United States v. Juwa

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06-2716-cr
United States v. Juwa
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2007 4
(Argued: September 5, 2007 Decided: November 28, 2007) 5
Docket No. 06-2716-cr 6
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UNITED STATES OF AMERICA, 8
9
Appellee, 10
11
-- v. -- 12
13
ARTHUR JUWA, 14
15
Defendant-Appellant. 16
17
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19
B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. 20
Appeal by Defendant Arthur Juwa from a judgment of 21
conviction of one count of possession of child pornography in 22
violation of 18 U.S.C. § 2252A(a)(5)(B), challenging a sentence 23
of 90 months’ imprisonment, entered in the United States District 24
Court for the Southern District of New York (Stephen C. Robinson, 25
Judge). Because it is unclear to what extent the district court 26
based its sentencing enhancement on unsubstantiated charged 27
conduct, we hold that the sentence was procedurally unreasonable. 28
VACATED AND REMANDED. 29
MALVINA NATHANSON, New York, 30
N.Y., for Defendant-Appellant. 31
32
EUGENE INGOGLIA, Assistant 33
United States Attorney, of 34
counsel, (Katherine Polk 35

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Failla, Assistant United 1
States Attorney, of counsel, 2
on the brief), for Michael J. 3
Garcia, United States Attorney 4
for the Southern District of 5
New York, New York, N.Y., for 6
Appellee. 7
JOHN M. WALKER, JR., Circuit Judge: 8
Defendant-Appellant Arthur Juwa, who pled guilty to one 9
count of possession of child pornography, asks us to vacate and 10
remand his sentence of 90 months’ imprisonment because it was 11
procedurally and substantively unreasonable. In this case, the 12
recommended Sentencing Guidelines range was 24 to 30 months’ 13
imprisonment, which both parties agreed would be reasonable. The 14
district court (Stephen C. Robinson, Judge), however, imposed a 15
sentence of 90 months based, at least in part, on pending state 16
charges against Juwa for sexual abuse of a minor. In declaring 17
its reasons for the upward departure, the district court cited 18
the fact that Juwa had engaged in sexual conduct with a minor 19
child “on repeated occasions.” Yet Juwa had indicated his intent 20
to plead guilty only to one count of felony sexual abuse in the 21
state case. Because it is unclear to what extent the district 22
court impermissibly based its sentencing enhancement on 23
unsubstantiated charged conduct, we hold that the sentence was 24
procedurally unreasonable, and we vacate and remand for 25
resentencing. 26
27

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BACKGROUND 1
On February 16, 2005, while investigating allegations of 2
sexual abuse of a minor in Rockland County, New York, state law 3
enforcement officers conducted a search of Juwa’s home and car. 4
In his car, they found a laptop computer containing images of 5
child pornography, at least one of which had been downloaded from 6
the Internet. Juwa was charged federally with one count of 7
receiving and distributing images containing child pornography, 8
in violation of 18 U.S.C. § 2252A(a)(2)(B), and one count of 9
possessing child pornography, in violation of 18 U.S.C. § 10
2252A(a)(5)(B). 11
On October 19, 2005, Juwa agreed to plead guilty in federal 12
court to possession of child pornography. In calculating the 13
applicable Sentencing Guidelines range, the parties and the 14
Probation Office determined that under U.S.S.G. § 2G2.2, Juwa’s 15
base offense level was 18. A two-level increase for the use of a 16
computer and a three-level decrease for acceptance of 17
responsibility produced an adjusted offense level of 17. With a 18
Criminal History Category of I, the resulting Guidelines range 19
was 24 to 30 months’ imprisonment. In the plea agreement, Juwa 20
and the government agreed that they would not seek any downward 21
or upward departures, respectively, and that a sentence within 22
this range would be reasonable. 23
The Presentence Report (“PSR”) prepared by the Probation 24

