United States v. Polk

United States Court of Appeals
For the First Circuit

No. 07-2425

UNITED STATES OF AMERICA,

Appellee,

v.

BYRON POLK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Howard, Circuit Judges.

Richard L Hartley and Law Office of Richard Hartley on brief
for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.

October 30, 2008
 SELYA, Circuit Judge. This appeal requires us to decide

whether the fifteen-year mandatory minimum term of imprisonment

under 18 U.S.C. § 2251(e), as applied, violates the Eighth

Amendment's prohibition on cruel and unusual punishment. For the

reasons explained below, we conclude that it does not.

Consequently, we affirm the judgment below.

The background facts can be succinctly summarized. The

jury supportably could have found that defendant-appellant Byron

Polk, over the course of some four months, engaged in online

conversations with a person whom he presumed to be a thirteen-year-

old girl. He pressured her to take and send to him sexually

explicit photographs of herself.

The thirteen-year-old girl turned out to be an undercover

police officer and, in due course, a federal grand jury indicted

the defendant for attempting to produce child pornography. See 18

U.S.C. § 2251(a), (e). The evidence showed that, during the period

when the online chats occurred, the defendant was physically

afflicted and confined to a wheelchair. At trial, he characterized

his offense as an isolated and harmless consequence of his

disability and ensuing confinement. However, other evidence

suggested that, at the time of these conversations, the defendant

was engaging in sexually explicit discussions, in person or online,

with three other underage girls.

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 The trial jury convicted the defendant of the charged

offense. The presentence investigation report told a seamy story:

it revealed an earlier conviction for aggravated sexual assault on

a toddler, sexual involvement with teenage girls on at least two

occasions, and yet another series of sexually charged computer

chats with a minor. The defendant conceded these facts but

objected to the statutory fifteen-year mandatory minimum sentence

that he faced as cruel and unusual.

The district court found that the defendant had not

accepted responsibility. See USSG §3E1.1. It set his total

offense level at 36 and placed him in criminal history category I.

These determinations — all of which are conceded on appeal —

yielded a guideline sentencing range (GSR) of 188 to 235 months in

prison.

The maximum penalty under the statute of conviction was

thirty years and the mandatory minimum sentence was fifteen years.

See 18 U.S.C. § 2251(e). The district court rejected the

defendant's constitutional challenge, finding both the GSR and the

prescribed mandatory minimum appropriate. The court proceeded to

sentence the defendant to an incarcerative term of fifteen years,

eight months. This timely appeal followed.

The customary appellate benchmark for measuring a

sentence imposed by a district court is reasonableness. See United

States v. Booker, 543 U.S. 220, 260-61 (2005); United States v.

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Martin, 520 F.3d 87, 92 (1st Cir. 2008). But an Eighth Amendment

challenge to an imposed sentence presents an abstract question of

law and, thus, engenders de novo review. See United States v.

Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007). Because the

defendant premises his appeal exclusively on the proposition that

his sentence offends the Eighth Amendment, the de novo standard of

review applies in this case. See United States v. García-

Carrasquillo, 483 F.3d 124, 132 (1st Cir. 2007).

We begin our analysis by noting an odd twist. The

district court did not sentence the defendant to the mandatory

minimum but, rather, to a term of years slightly in excess of it.

This might seem to obviate the defendant's claim that the mandatory

minimum sentence, as applied to him, violates the Eighth Amendment.

Here, however, the sentence actually imposed was at the bottom of

the GSR. The possibility exists that, but for the mandatory

minimum, the GSR would have been more modest and the defendant's

sentence would, accordingly, have been less. See Gall v. United

States, 128 S. Ct. 586, 594 n.2 (2007) (noting that the Sentencing

Commission chose to "key the Guidelines to the statutory minimum

sentences"). In all events, the sentence actually imposed exceeded

the mandatory minimum. For these reasons, we turn to the merits of

the constitutional challenge.

