In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3057
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD G. B RUCKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-cr-10130—Joe Billy McDade, Judge.
A RGUED F EBRUARY 9, 2011—D ECIDED JULY 22, 2011
Before E ASTERBROOK, Chief Judge, and F LAUM and
R IPPLE, Circuit Judges.
R IPPLE, Circuit Judge. Donald Brucker pleaded guilty to
one count of attempting to entice a minor to engage in
sexual activity, in violation of 18 U.S.C. § 2422(b), and to
one count of attempting to transfer obscene material to
a minor, in violation of 18 U.S.C. § 1470. Mr. Brucker
was sentenced to the statutory minimum sentence of
120 months’ imprisonment. He now appeals his sen-
2 No. 10-3057
tence. For the reasons set forth in this opinion, we affirm
the judgment of the district court.1
I
BACKGROUND
A.
In mid-October 2009, Mr. Brucker entered an internet
chat room and began communicating with another user,
named “Lisa,” who identified herself as a fifteen-year-old
girl from Peoria, Illinois. During their first conversation,
Mr. Brucker asked for photographs of Lisa. After
receiving only innocuous photos, he asked her to send
some “sexy” ones. R.17 at 6 (quotation marks omitted).
Mr. Brucker also made explicit, sexual comments about
things he would like to do with Lisa. When Lisa asked
Mr. Brucker if he cared that she was only fifteen, he
responded that he did not mind as long as she kept it a
secret.
Over the course of the next two months, Mr. Brucker
continued to contact Lisa online; the conversations were
consistently of a sexual nature and included a number
of propositions to engage in sexual relations. In late
October, Mr. Brucker suggested to Lisa that she arrange
for a ride to the Walmart in Morton, Illinois, so that
she could meet him in his motel room across the road.
1
The jurisdiction of the district court was based on 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
No. 10-3057 3
He also asked her to get a webcam so that he could
see her naked while they chatted. In early December,
Mr. Brucker began planning to meet Lisa at a restaurant
parking lot near her home. He then planned to drive her
in his truck to an isolated and unpatrolled location in
the country. During this time, Mr. Brucker also exposed
himself to her on more than one occasion, via a live
webcam. Mr. Brucker and Lisa finally agreed to meet in
the restaurant parking lot on December 14, 2009, in the
afternoon.
“Lisa” was in fact an online persona for a deputy in
the Peoria County Sheriff’s Office. On December 14, after
observing Mr. Brucker’s car at the prearranged location
in the restaurant parking lot and visually identifying
him as the man in the webcam videos, the deputy, accom-
panied by another officer, contacted Mr. Brucker online
as “Lisa.” Once Mr. Brucker had confirmed that Lisa
was on her way to meet him, he entered the restaurant.
When Mr. Brucker exited the restaurant, the officers
confronted him. After initially denying any involvement,
Mr. Brucker ultimately admitted that he was there to
meet a fifteen-year-old girl. In searching his car, the
officers recovered a laptop and an unopened package
of condoms.
Mr. Brucker was sixty-two years old at the time he
committed the offense.
B.
Mr. Brucker was charged in a two-count indictment
with attempting to entice a minor to engage in sexual
4 No. 10-3057
activity and attempting to transfer obscene material to
a minor. See 18 U.S.C. §§ 2422(b), 1470. He pleaded guilty
to both counts.
At sentencing, Mr. Brucker filed an objection to the
presentence investigation report (“PSR”), in which he
requested a sentence below the statutory minimum of
120 months. See 18 U.S.C. § 2422(b). In addition, he in-
cluded more than twenty letters of support and state-
ments regarding his character.
The district court quickly rejected Mr. Brucker’s request
for a below-minimum sentence and adopted the PSR in
its entirety. The court acknowledged that, absent the
statutory minimum, the sentencing range for Mr. Brucker
under the Guidelines would have been 70-87 months,
but it explained that the statutory mandatory minimum
of ten years was controlling.
After permitting Mr. Brucker to address the court and
hearing argument from the Government’s counsel, the
district court then turned to the sentencing calculation:
The Court has no real need nor obligation nor is it
relevant to discuss Mr. Bru[c]ker’s history and
characteristics because while that’s one of the
several sentencing factors the Court looks at in
the typical case, . . . which as I’ve indicated in
this case reflect a man who has been a very
decent man. But it doesn’t matter whether he
has or has not. The law is that there is a mandatory
minimum of ten years.
