REENA RAGGI, Circuit Judge:
Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months' incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the district court's Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F.Supp.2d 343 (E.D.N.Y.2011).
On November 16, 2008, an agent of the Federal Bureau of Investigation ("FBI"), investigating child pornography in an undercover capacity, accessed a computer program called "GigaTribe," which allows users to download material onto their computers and then to place some in folders designated for sharing with others. For
When the undercover agent accessed GigaTribe on November 16, he observed child pornography in the mini-profile of a person with the username "Boysuck0416." The agent also noted that this user's full profile contained the terms "Boy Love KDV PJK BCP," which the agent identified as child pornography search terms. The agent invited the user to share files, and after the user agreed, the agent downloaded ten videos and one still image of child pornography from the user's designated share folder. See United States v. Ladeau, 2010 WL 1427523, at *1 ("A user can also join the networks of other GigaTribe users, but only with the permission of the user who created the network."). He then proceeded to trace the user's Internet Protocol address to a residence at 3-14 Beach 147th Street in Queens, New York, which turned out to be the home of Jamie and Brian McLeod, the mother and stepfather of defendant Corey Reingold.
On January 15, 2009, FBI agents executed a search warrant at the McLeod home and seized two computers used exclusively by Reingold, each of which contained child pornography. Reingold, who was present at the time of the search, admitted that he was "Boysuck0416"; that he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download "a ton" of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. Pre-Sentence Report ("PSR") ¶ 9; see United States v. C.R., 792 F.Supp.2d at 353. Subsequent forensic analysis would confirm that the seized Reingold computer linked to GigaTribe contained more than 100 video files and at least 208 digital images of child pornography, while the seized computer linked to LimeWire contained 10 videos of child pornography.
As part of initial plea negotiations with federal prosecutors, Reingold agreed to take a polygraph examination with the understanding that he would be allowed to plead guilty to simple possession of child pornography, see 18 U.S.C. § 2252(a)(4)(B),
On March 18, 2009, Reingold was indicted by a grand jury sitting in the Eastern District of New York on four counts of distributing child pornography based on the GigaTribe "sharing" of four specified video files to the undercover agent on November 17, 2008, see 18 U.S.C. § 2252(a)(2), (b)(1); and one count of possessing child pornography, see id. § 2252(a)(4)(B), (b)(2). On September 16, 2009, Reingold pleaded guilty before a magistrate judge to the first distribution count.
Before formally accepting Reingold's guilty plea and in anticipation of sentencing, the district court conducted hearings between September 2009 and May 2011 where it heard from "a dozen expert witnesses in the fields of child sexual abuse; online child pornography; risk assessment; treatment of sex offenders; and neuropsychology and adolescent brain development." United States v. C.R., 792 F.Supp.2d at 349. Together with prosecutors, defense counsel, and two of his law clerks, the district judge also traveled to Massachusetts and personally toured FMC Devens, the Bureau of Prisons facility that offers inmates sex offender treatment. See id. at 520-24.
On May 10, 2011, the initial sentencing date, the district court declined to accept Reingold's guilty plea before the magistrate judge, questioning whether the undercover agent's retrieval of child pornography from Reingold's designated shared folder on GigaTribe was enough to make the defendant guilty of distribution under 18 U.S.C. § 2252(a)(2). Although the government and defense counsel both urged acceptance of the plea,
On May 16, 2011, the district court accepted Reingold's guilty plea. On the record, it explained that its acceptance was "based on the allocution and all other information now known to me." May 16, 2011 Sentencing Tr. 5:21-22. In its published opinion filed the same day, however, the district court expressed continued reservations as to whether the defendant had adequately admitted knowing and intentional distribution of child pornography as proscribed by 18 U.S.C. § 2252(a)(2). See United States v. C.R., 792 F.Supp.2d at 353-55 (construing statute to require proof of both "active intent[]" to transfer child pornography to another person and "active participation" in delivery of such pornography).
In its PSR to the district court, the Probation Department advised that Reingold's crime of conviction was subject to a mandatory minimum prison sentence of five years pursuant to 18 U.S.C. § 2252(b)(1). Further, based on Sentencing Guidelines calculations yielding a total offense level of 35 and a criminal history category of I, the PSR reported that Reingold's recommended sentencing range was 168 to 210 months' imprisonment.
The district court viewed the case quite differently. Rejecting the Probation Department's application of various enhancements to Reingold's Guidelines calculation, the district court concluded that the applicable Sentencing Guidelines range in Reingold's case was 63 to 78 months' imprisonment.
The government argues that the district court was legally obligated to sentence Reingold to the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) for any distribution of child pornography. It submits that the district court erred as a matter of law in holding that the application of that mandated minimum sentence to Reingold would violate the Eighth Amendment. We review de novo a district court's "[c]onclusions of law, including those involving constitutional questions," United States v. Fell, 531 F.3d 197, 209 (2d Cir.2008), and here conclude that the district court erred in holding the mandatory minimum sentence unconstitutional.
The Eighth Amendment states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. In identifying cruel and unusual punishments, the Supreme Court has not limited itself to "historical conceptions" of impermissible sanctions, Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010), but has looked to "`the evolving standards of decency that mark the progress of a maturing society,'" Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). A punishment will be deemed "cruel and unusual" not only when it is "inherently barbaric," but also when it is "disproportionate to the crime." Graham v. Florida, 130 S.Ct. at 2021; see Harmelin v. Michigan, 501 U.S. 957, 997-98, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (tracing history of proportionality principle).
This appeal focuses on the proportionality aspect of Eighth Amendment jurisprudence.
A number of principles inform this narrow view of the constitutional mandate of proportionality: (1) the "substantial deference" generally owed by reviewing courts "to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"; (2) a recognition that the Eighth Amendment does not mandate "any one penological theory" and that "competing theories of mandatory and discretionary sentencing have been in varying degrees of ascendancy or decline since the beginning of the Republic"; (3) respect for the "marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms" that "are the inevitable, often beneficial, result of the federal structure"; and (4) prudential understanding that proportionality review "should be informed by objective factors to the maximum possible extent," that the "most prominent objective factor is the type of punishment imposed," and that while the Supreme Court has frequently referenced "the objective line between capital punishment and imprisonment for a term of years," it has itself acknowledged a "lack [of] clear objective standards to distinguish between sentences for different terms of years." Harmelin v. Michigan, 501 U.S. at 998-1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (internal quotation marks omitted).
