RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0020p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-5787
v.
,
>
-
Defendant-Appellant. -
NATHAN HUGHES,
-
N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 08-00089-001—Joseph H. McKinley, Jr., District Judge.
Argued: December 8, 2010
Decided and Filed: January 24, 2011
Before: BOGGS and McKEAGUE, Circuit Judges; QUIST, District Judge.*
_________________
COUNSEL
ARGUED: Frank W. Heft, Jr., WESTERN KENTUCKY FEDERAL COMMUNITY
DEFENDER, INC., Louisville, Kentucky, for Appellant. Joshua Judd, ASSISTANT
UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF:
Frank W. Heft, Jr., Laura R. Wyrosdick, WESTERN KENTUCKY FEDERAL
COMMUNITY DEFENDER, INC., Louisville, Kentucky, for Appellant. Joshua Judd,
Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES ATTORNEYS,
Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Nathan Hughes was sentenced to prison for the
mandatory minimum term of ten years after pleading guilty to attempting to entice a
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
1
No. 09-5787 United States v. Hughes Page 2
minor to engage in a criminal sexual act, in violation of 18 U.S.C. § 2422(b). On appeal,
Hughes argues that his mandatory minimum sentence violates the Eighth Amendment
because it is grossly disproportionate to his crime, and that it violates the Fifth
Amendment’s due process and equal protection guarantees because similarly situated
defendants charged under 18 U.S.C. § 2423(b) are not subject to a mandatory minimum.
Because these arguments are without merit, we affirm the district court’s sentence.
I
On July 7, 8, 13, and 24, 2008, Hughes exchanged online communications with
someone he thought was a 14-year-old girl. In reality, his online companion was not a
child, but rather an undercover detective. In their last exchange, Hughes proposed
meeting at a local park in Louisville, Kentucky for the purpose of engaging in sexual
intercourse and/or oral sex. When Hughes arrived at the park, officers recognized him
from online photos and the description of his vehicle. He was arrested by the Louisville
Metro Police Crimes Against Children Unit, and indicted on the charge of attempting to
persuade, induce, or entice a 14-year-old girl to engage in sexual activity, in violation
of 18 U.S.C. § 2422(b). The statute carries a mandatory minimum sentence of ten years
of imprisonment. 18 U.S.C. § 2422(b).
Hughes filed a motion to dismiss the indictment or delete the mandatory
minimum sentence, claiming that the sentence constituted cruel and unusual punishment
and violated his due process and equal protection rights. In a short order, the district
court denied the motion, stating that the minimum sentence under 18 U.S.C. § 2422(b)
is “rationally related to the legitimate interest of Congress in curtailing the coercion or
enticement of minors over the internet,” and “[w]hile acknowledging the severity of a
ten year sentence, the Court cannot conclude that such a sentence is grossly
disproportionate to the alleged offense conduct in this case.” Hughes reserved the right
to appeal and pled guilty. He was sentenced to the ten-year minimum and timely
appealed.
No. 09-5787 United States v. Hughes Page 3
II
“‘A constitutional challenge to a sentence is a question of law and reviewed de
novo.’” United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009) (quoting United States
v. Marks, 209 F.3d 577, 583 (6th Cir. 2000)). We have not previously addressed in a
published opinion whether the mandatory minimum in 18 U.S.C. § 2422(b) is
constitutional. We now hold that it is.
A
Hughes argues that the ten-year mandatory minimum is grossly disproportionate
to his offense, thereby violating the Eighth Amendment’s protection against cruel and
unusual punishment.
The Supreme Court has adopted a “narrow proportionality principle” in
evaluating Eighth Amendment claims. Harmelin v. Michigan, 501 U.S. 957, 997 (1991)
(Kennedy, J., concurring in part and concurring in the judgment).1 In that case, Justice
Kennedy wrote that, “[t]he Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” Id. at 1001. A defendant challenging his sentence under
the Eighth Amendment has a tremendously difficult burden to meet. In the last century,
the Supreme Court has struck down only a handful of non-capital sentences under the
Eighth Amendment, and those cases have been egregious in the extreme. For example,
the Court found a life sentence without the possibility of parole unconstitutional for the
crime of uttering a “no account” check for $100. Solem v. Helm, 463 U.S. 277 (1983).
In Harmelin, by contrast, the Supreme Court upheld a mandatory life sentence without
the possibility of parole for possession of more than 650 grams of cocaine even where
the defendant had no prior felony convictions. 501 U.S. at 961, 994.
1
Harmelin has no majority opinion, and the Court has recognized that Justice Kennedy’s
concurrence is the controlling opinion. Graham v. Florida, --- U.S. ----, 130 S. Ct. 2011, 2021 (2010).