R.40 at 22-23. The court noted several reasons for Con-
gress’s decision to treat these kinds of cyber-offenses
No. 10-3057 5
with such severity, including that they target children,
that they can be accomplished from the privacy of
the offender’s home and that troubled children are par-
ticularly susceptible to the advances of predators. The
court then stated:
[Mr. Brucker] is still the father or grandpa, the
friend and neighbor that we have learned to de-
pend upon and love over the years. All that is
good and fine but you got to understand my job
today is not to look at Mr. Bru[c]ker and put on
one side his good works and put on this side this
crime. I don’t have the power to do that. I’m told
I can’t do that. I’m told that you must impose
a sentence that the people speaking through their
representatives have said for this type of crime,
this is a punishment for all people . . . .
Id. at 24. The court therefore sentenced Mr. Brucker to
120 months’ imprisonment and a fine of $12,500.
II
DISCUSSION
Mr. Brucker presents several constitutional challenges
to statutory minimum sentences, for which he relies
primarily on the premise that, as a constitutional matter,
the legislature cannot remove all discretion from the
sentencing judge. He bases these arguments on the Su-
preme Court’s decisions in United States v. Booker, 543
U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296
(2004), as well as on the Equal Protection Clause of the
6 No. 10-3057
Fifth Amendment, the proportionality principle of the
Eighth Amendment and the doctrine of separation of
powers. We review constitutional challenges to a sen-
tence de novo. United States v. Nagel, 559 F.3d 756, 759
(7th Cir. 2009).
A.
Mr. Brucker submits that the Supreme Court’s deci-
sion in Booker has been unduly limited by the Courts of
Appeals to its “narrow” remedial holding. Appellant’s
Br. 10. In his view, Booker incorporated the due process
analysis set forth by the Court in Blakely. In so doing,
Mr. Brucker asserts, Booker reset the balance between
the legislature’s prerogative to dictate sentences and
the judiciary’s obligation to exercise its discretion to
ensure that individualized sentences comport with the
demands of due process under the Fifth Amendment.
We have stated on numerous occasions that Booker has
no effect on statutory minimum sentences, generally in
the context of denying a remand under United States v.
Paladino, 401 F.3d 471, 483-85 (7th Cir. 2005), to defendants
who were sentenced to the statutory minimum. See
United States v. Douglas, 569 F.3d 635, 636 (7th Cir. 2009)
(finding an erroneous guidelines calculation harmless
because “Booker does not confer on district judges any
discretion to give sentences below statutory floors” (quota-
tion marks omitted)); United States v. Lee, 399 F.3d 864, 866
(7th Cir. 2005) (“Nothing in Booker gives a judge any
discretion to disregard a mandatory minimum . . . .”).
No. 10-3057 7
Indeed, in United States v. Roberson, 474 F.3d 432, 436-37
(7th Cir. 2007), we stated:
We acknowledge the tension with section
3553(a), but that very general statute cannot be
understood to authorize courts to sentence be-
low minimums specifically prescribed by Con-
gress. That was the rule when the guidelines were
mandatory, and it was not changed by Booker.
For in making the sentencing guidelines ad-
visory, the Court did not authorize courts to
sentence below the minimums prescribed not
by the guidelines but by constitutional federal
statutes. Booker has nothing to do with mini-
mum sentences. The judiciary is not free to re-
place Congress’s approach with one that it deems
superior.
Id. at 436-37 (internal citations and quotation marks
omitted).
Mr. Brucker provides a citation to Kimbrough v. United
States, 552 U.S. 85 (2007), in support of his argument for
mandatory judicial discretion in sentencing, but this
case affords him no basis for challenging mandatory
minimum sentences. Although the crack-powder
disparity exists in both the statute and the Sentencing
Guidelines, under Kimbrough, courts are only permitted
to depart from the Guidelines based on a policy disagree-
ment—not from the mandatory minimum sentences under
the statute. See id. at 107. Indeed, in Kimbrough, the Su-
preme Court explicitly recognized, post-Booker, that
sentencing courts remain bound by mandatory mini-
mums. See id.
8 No. 10-3057
B.
Mr. Brucker next raises three distinct equal protection
arguments to challenge his sentence. He compares
himself (1) to sex offenders covered by the same manda-
tory minimum statute whose conduct is more serious,
(2) to first-time, nonviolent drug offenders, who are
covered by the permissive departure, or “safety valve,”
found in 18 U.S.C. § 3553(f) and (3) to offenders with
the same conduct who are prosecuted in Illinois state
courts. These challenges arise under the Fifth Amend-
ment, which “contains an equal protection component.”