The Supreme Court's proportionality cases fall into two classifications. "The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case." Graham v. Florida, 130 S.Ct. at 2021 (emphasis added). In making a case-particular assessment of proportionality, the Court has employed a two-step analysis, first "comparing the gravity of the offense and the severity of the sentence." Id. at 2022. Given the principles already discussed, the Court has observed that it will be "`the rare case in which this threshold comparison... leads to an inference of gross disproportionality.'" Id. (quoting Harmelin v. Michigan, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring) (first alteration in Graham omitted)). Should such an inference arise, however, the second step of the analysis requires a court to "compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions." Id. Only "[i]f this comparative analysis `validate[s] an initial judgment that [the] sentence is grossly disproportionate'" will the sentence be deemed "cruel and unusual." Id. (quoting Harmelin v. Michigan, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring) (alterations in original)).
In this case-particular review, the Supreme Court has thus far identified a term-of-years sentence as grossly disproportionate on only one occasion. In Solem
Since Solem, the Supreme Court has consistently rejected proportionality challenges to prison sentences in particular cases. In Harmelin v. Michigan, the Court upheld a statutorily mandated term of life imprisonment without parole in the Michigan case of a recidivist defendant convicted of possessing 672 grams of cocaine. See 501 U.S. at 1009, 111 S.Ct. 2680 (Kennedy, J., concurring). Declining to draw a threshold inference of gross disproportionality, Justice Kennedy observed that Harmelin's crime was distinguishable from the "relatively minor, nonviolent crime at issue in Solem," because the "[p]ossession, use, and distribution of illegal drugs represent one of the greatest problems affecting the health and welfare of our population." Id. at 1002, 111 S.Ct. 2680 (internal quotation marks omitted) (recognizing range of criminal activity associated with drug possession). In such circumstances, "the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine — in terms of violence, crime, and social displacement — is momentous enough to warrant the deterrence and retribution of a life sentence without parole." Id. at 1003, 111 S.Ct. 2680.
Thereafter, in Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), the Supreme Court rejected a proportionality challenge to a prison sentence of 25 years to life imposed pursuant to California's Three Strikes Law on a recidivist felon convicted of stealing $1,200 worth of golf clubs, see id. at 16-18, 123 S.Ct. 1179 (plurality) (referencing Cal.Penal Code Ann. § 667(e)(2)(A)). Declining to draw an inference of gross disproportionality, the Court plurality reasoned that defendant's grand theft felony was not one of the most passive crimes a person could commit, that the California legislature "made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime[, and that n]othing in the Eighth Amendment prohibits California from making that choice." Id. at 25, 28, 123 S.Ct. 1179; see Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (rejecting prisoner's Eighth Amendment habeas challenge to sentence of 25 years to life under California's Three Strikes law for stealing approximately $150 worth of videotapes).
As these cases make plain, at the same time that the Eighth Amendment prohibits grossly disproportionate sentences, it is rare that a sentence falling within a legislatively prescribed term of years will be deemed grossly disproportionate. See Harmelin v. Michigan, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (noting that "outside the context of capital punishment, successful challenges to the proportionality of particular sentences are
"The second classification of [proportionality] cases has used categorical rules to define Eighth Amendment standards." Graham v. Florida, 130 S.Ct. at 2022. Until Graham, such categorical pronouncements were made with respect to a single punishment — the death penalty — and fell into "two subsets, one considering the nature of the offense" for which death was ordered, "the other considering the characteristics of the offender" sentenced to death. Id. Thus, the Supreme Court has categorically prohibited death sentences for "nonhomicide crimes against individuals," id., such as rape, see Kennedy v. Louisiana, 554 U.S. at 413, 128 S.Ct. 2641, or felony murder where the defendant participated in the felony but did not kill or intend to kill anyone, see Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The Court has also categorically prohibited death sentences for juvenile defendants, see Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and persons who are mentally retarded, see Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
In identifying types of crimes or types of defendants for whom capital punishment is categorically disproportionate, the Supreme Court has prescribed a two-step analysis. It "first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue." Graham v. Florida, 130 S.Ct. at 2022 (internal quotation marks omitted). But because "[c]ommunity consensus, while entitled to great weight, is not itself determinative of whether a punishment is cruel and unusual," it then proceeds to a second step. Id. at 2026 (internal quotation marks omitted). "[G]uided by the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose, the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution." Id. at 2022 (internal quotation marks omitted). In this inquiry, a court properly considers "the culpability of the [class of] offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question." Id. at 2026. It "also considers whether the challenged sentencing practice serves legitimate penological goals." Id.
In Graham v. Florida, the Supreme Court for the first time applied this analysis to pronounce a categorical rule for a non-capital sentencing practice: the imposition of life imprisonment without parole on juvenile offenders for nonhomicide crimes. The Court concluded that just as the Eighth Amendment categorically prohibits capital punishment for juvenile offenders, so too does it categorically prohibit life without parole for those same offenders when they stand convicted of nonhomicide crimes. See 130 S.Ct. at 2030. In reaching this conclusion, the Court identified a kinship between sentences of death and of life imprisonment without parole that warranted certain categorical rules to ensure proportionality. See id. at 2027, 2033 (observing that although "[t]he State does not execute the offender sentenced to life without parole,"
Last term, the Court pronounced another categorical rule for a sentence of life without parole, barring its mandatory application to juvenile offenders convicted of homicide crimes. See Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Here, the Supreme Court identified no categorical constitutional requirement that juveniles sentenced to life imprisonment for murder be afforded some opportunity for release. It ruled only that life without parole for such juvenile offenders could not be mandatory and had to reflect an individualized sentencing determination. See id. at 2460.
