19-3381-cr United States v. Jenkins

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of November, two thousand twenty. PRESENT: AMALYA L. KEARSE, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 19-3381 JOSEPH JENKINS, AKA SEALED DEFENDANT, Defendant-Appellant. _____________________________________

FOR APPELLEE: Carina H. Schoenberger, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY.

FOR DEFENDANT-APPELLANT: Melissa A. Tuohey, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, NY.

Joseph Jenkins, pro se Supplemental Brief, White Deer, PA. On appeal from a final judgment of the United States District Court for the Northern

District of New York (Thomas J. McAvoy, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Joseph Jenkins appeals from a second amended judgment of

conviction entered on October 8, 2019, by the district court. In 2014, a jury found Jenkins guilty

of possessing and transporting child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and

18 U.S.C. § 2252A(a)(1). On remand from this Court following two prior sentencings before a

different judge, 1 the district court resentenced Jenkins to 144 months of imprisonment and 15

years of supervised release. We assume the parties’ familiarity with the record.

Jenkins challenges his sentence as substantively unreasonable. He contends that the district

court placed undue weight on his failure to accept responsibility, obstruction of justice, and risk of

reoffending. He also objects to special conditions of supervised release restricting his access to

minors and requiring him to notify future employers of his conviction. For the reasons stated

below, we affirm the judgment of the district court.

I. Substantive Reasonableness

“District judges are given considerable discretion in fashioning the proper sentence for

criminal defendants.” United States v. Brooks,

(2d Cir. 2018). “A sentence is

substantively unreasonable only if it cannot be located within the range of permissible decisions.”

United States v. Betts,

(2d Cir. 2018) (internal quotation marks omitted). While

we “may consider whether a factor relied on by a sentencing court can bear the weight assigned to

1 See United States v. Jenkins, 768 Fed. App’x 36 (2d Cir. 2019); United States v. Jenkins,

(2d Cir. 2017).

2 it[,] . . . we do not consider what weight we would ourselves have given a particular factor.” United

States v. Cavera,

(2d Cir. 2008) (en banc).

We affirm the district court’s imposition of the 144-month prison sentence and the 15 years

of supervised release as substantively reasonable in light of Jenkins’s failure to accept

responsibility, repeated attempts to obstruct justice, and callous disregard for child victims. While

Jenkins’s Guidelines range was 210 to 262 months, the district court determined that a downward

variance to 144 months of imprisonment was sufficient but not greater than necessary to comply

with the purposes of sentencing. In reaching that conclusion, the district court carefully weighed

the need to reflect the seriousness of Jenkins’s offense, promote respect for the law, provide

adequate deterrence, and protect the public. See

(a). The district court

appropriately distinguished Jenkins from run-of-the-mill child pornography defendants based on

his persistent denial of wrongdoing, perjury at trial, and “relentless attempts to avoid any

culpability during court proceedings and to blame others, including the child victims.” Joint

Appendix (“J.A.”) 346. These factors informed the district court’s conclusion, “[b]ased on the

totality of the circumstances,” that Jenkins’s “risk of recidivating is higher than most child

pornography offenders.” J.A. 346. We discern no abuse of discretion in the district court’s

imposition of this below-Guidelines sentence, which was well “within the range of permissible

decisions.” Betts,

.

The prison sentence was also procedurally reasonable. Citing United States v. Dorvee,

(2d Cir. 2010), Jenkins challenges the district court’s application of various

Guidelines enhancements for his non-production child pornography offenses. As Jenkins admits,

however, the district court resentenced him far below the Guidelines range. While Jenkins argues

that the district court should have gone still lower to the statutory minimum five-year term, as

3 noted above, the 144-month term was reasonable. Moreover, the district court’s explanation for

its sentence was sufficient to facilitate appellate review. Having explained why its 144-month

sentence was justified, the district court was not obliged to further explain why it did not impose

Jenkins’s preferred five-year sentence—or indeed any other sentence. We have “never required a

district court to explain in open court why any particular unselected sentence would be

inappropriate.” United States v. Rosa,

(2d Cir. 2020). As explained above, the

district court clearly articulated the reasons for the sentence it selected, based on Jenkins’s

perjury at trial and alarming denial of responsibility—factors that set Jenkins apart from run-of-

the-mill cases.

Equally unavailing is Jenkins’s contention that the district court should have reviewed the

latest social science critiquing earlier findings that sex offenders pose a high risk of recidivism.