No. 09-5787 United States v. Hughes Page 4
In light of this precedent, Hughes’s ten-year sentence for attempting to entice a
minor into sexual relations raises no inference that it is “grossly disproportionate.”2 The
penalty in Solem was much more severe than the ten-year term to which Hughes was
sentenced, and the defendant’s conduct in that case was relatively trivial. Although he
was a habitual offender, all of his offenses were nonviolent in nature, and the Court
described his crime of uttering a worthless check as “viewed by society as among the
less serious offenses.” 463 U.S. at 297. Hughes bears a far greater similarity to the
Harmelin defendant. Both defendants lack a serious criminal history, but both were
convicted of very serious crimes. Hughes attempted to induce a minor to engage in
sexual acts with him. As we recently recognized, federal courts have consistently noted
the seriousness of crimes involving the sexual exploitation of minors. United States v.
Dobrowolski, No. 09-3482, 2010 WL 4723779, at *2 (6th Cir. Nov. 15, 2010)
(unpublished). Hughes’s penalty of only ten years for this serious offense is
substantially less severe than the life sentence without the possibility of parole that the
Supreme Court upheld for the drug offense in Harmelin. Therefore, his argument fails.
In so holding, we join the other circuits to decide the question. United States v. Nagel,
559 F.3d 756 (7th Cir. 2009); United States v. Butters, 267 F. App’x 773 (10th Cir.
2008)3; see also United States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010) (holding
that the thirty-year mandatory minimum sentence for crossing a state line with intent to
engage in a sexual act with a person under the age of twelve, in violation of § 2241(c),
does not violate the Eighth Amendment).
Because the defendant’s sentence raises no inference of gross disproportionality,
we need not consider the punishments available under other federal statutes or in other
2
The government urges that we should not conduct a proportionality analysis because of language
in United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995) (“Federal courts will not engage in a
proportionality analysis except in cases where the penalty imposed is death or life in prison without
possibility of parole.”). However, as we noted in United States v. Jones, “Justice Kennedy’s opinion in
Harmelin recognized the possibility that proportionality review could apply to invalidate a sentence for
a term of years.” 569 F.3d at n.2.
3
The Tenth Circuit also held in a published opinion that the previous mandatory minimum
sentence of five years for a violation of former 18 U.S.C. § 2422(b) did not violate the Eighth Amendment.
United States v. Munro, 394 F.3d 865, 872-73 (10th Cir. 2005). The Adam Walsh Child Protection and
Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006), raised the mandatory minimum sentence
from five to ten years.
No. 09-5787 United States v. Hughes Page 5
jurisdictions. Harmelin, 501 U.S. at 1005 (“[I]ntrajurisdictional and interjurisdictional
analyses are appropriate only in the rare case in which a threshold comparison of the
crime committed and the sentence imposed leads to an inference of gross
disproportionality.”).
B
The Supreme Court has noted that the Fifth Amendment contains an equal
protection component that applies to the federal government. San Francisco Arts &
Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 543 n.21 (1987). The analysis
of a Fifth Amendment equal protection claim is identical to an equal protection claim
under the Fourteenth Amendment. Ibid. In the district court and on appeal, Hughes
focused his equal protection argument on the disparity between himself and similar
defendants who were prosecuted under 18 U.S.C. § 2423(b). He admits that he is not
part of a suspect class, and therefore must show that the alleged government
classification lacks a rational basis. He cannot meet this burden.
The statute under which Hughes was charged and convicted reads:
Whoever, using the mail or any facility or means of interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of
the United States knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to engage in
prostitution or any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so, shall be fined under this
title and imprisoned not less than 10 years or for life.
18 U.S.C. § 2422(b). Hughes points to several defendants who committed acts very
similar to his—that is, they used the Internet to chat with undercover law enforcement
officers masquerading as young girls, arranged meetings for the express purpose of
sexual activity, and were subsequently arrested and convicted. However, these
defendants were not subject to the ten-year minimum sentence of § 2422(b) because they
were instead convicted under 18 U.S.C. § 2423(b), entitled “Transportation of minors”:
A person who travels in interstate commerce or travels into the United
States, or a United States citizen or an alien admitted for permanent
No. 09-5787 United States v. Hughes Page 6
residence in the United States who travels in foreign commerce, for the
purpose of engaging in any illicit sexual conduct with another person
shall be fined under this title or imprisoned not more than 30 years, or
both.
For the purpose of § 2423, “illicit sexual conduct” is confined to sex with minors.
18 U.S.C. § 2423(f). Hughes argues that the only difference between these statutes is
that § 2423(b) requires interstate travel, while § 2422(b) does not. He summarizes, “if
Hughes drove out of state to meet the minor, rather than drive to a park in Kentucky, he
would have avoided the 10 year mandatory minimum prescribed by § 2422(b) and would
have been subject instead to a maximum of 30 years under § 2423(b).” Appellant’s Br.
at 20.