In reaching this conclusion, the Court not only reiterated the analogy Graham drew between a death sentence and life without parole, but also clarified that the kinship between these two harshest possible sentences explained Graham's pronouncement of a categorical rule "in a way unprecedented for a term of imprisonment." Id. at 2466. Relying on that kinship, and on precedent categorically barring both capital punishment for juveniles and mandatory capital punishment for adults, Miller held that the Eighth Amendment's "principle of proportionality" categorically prohibited mandatory life without parole for juveniles. Id. at 2475. Thus, "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Id.
The district court appears to have construed Graham to invite categorical rule analysis of any term-of-years sentence, including the mandatory five-year sentence at issue here. See United States v. C.R., 792 F.Supp.2d at 507. This misconstrues Graham.
First, as Miller recognized, Graham's "unprecedented" imposition of a categorical ban outside the context of capital sentencing derives from the Court's recognition that life without parole for juveniles was "akin to the death penalty." Miller v. Alabama, 132 S.Ct. at 2466. Nothing in Graham or Miller suggests that a five-year prison term is the sort of inherently harsh sentence that — like the death penalty or its deferred equivalent, life imprisonment without parole — requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants. Certainly, a five-year sentence does not deprive a defendant of all hope of release, the only categorical limitation the Supreme Court thought constitutionally necessary for mandatory life sentences imposed on juvenile defendants imprisoned for nonhomicide crimes. See Graham v. Florida, 130 S.Ct. at 2030. Much less does a five-year sentence equate to one of "the law's most serious punishments" so as to raise the constitutional concerns identified in Miller v. Alabama about the mandatory application of life without parole to all juveniles. 132 S.Ct. at 2467, 2471; see also Harmelin
Second, insofar as the district court purported to identify a consensus against five-year prison terms for juveniles convicted of child pornography crimes, we are by no means persuaded by its analysis. We need not discuss the point, however, because any such consensus is not relevant here. Reingold was already 19 when he committed the crime of conviction. In short, he was an adult, not a juvenile. The district court tries to blur the distinction between juvenile and adult offenders by finding that, "at the time of the crime," Reingold was "a developmentally immature young adult." United States v. C.R., 792 F.Supp.2d at 506.
Third, the district court did not, in any event, employ Graham's analytic approach to pronounce a categorical rule. Rather, it employed such analysis to find a five-year minimum sentence "disproportionate to the offense" of conviction "as applied to this defendant." United States v. C.R., 792 F.Supp.2d at 510 (emphasis added and internal quotation marks omitted). The Supreme Court's proportionality jurisprudence does not support such a substitution of Graham's categorical-rule approach for Harmelin's particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case. As the Court explained in Graham, where the proportionality of a term-of-years sentence
When we conduct particular-case analysis here, as we do in the next section of this opinion, we conclude that the statutorily mandated five-year minimum sentence does not constitute cruel and unusual punishment as applied to Reingold.
In reviewing the proportionality of a challenged sentence as applied to a particular case, a court must first consider whether the "gravity of the offense and the severity of the sentence" give rise to an "inference of gross disproportionality." Graham v. Florida, 130 S.Ct. at 2022 (internal quotation marks omitted). The district court failed to make this comparative assessment. We do so here and conclude that the comparison supports no inference of gross disproportionality in applying the minimum five-year sentence mandated by 18 U.S.C. § 2252(b)(1) to Reingold.
Starting with the gravity of the offense at issue, there can be no question that the dissemination of child pornography is a serious crime that causes real injury to particularly vulnerable victims. As Congress, courts, and scholars all recognize, child pornography crimes at their core demand the sexual exploitation and abuse of children. Not only are children seriously harmed — physically, emotionally, and mentally — in the process of producing such pornography, but that harm is then exacerbated by the circulation, often for years after the fact, of a graphic record of the child's exploitation and abuse. See New York v. Ferber, 458 U.S. 747, 757-59 & nn.9-10, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (citing congressional and scholarly reports, and court cases).
The circumstances of this case do not mitigate the general severity of such criminal conduct.
Nor can any mitigation be located in the fact that Reingold's crimes were facilitated by a recent "digital revolution" that has "enormously increased the ways that child pornography can be created, accessed, and distributed." United States v. C.R., 792 F.Supp.2d at 367. The ease with which a person can access and distribute child pornography from his home — often with no more effort than a few clicks on a computer — may make it easier for perpetrators to delude themselves that their conduct is not deviant or harmful. But technological advances that facilitate child pornography crimes no more mitigate the real harm caused by these crimes than do technological advances making it easier to perpetrate fraud, traffic drugs, or even engage in acts of terrorism — all at a distance from victims — mitigate those crimes. If anything, the noted digital revolution may actually aggravate child pornography crimes insofar as an expanding market for child pornography fuels greater demand for perverse sexual depictions of children, making it more difficult for authorities to prevent their sexual exploitation and abuse. See generally United States v. Lewis, 605 F.3d 395, 403 (6th Cir.2010) (noting that distribution through computers "is particularly harmful because it can reach an almost limitless audience" (internal quotation marks omitted) (citing H.R.Rep. No. 104-90, at 3-4 (1995), reprinted in 1995 U.S.C.C.A.N. 759, 760-61)). But precisely because the prevention of such exploitation and abuse is "a government objective of surpassing importance," New York v. Ferber, 458 U.S. at 757, 102 S.Ct. 3348; see id. at 756-57, 102 S.Ct. 3348 ("It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling." (internal quotation marks omitted)), we cannot view the distribution of child pornography, however accomplished, as anything but a serious crime that threatens real, and frequently violent, harm to vulnerable victims, cf. Harmelin v. Michigan, 501 U.S. at 1002-03, 111 S.Ct. 2680 (Kennedy, J., concurring) (observing that characterization of drug possession with intent to distribute as "nonviolent and victimless" crime "is false to the point of absurdity" given "pernicious effects" of drug use).
No different conclusion is warranted because Reingold professed a principal interest in receiving rather than distributing child pornography. See United States v. C.R., 792 F.Supp.2d at 354. Reingold acknowledged that when he joined GigaTribe he knew that in order to secure child pornography from others, he would have to share child pornography with them in return. In short, Reingold understood from the start that, in this barter-like market, distribution was integral to receipt. To the extent such arrangements only expand the market in which child pornography is disseminated, Reingold's interest in augmenting his own collection of child pornography does not render his distribution of such pornography any less serious a crime.
