United States v. Randy Shill

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30008
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-00493-BR-1

RANDY LEE SHILL,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding

Argued and Submitted
December 3, 2013—Seattle, Washington

Filed January 24, 2014

Before: Richard C. Tallman and Carlos T. Bea, Circuit
Judges, and Stephen Joseph Murphy, III, District Judge.*

Opinion by Judge Tallman

*
The Honorable Stephen Joseph Murphy, III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
2 UNITED STATES V. SHILL

SUMMARY**

Criminal Law

The panel affirmed a conviction and sentence for online
enticement of a female minor to engage in sexual activity in
violation of 18 U.S.C. § 2422(b), which federally criminalizes
the attempted enticement of a minor to engage in “any sexual
activity for which any person can be charged with a criminal
offense.”

The panel rejected the defendant’s contentions (1) that
§ 2422(b) should be construed narrowly to preclude
prosecution where the predicate “criminal offense” is a
misdemeanor under state law, and (2) that the ten-year
mandatory minimum sentence under § 2422(b) is cruel and
unusual punishment in violation of the Eighth Amendment
for the category of offenders who engage in attempted
misdemeanor conduct under state law.

COUNSEL

Kelly A. Zusman (argued), Appellate Chief, S. Amanda
Marshall, United States Attorney, District of Oregon, Office
of the United States Attorney, Portland, Oregon, for Plaintiff-
Appellee.

Lisa Hay (argued), Assistant Federal Public Defender,
Portland, Oregon, for Defendant-Appellant.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. SHILL 3

OPINION

TALLMAN, Circuit Judge:

Randy Shill appeals both his federal conviction following
a conditional guilty plea and his ten-year mandatory
minimum sentence for one count of online enticement of a
female minor to engage in sexual activity in violation of
18 U.S.C. § 2422(b). On appeal, Shill contends that
§ 2422(b), which federally criminalizes the attempted
enticement of a minor to engage in “any sexual activity for
which any person can be charged with a criminal offense,”
should be construed narrowly to preclude prosecution where
the predicate “criminal offense” is a misdemeanor under state
law. Shill also alleges that the ten-year mandatory minimum
sentence under § 2422(b) is cruel and unusual punishment in
violation of the Eighth Amendment for the category of
offenders who engage in attempted misdemeanor conduct
under state law. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we reject both challenges to Shill’s conviction
and sentence.

I

A

In October 2010, Randy Shill, age 45, approached “JS,”
a 16-year-old high school student, at a school fundraising
event. Shill told JS that he had seen her recently at a local
Target store and thought she “looked nice.” The next day,
Shill sent JS a Facebook “friend” request via the Internet. In
the request, Shill wrote that JS looked “incredibly beautiful”
at Target, and he requested that she not disclose their
conversation to his two children, who attended the same high
4 UNITED STATES V. SHILL

school as JS. JS told her father about the Facebook friend
request, and he contacted the police. Shortly thereafter, with
the consent of JS and her father, an FBI agent took control of
JS’s Facebook account and established a Yahoo! e-mail
account to instant message Shill.1 Shill engaged in a series of
sexually explicit online chats with the agent in which he
repeatedly attempted to entice the agent, whom he believed
was JS, to have sex with him.

Shill arranged to meet the agent posing as JS at a Portland
MAX Light Rail station at 4:00 p.m. on November 10, 2010,
and he agreed to bring condoms and alcohol. On November
10, 2010, Shill drove to the station and surveillance officers
observed him wait as six trains came and left. Shill was
confronted and arrested as he returned to his car. During a
search of Shill’s person incident to arrest, agents found
condoms and the Samsung smart phone Shill had used to send
sexually explicit photos and messages to the agent posing as
JS. In Shill’s car, agents found flowers, alcohol, a bottle of
Viagra, and additional condoms.

