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United States v. Jenkins

United States District Court, E.D. Kentucky, Southern Division

June 20, 2013


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          For David Jason Jenkins (6:12-cr-00015-GFVT-HAI), Defendant: Andrew M. Stephens, LEAD ATTORNEY, Lexington, KY.

         For Anthony Ray Jenkins (6:12-cr-00015-GFVT-HAI), Defendant: Willis G. Coffey, LEAD ATTORNEY, Coffey & Ford, P.S.C., Mt. Vernon, KY.

         For Shannon Partin (6:12-cr-00015-GFVT-HAI), Material Witness: Samuel B. Castle, Jr., LEAD ATTORNEY, Millward & Castle, PLLC, Barbourville, KY.

         For Alex Jenkins (6:12-cr-00015-GFVT-HAI), Material Witness: Douglas Glenn Benge, LEAD ATTORNEY, Cessna and Benge, London, KY.

         For Lexington H-L Services, Inc. (6:12-cr-00015-GFVT-HAI), Movant: Kif Harward Skidmore, Robert F. Houlihan, Jr., LEAD ATTORNEYS, Savage, Elliott, Houlihan, Moore, Mullins & Skidmore, LLP, Lexington, KY.

         For USA (6:12-cr-00015-GFVT-HAI), Plaintiff: Hydee R. Hawkins, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY; AeJean Cha, U.S. Department of Justice - Civil Rights Division, Washington, DC.

         For Mable Ashley Jenkins (6:12-cr-00013-GFVT-HAI), Defendant: James Hibbard, LEAD ATTORNEY, London, KY.

         For USA (6:12-cr-00013-GFVT-HAI), Plaintiff: Hydee R. Hawkins, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY; AeJean Cha, U.S. Department of Justice - Civil Rights Division, Washington, DC.

         For Alexis Leeann Jenkins (6:12-cr-00014-GFVT-HAI), Defendant: Robert Michael Murphy, LEAD ATTORNEY, Law Office of R. Michael Murphy, PLLC, Lexington, KY.

         For USA (6:12-cr-00014-GFVT-HAI), Plaintiff: Hydee R. Hawkins, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY; AeJean Cha, U.S. Department of Justice - Civil Rights Division, Washington, DC.

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         Gregory F. Van Tatenhove, United States District Judge.

         On April 4, 2011, Anthony Ray Jenkins, David Jason Jenkins, Mable Ashley Jenkins and Alexis Leeann Jenkins, kidnapped Kevin Pennington. Without trial or due process, they sentenced him to a short period of detention in their truck followed by a beating on the mountains of Kingdom Come State Park. Ashley and Alexis claim they targeted Kevin Pennington because of his sexual orientation. And though it has been the topic of much discussion, for Anthony and Jason Jenkins it no longer matters why. For the roles have been reversed. Now, it is they who are detained and transported before this Court against their will so that a sentence may be imposed. And now, in determining the duration of their detention, it does matter why. For unlike their captive, they have been the benefactors of the rule of law, institutions of justice, and due process. Therefore, the Court, having heard substantial argument and having reviewed the entire record, issues this Memorandum Opinion and Order setting forth the sentences, along with their justifications as to each Defendant.


         What became the country's first prosecution of a hate crime on the basis of sexual orientation began quietly in the hills of Harlan County, Kentucky. Anthony Jenkins, his wife Alexis Jenkins, his sister Ashley Jenkins, and his cousin Jason Jenkins, traveled together to the house of Kevin Pennington. A myriad of admitted lies and contradictory stories obscure the actual reason for the visit. In their version of the events, which has been the product of several documented revisions, Alexis and Ashley have admitted that the Jenkinses came to Kevin Pennington's house to inflict a physical assault because of his sexual orientation. These women advanced this testimony as witnesses against Anthony and Jason, but the results of that trial suggest that this narrative was rejected by the jury.

         The Defendants, though having also waivered over time in their rendition of these events, argued at trial that the visit constituted nothing more than drug addicts seeking drugs. Whether or not it was drugs that brought the Jenkinses to Kevin Pennington that night, the role of drugs in their encounter cannot be overlooked. Aside from Anthony Jenkins, each of the defendants were heavily addicted. Alexis and Ashley testified that they had ingested significant amounts of potent controlled substances on the night of the criminal activity. Jason Jenkins claims to have consumed thirty beers the same day. Even the victim, Kevin Pennington, admitted to significant drug abuse, and his involvement in the distribution of controlled substances.