In terms, the Eighth Amendment proscribes "cruel and

unusual punishments." U.S. Const. amend. VIII. Courts long have

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interpreted this venerable phrase to encompass criminal sentences

that are grossly disproportionate to the underlying offense. See,

e.g., Solem v. Helm, 463 U.S. 277, 290-291 (1983); Weems v. United

States, 217 U.S. 349, 381 (1910). Although most frequently applied

in the context of capital crimes, see Kennedy v. Louisiana, 128 S.

Ct. 2641, 2650 (2008); Atkins v. Virginia, 536 U.S. 304, 318

(2002); Woodson v. N. Carolina, 428 U.S. 280, 303-05 (1976), the

principle of gross disproportionality also applies, albeit rarely,

to sentences in non-capital cases. See Weems, 217 U.S. at 381-82;

see also Harmelin v. Michigan, 501 U.S. 957, 997-98 (1991)

(Kennedy, J., concurring) (emphasizing that, outside the sphere of

capital punishment, the gross disproportionality principle is

narrow and applies only to "extreme cases").

When confronted with an Eighth Amendment challenge under

the Cruel and Unusual Punishments Clause, an inquiring court is

tasked to consider three criteria: "(i) the gravity of the offense

and the harshness of the penalty; (ii) the sentences imposed on

other criminals in the same jurisdiction; and (iii) the sentences

imposed for commission of the same crime in other jurisdictions."

Solem, 463 U.S. at 292. But there is a caveat: a comparative

analysis is not compulsory. Id. at 291. The court need not mull

the latter two criteria unless the sentence imposed crosses the

threshold erected by the first; that is, unless the sentence, on

its face, is grossly disproportionate to the crime. See Ewing v.

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California, 538 U.S. 11, 23, 30-31 (2003); United States v.

Cardoza, 129 F.3d 6, 18 (1st Cir. 1997).

We have recognized that instances of gross

disproportionality will be hen's-teeth rare. United States v.

Saccoccia, 58 F.3d 754, 788 (1st Cir. 1995). That is true because

"[t]he Constitution does not require legislatures to balance crimes

and punishments according to any single standard, or to achieve

perfect equipoise." Id. When Congress has identified a particular

scourge and, using reasoned judgment, articulated a response,

courts must step softly and cede a wide berth to the Legislative

Branch's authority to match the type of punishment with the type of

crime. See Solem, 463 U.S. at 290. It is, after all, "Congress —

not the judiciary — [which] is vested with the authority to define,

and attempt to solve . . . societal problems." Saccoccia, 58 F.3d

at 789.

Stern penalties are part of the legislative

armamentarium, and their deployment does not in and of itself

betoken cruel and unusual punishment. See Gore v. United States,

357 U.S. 386, 393 (1958). Moreover, "precise calibration of crime

and punishment" is not part of the constitutional regimen.

Saccoccia, 58 F.3d at 787. "The inherent nature of our federal

system" necessarily produces "a wide range of constitutional

sentences." Solem, 463 U.S. at 291 n.17.

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 Given the deference that courts owe to legislative

judgments in the area of crime and punishment, it is predictable

that most efforts to demonstrate gross disproportionality will

fail. The case law bears out that verity. See, e.g., United

States v. Frisby, 258 F.3d 46, 50 (1st Cir. 2001) (holding 151-

month sentence for heroin distribution based on "career criminal"

status not grossly disproportionate); Cardoza, 129 F.3d at 18

(holding 235-month sentence under Armed Career Criminal Act for

possession of ammunition not grossly disproportionate); United

States v. Graciani, 61 F.3d 70, 76 (1st Cir. 1995) (holding 280-

month sentence for distribution of crack cocaine not grossly

disproportionate).

Here, the defendant's challenge falters at the first step

of the pavane: he has failed to show that his sentence is grossly

disproportionate on its face to the crime of conviction. We

explain briefly.

The offense of conviction is the attempted production of

child pornography. As new means of communication have

proliferated, child pornography has become a mounting societal

problem. Consequently, Congress has expended a great deal of time,

energy, and effort fine-tuning the penalties associated with the

production of child pornography. Over the last three decades, it

has mandated increasingly severe sanctions for that crime (whether

consummated or attempted).

