15-2276-cr 

United States v. Sawyer 

1 

United States Court of Appeals 

for the 

Second Circuit 

August Term, 2017 

Docket No. 15-2276-cr 

THE UNITED STATES OF AMERICA, 

Appellee, 

v. 

JESSE SAWYER, 

Defendant-Appellant. 

Argued April 12, 2018 

Decided June 19, 2018 

Before: 

JACOBS, POOLER, Circuit Judges, CRAWFORD, District Judge.*

Appeal from a judgment of the United States District Court for the 

Northern District of New York (D’Agostino, J.) imposing a sentence of 

300 months of imprisonment for the offenses of producing child 

pornography and receiving child pornography. This court previously 

vacated as substantively unreasonable a sentence of 360 months of 

imprisonment for the same offenses, identifying specific deficiencies in 

the district court’s analysis. The district court did not sufficiently 

 

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

Vermont, sitting by designation. 
15-2276-cr 

United States v. Sawyer 

2 

address those deficiencies on remand and suggested that it would have 

difficulty putting aside its previously-expressed views. 

VACATED AND REMANDED FOR RESENTENCING BEFORE A DIFFERENT 

JUDGE. 

Judge Jacobs dissents in a separate opinion. 

BRUCE R. BRYAN, Syracuse, New York, for DefendantAppellant. 

STEVEN D. CLYMER, Assistant United States Attorney 

(Lisa M. Fletcher and Michael D. Gadarian, Assistant 

United States Attorneys, on the brief), of counsel, for

Grant C. Jaquith, United States Attorney for the 

Northern District of New York, Syracuse, New York, 

for Appellee.

GEOFFREY W. CRAWFORD, District Judge: 

This case returns on a second appeal following resentencing. 

Because we conclude that the district court did not follow this panel’s 

prior mandate, we vacate the sentence for the second time and order 

resentencing before a different judge. 

Background 

In 2014, defendant Jesse Sawyer pled guilty to two counts of sexual 

exploitation of children in violation of 18 U.S.C. § 2251(a) and one 

count of receipt of child pornography in violation of 18 U.S.C. §§ 

2252A(a)(2)(A) and 2256(8)(A). The sexual exploitation charges arose 

out of approximately 30 cellphone photos taken by Sawyer of two 
15-2276-cr 

United States v. Sawyer 

3 

young girls, aged 4 and 6 at the time of the offenses. The girls had 

close relationships with Sawyer. The photos depicted the children’s 

genitals. Sawyer kept the photos and there was no evidence that he 

took any steps to distribute them to third parties. The count of receipt 

of child pornography concerned images which Sawyer downloaded from 

the Internet. 

Each of the sexual exploitation charges carried a fifteen year 

mandatory minimum sentence and a maximum of 30 years. See 18 

U.S.C. § 2251(e). The receipt of child pornography count carried a 

mandatory minimum sentence of five years and a maximum of 20 

years. See 18 U.S.C. § 2252A(b)(1). The guideline range for the three 

sentences was the combined maximum of 80 years. See United States 

Sentencing Guidelines Manual (“USSG”) § 5G1.1(a) (“Where the 

statutorily authorized maximum sentence is less than the minimum of 

the applicable guideline range, the statutorily authorized maximum 

sentence shall be the guideline sentence.”) In the absence of these 

statutory limitations, the guidelines would have called for a life 

sentence. See USSG § 2G2.1. 
15-2276-cr 

United States v. Sawyer 

4 

The Original Sentencing 

The presentence report and the defendant’s sentencing 

memorandum described Sawyer’s personal history as a victim himself 

of childhood sexual abuse. He was subjected to severe abuse, including 

rape, as a small boy at the hands of men and women. At the first 

sentencing, the judge described the defendant’s childhood as “horrid 

[and] nightmarish” and marked by “a childhood that never was” and 

“incredible sadness.” Transcript of Sentencing, July 7, 2015, at 30–31. 

By the age of 7, he had been victimized sexually. He witnessed 

prostitution and drug use in his home. Before the age of 10, he was 

introduced to drugs and alcohol. The judge noted that a psychologist 

retained by the defense described Sawyer as a moderate to high risk to 

reoffend. She found that he presented a significant danger to the 

community because he had “an inadequate and distorted perception of 

rape and child molestation.” Id. at 32. She expressed great concern for 

the violation of trust and victimization of the two girls. She stated, “I 

can’t excuse what you did. I take into consideration your life but I can’t 

excuse that darkness in your heart and soul that made you prey upon 

two innocent children.” Id. at 35. 