S.F. Arts & Athletics, Inc. v. United States Olympic Comm., 483
U.S. 522, 542 n.21 (1987). “The approach to Fifth Amend-
ment equal protection claims has been precisely the
same as to equal protection claims under the Fourteenth
Amendment.” Nagel, 559 F.3d at 760 (internal quotation
marks omitted). For claims based on either the Fifth or
the Fourteenth Amendment, “[e]qual protection of the
laws means that all persons similarly situated should be
treated alike.” Id.
Mr. Brucker acknowledges that his equal protection
challenges are all subject to the rational basis test. Under
this standard, the statute will be upheld “if there is a
rational relationship between the disparity of treatment
and some legitimate governmental purpose.” Smith v. City
of Chicago, 457 F.3d 643, 652 (7th Cir. 2006) (emphasis
in original) (quotation marks omitted).
Mr. Brucker’s first argument with respect to equal
protection is that the federal courts have applied § 2422(b)
more stringently in cases involving “cyber-offenders”
No. 10-3057 9
than in cases involving “real-world offenders.” Specifically,
Mr. Brucker argues that he has been denied equal pro-
tection because courts have construed more liberally
what constitutes a “substantial step” in an attempt to
commit a sex offense against a child when the case
involves a cyber-offender. Mr. Brucker asserts that, as
a result of this discriminatory standard, a real-world
attempt offender may receive a lighter sentence than a
cyber-offender.
Mr. Brucker provides no support for his view, that,
in some of our cases, we have construed more liberally
what constitutes a substantial step in the online context
than we have in those cases that have involved a
personal encounter. Even if Mr. Brucker’s rendition were
a complete and accurate assessment of the case law,
however, it would be of no assistance to him. In his
plea agreement, Mr. Brucker acknowledged, without
objection, that the Government could satisfy the sub-
stantial step element required for attempt.
Moreover, to the extent that Mr. Brucker argues that the
statute lacks a rational basis for treating him the same as
(as opposed to worse than) a real-world offender, this
argument must fail. Mr. Brucker believed that he had
engaged in sexual activity with an actual fifteen-year-
old girl, and, therefore, he is equally culpable and poses
no less danger to the community based simply on the
fact that the actual object of his advances was an under-
cover officer. In United States v. Nagel, 559 F.3d 756, 764
(7th Cir. 2009), we stated: “It is clear that Congress con-
templated a mandatory minimum sentence whether
there is an actual minor involved or not.”
10 No. 10-3057
Mr. Brucker’s second equal protection argument is that
there is no rational basis to support the application of the
safety valve provided in § 3553(f) to only drug-related
offenses.2 We considered and rejected squarely this argu-
ment in Nagel, which presented factual circumstances
nearly identical to Mr. Brucker’s case. See id. at 760-62.
We identified a number of rational bases for the distinc-
tion between defendants such as Mr. Brucker and
criminal defendants who have violated the Controlled
Substances Act, including Congress’s view about the
relative seriousness of the offenses and the fact that the
“safety valve” provision was intended to correct what
Congress perceived to be a problem with respect to the
sentencing of nonviolent drug offenders to overly harsh
sentences. See id. at 760-61. By contrast, Congress estab-
lished the mandatory minimum in § 2422(b) to address
its concern that, given the nature of the offense, de-
fendants who violated § 2422(b) were being sentenced
too leniently. See id. at 761. We also noted in Nagel that, in
contrast to sex offenses, in which the offender typically
acts alone, the need to obtain the cooperation of a drug-
offense witness, who may have been engaged in a wide-
2
Section 3553(f) of Title 18 provides that, in the case of certain
offenses under the Controlled Substances Act, when the
offender and the offense have certain characteristics, such as
the defendant’s lack of a criminal history, the offense was
committed without violence or threat of violence, no serious
injury resulted and the defendant was not an organizer or
manager, the district court may sentence the defendant “with-
out regard to any statutory minimum sentence.”
No. 10-3057 11
spread conspiracy, also serves as a rational basis for
Congress’s decision to treat violators of § 2422(b) more
harshly than nonviolent drug offenders. See id.
In his final equal protection argument, Mr. Brucker
points out that the state offense on which federal liability
is based has no corresponding mandatory minimum.3 In
United States v. Moore, 543 F.3d 891, 897 (7th Cir. 2008), we
held that “Congress and the state legislatures are free
to fashion their own, differing approaches to criminal
problems and sentencing” without violating equal pro-
tection. “That the federal defendant may face harsher
punishment than his state counterpart, or vice versa,
simply does not raise equal protection concerns.” Id. In
an attempt to distinguish this case law, Mr. Brucker
argues that Moore held only that each jurisdiction
could fashion its own penalties, but did not hold that
one jurisdiction could have a mandatory minimum sen-
tence while the other could leave the sentences entirely
to the judge’s discretion. Mr. Brucker raises a distinction
without a difference.
