14 -4 29 5- cr United States v . Joseph V incent Jenkins

1 

## I n the

2 

# Uni ted Stat es Court of Appeals
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## For the Second Cir cuit 4

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5 August Term, 2015

6 No. 14-4295-cr

7 U N I T E D S T A T E S O F A M E R I C A , 8 Appellee,
9 v.

10 J O S E P H V I N C E N T J E N K I N S 11 Defendant-Appellant. 12

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13 Appeal from the United States District Court 14 for the N orther n District of New York. 15 No. 11-cr-602

 ̄Glenn T. Suddaby, Chief Judge

. 16

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17 Argued: May 18, 2016 18 Decided: Apr il17, 2017 19

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20 Before : K E A R S E , J A C O B S, and P A R K E R, Circuit Judges

. 21

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22 Defe ndant-appellant Joseph Vincent Jenkins appea ls from a 23 judgment of conviction in the United States District C ourt for the 24 Norther n District of New York (Suddaby, Chief Judge ). Jenkins was 25 convicted of posses sion and transpor tati on of child pornogr aphyNo. 14-4295-cr

1 afte r h e w as found with a collecti on of child pornogr aphy on his 2 laptop and thumb drive as h e c r o s s ed the U.S.-Can ada borde r on his 3 w ay to a family vacation. The district court sentenc ed h im 4 principally to 225 months in prison followed by 2 5 y e a r s of 5 supervised r elease. We conclude that this sentenc e was substantively 6 unreas onable. Accordingly, we vacate this sentenc e and r e mand for 7 rese ntencing. 1 8 Judge K E A R S E c o ncurs in part and dissents in part in a 9 separ ate opinion. 10

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11 D A N I E L D E M A R I A , Merchant Law Group LLP, 12 New York, N Y, for Defendant-Appellant

. 13 RA J I T S. D O S A N J H (Tamara Thomson, on t h e brief) , 14 Assistant United States Attorneys, f or Richard S. 15 Hartunian, United States Attorney, North e rn 16 District of New York, S yracuse, N Y, for Appellee

. 17

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18 B A R R I N G T O N D. P A R K E R, Circuit Judge : 19 A jury fou n d J o seph Vincent Jenkins guil ty of one count of 20 p o s s e s s ion of child pornogr aphy in viol ation of 18 U.S.C. 21 § 2252A(a)(5)(B) and one count of tr a n s portation of child 22 pornogr aphy in viol ation of 18 U.S.C. § 2252A(a)(1), b ased on the 23 government’s proof at trial that Jenkins owned a collecti on of child 24 p o r n ography and brought it across the U.S.-Can ada borde r on the 25 way to a fami ly vacati on for his pe rsonal viewing. 26 The United States Distric t C o u rt for the Norther n District of 27 New York (Glenn T. Suddaby, Chief Judge ) imposed concurre nt 28 sent e n c e s of 120 months for the posses sion count, the statutory

A summa ry or der i ssued concur rentl y with this opi nio n affi rms the judgment of convicti on 1 with re spect to the re maining i ssues raised b y Jenki ns on hi s appeal.

2No. 14-4295-cr

1 max imu m, and 225 months for the transpor tati on count, just below 2 the statutory maximum of 240 months. The court als o imposed a 3 term of 25 years of supervised release

. J e n k in s challenges his 4 conviction and the procedur al and substantive reaso nablenes s of his 5 sentenc e. 6 The government’s evidence established that Jenkins, a fir st 7 tim e felony offender, maint ained a collecti on of child pornogr aphy 8 on a pers onal computer and thumb d r iv e for pers onal use. He did 9 not produce or distribute child pornogr aphy a n d d id not contact or 10 a tt e mpt to contact a minor. He “transpor ted” his images in th e 11 technical sense th a t h e b r ought them on a family vacation that 12 involved his cross ing the Canadian borde r and he was appre h e n d e d 13 at the Canadian side. F o r the reaso ns that follow, we hold that a 14 sentenc e of 225 months a n d 25 years of supervised release is 15 substantively unreas onable. Accordingly, we v a c a te the sentenc e 16 and remand forrese ntencing.

17 BACKGROUND 18 On May 24, 2009, Jen k in s a tte mpted to enter Canada from the 19 United States at the borde r c r o s sing in Landsdowne, Ontario. 20 Jenkins, who was 39 yea r s old at the tim e, was traveling alone from 21 his h o me in Ge neva, New York to spend a week with his paren ts at 22 their summer home in Q u e b e c . Canadian borde r agents searched his 23 vehicle and discovered a Toshiba laptop, a Co mp a q la ptop, and 24 three US B thumb drives. 25 Jenkins’s “demeanor” pro mpted the agents to search the 26 devices. After finding child por n o g raphy on the Toshiba laptop and 27 on one o f th e thumb drives, the agents seized all the devices and 28 arre sted and s ubsequently charged him with child pornogr aphy 29 offense s underthe Canadian C riminal Code. 30 After being release d on bail, Jenkins did n o t a p p ear on his 31 scheduled trial date a n d th e Canadian court issued a bench warrant
3No. 14-4295-cr

1 for his arre st. Canadian agent s s ub sequently contacted the U.S. 2 Depar tment of Home land Security (“DHS ”), inqu iring whether DHS 3 was interested in informati on about th e case. DHS then commenced 4 an investigation, obtained Jenkins’s electronic devices from 5 Canadian authoriti es, and procee ded to ex a mi n e them. This 6 examination confirmed that the devices containe d images and 7 videos depicting child pornogr aphy. Jenkins wa s subse quently 8 arre sted by U.S. law enforc ement official s a n d charged with 9 posses sing and transpor ting child por n o g r aphy. The case procee ded 10 to trial, where the government introduced the devices and the 11 image s into evidence, and pres ented both Canadian and DHS 12 official s as witnesses

. 13 Jenkins testified at trial, making a number of contentions that 14 turned out to be f a lse. First, he contended that contractors working 15 f o r h is electrical contracting business had frequent access to all areas 16 on his laptops a n d c o uld take his laptops home. Jenkins denied that 17 the thumb drives wer e in h is truck and asser ted that he had never 18 seen them befor e. Finally, he claim e d th a t he was absen t from the 19 Canadian trial because his lawyer there had suggeste d to h im that 20 “yo u c o u ld ju s t not return to Canada if you want to just not deal 21 with the charge.” App. 6 31. The jury ultimately credited the 22 government’s version of events and returne d a guil ty verdict on 23 both counts on Feb ruary 6, 2014. 24 The Prob a tion Office issued its Prese ntence Investigati on 25 Report (“PSR”) in April 2014. Applying United States Senten cing 26 Gui deline § 2G2. 2 for child pornogr aphy offense s, the PSR 27 calcul ated Jenkins’ base offense level as 22. § 2 G2

. 2 (a)(2). The PSR 28 recommended four e nh ancements: (i) two levels for posses sing 29 material involving a prepub escen t minor, id. § 2G2.2(b)(2); (ii) four 30 levels for material portraying sadistic or masochistic conduct or 31 other forms of violence , § 2G2.2(b)(4); (iii ) two levels because the 32 offense s involved the use of a c omputer, id. § 2G2.2(b)(6); and (iv) 33 fiv e le vels because the offense s involved 600 or more images, id.