The original sentence was 15 years, consecutive, on each of the 

child exploitation counts and five years, concurrent, on the receipt of 
15-2276-cr 

United States v. Sawyer 

5 

child pornography count, for a total effective sentence of 30 years of 

imprisonment. 

The First Appeal 

On appeal, Sawyer contended that his sentence was both 

procedurally and substantively unreasonable. We rejected the claims of 

procedural unreasonableness. United States v. Sawyer, 672 F. App’x 

63, 64–65 (2d Cir. 2016) (summary order). We concluded, however, that 

the 30-year sentence was substantively unreasonable. Id. at 65–66. It 

was not justified by concerns of public protection because Sawyer had 

no history of sexual assault with these victims or other children, and 

there was no specific evidence of a risk of such behavior in the future. 

While Sawyer violated both children by exposing them to the camera 

and touching them in the process, there was no evidence—and the 

government does not suggest—that he engaged in penetrative sexual 

assault in any form. A 30-year sentence would have been appropriate 

for “extreme and heinous criminal behavior” and the conduct in this 

case did not rise to such a level. Id. at 66. 

In remanding the case for resentencing, we also identified a specific 

shortcoming in the district court’s consideration of the sentencing 

factors set out at 18 U.S.C. § 3553(a). We noted that “the district court 
15-2276-cr 

United States v. Sawyer 

6 

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 . . . . 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.” Sawyer, 672 F. App’x at 67. We concluded that the 

defendant’s own extraordinary history of childhood abuse and the 

expert testimony that it contributed to the commission of the offense 

justified “not just a departure from the Guidelines, but a significant 

one indeed.” Id. We vacated the sentence and remanded for “imposition 

of a new sentence that comports with this opinion.” Id. 

The Second Sentence 

The district court held a de novo sentencing hearing on July 7, 

2017, and reduced the total sentence from 30 to 25 years.1 The judge’s 

sentencing remarks identify Sawyer’s good conduct in prison following 

the first sentencing as the basis for the five year reduction. The judge 

 

1 The second sentence was 180 months each on Counts One and Two, 

consecutive for 120 months and concurrent for 60 for a total of 300 months or 

25 years. Count Three remained a concurrent sentence of 60 months. 
15-2276-cr 

United States v. Sawyer 

7 

did not alter her sentence to reflect the direction in this panel’s 

mandate. She stated: 

On the mandate, the issue, failure to afford sufficient weight to the 

way you were raised in determining your sentence, looking at the fact 

that I departed by 50 years from the [80 year] guideline range, I still 

can’t say in good conscience that my sentence at that time was 

substantively unreasonable. I would be surrendering the conviction of 

what I did. 

Transcript of Sentencing, July 7, 2017 (“Resentencing Tr.”) at 34. The 

judge explained that she remained persuaded, in light of Sawyer’s 

childhood abuse and the findings of the defense psychologist, that 

“because of the way you were raised, you do continue to be a clear and 

present threat to society and specifically to children.” Id. at 37. She 

reviewed at length the basis for her original sentence. She stated, 

“[a]lthough the Court of Appeals disagreed, I did feel that I fully 

considered a multitude of factors in imposing the prior sentence of 30 

years. I still believe that sentence was an appropriate one and is 

sufficient but not greater than necessary to meet the goals of 

sentencing.” Id. at 40. In closing, the judge indicated that if a further 

remand became necessary, for reasons of judicial economy, the case 

would be best sent to a different judge. 
15-2276-cr 

United States v. Sawyer 

8 

Scope of Review 

“In sentencing, as in other areas, district judges at times make 

mistakes that are substantive. At times, they will impose sentences 

that are unreasonable. Circuit courts exist to correct such mistakes 

when they occur.” Rita v. United States, 551 U.S. 338, 354 (2007). As a 

reviewing court, we accord great latitude to the experience and 

judgment of the sentencing court, but we retain authority to vacate 

sentences which are unreasonable in length or in some other way fail 

to meet the requirements of 18 U.S.C. § 3553. 

