United States v. Jackson

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS DEWAYNE JACKSON, a.k.a. Jason Franklyn, a.k.a. Franklyn666987, Defendant-Appellant.

No. 22-12533

United States Court of Appeals, Eleventh Circuit

April 14, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Florida No. 3:21-cr-00076-TJC-MCR-1 Before WILSON, JORDAN, and HULL, Circuit Judges.

PER CURIAM.

After pleading guilty, Dennis Dewayne Jackson appeals his total sentence of 138 months' imprisonment for receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). On appeal, Jackson argues his 138-month sentence which is below the applicable advisory guidelines range of 151 to 188 months, is both procedurally and substantively unreasonable. Jackson also contends his sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment. After review, we affirm.

I. BACKGROUND

A. Offense Conduct

In March 2022, Jackson pled guilty to three counts of knowingly receiving child pornography. The following facts are drawn from Jackson's presentence investigation report ("PSI"), to which Jackson did not object.

On July 3, 2021, defendant Jackson's brother, John Jackson, Jr., invited an undercover Federal Bureau of Investigations ("FBI") agent to a private online "chat" group on "Kik Messenger" that catered to people interested in sexual activity between "daughters and daddies." The FBI agent was posing as a 14-year-old girl. Once admitted to the group, the FBI agent learned that Jackson and his brother John were listed as its administrators. The FBI agent observed that files containing graphic videos of child pornography were regularly shared to the group's members, including some uploaded by Jackson's brother the same day the agent entered the chat group.

The next day, law enforcement searched a property where the brothers maintained separate residences. A subsequent forensic review of the cellphone of Jackson's brother John revealed that John had traded child pornography with at least five other individuals, including Jackson. Private messages between the brothers showed that Jackson had received seven videos and two images of child pornography from his brother, some of which contained prepubescent children engaging in sexually explicit conduct.

Three of these videos, all received on July 3, 2021, formed the basis for the three counts to which Jackson pled guilty. All three videos depicted adult males penetrating female minors' vaginas. In two of the videos, the minors were fully nude and prepubescent. In one of the videos, the prepubescent minor's eyes were covered with silver duct tape, and she performed oral sex on a second male.

The brothers also discussed a 15-year-old female with whom John was communicating. When Jackson asked his brother whether the female had sent him anything, John sent Jackson photographs of a young female. Jackson responded, "Yummy she need to be fuck by us both right now." Jackson also asked how old the female was, and when his brother said the female was 15 years old and "looking for a daddy," Jackson said, "Ok see if she send any nudes."

In another private message conversation on July 1, 2021, Jackson asked to be added back to the "daughters and daddies" group, and John added Jackson back. When Jackson asked his brother, "Anything good" his brother sent "age difficult files," to which Jackson responded, "Nice." Jackson also advised his brother that he would not save any of the images "this time" and that he had to delete "700 pics and vids" previously.

During a July 22, 2021 interview with FBI agents, Jackson admitted receiving approximately 1,500 images and videos of child pornography over the last two years, as well as distributing about 70 to 80 images of child pornography. Jackson also acknowledged he was an administrator of the "daughters and daddies" chat group and that he had both sent and received child pornography using his Kik Messenger account. Jackson said he knew trading child pornography was illegal.

B. PSI

Jackson's PSI assigned him a base offense level of 22 under U.S.S.G. § 2G2.2(a)(2). The PSI then added: (1) two levels because his offense involved a prepubescent minor, pursuant to § 2G2.2(b)(2); (2) two levels because he knowingly engaged in distribution, pursuant to § 2G2.2(b)(3)(F); (3) four levels because the offense involved material that portrayed sadistic or masochistic conduct or other depictions of violence, or sexual abuse or exploitation of an infant or toddler, under § 2G2.2(b)(4); (4) two levels because he used a computer, under § 2G2.2(b)(6); and (5) five levels because the offense conduct involved 600 or more images, under § 2G2.2(b)(7)(D) and note 6 to the commentary. The PSI then subtracted three levels for Jackson's acceptance of responsibility, under § 3E1.1(a) and (b), yielding a total offense level of 34.