4No. 14-4295-cr

1 § 2G2.2(b)(7)(D). These enhance ments ra is e d Jenkins offense level 2 from 22 to 35. Jenkins rece ived no offense level r e d u c tions for 3 acceptance of resp onsibility. Because Je nk in s only had a prior 4 misdemeanor o ffe n s e , he was found to have a Criminal History 5 Category of I. In additi on, at th e sentenc ing hearing, the government 6 sought a two-leve l enhance ment for obstruction of justice 7 contending that Jenkins had offe r e d false exculpatory testimony at 8 trial. See id. § 3C1. 1

. Th e district court agreed and applied the 9 enhance ment. It als o adopted the factual findings and Gui delines 10 recomm e n dations from the PSR. The result was a total offense level 11 of 37, yielding a Gui delines range of 210 to 262 months. 12 The sentenc ing hearing was a s to r my one at which Jenkins, an 13 intemperate, out-of-control pro se li tigant, repe atedly clash e d with 14 the court. For example, th e following colloq uy transpired after 15 Jenkins conceded that it was too late for him to retain new counsel, 16 an d th e court informed Jenkins that the sentenc ing hearing would 17 never theless pr oceed: 18 THE DEFEND ANT: 19 Well, I me a n, I' ve pretty much demanded that -- I don't 20 feel you have any right to sentenc e me after all these 21 antics and there's a lot of scre wing around here and I 22 don't agree with it and I' ve repe atedly asked Ms. 23 Peebles [Je n k in s’s attorney] here to file a petiti on to 24 have you removed and I think that the r e 's grounds for 25 it. I' ve been going over sub mi s s ions the last few weeks 26 and cour t transcr ipts. I mean, that's what I want. I' d 27 r ather -- I mean, you've set a recor d that -- I mean, s h e 28 hasn't d one what I' ve aske d h e r to d o. We've been going 29 around for a few months arguing. 30 ... 31 THE COURT:

5No. 14-4295-cr

1 No attorney's done what you've asked them to do, 2 according to you, despite being repr esen ted by a 3 number of different counselors. You started with Mr

. 4 Par ry. You refe rre d to him as an idi ot and not kn o w in g 5 what he was doing. The Court sent numerous attorneys 6 to meet with you in the jail so you could r e ta in 7 someone. You made derogatory comments about the 8 people that were very well-regarded in th is communi ty, 9 legal communi ty, as f a r as repr esen ting feder al 10 defendan ts. Then we provided you with a lis t o f CJA 11 attorneys that are admitted to the N o r th ern District of 12 New York to give you an opportunity to retain 13 s omebody. You did retain an Aaron Goldsm ith ou t o f 14 New York who repr esen te d y o u at trial and then he 15 requested to be relieved because o f h is irreconcilable 16 difference s with you and not being able to get along 17 with you. And th e n, you know, the feder al public 18 defende r's o ffice was assigned by Judge Peebles and has 19 repr esen ted you, in this Court's view, in a very capable 20 and competent manner an d here we are again.

21 So, sir, you can demand all you w a n t. You can criticize. 22 You ca n b la me ever ybody else. You can say it' s the 23 attorney 's f a ult. But we're at a point, sir, where we're 24 going to procee d with sentenc ing. You have counsel. 25 You've been repr esen ted well and you've had an 26 opportunity to submit ever ything that you've wante d to 27 to this Court an d I've reviewed ever ything that you 28 submitted, despite its derogatory tone and c o mments, 29 disrespe ctful comments to th is C ourt and ever ybody 30 else that you've had to deal wi th, sir.

6No. 14-4295-cr

1 So, you'll b e g iv e n a full opportunity to say anything 2 you want. If you're not going to re ta in somebody, 3 c ertainly this Court is not going to appoint a n o th e r 4 attorney to rep rese nt you at thi s point. 5 ... 6 So you can procee d by re p r e s enting yourself today. 7 That’s up to you, sir, but we’re going to proc e e d w ith 8 sentenc ing. 9 App. 835-37. 10 The d is tr ic t court imposed a sentenc e of 225 months for the 11 transpor ta tion charge and a concurre nt sentenc e of 120 months for 12 th e p o s sess ion charge, the statutory maximum. See 18 U.S.C. 13 §§ 2252A(b)(1) and (2). Judge Suddaby als o im p o s e d on Jenkins 25 14 years of extens ive conditions of supervised release

. Some o f them 15 were obvious ly a p propr iate but others were unexplained by the 16 sentenc ing judge and wer e im p o s ed without regar d to the pers onal 17 character isti cs of the defendan t and the circumstances of his o ffe n se. 18 In view of Jenkins’s age, this sentenc e effectively meant that Jen k in s 19 would be incar c e r ated and subject to intense government scrutiny 20 for the r emainder of his life. 2
21 Jenkins was required to register as a sex offender in a ny state 22 in which he resided or worked. He was required n o t to “use or 23 posses s any c o mp u te r or any other device with online capabili ties, at 24 any lo cation, exce pt at your place of employment, unless you 25 participate in the Computer Restriction and Monitoring Program.”
As a 4 4

- y e ar-ol d i mpecunio us white male with a high schoo l educati on, Jenki ns’s l i fe 2 expectan cy was 76 .5 years at the time of his sentencing. See Kenneth D. Kochanek et al. , Ctr. fo r Disease Co ntrol , U.S

. Li fe Tab l es, 20 14, Nat’l Vi tal Statisti cs Re p . , J u ne 30 , 20 16 , at 8, av ail ab l e at: http://www.cd c.go v/nchs/data/nv sr/nvs r65 /nvs r65 _0 4.p d f. Al though no one knows with any certai nty how l ong Jenki ns wil l l i v e, we do know tha t, as a statistical matter, the l i fe expectan cy of an i ncarcerated perso n dro ps 2 years fo r each year of i ncarceratio n. See Evelyn J. Patterson, T

h e Dose-Response of Time Served in Prison on Mortality: New York State, 19 89 -2 00 3 , 10 3 Am. J. of Pub

. Health 52 3, 52 6 (2 01 3)

. Thus Jenki ns’s l i fe expectancy i s l i kel y signi fi cantly l ess than

76 .5 years. 7No. 14-4295-cr

1 The Probation Office was further all owed “to conduct perio d ic, 2 unannounced examinations of any computer equipm en t you use or 3 posses s, li mited to a ll hardware and software related to online use.” 4 Notwithstanding the fa c t th a t he had never contacted or attempted 5 to contact any minor, h e w a s forbidden from having “any direct 6 cont a c t w ith a pers on under the age of 18 unless it is supervised by a 7 pers on approved of by the probation officer.” Further, he was 8 forbidden from having any “indirect contact [ s ic ] with a pers on 9 under the age of 18 through another pers on or th r o ugh a device 10 (inc lu d in g a telephone, computer, radio, or other means) unless it is 11 supe r v is e d b y a pers on approved by the probation officer.” He was 12 further directed to “reaso nably avoid and remove” him s elf from 13 “situati ons in w h ic h [he has] any other form of contact with a 14 minor.” He was directed “not to be in a ny a r e a in which pers ons 15 under the age of 18 are likely to congregat e , such as school grounds, 16 child care center s, o r playgrounds, without the permission of the 17 probation officer.” 18 Jenkins’s possibility of any post-release employment during 19 the 25-y e a r p eriod was also sever ely li mited by Judge Suddaby. 20 Jenkins was permitte d to work only at locati ons approved by the 21 Probatio n O ffic e. If his employment involved the use of a computer, 22 Jenkins was r e quired to notify his prospe ctive employer of the nature 23 of his conviction a n d the fact that h is co nvicti on was facilitated by the 24 use of a computer. Finally, Jenkins was effectively forbidden by the 25 district court from using credit ca rds during his supervised release

