15

‐ 2276

‐ cr

U.S. v. Sawyer



# United States Court of Appeals

**for the Second Circuit**

A UGUST TERM 2017

No. 15

‐ 2276

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

J ESSE S AWYER

, Defendant

‐ Appellant

.

A RGUED : A PRIL 12, 2018

D ECIDED : O CTOBER 26, 2018

Before: JACOBS, POOLER, Circuit Judges

, CRAWFORD, Chief District Judge

. 1

Appeal from an amended judgment of the United States District Court for

the Northern District of New York (D’Agostino, J.) resentencing Appellant Jesse

Sawyer subject to our previous decision finding his original sentence

substantively unreasonable. Sawyer challenges his new sentence on

reasonableness and law

‐ of

‐ the

‐ case grounds. By order of July 30, 2018, we

affirmed the decision. We now explain why we did so.

Affirmed.

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

District of Vermont, sitting by designation.2 Chief District Judge Crawford dissents in a separate opinion.

__________ __________

BRUCE R. BRYAN, Syracuse, N.Y., for Defendant

‐ Appellant

.

STEVEN D. CLYMER, Assistant United States Attorney

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

United States Attorneys, on the brief), for Grant C.

Jaquith, United States Attorney for the Northern District

of New York, New York, N.Y., for Appellee.

D ENNIS J ACOBS

, Circuit Judge :

Jesse Sawyer, having pled guilty to sexual exploitation of children and

receipt of child pornography, was originally sentenced primarily to 30 years in

prison and a lifetime of supervised release. We ruled that that sentence was

shockingly high given Sawyer’s harrowing upbringing and comparatively low

danger to the community, and remanded to the district court for resentencing.

The district court disagreed with our analysis but found that Sawyer’s exemplary

record as an inmate justified a reduction to 25 years. Sawyer returned the matter

to our docket, challenging his new sentence on both reasonableness and law

‐ of

‐

the

‐ case grounds. By order of July 30, 2018, we affirmed Sawyer’s new sentence.

We now explain that we did so because the district court effectively complied

with our instruction to significantly reduce Sawyer’s sentence and because that

sentence is now within the realm of reasonableness.

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 girls, aged 4 and 6. The girls had close

relationships with Sawyer. The photos depicted the children’s genitals. Sawyer3 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 that Sawyer downloaded from the Internet.

Each sexual exploitation charge 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, 2G2.2,

4B1.5.

The presentence report and the defendant’s sentencing memorandum

described Sawyer’s personal history of abuse as a child. By age seven, he was

repeatedly subjected to sexual abuse, including rape, with the approval and even

encouragement of his parents and other family members. By age 10, he was

introduced to drugs and alcohol. He and his siblings were never shielded from

their adult relatives’ sexual promiscuity and frequent drug use; they were, in

fact, encouraged to participate. As well, Sawyer’s father beat him, at one point

with such ferocity that Sawyer lost control of his bowels.

At the original sentencing, the judge described the defendant’s childhood

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

“incredible sadness.” Transcript of Sentencing, July 7, 2015, at 30–31. 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 that4 darkness in your heart and soul that made you prey upon two innocent

children.” Id. at 35.

The original sentence was primarily 30 years imprisonment

‐‐ 15 years on

each sexual exploitation of children count, to run consecutively, and five years on

the receipt of child pornography count, to run concurrently

‐‐ and supervised

release for the rest of his life thereafter. He appealed that sentence to us in 2016,

contending that it 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 65–67

. It was

insufficiently 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 such future risk. 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 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.” Sawyer, 672 F. App’x at 67 (internal quotation marks omitted)

. “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.”