The mandate rule, a component of the law of the case doctrine, 

requires district courts to comply with circuit court mandates in 

proceedings on remand. See Burrell v. United States, 467 F.3d 160, 165 

(2d Cir. 2006). Issues implicitly or explicitly decided on appeal are not 

open for contrary ruling on remand. The district court retains 

authority over issues not addressed on appeal, but where an appellate 

court has resolved an issue, the district court is not empowered to 

ignore or reject the appellate court’s disposition of the issue. 

Discussion 

When we first heard this case on appeal, we ruled that a 30-year 

sentence was substantively unreasonable in light of the circumstances 
15-2276-cr 

United States v. Sawyer 

9 

of the case. See Sawyer, 672 F. App’x at 67. The substance of our prior 

ruling is not at issue in this appeal, and we need not recapitulate our 

earlier summary order in full detail here. It suffices to restate in brief 

the two related shortcomings we identified in the first sentence: (1) the 

district court’s failure to give sufficient downward weight to the effect 

of the severe sexual abuse Sawyer endured at home throughout his 

childhood, and (2) the district court’s overreliance on the factor of 

Sawyer’s danger to the community. 

An extraordinary history of familial sexual abuse during childhood 

has long been recognized as a potential basis for downward departure. 

See United States v. Brady, 417 F.3d 326, 333 (2d Cir. 2005) (“[I]n 

extraordinary circumstances 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.’”) (quoting United States v. Rivera, 192 F.3d 81, 85 (2d Cir. 

1999)). Neither the district court nor this court had any difficulty 

recognizing the horrific and extraordinary nature of the childhood 

abuse Sawyer suffered. See Sawyer, 672 F. App’x at 67. 

In imposing a 30-year sentence, the district court also 

misapprehended the danger posed to the community by Sawyer. 

Sawyer produced a comparatively small number of images, and there 
15-2276-cr 

United States v. Sawyer 

10 

was no evidence at sentencing that he had disseminated child 

pornography to others or had sexual contact with any children beyond 

the touching of the inner thigh. The danger posed to the community by 

such an individual is assuredly less than that posed by someone who 

has actually sexually assaulted children. The 30-year sentence in this 

case flattened the real and meaningful distinction between Sawyer and 

other child abusers who have shown themselves to be greater threats. 

Id. at 66; see United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010); 

compare, e.g., United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en 

banc) (vacating a 210-month sentence and ordering the imposition of a 

30-year sentence on a defendant who “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.”). 

Moreover, when the district court discussed the examining 

psychologist’s mention of Sawyer’s moderate to high risk to reoffend, 

Resentencing Tr. at 259, it failed to take note of that same 

psychologist’s view that Sawyer’s “risk would be reduced if he is able to 

complete a sex offender treatment program.” App’x at 106. The 
15-2276-cr 

United States v. Sawyer 

11 

psychologist noted that Sawyer had substantial untreated trauma and, 

given that he “never witnessed a healthy parenting experience,” had 

his “psychological development arrested at an early age.” Id. He “is 

motivated to stay drug and alcohol free” and is “remorseful, guilt 

ridden and self-loathing.” Id. This all suggests that Sawyer’s risk of 

reoffending depends largely on his access to treatment. 

We vacated the sentence and remanded “for imposition of a new 

sentence that comports with this opinion.” Sawyer, 672 F. App’x at 67. 

We directed the district court to impose a new sentence that included a 

significant downward departure reflecting Sawyer’s childhood history. 

We also called for a reassessment of Sawyer’s risk to the community. 

The precise magnitude of the downward departures to be assessed 

on the basis of Sawyer’s extraordinary history and risk to the 

community were left to be determined by the district court. But our 

mandate required some downward departure on the basis of Sawyer’s 

history, and some downward departure based on a reassessment of the 

danger posed by Sawyer. These were issues we explicitly addressed on 

appeal, and the mandate rule compelled the district court to execute 

our directions. 
15-2276-cr 

United States v. Sawyer 

12 

On resentencing, the district court identified Sawyer’s good conduct 

in prison since the original sentencing as a basis for a five-year 

reduction of the sentence, and imposed a sentence of 25 years of 

imprisonment. The district court ordered no downward departure on 

either of the grounds specifically identified in our summary order as 

grounds for significant downward departures. It thereby failed to 

comply with the mandate rule. Its sentence, imposed in violation of the 

mandate rule, cannot stand. 

