United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2154
___________
United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Darrin Joseph Meirick, *
*
Defendant - Appellant. *
___________
Submitted: December 16, 2011
Filed: March 16, 2012
___________
Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.
___________
LOKEN, Circuit Judge.
An FBI task force officer downloaded child pornography from Darrin Meirick's
computer using a peer-to-peer network, and a warrant search of computers in his
home uncovered hundreds of images of child pornography, including images of
prepubescent females and an infant. He pleaded guilty to possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The plea
agreement provided that Meirick “knowingly and voluntarily waives [his] right to
appeal the conviction and the sentence imposed,” but he retained the right to appeal
the sentence in carefully defined circumstances:
(1) if the sentence is not in accordance with this plea agreement; (2) if
the sentence imposed exceeds the maximum statutory penalty; (3) if the
sentence is constitutionally defective; (4) if the sentence exceeds the
advisory guidelines range as calculated by the sentencing court; and (5)
if the sentencing court applies USSG §2G2.2(b)(3)(B) in calculating the
advisory guidelines range.
At sentencing, without objection, the district court1 determined an advisory
guidelines range of 78-97 months in prison. The court did not apply the five-level
enhancement in § 2G2.2(b)(3)(B) that would have triggered an exception to the
appeal waiver. Meirick urged a downward variance, supported by letters and
testimony from family members, a psychologist, and a forensic computer analyst.
After addressing Meirick’s evidence and contentions and the sentencing factors in 18
U.S.C. § 3553(a), the court sentenced him to 78 months in prison, followed by a ten-
year term of supervised release. Meirick appeals, arguing that the prison sentence,
the term of supervised release, and some of its special conditions2 violate his
constitutional rights to due process and equal protection of the law. Reviewing these
constitutional challenges de novo, we affirm. United States v. Ellefson, 419 F.3d
859, 865 (8th Cir. 2005) (standard of review).
The district court properly calculated Meirick’s advisory guidelines range using
the base offense level and five enhancements in U.S.S.G. § 2G2.2.3 On appeal (but
1
The Honorable Linda R. Reade, Chief Judge of the United States District
Court for the Northern District of Iowa.
2
Conditions limiting his contact with children and his presence in places where
children congregate without a probation officer's consent, and prohibiting him from
using alcohol or entering “bars, taverns, or other establishments whose primary
source of income is derived from the sale of alcohol.”
3
Enhancements for material involving a child under age 12, distribution for
pecuniary gain, depictions of violence, use of a computer, and an offense involving
-2-
not at sentencing), Meirick argues that § 2G2.2 and its five enhancements violate
substantive due process because they bear no rational relationship to the legitimate
goals of sentencing, and violate the Equal Protection Clause because they punish
child pornography offenses too severely compared with other sex-based crimes
against children. He further argues that he did not receive constitutionally mandated
individualized sentencing when the district court imposed a 78-month sentence and
the challenged term and special conditions of supervised release based on a
“discredited guideline” and inaccurate information that Meirick is a “typical” child
pornography offender.
The attack on § 2G2.2 fundamentally overstates the extent to which legislative
sentencing provisions are subject to constitutional scrutiny. Once a person has been
convicted of a crime in accordance with constitutional guarantees, determining the
severity of his punishment is, in the first instance, a legislative task. It is within the
legislative prerogative to determine, for example, whether child pornography offenses
should be punished more or less harshly than sexual offenses involving personal
contact with a child. Cf. New York v. Ferber, 458 U.S. 747, 757 (1982) (“The
prevention of sexual exploitation and abuse of children constitutes a government
objective of surpassing importance.”). A legislature may also grant sentencing judges
more or less discretion to depart from that determination in particular cases. Those
decisions are not subject to substantive due process or equal protection review, absent
line-drawing that is totally arbitrary or based upon an impermissible factor such as
race. See Ellefsen, 419 F.3d at 865. Thus, “rational basis” review of sentencing
provisions under the Due Process Clause and the Equal Protection Clause must be
highly deferential to legislative judgments about the most effective way to protect the
public from convicted criminals. Cf. Doe v. Miller, 405 F.3d 700, 714 (8th Cir.