This argument fails. As a technical matter, Hughes is not similarly situated to
the theoretical defendant who commits a violation of § 2423(b) because they commit
separate crimes encompassing different elements. Most notably, § 2423(b) requires
interstate travel and intent to engage in sexual conduct, but has no requirement that there
be an element of enticement or coercion. Section 2422(b), on the other hand, requires
that a defendant “persuades, induces, entices, or coerces” a minor to perform illicit
sexual activity, or attempts to do so. We have held that § 2422(b) does not require proof
of a specific intent to actually engage in sexual activity. United States v. Bailey,
228 F.3d 637, 639 (6th Cir. 2000) (“While it may be rare for there to be a separation
between the intent to persuade and the follow-up intent to perform the act after
persuasion, they are two clearly separate and different intents and the Congress has made
a clear choice to criminalize persuasion and the attempt to persuade.”). Section 2422(b),
in other words, was designed to protect children from the act of solicitation itself—a
harm distinct from that proscribed by § 2423(b). Indeed, had Hughes driven out of state
to meet the minor, he would not “have avoided the 10 year mandatory minimum,” as he
could have been charged with both crimes. See, e.g., United States v. Angwin, 560 F.3d
549, 551 (6th Cir. 2009) (noting that the defendant was indicted and convicted under
both § 2422(b) and § 2423(b)).
No. 09-5787 United States v. Hughes Page 7
But even to the extent that both Hughes and a § 2423(b) offender would be
similarly situated, in that they are both guilty of federal sex crimes, we perceive a
rational basis for the different punishments. Congress could reasonably have decided
that attempting to induce, or otherwise compel a minor to engage in sexual activity was
a more serious crime than merely crossing state lines with the intent to engage in illicit
sexual conduct with a minor. Section 2422(b) essentially requires proof that the
defendant attempted to communicate with the minor, and through that communication,
transform the minor into his victim. Section 2423(b) does not. This distinction is a
rational basis on which Congress could have decided to punish the crimes differently.
Insofar as Hughes claims an equal protection violation because he was similarly
situated to actual defendants prosecuted under § 2423(b), who in fact committed all the
elements of a § 2422(b) offense, that is a claim for selective prosecution. Hughes has
not argued any invidious discrimination, so this claim fails.
C
Hughes argues that his prosecution under § 2422(b) and the severity of his ten-
year sentence violate both substantive and procedural due process because “they are
arbitrary and irrational and thereby ‘shock the conscience.’” This argument fails.
The only procedural due process claim that Hughes appears to be making is that
he was prosecuted under § 2422(b) as opposed to some other statute with no mandatory
minimum. However, it is well established that prosecutors have broad discretion in
charging decisions. Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000). Absent
some more pertinent allegation such as selective enforcement, the decision to charge
Hughes under § 2422(b) falls within the broad range of discretion afforded prosecutors.
As for his substantive due process claim, Hughes appears to argue that his
lengthy sentence, in light of his criminal history and the lack of a minor victim, “shocks
the conscience.” This argument is more properly presented as an Eighth Amendment
claim, which we have already rejected. The test for a substantive due process claim is
whether there is a fundamental right at stake, and if not, whether there exists a rational
No. 09-5787 United States v. Hughes Page 8
basis for the deprivation. Doe v. Mich. Dept. of State Police, 490 F.3d 491, 501 (6th Cir.
2007). We have noted, however, that “enactments that do not encroach upon
fundamental rights [are] endowed with a presumption of legislative validity, and the
burden is on [the challenger] to show that there is no rational connection between the
enactment and a legitimate government interest.” Sheffield v. City of Fort Thomas, 2010
WL 3447750, at *14 (6th Cir. Sept. 3, 2010) (citation and quotation marks omitted)
(alterations in original).
In this case, Hughes has no fundamental right at stake. See Chapman v. United
States, 500 U.S. 453, 465 (1991) (holding that there is no fundamental right to liberty
once a person has been justly convicted). Further, there are a number of rational
explanations for why Congress would want to sentence an attempted sexual predator to
ten years in jail. The crime Hughes sought to commit is very serious, and his intended
victim—a minor—was especially vulnerable. By prescribing a severe punishment,
Congress could have acted to keep Hughes away from children and deter those similar
to Hughes from committing the same crime. In merely reiterating his Eighth
Amendment claim, Hughes has failed to establish that the legislature lacked a rational
basis for imposing the mandatory minimum.
Finally, Hughes makes a generalized challenge to mandatory minimums, arguing
that they deprive district courts of the ability to consider the factors in 18 U.S.C.
§ 3553(a). This argument essentially asks us to invalidate congressionally mandated
minimum sentences on separation of powers grounds, which we have already declined
to do. United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010) (“When a court and a
mandatory minimum are in conflict, the minimum wins.”).
III
Hughes’s constitutional challenges to the ten-year mandatory minimum sentence
under 18 U.S.C. § 2422(b) fail. We therefore AFFIRM the district court’s sentence.