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Office on December 20, 2005, noted that Juwa’s laptop had been 1
seized during the Rockland County investigation into charges of, 2
inter alia, sexual abuse and sexual misconduct against a child 3
(“the Rockland County case”). The PSR further noted that Juwa 4
had been arrested on March 22, 2005, on the following state 5
charges: course of sexual conduct against a child in the first 6
degree (one count); criminal sexual act in the first degree (four 7
counts); sexual abuse in the first degree (three counts); and 8
endangering the welfare of a child (one count). The state 9
indictment alleged that, on various dates between December 25, 10
2001 and December 31, 2004, Juwa had engaged in oral sexual 11
conduct with his nephew, who was eight years old at the time of 12
Juwa’s arrest. According to the PSR, however, Juwa had not 13
admitted to those allegations. The Probation Office ultimately 14
recommended a term of 24 months’ imprisonment, at the bottom of 15
the Guidelines range, followed by three years’ supervised 16
release. 17
On January 26, 2006, Juwa appeared before the district court 18
for sentencing. The district judge indicated that he had 19
received and read defense counsel’s submissions, which included 20
letters in support of Juwa, as well as two “victim impact 21
statements” submitted by Juwa’s nephew and the nephew’s mother 22
through the U.S. Attorney’s Office. Defense counsel objected to 23
consideration of these letters because Juwa’s nephew was not a 24

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victim of the federal offense. The district judge stated that he 1
would hear from both the defense and the prosecution, as well as 2
from the nephew and the nephew’s mother. If he decided to 3
consider the latter’s statements or to consider an upward 4
departure, or both, he would adjourn the sentencing proceeding to 5
give defense counsel an opportunity to respond. 6
After giving all relevant parties a chance to speak, the 7
district judge stated that he would not consider the victim 8
impact statements but that he would consider an upward departure. 9
In particular, he was interested in the status and timeline of 10
the Rockland County case, whether Juwa was going to plead guilty 11
to those charges, and if and when he would be sentenced in that 12
case. After asking the defense and the government “to contact 13
their corresponding parties in the Rockland County case” and 14
clarify these issues, the district judge adjourned the 15
proceeding. 16
Sentencing resumed on May 9, 2006. The district judge began 17
by noting that, in the interim, he had received a letter from the 18
government indicating its understanding that the Rockland County 19
case would not be resolved until after Juwa’s federal sentencing; 20
that Juwa intended to plead guilty to one count of felony sexual 21
abuse; and that the anticipated sentence was five years’ 22
imprisonment, to run concurrently with his federal sentence. 23
Defense counsel indicated that he had no objections to the 24

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contents of the government’s letter. 1
The defense then asked the district court to impose a 2
sentence within the Guidelines range, citing the nature of the 3
crime and Juwa’s lack of criminal history, and stating that, 4
“apart from the Rockland County matter, there is nothing that 5
would warrant either a departure or stepping outside the 6
guidelines in applying the sentence.” The district court, 7
however, stated that it could not look past the Rockland County 8
case. In response, the defense argued that if the Rockland 9
County case was taken into account, the district court should 10
apply U.S.S.G. § 2G2.2(b)(5), which states: “If the defendant 11
engaged in a pattern of activity involving the sexual abuse or 12
exploitation of a minor, increase by 5 levels.” U.S.S.G. § 13
2G2.2(b)(5). A five-level increase would result in a Guidelines 14
range of 41 to 51 months. The defense also acknowledged 15
Application Note 6, which provides for an unspecified upward 16
departure “[i]f the defendant engaged in the sexual abuse or 17
exploitation of a minor at any time (whether or not such abuse or 18
exploitation occurred during the course of the offense or 19
resulted in a conviction for such conduct),” but argued that even 20
under this provision, a five-level increase would be sufficient. 21
U.S.S.G. § 2G2.2 Application Note 6. 22
The district judge then indicated that although he would not 23
consider the disposition of the Rockland County case, he would 24

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consider the underlying misconduct and would sentence “based on 1
the information before me.” Prior to imposing the sentence, the 2
district judge noted the relevant factors before him, including 3
the recommended Guidelines range, the pending state charges, and 4
the representation that Juwa would plead guilty to one count of 5
felony sexual abuse. He then discussed the factors that he was 6
directed to consider pursuant to 18 U.S.C. § 3553(a), as well as 7
the upward departure provisions of U.S.S.G. § 2G2.2(b)(5) and 8
Application Note 6. Regarding the Rockland County conduct, the 9
district judge stated that “[t]his Court is permitted to consider 10
this abuse, even though Mr. Juwa has not yet pled guilty in state 11
court. Considering this conduct, then, the Court imposes a 12
guidelines sentence of 90 months,” pursuant to Application Note 13
6. 14
In the alternative, the district judge stated that he would 15
impose a non-Guidelines sentence of 90 months, given that there 16
were no restrictions on the type of information a sentencing 17
court could consider in arriving at an appropriate sentence. But 18
in describing his reasons for imposing this non-Guidelines 19
sentence, the district judge stated that “Mr. Juwa has engaged in 20
sexual conduct with a minor child. He has done so on repeated 21
occasions.” In addition to the term of imprisonment, the 22
district judge ordered a three-year term of supervised release 23
and a mandatory special assessment of $100. 24

