Argued: May 18, 2016
from the United States District Court for the Northern
District of New York. No. 11-cr-602 Glenn T. Suddaby, Chief
Joseph Vincent Jenkins appeals from a judgment of conviction
in the United States District Court for the Northern District
of New York (Suddaby, Chief Judge). Jenkins was
convicted of possession and transportation of child
pornography after he was found with a collection of child
pornography on his laptop and thumb drive as he crossed the
U.S.-Canada border on his way to a family vacation. The
district court sentenced him principally to 225 months in
prison followed by 25 years of supervised release. We
conclude that this sentence was substantively unreasonable.
Accordingly, we vacate this sentence and remand for
DeMaria, Merchant Law Group LLP, New York, NY, for
S. Dosanjh (Tamara Thomson, on the brief), Assistant United
States Attorneys, for Richard S. Hartunian, United States
Attorney, Northern District of New York, Syracuse, NY, for
Before: Kearse, Jacobs, and Parker, Circuit Judges.
Barrington D. Parker, Circuit Judge
found Joseph Vincent Jenkins guilty of one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and one count of transportation of
child pornography in violation of 18 U.S.C. §
2252A(a)(1), based on the government's proof at trial
that Jenkins owned a collection of child pornography and
brought it across the U.S.-Canada border on the way to a
family vacation for his personal viewing.
United States District Court for the Northern District of New
York (Glenn T. Suddaby, Chief Judge) imposed
concurrent sentences of 120 months for the possession count,
the statutory maximum, and 225 months for the transportation
count, just below the statutory maximum of 240 months. The
court also imposed a term of 25 years of supervised release.
Jenkins challenges his conviction and the procedural and
substantive reasonableness of his sentence.
government's evidence established that Jenkins, a first
time felony offender, maintained a collection of child
pornography on a personal computer and thumb drive for
personal use. He did not produce or distribute child
pornography and did not contact or attempt to contact a
minor. He "transported" his images in the technical
sense that he brought them on a family vacation that involved
his crossing the Canadian border and he was apprehended at
the Canadian side. For the reasons that follow, we hold that
a sentence of 225 months and 25 years of supervised release
is substantively unreasonable. Accordingly, we vacate the
sentence and remand for resentencing.
24, 2009, Jenkins attempted to enter Canada from the United
States at the border crossing in Landsdowne, Ontario.
Jenkins, who was 39 years old at the time, was traveling
alone from his home in Geneva, New York to spend a week with
his parents at their summer home in Quebec. Canadian border
agents searched his vehicle and discovered a Toshiba laptop,
a Compaq laptop, and three USB thumb drives.
"demeanor" prompted the agents to search the
devices. After finding child pornography on the Toshiba
laptop and on one of the thumb drives, the agents seized all
the devices and arrested and subsequently charged him with
child pornography offenses under the Canadian Criminal Code.
being released on bail, Jenkins did not appear on his
scheduled trial date and the Canadian court issued a bench
warrant for his arrest. Canadian agents subsequently
contacted the U.S. Department of Homeland Security
("DHS"), inquiring whether DHS was interested in
information about the case. DHS then commenced an
investigation, obtained Jenkins's electronic devices from
Canadian authorities, and proceeded to examine them. This
examination confirmed that the devices contained images and
videos depicting child pornography. Jenkins was subsequently
arrested by U.S. law enforcement officials and charged with
possessing and transporting child pornography. The case
proceeded to trial, where the government introduced the
devices and the images into evidence, and presented both
Canadian and DHS officials as witnesses.
testified at trial, making a number of contentions that
turned out to be false. First, he contended that contractors
working for his electrical contracting business had frequent
access to all areas on his laptops and could take his laptops
home. Jenkins denied that the thumb drives were in his truck
and asserted that he had never seen them before. Finally, he
claimed that he was absent from the Canadian trial because
his lawyer there had suggested to him that "you could
just not return to Canada if you want to just not deal with
the charge." App. 631. The jury ultimately credited the
government's version of events and returned a guilty
verdict on both counts on February 6, 2014.
