United States of America v. Jenkins

Filing

OPINION, Dissenting, by Judge Kearse, FILED.[2012238] [14-4295]

Case 14-4295, Document 139, 04/17/2017, 2012238, Page1 of 3

14-4295
United States v. Jenkins

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KEARSE, Circuit Judge, dissenting in part:

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

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

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Guidelines range, is substantively unreasonable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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I couldn't disagree with your attorney more when she says that you're not a
threat to commit this crime again. 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

Case 14-4295, Document 139, 04/17/2017, 2012238, Page2 of 3

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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.

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

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

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

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memorandum submitted pro se, he asserted, inter alia,

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

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

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# that the jury's verdict of guilt "was obtained through conspired fraud,
misrepresentation," and "perjury"; and
# that "the[] whole case" was "unsubstantiated garbage."
(Jenkins' pro se sentencing memorandum at 1-3.)

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

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

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

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

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

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

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

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sentencing memorandum at 2 (emphases added).)

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

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

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should have been prosecuted, the district court's concern for the likelihood that, without a lengthy
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Case 14-4295, Document 139, 04/17/2017, 2012238, Page3 of 3

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

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

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

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