Id. We concluded that the defendant’s own extraordinary history of childhood

abuse and the expert testimony that the unresolved and untreated trauma

therefrom contributed to the commission of the offense would justify “not just a

departure from the Guidelines, but a significant one indeed.” Id. We vacated the

sentence and remanded to the district court using the procedure described in

United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994).5 At the July 7, 2017 resentencing hearing, the district judge expressed in

detail her disagreement with our decision: “surely

. . . anyone reviewing the

sentence would conclude, as I did, that it was substantively reasonable.” App’x

at 235. She had not thought she “was doing anything that could be considered

shockingly high.” Id. at 237. In particular, she noted that nothing in our decision

convinced her to revisit her conclusions regarding the relevance of Sawyer’s

childhood or his likely danger to the community. In sum, she remained of the

view that “that sentence was an appropriate one and is sufficient but not greater

than necessary to meet the goals of sentencing.” Id. at 264. All that said, the

judge nevertheless reduced Sawyer’s sentence by five years to account for his

“extraordinary post

‐ sentencing rehabilitative efforts.” Id.

Sawyer returned this case to our docket by a letter of July 14, 2017.

DISCUSSION

Sawyer’s primary challenge to his new sentence is that it fails to comply

with our previous mandate. We disagree.

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

district courts to comply with our holdings regarding that case. 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. Id. 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. Id.

Our previous review of Sawyer’s sentence ruled that a 30

‐ year term of

imprisonment was “shockingly high,” see United States v. Broxmeyer, 699 F.3d

265, 289 (2d Cir. 2012), in light of Sawyer’s circumstances, and thus substantively

unreasonable. The law of this case is thus that a 30

‐ year term of imprisonment is

substantively unreasonable, and the mandate required a substantial reduction.

The sentencing judge reduced Sawyer’s prescribed term of imprisonment by five

years

‐‐ one

‐ sixth

‐‐ which is undoubtedly substantial.6 At the resentencing hearing, the district court expressly rejected our

reasoning, which was odd and regrettable. But our mandate did not bar her

from doing so. The scope of our mandate must be understood in terms of the

scope of our authority to review a district court’s decisions. In reviewing

sentences for substantive reasonableness, we are “particularly deferential.”

United States v. Thavaraja, 740 F.3d 253, 259 (2d Cir. 2014) (internal quotation

marks omitted). We only “patrol the boundaries of reasonableness,” United

States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008), taking care not to “substitut[e]

our own judgment for that of district courts” by undertaking our own

rebalancing of sentencing factors, Broxmeyer, 699 F.3d at 289. Our mandate did

not require the district judge to weigh the sentencing factors in the way we

would have done, so long as she brought the sentence within the (elastic) bounds

of reasonableness.

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 endorse our decisions. The

mandate rule only “compels compliance.” United States v. Ben Zvi, 242 F.3d 89,

95 (2d Cir. 2001) (internal quotation marks omitted). The district judge in this

matter may have complied under protest, but she complied nevertheless. It was

doubted, but it was done.

On this second appeal, Sawyer continues to protest the reasonableness of

his sentence, but we cannot bring ourselves to call it shocking under governing

law. He faced a mandatory minimum of fifteen years. Regrettably, twenty

‐ five

years is no great departure from sentences routinely imposed in federal courts

for comparable offenses. See, e.g., United States v. Smith, 697 F. App’x 31, 31–32

(2d Cir. 2017) (summary order); United States v. Rafferty, 529 F. App’x 10, 12–14

(2d Cir. 2013) (summary order); United States v. Ketcham, 507 F. App’x 42, 43–45

(2d Cir. 2013) (summary order); United States v. Levy, 385 F. App’x 20, 21, 24–25

(2d Cir. 2010) (summary order). “In 2010

‐‐ the most recent year for which data is

available

‐‐ the average sentence for production of child pornography was 267.1

months, or approximately 22 years.” United States v. Brown, 843 F.3d 74, 92 (2d7 Cir. 2016) (Pooler, J., dissenting). The sentence is barbaric without being all that

unusual. 2

CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED

.