B

The government indicted Shill on one count of using the
Internet to entice a minor to engage in sexual activity in

1
JS was the third female to report Shill’s suspicious behavior to local
police. In August 2009, a 16-year-old girl filed a police report, stating that
Shill had sent sexually explicit text messages to her. The girl’s father
declined to press charges since he did not want his daughter to testify at
a trial. In April 2010, another police report was filed by an 18-year-old
Portland-area high school student whom Shill had met in a local park and
had also attempted to contact through Facebook.
 UNITED STATES V. SHILL 5

violation of 18 U.S.C. § 2422(b).2 The indictment specified
that Shill had knowingly attempted to coerce a minor to
engage in sexual activity for which he could be charged with
a criminal offense, namely, Sexual Abuse in the Third
Degree, in violation of Oregon Revised Statute § 163.415,3
and Contributing to the Sexual Delinquency of a Minor, in
violation of Oregon Revised Statute § 163.435.4 Both crimes
are Class A misdemeanors under Oregon law. An attempt to
commit either crime is also a misdemeanor under Oregon
law. See Oregon Revised Statute § 161.405(1), (2)(e) (stating
that “a person is guilty of an attempt to commit a crime when
the person intentionally engages in conduct which constitutes
a substantial step toward commission of the crime,” and that

2
The statute provides:

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) (emphasis added).
3
Oregon Revised Statute § 163.415 reads, in pertinent part: “(1) A
person commits the crime of sexual abuse in the third degree if: (a) The
person subjects another person to sexual contact and: . . . (B) the victim
is incapable of consent by reason of being under 18 years of age[.]”
4
Oregon Revised Statute § 163.435 reads, in pertinent part: “(1) A
person 18 years of age or older commits the crime of contributing to the
sexual delinquency of a minor if: (a) Being a male, he engages in sexual
intercourse with a female under 18 years of age[.]”
6 UNITED STATES V. SHILL

such an attempt constitutes a Class B misdemeanor under
Oregon law).

Shill filed a motion to dismiss the indictment, which the
district court denied in a written opinion and order. Shill
ultimately pleaded guilty pursuant to the terms of a
conditional plea agreement, which reserved his right to appeal
the district court’s denial of his motion to dismiss and to
challenge § 2422(b)’s ten-year mandatory minimum on
Eighth Amendment grounds.

At Shill’s sentencing hearing, the district court found that
Shill’s sentencing guideline range was 70 to 87 months. The
district court observed that a sentence of 70 months would be
imposed if the court were not bound by the statutory
mandatory minimum. Shill challenged the mandatory
minimum sentence on Eighth Amendment grounds, and after
careful consideration and briefing, the district court issued a
written opinion rejecting Shill’s Eighth Amendment
challenge and imposing the ten-year mandatory minimum
sentence.

II

A

Shill contends that the district court should have
dismissed the indictment. Specifically, Shill challenges the
following language in § 2422(b): “any sexual activity for
which any person can be charged with a criminal offense[.]”
According to Shill, this language is ambiguous, vague,
inconsistent with Congress’s expressed intent, and leads to
the “absurd” result that misdemeanor conduct is punishable
by a ten-year sentence under federal law. Shill argues that
 UNITED STATES V. SHILL 7

§ 2422(b) should be construed narrowly to preclude
prosecution where the attempted sexual activity is a
misdemeanor as opposed to a felony. We review the district
court’s denial of a motion to dismiss an indictment de novo,
United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir.
2012), and we affirm.

B

The purpose of statutory interpretation “is to discern the
intent of Congress in enacting a particular statute.” United
States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).
“[A]nalysis must begin with the language of the statute itself;
when the statute is clear, ‘judicial inquiry into [its] meaning,
in all but the most extraordinary circumstance, is finished.’”
United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005)
(quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 475 (1992)). Unless otherwise defined, “words will be
interpreted as taking their ordinary, contemporary, common
meaning.” Id. (quoting Perrin v. United States, 444 U.S. 37,
42 (1979)). Here, our analysis begins and ends with the
ordinary meaning of the statutory language.

The plain meaning of “criminal offense” is generally
understood to encompass both misdemeanors and felonies.
Black’s Law Dictionary defines “criminal offense” under
“offense” as “a violation of the law; a crime, often a minor
one.” Black’s Law Dictionary (9th ed. 2009), available at
Westlaw BLACKS. The Supreme Court has used the phrase
“criminal offense” broadly, stating in Lawrence v. Texas that
while the offense at issue was a “class C misdemeanor” and
a “minor offense in the Texas legal system,” it was still “a
criminal offense with all that imports” for the person charged.
539 U.S. 558, 575 (2003) (emphasis added). As Shill notes,
8 UNITED STATES V. SHILL

the phrase is not defined in the federal criminal code.
Nonetheless, we presume that Congress legislates in light of
relevant case law and familiar legal definitions. See
Abuelhawa v. United States, 556 U.S. 816, 821 (2009). Thus,
Shill’s actions, while a misdemeanor in the Oregon legal
system, nonetheless constitute a “criminal offense” under
§ 2422(b). We decline to embrace Shill’s narrow
interpretation of the statute, which belies the plain meaning
of the term “criminal offense.”