. 26 Specifically, he was forbidden from incurring charges to his credit 27 cards or from opening additi onal lines of credit without pri o r 28 approval from the Probation Office. 29 The district court offe r e d only formulai c reaso ning for the 30 p e r io d o f in c a r c e r a ti o n a n d th e b r o a d

- r a n g in g p o s t- r e le a s e 31 restr icti ons it imposed. The court’s reaso ning center ed on Jenkins’s 32 lack of respec t for the law. The district court stated:

8No. 14-4295-cr

1 You’ve demons tr a ted that you have a total lack of 2 resp ect for the law a nd disdain for the law. That [is,] 3 in the Court’s view it is without question that, if 4 given the opportunity, you wil l do exactly what you 5 want to do in any situati on and you are a very high 6 risk to reoffe nd.
7 You attempted to transpor t thousands of image s a n d 8 videos of child pornogr aphy into Canada and then 9 later f a il e d to appear for your Canadian trial. You 10 attempted to e v a de justice and when you were 11 arre ste d in th e United S tates, you blamed C anada

. . . 12 You have since demonstrated to ta l disregard for the 13 la w and a complete lack of resp ect for this Court a n d 14 any of the attorneys who have tried to help you. 15 App. 8 6 0

- 6 1

. The district court concluded: “[b]ased on these factors 16 a nd your large collecti on of child pornogr aphy, the Court h a s 17 imposed a sent e n c e that reflects the seriousne ss of your crime, that 18 promotes resp ect for th e la w, and that provides you with adequate 19 deterr ence from commi tting further crimes, and that protects the 20 public.” App. 861. Jenkins tim ely appealed.

21 DISCUSSION 22 A sentenc e is substantively unreas onable if it “cannot be 23 located within the r a n g e of permissible decisions.” United States v. 24 Cave r a , 5 5 0 F .3d 180, 189 (2d Cir. 2008) (en banc) (quoting United 25 States v. Rigas , 409 F.3d 208, 298 (2d Cir. 2007)). In determining 26 whether a sentenc e falls within the permissib le r a n g e, we “patrol the 27 b o u n d a r i e s o f r e a s o n ab le n e s s , ” c o gn iz a n t o f th e f a c t th a t 28 resp onsibili ty for sentenc ing is placed largely with the distric t c ourts. 29 Id. at 191. Our review is li mited because the district court is in a 30 differe n t f act finding position, which all ows it to interact directly 31 with the defendan t, thereb y gaining insight s that are not always

9No. 14-4295-cr

1 conveyed by a transcr ipt. United States v. Broxmeyer , 699 F.3d 26 5 , 289 2 (2d Cir. 2012). Nonethe les s , th e le ngth of a sentenc e may, with or 3 without far reaching post-release restr icti ons, make it exce ssively 4 p u n it iv e or needless ly har sh. See Rigas , 583 F.3d at 123. Senten ces that 5 fall into these categories are “s hockingly high” ones that serve no 6 vali d pub li c purpose . United States v. McGinn , 787 F.3d 116, 129 (2d 7 Cir. 2015). 8 Our review of a sentenc e f o r s ubstantive reaso nablenes s is 9 governe d by the factors set fo r th in 18 U.S.C. § 3553(a). United States 10 v. Carr

, 557 F.3d 93, 107 (2d Cir. 2009). One importan t f actor is the 11 need for the s e n te nce to reflect the seriousne ss of the offense and to 12 promote resp ect for the law. 18 U.S.C. § 3553(a)(2)(A). Others are to 13 “provide just punishment for the offense ;” “afford adequate 14 deterr ence to cr im inal conduct;” and “protect the public from further 15 crimes of the defendan t,” id. § 3553(a)(2), or more succinctly, to fulfi ll 16 the purpose s of “retribution, de te r r e nce, and incapacitation,” United 17 Stat e s v . Park

, 758 F.3d 193, 200 (2d Cir. 2014). Additi onal factors are 18 supplied by the Gui delines under which sentenc ing courts are 19 required to consider “the nature and circumstances of the offense and 20 the history and character isti cs of the defendan t,” and “the ne e d to 21 avoid unwarranted sentenc e dispariti es among defendan ts with 22 simi lar recor ds who have been found guil ty of simi lar conduct.” 18 23 U.S.C. §§ 3553(a)(1) and (6). 24 We are also obligated to co n sider whether conditions of 25 supervised release imposed by the district c o u rt are reaso nably 26 related to certain statutory sentenc ing factors li sted in §§ 3553(a)(1) 27 and (a)(2); involve no greaterdeprivation of liber ty than is r easonab ly 28 neces sary to impl ement the statutory purpose s of sentenc ing; and are 29 consistent with pertinent Senten cing Commission policy statements. United States v. Dupes , 513 F.3d 338, 343 (2d Cir. 2008) (citing 18 U.S.C. 30 § 3583(d)). While district courts have br o ad discretion to tail or 31 32 conditions of supervised release , United States v. G ill, 523 F.3d 107, 33 108 (2d Cir. 2008) , that discretio n is not unfettered, United States v.

10No. 14-4295-cr

1 Doe, 79 F.3d 1309, 1 3 20 (2d Cir. 1996). It is the resp onsibili ty of our 2 court to carefully scru tinize conditions that may be exce ssively harsh 3 or inexplicably punitive. 4 We evaluate in turn whether e a c h sentenc ing factor, “as 5 explained by the district court, can bear the we igh t assigned it under 6 the totali ty of cir c u ms ta nces in the case.” Cavera, 550 F.3d at 191. We 7 conclude th a t th e factors upon which the district court relied— 8 retribution, deterr ence, and in c apacitati on, and the attributes of 9 Jenkins and his crimes

— cannot bear the weight of the sentenc e the 10 district court imposed. Our conclusion that the sente n c e is exce ssive 11 is reinforce d by the need to avoid unwarranted sentenc e dispariti es 12 and by the need to avoid exce ssively sever e conditi ons of supervised 13 release