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Defense counsel objected to the sentence as excessive and 1
pointed out that Juwa had not agreed to plead guilty to every 2
count of the Rockland County indictment. To this, the district 3
court replied, ”I said he intended to plead to one count. . . . 4
Sexual abuse.” In the written judgment of conviction, the 5
district court provided the following explanation for imposing a 6
sentence outside the advisory Guidelines range: “The defendant, 7
through his attorney, and the gov’t informed the Court that the 8
defendant was going to enter a plea of guilt to an aggravated 9
sexual assault charge in State Ct. That charge was for molesting 10
his nephew for 3 years from the ages of . 7-10.” 11
Juwa ultimately pled guilty to count six of the Rockland 12
County indictment (“sexual abuse in the first degree”), in that 13
he “subjected another person who was less than eleven years old . 14
. . to sexual contact on December 25, 2001" in violation of New 15
York Penal Law § 130.65. This appeal followed. 16
DISCUSSION 17
We review a district court’s sentencing determination for 18
reasonableness. United States v. Booker, 543 U.S. 220, 260-62 19
(2005). Reasonableness review has both a procedural and a 20
substantive component; it involves “consideration not only of the 21
sentence itself, but also of the procedures employed in arriving 22
at the sentence.” United States v. Fernandez, 443 F.3d 19, 26 23
(2d Cir. 2006); see also United States v. Rattoballi, 452 F.3d 24

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127, 131-32 (2d Cir. 2006). “If a sentencing judge committed a 1
procedural error by selecting a sentence in violation of 2
applicable law, and that error is not harmless and is properly 3
preserved . . . for review . . . , the sentence will not be found 4
reasonable.” United States v. Crosby, 397 F.3d 103, 114 (2d Cir. 5
2005) (citation omitted). 6
Juwa challenges his sentence on both procedural and 7
substantive grounds. He argues that the district court committed 8
procedural error when it did not adequately explain the reasoning 9
behind its sentence, as required by 18 U.S.C. § 3553(c)(2), and 10
when it relied on a fact concerning Juwa’s other misconduct that 11
had not been established by admission or by a preponderance of 12
the evidence. Juwa further argues that the sentence was 13
substantively unreasonable in light of his favorable background 14
and the relatively minor nature of his offense. Because we agree 15
that the sentence was procedurally unreasonable, we need not 16
answer the question of substantive reasonableness. See id. at 17
114 (“[A] sentence would not be ‘reasonable,’ regardless of 18
length, if legal errors, properly to be considered on appeal, led 19
to its imposition.”). 20
I. The District Court’s Statement of Reasons 21
Section 3553(c)(2) of Title 18 requires a sentencing judge 22
to state in open court the reasons for imposing a particular 23
sentence. If the sentence is outside the applicable Guidelines 24

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range, the district court must state its reasons for deviating 1
from the Guidelines “with specificity” in the written order of 2
judgment. 18 U.S.C. § 3553(c)(2). As we have noted, the writing 3
and specificity requirements serve the important purpose of 4
facilitating effective review in the courts of appeals. See 5
United States v. Jones, 460 F.3d 191, 197 (2d Cir. 2006) (“[I]t 6
will generally be helpful to the reviewing court . . . to have 7
the judge’s statement of reasons for a sentence outside an 8
applicable guideline conveniently set forth in the written order 9
of judgment and commitment.”). 10
In this case, the district judge discussed in open court the 11
§ 3553(a) factors that every sentencing judge must consider, 12
including the nature and circumstances of the offense, the 13
history and characteristics of the defendant, the applicable 14
Guidelines range, and the need for the sentence to serve the 15
goals of retribution, deterrence, and incapacitation. See 18 16
U.S.C. § 3553(a). In the written order of judgment, the district 17
court identified the following reasons for imposing a non- 18
Guidelines sentence: “the nature and circumstances of the offense 19
and the history and characteristics of the defendant”; “to 20
reflect the seriousness of the offense, to promote respect for 21
the law, and to provide just punishment for the offense”; “to 22
afford adequate deterrence to criminal conduct”; and “to protect 23
the public from further crimes of the defendant.” To this point 24

