15-2276-c 

United States v. Sawyer

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

2nd day of December, two thousand sixteen. 

Present: DENNIS JACOBS, 

 ROSEMARY S. POOLER, 

 Circuit Judges 

 GEOFFREY W. CRAWFORD,1

 District Judge. 

 

_____________________________________________________ 

UNITED STATES OF AMERICA, 

 

 Appellee, 

 -v.- 15-2276-c 

 

JESSE SAWYER, 

 Defendant-Appellant. 

_____________________________________________________ 

 

Appearing for Appellant: Bruce R. Bryan, Syracuse, NY. 

Appearing for Appellee: Michael D. Gadarian, Assistant United States Attorney (Lisa M. 

Fletcher, Assistant United States Attorney, on the brief), for

Richard S. Hartunian, Jr., United States Attorney for the Northern 

District of New York, Syracuse, NY. 

 

1

 Judge Geoffrey W. Crawford, United States District Court for the District of Vermont, sitting 

by designation. 
2

 Appeal from the United States District Court for the Northern District of New York 

(D’Agostino, J.). 

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is VACATED and 

REMANDED. 

 Defendant-appellant Jesse Sawyer appeals from the judgment of the United States 

District Court for the Northern District of New York (D’Agostino, J.), sentencing him to thirty 

years of imprisonment and a life term of supervised release. We assume the parties’ familiarity 

with the underlying facts, the procedural history, and the issues presented for review. 

 We review sentencing decisions for “reasonableness.” United States v. Cossey, 632 F.3d 

82, 86 (2d Cir. 2011). “Reasonableness review has both a procedural and a substantive 

component,” United States v. Irving, 554 F.3d 64, 71 (2d Cir. 2009), and it is “akin to a 

‘deferential abuse-of-discretion standard,’” Cossey, 632 F.3d at 86 (quoting Gall v. United 

States, 552 U.S. 38, 52 (2007)). However, if defendant failed to raise an issue to the district 

court, then we review for plain error. See United States v. Marcus, 560 U.S. 258, 262 (2010). 

I. Procedural Reasonableness 

 In reviewing for procedural reasonableness, we consider whether the district court 

“committed [a] significant procedural error, such as failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 

[28 U.S.C.] §3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to 

adequately explain the chosen sentence.” Gall, 552 U.S. at 51. 

 Sawyer first argues that the district court erred by refusing to allow a psychologist to 

testify at his sentencing hearing. In particular, Sawyer sought testimony regarding whether the 

abuse he suffered as a child was causally linked to the instant offense; whether he would have 

committed the instant offense had he received counseling for his own childhood abuse; and 

whether he would likely re-offend if he received sex offender treatment while in prison. Since he 

raised this argument to the district court, we review the court’s denial for abuse of discretion. 

 

 District courts enjoy wide latitude in determining the procedures necessary to resolve 

factual disputes at sentencing. See United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) 

(“Decisions as to what types of procedures are needed lie within the discretion of the sentencing 

court . . . .”). Here, the district court denied Sawyer’s request for testimony because the 

psychologist had already submitted a written report to the court. The district court “read [the 

report] numerous times” and described it as “very thorough and very comprehensive.” App’x at 

153. The district court agreed with Sawyer that the report reflected a causal connection between 

Sawyer’s abusive upbringing and his crime, and thus the court needed no further testimony on 

that issue. The court refused to hear testimony on whether Sawyer would have committed the 

instant offenses if he had received counseling as a child, reasonably concluding that such 

testimony would be highly speculative. Sawyer contends that the court failed to consider his 

request that the psychologist testify as to whether his likelihood of recidivism would change if 
3

Sawyer received sex offender treatment in prison. However, the written report discussed 

Sawyer’s risk of re-offense, and the district court reasonably concluded that additional testimony 

would be “cumulative.” App’x at 134. In short, we find no abuse of discretion in the district 

court’s decision to forgo the in-person testimony. 

 Second, Sawyer cites as procedural error the district court’s failure to consider his 

contention that the relevant Guideline for sex offenders was not based on empirical evidence. 