Such a conclusion seems particularly unwarranted here, where Reingold admitted that in addition to viewing and distributing child pornography, he repeatedly engaged his pre-pubescent sister in sexual activity. Indeed, his last reported sexual interaction with the child, when he was 18 and she was 11, was disturbingly similar to the conduct depicted on the video that is the subject of the distribution count of conviction. The district court concluded that Reingold's sexual conduct with his sister was mitigated by the lack of adequate parental supervision, Reingold's minority during the first two encounters, and his continued immaturity as an adult. See United States v. C.R., 792 F.Supp.2d at 511; May 16, 2011 Sentencing Tr. 15:24-16:1. Even if correct, such excuses cannot transform the admitted three encounters into something benign, or deny their scarring effect on the girl. Much less do these excuses mitigate the exacerbating harm caused to children by Reingold's distribution of pornography in which they are depicted.
For all these reasons, the distribution crime of conviction is appropriately viewed as a serious offense.
With the gravity of Reingold's offense thus weighing heavily in the balance, we consider whether a congressionally mandated five-year minimum sentence is grossly disproportionate to the crime. The question requires no extended discussion.
As has long been recognized, "it is difficult, if not impossible to halt" the sexual exploitation and abuse of minors by pursuing only the producers of child pornography. New York v. Ferber, 458 U.S. at 759-60, 102 S.Ct. 3348. Thus, the Supreme Court has acknowledged that "[t]he most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties" on all persons in the distribution chain. Id. at 760, 102 S.Ct. 3348 (emphasis added). With precisely this objective in mind, see H.R. Conf. Rep. 108-66, at *28 (2003), reprinted in 2003 U.S.C.C.A.N. 683 (quoting New York v. Ferber, 458 U.S. at 760, 102 S.Ct. 3348), Congress, in 2003, established a graduated sentencing regime for crimes involving child pornography, with any knowing receipt or distribution of child pornography transmitted in interstate or foreign commerce punishable by a prison
In making that determination, we need not look beyond the depicted sexual exploitation of an eight-year old on the distributed video to conclude that the crime of conviction here is a more serious offense than the golf club and videotape thefts in Ewing and Lockyer, for which the Supreme Court upheld prison sentences of 25 years to life. To be sure, those sentences were informed by the defendants' prior criminal records. Nevertheless, a large number of federal felony crimes carry the possibility of five-year prison terms for first time offenders.
No different conclusion is warranted because Congress mandated a minimum five-year sentence rather than leaving the possibility of such a punishment to the discretion of the sentencing judge. As the Supreme Court observed in Harmelin v. Michigan, the legislature's "`power to define criminal punishments without giving the courts any sentencing discretion'" is "beyond question." 501 U.S. at 1006, 111 S.Ct. 2680 (Kennedy, J., concurring) (quoting Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)); see id. at 999, 111 S.Ct. 2680 (recognizing that "competing theories of
This case does not present that extreme circumstance. The crime here at issue is as harmful as that in Harmelin, while the challenged five-year minimum is far less "severe and unforgiving" than the life sentence upheld in that case. Id. at 1008, 111 S.Ct. 2680. Indeed, here Congress did not mandate a single sentence for all persons who distribute child pornography, nor set a maximum sentence that was the harshest term of incarceration permitted by law. See generally Miller v. Alabama, 132 S.Ct. at 2467-68. Rather, it provided a sentencing range of "not less than 5 years and not more than 20 years" for the distribution of child pornography. 18 U.S.C. § 2252(b)(1). To the extent every sentence is a function of both the crime committed and the character of the defendant who committed it, Congress decided only that the distribution of child pornography was a sufficiently serious crime as to require at least a five-year sentence even for the most sympathetic defendant. But having set this floor, Congress then left it entirely to district courts to assess the particulars of the crime and the character of the defendant to determine whether some other sentence, between the five-year minimum and twenty-year maximum, might be warranted to serve the interests of justice. In this respect it afforded more "mechanisms for consideration of individual circumstances" in child pornography distribution cases than were available for drug trafficking in Harmelin. Harmelin v. Michigan, 501 U.S. at 1008, 111 S.Ct. 2680 (Kennedy, J., concurring); see id. (noting that "[p]rosecutorial discretion before sentence and executive or legislative clemency afterwards provide means for the State to avert or correct unjust sentences").
Nor does Reingold's immaturity give rise to an inference of gross disproportionality. An adult defendant's immaturity may mitigate his moral culpability, but it does not reduce the harmful effects of his crime, which, as we have explained, are properly viewed as quite serious in cases of distribution of child pornography. Indeed, where the sentence at issue for such a serious crime is a minimum prison term of five years, the punishment is not so severe as to permit us to infer gross disproportionality from Congress's decision to mandate its imposition on all adult defendants, without regard to their relative maturity. See generally Miller v. Alabama, 132 S.Ct. at 2460 (prohibiting mandatory life imprisonment without parole only for juvenile, not adult, offenders); United States v. Merchant, No. 12-12957, 2013 WL 461218, at *1 (11th Cir. Feb. 7, 2013) (rejecting argument that 25-year-old defendant's lack of sophistication, limited life experience, and amenability to treatment rendered 17.5-year sentence for distribution of large quantity of child pornography grossly disproportionate); cf. United States v. Moore, 643 F.3d 451, 454 (6th Cir.2011) (rejecting claim that imposition of 15-year mandatory minimum sentence on four-time
Our conclusion that imposition of the five-year mandatory minimum sentence in this case does not give rise to an inference of gross disproportionality finds further support in our own precedent. In United States v. Ramos, 685 F.3d 120 (2d Cir. 2012), a case in which a recidivist defendant convicted of receiving and possessing child pornography faced a 15-year minimum sentence, we easily rejected an Eighth Amendment challenge to that higher minimum, noting that it was well below the defendant's Guidelines range and that "`[l]engthy prison sentences ... do not violate the Eighth Amendment's prohibition against cruel and unusual punishment when based on proper application of the Sentencing Guidelines or statutorily mandated... terms,'" id. at 134 n. 11 (quoting United States v. Yousef, 327 F.3d 56, 163 (2d Cir.2003)) (second and third alterations in Ramos).
