In Jenkins (attached), the Second Circuit reversed as substantively unreasonable a within-guideline sentence of 225 months (plus 25 years of supervised release) in a child pornography case in which the defendant was convicted of possession and transportation, and the stat max was 240 months.  Relying on Dorvee, along with the Commission’s later 2012 child pornography report and recent statistics, the panel majority held that a sentence within the guideline range under § 2G2.2—derived from “all-but-inherent” and “outdated” enhancements—unreasonably treated Jenkins as “the worst of the worst.”  As the panel put it:  “Since the Commission has effectively disavowed § 2G2.2, it should be clearer to a district court than when we decided Dorvee that this Guideline ‘can easily generate unreasonable results.’”  It concluded that, by imposing a within-guideline sentence on Jenkins, a first-time offender who had no contact with children or engaged in any actual aggravating offense-related conduct, the district judge “went far overboard.”

Jenkins was also convicted of transportation, but he was only traveling with the material for his personal use during a vacation, not for distribution to others.  Looking to statistics in the Commission’s 2012 report, the panel recognized that Jenkins was less culpable than most transportation offenders, yet got a sentence near the stat max.  Citing the parsimony clause, the court stated that “[d]istrict courts should generally reserve sentences near the statutory maximum for the worst offenders.”

Jenkins is notable as a strong reaffirmance of Dorvee, but is remarkable for a number of other reasons as well, including:

  • It relies on the Commission’s available statistics in a number of useful ways (and not just as described above), including by looking to additional statistics buried in the 2012 child pornography report that break down sentences for possession-only offenders (not convicted of receipt and no distribution enhancement).  See CP Report at 215 fig. 8.3.
  • The panel disapproved of the district court’s reliance on the fact or perception that Jenkins was “intemperate,” “rude[],” “out-of-control,” and disrespected the court and the law.  Jenkins had already lost acceptance.  The panel was “unwilling to sanction dramatically increasing a sentence because an angry out-of-control pro se defendant facing decades in prison fails to manifest sufficient respect for the system that is about to incarcerate him.”  Elsewhere, the panel emphasized that Jenkins is also a first-time offender who never touched a child.
  • The panel pointed out that the term of imprisonment and the term of supervised release together “effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life,” and estimated his life expectancy including how it would be shortened by incarceration.  See footnote 2.
  • Regarding the 25-year term of supervised release (which it also reversed as unreasonable), the court said that with the many onerous conditions, Jenkins “will never be able to pay his debt to society,” “develop or maintain meaningful relationships to others,” “obtain employment,” or “ever lead anything that remotely resembles a ‘normal’ life.”  The court found “particularly depressing” the fact that the U.S. Attorney and probation officer at sentencing “either believed [these conditions] were appropriate or did not believe they were appropriate,” but said nothing when they were imposed.

US v Jenkins


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