2005). A guidelines provision “that accurately implements a directive of Congress
at least 150 but fewer than 300 images. See U.S.S.G. §§ 2G2.2(b)(2), (b)(3)(A),
(b)(4), (b)(6), and (b)(7)(B).
-3-
does not implicate substantive due process concerns.” United States v. Fortney, 357
F.3d 818, 821 (8th Cir. 2004).4
In this case, we need not conduct rational basis review of § 2G2.2’s base
offense level and enhancements because those provisions did not cause Meirick’s
alleged sentencing injury. The Guidelines are now advisory. “Accordingly, although
the ‘Guidelines should be the starting point and the initial benchmark,’ district courts
may impose sentences within statutory limits based on appropriate consideration of
all of the factors listed in § 3553(a), subject to appellate review for ‘reasonableness.’”
Pepper v. United States, 131 S. Ct. 1229, 1241 (2011), quoting Gall v. United States,
552 U.S. 38, 49-51 (2007). “[O]ur post-Booker decisions make clear that a district
court may in appropriate cases impose a non-Guidelines sentence based on a
disagreement with the Commission’s views.” Pepper, 131 S. Ct. at 1247. In this
regime, Meirick’s sentence was attributable not to the provisions of § 2G2.2, but to
the district court’s unwillingness to exercise its discretion to vary from those advisory
provisions.
Likewise, the 78-month sentence the district court imposed, including the term
and special conditions of supervised release, was plainly within the court’s post-
Booker sentencing discretion. Meirick complains that the court unconstitutionally
failed to render an individualized sentence because, in explaining why it rejected a
downward variance, the court characterized his child pornography offense as
“typical.” But this is not a constitutional issue. A sentencing scheme “not
considering individual degrees of culpability [] would clearly be constitutional.”
4
Four of the challenged § 2G2.2 enhancements were amendments enacted at
the direction of Congress. See U.S. Sentencing Comm’n, The History of the Child
Pornography Guidelines 33, 36, 39, 46 n.213 (2009). The fifth -- material involving
a child under age 12 -- was part of the original guideline. Unlike a court, “the
Commission is fully accountable to Congress.” Mistretta v. United States, 488 U.S.
361, 393 (1989).
-4-
Chapman v. United States, 500 U.S. 453, 467 (1991). Moreover, “the Constitution
does not guarantee individualized sentencing, except in capital cases.” United States
v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 493 U.S. 865 (1989).
“Congress in the Sentencing Reform Act of 1984 . . . disavowed the individualized
approach to sentencing.” Pepper, 131 S. Ct. at 1253 (Breyer, J., concurring). Thus,
in this sentencing regime, it was clearly reasonable for the district court to compare
Meirick’s offense with those of other child pornography offenders that the court had
sentenced. “A just legal system seeks not only to treat different cases differently but
also to treat like cases alike.” Id. at 1252.
After Booker, a substantive due process challenge to sentencing determinations
“is cognizable more properly as a challenge to the reasonableness of his sentence.”
United States v. Villareal-Amarillas, 562 F.3d 892, 898 (8th Cir. 2009) (quotation
omitted). If the resulting sentence is substantively reasonable, as that concept has
been defined in post-Booker Supreme Court decisions, it does not violate either the
Due Process Clause or the Equal Protection Clause. In other words, Meirick’s
meritless constitutional arguments do not permit him to avoid his valid appeal waiver,
which precludes challenging on appeal the substantive reasonableness of his prison
sentence or the terms of his supervised release. See United States v. Andis, 333 F.3d
886, 892-94 & n.7 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003).
The judgment of the district court is affirmed.
______________________________
-5-