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the district judge’s recitation of the sentencing reasons set 1
forth in § 3553(a) was not objectionable, even though we have 2
stated our preference that the reasons be tied to the facts of 3
the case. See Rattoballi, 452 F.3d at 133, 138. 4
The problem arose when the district judge discussed the 5
Rockland County conduct that figured into his decision to depart 6
upwardly from the Guidelines. He stated that he was applying 7
U.S.S.G. § 2G2.2 Application Note 6, which permits an upward 8
departure if the defendant engaged in sexual abuse of a minor at 9
any time. And twice, after noting Juwa’s sexual misconduct with 10
a minor, the district judge declared, “Considering this conduct, 11
then, the Court imposes a . . . sentence of 90 months.” 12
But there is uncertainty from both the sentencing transcript 13
and the written order surrounding whether and to what extent the 14
district judge based his sentencing enhancement on the assumption 15
that Juwa had engaged in multiple instances of sexual abuse, as 16
opposed to the single instance to which Juwa had anticipated 17
pleading guilty in state court. Indeed, there is evidence in the 18
record that the district judge was aware that Juwa intended to 19
plead guilty to just one count in the indictment, but there is 20
also evidence that he believed that Juwa had engaged in multiple 21
instances of sexual abuse. In describing the circumstances 22
relevant to sentencing, the district judge stated: 23
[T]he government has informed me by letter dated February 24
27, 2006, a letter which defense counsel has received and 25

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agrees with, that the defendant’s case in Rockland County is 1
expected to be resolved with a guilty plea by the defendant 2
to one count of felony sexual abuse after my sentencing 3
today. 4
But immediately afterward, he stated, “Mr. Juwa’s counsel has 5
represented to this Court that Mr. Juwa will plead guilty to 6
those charges.” The district judge later reiterated, “Mr. Juwa 7
has been charged with engaging in sexual conduct with a minor 8
child, and will plead guilty to that offense when he is before 9
another judge.” But he went on to say, “Mr. Juwa has engaged in 10
sexual conduct with a minor child. He has done so on repeated 11
occasions. Considering this conduct, this Court imposes a 12
nonguidelines sentence of 90 months.” When defense counsel 13
attempted to clarify that Juwa had not agreed to plead to every 14
count in the Rockland County indictment, the district court 15
indicated that it understood: “I said he intended to plead to one 16
count.” However, in the written statement of reasons, the 17
district judge cited as a reason for his departure the fact that 18
Juwa “was going to enter a plea of guilt to an aggravated sexual 19
assault charge . . . for molesting his nephew for 3 years.” In 20
fact, consistent with his stated intention, Juwa ultimately pled 21
guilty to just one instance of sexual contact with his nephew, on 22
December 25, 2001. Thus, it is insufficiently clear whether the 23
district court based its sentence on charged conduct that had 24
neither been sufficiently established nor admitted to by the 25
defendant. The confusion surrounding the basis for the district 26

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court’s determination rendered the sentence procedurally 1
unreasonable, and a remand is necessary to resolve that 2
uncertainty. 3
II. Reliance on an Unsubstantiated Fact 4
If, as Juwa argues, the district court sentenced him in 5
reliance on the assumption that Juwa had sexually abused a minor 6
on more than one occasion, this reliance was improper on the 7
record before us. Because Juwa agreed to admit only to a single 8
incident charged in the Rockland County indictment, and because 9
the district court had ruled out reliance on the oral and written 10
testimony of Juwa’s nephew and the nephew’s mother, the district 11
court, as far as we can tell, was not presented with reliable 12
substantiation for the remaining charges in the state indictment. 13
Under such circumstances, a sentence enhancement based solely on 14
unproven charges in an indictment would be improper. 15
A sentencing court is not limited to considering only 16
evidence of the convicted offense; it may take into account other 17
relevant conduct, see U.S.S.G. § 1B1.3 cmt. (“Conduct that is not 18
formally charged or is not an element of the offense of 19
conviction may enter into the determination of the applicable 20
guideline sentencing range.”), and even acquitted conduct, see 21
United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005); see 22
also Wasman v. United States, 468 U.S. 559, 563 (1984) 23
(describing sentencing court’s discretion to “consider any and 24