2 Sawyer does not challenge his permanent supervised release, so we do not

opine on it.1 CRAWFORD, Chief District Judge, dissenting:

I agree in every respect with the majority’s description of the facts in the

case and the reasoning that led the panel to declare the original 30

‐ year sentence

to be substantively unreasonable. The majority accurately identifies the

deficiencies in the original sentence which led to reversal. These were

insufficient justification for such a long sentence by concerns of public protection

and the sentencing court’s failure to give appropriate weight to the defendant’s

history and characteristics. These are among the factors commonly considered

by sentencing courts in reaching sentencing decisions under 18 U.S.C. § 3553.

The panel ruled that the district court failed to give sufficient weight to these

factors. The case was remanded for resentencing in a manner consistent with our

decision.

On resentencing, the district court declined to give any additional weight

to either of the factors we identified. The majority accurately describes the

district court’s rejection of the appeals court ruling. I intend no criticism of the

trial judge. She was candid about the reasons for her decision and recommended

that the case be referred to another judge if we were to conclude that she erred in

rejecting our first ruling. That was an appropriate course of action, and we can

ask no more of a judge who cannot in good conscience follow an appellate

ruling.

What we cannot do—and where I part company with the majority—is to

fail to enforce our original ruling. Had the district court resentenced the

defendant to the same 30

‐ year sentence, I have no doubt that the other panel

members would have joined me in reversing and referring the case to another

district judge for a second resentencing. It is not necessary to agree with an

appellate ruling, but under any system of the rule of law it is necessary to follow

it.

On resentencing in this case, the district court merely changed the subject.

After rejecting our decision, the court found another, previously unavailable

reason to impose a reduced sentence. In the district court’s view, the defendant’s

two years of model conduct within the prison system after his original

sentencing justified a five

‐ year reduction of sentence. This new factor led the

court to impose a 25

‐ year sentence in place of the original 30 years.2 The majority is prepared to accept the new sentence as reasonable in

length and, in effect, call it a day. I am not. The new sentence still fails to take

into proper consideration the two § 3553(a) factors we singled out as the basis for

reversal. That the defendant has since demonstrated other reasons for a reduced

sentence is an entirely separate development that fails to justify the district

court’s refusal to follow the original mandate. At this time, we still do not know

how a district court which followed the mandate—by giving significant

downward weight to the two § 3553(a) factors we identified—would sentence

this defendant. What all three members of this panel unanimously identified as

significant substantive errors in the original sentencing decision remain

uncorrected. These errors continue to form the primary basis for the new

sentence.

The issue that separates us is not trivial or confined to the facts of this case.

It goes directly to our authority to supervise the sentencing process. In the years

between adoption of the federal sentencing guidelines in 1987 and the decision of

the Supreme Court in United States v. Booker

, 543 U.S. 220 (2005), review for

substantive unreasonability was available principally for considering the scope

and extent of a departure from the guidelines. Id. at 261. With the arrival of the

current regime of advisory guidelines, the Supreme Court expanded the reach of

substantive unreasonability review to cover all sentences. Id. at 260.

As Booker and subsequent cases make clear, substantive unreasonability is

the vehicle through which we review the district court’s performance in

addressing and weighing the sentencing factors identified in 18 U.S.C. § 3553(a).

The district court must identify the relevant factors and weigh and balance them

appropriately. The judge “must adequately explain the chosen sentence to allow

for meaningful appellate review and to promote the perception of fair

sentencing.” Gall v. United States

, 552 U.S 38, 50 (2007). In reviewing this

decision, the appeals court applies an abuse of discretion standard.