. On remand, w e a re confident that Jenkins wil l eventually 14 rece ive a sentenc e that proper ly punishes the c r im es he commi tted. 15 But Judge Suddaby, in imposing his senten ce, went far o verb oard. 16 I. 17 Consistent with 18 U.S.C. § 3553(a)(4), the district court’s 18 star ti n g point was U.S.S.G. § 2G2.2, the guideline governing child 19 pornogr aphy offe nses. In United States v. Dorvee, we held that this 20 Gui deline “is fundamentally different from mos t a n d that, unless 21 applied with great care, can lead to u n r e a s o nable sentenc es that are 22 inconsistent with what § 3553 requires.” 616 F.3d 174, 184 (2d Cir. 23 2010). 24 F irst, we obser ved that the Senten cing Commission h a s n o t 25 been able to apply its expe rtis e b ut instead has increase d the sever ity 26 of penalties “at the direction of C o n g r e s s,” despite “often openly 27 oppos[ing] these Congr ession ally directed changes.” Id. at 184–86. 28 Second, we noted that four of the sentenc ing enhance ments were so 3 29 “run-of-the-mill ” and “all but inheren t to the crime of conviction” 30 that “[a]n o r d in ary first-tim e offender is therefore likely to qual ify for That i s, enhancements fo r (i ) an i mage with a prepubescent mino r, (i i ) an i mage por traying 3 sadisti c o r masochi stic conduc t o r o ther fo rms ofvio l ence, ( i i i ) use ofa computer, and (i v ) 60 0 o r mo re i mages. 11No. 14-4295-cr

1 a sentenc e of at least 168 to 210 months” based on a n offense level 2 increase d fr om the base level of 22 to 35. Id. at 186. We emphasized 3 that this range was likely to be unreas onable because it was “rapidly 4 approaching the statutory maximum” for distributi on of child 5 pornogr aphy, and because the offense le vel failed to sufficiently 6 distinguish betw e en “the most dangerous offender s” who “distribute 7 child porn ography f o r p e c uniary gain and who fall in higher criminal 8 history categories” and those who distribute for pers onal, non9 commercial reaso ns. Id. at 186–87. A ls o , we held that this range 10 demonstrated “irrationali ty in § 2G2.2” because it was substantially 11 more sever e than for an adult “ wh o in te ntionally seeks out and 12 contacts a twelve-year-old on the in te rnet, convinces the child to 13 meet and to cross state lines for the meeting, a n d th e n engages in 14 repe ated sex with the child.” Id. at 187. 15 The concer ns we expr esse d in Dorvee apply with even more 16 force he r e a n d none of them appears to have been considere d by the 17 district court. Jenkins rece ived precisely the sa me “run-of-the-mill ” 18 and “all -but-inheren t” enhance ments th at we criticized in Dorvee, 19 resulting in an increase in his offense level from 2 2 to 35. These 20 e nhancements have caused Jenkins to b e treated like an offende r w h o 21 seduced and photographe d a ch ild and distributed the photographs 22 and worse than one who raped a child

. B e c a u se he also rece ived an 23 enhance ment for his false exculpatory te s ti mony at trial, which we 24 conclude was appropr iate, his offens e level was 37, producing a 25 Gui delines range of 210 to 262 months. Even w ith o u t this additi onal 4 26 enhance ment, the Guidelines range of 168 to 210 months exce eds the 27 statutory maximum of 120 months for Jenkins’s poss ession char ge. 28 Our conclusion that Jenkins’s sentenc e wa s s h ockingly high is 29 re in f o r ced by the important advances in our unders tanding of nonThat range extends beyond the statu tor y maxi mum of 24 0 months fo r his c o u nt of 4 trans por tatio n of child p ornograp hy, the more sev ere of his two offenses; Jenki ns’s Guide l i ne range is there fo re 2 10 to 24 0 mo nths

. See Dorvee, 6 16 F.3dat 1 82

.

12No. 14-4295-cr

1 production child pornogr aphy offense s s ince we decided Dorvee. To 2 begin with, the latest sta ti s tics on the applicati on of sentenc ing 3 enhanc e me n ts confirm that the enhance ments Jenkins rece ived under 4 this Gui deline are all -but-inheren t. In 2014, for examp le , 9 5.9% of 5 de fendants sentenc ed under § 2G2.2 rece ived the enhance ment for an 6 image of a victi m under the age of 12, 8 4

. 5 % for an image of sadistic 7 or masochistic conduct o r o th e r forms of viol ence, 79.3% for an 8 o ffense involving 600 or more images, and 95.0% for the use of a 9 c o mp uter. See U.S. Senten cing Comm’n, Use of Guidelines and Spe c i f i c 10 Offense Characteristics (Offender Based), Fiscal Year 2014 42–43, avail able 11 a t h t t p : / / w w w . u s s c . g o v / s i t e s / d e f a u l t / f i l e s / p d f / r e s e a r c h

- a n d

12 p ub li c a tions/ feder al-sentencing-statistic s / gu id e li n e - a p p li c a ti o n - fr e qu 13 encies/2014/Use _of_SOC _Offende r_Based .pdf. 14 Since Dorvee, the Senten c in g Commission has also produced a 15 comprehen sive repor t to C o n gress examining § 2G2.2. U.S. 16 Senten cing Comm’n, Rep o r t to the Congress: Federal Child Pornography 17 O f f e n s e s ( 2 0 1 2 ) [ h e r e i n a f t e r “ U S S C R e p o r t ” ] , a v a i l a b l e a t 18 h t t p : / / w w w . u s s c . g o v / s i t e s / d e f a u l t / f i l e s / p d f / n e w s / c o n g r e s s i o n a l

19 te s ti mo ny - a n d

- r e p o r ts / s e x - o ffense -topics/201212-fe d e r a l- ch il d

- p o r n o 20 graphy-off e n ses/ Full_Report_to_Congr ess.pdf. In this repor t, the 21 C o m m i s s i o n e x p l a i n s t h a t i t “ b e l i e v e s t h a t t h e c u r r e n t 22 non-production guideline w a r r a n ts revision in view of its outdated 23 and disproportionate enhance ments related to offender s’ collecting 24 behavior as well as its failu re to a c c o u nt fully for some offender s’ 25 involvement in child pornogr aphy communi ties an d s e xually 26 dangerous behavior.” Id. at x xi. S in c e th e Commission has effectively 27 disavowed § 2G2.2, it should be clearer to a distric t c ourt than when 28 we decided Dorvee that this Gui deline “can e a s ily gener ate 29 unreas onable re sults.” 616 F.3d at 188. 30 Here , § 2G2.2 yielded a sentenc e that derived substantially 31 from “outdated” enhance ments relat e d to Jenkins’s collecting 32 b e havior. Meanwhile, the government has not all eged that h e w a s 33 involved in the production or dis tribution of child pornogr aphy or

