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United States v. Sawyer

United States Court of Appeals, Second Circuit

October 26, 2018

United States of America, Appellee,
Jesse Sawyer, Defendant-Appellant.

          Argued: April 12, 2018

         Appeal from an amended judgment of the United States District Court for the Northern District of New York (D'Agostino, J.) resentencing Appellant Jesse Sawyer subject to our previous decision finding his original sentence substantively unreasonable. Sawyer challenges his new sentence on reasonableness and law-of-the-case grounds. By order of July 30, 2018, we affirmed the decision. We now explain why we did so.


          BRUCE R. BRYAN, Syracuse, N.Y., for Defendant- Appellant.

          STEVEN D. CLYMER, Assistant United States Attorney (Lisa M. Fletcher and Michael D. Gadarian, Assistant United States Attorneys, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, New York, N.Y., for Appellee.

          Before: JACOBS, POOLER, Circuit Judges, CRAWFORD, Chief District Judge. [1]

          Dennis Jacobs, Circuit Judge

         Jesse Sawyer, having pled guilty to sexual exploitation of children and receipt of child pornography, was originally sentenced primarily to 30 years in prison and a lifetime of supervised release. We ruled that that sentence was shockingly high given Sawyer's harrowing upbringing and comparatively low danger to the community, and remanded to the district court for resentencing. The district court disagreed with our analysis but found that Sawyer's exemplary record as an inmate justified a reduction to 25 years. Sawyer returned the matter to our docket, challenging his new sentence on both reasonableness and law-of- the-case grounds. By order of July 30, 2018, we affirmed Sawyer's new sentence. We now explain that we did so because the district court effectively complied with our instruction to significantly reduce Sawyer's sentence and because that sentence is now within the realm of reasonableness.


         In 2014, defendant Jesse Sawyer pled guilty to two counts of sexual exploitation of children in violation of 18 U.S.C. § 2251(a) and one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8)(A). The sexual exploitation charges arose out of approximately 30 cellphone photos taken by Sawyer of two girls, aged 4 and 6. The girls had close relationships with Sawyer. The photos depicted the children's genitals. Sawyer kept the photos and there was no evidence that he took any steps to distribute them to third parties. The count of receipt of child pornography concerned images that Sawyer downloaded from the Internet.

         Each sexual exploitation charge carried a fifteen-year mandatory minimum sentence and a maximum of 30 years. See 18 U.S.C. § 2251(e). The receipt of child pornography count carried a mandatory minimum sentence of five years and a maximum of 20 years. See 18 U.S.C. § 2252A(b)(1). The guideline range for the three sentences was the combined maximum of 80 years. See United States Sentencing Guidelines Manual ("USSG") § 5G1.1(a) ("Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence."). In the absence of these statutory limitations, the guidelines would have called for a life sentence. See USSG §§ 2G2.1, 2G2.2, 4B1.5.

         The presentence report and the defendant's sentencing memorandum described Sawyer's personal history of abuse as a child. By age seven, he was repeatedly subjected to sexual abuse, including rape, with the approval and even encouragement of his parents and other family members. By age 10, he was introduced to drugs and alcohol. He and his siblings were never shielded from their adult relatives' sexual promiscuity and frequent drug use; they were, in fact, encouraged to participate. As well, Sawyer's father beat him, at one point with such ferocity that Sawyer lost control of his bowels.

         At the original sentencing, the judge described the defendant's childhood as "a childhood that never was," "horrid [and] nightmarish," and marked by "incredible sadness." Transcript of Sentencing, July 7, 2015, at 30-31. The judge noted that a psychologist retained by the defense described Sawyer as a moderate to high risk to reoffend. She found that he presented a significant danger to the community because he had "an inadequate and distorted perception of rape and child molestation." Id. at 32. She expressed great concern for the violation of trust and victimization of the two girls. She stated, "I can't excuse what you did. I take into consideration your life but I can't excuse that darkness in your heart and soul that made you prey upon two innocent children." Id. at 35.

         The original sentence was primarily 30 years imprisonment--15 years on each sexual exploitation of children count, to run consecutively, and five years on the receipt of child pornography count, to run concurrently--and supervised release for the rest of his life thereafter. He appealed that sentence to us in 2016, contending that it was both procedurally and substantively unreasonable. We rejected the claims of procedural unreasonableness. United States v. Sawyer, 672 Fed.Appx. 63, 64-65 (2d Cir. 2016) (summary order). We concluded, however, that the 30-year sentence was substantively unreasonable. Id. at 65-67. It was insufficiently justified by concerns of public protection because Sawyer had no history of sexual assault with these victims or other children, and there was no specific evidence of such future risk. While Sawyer violated both children by exposing them to the camera and touching them in the process, there was no evidence--and the government does not suggest--that he engaged in penetrative sexual assault in any form. A 30-year sentence would have been appropriate for "extreme and heinous criminal behavior," and the conduct in this case did not rise to such a level. Id. at 66.

         In remanding the case for resentencing, we also identified a specific shortcoming in the district court's consideration of the sentencing factors set out at 18 U.S.C. § 3553(a). We noted that "the district court clearly failed to give appropriate weight to a factor listed in Section 3553(a) that should have mitigated the sentence substantially: the history and characteristics of the defendant." Sawyer, 672 Fed.Appx. at 67 (internal quotation marks omitted). "Particularly given Sawyer's scant criminal history (he was scored within the Criminal History Category of I), the deplorable conditions of his childhood should have militated in favor of a sentence less severe than the one imposed." Id. We concluded that the defendant's own extraordinary history of childhood abuse and the expert testimony that the unresolved and untreated trauma therefrom contributed to the commission of the offense would justify "not just a departure from the Guidelines, but a significant one indeed." Id. We vacated the sentence and remanded to the district court using the procedure described in United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994).

         At the July 7, 2017 resentencing hearing, the district judge expressed in detail her disagreement with our decision: "surely . . . anyone reviewing the sentence would conclude, as I did, that it was substantively reasonable." App'x at 235. She had not thought she "was doing anything that could be considered shockingly high." Id. at 237. In particular, she noted that nothing in our decision convinced her to revisit her conclusions regarding the relevance of Sawyer's childhood or his likely danger to the community. In sum, she remained of the view that "that sentence was an appropriate one and is sufficient but not greater than necessary to meet the goals of sentencing." Id. at 264. All that ...

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