The defendant was found guilty of one count of possession of child pornography for owning a collection of the material and bringing it across the US-Canada Border on the way to a family vacation for personal viewing.  He was sentenced to 120 months for the possession and 225 months for the transportation (the max was 240 months).  He was also sentenced to 25 years of supervised release with extensive conditions including the inability to use or possess any computer or any other device with online capabilities at any location except at his work unless participating in the computer restriction and monitoring program, a mandate that the probation was allowed to conduct periodic unannounced examinations of any computer equipment that he used, not being allowed to have any direct contact with a person under the age if 18 without supervision or any indirect contact with someone under 18 such as online.  He was also directed to “reasonably avoid and remove” himself from situations where he has any other form of contact with a minor and not to be in any area where persons under the age of 18 are likely to congregate like school grounds child care centers or playgrounds.

The defendant was a 44 year old white male with a life expectancy of 76.5 years at the time of his sentencing.

The court noted that a sentence is substantively unreasonable if it “cannot be located within the range of permissible decisions” as well as noting that the length of a sentence my be excessively punitive or needlessly harsh with or without far reaching post-release restrictions.  The court determined that the review of a sentence for substantive reasonableness is governed by the 3553 factors with particular attention to the need for the sentence to reflect the seriousness of the offense and to promote respect for the law.  In addition, supervised release conditions are also governed by the same factors as well as involving no greater deprivation of liberty than is necessary to implement the statutory purposes of sentencing and that they are consistent with pertinent Sentencing Commission Policy statements.

The court noted that the guideline starting point in this case was 2g2.2 and that guideline is fundamentally different from most and must be applied with great care in order to prevent unreasonable sentences.  The court also noted that the offense level failed to sufficiently differentiate between offenders who distribute for pecuniary gain and those who distribute for personal noncommercial reasons.  The Appellate court noted that these concerns weren’t considered by the district court.

The court identified that 2g2.2 resulted in a sentence that came from outdated enhancements related related to the defendant’s collecting behavior even though he was not alleged to be involved in the production or distribution of such material.  The court also noted that the the defendant’s sentence was higher than that for individual who engaged in sexual conduct with in-person victims.  Simply put, he wasn’t the worst of the worst but he was sentenced as such; someone convicted of a more severe crime than the defendant in this case was given a less severe sentence.

With regard to his supervised release, the defendant would have been prohibited from interacting with family members or friends who have children under the age of 18 until he was 88 years old, well above his life expectancy and the condition that bars him form “indirect contact” is also confusing because it is unclear and could mean that he wouldn’t be able to go to sporting events, natural history museums or street fairs.

The court reversed  United States v. Jenkins 14-4295-cr

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