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In 2-1 Decision, Second Circuit Vacates Child Pornography Sentence as Substantively Unreasonable

For the third time in the past year[1], the Second Circuit in United States v. Jenkins, No. 14-4295 (Kearse, Jacobs, Parker), has vacated as substantively unreasonable a sentence imposed under the sentencing guideline for child pornography offenses, U.S.S.G. § 2G2.2.

Jenkins was arrested by Canadian authorities for possessing child pornography while traveling from New York to Quebec to visit his parents’ vacation home. After he failed to show in court, the Canadian authorities provided his electronic devices (two laptops and several thumb drives) to the United States, which successfully brought charges for possessing and transporting child pornography in violation of 18 U.S.C. § 2252A. The statutory maximum for the two offenses was 10 and 20 years, respectively. Although Jenkins’s base offense level was 22, the Probation Office recommended an increase of 13 levels based on four enhancements under the applicable guideline: possessing material involving a prepubescent minor, possessing material portraying sadistic or masochistic conduct, using a computer, and possessing 600 or more images. The government additionally sought a two-level enhancement for obstruction of justice based on false statements that Jenkins had made at trial, resulting in an offense level of 37 and a guideline range of 210 to 262 months.

During a “stormy” sentencing hearing, Jenkins defiantly claimed that his court-appointed attorneys had all been “idiots,” that the court was without authority to sentence him, and that the judge should be removed. After rebuking Jenkins, adopting Probation’s findings, and granting the government’s requested enhancement, the district court imposed a sentence of 10 years for possession (the statutory maximum) and 225 months for transportation (just short of the 20-year maximum), citing the § 3553(a) factors and Jenkins’s lack of respect for the law and the proceedings, which in the court’s view showed that he was very likely to reoffend. The court also imposed a 25-year term of supervised release that prohibited Jenkins from using any device with online capabilities except at his place of employment; barred him from having any direct or “indirect” contact with anyone under the age of 18 unless supervised by a person approved by his probation officer; and required him to get approval from his probation officer prior to obtaining employment, incurring any charges to credit cards, or opening a line of credit, and to inform potential employers of his offense.

Writing for the Court, Judge Parker began by reiterating the lessons of United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). There, the Court recognized that U.S.S.G. § 2G2.2 is “fundamentally different” from most other guidelines and must be applied with “great care” because it is not based on the Sentencing Commission’s expertise (but rather Congress’s direction), its four enhancements are effectively triggered for any first-time offender and result in a range near the statutory maximum, and it irrationally recommends a higher sentence than applies to adults who actually engage in sex with minors. These observations had been bolstered, the Court said, by “important advances in our understanding of non-production child pornography offenses since we decided Dorvee.” Statistics now confirmed that the enhancements were all-but-inherent to the offense—for instance, 96% of defendants received the prepubescent-minor enhancement, and 95% received the enhancement for use of a computer. Further, the Sentencing Commission had produced a report to Congress effectively disavowing the guideline due to its failure to meaningfully account for differences in culpability.

The concerns underlying Dorvee applied “with even more force here,” as Jenkins was a first-time felony offender and there was no evidence that he had had any involvement in the production or distribution of child pornography or had attempted to contact a minor. Moreover, Jenkins had “transported” pornography (carrying the much higher 20-year maximum) in only the “most narrow and technical sense” of bringing his devices with him for personal use while traveling for vacation. Nonetheless, the district court had failed to consider any of these factors and had imposed a sentence that treated Jenkins like the most culpable violator of the statute when he was not. Among defendants convicted of transportation, 89% had engaged in knowing distribution to another, yet Jenkins (who had not) had received a sentence near the statutory maximum. Jenkins’s sentence was also substantially higher than the typical sentence of persons who engage in sex with a minor (137 months), produce child pornography (136 months), or possess but do not distribute pornography (52 months).

The panel held that the factors cited by the district court could not bear the weight of the sentence imposed because, beyond a formulaic recitation of the § 3553(a) factors, the court had simply relied on Jenkins’s conduct at trial and sentencing and his general lack of respect for the proceedings. The court’s frustration, while understandable, could not justify decades in prison, and its conclusion that Jenkins’s lack of respect made him more likely to reoffend was contradicted by statistics showing that recidivism substantially decreases with age; Jenkins was already 39 at the time of sentencing. The panel rejected the government’s contention that the seriousness of the offense justified the sentence because consumption of child pornography encourages the market and spurs the abuse of children. While the offense was serious, the Court reasoned, the government’s point “is true of virtually every child pornography offender,” and it is the district court’s duty to account for differences in culpability and reserve sentences at or near the statutory maximum for the worst offenders.