Sawyer complains that, despite his criticisms of the Guidelines, the court allowed itself to be 

“influenced by” the Guidelines. Appellant’s Br. at 35. We find no error in the district court’s 

failure to address Sawyer’s contention that the Guidelines should be given little weight because 

of their inadequate empirical support. “A reviewing court entertains ‘a strong presumption that 

the sentencing judge has considered all arguments properly presented to her, unless the record 

clearly suggests otherwise.’” Cossey, 632 F.3d at 87 (quoting United States v. Fernandez, 443 

F.3d 19, 29 (2d Cir. 2006)). Nothing in the record suggests the district court failed to consider 

Sawyer’s argument, and so we presume that the district court did consider it. 

 Further, despite Sawyer’s suggestion that the district court should have avoided any 

consideration of the Guidelines, “a sentencing court is statutorily obligated to give fair 

consideration to the Guidelines before imposing sentence.” United States v. Jones, 531 F.3d 

163, 170 (2d Cir. 2008). 

II. Substantive Reasonableness

 “At the substantive stage of reasonableness review, an appellate court may consider 

whether a factor relied on by a sentencing court can bear the weight assigned to it.” United States 

v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (citing Gall, 552 U.S. at 50). “[W]e do not consider 

what weight we would ourselves have given a particular factor. Rather, we consider whether the 

factor, as explained by the district court, can bear the weight assigned it under the totality of 

circumstances in the case.” Id. (internal citation omitted); see also United States v. Dorvee, 616 

F.3d 174, 183 (noting that “substantive reasonableness review is not an opportunity for 

‘tinkering’ with sentences we disagree with, and that we place ‘great trust’ in sentencing 

courts”). 

 In Dorvee, we held that a 240-month sentence for distribution of child pornography was 

substantively unreasonable, based, in part, on our conclusion that the sentencing judge had 

“place[d] unreasonable weight on [a] sentencing factor.” 616 F.3d at 183. We explained that the 

sentencing court had focused too heavily on the “need ‘to protect the public from further crimes 

of the defendant’” despite a lack of “record evidence” that the defendant “was likely to actually 

sexually assault a child.” Id. The Dorvee panel concluded that a twenty-year sentence for 

distributing child pornography could not be justified on grounds of public protection, as the 

Guidelines recommend more lenient sentences for defendants who commit offenses far more 

harmful to the public. In particular, we stated that “[a]n 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, would qualify for . . . a Guidelines 

range of 151 to 188 months in prison.” Id. at 187. Consequently, despite the sentencing court’s 
4

goal of “protect[ing] the public,” that factor could not “bear the weight assigned to it.” Id. at 183 

(quoting Cavera, 550 F.3d at 191). 

 In this case, Sawyer pled guilty to two charges of production of child pornography, see

18 U.S.C. §2251(a), which consisted of taking between fifteen and twenty lewd photographs for 

his own viewing, and one charge of receipt of child pornography, see 18 U.S.C. 

§2252A(a)(2)(A) and §2256(8)(A), which consisted of Sawyer’s viewing of 87 images from the 

internet on his cellphone. For these charges, the district court imposed a thirty-year sentence.2

 

 As in Dorvee, a major factor driving Sawyer’s sentence appears to have been the court’s 

view that he “present[ed] a significant danger to the community.” App’x at 165. Similar also to 

Dorvee, however, the district court here did not find that Sawyer engaged in sex with the victims 

or any other underage persons, or that there was specific evidence that he was likely to do so in 

the future.3

 The sentence imposed in this case thus cannot be justified by public protection, given 

that a defendant who repeatedly has sex with a child would face a far more lenient sentence. 

Dorvee, 616 F.3d at 187. A 30-year term of imprisonment is appropriate for extreme and heinous 

criminal behavior. Cf. United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) 

(determining that thirty-year sentence should be imposed on one-count indictment where 

defendant “raped, sodomized, and sexually tortured fifty or more little girls, some as young as 

four years of age, on many occasions over a four- or five-year period,” and “scripted, cast, 

starred in, produced, and distributed worldwide some of the most graphic and disturbing child 

pornography that has ever turned up on the internet”). While the district court mentioned certain 

factors in Section 3553(a), none of them appear remotely sufficient to support imposing such a 

sentence on a person who shared no images with others, possessed fewer images than defendants 

in typical cases, and did not have sex with the victims or any other underage persons. 