         Pennington has testified that he initially entered the truck with the defendants because Ashley and Alexis, who he knew and

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trusted, deceived him into believing that they were going to travel to the home of Wes Tippett to acquire a suboxone strip. Based on the representations of Ashley and Alexis, Pennington claims to have believed that the others in the truck were their boyfriends. The Government introduced evidence at trial that darkness, window tint, and clothing items rendered Pennington unable to see the true identity of Anthony and Jason upon entering the truck. According to Pennington, he only identified Anthony and Jason when Alexis turned on the dome light of the truck. He maintains that he would not have gotten in the vehicle had he known that Anthony and Jason were there because he feared them from a previous encounter wherein his friend was assaulted. Pennington testified that when he learned of the presence of the Jenkins men, he asked to be let out of the truck, but his request was denied. He pleaded with Ashley, his friend who was in the back seat with him, to intervene on his behalf, but she also refused. The Jenkinses altered their course, and instead of continuing to Wes Tippet's house, they traveled to Kingdom Come State Park until a downed tree stopped their journey at the location of the assault.

         It should be noted that Anthony and Jason recall these events very differently than Pennington. They introduced evidence at trial that the truck changed course based on a discussion related to Wes Tippett's involvement and cooperation with police investigations. In their version of the events, the passengers of the car entered into a drug dispute with Pennington over Tippett, which boiled over into the events that occurred at Kingdom Come State Park. Either way, none of the parties dispute that when the truck stopped, Pennington was pulled out of the vehicle and was physically assaulted by Anthony and Jason Jenkins. The two male Jenkinses used their hands and feet to inflict injury on Pennington. Pennington testifies that both defendants were wearing steel-toed boots, although other evidence suggested that one or both of them were wearing tennis shoes. As the Jenkins men were causing physical injury to Pennington, Alexis and Ashley shouted homophobic slurs.

         Though at some point Pennington appears to have lost consciousness, he was able to perceive a break in his assault. When the Jenkinses went to their truck for a tire iron to use against Pennington, he ran to the edge of the road and jumped off into the woods in an attempt to escape and hide from his assailants. Though Pennington could hear them looking for him, the Jenkinses ultimately left him for dead, at which time Pennington ran to the ranger station to find help. He called 911 and was taken to the hospital for treatment of his injuries, which included swelling, lacerations, and bruising to the face, arms, legs, shoulders, ribs, back, and ankle.

         The Jenkinses, on the other hand, were arrested and taken to jail. State officials charged Anthony and Jason with attempted murder, while Ashley and Alexis were charged with conspiracy to assault second degree. These state charges, however, were dismissed and the case was certified for federal prosecution pursuant to 18 U.S.C. § 249(b)(1). The United States filed its Indictment against Anthony and Jason Jenkins on April 11, 2012, charging them with conspiring to kidnap Pennington in violation of 18 U.S.C. § 1201(c), kidnapping Pennington in violation of 18 U.S.C. § 1201, and willfully causing bodily injury to Pennington because of his actual or perceived sexual orientation in violation of the Hate Crime Prevention Act, 18 U.S.C. § 249(a)(2). Alexis and Ashley Jenkins were also charged for federal crimes including aiding and abetting kidnapping under 18 U.S.C. § 1201(a)(1), as well as aiding and abetting the willful causing of a

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bodily injury because of actual or perceived sexual orientation in violation of the Hate Crime Prevention Act, 18 U.S.C. § 249(a)(2).

         Relatively quickly after being charged, Ashley and Alexis indicated their intent to plead guilty to all charges against them and did so on April 10 and April 11, 2012, respectively. Not to be overlooked, with those pleas the United States convicted its first ever defendants for violations of the sexual orientation basis of the Hate Crime Prevention Act. The Jenkins men, on the other hand, plead not guilty to both charges. A lengthy trial followed. On October 25, 2012, the jury found Anthony and Jason guilty of kidnapping and conspiracy to kidnap, but acquitted them of the Hate Crime charges.

         Because of the unique circumstances of the case and the complex nature of the relationship between these defendants, this Court held a preliminary sentencing hearing to allow the parties to object to the Presentence Investigation Report and discuss the application of the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Cunningham, 669 F.3d 723 (6th Cir. 2012). The defendants were given the opportunity for allocution and the victim was given the opportunity to inform the Court about the impact that these traumatic events had on his life. Having heard those arguments and having reviewed the Presentence Investigation Report, as well as all documents submitted by the parties, including letters submitted on behalf of the some defendants and the victim, the Court now, for the reasons that follow, imposes a sentence in the case of Anthony, Jason, Alexis, and Ashley Jenkins.