With a criminal history category of I and a total offense level of 34, Jackson's advisory guidelines range was 151 to 188 months of imprisonment. The statutory mandatory minimum for Jackson's offenses was five years in prison, and the maximum was 20 years per count. 18 U.S.C. § 2552(a)(2), (b)(1).

The PSI noted that at the defense counsel's request, a psychologist had conducted a psychosexual evaluation of Jackson. A copy of the psychologist's report was attached to the PSI.

Among other things, the report diagnosed Jackson with generalized anxiety disorder and dependent personality disorder, suggested he was led by his brother into viewing child pornography, and opined that Jackson's recidivism risk for any sexual offense was 3.2%, and lower for a child pornography offense. According to a summary of Jackson's clinical interview, Jackson claimed that (1) he had joined chat groups to make friends, (2) his brother created the "daddies and daughters" chat group and added him as an administrator without his knowledge, (3) his brother sent him child pornography unsolicited, (4) he had told his brother to stop and deleted the images, and (5) at one point he left the group. While Jackson admitted viewing and sharing child pornography, he claimed it was because he wanted to be part of a group and stay connected to his brother. Jackson denied being attracted to minors and said the images made him sick to his stomach.

C. Sentencing Hearing

At sentencing, the district court noted that it had previously sentenced Jackson's brother John. After confirming that there were no objections to the PSI, the district court adopted the PSI and found that Jackson's advisory guidelines range was 151 to 188 months.

The government requested a 168-month sentence, which was in the middle of the range. The government cited, inter alia, Jackson's and his brother's deep involvement in co-administrating the chat group, Jackson's careful deletion of images and videos so that they would not be found on his phone, Jackson's admission that he received about 1,500 files of child pornography over a two-year period, and the violent nature of some of the files the FBI had recovered.

The government discounted the psychologist's report, noting that the report acknowledged Jackson had minimized his conduct and may have been deceptive during his interview. The government stressed that during his interview with the psychologist, Jackson denied conduct that was established during the investigation, including his viewing of child pornography and being an administrator of the "daddies and daughters" group. The government also noted that Jackson gave encouraging responses to his brother's messages about a 15-year-old female. The government argued that the psychologist's 3.2% recidivism rate was highly suspect given Jackson's deception during the interview.

Jackson requested a downward variance to the mandatory minimum sentence of 60 months. Jackson stated that he had "no objection to the Court giving the advisory guidelines respectful consideration." Jackson argued, however, that the guidelines were not entitled to substantial weight in light of the U.S. Sentencing Commission's report to Congress, which "shows the problem that we have in these kind[s] of cases, especially Section 2G2.2, where it doesn't help the Court to distinguish between offenders based on their relative culpability and their dangerousness." Jackson contended the provisions of § 2G2.2 "are outdated," "concentrate most offenders at or near the statutory maximum," and fail to "distinguish between the most culpable offenders," such as Jackson's brother, and "those who committed minor offenses."

With respect to the other § 3553(a) factors, Jackson emphasized: (1) his brother's higher degree of culpability, characterizing himself as merely "a follower"; (2) his difficult childhood, which included sexual abuse by his father and a cousin, physical and emotional neglect by his parents, his removal from his parents' home by child protective services and placement with his aunt, his father's incarceration, his family's history of mental illness, and his own attempted suicide; (3) the continued support of Jackson's wife and aunt; (4) Jackson's own expressions of remorse and a desire for rehabilitation during his allocution; (5) the lack of any prior criminal history; (6) the fact that Jackson's offense did not involve advertising, pimping, or trafficking, and there was no evidence of "deep-seated pedophilia or predatory sexual conduct"; and (7) the psychologist's opinion that his recidivism rate was only 3.2%.

D. District Court's Sentence

After considering the § 3553(a) factors, the district court determined a downward variance was appropriate and imposed a total sentence of 138 months-13 months below the low end of the advisory guidelines range. The...