Our sister circuits have similarly rejected Eighth Amendment challenges to mandatory minimum sentences in child pornography or exploitation cases. See United States v. Hart, 635 F.3d 850, 859 (6th Cir.2011) (upholding 15-year mandatory minimum under 18 U.S.C. § 2251 for persuading minor to engage in sexually explicit conduct for purpose of producing visual depictions, and noting same ruling with respect to 10-year mandatory minimum for enticing minor into sexual relations in violation of 18 U.S.C. §§ 2422(b) and 2251); United States v. Nagel, 559 F.3d 756, 762 (7th Cir.2009) (holding 10-year mandatory minimum sentence under 18 U.S.C. § 2422(b) not grossly disproportionate to crime of attempting to entice minor to engage in criminal sexual act); United States v. Malloy, 568 F.3d 166, 180 & n. 14 (4th Cir.2009) (upholding 15-year mandatory minimum sentence under 18 U.S.C. § 2251); United States v. Gross, 437 F.3d 691, 695 (7th Cir.2006) (concluding that 15-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1) for distribution of child pornography by defendant who was former victim and perpetrator of child sexual abuse was not grossly disproportionate to crime in light of high bar Supreme Court has set for such claims, seriousness of crime, and defendant's prior record); United States v. MacEwan, 445 F.3d 237, 250 (3d Cir.2006) (rejecting gross disproportionality challenge to 15-year minimum sentence mandated by 18 U.S.C. § 2252(a)(2)(B), (b)(1) for repeat offender convicted of receipt of child pornography); see also United States v. Dwinells, 508 F.3d 63, 69 (1st Cir.2007) (rejecting
In sum, the application of a mandatory five-year sentence to the distribution crime of conviction in this particular case does not give rise to an inference of gross disproportionality suggestive of cruel and unusual punishment. Thus, we need not engage in any sentencing comparison to determine, as we do here, that the district court erred in concluding that the Eighth Amendment barred the application of a five-year mandatory minimum sentence in this case. Accordingly, we remand the case for the district court to vacate its original sentence and to resentence Reingold consistent with the statutory mandate.
The United States submits that the district court erred in failing to apply certain Sentencing Guidelines enhancements to the calculation of Reingold's applicable Guidelines range. Specifically, it contends that enhancements were warranted for (1) Reingold's engagement in a pattern of sexual abuse or exploitation of a minor, see U.S.S.G. § 2G2.2(b)(5); (2) the use of a computer to commit the crime of conviction, see id. § 2G2.2(b)(6); and (3) the distribution of child pornography, see id. § 2G2.2(b)(3)(F). Reingold responds that the district court correctly declined to apply these enhancements, but asserts that, if there was error, it was necessarily harmless because "the record is abundantly clear that Judge Weinstein would have imposed the same sentence regardless of the recommended guideline range." Appellee's Br. 43.
Our identification of a Guidelines calculation error as "harmless" allows us to uphold an otherwise valid sentence and to avoid vacatur and remand where it is clear that the district court would impose the same sentence in any event. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009). In this case, however, we cannot avoid remand and resentencing because we have identified a non-Guidelines sentencing error, i.e., the district court's refusal to impose a mandatory five-year minimum sentence based on an erroneous Eighth Amendment determination. Thus, on remand, the district court will not be able to impose the same sentence. We recognize that the district court may well choose on remand to impose a non-Guidelines sentence. Nevertheless, "we have indicated that a correct Guidelines calculation must normally precede [such a] decision." United States v. Rodriguez, 587 F.3d 573, 584 (2d Cir.2009). Accordingly, we proceed to consider the government's Guidelines calculation challenge.
In doing so, we interpret relevant Guidelines provisions de novo, but we defer to the district court's findings of facts pertinent to the Guidelines absent clear error. See United States v. Broxmeyer, 699 F.3d 265, 281 (2d Cir.2012).
Guideline § 2G2.2, which applies to defendants convicted of child pornography crimes pursuant to 18 U.S.C. § 2252, provides for a five-level enhancement in offense level "[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." U.S.S.G. § 2G2.2(b)(5). This Guideline attempts to assess both a defendant's risk of recidivism and the potential harm to others
The "pattern of activity involving the sexual abuse or exploitation of a minor" required to warrant a § 2G2.2(b)(5) enhancement is specifically defined in the Guideline's application notes to mean "any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct." U.S.S.G. § 2G2.2 cmt. n. 1. The same application note defines "sexual abuse or exploitation" to mean
Id. The note also specifically excludes from the definition of "sexual abuse or exploitation" the "possession, accessing with intent to view, receipt, or trafficking in material relating to the sexual abuse or exploitation of a minor." Id.
Read together, these definitions signal that § 2G2.2(b)(5) is narrow in one respect and expansive in another. The specifically referenced federal statutes cabin the conduct that qualifies as "sexual abuse or exploitation" for purposes of a § 2G2.2(b)(5) enhancement. At the same time, the expansive word "any" in the phrase "any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant" signals that any conduct described within one of the specified statutes is properly considered in making a § 2G2.2(b)(5) assessment and that nothing more than two separate instances of such conduct is required to demonstrate the requisite pattern.
Thus, the lack of temporal proximity in Reingold's sexual contacts with his sister was not a permissible ground for refusing to apply a § 2G2.2(b)(5) enhancement. See generally United States v. Salim, 549 F.3d 67, 79 (2d Cir.2008) (holding it legal error to impose additional requirement beyond plain language of Guideline). In so holding, we join our sister circuits, which have uniformly concluded that no temporal proximity among acts of sexual abuse or exploitation is required to satisfy the pattern requirement of § 2G2.2(b)(5). See, e.g., United States v. Woodard, 694 F.3d 950, 953-54 (8th Cir.2012); United
Nor can § 2G2.2(b)(5) and its application notes be construed to exclude conduct satisfying its definition of sexual abuse and exploitation from pattern consideration based on mitigating circumstances.
