United States v. Sawyer

892 F.3d 558
CourtCourt of Appeals for the Second Circuit
DecidedJune 19, 2018
DocketDocket 15-2276-cr; August Term, 2017
StatusPublished
Cited by1 cases

This text of 892 F.3d 558 (United States v. Sawyer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sawyer, 892 F.3d 558 (2d Cir. 2018).

Opinions

Judge Jacobs dissents in a separate opinion.

Geoffrey W. Crawford, District Judge:

*560This case returns on a second appeal following resentencing. Because we conclude that the district court did not follow this panel's prior mandate, we vacate the sentence for the second time and order resentencing before a different judge.

Background

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 young girls, aged 4 and 6 at the time of the offenses. 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 which Sawyer downloaded from the Internet.

Each of the sexual exploitation charges 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.

The Original Sentencing

The presentence report and the defendant's sentencing memorandum described Sawyer's personal history as a victim himself of childhood sexual abuse. He was subjected to severe abuse, including rape, as a small boy at the hands of men and women. At the first sentencing, the judge described the defendant's childhood as "horrid [and] nightmarish" and marked by "a childhood that never was" and "incredible sadness." Transcript of Sentencing, July 7, 2015, at 30-31. By the age of 7, he had been victimized sexually. He witnessed prostitution and drug use in his home. Before the age of 10, he was introduced to drugs and alcohol. 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 *561the 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 15 years, consecutive, on each of the child exploitation counts and five years, concurrent, on the receipt of child pornography count, for a total effective sentence of 30 years of imprisonment.

The First Appeal

On appeal, Sawyer contended that his sentence was both procedurally and substantively unreasonable. We rejected the claims of procedural unreasonableness. United States v. Sawyer , 672 F. App'x 63, 64-65 (2d Cir. 2016) (summary order). We concluded, however, that the 30-year sentence was substantively unreasonable. Id. at 65-66. It was not 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 a risk of such behavior in the future. 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 .... 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." Sawyer , 672 F. App'x at 67. We concluded that the defendant's own extraordinary history of childhood abuse and the expert testimony that it contributed to the commission of the offense justified "not just a departure from the Guidelines, but a significant one indeed." Id. We vacated the sentence and remanded for "imposition of a new sentence that comports with this opinion."

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Bluebook (online)
892 F.3d 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sawyer-ca2-2018.