13No. 14-4295-cr

1 that he was involved in any child pornogr aphy communi ty. In 2 particular, the government did not claim he used p e er-to-pe er 3 sharing s o ftware, distributed images, or participated in chat rooms 4 devoted to child pornogr aphy. Nor does the government a ll e g e that 5 he contacted or attempted to contact a child or that he engaged in any 6 “sexually danger o u s behavior” separ ate from his crimes of 7 conviction. Thus, here , as in Dorvee, § 2G2.2 cannot “bear the weight 8 assigned it” because the cumu la ti on of repe titive, all -but-inheren t, 9 enhance ments yielded, and the district c o u rt applied, a Gui deline 10 range that failed to distinguish between Jenkins ’ s conduct and other 11 offender s whose conduct was far worse. Ca v e ra, 550 F.3d at 191. It 12 was substantively unreas onable for the distric t c ourt to have 13 applied the § 2G2.2 e nhanc e me nts in a way that placed Jenkins at the 14 top of the range with the very worst o ffender s where he did not 15 belong. 16 II. 17 The distr ic t c o urt justifi ed its sentenc e with refe rence to the 18 size of Jenkins’s collecti on of child pornogr aphy, his r e fu s a l to accept 19 resp onsibili ty, his attempts to blame others, his disrespe ct for the 20 law, and his likelihood of reoffe nding. Para phrasing the language of 21 18 U.S.C. § 3553(a)(2), the court concluded that a sentenc e of 225 22 mon ths would reflect the seriousne ss of Jenkins’s offense s, promote 23 resp ect for the law, provide adequate deterr ence, and protect the 24 public. The pur p oses of retribution, deterr ence, and incapacitation 25 are important, and we in no way condone either his consumption of 26 child pornogr aphy or his misconduct befor e various authoriti es 27 including the district court. 28 Howeve r, every Gui delines sentenc e is li mited by § 3553(a)’s 29 “parsimony clause , ” w h ich instructs a district court to impose a 30 sen te nce “sufficient, but not greater than neces sary,” to achieve 31 § 3553(a)(2)’s goals. Dorvee, 616 F.3d at 182. Distric t c o u r ts are 32 required to carefully consider on an indivi dualized b a s is “the nature 33 and circumstances of the offense and the history and character isti cs
14No. 14-4295-cr

1 o f th e d e fe n d a n t. ” 1 8 U

. S

. C

. § 3 5 5 3 ( a ) ( 1 )

. F u r th e r, th o s e 2 considerations must be applied in th e c o n te x t of the other § 3553(a) 3 factors. A fte r the other factors are considere d, upward adjustments 4 may be appropr iate for the sake of retribution, deterr ence, and 5 incapacitation. Howeve r, w e conclude that the district court’s 6 considerations cannot reaso nably justify regar ding Jen k in s as the 7 worst of the wor st and sente ncing him as such. 8 While he should rece ive stern punishment for h is crimes, the 9 fact r e mains that the sentenc e he rece ived fails, as required by 10 § 3553(a)(1), to account for the important difference s b e tw e e n the 11 sent e n c e Jenkins and those who produced or distributed child 12 pornogr aphy or who physically ab u sed children rece ived. For 13 example, in upholding a six ty -year sentenc e in United States v. Brown , 14 we found it signifi cant that the defendan t had repe ated sexual 15 contact with mul tipl e young victi ms and engaged in th e p r o d uction 16 of child pornogr aphy during the course of th a t abuse. 843 F. 3d 74, 83 17 (2d Cir. 2016). Likew is e, in Broxmeyer , we affirmed a thirty-year 18 sentenc e for child pornogr aphy where th e d efendan t was convicted 19 of atte mp te d production of child pornogr aphy and commi tted 20 s ta tutory rape of girls he was supposedly mentoring. 699 F.3d at 2 9 7

. 21 Whether a child pornogr aphy o ffender has had or has attempted to 22 have contac t w ith c hildren is an important distinction. “The failu re to 23 distinguish between contact and po s s ession-only offender s [is] 24 questionable on its face,” and this failure “may go against the grain of 25 a growing body of empirical li teratu r e in d icating that there are 26 signifi cant, § 3553(a)-relevant dif fe r e nces between these two groups.” 27 United States v. Apodaca , 6 4 1 F.3d 1077, 1083 (9th Cir. 2011); see e.g. , 28 Shelley L. Clevenge r et al., “A Matter of Low Self-Contr ol? Exploring 29 Differe nces Betw een Child Pornography Possess ors and Child 30 Pornography Producers /D istributers Using Self-Contr ol Theory,” 28 31 Sex ual Abuse 5 5 5 ( 2016) (finding online offender s have greater victi m 32 empathy and greaterlevels of self-control than offline offender s).

15No. 14-4295-cr

1 Further, among defendan ts convicted of transpor tati on, 2 Jenkins is relatively less culpable because he was b r in ging his 3 collecti on for his own pers onal use, rather than carrying child 4 pornogr aphy to sell or distribute to others. In 2010, 88

. 7 % o f those 5 convicted of transpor tati on “engaged in knowing d is tr ibuti on to 6 another. ” USSC Report 189 n.72. Along this dimension, then, Jenkins 7 is ne a r th e bottom of the distributi on of offender s. However, the 8 district court imposed a sen te n c e of 225 months, near the top of the 9 statutory range of 60 to 240 months. 18 U.S.C. § 2252A(b)(1). 10 Admittedly, Jenkins may be unli ke many other transpor ters because 11 he refuse d to accept resp onsib il ity, offere d false exculpatory 12 te s ti mo ny at his trial, and was disrespe ctful to the district judge. 13 However, these factors cannot justify a sentenc e that is 165 mo nths 14 above the statutory minimum and a mere 1 5 months below the 15 statutory maximum. 16 Moreover, b r in g in g a pers onal collecti on of child pornography 17 across state or national borde rs is the mos t narro w and technical way 18 t o t r i g g e r th e t r a n s p o r t a ti o n p r o v i s i o n . W h e r e a s J e n k i n s ’ s 19 transpor tati on offense carried a statutory maximum o f 2 0 years, the 20 statutory maximum for his posses sion offense was “only” 10 years. 21 Jen k ins was eligible for an additi onal 10 years’ imprisonment be cause 22 he was caught w ith h is collecti on at the Canadian borde r rather than 23 in his home. The government argues that J e n k ins was “so captivated 24 by child pornogr aphy that he could not leave behind his c ollecti on 25 even for a short vacation to Canada,” Appellee Br. 84. We disagree 26 that bringing a pers onal collecti on to the start of a vacation as 27 opposed to leaving it at home sup p li e s an appropr iate basis for 28 sentenc ing a person to an additional 10 years in prison. 29 In additi on, though we accept th e d istr ict court’s obser vation 30 that Jenkins’s con d u c t a t trial and during sentenc ing procee dings 31 reflected a “disdain for the law,” we find p r ob le mati c the district 32 court’s exclusive reliance on this factor as justifi cation for 33 dramatical ly increasing Jenkins’s sentenc e. See App. 860-61. While we