          When imposing a sentence, district courts are, " guided by the factors set forth in 18 U.S.C. § 3553(a)." United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005) (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 764-65, 160 L.Ed.2d 621 (2005)). Section 3553(a) mandates as follows:

The court, in determining the particular sentence to be imposed, shall consider--(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed...(3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established [under the sentencing guidelines]... (5) any pertinent policy statement...(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

18 U.S.C.A. § 3553(a). Informed by the these factors, the Court's sentence must be:

Sufficient but not greater than necessary (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2). Guided by the factors and in light of these purposes, the Court is tasked with crafting a sentence that is reasonable and articulating specific findings in support of that imposed sentence. Jackson, 408 F.3d at 304 (citing Booker, 125 S.Ct. at 765); See also United States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (" the district judge must make an individualized assessment based on the

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facts presented and upon a thorough consideration of all of the § 3553(a) factors." ) (internal quotations omitted). With these standards in mind, the Court shall consider their application to each defendant in turn.



         With regard to David Jason Jenkins, the Court first considers the sentencing ranges as established under the United States Sentencing Guidelines, as well as any policy statements issued by the United States Sentencing Commission. Under the post- Booker sentencing scheme " district courts are required to consider the applicable Guidelines sentencing range when arriving at a defendant's sentence, 18 U.S.C. § 3553(a)(4), but only as one factor of several laid out in § 3553(a)." Jackson, 408 F.3d 301, 304 (citing Booker, 125 S.Ct. at 764, which states " Without the 'mandatory' provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals." ).

         Toward this end, the Court has directed the United States Probation Office to prepare a Presentence Investigation Report (PSR) for David Jason Jenkins. In computing the offense level, the PSR identifies U.S.S.G. § 2A4.1 as the appropriate Guideline for convictions under 18 U.S.C. § 1201(a)(1), with which a conviction under 18 U.S.C. § 1201(c) can be properly grouped pursuant to the rules found at U.S.S.G. 3D1.2(a). Section § 2A4.1(a) provides a basic offense level of 32, along with several enhancements depending on the specific offense characteristics. The PSR includes a two level enhancement under U.S.S.G. § 2A4.1(b)(2)(B) for serious bodily injury and use of a dangerous weapon under U.S.S.G. § 2A4.1(b)(3). The calculation also includes a two level adjustment for obstruction of justice, U.S.S.G. § 3C1.1. In light of the base offense and the enhancements, the total offense level proposed by the PSR is 38. David Jason Jenkins's long criminal history score of nine establishes a criminal history category of IV. With a total offense level of 38 and a criminal history category of IV, the range proposed by the Guidelines is 324 to 405 months.

         At the preliminary hearing, David Jason Jenkins indicated that he had reviewed the PSR with his counsel and understood it. However, through counsel he raised several objections to how the Guidelines were calculated in the PSR. Specifically, he objects to the enhancement for obstruction and joins in the objections made by Anthony Jenkins to the enhancements for serious bodily injury and use of a dangerous weapon. David Jason Jenkins also made objections to certain facts as set forth in the PSR. The factual objections have been made part of the record which this Court has considered, and the Court now turns to the merits of each substantive sentence enhancement raised by Jason Jenkins.


          Pursuant to U.S.S.G. § 2A4.1(b)(2)(B), if the victim sustained " serious bodily injury," the base offense level should be increased by two levels. " Serious bodily injury" is defined elsewhere in the Guidelines commentary as an " injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation." U.S.S.G § 1B1.1 comment n. 1(L). This can be contrasted to " bodily injury," which the commentary to the Guidelines defines as " any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought." U.S.S.G § 1B1.1 comment n. 1(B). There

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is no provision made in U.S.S.G. § 2A4.1 for an enhancement for an injury that only reaches the level of a " bodily injury."

         The Sixth Circuit has previously found that a defendant that repeatedly raped a victim, who was found lying in the fetal position and who required medical intervention in the form of a vaginal examination, could rightfully have been found to have caused serious bodily injury. United States v. Tipton, 11 F.3d 602, 610 (6th Cir. 1993). Despite the severity of that injury, the Sixth Circuit did not appear to espouse an exceedingly high bar for a serious bodily injury, noting that it is " unlikely that the Sentencing Commission intended this particular enhancement to be withheld in all but the most extreme cases of serious bodily injury." Id. (citing United States v. Newman, 1991 WL 63625, at *4, 1991 (6th Cir. April 23, 1991)).