The studies Jenkins cites are not specific to child pornography defendants, involve follow-up

periods of five years or less, and necessarily do not account for unreported crimes. Even if such

studies accurately captured recidivism rates for child pornography defendants generally, it was

well within the district court’s discretion to conclude that Jenkins was more likely to recidivate

than the average non-production offender, given his adamant denial of responsibility and

obstruction of justice.

We similarly affirm Jenkins’s supervised release term. In explaining the need for a fifteen-

year period of post-release supervision, the district court properly focused on the risk Jenkins

would reoffend. See

(c). A “lengthy period of supervision” was necessary because

Jenkins “refused to accept any responsibility for his actions” and “attempted to obstruct

proceedings,” suggesting that “he thinks he did nothing wrong” and is therefore “more likely to

continue his illegal conduct upon ending his present term.” J.A. 348. Further, notwithstanding the

4 “abundant evidence” of Jenkins’s sexual interest in children, his “refusal to acknowledge the

criminal consequences of expressing that interest by viewing and collecting child pornography”

evinced “a desire to commit crimes without consequences,” requiring “closer surveillance” and

“tighter restrictions” to protect the public. J.A. 349. The district court’s predictive assessment—

which is a factual finding—that Jenkins is likely to recidivate if left unsupervised is not clearly

erroneous. See Cavera,

(explaining that a district court errs when it relies on a

“clearly erroneous finding of fact”). Rather, “giving due deference to the sentencing judge’s

exercise of discretion, and bearing in mind the institutional advantages of district courts,” we

conclude that “the totality of the circumstances” amply supports the district court’s imposition of

an extended term of supervision.

.

II. Special Conditions of Supervised Release

“Implicit in the very nature of supervised release is that certain conditions are necessary

to effect its purpose.” United States v. Truscello,

(2d Cir. 1999). “A sentencing

court may impose special conditions of supervised release that are reasonably related to certain

statutory factors governing sentencing,” including “the need to protect the public from further

crimes of the defendant.” United States v. Gill,

(2d Cir. 2008) (internal

quotation marks omitted). “A district court retains wide latitude in imposing conditions of

supervised release, and we therefore review a decision to impose a condition for abuse of

discretion.” United States v. MacMillen,

(2d Cir. 2008).

Here, the district court acted within its discretion in imposing tailored restrictions on

Jenkins’s access to minors. The court made an individualized judgment not to allow Jenkins

unsupervised access to children without preapproval from his probation officer based on his

“large child pornography collection, . . . relentless attempts to avoid culpability and to blame

5 others, . . . [and] demonstrated interest in adults having sex with young children.” J.A. 351-52.

For the same reason, the district court imposed a special condition barring Jenkins from visiting

“any place . . . children under the age of 18 are likely to be, including parks, schools,

playgrounds and childcare facilities” without preapproval. J.A. 351. Both conditions are

commonsensical and minimally restrictive, allowing for incidental contact with children in

public places Jenkins might visit for appropriate purposes, and for direct contact after receiving

probationary approval. These conditions, substantially equivalent to others we have previously

approved, permit Jenkins to live relatively normally while steering him away from contexts in

which he might be tempted to commit a contact offense. See, e.g., MacMillen,

;

United States v. Dupes,

(2d Cir. 2008).

The district court was also justified in requiring Jenkins to notify any future employers of

his conviction if his work involves the use of a computer. As the district court explained, this

special condition limits Jenkins’s access to unmonitored work computers, “thereby minimizing

any inappropriate computer use.” J.A. 358-59. The court based this condition on the case-

specific circumstance that Jenkins intermingled his business records and child pornography

collection on the computer he used to commit his first offense, and then attempted to “blame his

employees by falsely claiming that they had access to his computers.” J.A. 358.

Jenkins contends that this condition is overbroad, rendering him unemployable because

he may be required to notify customers who hire him as an independent contractor. But Jenkins

takes the condition out of context. A separate condition, which Jenkins does not challenge,

requires computer monitoring and periodic searches of his personal computers and other internet-

capable devices. The district court’s explanation of the challenged condition makes clear that it

does not apply where Jenkins, as an independent contractor, uses his own computers for work

6 purposes. Rather, “employers are to be notified of [Jenkins’s] conviction when, because of the

nature of employment, there is a possibility that [he] will have access to a [work] computer, and

thus be presented with the opportunity to obtain computerized images of child pornography.”

MacMillen,

. We reject Jenkins’s contention that this special condition is

overbroad or otherwise an abuse of discretion.

* * *

We have considered Jenkins’s remaining arguments, including those advanced in his pro

se supplemental brief, and find them to be without merit. Accordingly, we AFFIRM the judgment

of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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