16No. 14-4295-cr

1 do not condone Jenkins’s lack of resp ect for th e la w, it simply cannot 2 bear the weight the dist r ict court assigned to it. Dorvee, 616 F.3d at 3 183; cf. United States v. G e r ez a n o R o sales , 692 F.3d 393, 401 (5th Cir. 4 2012) (holding district court’s decision to increase a d e fe n dant’s 5 se n te nce from 71 to 108 months based on defendan t’s disrespe ct for 6 the law constituted cle ar err or in judgement in balancing the 7 sentenc ing factors). Jenkins had already paid h e a v ily for his 8 disrespe ctful behavior. The Court denied him any offense level 9 reduction for acceptance of resp onsibili ty. Apparen tly concluding 10 that this signifi cant sanc ti on was insuffici ent, the district judge 11 procee ded to add years and years onto Jenkins’s sentenc e in li ght of 12 his failu re to accept resp onsibili ty, as demonstrated by his pers istent 13 rudene ss and disrespe ct. While we ap p r e c ia te the district judge’s 14 frustra ti o n, we are unwil ling to sanction dramatical ly increasing a 15 s e ntence because an angry out-of-control pro se defendan t facin g 16 decades in prison fails to manifest sufficient resp e ct for the system 17 that is about to incarce rate him. 18 We also disagree with the district court’s conclusion that 19 Jenkins’s lack of resp ect makes him “a very high r is k to r eoffend.” 20 App. 861. The district court’s conclusion ignores widely availab le , 21 definitive rese arch demonstrating that r e c idivism substantially 22 decre ases with age. See e.g. , U.S. Senten cing Comm’n, Measu r i n g 23 Recidivism: The C r i m i nal History Computation of the Federal Sentencing 24 G u i d e l i n e s 8 , a v a i l a b l e a t 25 http://www.ussc.gov/ sites/default/files/pdf/r esear ch-and-publications 26 /re search-publicati ons/2004/200405

_R e c id iv is m_ C r im in a l_ H is tory.pd 27 f. That rese arch documents that offender s with a C riminal History 28 Category I between ages 41 to 5 0 h a ve a 6.9% recidivism rate, as 29 opposed to a 29.5 % recidivism rate for Category I offender s under 30 21.These statisti cs from the Commission, which include offende rs 31 who accepted resp onsibili ty as well as those who did not, suggest 32 that Jenkins, an offen d e r with no criminal history points who wil l be 33 63 when he is release d from his lengthy prison s e ntence, wil l be a

17No. 14-4295-cr

1 low–not a high–risk to r eoffend since more than 90% of individual s in 2 h is age group do not reoffe nd. Although it would be well w ith in a 3 d is tr ict court’s discretion to increase a sentenc e based on a likelihoo d 4 of reoffe nding, there must, in a case like this, be some support in the 5 r e c o r d for that conclusion, such as, for example, a recor d of previo u s 6 convictions or previous atte mp ts to harm children. Here there is 7 none. A sentenc e of 225 months f o r a first-tim e offender who never 8 spoke to, much less a p proache d or touched, a child or transmitted 9 explicit images to anybody is unreas onable. 10 Additi onal months in prison are not simply numbers. Those 11 month s h a ve exce ptionally sever e consequences for the incarcerated 12 indivi dual. They also h ave consequences both for s o c ie ty which bear s 13 the direct and indirect costs of incarceration and for the 14 admini stration of justice which must be at its best when, as here , the 15 stakes are at their highest. 5
16 Finally, the government highli ghts the seriousne ss o f J e nkins’s 17 offense s as a consumer of child pornogr aphy, saying that he 18 “encourage d the market f o r th is content and spurr ed the abuse of 19 other children whose exploitati on w o u ld be neces sary to create new 20 images and videos, to feed the demand of consumers like Jenkins.” 21 Appellee Br. 84. But this obser vation is true of virtua ll y ever y child 22 pornogr aphy o ffe n der. It is undoubtedly corre ct that “[a]ll child 23 pornog r a phy offense s are extre mely serious because they both 24 perp e tu a te harm to victi ms and normalize and vali date the sexual 25 exploitati on of children.” USSC Report 311. We do no t f o r a moment 26 dispute that Jenkin s d e s erve s a substantial term of imprisonment. 27 Nonethe less, some types of conduct in th is area are more culpable 28 than others. District cou r ts should gener ally rese rve sentenc es at or 29 near the statutory m a x imum for the worst offender s. Treating Jenkins

The annua l cost of i ncarcerating a 60 -year-o l d state pri soner i s $6 0,0 00 to $7 0,0 00 , as 5 compared to $2 7,0 00 fo r younger i nma tes. U.S

. Department of Justi ce, Natio nal Institute of C or recti ons, Corre ctional Health care: Add res sing th e Needs of Elderly, Chronically Ill, a n d Terminally Ill Inma tes 11 , av ail ab l e at http:// static.ni ci c.go v/Lib rary/01 87 35 .pdf

. 18No. 14-4295-cr

1 as the worst of the worst has n o g rounding in the recor d we are 2 reviewing and is inconsistent with the par simony cl ause.
3 III.

4 The sentenc e the district court imposed also c r eated the type 5 of un w a r r anted sentenc e disparity that viol ates § 3553(a)(6). 6 6 Statistic s fr om the Senten cing Commission vali date our concer n. In 7 gener al, a district court need n ot consult the Commission’s statisti cs 8 because the r e is “no assurance of comparabili ty.” United States v. 9 Irv i n g

, 5 5 4 F.3d 64, 76 (2d Cir. 2009). Here , however, the 10 Commission’s statisti cs, wh ic h were readily avail able to the district 11 court at the tim e of sentenc ing, all o w for a meaningful comparison of 12 Jenkins’s be havior to that of other child pornography offender s. 13 First, just as § 2G2.2 produces Gu id e lines ranges that are 14 higher than those for indivi duals who engage in sexua l c o n d u ct with 15 a minor, Je nkins’s sentenc e is longerthan typicalfeder al sentences for 16 sexual offense s against in-person victi ms. In 2013, the latest year 17 avail able to the distr ic t c o urt at the tim e of sentenc ing, the mean 18 sentenc e in the category of “sexual ab u s e ” was 137 months, and the 19 median was 120 months. U.S. Senten cing Comm’n, 2013 Sour c e b o o k of 20 Federal Sentencing Statistics tbl.13, avail able at http://www.us s c 21 . g o v/ s ites /default/files/pdf/ rese arch-and-p ublications/ann u a l- r e p o r ts

22 and-sour c ebooks/2013/Table13.pdf. We believe Jenkins’s sentenc e

In the or di nary case, a cour t i mpli ci tly give s suffi ci ent wei ght to the need to prevent 6 unwa rranted sentence di spariti es when i t has “co rrectl y calcul ated and careful l y reviewed the Guide l i nes range.” See 18 U.S .C. § 35 53 (a)(6 ); Gall v. United States , 55 2 U.S

. 38 , 54 (2 00 7)

. However, we have held that § 2G2. 2 tends to pro duce unreasonab l e resul ts. See Dorvee, 61 6 F .3d at 18 4. Recogni zing this di ffi cul ty, di stric t cour ts have ro utinel y i mposed l o we r sentences fo r chil d por nography offenses, and the government even occ asio nall y moves fo r a l ower sentence. In 20 10 , 44 .3% of cases of non-pro ducti on chil d por nography offenses i n 20 10 i nv ol v ed cour ts’ i mposi tio n of a b el o w- Gu i d e l i nes sentence, and another 10 .3% i nv ol ved a go vernment moti on f orsuch a sentence. U SS C Repo rt 2 21 , 2 23

.
19No. 14-4295-cr

1 that is 88 mo n ths above this mean and 105 months above this median 2 is unreasonab le.
3 Second, th e mean feder al sentenc e in the “child pornogr aphy” 4 category in 2013 was 136 months, and the median was 120 months. 5 Id. This cat e g o r y included sever al hundred indivi duals who produced 6 child pornogr aphy (333, compared to 1,609 sentenc ed for traffic k ing 7 and po s s e s sion offense s). U.S. Senten cing Comm’n, Use of Guidelines 8 and Specific Offense Characteristics (Offender Based), Fiscal Year 2013 39- 9 4 0 , a v a i l a b l e a t h t t p : / / w w w . u s s c . g o v / s i t e s / 10 d e f a u lt/ fil e s / p df/re search-and-publications/feder al-sentencing-stat is ti 11 c s / gu id e li n e - a p p li c a tio n - fr e qu e n c ie s /2 0 1 3 /U s e

_ o f

_ Gu id e li n e s

_ a n d

_ S 12 p e c ific

_ O ffe n s e

_ C h a r a c t e r i s t ic s

_ O ffe n d e r

_B a s e d

_R e v is e d

. p d f

. Th e 13 pres ence of such indivi duals in th e distributi on is a further indication 14 th a t a sentenc e that is 89 months above the 2013 mean for c h il d 15 pornogr aphy sentenc es a n d 105 months above the median is not 16 reaso nable.

17 Third, th e Senten cing Commission’s 2012 repor t analyzed 18 sentenc es of offender s convicted of posses sion without a distributi on 19 enhance ment, but with the run-of-the-m ill enhance ments previously 20 descr ibed. See supra at 11-12. Among these offender s, the mean 21 sentenc e was 52 months and the highest sente n c e w a s 97 months. 22 USSC Report 215 fig.8.3. Admittedly, these offender s, u n li k e Jenkins, 23 accepted resp o nsibili ty and did not all engage in misconduct during 24 their criminal procee dings. Nonethe less, we see no reaso nable 25 justifi cation on the recor d as to why he should rece iv e 1 2 8 months 26 above the longest sentenc e in this c ategory and 1 73 months above the 27 mean among possess ors with the four all-but-inherent enh ancements.
28 IV.
29 In additi on, the conditions of sup e r v is e d release imposed on 30 Jenkins, including broad restr icti ons on his movements, his ab il ity to 31 obtain gainful employment, and use of credit c a r d s for 25 years upon 32 his release from prison, are n o t “reaso nably related,” to “the nature 20No. 14-4295-cr

1 and circumstances of the o ffe nse” or Jenkins’s “history and 2 character isti cs;” no r are they “reaso nably neces sary” to the 3 sentenc ing purpose s set forth in § 3553(a)(2). See 18 U.S.C. §§ 3553 4 and 3563(b). We would re ach this same conclusion about the duration 5 and terms of Jenkins’s supervised release even if th e period of 6 incarceration he h ad rece ived had beenlower.

7 To start, the duration of the supervise d release , on top of 8 nearly 19 years in prison, make the restr icti on s e x c e ssive and 9 unreas onable. Jenkins wil l be 6 3 y e a rs old when he is release d from 10 prison. He wil l b e under supervised release for the next 25 years u n til 11 he is 88 years old. While this term o f s u p ervised release does not viol ate the Gui delines or the Poli cy Statement of § 5D1.2(b)(2), we 12 13 may not pres ume the reaso nablenes s of the sentenc e on th at basis. 14 Unite d S t ates v. Hayes , 445 F.3d 536, 537 (2d Cir. 2006). This is 15 p a r ti c u larly true where the district court offere d no explanation that 16 might justify imposing what amounts to a li fetime of the most int e n s e 17 post-release supervision that preve nts Jenkins from ever re-e ngag in g 18 in any c o mmunity in which he might find himself. By contrast, in 19 United States v. Bowles , 2 6 0 F

. App’x 367, 369-70 (2d Cir. 2008) 20 (summary order ), we held that Bowles’s problems w ith s exual 21 deviance, his perce ption that the children e njoyed the contact, and his 22 long-term alcohol and d r u g abuse and mental il lness formed a 23 reaso n ab le basis for li fetime supervised release

. No congruent 24 c o n c e r n s are pres ented in the recor d we are reviewing. Ordinarily, a 25 district court is under no obligati on to provide elaborate re a s o n s f o r 26 th e sentenc e it imposes. In many instances the reaso ns for a sente n c e 27 can be garner ed from the recor d. That is not the case here

. Where a 28 sentenc e is unusually harsh, meaningfu l a p pellate review is 29 frustrated where it is no t possible to unders tand why the sentenc e 30 was imposed.
31 Moreover, we are tr oubled by specific conditi ons of re lease. For 32 example, one of them prohibits Jenkins from having d irect contact 33 with anyone under the age of 18 unless supervised by a pers on 21No. 14-4295-cr

1 approved by the probation office. As mentioned above , Jenkins never 2 contacted or attempte d to contact any minors. But under this 3 conditio n, J enkins is prohibited during the 25-year period from 4 interaction with family members or friends who might h a v e children 5 under the a g e o f 18 unless he goes through a preapp roval proces s 6 with the Probation Office which pres umably would entail some sort 7 of investigati on and finding by that office. This restr ict ion would 8 apply with full force to all r o u ti ne family interaction–for example, 9 Thanksgiving dinner s or se ders o r chr istenings.
10 A nother condition bars Jenkins from any “indirect contact” 11 with a pers on under the age of 18 “th r o u gh another pers on or 12 through a device (including a telephone, computer, radio, or other 13 means)” unless it is supervise d b y a pers on approved by the 14 Probation Office. It is difficu lt to know what the boundaries of th is 15 restr icti on might be. If, for example, members of a li ttl e league 16 baseb all te am were solici ting in front of a supermarke t, could Jenkins 17 approach them or later call in and contribute? Common s e n s e would 18 say “yes” but th e p r oblem for Jenkins would be that the 19 consequences of an in c o r r ect guess would be sufficiently serious that 20 he would be il l advised to run a ny r is k s at all

. That same restr icti on 21 required h im to “ r easonab ly avoid and remove himself

. . . from 22 situati ons in which [he] has any other form o f c ontact with a minor.” 23 A g a in it is unclear what Jenkins is expe cted to do for the 25 ye a r s 24 d u r ing which he must comply with this restr icti on. Is he required to 25 stay away from sporti n g e v e nts or natural history museums or stree t 26 fairs? The reaso nable neces sity for these restr icti ons which apply to 27 Jenkins when h e is in his 70s and 80s eludes us.