The reduction of the sentence from 30 years to 25 years for a reason 

not available at the time of the original sentencing did not satisfy our 

prior mandate. While the total sentence was shortened, the errors 

identified in our original summary order remained uncorrected. It may 

well be that Sawyer’s good conduct in prison warrants an additional 

downward departure. Sawyer’s good conduct might also support a 

conclusion that the risk to the community caused by his untreated 

trauma and the lack of moral guidance from his childhood can be 

significantly mitigated via rehabilitation. It was entirely appropriate 

for the district court to consider Sawyer’s good conduct, and it could 

properly have done so in addition to, not instead of, addressing the 

errors we identified. 
15-2276-cr 

United States v. Sawyer 

13 

In reviewing the second sentencing, we do not question the good 

faith of the district judge in responding to a serious offense in a 

manner which she believed would best protect the victims and the 

community. Crimes involving the sexual abuse of children, especially 

very young children as in this case, are appropriately the subject of 

indignation and revulsion. But every federal sentence is potentially 

subject to review for reasonableness, including sentences for crimes 

which are deeply offensive. Where an appellate court determines that 

certain deficiencies render a sentence substantively unreasonable, a 

district court must correct those deficiencies on remand, even if the 

district court judge disagrees with the appellate court’s determination. 

“Three considerations . . . are useful in deciding whether to reassign 

a case on remand: (1) whether the original judge would reasonably be 

expected upon remand to have substantial difficulty in putting out of 

his or her mind previously-expressed views or findings determined to 

be erroneous, (2) whether reassignment is advisable to preserve the 

appearance of justice, and (3) whether reassignment would entail 

waste and duplication out of proportion to any gain in preserving the 

appearance of fairness.” United States v. DeMott, 513 F.3d 55, 59 (2d 

Cir. 2008) (quotation marks omitted). We have previously determined 

that “[h]aving reimposed an identical sentence after the first remand, 
15-2276-cr 

United States v. Sawyer 

14 

the district judge may reasonably be expected to have substantial 

difficulty ignoring his previous views during a third sentencing 

proceeding.” Id. The same reasoning favors reassignment in this case, 

where the district judge has noted on the record her continuing 

disagreement with this court and has informed us that “it would 

probably be better for judicial economy if another judge sentence for a 

third time.” Resentencing Tr. at 53. 

The sentence imposed on July 7, 2017 is VACATED, and this 

matter is REMANDED for resentencing. The clerk of the United 

States District Court for the Northern District of New York is 

respectfully directed to assign the matter to a different judge for 

resentencing. 
15-2276-cr 

United States v. Sawyer 

15 

DENNIS JACOBS, Circuit Judge, dissenting: 

I respectfully dissent. 

The law of the case is that a 30-year sentence is substantively 

unreasonable. Although Sawyer argues now, after remand, that 25 

years is also substantively unreasonable, the single issue on this 

appeal is the district court’s compliance (or not) with the mandate of 

our summary order. 

In terms, the mandate directed the court to re-sentence after 

reconsideration of Sawyer’s horrible upbringing and his potential 

danger to the community. At resentencing, the district judge concluded 

in effect that Sawyer’s horrible upbringing had so warped his psyche 

that he fails to grasp the difference between sex between adults and 

sex with a child—from which the district judge drew the available 

inference that Sawyer is likely to remain a threat to the community for 

a long long time. The district judge thus registered disagreement with 

our summary order, but nevertheless reduced the sentence by 60 

months to reflect his rehabilitation in prison, a reduction that is 

undoubtedly substantial. 

I would affirm for the following reasons: 
15-2276-cr 

United States v. Sawyer 

16 

1. It is not unheard of for a district judge to disagree with an 

appellate ruling. But it is not necessary that a district judge should 

agree with an appellate ruling, or endorse it. The mandate rule 

“compels compliance on remand with the dictates of the superior 

court,” not endorsement. United States v. Ben Zvi, 242 F.3d 89, 95 (2d 

Cir. 2001). We ordered a substantial sentence reduction; it was 

reduced; it was reduced substantially; and the majority opinion is 

unwilling to find it substantively unreasonable. 