 What is more, the district court clearly failed to give appropriate weight to a factor listed 

in Section 3553(a) that should have mitigated the sentence substantially: “the history and 

characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The careful findings of the district 

court facilitate our review even though we ultimately conclude that the sentence itself was 

 

2

 The sentence of 30 years reflected 15-year sentences on each of the production counts, which 

ran consecutively, and a 5-year sentence on the receipt charge, which ran concurrently. 3

 The Presentence Report (“PSR”) alleged, somewhat ambiguously, that Sawyer touched the 

victims’ “vaginal area[s]” in the photographs presented to the court, PSR at 5, but Sawyer 

vehemently insisted that he had not ever touched the victims’ vaginas. 

Although the district court did state that it adopted the findings of the PSR, the court may 

not have seen any need to resolve the parties’ dispute. A district court need not settle an 

objection to the PSR if “such a finding is unnecessary because the matter controverted will not 

be taken into account in sentencing.” United States v. Rosado-Ubiera, 947 F.2d 644, 646 (2d Cir. 

1991) (internal quotation marks omitted). The district court did not consider Sawyer’s alleged 

touching of the victim’s genitals at the sentencing, and the relevant guideline enhancement for 

“sexual contact” applies even if a defendant merely performs “the intentional touching . . . of the 

. . . inner thigh . . . to . . . arouse . . . the sexual desire of any person.” 18 U.S.C. § 2246(3) 

(defining “sexual contact”); U.S.S.G. § 2G2.1(b)(2)(A) (applying two-level enhancement for 

“the commission of . . . sexual contact,” defined based on the standard in 18 U.S.C. § 2246). 

Consequently, the district court may not have reviewed the images to resolve the question. 
5

excessive. The district court recognized, quite clearly, the exceptional horrors of Sawyer’s 

childhood, which were largely verified by government records. The court acknowledged that 

“[t]he abuse that was imposed upon [Sawyer] as a child goes beyond anything else that I have 

seen so far in my capacity as a federal judge.” App’x at 163. Sawyer’s childhood included 

exposure to drugs and alcohol before the age of 10, significant and repeated sexual abuse 

(including being sodomized) by close relatives and other persons in control of him, and being 

beaten by his father until he lost control of his bowels. The district court told Sawyer that, “to say 

that you had a horrid, nightmarish childhood would be an understatement,” and “you were 

treated as less than plant life by those who were supposed to take care of you.” App’x at 162. A 

psychologist reported, moreover, that Sawyer’s unfortunate childhood gave him great difficulty 

in “experienc[ing] healthy and normalized relationships,” App’x at 106, which the district court 

properly understood to mean that “Sawyer’s childhood was a . . . producing cause of his 

activities as an adult as they relate to the victims.” App’x at 153. 

 Particularly given Sawyer’s scant criminal history (he was scored within the Criminal 

History Category of I), the deplorable conditions of his childhood should have militated in favor 

of a sentence less severe than the one imposed. We have held that “a downward departure may 

be warranted on the ground that ‘extreme childhood abuse caused mental and emotional 

conditions that contributed to the defendant’s commission of the offense.’” United States v. 

Brady, 417 F.3d 326, 333 (2d Cir. 2005) (quoting United States v. Rivera, 192 F.3d 81, 85 (2d 

Cir. 1999). We have also said, in reference to some cases, that child abuse may be so severe that 

it “obviously and unquestionably justifie[s] a departure, whatever the standard.” Id. at 334. 

Sawyer’s background, considered alongside expert testimony that it contributed to the 

commission of the offense, meets that standard; it justifies not just a departure from the 

Guidelines, but a significant one indeed. 

 In light of the district court’s overreliance on Sawyer’s danger to the community, and its 

failure to afford sufficient weight to Sawyer’s history and personal characteristics, settled law 

dictates that the sentence be vacated on grounds of substantive unreasonableness. Accordingly, 

we VACATE defendant’s sentence and REMAND this matter to the district court for imposition 

of a new sentence that comports with this opinion. From whatever final decision the district court 

makes, the jurisdiction of this Court to consider a subsequent appeal may be invoked by any 

party by notification to the clerk of this Court within ten days of the district court’s decision, in 

which event the renewed appeal will be assigned to this panel. See United States v. Jacobson, 15 

F.3d 19 (2d Cir. 1994). 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk