author: BARRINGTON D. PARKER, Circuit Judge: KEARSE, Circuit Judge,

text:
    UNITED STATES of America, Appellee, v. Joseph Vincent JENKINS, Defendant-Appellant.
    No. 14-4295-cr
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: May 18, 2016
    Decided: April 17, 2017

      Daniel DeMaeia, Merchant Law Group LLP, New York, NY, for Defendant-Appellant.
    Rajit S. Dosanjh (Tamara Thomson, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney, Northern District of New York, Syracuse, NY, for Appellee.
    Before: KEARSE, JACOBS, and PARKER, Circuit Judges.
   Judge KEARSE concurs in part and dissents in part in a separate opinion.

BARRINGTON D. PARKER, Circuit Judge:

A jury found Joseph Vincent Jenkins guilty of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(l), based on the government’s proof at trial that Jenkins owned a collection of child pornography and brought it across the U.S.-Canada border on the way to a family vacation for his personal viewing.

The United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge) imposed concurrent sentences of 120 months for the possession count, the statutory maximum, and 225 months for the transportation count, just below the statutory maximum of 240 months. The court also imposed a term of 25 years of supervised release. Jenkins challenges his conviction and the procedural and substantive reasonableness of his sentence.

The government’s evidence established that Jenkins, a first time felony offender, maintained a collection of child pornography on a personal computer and thumb drive for personal use. He did not produce or distribute child pornography and did not contact or attempt to contact a minor. He “transported” his images in the technical sense that he brought them on a family vacation that involved his crossing the Canadian border and he was apprehended at the Canadian side. For the reasons that follow, we hold that a sentence of 225 months and 25 years of supervised release is substantively unreasonable. Accordingly, we vacate the sentence and remand for resentencing.

BACKGROUND

On May 24, 2009, Jenkins attempted to enter Canada from the United States at the border crossing in Landsdowne, Ontario. Jenkins, who was 39 years old at the time, was traveling alone from his home in Geneva, New York to spend a week with his parents at their summer home in Quebec. Canadian border agents searched his vehicle and discovered a Toshiba laptop, a Compaq laptop, and three USB thumb drives.

Jenkins’s “demeanor” prompted the agents to search the devices. After finding child pornography on the Toshiba laptop and on one of the thumb drives, the agents seized all the devices and arrested and subsequently charged him with child pornography offenses under the Canadian Criminal Code.

After being released on bail, Jenkins did not appear on his scheduled trial date and the Canadian court issued a bench warrant for his arrest. Canadian agents subsequently contacted the U.S. Department of Homeland Security (“DHS”), inquiring whether DHS was interested in information about the case. DHS then commenced an investigation, obtained Jenkins’s electronic devices from Canadian authorities, and proceeded to examine them. This examination confirmed that the devices contained images and videos depicting child pornography. Jenkins was subsequently arrested by U.S. law enforcement officials and charged with possessing and transporting child pornography. The case proceeded to trial, where the government introduced the devices and the images into evidence, and presented both Canadian and DHS officials as witnesses.

Jenkins testified at trial, making a number of contentions that turned out to be false. First, he contended that contractors working for his electrical contracting business had frequent access to all areas on his laptops and could take his laptops home. Jenkins denied that the thumb drives were in his truck and asserted that he had never seen them before. Finally, he claimed that he was absent from the Canadian trial because his lawyer there had suggested to him that “you could just not return to Canada if you want to just not deal with the charge.” App. 631. The jury ultimately credited the government’s version of events and returned a guilty verdict on both counts on February 6, 2014.

The Probation Office issued its Presen-tence Investigation Report (“PSR”) in April 2014. Applying United States Sentencing Guideline § 2G2.2 for child pornography offenses, the PSR calculated Jenkins’ base offense level as 22. § 2G2.2(a)(2). The PSR recommended four enhancements: (i) two levels for possessing material involving a prepubescent minor, id. § 2G2.2(b)(2); (ii) four levels for material portraying sadistic or masochistic conduct or other forms of violence, § 2G2.2(b)(4); (iii) two levels because the offenses involved the use of a computer, id. § 2G2.2(b)(6); and (iv) five levels because the offenses involved 600 or more images, id. § 2G2.2(b)(7)(D). These enhancements raised Jenkins offense level from 22 to 35. Jenkins received no offense level reductions for acceptance of responsibility. Because Jenkins only had a prior misdemeanor offense, he was found to have a Criminal History Category of I. In addition, at the sentencing hearing, the government sought a two-level enhancement for obstruction of justice contending that Jenkins had offered false exculpatory testimony at trial. See id. § 3C1.1. The district court agreed and applied the enhancement. It also adopted the factual findings and Guidelines recommendations from the PSR. The result was a total offense level of 37, yielding a Guidelines range of 210 to 262 months.

The sentencing hearing was a stormy one at which Jenkins, an intemperate, out-of-control pro se litigant, repeatedly clashed with the court. For example, the following colloquy transpired after Jenkins conceded that it was too late for him to retain new counsel, and the court informed Jenkins that the sentencing hearing would nevertheless proceed:

THE DEFENDANT:
Well, I mean, I’ve pretty much demanded that — I don’t feel you have any right to sentence me after all these antics and there’s a lot of screwing around here and I don’t agree with it and I’ve repeatedly asked Ms. Peebles [Jenkins’s attorney] here to file a petition to have you removed and I think that there’s grounds for it. I’ve been going over submissions the last few weeks and court transcripts. I mean, that’s what I want. I’d rather — I mean, you’ve set a record' that — I mean, she hasn’t done what I’ve asked her to do. We’ve been going around for a few months arguing.
THE COURT:
No attorney’s done what you’ve asked them to do, according to you, despite being represented by a number of different counselors. You started with Mr. Parry. You referred to him as an idiot and not knowing what he was doing. The Court sent numerous attorneys to meet with you in the jail so you could retain someone. You made derogatory comments about the people that were very well-regarded in this community, legal community, as far as representing federal defendants. Then we provided you with a list of CJA attorneys that are admitted to the Northern District of New York to give you an opportunity to retain somebody. You did retain an Aaron Goldsmith out of New York who represented you at trial and then he requested to be relieved because of his irreconcilable differences with you and not being able to get along with you. And then, you know, the federal public defender’s office was assigned by Judge Peebles and has represented you, in this Court’s view, in a very capable and competent manner and here we are again. So, sir, you can demand all you want. You can criticize. You can blame everybody else. You can say it’s the attorney’s fault. But we’re at a point, sir, where we’re going to proceed with sentencing. You have counsel. You’ve been represented well and you’ve had an opportunity to submit everything that you’ve wanted to to this Court and I’ve reviewed everything that you submitted, despite its derogatory tone and comments, disrespectful comments to this Court and everybody else that you’ve had to deal with, sir.
So, you’ll be given a full opportunity to say anything you want. If you’re not going to retain somebody, certainly this Court is not going to appoint another attorney to represent you at this point.
So you can proceed by representing yourself today. That’s up to you, sir, but we’re going to proceed with sentencing.

App. 835-37.-

The district court imposed a sentence of 225 months for the transportation charge and a concurrent sentence of 120 months for the possession charge, the statutory maximum. See 18 U.S.C. §§ 2252A(b)(l) and (2). Judge Suddaby also imposed on Jenkins 25 years of extensive conditions of supervised release. Some of them were obviously appropriate but others were unexplained by the sentencing judge and were imposed without regard to the personal characteristics of the defendant and the circumstances of his offense. In view of Jenkins’s age, this sentence effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life.

Jenkins was required to register as a sex offender in any state in which he resided or worked. He was required not to “use or possess any computer or any other device with online capabilities, at any location, except at your place of employment, unless you participate in the Computer Restriction and Monitoring Program.” The Probation Office was further allowed “to conduct periodic, unannounced examinations of any computer equipment you use or possess, limited to all hardware and software related to online use.” Notwithstanding the fact that he had never contacted or attempted to contact any minor, he was forbidden from having “any direct contact with a person under the age of 18 unless it is supervised by a person approved of by the probation officer.” Further, he was forbidden from having any “indirect contact [sic] with a person under the age of 18 through another person or through a device (including a telephone, computer, radio, or other means) unless it is supervised by a person approved by the probation officer.” He was further directed to “reasonably avoid and remove” himself from “situations in which [he has] any other form of contact with a minor.” He was directed “not to be in any area in which persons under the age of 18 are likely to congregate, such as school grounds, child care centers, or playgrounds, without the permission of the probation officer.”

Jenkins’s possibility of any post-release employment during the 25-year period was also severely limited by Judge Sudda-by. Jenkins was permitted to work only at locations approved by the Probation Office. If his employment involved the use of a computer, Jenkins was required to notify his prospective employer of the nature of his conviction and the fact that his conviction was facilitated by the use of a computer. Finally, Jenkins was effectively forbidden by the district court from using credit cards during his supervised release. Specifically, he was forbidden from incurring charges to his credit cards or from opening additional lines of credit without prior approval from the Probation Office.

The district court offered only formulaic reasoning for the period of incarceration and the broad-ranging post-release restrictions it imposed. The court’s reasoning centered on Jenkins’s lack of respect for the law. The district court stated:

You’ve demonstrated that you have a total lack of respect for the law and disdain for the law. That [is,] in the Court’s view it is without question that, if given- the opportunity, you will do exactly what you want to do in any situation and you are a very high risk to reoffend.
You attempted to transport thousands of images and videos of child pornography into Canada and then later failed to appear for your Canadian trial. You attempted to evade justice and when you were arrested in the United States, you blamed Canada ... You have since demonstrated total disregard for the law and a complete lack of respect for this Court and any of the attorneys who have tried to help you.

App. 860-61. The district court concluded: “[b]ased on these factors and your large collection of child pornography, the Court has imposed a sentence that reflects the seriousness of your crime, that promotes respect for the law, and that provides you with adequate deterrence from committing further crimes, and that protects the public.” App. 861. Jenkins timely appealed.

DISCUSSION

A sentence is substantively unreasonable if it “cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d 208, 298 (2d Cir. 2007)). In determining whether a sentence falls within the permissible range, we “patrol the boundaries of reasonableness,” cognizant of the fact that responsibility for sentencing is placed largely with the district courts. Id. at 191. Our review is limited because the district court is in a different fact finding position, which allows it to interact directly with the defendant, thereby gaining insights that are not always conveyed by a transcript. United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). Nonetheless, the length of a sentence may, with or without far reaching post-release restrictions, make it excessively punitive or needlessly harsh. See U.S. v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Sentences that fall into these categories are “shockingly high” ones that-serve no valid public purpose. United States v. McGinn, 787 F.3d 116, 129 (2d Cir. 2015).

Our review of a sentence for substantive reasonableness is governed by the factors set forth in 18 U.S.C. § 3553(a). United States v. Carr, 557 F.3d 93, 107 (2d Cir. 2009). One important factor is the need for the sentence to reflect the seriousness of the offense and to promote respect for the law. 18 U.S.C. § 3553(a)(2)(A). Others are to “provide just punishment for the offense;” “afford adequate deterrence to criminal conduct;” and “protect the public from further crimes of the defendant,” id. § 3553(a)(2), or more succinctly, to fulfill the purposes of “retribution, deterrence, and incapacitation,” United States v. Park, 758 F.3d 193, 200 (2d Cir. 2014). Additional factors are supplied by the Guidelines under which sentencing courts are required to consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. §§ 3553(a)(1) and (6).

We are also obligated to consider whether conditions of supervised release imposed by the district court are reasonably related to certain statutory sentencing factors listed in §§ 3553(a)(1) and (a)(2); involve no greater deprivation of liberty than is reasonably necessary to implement the statutory purposes of sentencing; and are consistent with pertinent Sentencing Commission policy statements. United States v. Dupes, 513 F.3d 338, 343 (2d Cir. 2008) (citing 18 U.S.C. § 3583(d)). While district courts have broad discretion to tailor conditions of supervised release, United States v. Gill, 523 F.3d 107, 108 (2d Cir. 2008), that discretion is not unfettered, United States v. Doe, 79 F.3d 1309, 1320 (2d Cir. 1996). It is the responsibility of our court to carefully scrutinize conditions that may be excessively harsh or inexplicably punitive.

We evaluate in turn whether each sentencing factor, “as explained by the district court, can bear the weight assigned it under the totality of circumstances in the case.” Cavera, 550 F.3d at 191. We conclude that the factors upon which the district court relied — retribution, deterrence, and incapacitation, and the attributes of Jenkins and his crimes— cannot bear the weight of the sentence the district court imposed. Our conclusion that the sentence is excessive is reinforced by the need to avoid unwarranted sentence disparities and by the need to avoid excessively severe conditions of supervised release. On remand, we are confident that Jenkins will eventually receive a sentence that properly punishes the crimes he committed. But Judge Suddaby, in imposing his sentence, went far overboard.

I.

Consistent with 18 U.S.C. § 3553(a)(4), the district court’s starting point was U.S.S.G. § 2G2.2, the guideline governing child pornography offenses. In United States v. Dorvee, we held that this Guideline “is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” 616 F.3d 174, 184 (2d Cir. 2010).

' First, we observed that the Sentencing Commission has not been able to apply its expertise but instead has increased the severity of penalties “at the direction of Congress,” despite “often openly op-pos[ing] these Congressionally directed changes.” Id. at 184-86. Second, we noted that four of the sentencing enhancements were so “run-of-the-mill” and “all but inherent to the crime of conviction” that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months” based on an offense level increased from the base level of 22 to 35. Id. at 186. We emphasized that this range was likely to be unreasonable because it was “rapidly approaching the statutory maximum” for distribution of child pornography, and because the offense level failed to sufficiently distinguish between “the most dangerous offenders” who “distribute child pornography for pecuniary gain and who fall in higher criminal history categories” and those who distribute for personal, non-commercial reasons. Id. at 186-87. Also, we held that this range demonstrated “irrationality in § 2G2.2” because it was substantially more severe than for an adult “who intentionally seeks out and contacts a twelve-year-old on the internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child.” Id. at 187.

The concerns we expressed in Dorvee apply with even more force here and none of them appears to have been considered by the district court. Jenkins received precisely the same “run-of-the-mill” and “all-but-inherent” enhancements that we criticized in Dorvee, resulting in an increase in his offense level from 22 to 35. These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child. Because he also received an enhancement for his false exculpatory testimony at trial, which we conclude was appropriate, his offense level was 37, producing a Guidelines range of 210 to 262 months. Even without this additional enhancement, the Guidelines range of 168 to 210 months exceeds the statutory maximum of 120 months for Jenkins’s possession charge.

Our conclusion that Jenkins’s sentence was shockingly high is reinforced by the important advances in our understanding of non-production child pornography offenses since we decided Dorvee. To begin with, the latest statistics on the application of sentencing enhancements confirm that the enhancements Jenkins received under this Guideline are all-but-inherent. In 2014, for example, 95.9% of defendants sentenced under § 2G2.2 received the enhancement for an image of a victim under the age of 12, 84.5% for an image of sadistic or masochistic conduct or other forms of violence, 79.3% for an offense involving 600 or more images, and 95.0% for the use of a computer. See U.S. Sentencing Comm’n, Use of Guidelines and Specific Offense Characteristics (Offender Based), Fiscal Year 201) 42-43, available at http:// www.ussc.gov/sites/default/files/pdfr research-and-publications/federal-sentencing-statistics/guideline-application-frequencies/2014/Use_of_SOC_ Offender_Based.pdf.

Since Dorvee, the Sentencing Commission has also produced a comprehensive report to Congress examining § 2G2.2. U.S. Sentencing Comm’n, Report to the Congress: Federal Child Pornography Offenses (2012) [hereinafter “USSC Report”], available at http://www.ussc.gov/sites/ default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/ 201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf. In this report, the Commission explains that it “believes that the current non-production guideline warrants revision in view of its outdated and disproportionate enhancements related to offenders’ collecting behavior as well as its failure to account fully for some offenders’ involvement in child pornography communities and sexually dangerous behavior.” Id. at xxi. Since the Commission has effectively disavowed § 2G2.2, it should be clearer to a district court than when we decided Dorvee that this Guideline “can easily generate unreasonable results.” 616 F.3d at 188.

Here, § 2G2.2 yielded a sentence that derived substantially from “outdated” enhancements related to Jenkins’s collecting behavior. Meanwhile, the government has not alleged that he was involved in the production or distribution of child pornography or that he was involved in any child pornography community. In particular, the government did not claim he used peer-to-peer sharing software, distributed images, or participated in chat rooms devoted to child pornography. Nor does the government allege that he contacted or attempted to contact a child or that he engaged in any “sexually dangerous behavior” separate from his crimes of conviction. Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight assigned it” because the cumu-lation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse. Cavern, 550 F.3d at 191. It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong.

II.

The district court justified its sentence with reference to the size of Jenkins’s collection of child pornography, his refusal to accept responsibility, his attempts to blame others, his disrespect for the law, and his likelihood of reoffending. Paraphrasing the language of 18 U.S.C. § 3553(a)(2), the court concluded that a sentence of 225 months would reflect the seriousness of Jenkins’s offenses, promote respect for the law, provide adequate deterrence, and protect the public. The purposes of retribution, deterrence, and incapacitation are important, and we in no way condone either his consumption of child pornography or his misconduct before various authorities including the district court.

However, every Guidelines sentence is limited by § 3553(a)’s “parsimony clause,” which instructs a district court to impose a sentence “sufficient, but not greater than necessary,” to achieve § 3553(a)(2)’s goals. Dorvee, 616 F.3d at 182. District courts are required to carefully consider on an individualized basis “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Further, those considerations must be applied in the context of the other § 3553(a) factors. After the other factors are considered, upward adjustments may be appropriate for the sake of retribution, deterrence, and incapacitation. However, we conclude that the district court’s considerations cannot reasonably justify regarding Jenkins as the worst of the worst and sentencing him as such.

While he should receive stern punishment for his crimes, the fact remains that the sentence he received fails, as required by § 3553(a)(1), to account for the important differences between the sentence Jenkins and those who produced or distributed child pornography or who physically abused children received. For example, in upholding a sixty-year sentence in United States v. Brown, we found it significant that the defendant had repeated sexual contact with multiple young victims and engaged in the production of child pornography during the course of that abuse. 843 F.3d 74, 83 (2d Cir. 2016). Likewise, in Broxmeyer, we affirmed a thirty-year sentence for child pornography where the defendant was convicted of attempted production of child pornography and committed statutory rape of girls he was supposedly mentoring. 699 F.3d at 297. Whether a child pornography offender has had or has attempted to have contact with children is an important distinction. “The failure to distinguish between contact and possession-only offenders [is] questionable on its face,” and this failure “may go against the grain of a growing body of empirical literature indicating that there are significant, § 3553(a)-relevant differences between these two groups.” United States v. Apodaca, 641 F.3d 1077, 1083 (9th Cir. 2011); see e.g., Shelley L. Clevenger et al., “A Matter of Low Self-Control? Exploring Differences Between Child Pornography Possessors and Child Pornography Producers/Distributers Using Self-Control Theory,” 28 Sexual Abuse 555 (2016) (finding online offenders have greater victim empathy and greater levels of self-control than offline offenders).

Further, among defendants convicted of transportation, Jenkins is relatively less culpable because he was bringing his collection for his own personal use, rather than carrying child pornography to sell or distribute to others. In 2010, 88.7% of those convicted of transportation “engaged in knowing distribution to another.” USSC Report 189 n.72. Along this dimension, then, Jenkins is near the bottom of the distribution of offenders. However, the district court imposed a sentence of 225 months, near the top of the statutory range of 60 to 240 months. 18 U.S.C. § 2252A(b)(l). Admittedly, Jenkins may be unlike many other transporters because he refused to accept responsibility, offered false exculpatory testimony at his trial, and was disrespectful to the district judge. However, these factors cannot justify a sentence that is 165 months above the statutory minimum and a-mere 15 months below the statutory maximum.

Moreover, bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision. Whereas Jenkins’s transportation offense carried a statutory maximum of 20 years, the statutory maximum for his possession offense was “only” 10 years. Jenkins was eligible for an additional 10 years’ imprisonment because he was caught with his collection at the Canadian border rather than in his home. The government argues that Jenkins was “so captivated by child pornography that he could not leave behind his collection even for a short vacation to Canada,” Appellee Br. 84. We disagree that bringing a personal collection to the start of a vacation as opposed to leaving it at home supplies an appropriate basis for sentencing a person to an additional 10 years in prison.

In addition, though we accept the district court’s observation that Jenkins’s conduct at trial and during sentencing proceedings reflected a “disdain for the law,” we find problematic the district court’s exclusive reliance on this factor as justification for dramatically increasing Jenkins’s sentence. See App. 860-61. While we do not condone Jenkins’s lack of respect for the law, it simply cannot bear the weight the district court assigned to it. Dorvee, 616 F.3d at 183; cf. United States v. Gerezano-Rosales, 692 F.3d 393, 401 (5th Cir. 2012) (holding district court’s decision to increase a defendant’s sentence from 71 to 108 months based on defendant’s disrespect for the law constituted clear error in judgement in balancing the sentencing factors). Jenkins had already paid heavily for his disrespectful behavior. The Court denied him any offense level reduction for acceptance of responsibility. Apparently concluding that this significant sanction was insufficient,- the district judge proceeded to add years and years onto Jenkins’s sentence in light of his failure to accept responsibility, as demonstrated by his persistent rudeness and disrespect. While we appreciate the district judge’s frustration, we are unwilling to sanction dramatically increasing a sentence because an angry out-of-control pro se defendant facing decades in prison fails to manifest sufficient respect for the system that is about to incarcerate him.

We also disagree with the district court’s conclusion that Jenkins’s lack of respect makes him “a very high risk to reoffend.” App. 861. The district court’s conclusion ignores widely available, definitive research demonstrating that recidivism substantially decreases with age. See e.g., U.S. Sentencing Comm’n, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 8, available at http://www.ussc.gov/ sites/default/files/pdf/research-and-publications/research-publieations/2004/ 200405_Recidivism_CriminaLHistory.pdf. That research documents that offenders-with a Criminal History Category I between ages 41 to 50 have a 6.9% recidivism rate, as opposed to a 29.5% recidivism rate for Category I offenders under 21. These statistics from the Commission, which include offenders who accepted responsibility as well as those who did not, suggest that Jenkins, an offender with no criminal history points who will be 63 when he is released from his lengthy prison sentence, will be a low — not a high — risk to reoffend since more than 90% of individuals in his age group do not reoffend. Although it •would be well within a district court’s discretion to increase a sentence based on a likelihood of reoffending, there must, in a case like this, be some support in the record for that conclusion, such as, for example, a record of previous convictions or previous attempts to harm children. Here there is none. A sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable.

Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest.

Finally, the government highlights the seriousness of Jenkins’s offenses as a consumer of child pornography, saying, that he “encouraged the market for this content and spurred the abuse of other children whose exploitation would be necessary to create new images and videos, to feed the demand of consumers like Jenkins.” Appel-lee Br. 84. But this observation is true of virtually every child pornography offender. It is undoubtedly correct that “[a]ll child pornography offenses are extremely serious because they both perpetuate harm to victims and normalize and validate the sexual exploitation of children.” USSC Report 311. We do not for a moment dispute that Jenkins deserves a substantial term of imprisonment. Nonetheless, some types of conduct in this area are more culpable than others. District courts should generally reserve sentences at or near the statutory maximum for the worst offenders. Treating Jenkins as the worst of the worst has no grounding in the record we are reviewing and is inconsistent with the parsimony clause.

III.

The sentence the district court imposed also created the type of unwarranted sentence disparity that violates § 3553(a)(6). Statistics from the Sentencing Commission validate our concern. In general, a district court need not consult the Commission’s statistics because there is “no assurance of comparability.” United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009). Here, however, the Commission’s statistics, which were readily available to the district court at the time of sentencing, allow for a meaningful comparison of Jenkins’s behavior to that of other child pornography offenders.

First, just as § 2G2.2 produces Guidelines ranges that are higher than those for individuals who engage in sexual conduct with a minor, Jenkins’s sentence is longer than typical federal sentences for sexual offenses against in-person victims. In 2013, the latest year available to the district court at the time of sentencing, the mean sentence in the category of “sexual abuse” was 137 months, and the median was 120 months. U.S. Sentencing Comm’n, 2013 Sourcebook of Federal Sentencing Statistics tbl.13, available at http://www.ussc. gov/sites/defauh/ffles/pdf/research-and-publications/annual-reports-and-sourcebooks/2013/Tablel3.pdf. We believe Jenkins’s sentence that is 88 months above this mean and 105 months above this median is unreasonable.

Second, the mean federal sentence in the “child pornography” category in 2013 was 136 months, and the median was 120 months. Id. This category included several hundred individuals who produced child pornography (333, compared to 1,609 sentenced for trafficking and possession offenses). U.S. Sentencing Comm’n, Use of Guidelines and Specific Offense Characteristics (Offender Based), Fiscal Year 2013 39-40, available at http://www.ussc. gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statisties/ guideline-application-frequencies/2013/ Use_of_Guidelines_and_Specifie_Offense_ Charaeteristies_OffenderJBased_Revised. pdf. The presence of such individuals in the distribution is a further indication that a sentence that is 89 months above the 2013 mean for child pornography sentences and 105 months above the median is not reasonable.

Third, the Sentencing Commission’s 2012 report analyzed sentences of offenders convicted of possession without a distribution enhancement, but with the run-of-the-mill enhancements previously described. See supra at 188-89. Among these offenders, the mean sentence was 52 months and the highest sentence was 97 months. USSC Report 215 fig.8.3. Admittedly, these offenders, unlike Jenkins, accepted responsibility and did not all engage in misconduct during their criminal proceedings. Nonetheless, we see no reasonable justification on the record as to why he should receive 128 months above the longest sentence in this category and 178 months above the mean among possessors with the four all-but-inherent enhancements.

IV.

- In addition, the conditions of supervised release imposed on Jenkins, including broad restrictions on his movements, his ability to obtain gainful employment, and use of credit cards for 25 years upon his release from prison, are not “reasonably related,” to “the nature and circumstances of the offense” or Jenkins’s “history and characteristics;” nor are they “reasonably necessary” to the sentencing purposes set forth in § 3558(a)(2). See 18 U.S.C. §§ 3553 and 3563(b). We would reach this same conclusion about the duration and terms of Jenkins’s supervised release even if the period of incarceration he had received had been lower.

To start, the duration of the supervised release, on top of nearly 19 years in prison, make the restrictions excessive and unreasonable. Jenkins will be 63 years old when he is released from prison. He will be under supervised release for the next 25 years until he is 88 years old. While this term of supervised release does not violate the Guidelines or the Policy Statement of § 5D1.2(b)(2), we may not presume the reasonableness of the sentence on that basis. United States v. Hayes, 445 F.3d 536, 537 (2d Cir. 2006). This is particularly true where the district court offered no explanation that might justify imposing what amounts to a lifetime of the most intense post-release supervision that prevents Jenkins from ever reengaging in any community in which he might find himself. By contrast, in United States v. Bowles, 260 Fed.Appx. 367, 369-70 (2d Cir. 2008) (summary order), we held that Bowles’s problems with sexual deviance, his perception that the children enjoyed the contact, and his long-term alcohol and drug abuse and mental illness formed a reasonable basis for lifetime supervised release. No congruent concerns are presented in the record we are reviewing. Ordinarily, a district court is under no obligation to provide elaborate reasons for the sentence it imposes. In many instances the reasons for a sentence can be garnered from the record. That is not the case here. Where a sentence is unusually harsh, meaningful appellate review is frustrated where it is not possible to understand why the sentence was imposed.

Moreover, we are troubled by specific conditions of release. For example, one of them prohibits Jenkins from having direct contact with anyone under the age of 18 unless supervised by a person approved by the probation office. As mentioned above, Jenkins never contacted or attempted to contact any minors. But under this condition, Jenkins is prohibited during the 25-year period from interaction with family members or friends who might have children under the age of 18 unless he goes through a preapproval process with the Probation Office which presumably would entail some sort of investigation and finding by that office. This restriction would apply with full force to all routine family interaction — for example, Thanksgiving dinners or seders or christenings.

Another condition bars Jenkins from any “indirect contact” with a person under the age of 18 “through another person or through a device (including a telephone, computer, radio, or other means)” unless it is supervised by a person approved by the Probation Office. It is difficult to know what the boundaries of this restriction might be. If, for example, members of a little league baseball team were soliciting in front of a supermarket, could Jenkins approach them or later call in and contribute? Common sense would say “yes” but the problem for Jenkins would be that the consequences of an incorrect guess would be sufficiently serious that he would be ill advised to run any risks at all. That same restriction required him to “reasonably avoid and remove himself ... from situations in which [he] has any other form of contact with a minor.” Again it is unclear what Jenkins is expected to do for the 25 years during which he must comply with this restriction. Is he required to stay away from sporting events or natural history museums or street fairs? The reasonable necessity for these restrictions which apply to Jenkins when he is in his 70s and 80s eludes us.

Likewise the relationship between the restrictions on Jenkins’s employment and Jenkins’s offense and circumstances is not readily apparent. See United States v. Brown, 402 F.3d 133, 138-39 (2d Cir. 2005) (vacating condition where it was “seemingly unrelated to [Defendant’s] offense and circumstances”). As mentioned earlier, the nature of these employment restrictions mean that, as a practical matter, he may never be employable.

Another condition prohibits Jenkins from incurring new credit charges or opening additional lines of credit without approval of a probation officer. Nothing in the record suggests these restrictions on Jenkins’s use of credit cards are “reasonably necessary,” 18 U.S.C. § 3563(b)(5), to protect the public or to deter Jenkins from continuing to engage in the conduct for which he was convicted — possession of child pornography. Cf. United States v. Peppe, 80 F.3d 19, 23 (1st Cir. 1996) (holding that a bar on incurring debt without prior approval was reasonably related to defendant’s offense, which involved the extortionate extension of credit). This is especially true when the use of credit cards or other forms of credit will likely be necessary to function in the society that will exist after Jenkins’s eventual release from prison. See United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001) (per curiam) (vacating a special condition imposing restrictions on computer ownership because, in part, “[c]omputers and Internet access have become virtually indispensable in the modern world of communications and information gathering”). Why Jenkins should be prohibited from buying a drink on an airplane or taking an Uber ride or making a purchase on Amazon unless the transaction is pre-approved by a probation officer cannot be divined from the record we are reviewing.

The conditions of supervised release imposed by Judge Suddaby mean that Jenkins will never be able to pay his debt to society. He will likely never be able to develop and maintain meaningful relationships with others, to obtain employment and remain employed or to ever lead anything that remotely resembles a “normal” life.

As we review these conditions of release, what is particularly depressing is that the Assistant United States Attorney and the probation officer who appeared at sentencing either believed they were appropriate or did not believe they were appropriate but nonetheless stood mute as they were imposed. We do not doubt for a moment that there are other cases in which some or all of the' conditions imposed by the district court would be required and reasonable. But given Jenkins’s personal characteristics and the nature of his offense, this constellation of restrictions, compounded by their 25-year duration, “inflicts a greater deprivation” on his liberty than is “reasonably necessary.” United States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002).

CONCLUSION

Jenkins’s sentence is substantively unreasonable. Accordingly, we vacate it and remand for resentencing. This panel will retain jurisdiction over any subsequent appeal. Either party may notify the Clerk of a renewed appeal within fourteen days of the district court’s new sentence. United States v. Tutty, 612 F.3d 128, 133 (2d Cir. 2010) (citing United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994)).

KEARSE, Circuit Judge,

dissenting in part:

I respectfully dissent from so much of the majority’s opinion as rules that the imprisonment component of the sentence imposed on defendant Joseph Jenkins, within the applicable Guidelines range, is substantively unreasonable.

As is revealed in the summary order filed contemporaneously in this case, the district court in sentencing Jenkins did not commit any procedural error. Where we have determined “ ‘that the district court’s sentencing decision is procedurally sound,’ ” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)), we reverse on the basis of substantive unreasonableness only if the sentence “cannot be located within the range of permissible decisions,” Cavera, 550 F.3d at 189 (internal quotation marks omitted).

In sentencing Jenkins to, imprisonment for 225 months — within the Guidelines range (which was either 210-262 months if the district court chose to impose the sentences consecutively or 210-240 months if it did not (240 months being the statutory maximum on one count)) — the district court stated that it was imposing “a sentence that reflects the seriousness of your crime, that promotes respect for the law, and that provides you with adequate deterrence from committing further crimes, and that protects* the public.” (Sentencing Transcript (“S.Tr.”) 30.) In stating that it found “this sentence [to be] sufficient but not greater than necessary to comply with the purposes of sentencing” (S.Tr. 29), the court was heavily influenced by its view that, without a lengthy prison term, Jenkins would be likely to repeat his offenses. It said, inter alia:

I couldn’t disagree with your attorney more when she says that you’re not a threat to commit this crime again. You’ve demonstrated that you have a total lack of respect for the law and disdain for the law. That[ is,] in the Court’s view it is without question that, if given the opportunity, you will do exactly what you want to do in any situation and you are a very high risk to reoffend.

(S.Tr. 29-30 (emphasis added).) This view is supported by, inter alia, Jenkins’ evasion of the charges against him in Canada and his repeated insistence throughout this prosecution that he had done nothing wrong and could not validly be prosecuted. For example, in his supplemental sentencing memorandum submitted pro se, he asserted, inter alia,

• that “[t]here is no justification or cause legally for the proceeding”;
• that the United States had “no jurisdiction” to try him;
• that the jury’s verdict of guilt “was obtained through conspired fraud, misrepresentation,” and “perjury”; and
• that “the[] whole case” was “unsubstantiated garbage.”

(Jenkins’ pro se sentencing memorandum at 1-3.)

The district court noted that after Jenkins “attempted to transport thousands of images and videos of child pornography into Canada and then later failed to appear for [his] Canadian trial” and was arrested in the United States, he somehow “blamed Canada.” (S.Tr. 30.) In fact, the court noted that Jenkins “has blamed everybody and everyone for his criminal activity.” (Id. at 29.) Indeed, Jenkins even blamed the children depicted in the pornographic images and videos he transported, stating that “[m]ost” of those images “are ‘web-cam’ videos, they (victims) intentionally produced and broadcast (themselves) over the internet and should be prosecuted (themselves).” (Jenkins’ pro se sentencing memorandum at 2 (emphases added).)

Given this record in which Jenkins, inter alia, disputed any justification or authority for prosecuting him, and argued that instead the children who were victims of the child pornography should have been prosecuted, the district court’s concern for the likelihood that, without a lengthy prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition of the prison term that was no higher than midway between the top and bottom of the Guidelines range “cannot be located within the range of permissible decisions.”

      . As a 44-year-old impecunious white male with a high school education, Jenkins's life expectancy was 76.5 years at the time of his sentencing. See Kenneth D. Kochanek et al., Ctr. for Disease Control, U.S. Life Tables, 2014, Nat'l Vital Statistics Rep., June 30, 2016, at 8, available at: http://www.cdc.gov/ nchs/data/nvsr/nvsr65/nvsr65_04.pdf. Although no one knows with any certainty how long Jenkins will live, we do know that, as a statistical matter, the life expectancy of an incarcerated person drops significantly for each year of incarceration. See Evelyn J. Patterson, The Dose-Response of Time Served in Prison on Mortality: New York State, 1989-2003, 103 Am. J. of Pub. Health 523, 526 (2013). Thus Jenkins’s life expectancy is likely significantly less than 76.5 years.

      . That is, enhancements for (i) an image with a prepubescent minor, (ii) an image portraying sadistic or masochistic conduct or other forms of violence, (iii) use of a computer, and (iv) 600 or more images.

      . That range extends beyond the statutory maximum of 240 months for his count of transportation of child pornography, the more severe of his two offenses; Jenkins's Guideline range is therefore 210 to 240 months. See Dorvee, 616 F.3d at 182.

      . The annual cost of incarcerating a 60-year-old state prisoner is $60,000 to $70,000, as compared to $27,000 for younger inmates. U.S. Department of Justice, National Institute of Corrections, Correctional Healthcare: Addressing the Needs of Elderly, Chronically III, and Terminally III Inmates 11, available at http://static.nicic.gov/Library/018735.pdf.

      . In the ordinary case, a court implicitly gives sufficient weight to the need to prevent unwarranted sentence disparities when it has "correctly calculated and carefully reviewed the Guidelines range.” See 18 U.S.C. § 3553(a)(6); Gall v. United States, 552 U.S. 38, 54, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). However, we have held that § 2G2.2 tends to produce unreasonable results. See Dorvee, 616 F.3d at 184. Recognizing this difficulty, district courts have routinely imposed lower sentences for child pornography offenses, and the government even occasionally moves for a lower sentence. In 2010, 44.3% of cases of non-production child pornography offenses in 2010 involved courts’ imposition of a below-Guidelines sentence, and another 10.3% involved a government motion for such a sentence. USSC Report 221, 223.

      . On the remand of this case, the conditions of supervised release should be sufficiently explained by the district court to permit meaningful appellate review.


source: Caselaw Access Project

author: SACK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Jose DIAZ, Defendant-Appellant.
    Docket No. 15-3776-cr
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: November 29, 2016
    Decided: April 18, 2017

      Robert W. Allen (Anna M. Skotko, on the brief), Assistant United States Attorney, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, for Appellee.
    Daniel Habib, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.
    Jordan Wells, Alexis Karteron, (on the brief), for Amicus Curiae New York Civil Liberties Union Foundation.
    Before: WALKER, SACK, and CHIN, Circuit Judges.
   SACK, Circuit Judge:

During a routine patrol of a Bronx apartment building, New York City Police Department (“NYPD”) Officer Chris Ay-bar observed defendant Jose Diaz sitting in a stairwell while holding a plastic cup that seemed to Aybar to smell of alcohol. Officer Aybar initially intended only to issue Diaz a summons — not to make an arrest — for violating New York’s open-container law. She ordered him to stand against the wall and produce identification. Diaz stood and then, as if to retrieve something, fumbled with his hands in his jacket pockets and rearranged his waistband. Officer Aybar frisked Diaz and felt a bulge on the side of his jacket; she opened his jacket pocket and discovered a loaded handgun. She then arrested Diaz, who was later found guilty, by the presiding district judge (Jesse M. Furman, Judge) acting as trier of fact, of being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He received a sentence of thirty-three months’ imprisonment.

Before the trial, Diaz filed a motion to suppress evidence about the presence of the gun on Fourth Amendment grounds. The district court denied the motion, concluding that the search was a lawful search incident to an arrest supported by probable cause. Having thereafter been convicted, Diaz now appeals that denial, arguing that (1) Officer Aybar lacked probable cause to arrest and search Diaz for violating New York City’s open-container law, N.Y.C. Admin. Code § 10-125(b), because, an apartment-building stairwell is not a “public place” within the meaning of that law, and (2) in any event, the warrantless search was not a lawful search incident to an arrest because Officer Aybar did not intend to arrest Diaz when she began the search.

We disagree. We conclude that Officer Aybar had probable cause to arrest Diaz inasmuch as she had a reasonable belief that an apartment-building stairwell is a public place for purposes of the open-container law and that Diaz was violating that law. And because she had probable cause to arrest Diaz — and ultimately did arrest him — the warrantless search was a lawful search incident to an arrest, even though Officer Aybar testified that before finding the gun she intended only to issue a summons, not to make an arrest.

BACKGROUND

On the night of March 21, 2015, NYPD Officers Chris Aybar and Jose Espinal entered a four-story, twelve-unit private apartment building located at 584 East 167th Street in New York City’s Borough of the Bronx, to conduct a floor-by-floor patrol as part of the NYPD’s “Clean Halls” program, pursuant to which officers enter common spaces in residential buildings with the building owner’s consent in an effort to deter crime, principally drug dealing and trespassing. Upon entering the apartment building through the front door, which was propped open with a newspaper, the officers immediately smelled marijuana.

They proceeded to climb the stairs to the third-floor landing, where they saw three men: defendant Jose Diaz, Collin Maloney, and Joshua Knox. Diaz was sitting next to a bottle of vodka and holding a red plastic cup. As Officer Aybar approached Diaz, she saw clear liquid in the cup and smelled what seemed to be alcohol. Maloney was also holding a red plastic cup, and Knox was holding a lit “blunt” (marijuana cigarette) in one hand and a box of “roaches” (butts of smoked marijuana cigarettes) in the other.

Officer Aybar testified that she did not initially intend to arrest Diaz, only to issue him a summons for violating New York’s open-container law, which provides that “[n]o person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place.... ” N.Y.C. Admin. Code § 10 — 125(b). Officer Aybar had previously received training on the open-container law and had issued approximately fifty summonses for open-container violations, often in apartment buildings.

Because Officer Aybar did not feel safe confronting Diaz while he was seated, she ordered him to stand against the wall and produce his identification. Diaz stood, and then, as if to retrieve something, fumbled with his hands in his jacket pockets and rearranged his waistband. Fearing, because of his movements, that her safety was threatened, Officer Aybar frisked Diaz and felt a bulge on his jacket. She opened his jacket pocket and discovered a loaded .380 caliber Taurus firearm. She then handcuffed Diaz and transported him to the police station, where she issued him a summons for the open-container violation.