The terms of supervised release were also substantively unreasonable as they were not reasonably related to the nature and circumstances of the offense or Jenkins’s history and characteristics, and were not reasonably necessary to promote the purposes set forth in § 3553(a). The 25-year term itself was “unusually harsh” and unreasonable, particularly when Jenkins would be incarcerated for nearly 19 years and would be 63 years’ old upon release. The Court was also “troubled” by the specific conditions of release, which effectively prohibited Jenkins from engaging in “routine family interaction,” finding meaningful employment, or even “buying a drink on an airplane or taking an Uber ride or making a purchase on Amazon unless the transaction is pre-approved by a probation officer.” These conditions made it unlikely that Jenkins would ever “be able to pay his debt to society” or “lead anything that remotely resembles a ‘normal’ life.”  At the same time, both the conditions and length of the term of supervised release bore no apparent relation to his crime. The Court accordingly vacated the sentence and remanded for resentencing, with this specific panel retaining jurisdiction over any subsequent appeal.

In a short dissent, Judge Kearse reasoned that the guideline range was properly calculated, and the sentence was not substantively unreasonable given that it fell within the range and was based on Jenkins’s repeated—and continuous—lack of respect for the law or acceptance of responsibility. Judge Kearse noted that, even in his pro se sentencing memorandum on appeal, Jenkins had brazenly “blamed the children depicted in the pornographic images and videos he transported,” saying that they had produced and broadcast the videos themselves “and should be prosecuted.”

Jenkins continues the Court’s practice of taking a hard look at sentences in child pornography cases and requiring district courts to consider carefully the need to avoid unwarranted disparities and impose a term that is tailored to the culpability and circumstances of the defendant. It is notable that the majority did not dispute the district court’s application of the enhancements or its calculation of the guideline range, as Judge Kearse observed in dissent; ordinarily, this leads to affirmance. Moreover, the district court’s sentence, while at or near the statutory maximum for each offense, was only slightly above the bottom of the guideline range. This suggests that, in light of the foundational problems with § 2G2.2, courts cannot rely on the fact that their sentence is within the resulting range, but rather must seriously consider whether a below-guideline sentence is necessary for less culpable offenders. The panel’s reference to national sentencing statistics (which are compiled by the Sentencing Commission) and the typical sentence imposed on other offenders (ranging from 52 to 137 months) provides further guidance and may cause courts to err on the side of below-guideline sentences, particularly where the run-of-the-mill enhancements apply and trigger a substantially higher range. 

The panel also seemed troubled by the idea that Jenkins received a longer sentence based on his offensive comments about the victims of the offense and the court personnel, including the judge.  In his landmark book, Criminal Sentences, Judge Marvin Frankel memorably wrote about a judge who told his fellow jurists that he gave a defendant five years’ imprisonment instead of four because the defendant “excoriate[ed] the judge, the ‘kangaroo court’ in which he’d been tried, and the legal establishment in general.”  Judge Frankel dismissed the idea that the longer sentence was based on “insufficient evidence of remorse and prospects of reform” and asked the rhetorical question of whether we would “tolerate an act of Congress penalizing such an outburst by a year in prison.”  The panel here appeared to be channeling this concern that a defendant’s outburst—rather than his individual circumstances—may have led to a longer sentence.

There are many aspects of this decision that will lead it to be cited repeatedly by defendants in the coming years.  First, the Court’s analysis of the low likelihood of recidivism will be cited by older defendants.  This reduced risk of recidivism has long been known to be real and it is good for the Circuit to have said so.  Second, the Court’s reliance on Sentencing Commission statistics to analyze what sentences are actually being imposed reflects an openness to seeing whether the Guidelines are actually guiding anyone.  If the Guidelines are not being followed, this fact should be considered by district court judges.  Third, to the extent that certain guidelines—like the child pornography guideline—are not based on fact-finding but on congressional dictates, defense counsel should challenge their persuasive force.  Fourth, to the extent that Guidelines enhancements are applicable in virtually all cases, such as the sophisticated means enhancement in offshore account cases sentenced under Section 2T1.1, defense counsel should point out the foolishness of a Guidelines provision that does not draw distinctions between different categories of offenses.  Finally, the decision should be cited in appeals in which the supervised release term or conditions are imposed without regard to the real world consequences to the defendant.  Should a defendant be on supervised release at all when he is 85 years’ old?  Is it sensible to prohibit a defendant from making a purchase at  In short, Jenkins is an important sentencing decision that should have consequences well beyond the specific context of the child pornography guideline.

-By Brandon Trice and Harry Sandick