There can be no doubt that Congress has frequently
addressed the problem of sexual predators who utilize
instrumentalities of interstate commerce to prey on minors.
Each time Congress revisits the Mann Act, it toughens the
penalties for violations of the crimes therein.5 Further,
Congress’s repeated use of the word “any” suggests that
Congress intended the statute’s reach to be broad. See, e.g.,
United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read
naturally, the word ‘any’ has an expansive meaning.”).

5
The development of § 2422(b) reflects congressional intent to impose
increasingly harsh penalties on those who entice, or attempt to entice,
minors to engage in unlawful sexual activity. Congress added § 2422(b)
in the Telecommunications Act of 1996 to specifically prohibit the
enticement of minors, and Congress imposed a maximum penalty of ten
years. Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996). Since 1996,
Congress has increased the maximum sentence for violations of § 2422(b)
three times. See Pub. L. No. 105–314, § 102, 112 Stat. 2974, 2975–76
(Oct. 30, 1998) (increasing the maximum penalty to 15 years); Pub. L.
No. 108–21, 117 Stat. 650, 652–53 (Apr. 30, 2003) (increasing the
maximum penalty to 30 years and adding a five-year mandatory
minimum); Pub. L. No. 109–248, § 203, 120 Stat. 587, 613 (July 27,
2006) (increasing the maximum penalty to life in prison and increasing the
mandatory minimum to ten years). These penalty increases “suggest[] a
crystallizing vision on Congress’s part of the need for stern punishment in
this milieu.” United States v. Dwinells, 508 F.3d 63, 69 (1st Cir. 2007).
 UNITED STATES V. SHILL 9

Indeed, § 2422(b) imposes criminal liability on a person who
knowingly uses “any facility” of interstate commerce to
entice or “attempt” to entice “any individual who has not
attained the age of 18 years” to engage in “any sexual activity
for which any person can be charged with a criminal
offense.” 18 U.S.C. § 2422(b) (emphasis added). Without
any basis in the text to limit the reach of § 2422(b) to
predicate felony offenses, we refuse to read such a narrow
limitation into the statute. See Gonzales, 520 U.S. at 5
(refusing to read a limitation into a federal statute where
“[t]here is no basis in the text” to do so).

If Congress intended to limit § 2422(b) to apply only to
felony conduct, it could have expressly said so, as Congress
has done in other sections of the criminal code. See, e.g.,
18 U.S.C. § 922(g)(1), (9) (limiting application to those
convicted of a felony or a misdemeanor crime of domestic
violence); 18 U.S.C. § 924(e)(1) (providing enhanced
penalties for “violent felony” offenders). Because Congress
failed to limit § 2422(b) in this way, the logical inference is
that Congress intended the statute to apply to both state
felony and misdemeanor conduct.

Shill argues that the term “any sexual activity” must be
read narrowly to exclude misdemeanor offenses. He points
to the Seventh Circuit’s opinion in United States v. Taylor,
where the court interpreted the phrase “sexual activity” in
§ 2422(b) to require actual, attempted, or intended physical
contact with the victim. 640 F.3d 255, 260 (7th Cir. 2011).
According to the court, a broader reading of “sexual activity”
could include such innocuous acts as “watching a
pornographic movie, or a pole dancer, or a striptease artist,”
or even “flirting” or “flashing.” Id. at 257–58. The court
noted in dicta that “if the government’s broad conception of
10 UNITED STATES V. SHILL

‘sexual activity’ were accepted, then by virtue of that
misdemeanor law a flasher in the lobby of the federal
courthouse in South Bend, if charged under 18 U.S.C.
§ 2422(b), would be courting a prison sentence of at least 10
years.” Id. at 258. According to Shill, this statement gives
credence to his argument that Congress could not have
intended to criminalize mere misdemeanor activity. We are
not so easily persuaded.