On May 5, 2015, a grand jury returned a single-count indictment charging Diaz with possessing a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g). Diaz filed a motion to suppress evidence concerning the firearm on Fourth Amendment grounds. On July 24, 2015, during an evidentiary hearing on that motion, Diaz testified that (1) he was not drinking alcohol in the apartment-building stairwell; (2) he produced his identification when Officer Aybar asked for it; and (3) Officer Aybar took the jacket (which he was not wearing) from him and searched it rather than frisking him.

Following the hearing, the district court denied the suppression motion by opinion and order dated August 14, 2015. See United States v. Diaz, 122 F.Supp.3d 165, 181 (S.D.N.Y. 2015). Crediting the officers’ testimony over that of Diaz, id. at 168, the district court found that “Officer Ay-bar indisputably had probable cause to believe that Diaz was drinking alcohol or possessing alcohol with intent to drink it,” based on Officer Aybar’s testimony that “she smelled alcohol” and “observed Diaz holding a red [plastic] cup containing a clear liquid while sitting in close proximity to an open bottle of vodka,” id. at 173.

The district court rejected Diaz’s argument that Officer Aybar lacked probable cause to arrest him on the ground that an apartment-building stairwell is not a “public place” within the meaning of the open-container law. See id. at 173-76. It noted that “a compelling argument [could] certainly be made that the common areas of residential buildings do not qualify as public places for purposes of the [ ] law,” but ultimately concluded that it “need not resolve that unsettled question of state law because, even if Officer Aybar was mistaken in her belief that the stairwell qualified as a ‘public place’ for purposes of the open-container law, her mistake was an objectively reasonable one” that did not violate the Fourth Amendment. Id. at 174.

The district court also rejected Diaz’s argument that the search could not be justified as a search incident to an arrest because Officer Aybar did not intend to arrest Diaz until after she found the gun. See id. at 176-81. In reaching this conclusion, it relied on United States v. Ricard, 563 F.2d 45 (2d Cir. 1977), where we held that a search conducted in similar circumstances was a constitutional search incident to an arrest, id. at 49. The district court noted, however, a tension between Ricard and the Supreme Court’s subsequent decision in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), in which it held unlawful a search conducted after an officer had already issued a citation for a traffic infraction. See Diaz, 122 F.Supp.3d at 178-80 (citing Knowles, 525 U.S. at 117-19, 119 S.Ct. 484).

After the district court denied Diaz’s motion to suppress, the case proceeded to a bench trial on stipulated facts. On September 11, 2015, Diaz was found guilty of possessing a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g). He received a sentence of thirty-three months’ imprisonment. This appeal followed.

DISCUSSION

Diaz appeals from the denial of his motion to suppress evidence concerning the gun found in his jacket on the grounds that (1) Officer Aybar lacked probable cause to conduct the search, and (2) in any event, the warrantless search was not justified as a search incident to an arrest because Officer Aybar did not intend to arrest him when she began the search. We disagree in both respects.

I. Standard of Review

“On appeal from a district court’s ruling on a motion to suppress evidence, we review legal conclusions de novo and findings of fact for clear error.” United States v. Ganias, 824 F.3d 199, 208 (2d Cir. 2016) (en banc) (internal quotation marks omitted). “We also review de novo mixed questions of law and fact,” and “pay special deference to the district court’s factual determinations going to witness credibility.” United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015) (emphasis and internal quotation marks omitted).

II. Probable Cause

Diaz’s first argument fails because at the time of the search, Officer Aybar had probable cause to arrest Diaz for a violation of New York’s open-container law based on a reasonable belief that an apartment-building stairwell is a public place for purposes of that law.

A police officer ordinarily has probable cause to arrest when he or she “ha[s] knowledge of, or reasonably trustworthy information as to, facts and circumstances' that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (internal quotation marks omitted). An officer’s assessment in this regard need not “be perfect” because “the Fourth Amendment allows for some mistakes on the part of government officials,” including, “reasonable ... mistakes of law.” Heien v. North Carolina, — U.S. -, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014); see also Herring v. United States, 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (“When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to search or seizure has not necessarily been the victim of a constitutional violation.”).

Officer Aybar’s probable-cause determination was predicated on the New York open-container law, which provides that “[n]o person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place,” N.Y.C. Admin. Code § 10-125(b), where “public place” is defined, in pertinent part, as “[a] place to which the public or a substantial group of persons has access, including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city,” id. § 10-125(a)(2). Diaz argues that the apartment-building stairwell where he was found with an open container of alcohol is not a “public place” because, although it is a common area, it is located within a locked residential building. In his view, canons of construction such as ejusdem generis and noscitur a sociis support his construction of the open-container law. But as the district court correctly acknowledged, Diaz, 122 F.Supp.3d at 174-75, the question presented here is not whether a common area of an apartment such as a stairwell constitutes a public place within the meaning of the open-container law, but only whether Officer Aybar had an objectively reasonable belief that it so qualified.

The Supreme Court’s decision in Heien provides clear guidance in this regard. There, two North Carolina police officers found cocaine in a vehicle they had stopped because one of its two tail lights was inoperative, which the officers believed to be a violation of state law. Heien, 135 S.Ct. at 534, 540. This belief turned out to be mistaken; on appeal, a state appellate court determined that the applicable state law required only one working tail light. Id. at 535, 540. The Supreme Court held that the stop (and subsequent search), although premised on an erroneous understanding of the traffic law, was nonetheless constitutional because “reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition,” id. at 536, so long as that mistaken understanding was “objectively reasonable,” id. at 589 (emphasis omitted). That was so in Heien because, at the time of the stop, the North Carolina tail-light law was ambiguous, and the state’s appellate courts had not previously resolved the ambiguity. See id. at 540.

The test for whether an officer’s mistake of law was objectively reasonable “is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity,” id. at 589, often where a party brings a claim under Bivens or 42 U.S.C. § 1983 for a violation of their constitutional rights. Cf. Heien, 135 S.Ct. at 539-40 (“[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.”). Indeed, as Justice Kagan explained in her concurring opinion in Heien, “the test is satisfied [only] when the law at issue is so doubtful in construction that a reasonable judge could agree with the officer’s view.” Id. at 541 (Kagan, J., concurring) (internal quotation marks omitted); see also United States v. Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016) (concluding that statutory ambiguity is a prerequisite to a determination that an officer’s mistake of law was objectively reasonable); United States v. Alvarado-Zarza, 782 F.3d 246, 250 (5th Cir. 2015) (same).

We think that Officer Aybar’s belief that the apartment-building stairwell qualified as a “public place” within the meaning of the open-container law was an objectively reasonable prediction of the scope of the law when it was made. As in Heien, her assessment was premised on a reasonable interpretation of an ambiguous state law, the scope of which had not yet been clarified. Even now, the New York Court of Appeals has not addressed whether a common area inside an apartment building is a “public place” within the meaning of the open-container law, and the other New York courts that have done so have reached conflicting conclusions. Compare People v. Medina, 16 Misc.3d 382, 389, 842 N.Y.S.2d 227, 232, (Sup. Ct. Bronx Cty. 2007) (concluding that an apartment-building lobby is a “public place” for purposes of the open-container law), with People v. Chavez, 41 Misc.3d 526, 533-34, 972 N.Y.S.2d 858, 862-63, (Crim. Ct. Bronx Cty. 2013) (concluding that an apartment-building elevator is not a “public place” within the meaning of the open-container law); see also United States v. Brown, No. 07-CV-232 (JBW), 2007 WL 2121883, at *2-4, 2007 U.S. Dist. LEXIS 54057, at *6-8 (E.D.N.Y. July 25, 2007) (relying on Medina to conclude that a bodega is a “public place” within the meaning of the open-container law). In light of these conflicting precedents, Officer Aybar’s belief that an apartment-building stairwell is a public place within the meaning of the open-container law was a reasonable, even if mistaken, assessment of the scope of that law at the time it was made. Thus, contrary to Diaz’s contention, Officer Aybar had probable cause to believe that Diaz had violated the open-container law.

III. Search Incident to an Arrest

Diaz next contends that the search was not a lawful search incident to an arrest because, at the time of the search, Officer Aybar did not intend to arrest Diaz and would not have ultimately done so had she not discovered the gun as a fruit of the search. We are not persuaded.

The seareh-incident-to-arrest doctrine is an exception to the general requirement that an officer must obtain a judicial warrant supported by probable cause before conducting a search. See Riley v. California, — U.S. -, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (recognizing a search incident to an arrest as a “specific exception” to the Fourth Amendment’s warrant requirement). It serves two interests: “protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Arizona v. Gant, 556 U.S. 332, 339, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). These interests are not evaluated on a case-by-case basis, but are assumed to be present whenever an officer is justified in making an arrest. Riley, 134 S.Ct. at 2483. It makes no difference whether the search occurs before or after the arrest, see Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), so long as it is “substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest,” Shipley v. California, 395 U.S. 818, 819, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969) (internal quotation marks omitted).

In United States v. Ricard, 563 F.2d 45 (2d Cir. 1977), we squarely addressed whether a search incident to an arrest can be justified where an officer did not intend to make an arrest prior to conducting the search, see id. at 48. The officer there did not initially intend to arrest a driver stopped for speeding, but after a search of a small tinfoil packet revealed cocaine, the officer made an arrest. Id. at 48-49. We held that the search was lawful because the officer had probable cause to arrest the defendant for speeding, regardless of whether or not the officer intended to arrest the defendant before discovering the cocaine. Id. at 49 (explaining that, although “the contested search was actually the cause of [the defendant’s] arrest[,] ... the fact that [the officer] had cause to arrest [the defendant] for speeding, even if he initially determined not to do so, was a sufficient predicate for a full search [incident to an arrest]”).

Diaz has conceded that Ricard controls if it continues to be precedential and therefore binding on us, but contends that it does not remain binding precedent in light of the Supreme Court’s decision in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). There, a police officer, who had probable cause to arrest a defendant stopped for speeding, issued a citation for the speeding violation before conducting a full search of the car that revealed marijuana, prompting an arrest. Id. at 114, 119 S.Ct. 484. The Supreme Court held that the arrest could not be justified as a search incident to an arrest. Id. at 117-19, 119 S.Ct. 484. Although it acknowledged “that the authority to conduct a full field search as incident to arrest [is] a bright-line rule” that is “based on the concern for officer safety and destruction or loss of evidence, but which d[oes] not depend in every case upon the existence of either concern,” id. at 118, 119 S.Ct. 484 (internal quotation marks), the Court “decline[d]” to “extend that ‘bright-line rule’ to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all,” namely where a citation for speeding had already been issued during a routine traffic stop, id. at 118-19, 119 S.Ct. 484; see also id. at 117-18, 119 S.Ct. 484 (explaining that “[t]he threat to officer safety from issuing a traffic citation ... [was] a good deal less than in the case of a custodial arrest,” and that the need-to-preserve-evidence rationale was not implicated because “[o]nce [the defendant] was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained”).

Knowles can in some respects be likened to Ricard. The officers in both cases had probable cause to arrest the defendants for speeding but initially elected not to do so, and then proceeded to conduct searches that revealed evidence of crimes for which the defendants were ultimately arrested. But critically, the search in Knowles occurred after the officer had completed the traffic stop by issuing a citation, whereas the search in Ricard (and the case at bar) occurred before any such event took place. It thus remained uncertain in Ricard (and here) whether the encounter would lead to an arrest; the dangers to the officer that accompany the prospect of arrest therefore remained present. See Knowles, 525 U.S. at 117, 119 S.Ct. 484 (explaining that “[t]he danger to the police officer flows from the fact of arrest, and its attendant proximity, stress, and uncertainty” (internal quotation marks omitted)). In Knowles, by contrast, those dangers had virtually vanished by the time the officer issued the citation, which extinguished the prospect of an arrest. We therefore do not understand Knowles to foreclose a search incident to an arrest in circumstances where, as in Ricard and the case before us, an officer has not yet issued a citation and ultimately makes a lawful arrest after conducting a search, regardless of whether or not the officer intended to do so prior to the search. Where there is a basis for an arrest, an officer has reason to be concerned for her safety until she issues a citation and the stop ends. Cf. Rodriguez v. United States, — U.S. —, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015) (“A seizure justified only by a police-observed traffic violation ... becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” (internal quotation marks and brackets omitted)).

Our conclusion comports with those of other circuits addressing the scope of Knowles. See, e.g., United States v. Chauncey, 420 F.3d 864, 872 (8th Cir. 2005) (rejecting the defendant’s “attempt[ ] to liken his case to Knowles” because “[wjhatever the officer’s subjective intention, [ ] the record does not show that the officer had completed the traffic stop by the time he made a formal arrest”); United States v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002) (limiting Knowles to circumstances where “[an] officer [with] probable cause to make an arrest ... issues a citation instead of arresting the defendant”); see also United States v. Williams, 170 Fed.Appx. 399, 405 (6th Cir. 2006) (unpublished opinion) (concluding that there is a “significant difference between Knowles and the present case” because “[i]n Knowles, the officers issued the defendant a citation before they searched the vehicle” (emphasis in original)).

Arguing otherwise, Diaz asserts that Knowles stands for a broader proposition that overrules Ricard: An officer may conduct a search incident to an arrest only if she has already made an arrest or an arrest is impending. In support of this interpretation, he points to a recent New York Court of Appeals decision addressing the scope -of Knowles. See People v. Reid, 24 N.Y.3d 615, 26 N.E.3d 237, 2 N.Y.S.3d 409 (2014). There, an officer who had probable cause to arrest a driver for driving while intoxicated ordered the driver out of the car, patted him down, discovered a switchblade knife, and arrested him for criminal possession of a weapon. Id. at 618, 26 N.E.3d at 238, 2 N.Y.S.3d at 410. The officer testified that he did not initially intend to arrest the driver, but decided to do so only after he found knife. Id. Relying on Knowles, the court held that the search was unconstitutional on the ground that “to say that the search was incident to arrest does not make sense” where “but for the search there would have been no arrest at all.” Id. at 619, 26 N.E.3d at 239, 2 N.Y.S.3d at 411.

We think his rationale is mistaken for two reasons. First, it ignores that an officer who stops a person to issue a citation faces an evolving situation. As events develop and new information becomes available — the presence of a gun, for example- — a police officer is entitled to change her course of action. Cf. Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments[ ]in circumstances that are tense, uncertain, and rapidly evolving.... ”). Second, it appears to require a court to consider the officer’s intent at the time of arrest, an inquiry at odds with the Supreme Court’s “repeated[] rejection of] a subjective approach” in the Fourth Amendment context. Fernandez v. California, — U.S. -, 134 S.Ct. 1126, 1134, 188 L.Ed.2d 25 (2014) (internal quotation marks omitted); see also Kentucky v. King, 563 U.S. 452, 464, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (“[W]e have never held, outside limited contexts such as an inventory search or administrative inspection ..., that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.” (ellipsis in original) (internal quotation marks omitted)).

Diaz insists that no subjective inquiry is necessary to determine whether an arrest was occurring or about to occur at the time of the search. That question, in his view, can be answered on a case-by-case basis by looking only to objective evidence such as, inter alia, an officer’s contemporaneous statements, the length of any pre-search detention, the issuance of a citation, calls for backup, the presence or absence of handcuffs, and the treatment of similarly situated suspects at the scene.

But even if limited to objective evidence, the case-by-case approach runs counter to the principle “that the authority to conduct a full field search as incident to arrest [is] a bright-line rule.” Knowles, 525 U.S. at 118, 119 S.Ct. 484 (internal quotation marks omitted). The Supreme Court has long recognized that in the Fourth Amendment context, there is “[a] need for [] bright-line constitutional standard[s],” Virginia v. Moore, 553 U.S. 164, 175, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), which advance the “essential interest in readily administrable rules,” Atwater v. City of Lago Vista, 532 U.S. 318, 347, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). This interest undergirds the well-settled principle that searches incident to arrest are categorically justified and do not require “cáse-by-case adjudication” of their safety and evi-dentiary bases. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Thus, we conclude that, contrary to the Reid court’s interpretation, Knowles does not require case-by-case determinations as to whether or not an arrest was impending at the time of the search; it instead stands for the proposition that the bright-line search-incident-to-arrest doctrine does not apply where an officer has completed the encounter by issuing a citation instead of making an arrest. That proposition of law has no bearing on Ricard, which therefore remains binding precedent that controls our analysis of this appeal. Accordingly, Officer Aybar’s search of Diaz was a valid search incident to an arrest, despite the fact that she did not intend to arrest him when she began the search. See Ricard, 568 F.2d at 48-49.