The process of review is carefully described in United States v. Cavera,

550 F.3d 180 (2d Cir. 2008). It has two parts. We look first at the reasons given by

the district court to explain its decision. Giving reasons is mandatory. “Most

obviously, the requirement helps to ensure that district courts actually consider3 the statutory factors and reach reasoned decisions.” Id

. at 193. Requiring a

statement of the courts’ reasoning encourages public confidence in federal courts

and the fair administration of justice. Id. ; Rita v. United States

, 551 U.S. 338, 356

(2007) (“Confidence in a judge’s use of reason underlies the public’s trust in the

judicial institution.”). Moreover, in the absence of reasons, appellate review of

the basis of the decision is severely hampered. “We cannot uphold a

discretionary decision unless we have confidence that the district court exercised

its discretion and did so on the basis of reasons that survive our limited review.

Without a sufficient explanation of how the court below reached the result it did,

appellate review of the reasonableness of that judgment may well be

impossible.” Cavera, 550 F.3d at 193.

We then consider whether the § 3553(a) factors, on the whole, justify the

sentence. After Booker

, it is a constitutional necessity that the sentencing court

make its own determination, informed but not constrained by the sentencing

guidelines, about the appropriate length of the sentence. Under an abuse of

discretion standard, we defer to the district court and affirm all sentences except

those falling outside of the “broad range” warranted by the totality of the

circumstances. United States v. Jones

, 531 F.3d 163, 174 (2d Cir. 2008). We may

not substitute our preferred sentence for the district court’s. “The fact that the

appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Gall

, 552 U.S.

at 51. Deference to the district court makes reversal on grounds of substantive

unreasonability relatively rare, but it does not eliminate meaningful review of

the reasons for a sentence.

Applying these general statements to the facts in this case reveals that the

sentencing process went awry following the first appeal. At the first sentencing,

the district court identified three § 3553(a) factors which guided the sentencing

decision: the defendant’s history of extreme childhood abuse, the future danger

he posed to children, and the serious harm which results from downloading

images of child pornography. In the district court’s view, these factors

supported a sentence of 30 years. In particular, the district court gave minimal

weight to the defendant’s lengthy history of childhood abuse. The district court

concluded, “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 two4 innocent children.” Joint Appendix (“J.A.”) 167. The court imposed a 30

‐ year

sentence, which represented a variance down from the 80

‐ year guideline range. 1

We disagreed with the weight the district court assigned to the defendant’s

personal history and his future dangerousness. We followed Cavera in

“consider[ing] whether the [§ 3553(a) factors], as explained by the district court,

can bear the weight assigned [them] under the totality of circumstances in the

case.” United States v. Sawyer

, 672 F. App’x 63, 65 (2d Cir. 2016) (quoting Cavera

,

550 F.3d at 191). Applying an abuse

‐ of

‐ discretion standard, we determined that

the § 3553(a) factors the district court addressed did not “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.” Id. at 65–66.

Our original ruling set no parameters on the length of the second sentence.

It did not propose an alternative sentence. It did not presume to instruct the

district court as to the relative significance of the § 3553(a) factors. It required

only that the district court reconsider its overreliance on future danger to the

community and the insufficient weight given to the defendant’s history and

personal characteristics. In the panel’s view, these factors should have resulted

in significant down weight in the sentencing decision. In remanding the case for

resentencing, we identified these issues explicitly: “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.” Sawyer

, 672 F. App’x at 67.

On resentencing, the district court declined to follow this clear mandate.

The district court addressed both factors and found no reason to change its mind.

In addressing the defendant’s history as a victim of abuse, the court 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

1 The guideline range in this case would have been a life sentence except

that the maximum statutory penalty was 80 years. The defendant’s total offense

level was 43. Although he had zero criminal history points, the sentencing table

provides for a life sentence for all offense level 43 cases.5 years from the [80 year] guideline range, I still can’t say in good conscience that

my sentence at that time was substantively unreasonable.” J.A. 258.

Turning to the question of danger to the community, the district court

stated, “I felt that there was a lot of evidence in the record, and I still feel that

way, to convince me that you continue to be a danger to the community.” J.A.