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all information that reasonably might bear on the proper sentence 1
for the particular defendant”). 2
Nevertheless, there are distinct limits to this discretion, 3
and they include a defendant’s due process right to be sentenced 4
based on accurate information. See United States v. Tucker, 404 5
U.S. 443, 447 (1972); see also Townsend v. Burke, 334 U.S. 736, 6
740-41 (1948) (noting that “whether caused by carelessness or 7
design, [it] is inconsistent with due process of law” for a 8
defendant to be sentenced based on assumptions concerning his 9
criminal record that were materially untrue, when the defendant’s 10
sentence had been influenced by other criminal charges to which 11
he had not pled guilty). As the Third Circuit stated in United 12
States v. Matthews, “[f]actual matters considered as a basis for 13
sentence must have ‘some minimal indicium of reliability beyond 14
mere allegation.’” 773 F.2d 48, 51 (3d Cir. 1985) (quoting 15
United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982)). 16
We have held that facts relevant to sentencing must be found 17
by a preponderance of the evidence. Vaughn, 430 F.3d at 525; 18
United States v. Concepcion, 983 F.2d 369, 388 (2d Cir. 1992). 19
Here, the district judge applied the upward departure provision 20
of U.S.S.G. § 2G2.2 Application Note 6 in imposing “a guidelines 21
sentence of 90 months.” In the alternative, he imposed “a 22
nonguidelines sentence of 90 months” based, at least in part, on 23
the Rockland county conduct. If he imposed this sentence based 24

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on a finding that Juwa had sexually abused a minor on multiple 1
occasions, that finding would have to have been substantiated by 2
a preponderance of the evidence. There was, however, no evidence 3
of which we are aware to support that finding apart from the 4
charges contained in the state indictment, and a bare-bones 5
indictment, without more, is insufficient to support a factual 6
underpinning for sentencing purposes. 7
It is axiomatic that in a criminal trial “an indictment is 8
not evidence of guilt,” nor may it alter the presumption of 9
innocence with which every defendant is cloaked; it is “only a 10
finding of probable cause that a crime has been committed.” 11
United States v. Romano, 706 F.2d 370, 374 (2d Cir. 1983) 12
(emphasis added). While the evidentiary standard at sentencing 13
is more relaxed than at trial, and the burden of proof on the 14
government is a preponderance of the evidence and not beyond a 15
reasonable doubt, probable cause is a lower standard than 16
preponderance of the evidence; it “requires only a probability or 17
substantial chance of criminal activity, not an actual showing of 18
such activity.” United States v. Bakhtiari, 913 F.2d 1053, 1062 19
(2d Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 20
(1983)). Moreover, an indictment is not meant to serve an 21
evidentiary function. Its primary purpose is to “acquaint the 22
defendant with the specific crime with which he is charged,” 23
United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir. 1973) 24

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(internal quotation marks and citation omitted), allow him to 1
prepare his defense, and protect him from double jeopardy, United 2
States v. Doe, 297 F.3d 76, 87 (2d Cir. 2002); see also United 3
States v. Dhinsa, 243 F.3d 635, 667 (2d Cir. 2001) (describing 4
notice function); United States v. D’Anna, 450 F.2d 1201, 1204 5
(2d Cir. 1971) (notice and protection from double jeopardy). 6
We therefore adhere to the prescription that at sentencing, 7
an indictment or a charge within an indictment, standing alone 8
and without independent substantiation, cannot be the basis upon 9
which a criminal punishment is imposed. Some additional 10
information, whether testimonial or documentary, is needed to 11
provide evidentiary support for the charges and their underlying 12
facts. 13
Given that Juwa intended to plead guilty, and ultimately did 14
plead guilty in state court, to only one instance of sexual 15
abuse, and given the lack of reliable independent information to 16
support the other charges in the state indictment, it was 17
impermissible for the district court to simply assume the 18
multiple charges to be true and to enhance Juwa’s sentence 19
accordingly. As we have discussed, however, it is unclear from 20
the record whether the district court did rely on the assumption 21
that Juwa had engaged in sexual misconduct on more than one 22
occasion. Therefore, we remand the case to the district court 23
with instructions to resentence the defendant consistent with 24

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this opinion and to make clear the basis upon which the sentence 1
rests. 2
CONCLUSION 3
For the foregoing reasons, the judgment of sentence is 4
VACATED and the case is REMANDED for resentencing. 5
6

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