We further conclude that the district court erred in excluding from § 2G2.2(b)(5) consideration of Reingold's first two sexual contacts with his half-sister on the ground that defendant was then himself a minor. This court has not previously had occasion to consider whether acts of sexual abuse or exploitation of a minor by a minor can support a § 2G2.2(b)(5) enhancement. We have however, considered that question in similar circumstances and held that they can. See United States v. Phillips, 431 F.3d 86, 90-93 (2d Cir.2005).
In Phillips, a defendant convicted of sexually exploiting a minor in violation of 18 U.S.C. § 2251(a) and (b) argued that the "§ 4B1.5(b) enhancement for a pattern of prohibited sexual behavior does not apply to unadjudicated conduct perpetrated by an adolescent because neither the Guidelines nor the Application Notes explicitly say that it does." Id. at 90. In rejecting this argument, we noted that one of the statutes defining conduct supporting the enhancement, 18 U.S.C. § 2243,
The same reasoning applies to § 2G2.2(b)(5). Among the statutes whose conduct describes the sexual abuse or exploitation of a minor relevant to this Guideline is 18 U.S.C. § 2241(c), which makes it a crime knowingly to engage "in a sexual act with another person who has not attained the age of 12" within the jurisdiction of the United States. Like § 2243, § 2241(c) does not limit its coverage to offenders over the age of 18. Nor does any language in § 2G2.2(b)(5) or its application notes require consideration of a defendant's age at the time of past instances of sexual abuse or exploitation. In the absence of such language, and consistent with our decision in Phillips, we here conclude that sexual abuse or exploitation of a minor undertaken by a defendant who was a juvenile at the time of the incident is properly considered in applying the § 2G2.2(b)(5) pattern enhancement. The two of our sister circuits to have considered this question have reached the same conclusion. See United States v. Woodard, 694 F.3d at 953 [8th Cir.]; United States v. Olfano, 503 F.3d at 243 [3d Cir.].
We therefore conclude that the district court erred in relying on Reingold's minority, lack of temporal proximity, and inadequate supervision as grounds not to consider his contacts with his sister as a basis for a § 2G2.2(b)(5) enhancement in this case. In rejecting these grounds for decision, we do not, however, conclude that Reingold warrants a § 2G2.2(b)(5) enhancement. That depends on whether his sexual contacts with his sister qualify as "sexual abuse or exploitation," a factual finding that the district court never made.
As we have already observed, "sexual abuse or exploitation," as used in § 2G2.2(b)(5), means only such conduct as is described in certain criminal statutes. The definition of a "sexual act" for purposes of § 2241(c), which appears to be the relevant statute here, derives from 18 U.S.C. § 2246(2)(D), which defines the phrase to mean, inter alia, "the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person."
Of Reingold's three sexual contacts with his sister, the last — when he was 18 and she was 11 — appears plainly to qualify. Reingold admitted that on that occasion, he had his sister "manually stimulate his penis, while he rubbed her breasts and manually stimulated her vagina, both over and under her panties," PSR ¶ 11, and "coached her on how to perform oral sex on him" and performed oral sex on her, id. ¶ 3. The siblings' first encounter might also qualify in that Reingold admitted that on that first occasion, when he was 15 and his sister eight, he had her sister manually stimulate his penis while he touched the girl's "privates, under her clothing." Id. Less clear is whether the second encounter qualifies as a sexual act. On that occasion, when Reingold was 16 and his sister nine, he again had his sister manually stimulate his penis, but Reingold admitted rubbing her vagina only over her underpants. We leave it to the district court to resolve these open factual questions as to which of Reingold's contacts involved "a sexual act."
Guideline § 2G2.2(b)(6) provides for a two-level enhancement "[i]f the offense involved the use of a computer." The district court declined to apply the enhancement in this case, finding it to constitute impermissible "double counting." United States v. C.R., 792 F.Supp.2d at 512. That conclusion was unwarranted in light of United States v. Johnson, 221 F.3d 83, 99 (2d Cir.2000), in which we specifically rejected a double-counting challenge to the application of a § 2G2.2(b)(6) enhancement. As Johnson observed, the use of a computer is not essential to the act of distributing child pornography. A person "can traffic in child pornography without using a computer much like one could commit a robbery without the use of a gun." Id. (internal quotation marks omitted). Thus, the enhancement does not result in double counting because it does not "increase a defendant's sentence to reflect the kind of harm that has already been fully accounted for" by the base offense level. United States v. Volpe, 224 F.3d 72, 76 (2d Cir.2000) (internal quotation marks omitted).
This conclusion is reinforced by our earlier observation that the digital revolution, which may be responsible for more child pornography crimes' being committed by computer, has aggravated rather than mitigated the harms associated with such crime. See supra at Part II.C.2.a. By making it easier to retrieve and distribute child pornography, computers have expanded the market for child pornography, which in turn fuels a greater demand for a product that can only be produced by abusing and exploiting children. See generally United States v. Lewis, 605 F.3d at 403. Moreover, once child pornography is circulated by computer, it becomes almost impossible to remove or destroy. In such circumstances, it was hardly unreasonable, much less double counting, for the Sentencing Commission to conclude that the base offense level applicable to all distributors of child pornography — even those who share items non-electronically — should be enhanced for persons who commit the crime by using a computer.
Reingold submits that since Johnson this court has expressed reservations about the § 2G2.2(b)(6) enhancement because, now that so many child pornography crimes are committed by computer, the enhancement applies "in virtually every case" so as to have "the flavor" of double counting. United States v. Tutty, 612 F.3d 128, 132 (2d Cir.2010); see United States v. Dorvee, 616 F.3d 174, 186 (2d Cir.2010).
Here, we do not review the substantive reasonableness of a sentence at the top of the statutory range. We consider only whether the district court erred in concluding that it would be impermissible double counting to apply a computer use enhancement to the calculation of Reingold's Guidelines. In light of Johnson, we conclude that the district court did so err. On remand, the district court should apply this enhancement to its calculation of Reingold's recommended Guidelines range.
