrictions on
computer ownership because, in part, “[c]omputers and Internet
access have become virtually indispensable in the modern world of
communications and information gathering”). Why Jenkins should
be prohibited from buying a drink on an airplane or taking an Uber
ride or making a purchase on Amazon unless the transaction is preapproved by a probation officer cannot be divined from the record
we are reviewing.
The conditions of supervised release imposed by Judge
Suddaby mean that Jenkins will never be able to pay his debt to
society. He will likely never be able to develop and maintain
meaningful relationships with others, to obtain employment and
remain employed or to ever lead anything that remotely resembles a
“normal” life.
As we review these conditions of release, what is particularly
depressing is that the Assistant United States Attorney and the
probation officer who appeared at sentencing either believed they
were appropriate or did not believe they were appropriate but
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nonetheless stood mute as they were imposed. We do not doubt for a
moment that there are other cases in which some or all of the
conditions imposed by the district court would be required and
reasonable. But given Jenkins’s personal characteristics and the
nature of his offense, this constellation of restrictions, compounded
by their 25-year duration, “inflicts a greater deprivation” on his
liberty than is “reasonably necessary.” United States v. Sofsky, 287 F.3d
122, 126 (2d Cir. 2002).
CONCLUSION
Jenkins’s sentence is substantively unreasonable. Accordingly,
we vacate it and remand for resentencing. This panel will retain
jurisdiction over any subsequent appeal. Either party may notify the
Clerk of a renewed appeal within fourteen days of the district court’s
new sentence. United States v. Tutty, 612 F.3d 128, 133 (2d Cir. 2010)
(citing United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).7

7

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

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