         In United States v. Thompson, the Eighth Circuit found that a two level enhancement for serious bodily injury was proper because, the " injury required both hospitalization, albeit briefly, and involved the impairment of his mental faculties when he was knocked unconscious." 60 F.3d 514, 518 (8th Cir. 1995). The Fifth Circuit has recently had the occasion to consider the specific enhancement under 2A4.1(b)(2)(B) in the context of a kidnapping case. In United States v. Garza-Robles, the Court found that the victim had experienced pain sufficient to make application of the enhancement plausible when the victim, " had been assaulted repeatedly resulting in a broken rib, bruised buttocks, and cuts behind the ears." 627 F.3d 161, 169-70 (5th Cir. 2010).

         After being kidnapped and assaulted by the Jenkinses, Kevin Pennington jumped from a mountain to avoid what he perceived to be his impending death at the hands of the cousins. The evidence shows that Pennington lost consciousness during the altercation and sustained injuries that required transportation by ambulance to the emergency room. Medical records from the hospital visit identify the location of Pennington's injuries as the head, chest, back, face, L/R upper extremity, L/R lower extremity, neck, and ear. The clinical impression listed a right ankle sprain, multiple abrasions/contusions, and a closed head injury. Pennington testified that he sustained bruising, scratches, a torn ear, a boot print to his face, a broken tooth, blacktop embedded in his head, and an injury to his ankle that confined him to crutches with a splint for two months, remaining painful and discolored for as long as six months. Pennington also characterized the physical pain resulting from these injuries as a nine out of ten. Further, from Pennington's 911 call and his testimony at trial, it was clear that he experienced an extreme emotional reaction, and according to his victim impact statement, he continues to have lasting emotional and psychological effects from the incident.

         Though Kevin Pennington's injuries make this a somewhat close case, they are significant enough to constitute a serious bodily injury within the purposes of this enhancement. The injuries suffered by Pennington are perhaps not as severe as those suffered by the victims in the Sixth Circuit rape cases, but they are in line with similar injuries deemed to be a " serious bodily injury" by other circuits. Pennington's testimony reasonably suggests that he suffered extreme pain, that he lost consciousness, and that he suffered protracted impairment of his ankle. The Jenkinses did not merely lure Pennington in their car for a forced joy ride and then drop him back off at his home. They took him to the top of the mountain and beat him until he jumped off to escape, causing damaging injuries of extended consequence. This specific offense characteristic makes this more severe conduct than a

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basic kidnapping, and thus the enhancement for severe bodily injury under § 2A4.1(b)(2)(B) is appropriate.


         Next, is the objection to the application § 2A4.1(b)(3). This provision provides that if a " dangerous weapon" was used in the course of the kidnapping, the base offense level should be increased by two levels. The commentary explains that a " dangerous weapon" has the meaning given it in U.S.S.G § 1B1.1(Application Instruction), which states as follows:

" Dangerous weapon" means (i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an instrument; or (II) the defendant used the object in a manner that created the impression that the object was such an instrument (e.g. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).

U.S.S.G § 1B1.1 comment n. 1(D). In U.S.S.G. § 2A2.2, the Sentencing Commission goes on to note that a dangerous weapon " includes any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice pick) if such an instrument is involved in the offense with the intent to commit bodily injury." U.S.S.G. § 2A2.2. [1]

         The Sixth Circuit recently interpreted enhancements for dangerous weapons in United States v. Tolbert, 668 F.3d 798, 800 (6th Cir. 2012), upholding a district court's determination that a water pitcher could be considered a dangerous weapon under the Guidelines. In that case, the Sixth Circuit noted that the relevant factor was not whether an actual serious bodily injury occurred but " whether a reasonable individual would believe that the object is a dangerous weapon [ i.e., capable of inflicting serious bodily injury] under the circumstances." Tolbert, 668 F.3d at 801 (citing United States v. Rodriguez, 301 F.3d 666, 668 (6th Cir. 2002). This analysis takes the form of a functional approach that examines how the particular object was used under the circumstances. Id. (citing United States v. Perry, 284 Fed.Appx. 56, 57 (4th Cir. 2008)). Notably, the Court favorably cited the determination of the Second Circuit that " [I]n the proper circumstances, almost anything can count as a dangerous weapon, including walking sticks, leather straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes irons, and stink bombs." Id. (citing United States v. Matthews, 106 F.3d 1092, 1095 (2nd Cir. 1997)) (emphasis added). The court then approved of the district court's application of the standard, stating:

The district court correctly applied this kind of functional analysis, looking at

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the circumstances in which the water pitcher was used, when it ruled on Tolbert's objection. Contrary to Tolbert's assertions, it was not mere conjecture for the district court to conclude, based on evidence of the characteristics of the water pitcher--including its hardness, size, shape, and weight, the circumstances in which it was used (to strike someone in the head), and common experience, that this object was capable of inflicting serious bodily harm, even though no such harm actually resulted. The district court did not clearly err in concluding that the water pitcher constituted a dangerous weapon under these circumstances and that Tolbert's use of the pitcher to strike Thompson in the head provided sufficient evidence of his intent to inflict bodily injury. The application of the four-level enhancement for use of a dangerous weapon was therefore justified.


         After the Jenkinses trapped Kevin Pennington in their car, they took him to the top of a mountain in Kingdom Come State Park and assaulted him. Kevin Pennington testified that Anthony and Jason threw him to the ground and began kicking him and stomping on his head to the point that he briefly lost consciousness. The preponderance of the evidence at trial suggests that at least one of the Jenkins men was wearing steel-toed mining boots at the time of the assault. Alexis Jenkins testified that Jason Jenkins was wearing such boots earlier in the day, and Kevin Pennington and Ashley Jenkins testified that at least one of the Jenkinses was wearing steel-toed boots as they delivered the blows. Further, an officer testified as to the presence of a boot print on Kevin Pennington's head. Steel-toed boots are certainly instrumentalities capable of inflicting serious bodily injury, and were used to do so in this case. It is difficult to deny that using steel toed boots to force someone to stay where you want them or inflict a beating is more egregious and dangerous than doing so with one's bare hands. Thus, the dangerous weapon enhancement is appropriate. Though the evidence suggests that Jason was the one wearing the boots, it is unnecessary for the Court to make that determination, as calculating the relevant conduct under the Guidelines includes " all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and in the case of jointly undertaken criminal activity...all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(A)-(B). That the evidence shows either of the Jenkins men wore the steel-toed boots is sufficient to impute their use to the other Jenkinses.

         However, regardless of the type of footwear, additional trial testimony showed that kicking and stomping was so loud that the impact was audible and serious bodily injuries resulted, including a shoe print of some kind on Pennington's face. This type of behavior is not in the nature of rough housing boys, but is characteristic of an attempt to inflict serious bodily harm, confirmed by the jeers uttered during the beating. Under the functional approach espoused by the Sixth Circuit, the United States has proven that whether or not the shoes of the Jenkinses were steel-toed, their use in the beating was enough to carry out the intent of their owners to inflict a serious bodily injury. Thus, under either rationale, the two level enhancement for use of a dangerous weapon applies.

         This conclusion is not undermined because shoes are not often considered insidious devices of torture. The Jenkinses argue that kicking with boots or shoes is different than using a gun or a knife to kidnap Kevin Pennington. In fairness, the

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majority of the cases discussing the use of a deadly weapon to kidnap someone involved the defendant's use of an object with at least the appearance of a gun or knife to compel the victim to go or stay somewhere against their will. See, e.g, United States v. Coyle, 309 F.3d 1071 (8th Cir. 2002) (where the defendant held a knife to the leg of a victim to induce compliance). However, the argument of the Jenkinses appears to suggest that a crime where a knife or gun is used to coerce a victim into a vehicle but never used to harm the victim is worse than one where the kidnapping included the use of a more innocuous and common object to beat the victim into compliance and cause serious bodily injury. Specific offense characteristics allow for an enhancement to a base level offense when a particular aspect of that crime makes it worse than it otherwise could be. The Guidelines appear to contemplate that a kidnapping is worse when some instrument that is capable of inflicting serious bodily injury is used by a defendant who is intending to cause those injuries. As those are the circumstances present in this case, whether it was shoes, boots, or a tire iron, the enhancement for a dangerous weapon is applicable.


         Jason Jenkins also objects to the PSR's assessment of an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Concerning conduct that obstructs or impedes ...

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