258. The court noted that there were two victims and that the defendant had fled

to Florida following discovery of the crime. The court also referred to his arrest

at ages 19 and 23 for misdemeanor charges of endangering the welfare of a

child. 2 The court pointed to the report of the defense psychologist, who

described the defendant’s risk of re

‐ offense as moderate to high and further

described him as being aroused by young children and failing to respect the

boundaries which protect children from sexual abuse. In sum, the judge

announced that she had not changed her views since the original sentencing:

Although 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.

J.A. 264.

This case poses a fundamental question of court governance. Following an

appellate court’s determination that a sentence is substantively unreasonable

because it fails to give weight to specific § 3553(a) factors, is the district court free

on remand to take a second look and decline to change its original position? The

only answer consistent with the mandate rule is that the decision of the panel

2 As the district court stated, no details were available concerning these

misdemeanor charges which did not result in convictions. In both cases, the

defendant was also charged with disorderly conduct. He contends that the

endangerment charges concerned underage drinking by one or more of his

teenage companions. This is a plausible explanation in light of the related

disorderly conduct charges, but not one that can be verified. What is clear is that

there is no indication that these misdemeanors were sexual in nature or involved

small children.6 must be followed. Briggs v. Pennsylvania R. Co.

, 334 U.S. 304, 306 (1948) (“In its

earliest days this Court consistently held that an inferior court has no power or

authority to deviate from the mandate issued by an appellate court. The rule of

these cases has been uniformly followed in later days

. . . .” (citations omitted));

In re Ivan F. Boesky Sec. Lit.

, 957 F.2d 65, 69 (2d Cir. 1992). How much to change

the sentence based on the factors identified in the mandate lies within the

sentencing discretion accorded to the district courts. But that discretion does not

extend to the outright rejection of the mandate which occurred in this case.

The remaining question is whether finding some other basis for a reduced

sentence prevents a second reversal. Such a rule would tend to reduce the role of

the appellate court to passing on the length of the sentence only. That limitation

is inconsistent with Booker

, Gall

, and Cavera

, which identify the role of the appeals

court in reviewing the reasons for the sentence, especially those derived from

§ 3553(a), and determining whether these reasons, considered as a whole,

support the sentence. Cf. Gall

, 552 U.S. at 47 (rejecting a “rigid mathematical

formula” for reasonableness that compared the length of the sentence to the

Guidelines because the relative weight of factors cannot be quantified as a

percentage of the term). In this regard, the majority’s determination that a one

‐

sixth reduction of the original sentence is sufficient to render the sentence

reasonable is unpersuasive. The consideration of qualitative reasons for the

sentence

– not the specific term of years

– lies at the heart of the process of review

of sentencing decisions for substantive unreasonability.

This panel’s prior mandate was that the two primary factors that the

district court relied upon in fashioning the original sentence did not receive the

proper weight. That error placed the sentence beyond the broad scope of

discretion accorded to district courts. On remand, the district court declined to

follow this decision by according some weight to these factors. The district

court’s actions mean that these factors still have not received consideration in a

manner consistent with the mandate. The district court enjoys wide discretion in

deciding how much weight to assign to the two factors. It would thus be

difficult to quarrel with a decision following remand that the factors changed the

sentence only a little. But the fact that our ruling did not alter the manner in

which the district court viewed these factors at all is a glaring indication that its

consideration of them remains unchanged and out of balance.7 At the risk of repetition, I return to the directive in Cavera to examine the

reasons given by the district court for a sentence. The critical issue is not whether

the term of years is too long or too short. It is whether the reasons given by the

sentencing judge can reasonably support the sentence. Here, we have already

considered the principal reasons offered at both sentencings and found them to

be insufficient to support the original sentence. That sentence has been re

‐ imposed—reduced only by an unrelated factor not previously available. By

failing to enforce its original mandate, the majority denies the defendant a

sentence that fairly addresses the reasons which we previously identified as

critical to a just sentence.

For these reasons, I respectfully dissent.