28 Likewise the r e lati onship between the restr icti ons on Jenkins’s 29 emp lo y ment and Jenkins’s offense and circumstances is not readily 30 apparen t. See United States v. B ro w n , 402 F.3d 133, 138–39 (2d Cir. 31 2005) (vacating c o n d iti on where it was “seemingly unrelated to 32 [Defe ndant’s] offense and c ir c u mstances”). As mentioned earlier, the

22No. 14-4295-cr

1 nature of these employment restr icti ons me a n that, as a practical 2 matter, he may never b e employable.
3 Another condition prohibits Jenkin s from incurring new credit 4 charges or opening additi onal lines o f c redit without approval of a 5 probation officer. Nothing in the recor d sugges ts th e se restr icti ons on 6 Jenkins’s use o f c r e d it cards are “reaso nably neces sary,” 18 U.S.C. 7 § 3563(b)(5), to protect the public or to deter Jenkins from continuing 8 to engage in the conduct for which he w as convicted–posses sion of 9 c hild pornogr aphy. Cf. United States v. Peppe, 80 F.3d 19, 23 ( 1 s t C ir

. 10 1996) (holding that a b a r o n incurring debt without prior approval 11 was reaso nably related to defendan t’s offense , which involved the 12 exto r ti onate extens ion of credit). This is espe cially true when the use 13 of credit cards or other forms of credit wil l likely be neces sary to 14 function in the society that wil l exist after Jenkins’s eventual release 15 fr o m p r ison. See United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001 ) 16 (per curiam ) (vacating a special condition impos in g restr icti ons on 17 c omputer owners hip because , in part, “[c]omputers and Intern e t 18 acce ss have become virtual ly indispensable in the modern world of 19 communi cations and informati on gathering” )

. Why Jenkins should 20 be prohibited from buying a dri n k o n an airplane or taking an Uber 21 ride or making a purchase on Amazon unless th e tr a nsaction is pre22 app r o v e d by a probation officer cannot be divined from the recor d 23 we are r eviewing.
24 The conditions of s upervised release imposed by Judge 25 Suddaby mean that Jenkins wil l never be able to pay his debt to 26 society. He wil l likely never be able to develop and maint ain 27 meaningful relationships with others, to obtain emplo y me nt and 28 remain employed or to ever le a d a ny thing that remotely rese mbles a 29 “normal” li fe. 30 As we review these conditions of release, what is partic u la r ly 31 depre ssing is that the Assistant United States Attorney and the 32 probation officer who appeare d at sentenc ing either b e li e ved they 33 were appropr iate or did not believe they were appropr iate but
23No. 14-4295-cr

1 nonetheles s s to o d mute as they were imposed. We do not doubt for a 2 moment that there are other cases in which some o r a ll o f th e 3 conditions imposed by the district court would be required and 4 reaso nable. But given Jenkins’s pers onal character isti cs and the 5 nature of his offense, this cons tellation of restr icti ons, compounded 6 by their 25-year d u ration, “infli cts a greater deprivation” on his 7 liber ty than is “r easonab ly ne cessar y.” Un i t ed States v. Sofsky, 287 F.3d 8 122, 126 (2d Cir. 2002).

9 CONCLUSION 10 Jenkins’s sentenc e is substant iv e ly unreas onable. Accordingly, 11 we vacate it and remand for rese ntencing. This panel wil l retain 12 jurisdictio n o ver any subse quent appeal. Either party may notify the 13 Clerk of a rene wed appeal within fourteen days of th e d is trict court’s 14 new sentenc e. United States v. Tutty, 612 F.3d 128, 133 (2 d Cir. 2010) 15 (citing United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994). 7

On the remand of this case, the condi tio ns of super vi se d r e l ease shoul d b e suffi ci ently 7 explained by the di stric t co urt to permi t meaningful appel l ate review. 2414-4295 United States v. J enkins

1 KEARSE, Circuit Judg e, dissentingin part: 2 I respe ctfully dissent from so much of the majority' s opinion as rules that the 3 imprisonment component of the sentenc e imposed on defendant J oseph J enkins, within the applicable 4 Guidelines ra

ng e, is substantively

unrea sonable. 5 As is reve aled in the summary order filed contempora neously in this case , the district 6 court in sentenc ing Jenkins did not commit any proce dural error . Where wehave determined " ' that 7 the district court' s sentenc ing decision is proce durally sound,' " United States v. Cavera , 550 F.3d 180, 8 190 (2d Cir. 2008) (en banc)(quotingGall v. United States, 552 U.S. 38, 51 (2007)) , we reverse on 9 the basis of substantive unrea sonablene ss only if the sentenc e "c annot be located within the rang e of 10 permissible dec isions," Cavera, 550 F .3d at 189 (internal quotation marks omitted). 11 In sentenc ing J enkins to imprisonment f or 225 months-- within the Guidelines rang e 12 (which was either 210-262 m onths if the di strict court chose t o impose the s entenc es consecutively 13 or 210-240 months if it did not (240 months being the statutory maxi mum on one count))- -the district 14 court stated that it was imposing "a sentenc e that ref lects the seriousness of your crime, that promotes 15 respe ct for the law, and that provides you with adequa te deter renc e from committing further crimes, 16 and that protec ts the public." (Sentenc ing Transcript (" S.Tr.") 30.) In s t at i n g that it found "this 17 sentenc e [t o be] sufficient but not greater than nece ssary to comply with the purposes of sentenc ing" 18 (S.Tr. 29), the court was hea vily influence d by

its view that, without a lengthy prison term, J enkins 19 would be likely to repe at his offenses. It said, inter alia: 20 I co u l dn' t disagree with your attorney more when she says that you' re n o t a 21 threat to commit this crime ag ain. You' ve demonstrated that you have a total 22 lack of respe ct for the law and disdain for the law. That[ is,] in the Court's1 view it is without question that, if g iv en the opportuni ty, you will do exactly 2 what you want to do in a ny situation a

nd you are a very high risk to reoff end. 3 (S.Tr. 29-30 (empha sis added) .) This view is supported by, inter alia, J enkins' evasion of the charg es 4 ag ainst him in Canada and his re p eated insistence throughout this prosecution that he had done 5 nothing wrong and could not validly be prosecuted. For ex ample, in his supplemental sentenc ing 6 memorandum submitted pro se, heasser ted, inter alia, 7 # that "[t]here is no justification or cause leg ally for the proc eeding "; 8 # that the United States had " no jurisdiction" to try him; 9 # that the jury' s verdic t of guilt "w as obtained through conspired fra ud, 10 misrepre sentation," and " perjury"; a nd 11 # that "the [] whole ca se" was " unsubstantiated g arbag e." 12 (Jenkins' pro sesentenc ing memorandum at 1-3.) 13 The district court noted that after J enkins "a ttempted to transport thousands of imag es 14 and videos of child pornography into Canada and then later failed to appea r for [hi s] Canadian trial" 15 and was arrested in the United States, he somehow "blamed Canada ." (S.Tr. 3 0.) In fact, the court 16 noted that J enkins "ha s blamed ever y body and ever

yone for his criminal activity ." (Id. at 29.) Indeed, 17 J enkins even bl amed the children depicted in the pornographic imag es and videos he transporte d, 18 stating that "[m]os t" of those imag es "a re ' webc am' videos, they (victims) intentionally produce d and 19 broadc ast (themselves) over the intern et an d should be prosecuted (themselves) ." (Jenkins' pro se 20 sentenc ing memorandum at 2 (emphases adde d).) 21 Given thi s rec ord i n which J enkins, inter alia, disputed any justificat i o n or authority 22 for prosecuting him, and arg ued that instead the children who were victims of the child pornography 23 should have been prosecuted, the district court' s concern for the likel i h o o d th at , without a lengthy

21 prison term, J enkins would re- offend was not unrea sonable, and I cannot conclude that the imposit ion 2 of the prison term that was no higher than midway between the top and bottom of the Guidelines rang e 3 "c annot be loca

ted within the rang e of permissible decisions."

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