In sum, we conclude that in the context of the facts of the case at bar, an officer like Officer Aybar, who has probable cause to believe that a person has committed a crime premised on an objectively reasonable mistake of law, may lawfully search that person pursuant to' the search-incident-to-arrest doctrine, provided that a “formal arrest follow[s] quickly on the heels of’ the frisk. Rawlings, 448 U.S. at 111, 100 S.Ct. 2556. It was irrelevant whether, at the time of the search, Officer Aybar intended to arrest Diaz or merely to issue him a citation.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

      .This program has also been referred to as “Operation Clean Halls” and the "Trespass Affidavit Program.” Ligon v. City of New York, 925 F.Supp.2d 478, 484-85, 517 (S.D.N.Y. 2013) (explaining that the "program allows police officers to patrol inside and around thousands of private residential apartment buildings throughout New York City” (internal quotation marks omitted)).

      . The record does not disclose the identity of the person responsible for placing the paper there.

      . Officer Aybar also testified that she intended to issue a summons to Maloney for an open-container offense, and to arrest Knox for marijuana possession.

      . Officer Aybar had previously arrested open-container-law violators who had open warrants.

      . The district court "decline[d, howeverj to credit Officer Aybar's testimony in one critical respect”: It explained that “[a]fter the [g]ov-ernment’s redirect examination, in response to additional questioning by the Court, Officer Aybar testified that Diaz refused to give his identification to her when asked, telling her that he didn’t have [identification],” which was "potentially significant” because Officer Aybar had previously testified that if an individual who had committed an open-container violation did not have identification, "she would have to arrest him or her and verify who they were.” Diaz, 122 F.Supp.3d at 169 (internal quotation marks omitted). Notwith-standing Officer Aybar’s testimony, the district court expressly declined to find that Diaz had refused to provide identification because (1) “Officer Aybar did not mention Diaz's alleged refusal [at any point] until the Court’s questions”; and (2) "although Officer Aybar had testified that she would have had to arrest Diaz for violating the open-container law if he did not have identification, she unambiguously admitted that it was only after she found the gun in [his] pocket — which indisputably happened after any exchange about identification — that she decided to [] arrest him.” Id. at 170 (internal quotation marks, citations, and brackets omitted).

      . The district court "swiftly rejected” the government's alternative theory that the search was justified as a frisk on the basis of reasonable suspicion because, at the time of the search, there were not sufficient facts to establish reasonable suspicion that Diaz was armed and dangerous. Diaz, 122 F.Supp.3d at 172 (citing Terry v. Ohio, 392 U.S. 1, 21, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

      . Diaz also challenges his sentence on appeal. His only argument in this regard is that the district court erroneously concluded that his prior conviction for possession of a sawed-off shotgun qualified as a "crime of violence” pursuant to the then-applicable residual clause of section 4B1.2 of the United States Sentencing Guidelines (“Guidelines”), U.S.S.G. § 4B 1.2(a)(2) (Nov. 2015) (defining a "crime of violence” as an offense that “is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another" (emphasis added)), which he contends is unconstitutionally vague in light of Johnson v. United States, - U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015) (holding that a nearly identical residual clause in the Armed Career Criminal Act was unconstitutionally vague). While this appeal was pending, however, the Supreme Court rejected this same argument on the ground that the void-for-vagueness doctrine does not apply to the Guidelines. See Bedeles v. United States, - U.S. -, 137 S.Ct. 886, 890, 197 L.Ed.2d 145 (2017); see also id. at 897-98 (Ginsburg, J., concurring) (explaining her view that, in any event, the residual clause of section 4B1.2 is not unconstitutionally vague as applied to a prior conviction for possession of a sawed-off shotgun because that offense is explicitly enumerated in the commentary of section 4B1.2). Accordingly, we reject Diaz's vagueness challenge.

      . There is an exception to the open-container prohibition for “a block party, feast or similar function for which a permit has been obtained.” N.Y.C. Admin. Code § 10 — 125(b). The exception does not apply here.

      . The building’s owner permitted NYPD officers to enter the property pursuant to the "Clean Halls” program. Although likely less pertinent, at the time the officers entered the apartment building, the front door was propped open with a newspaper.

      . The Helen principle accommodates "the reality that an officer may suddenly confront a situation in the field as to which the application of a statute is unclear — however clear it may later become.” Heien, 135 S.Ct. at 539 (internal quotation marks omitted). For example, "[a] law prohibiting ‘vehicles’ in the park either covers Segways or not, but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by.” Id. (citation omitted).

      . Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

      . In this respect, the label "mistake of law” may be a misnomer that could lead to confusion. The notion of a mistake seems to presuppose that the legal question was already settled, yet it is only when the legal question is unsettled that an officer’s erroneous assessment of the law can be objectively reasonable. It may be useful, therefore, to think of such an assessment instead as an inaccurate prediction of law. In this light, the question is whether the officer’s prediction as to the scope of the ambiguous law at issue was objectively reasonable — even if ultimately mistaken — such that a reasonable judge could have accepted it at the time it was made in light of the statutory text and the available judicial interpretations of that text. Formulated this way, the Heien principle has echoes of a defendant’s due-process right to fair warning of the crime for which he or she is punished. See Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) ("If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.” (internal quotation marks omitted)).

      . We acknowledge that applying the Heien principle may come at a cost: It may "ha[ve] the perverse effect of preventing or delaying the clarification of the law” inasmuch as "courts need not interpret statutory language but can instead simply decide whether an officer’s interpretation was reasonable!)]” a “result [that] is bad for citizens, who need to know their rights and responsibilities, and ... bad for police, who would benefit from clearer direction.” Heien, 135 S.Ct. at 544 (Soto-mayor, J., dissenting); see also Josh Bowers, Annoy No Cop, 166 Penn L. Rev. (forthcoming 2017), at *34-35, available at https://ssrn.com/ abstract=2928283 (last visited Mar. 22, 2017) (arguing that the effect of Heien is asymmetrical such that it harms citizens while it benefits officers). We make no attempt here to clarify the ambiguity in the open-container law because it is a question of state law, the resolution of which is unnecessary to our conclusion.

      . As Diaz notes, the Sixth and Ninth Circuits have cited Knowles for the proposition that there can be no search or seizure incident to an arrest unless an arrest is made. See Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir. 2005) ("Had [the defendant] been arrested, ample precedent would permit a search or seizure incident to arrest.” (internal quotation marks omitted)); Bennett v. City of Eastpointe, 410 F.3d 810, 824 (6th Cir. 2005) ("The mere fact that an officer has the authority to arrest an individual does not, and never has, automatically permitted the officer to conduct a pat-down search should he choose not to effectuate the arrest.” (emphasis in original)). But those cases are of no help to Diaz, who was in fact arrested.

      . Diaz also points to a recent decision by the California Supreme Court, People v. Macabeo, 1 Cal.5th 1206, 384 P.3d 1189, 211 Cal.Rptr.3d 34 (2016), as further support for his contention that a search incident to an arrest is not justified where there is no actual or impending arrest at the time of the search. In Macabeo, police officers stopped the defendant for riding a bicycle through a stop sign, an infraction under California law; during the stop, they seized his cell phone, found child pornography, and arrested him on that basis. See id. at 1210-12, 211 Cal.Rptr.3d at 36-38. Relying on Knowles, the California Supreme Court concluded that the cell-phone search was not a valid search incident to an arrest because (1) under California state law, officers could only issue a citation — not make an arrest — for the stop-sign infraction, and (2) there was no "objective indicia to suggest ... that the officers would have arrested [the] defendant [for the stop-sign infraction].” Id. at 1219, 211 Cal.Rptr.3d at 43-44. Even assuming Macabeo is persuasive, and we are not without our doubts, it is inapplicable here: The state law there did not authorize the officers to arrest the defendant for the stop-sign infraction, id., whereas here, no New York law prohibited Officer Aybar from arresting Diaz for the open-container violation. Moreover, the analytical framework of Maca-beo can be distinguished from our analysis here because the California Supreme Court was not faced with a precedent, like Ricard, holding that a search incident to an arrest is justified where an officer had probable cause to arrest the individual and ultimately made an arrest, even if he or she did not intend to make the arrest at the time of the search. See Ricard, 563 F.2d at 48-49. Indeed, the Maca-beo court addressed the question as a matter of first impression in light of Knowles, whereas we must apply Ricard, which we conclude remains binding precedent after Knowles.

      . We do not address whether the search was a lawful Terry search because we conclude that the search was a lawful search incident to an arrest.