3
Section 2422(b) makes it a federal crime to use a means of
commerce to “knowingly persuade[], induce[], entice[], or
coerce[] 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.” 18 U.S.C.
§ 2242(b) (emphasis added). The underlying state offense
is aggravated criminal sexual abuse. 720 ILCS 5/11-1.60(d).
12 No. 10-3057
C.
Mr. Brucker contends that the mandatory minimum
sentence provision in § 2422(b) violates the Eighth Amend-
ment’s prohibition of cruel and unusual punishment,
which incorporates a rough proportionality principle.4
A sentence must be grossly disproportionate to the
crime committed in order to violate the Eighth Amend-
ment’s prohibition on cruel and unusual punishment.
See Solem v. Helm, 463 U.S. 277, 288 (1983). We therefore
begin our inquiry into the circumstances presented by
Mr. Brucker’s case by evaluating “the gravity of the
offense and the harshness of the penalty.” Nagel, 559
F.3d at 762 (quotation marks omitted). If this comparison
does not lead us to conclude that Mr. Brucker’s is the
“rare case” in which an inference of gross dispropor-
tionality is raised, our inquiry ends there. Id. (quotation
marks omitted). The bar set for evaluating such claims is
high. See Harmelin v. Michigan, 501 U.S. 957 (1991) (rejecting
a challenge to a mandatory life-without-parole sentence
4
Mr. Brucker makes an additional and somewhat related
argument that the mandatory minimum sentence violates
Woodson v. North Carolina, 428 U.S. 280 (1976), in which the
Court invalidated a state statute imposing a mandatory death
penalty for first-degree murder. This argument does not
merit much discussion as, in the more than thirty years
since Woodson was decided, the Court never has cast doubt
on the fact that other mandatory minimum sentences were
unaffected by its holding. See Lockett v. Ohio, 438 U.S. 586, 604
(1978) (plurality opinion) (noting that Woodson rested on the
“qualitative difference” of the death penalty).
No. 10-3057 13
for a first offense involving 672 grams of cocaine);
see also Ewing v. California, 538 U.S. 11, 28-31 (2003) (plural-
ity opinion) (affirming a sentence of twenty-five-to-life
for felony theft of three golf clubs under the three-
strikes rule).
Indeed, in Nagel, we considered and rejected an identical
argument:
Employing sexually graphic language, defendant
arranged this would-be rendezvous over the
Internet, which he also used to send video
images of his genitals and anus to the person he
thought was a 14-year-old girl. For this he
received a ten-year sentence, the statutory mini-
mum. Defendant has not demonstrated how his
ten-year sentence for attempting to entice a minor
to engage in a criminal sexual act is any more
disproportionate than the life sentence without
the possibility of parole imposed on a first-time
offender for possessing 672 grams of cocaine.
Suffice it to say that defendant’s sentence is less
severe tha[n] the sentence imposed in Harmelin
where the Supreme Court rejected an Eighth
Amendment proportionality challenge, and does
not resemble the life sentence for multiple non-
violent felonies struck down as disproportionate
in Solem.
559 F.3d at 763-64 (internal citation omitted).
14 No. 10-3057
D.
Finally, Mr. Brucker argues that the legislature exceeds
its constitutional authority when it impinges upon the
prerogative of the judiciary to impose a sentence that
it deems appropriate.
We have rejected separation of powers challenges to
mandatory minimum sentences, and we see no reason to
revisit that holding here. See United States v. Carraway,
612 F.3d 642, 646-47 (7th Cir. 2010) (rejecting the argu-
ment that a mandatory life sentence for dealing crack
cocaine violates the doctrine of separation of powers as
meritless under settled law); see also Harmelin, 501 U.S. at
998 (Kennedy, J., concurring in part and concurring in
the judgment) (“[T]he fixing of prison terms for specific
crimes involves a substantive penological judgment
that, as a general matter, is properly within the province
of legislatures, not courts.” (internal quotation marks
omitted)).
Conclusion
Mr. Brucker raises no substantial constitutional issue
in his attack on mandatory minimum sentences. Accord-
ingly, the judgment of the district court is affirmed.
A FFIRMED
7-22-11