United States v. Jenkins, 041717 FED2, 14-4295-cr

Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
Attorney:Daniel DeMaria, Merchant Law Group LLP, New York, NY, for Defendant-Appellant. Rajit 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 Appellee.
Judge Panel:Before: Kearse, Jacobs, and Parker, Circuit Judges. KEARSE, Circuit Judge, dissenting in part:
Opinion Judge:Barrington D. Parker, Circuit Judge
Party Name:United States of America, Appellee, v. Joseph Vincent Jenkins, Defendant-Appellant.
Case Date:April 17, 2017
Docket Nº:14-4295-cr
 
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United States of America, Appellee,

v.

Joseph Vincent Jenkins, Defendant-Appellant.

No. 14-4295-cr

United States Court of Appeals, Second Circuit

April 17, 2017

          Argued: May 18, 2016

         Appeal from the United States District Court for the Northern District of New York. No. 11-cr-602 Glenn T. Suddaby, Chief Judge.

         Defendant-appellant 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 resentencing.1

          Daniel DeMaria, Merchant Law Group LLP, New York, NY, for Defendant-Appellant.

          Rajit 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 Appellee.

          Before: Kearse, Jacobs, and Parker, Circuit Judges.

          Barrington D. Parker, Circuit Judge

         A jury 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.

         The 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.

         The 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.

         BACKGROUND

         On May 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.

         Jenkins's "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.

         After 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.

         Jenkins 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.

         The 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.

         The 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: THE DEFENDANT:

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.

...

THE COURT:

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...

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