First, there is no question that, unlike the defendant in
Taylor, Shill fully intended to engage in “sexual activity”
involving physical contact with a minor. Shill’s behavior is
not innocuous in the least; it involves real harm to a
particularly vulnerable class of individuals whom Congress
intended to protect through its enactment of § 2422. Second,
we conclude that the concerns of the Seventh Circuit in
Taylor are mitigated when the phrase is read in the context of
the statute as a whole. The phrase “any sexual activity” is
modified by the statutory language immediately preceding
and following it; § 2422(b) does not criminalize “flashing,”
for instance, when such behavior is not accompanied by the
use of a means of interstate commerce. Again, without any
basis in the text to limit § 2422(b) to felony conduct, we
refuse to read the statute so narrowly.

Shill contends that we must avoid a literal interpretation
of the statute that produces an “absurd” result. See, e.g.,
United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543
(1940). According to Shill, if § 2422(b) is not interpreted
narrowly, the “absurd” result is that a misdemeanor under
state law would be punishable by a mandatory ten-year
sentence under federal law. Shill cites to three Supreme
Court cases to support his argument. Nonetheless, the cases
cited by Shill—Lewis v. United States, 523 U.S. 155 (1998),
 UNITED STATES V. SHILL 11

Johnson v. United States, 559 U.S. 133 (2010), and
Abuelhawa v. United States, 556 U.S. 816 (2009)—each turn
on an interpretation of the particular statute as derived from
the plain meaning of the terms and their context in the
statutory scheme. Because we have engaged in a similar
analysis of a different statute, those cases do not compel a
different result.

For instance, in Lewis v. United States the Supreme Court
concluded that the phrase “any enactment of Congress” in the
Assimilated Crimes Act (ACA)6 could not be intended to
carry its literal meaning. 523 U.S. at 162. Under a literal
interpretation, the phrase would prevent assimilation of a
state statute if the defendant’s act or omission would be
punishable by any federal enactment. Id. at 159. Under this
narrow interpretation, a state could not enact a law
criminalizing murder because the federal government already
criminalizes second degree murder in 18 U.S.C. § 1111. Id.
at 160–61. After analyzing the purpose and context of the
ACA, the Supreme Court concluded that applying the plain
meaning of the phrase would “dramatically separate the
statute from its intended purpose.” Id. at 160. Here, no
similar problem exists. Analysis of the purpose and context
of § 2422(b) leads to the opposite conclusion—Congress’s
repeated use of the word “any,” combined with the expansive

6
The purpose of the ACA is to borrow state law to fill in
gaps in federal criminal law within the special maritime and
territorial jurisdiction of the United States where Congress
has not defined the missing offenses. See Lewis, 523 U.S. at
161. Thus, the ACA “applies state law to a defendant’s acts
or omissions that are ‘not made punishable by any enactment
of Congress.’” Id. at 159 (quoting 18 U.S.C. § 13(a)).
12 UNITED STATES V. SHILL

list of unlawful acts listed in the statute (persuade, induce,
entice, coerce) strongly suggests that Congress intended the
statute to carry its literal meaning.

Next, in Johnson v. United States, the Supreme Court
refused to apply a broad definition of “physical force” when
defining the phrase “violent felony” under the Armed Career
Criminal Act because the result was a “comical misfit” in
which a “violent felony” might include a battery of the
“merest touching.” 559 U.S. at 141, 145. Shill contends that
we should construe § 2422(b) similarly, excluding
misdemeanor conduct to avoid a “comical misfit.” But Shill
fails to recognize that the Supreme Court’s decision to reject
the misdemeanor definition of battery in Johnson was based
on the statute’s express use of the modifier “violent.” Id. at
141–42. No comparable modifier exists in § 2422(b).