Probation Office issued its Presentence Investigation Report
("PSR") in April 2014. Applying United States
Sentencing Guideline § 2G2.2 for child pornography
offenses, the PSR calculated Jenkins' base offense level
as 22. § 2G2.2(a)(2). The PSR recommended four
enhancements: (i) two levels for possessing material
involving a prepubescent minor, id. §
2G2.2(b)(2); (ii) four levels for material portraying
sadistic or masochistic conduct or other forms of violence,
§ 2G2.2(b)(4); (iii) two levels because the offenses
involved the use of a computer, id. §
2G2.2(b)(6); and (iv) five levels because the offenses
involved 600 or more images, id. §
2G2.2(b)(7)(D). These enhancements raised Jenkins offense
level from 22 to 35. Jenkins received no offense level
reductions for acceptance of responsibility. Because Jenkins
only had a prior misdemeanor offense, he was found to have a
Criminal History Category of I. In addition, at the
sentencing hearing, the government sought a two-level
enhancement for obstruction of justice contending that
Jenkins had offered false exculpatory testimony at trial.
See id. § 3C1.1. The district court agreed and
applied the enhancement. It also adopted the factual findings
and Guidelines recommendations from the PSR. The result was a
total offense level of 37, yielding a Guidelines range of 210
to 262 months.
sentencing hearing was a stormy one at which Jenkins, an
intemperate, out-of-control pro se litigant, repeatedly
clashed with the court. For example, the following colloquy
transpired after Jenkins conceded that it was too late for
him to retain new counsel, and the court informed Jenkins
that the sentencing hearing would nevertheless proceed:
Well, I mean, I've pretty much demanded that -- I
don't feel you have any right to sentence me after all
these antics and there's a lot of screwing around here
and I don't agree with it and I've repeatedly asked
Ms. Peebles [Jenkins's attorney] here to file a petition
to have you removed and I think that there's grounds for
it. I've been going over submissions the last few weeks
and court transcripts. I mean, that's what I want.
I'd rather -- I mean, you've set a record that -- I
mean, she hasn't done what I've asked her to do.
We've been going around for a few months arguing.
No attorney's done what you've asked them to do,
according to you, despite being represented by a number of
different counselors. You started with Mr. Parry. You
referred to him as an idiot and not knowing what he was
doing. The Court sent numerous attorneys to meet with you in
the jail so you could retain someone. You made derogatory
comments about the people that were very well-regarded in
this community, legal community, as far as representing
federal defendants. Then we provided you with a list of CJA
attorneys that are admitted to the Northern District of New
York to give you an opportunity to retain somebody. You did
retain an Aaron Goldsmith out of New York who represented you
at trial and then he requested to be relieved because of his
irreconcilable differences with you and not being able to get
along with you. And then, you know, the federal public
defender's office was assigned by Judge Peebles and has
represented you, in this Court's view, in a very capable
and competent manner and here we are again.
So, sir, you can demand all you want. You can criticize. You
can blame everybody else. You can say it's the
attorney's fault. But we're at a point, sir, where
we're going to proceed with sentencing. You have counsel.
You've been represented well and you've had an
opportunity to submit everything that you've wanted to to
this Court and I've reviewed everything that you
submitted, despite its derogatory tone and comments,
disrespectful comments to this Court and everybody else that
you've had to deal with, sir.
So, you'll be given a full opportunity to say anything
you want. If you're not going to retain somebody,
certainly this Court is not going to appoint another attorney
to represent you at this point.
So you can proceed by representing yourself today. That's
up to you, sir, but we're going to proceed with
district court imposed a sentence of 225 months for the
transportation charge and a concurrent sentence of 120 months
for the possession charge, the statutory maximum.
See 18 U.S.C. §§ 2252A(b)(1) and (2).
Judge Suddaby also imposed on Jenkins 25 years of extensive
conditions of supervised release. Some of them were obviously
appropriate but others were unexplained by the sentencing
judge and were imposed without regard to the personal
characteristics of the defendant and the circumstances of his
offense. In view of Jenkins's ...