2. The district judge’s decision to reduce the sentence on a stated 

ground other than the ones specified in our mandate was arrived at 

after weighing the two variables we identified—upbringing and 

dangerousness—and after finding that the one intensifies the other. I 

take this to be compliance; it is conscientious and thorough, albeit (in 

my view) wrong. An appellate mandate to resentence forecloses 

reconsideration of the merits of the conviction but does not foreclose a 

de novo balancing of the discretionary factors. See United States v. 

Cavera, 550 F.3d 180, 188, 196 (2d Cir. 2008) (en banc); Gall v. United 

States, 552 U.S. 38, 50 (2007); see also Resentencing Tr. at 11–12. 

Moreover, this sentence reduction for rehabilitation does reflect 

(implicitly) a reduced assessment of danger to the community. Since 

danger to the community drove the 30-year sentence, it makes sense to 
15-2276-cr 

United States v. Sawyer 

17 

reduce it for rehabilitation only if rehabilitation has in some measure 

mitigated that danger. It surely would have made little sense to reduce 

it solely because (as the district judge observed) Sawyer performed 

admirably in his prison coursework. Being prison valedictorian does 

not logically bear on one’s propensity to produce child pornography. 

So I think it clear that the new sentence would have been deemed 

compliant with our mandate if the district judge had spoken other 

words to justify the reduction. I decline to remand (to this judge or 

another one) in order to script other reasons for doing what was in fact 

ordered. This remand is provoked by the judge’s candor and 

transparency rather than by her ruling itself. It all comes down to who 

is charged with making the ultimate sentencing decision. And since no 

one knows what this defendant will be like in a decade or two, it comes 

down to who is assigned the power to err. 

3. In decrying the 25-year sentence, the majority opinion observes 

(fairly) that this case is not the most heinous or egregious on record. At 

the same time, however, this is not a case such as United States v. 

Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 

F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed 

solely for looking at images created by others, and in which any harm 

to a child was inflicted at one or more removes. This defendant was 
15-2276-cr 

United States v. Sawyer 

18 

hands-on.1 He produced the pornography, and he used a 4-year-old and 

a 6-year-old to do it. For these acts, a 25-year sentence is not a 

shocking departure from sentences routinely imposed in federal courts 

for comparable offenses2—especially considering that the mandatory 

minimum is fifteen. The sentence is barbaric without being all that 

unusual. 

That said, I ultimately agree with the majority opinion that 

sentencing in this case would benefit from further review and 

consideration. For one thing, no account has been taken that danger to 

the community is mitigated by lifetime supervised release, and by the 

restraints imposed by sex-offender registration. Although I cannot 

regret this remand to push for a further reduction, the only question on 

 

1 The majority opinion treats the offense with bland understatement. Thus, 

Sawyer is said to have had no sexual contact with any children “beyond the 

touching of the inner thigh.” Op. at 10. And Sawyer’s abuse is characterized 

as “touching [the children] in the process” of taking photographs, Op. at 5, as 

if it were unavoidable. 

2 Sentences of 25 years or more are regularly upheld for defendants involved 

in the production (as opposed to mere possession) of child pornography. See, 

e.g., United States v. Smith, 697 F. App’x 31 (2d Cir. 2017) (summary order) 

(affirming sentence as substantively reasonable and distinguishing activities 

involved in a production offense from Dorvee); United States v. Rafferty, 529 

F. App’x 10, 13 (2d Cir. 2013) (summary order) (upholding 60-year sentence 

for production of child pornography); United States v. Ketcham, 507 F. App’x 

42 (2d Cir. 2013) (same); United States v. Levy, 385 F. App’x 20, (2d Cir. 

2010) (summary order) (upholding 30-year sentence for production of three 

images of one child). 
15-2276-cr 

United States v. Sawyer 

19 

this appeal is whether our mandate was executed. It was doubted, but 

it was done. 

* * * 

The district judge expressly acknowledged that any further remand 

should best go to another judge. And a reassignment lies within our 

discretion. But it bears observing that the district judge approached 

the remand with seriousness and with respect for this Court’s 

directives. She wrestled with the problem, and did all that she could do 

in good conscience. 

The majority opinion does not provide that this case will return to 

this panel after the second remand—which is just as well.