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Second Circuit finds child porn sentence excessive

Ontario County man tried to bring porn ‘collection’ on vacation in Canada

The U.S. Court of Appeals for the Second Circuit has ordered a former Ontario County man convicted of child pornography charges to be resentenced even though the original sentence was within federal guidelines.

Joseph Vincent Jenkins, of Geneva, was 39 when he was convicted in February 2014 of possession and transportation of child pornography. He had a collection of child pornography on his laptop and thumb drive when he tried to cross the border into Canada on his way to a family vacation in May 2009.

Glenn T. Suddaby, chief judge in U.S. District Court for the Northern District of New York, sentenced Jenkins to 19 years, nine months in prison, followed by 25 years of supervised release with extreme conditions.

“We conclude that this sentence was substantively unreasonable,” according to the decision released Monday.

Warrants revision

The appellate panel judges included: Amalya L. Kearse, Dennis Jacobs and Barrington D. Parker, who wrote the decision. Kearse wrote a two-page dissent emphasizing that the prison portion of the sentence imposed by Suddaby was within the guidelines.

Jenkins was represented in the appeal by Daniel DeMaria, an attorney with the Merchant Law Group LLP in New York City. The U.S. Attorney’s Office in Syracuse was represented by AUSAs Rajit S. Dosanjh, and Tamara Thomson, on the brief.

The Second Circuit relied heavily on statistics and findings from the United States Sentencing Commissions 2012 report, and the People v. Dorvee decision, a 2010 Second Circuit case holding that a within-guidelines sentence was nonetheless unreasonable.

In the report, the Commission wrote that sentencing guidelines for defendants not accused of producing child pornography “warrants revision in view of its outdated and disproportionate enhancements.”

“This is the first case in which a Court of Appeals has recognized that the Commission itself has effectively disavowed the child pornography possession guideline and found that it’s unnecessarily severe in most cases in which it applies,” said Amy Baron-Evans, national sentencing resource counsel for the Federal Public and Community Defenders, in Boston.

In an email to colleagues, Baron-Evans wrote that the Jenkins decision “is notable as a strong reaffirmance of Dorvee” and because the Second Circuit made significant use of the Commission’s statistics regarding recidivism and other characteristics of child porn defendants.

Intense government scrutiny

Jenkins was initially charged in Canada and bailed out, but failed to appear for his trial. Canadian officials contacted the U.S. Department of Homeland Security (DHS) and shared information about the case and Jenkins was subsequently charged in the United States.

A federal jury found him guilty on Feb. 6, 2014.

“In view of Jenkins’ age, this sentence effectively meant that Jenkins would be   incarcerated and subject to intense government scrutiny for the remainder of his life,” Parker wrote in the decision.

Although Jenkins never contacted or attempted to contact any minor, his sentence includes strict prohibitions about contact with minors without approved adult supervision.

And the conditions of his post-release supervision will severely limit Jenkins’ ability to find work after serving his prison sentence, Parker wrote.

“The conditions of supervised release imposed by Judge Suddaby mean that  Jenkins will never be able to pay his debt to society. He will likely never be able to develop and maintain meaningful relationships with others, to obtain employment and remain employed or to ever lead anything that remotely resembles a ‘normal’ life,” Parker wrote.

Jenkins also was forbidden from using credit cards during his supervised release period without the approval of his probation officer.

“Why Jenkins should be prohibited from buying a drink on an airplane or taking an Uber ride or making a purchase on Amazon unless the transaction is pre-approved by a probation officer cannot be divined from the record we are reviewing,” according to the decision.

Worst of the worst

Based on sentencing guidelines, Jenkins’ offense level was increased from 22 to 37, based on factors such as: possessing material involving a prepubescent minor; possessing material portraying sadism, masochism or violence; using a computer in the offense; making false testimony at trial; and possessing 600 or more images of child pornography.

“These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child,” Parker wrote.

“We conclude that the District Court’s considerations cannot reasonably justify regarding Jenkins as the worst of the worst and sentencing him as such,” Parker wrote.

The Second Circuit pointed out that Jenkins qualified for as much as 10 additional years in prison for transporting the pornography, rather than simply possessing it.

“We disagree that bringing a personal collection to the start of a vacation as opposed to leaving it at home supplies an appropriate basis for sentencing a person to an additional 10 years in prison,” Parker wrote.

The Second Circuit also disagreed with the additional time imposed by Suddaby because of Jenkins’ lack of remorse and disrespect.

“While we appreciate the district judge’s frustration, we are 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,” Parker wrote.