In calculating Reingold's Guidelines range, the district court further declined to apply the two-level enhancement for distribution provided in U.S.S.G. § 2G2.2(b)(3)(F). The district court found that the base offense level for § 2G2.2(a)(2) already accounted for the harms attributable to distribution, making any enhancement "a form of double counting." May 16, 2011 Sentencing Tr. 13:8-10. Moreover, it found that Reingold's primary objective in using the GigaTribe file sharing program was to receive child pornography rather than to distribute it to others. Neither ground makes the distribution enhancement inapplicable to this case.
The district court concluded that because distribution was a necessary element of Reingold's crime of conviction, any harm associated with distribution was necessarily fully accounted for in the base offense level of his Guideline. See United States v. Watkins, 667 F.3d 254, 261 (2d Cir.2012) (stating that impermissible double counting occurs when Guidelines enhancement is applied to reflect harm already "fully accounted for by another part of the guidelines" (alterations and internal quotation marks omitted)). The conclusion is unwarranted.
First, distribution need not be present in every conviction under the statute at issue. Section 2252(a)(2) proscribes the knowing receipt or distribution of child pornography. See United States v. Salim, 549 F.3d at 76 (holding that no double counting concern arises where Guidelines enhance for "additional factor that will not be present in every conviction under the statute" (internal quotation marks omitted)).
Second, neither the applicable Guideline, U.S.S.G. § 2G2.2, nor the base offense level dictated by that Guideline for this case, is limited to distribution crimes. Guideline § 2G2.2 sweeps broadly to address a wide range of criminal conduct occurring after child pornography has been produced. As that Guideline's title indicates, such conduct includes (1) "Trafficking," (2) "Receiving," (3) "Transporting," (4) "Shipping," (5) "Soliciting," and (6) "Advertising Material Involving the Sexual Exploitation of a Minor," as well as (7) "Possessing" such material, both with and without intent to distribute.
To assist sentencing judges in distinguishing among such varied crimes and assessing their severity in particular cases, § 2G2.2 draws various distinctions. To begin, the Guideline draws a gross distinction between crimes of conviction implicating only simple possession of child pornography
This structure cannot be understood to address the harm associated with the distribution of child pornography in a base offense level of 22 that applies equally to a variety of offenses, some involving distribution and others not. Rather, § 2G2.2 is structured so that the range of harms associated with distribution can be addressed through various enhancements. Indeed, that conclusion has been so obvious to those of our sister circuits to have considered the question that they have employed little discussion to reject double counting challenges to the application of a § 2G2.2(b)(3)(F) enhancement to defendants convicted of distribution offenses. See United States v. Chiaradio, 684 F.3d 265, 283 (1st Cir.2012) (identifying "absolutely no basis" for inferring that distribution enhancement did not apply to defendant convicted of distribution crime); United States v. Frakes, 402 Fed.Appx. 332, 335-36 (10th Cir.2010) ("Rather than forbidding double-counting, § 2G2.2 expressly allows a two-level enhancement for distribution," such that a minimum two-point enhancement "will always apply" to defendants convicted of distribution offenses (emphasis in original)).
We agree that a minimum two-level enhancement for distribution applies to the calculation of Reingold's Guidelines, and we conclude that the district court erred as a matter of law in holding that such an enhancement constituted impermissible double counting.
No different conclusion is warranted because the district court concluded that Reingold's primary purpose in committing the distribution offense of conviction was to receive rather than to distribute child pornography.
The application notes to § 2G2.2 define "distribution" to mean
U.S.S.G. § 2G2.2 cmt. n. 1 (emphasis added). Use of the word "any" to modify "act" signals that the phrase should be construed broadly. Similarly, use of the
Here, even if Reingold's primary intent in joining GigaTribe was "not to distribute but more to just receive" child pornography, May 10, 2011 Sentencing Tr. 16:10-11, the record makes plain that he both knew from the start that distribution was a necessary condition of receipt, see id. at 16:9, 19-22 (admitting that "in order to receive" materials, GigaTribe "requires you to share with other people"), and, with that knowledge, took deliberate and purposeful actions to effect that distribution, see generally United States v. Kelly, 147 F.3d 172, 177 (2d Cir.1998) (approving definition of "intentionally" that requires defendant to have "acted deliberately and purposefully"). A federal agent, discussing how GigaTribe worked, explained that Reingold had to "specifically pick which folders or files he want[ed] to share"; persons on Reingold's "buddy list" could then share "not his whole computer, [but] just the [files] that he selected." May 10, 2011 Sentencing Tr. 12:24-25, 14:13-14. Indeed, Reingold "admitted that he shared his child pornography folders with an estimated 10 to 20 GigaTribe users on his invited buddy list." PSR ¶ 9. Such conduct plainly supports defendant's conviction for distributing child pornography as well as application of the § 2G2.2(b)(3)(F) enhancement.
As we recently stated in a summary order upholding such an enhancement, "knowingly placing child pornography files in a shared folder on a peer-to-peer file-sharing network constitutes distribution under U.S.S.G. § 2G2.2, even if no one actually obtains an image from the folder." United States v. Farney, 513 Fed.Appx. 114, 116 (2d Cir.2013). Our sister circuits agree. See United States v. Conner, No. 12-3210, 2013 WL 1490109, at *6 (6th Cir. Apr. 11, 2013) (holding that "knowing use of [file-sharing service], much like the posting of a file on a website, is sufficient to trigger section 2B2.2(b)(3)(F)'s two-level enhancement"); United States v. Ramos, 695 F.3d at 1041 [10th Cir.] (concluding that when "individual uses a peer-to-peer network file-sharing program with knowledge that the program will deposit downloaded child-pornography files into a shared folder accessible to other users — e.g., rendering files only a mouse-click away — then that person has engaged in an act related to the transfer of child pornography" warranting § 2G2.2(b)(3)(F) enhancement); United States v. Glassgow, 682 F.3d 1107, 1110 (8th Cir.2012) (holding § 2G2.2(b)(3)(F) enhancement warranted where, inter alia, defendant "knowingly made files available for distribution"); United States v. Spriggs, 666 F.3d 1284, 1287 (11th Cir.2012) (stating that "[w]hen the user knowingly makes the files accessible
We here reiterate as controlling our summary conclusion in Farney, and we clarify that it applies without regard to whether the defendant's primary purpose in placing child pornography files in a file-sharing program was to receive or to distribute child pornography.