Finally, in Abuelhawa v. United States, the statute at
issue, 21 U.S.C. § 843(b), penalized using a cell phone to
“facilitate” the commission of a felony drug offense. 556
U.S. at 818. The Supreme Court held that an individual does
not violate § 843(b) by using a cell phone to make a
misdemeanor drug purchase, even though his call to the
dealer could be said to facilitate the felony of drug
distribution. Id. In reaching this conclusion, the Court relied
on several factors, including the common usage of “facilitate”
and its legal definition, case-law analogies to “aiding and
abetting” concepts, the statutory context of lesser punishment
for buyers and greater punishment for sellers, and a
comparison of the length of punishment if a misdemeanor
purchase was transformed into felony facilitation. Id. at
820–23 (“Given the [Controlled Substances Act’s] distinction
between simple possession and distribution, and the
background history of these offenses, it is impossible to
 UNITED STATES V. SHILL 13

believe that Congress intended ‘facilitating’ to cause that
twelve-fold quantum leap in punishment for simple drug
possessors.”). Shill focuses solely on the final factor, noting
the harshness of the ten-year mandatory minimum sentence.
However, the statute in Abuelhawa was not interpreted
narrowly solely to avoid a harsh sentence. Each factor the
Court considered derives from the plain meaning of the word
“facilitate” and its use in the statutory scheme. Because we
conclude that the plain meaning of the term “criminal
offense” cannot be read to exclude misdemeanor conduct
from the statute’s ambit, Abuelhawa does not compel the
conclusion Shill urges upon us.

Congress wrote § 2422(b) to address the very real and
dangerous problem of the online enticement of minors. There
is no basis in the text to exclude attempted misdemeanor
conduct from the statute’s reach; indeed, the plain language
of § 2422(b) compels the opposite conclusion. We hold that
§ 2422(b) clearly and unambiguously criminalizes attempted
sexual activity where the object of the attempt would amount
to either a misdemeanor or a felony under state law.

C

Alternatively, Shill suggests that we should apply the rule
of lenity or the doctrine of constitutional avoidance because
the statute is grievously ambiguous. Further, Shill asserts that
the statute is unconstitutionally vague. We find these
contentions unpersuasive in light of our conclusion that the
language Congress chose means what it says.

The rule of lenity “requires ambiguous criminal laws to
be interpreted in favor of the defendants subjected to them.”
United States v. Nader, 542 F.3d 713, 721 (9th Cir. 2008)
14 UNITED STATES V. SHILL

(internal quotations omitted). The rule applies “only where
after seizing every thing from which aid can be derived,” the
court is left with a “grievously ambiguous” statute. Id.
(quotations omitted). Because the rule of lenity applies only
where the meaning of a statute is genuinely uncertain, and
because we conclude that § 2422(b) is not ambiguous, the
rule is not applicable here. See also Dwinells, 508 F.3d at 70.

Shill’s argument under the doctrine of constitutional
avoidance is no more persuasive. Under this canon, a “statute
must be construed, if fairly possible, so as to avoid not only
the conclusion that it is unconstitutional but also grave doubts
upon that score.” Almendarez-Torres v. United States,
523 U.S. 224, 237 (1998) (internal quotations omitted). The
doctrine is only applicable where a statute is “genuinely
susceptible to two constructions after, and not before, its
complexities are unraveled.” Id. at 238. Because the
statutory language of § 2422(b) is not ambiguous, the
doctrine of constitutional avoidance is inapplicable as well.

Finally, we hold that § 2422(b) is not void for vagueness.
A statute is void for vagueness if it fails to give adequate
notice to people of ordinary intelligence concerning the
conduct it proscribes. See United States v. Dhingra, 371 F.3d
557, 561 (9th Cir. 2004). Shill’s reading of § 2422(b), by
eliminating all misdemeanors from the term “criminal
offense,” “defies the ordinary understanding of the statutory
language and introduces vagueness where there is none.” Id.
The plain language of § 2422(b) criminalizes “any sexual
activity” which could constitute a “criminal offense.” A
person of ordinary intelligence would have no doubt that
criminal liability under the statute does not depend on
 UNITED STATES V. SHILL 15

whether the conduct constitutes a misdemeanor or a felony
under state law.

III

Shill next argues that the ten-year mandatory minimum
sentence under § 2422(b) violates the Eighth Amendment’s
prohibition against “cruel and unusual punishment” for the
category of offenders charged with violating § 2422(b) based
solely on misdemeanor predicates. We review de novo
whether a sentence violates the Eighth Amendment. United
States v. Fernandez, 388 F.3d 1199, 1258 (9th Cir. 2004).

The Eighth Amendment provides that “[e]xcessive bail
shall not be required . . . nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. While “strict
proportionality between crime and sentence” is not required,
a punishment will be deemed “cruel and unusual” when it is
“grossly disproportionate to the crime.” Graham v. Florida,
560 U.S. 48, 60 (2010). As we have recognized, there are
two ways to succeed on a proportionality claim. See United
States v. Williams, 636 F.3d 1229, 1232 (9th Cir. 2011). An
appellant can challenge the length of a term-of-years sentence
“given all the circumstances in a particular case” (the as-
applied challenge). Graham, 560 U.S. at 59. Alternatively,
an appellant can show that an entire class of sentences is
unconstitutionally disproportionate given the “nature of the
offense” or the “characteristics of the offender” (the
categorical challenge). Id. at 60. On appeal, Shill pursues
only a categorical challenge.

When considering an appellant’s categorical challenge to
a sentence, “a threshold comparison between the severity of
the penalty and the gravity of the crime does not advance the
16 UNITED STATES V. SHILL

analysis.” Id. at 61. Instead, when identifying the types of
crimes or types of offenders for which a sentence is
categorically disproportionate, we must first consider
“objective indicia of society’s standards, as expressed in
legislative enactments and state practice to determine whether
there is a national consensus against the sentencing practice
at issue.” Id. (internal quotations omitted). Then, “guided by
the standards elaborated by controlling precedents and by the
Court’s own understanding and interpretation of the Eighth
Amendment’s text, history, meaning, and purpose,” we must
determine in the exercise of our own independent judgment
whether the punishment violates the Constitution. Id.
(internal quotations omitted).

Until Graham v. Florida, the categorical approach was
used solely with respect to categorical restrictions on the
death penalty. Id. at 60–61. For instance, the Supreme Court
has applied the categorical approach to prohibit capital
punishment for defendants who committed a non-homicide
crime against an individual. See Kennedy v. Louisiana, 554
U.S. 407, 413 (2008). Likewise, the Supreme Court has
prohibited capital punishment for juvenile defendants, see
Roper v. Simmons, 543 U.S. 551, 578 (2005), and for those
whose intellectual functioning is in a low range, see Atkins v.
Virginia, 536 U.S. 304, 321 (2002).

In Graham, the Supreme Court applied the categorical
analysis for the first time to a non-capital sentence when it
concluded that the Eighth Amendment prohibits a sentence of
life imprisonment without parole for juvenile offenders
convicted of non-homicide crimes. Graham, 560 U.S. at 75,
82. Shortly thereafter, in Miller v. Alabama, the Court
pronounced another categorical rule, barring mandatory life
imprisonment without parole for juvenile offenders convicted
 UNITED STATES V. SHILL 17

of homicide crimes. — U.S. —, 132 S. Ct. 2455 (2012).
Shill invites us to apply the categorical approach to the ten-
year mandatory minimum sentence at issue here. We decline
to do so.

Both Graham and Miller expressly turned on two factors
not present here: a juvenile offender and a sentence of life in
prison without parole. In extending the categorical approach
to apply outside the death penalty, both Miller and Graham
focused on the “diminished culpability” and “greater
prospects for reform” of juvenile offenders, and concluded
that juveniles “are less deserving of the most severe
punishments.” Miller, 132 S. Ct. at 2464–65; Graham, 560
U.S. at 68–69. Miller and Graham stressed that “the
characteristics of youth, and the way they weaken rationales
for punishment, can render a life-without-parole sentence
disproportionate.” Miller, 132 S. Ct. at 2465–66.

Miller further clarified the kinship between a death
sentence and life without parole, stating that the categorical
ban in Graham was justified for a sentence of life
imprisonment without parole “[i]n part because we viewed
this ultimate penalty for juveniles as akin to the death
penalty[.]” Miller, 132 S. Ct. at 2466. Life without parole
sentences, according to the Court, “share some characteristics
with death sentences that are shared by no other sentences.”
Graham, 560 U.S. at 69. For these reasons, the Supreme
Court announced new categorical rules in Graham and Miller
“in a way unprecedented for a term of imprisonment.”
Miller, 132 S. Ct. at 2466.

Neither Graham nor Miller suggest that a ten-year
mandatory prison term is the type of sentencing practice that
requires categorical rules to ensure constitutional
18 UNITED STATES V. SHILL

proportionality. Shill is not a juvenile, and his ten-year
mandatory minimum sentence is in no way akin to the death
penalty. Thus, we refuse to apply the categorical approach to
Shill’s ten-year mandatory minimum sentence.

AFFIRMED.