Thus, on remand, the district court should recalculate Reingold's Guidelines before resentencing, applying enhancements under U.S.S.G. § 2G2.2(b)(3)(F), (b)(5), and (b)(6), as warranted consistent with this opinion. While the district court is required correctly to calculate and fairly to consider the Guidelines, see 18 U.S.C. § 3553(a)(4), nothing in this opinion is intended to limit the district court's discretion to consider a non-Guidelines sentence pursuant to United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
To summarize, we conclude as follows:
1. The application of the five-year minimum sentence mandated by 18 U.S.C. § 2252(b)(1) is not so grossly disproportionate to the crime of distributing child pornography as to be precluded in this case by the Cruel and Unusual Punishment Clause of the Eighth Amendment. Accordingly, in exercising its sentencing discretion in this case, the district court cannot impose a lesser prison sentence than the statutorily mandated minimum.
2. In calculating a defendant's Sentencing Guidelines range for distributing child pornography:
a. A pattern enhancement pursuant to U.S.S.G. § 2G2.2(b)(5) applies to a defendant who commits any two acts fitting the Guidelines definition of "sexual abuse or exploitation of a minor," without regard to the temporal proximity of those acts, the defendant's own minority at the time of such acts, or mitigating circumstances. Such circumstances may inform a district court's exercise of discretion in selecting a within-Guidelines sentence or in imposing a non-Guidelines sentence, but they do not permit the court to refrain from applying an otherwise warranted § 2G2.2(b)(5) enhancement to the calculation of a defendant's Guidelines range.
b. Because a computer is not essential to the crime of distributing child pornography, the computer-use enhancement provided in U.S.S.G. § 2G2.2(b)(6) does not constitute impermissible double counting simply because an ever larger number of child pornography distribution crimes are committed with computers.
c. Because neither the statute of conviction, 18 U.S.C. § 2252(a)(2), nor the applicable Guideline, § 2G2.2, is limited to distribution crimes, the distribution enhancement provided in § 2G2.2(b)(3)(F) does not constitute impermissible double counting.
Accordingly, we REMAND this case to the district court with direction that it vacate Reingold's sentence and RESENTENCE him consistent with this opinion, specifically recalculating his Sentencing Guidelines range as indicated herein, and adhering to
Judge SACK concurs in a separate opinion.
SACK, Circuit Judge, concurring.
I am in full agreement with the judgment of the Court. I write only to express my concern about parts of section 2.A of the majority opinion.
I would have much preferred that the majority confine itself to a more narrow and straightforward analysis of the gravity-of-the-offense aspect of the Eighth Amendment inquiry. That analysis is already fully included as part of the section with which I take issue, as follows:
Maj. op. at
Perhaps we cannot conclude from that excerpt alone that the sentence in this case was "fair" — but that issue is simply not posed by this Eighth Amendment inquiry. It seems to me, though, that the language does answer clearly and completely the legal question that is before the Court: Whether this is the "rare case" in which the comparison between crime and punishment leads "to an inference of gross disproportionality." See Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2022, 176 L.Ed.2d 825 (2010) (quoting) Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment in part). It is not. And, that question having been answered, I think the
Instead, the majority's opinion includes graphic descriptions of one of the pornographic images in evidence, id. at 216-17, and discusses the effect on child pornography of the "recent digital revolution," id. at 217-18; explains what it views as the irrelevance of "Reingold's professed ... principal interest in receiving rather than distributing child pornography," id. at 217; describes the nature of "GigaTribe" and the defendant's interaction with it, id. at 218; and makes reference to the defendant's sexual molestation of his minor half-sister,
These may be interesting observations, but are they necessary to the resolution of this appeal? I hardly think so. Suppose the facts were to the contrary. Suppose the pornographic images were somewhat less graphic than the one described; that they were received and distributed as photographs (as pornographic material was in Ferber) and not electronically through file sharing on the Internet; that Reingold did not allege that his principal interest was in receiving and not distributing the pornographic images; and that he never ever so much as touched a female human being other than his mother. Are we to believe that on any such or vaguely similar facts and in light of the law reflected in the two paragraphs of its opinion set forth in haec verba above, the majority could or would have decided that a five year sentence here did constitute "cruel and unusual punishment"?
I don't think so. And, assuming I am correct, the verbiage to which I take exception is unnecessary to the consideration and resolution of this case. I would therefore have omitted it.
The omission would not be based on any general view on my part that a judge must be averse to saying more in an opinion than is strictly necessary. I do not think so.
I would have preferred then, as I have said, for the majority opinion to have hewed more rigorously to the line of legal inquiry in the matter before us.
* * *
I also concur with the majority as to the use of Reingold's name in the caption of this case. Whether I would do so were his name not already on the record, I am not quite sure. Although I am of the general view that the more about an appeal that is public the better, including of course the names of the parties, the dissection of Reingold's mental condition and the nature of his behavior is set forth in such unusually meticulous detail in the district court's lengthy opinion that I can understand that court's decision to identify him by his initials only. But the fact that his name is not only available in the files of the district court and this court, it can also be found on-line using Google — attributed on the website to Reuters — seems to me to make the decision much easier. See http://www.caringforourchildrenfoundation.org/?p=8932 (last visited Sept. 20, 2013).
We identify no basis in law for shielding the identity of an adult criminal defendant. Cf. Fed.R.Crim.P. 49.1 (providing privacy protections in limited circumstances). No different conclusion obtains from United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995), cited by Reingold. At issue in that case was the propriety of unsealing an investigative report that, among other things, would have identified confidential informants in an ongoing criminal investigation and circulated anonymous and unverified accusations of doubtful veracity against uncharged persons. See id. at 1047-48. By contrast, as the named adult defendant in a criminal case in which he has been adjudicated guilty, Reingold has no expectation of privacy in his identity. See id. at 1048 (noting public's presumptive right of access to information pertaining to judicial adjudications); cf. id. at 1050-51 (recognizing that privacy interests of "innocent third parties" may warrant exception to presumption of public access). We therefore refer to Reingold by his name on our docket and in this opinion. Nevertheless, because the district court's published opinion is reported as United States v. C.R., we cite it as such.