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 That has involved a progression from a maximum penalty of

ten years in 1978, to a maximum of twenty years in 1996, to a

maximum of thirty years in 2003. By the same token, Congress has

progressed from no minimum penalty in 1978, to a minimum of ten

years in 1996, to a minimum of fifteen years in 2003. See

Protection of Children Against Sexual Exploitation Act of 1977,

Pub. L. No. 95-225, 92 Stat. 7, 7; Child Pornography Prevention Act

of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-30;

Prosecutorial Remedies and Other Tools to end the Exploitation of

Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117

Stat. 650, 653. This continuing escalation was based on a grim set

of congressional findings to the effect that the "prevention of

sexual exploitation and abuse of children constitutes a government

objective of surpassing importance, and this interest extends to

stamping out the vice of child pornography at all levels in the

distribution chain." PROTECT Act, 117 Stat. at 676 (citations and

internal quotation marks omitted). Congress has found such severe

penalties necessary because child pornography is a "multimillion

dollar industry" run by a "nationwide network of individuals" who

"openly advertis[e] their desire to exploit children and to traffic

in child pornography." Adam Walsh Child Protection and Safety Act

of 2006, Pub. L. No. 109-248, 120 Stat. 587, 623.

The defendant makes three counter-arguments. First, he

trivializes the gravity of the offense of conviction. His brief

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reads as if there were no real distinction between, say, passing a

bad check or owning child pornography, on the one hand, and

attempting to violate a child by inducing her to participate in

producing new pornography, on the other hand. But this effort to

debunk the gravity of the offense is tantamount to whistling past

the graveyard: despite the defendant's disdain, the offense of

conviction is a serious crime.

In Congress's view — and that is the view that matters

most — the production of child pornography is a profoundly serious

matter. That is a reasonable value judgment, well within

Congress's prerogative to make. Saccoccia, 58 F.3d at 789.

Therefore, Congress was entitled to punish the offense heavily.

The defendant next argues that his crime was merely an

attempt, not a fully consummated offense. That argument does not

take him very far. Federal law historically has punished attempts

on a par with the underlying substantive offenses. See, e.g., 18

U.S.C. § 2423(e) (governing attempts to violate the Mann Act); 8

U.S.C. § 1324(1)(A) (governing attempts to violate the immigration

laws). In all events, we are unable to discern anything amiss in

Congress's desire to treat attempted crimes as analogous to

completed crimes for purposes of punishment.

In our judgment, the absence of such a distinction has

little, if any, bearing on the accused's culpability. By the same

token, it has little, if any, bearing on the constitutionality of

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the resultant sentence. See United States v. Brown, 500 F.3d 48,

60 (1st Cir. 2007) (accepting the validity in a sentencing scheme

of a congressional mandate "to treat inchoate offenses with as much

gravity as the substantive offenses that underlie them"); cf. Hutto

v. Davis, 454 U.S. 370, 374 (1982) (holding that imposition of a

harsh sentence for possession of marijuana based on intent to

distribute does not offend the Cruel and Unusual Punishments Clause

of the Eighth Amendment).

The bottom line is simply this: Congress has made a

reasonable legislative determination that a criminal who attempts

to produce child pornography is as deserving of a stiff sentence as

a criminal who actually succeeds in producing such smut. There is

no principled way that the Eighth Amendment permits us to second-

guess that legislative judgment.

The last potential line of defense devolves from the fact

that this case did not involve an actual child but, rather, an

impersonator (an undercover police officer). Here, however, the

defendant has not claimed entrapment or police misconduct of any

sort, and the government's use of undercover operatives as a tool

to combat crime is well within the pale. See, e.g., United States

v. Brand, 467 F.3d 179, 181-82 (2d Cir. 2006); United States v.

Santana, 6 F.3d 1, 5 (1st Cir. 1993). Perhaps more important, the

jury supportably found that the defendant believed his

correspondent to be a thirteen-year-old girl and intended to

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extract sexually explicit photographs from her. Given the jury's

verdict, the defendant cannot be heard to complain that his mistake

of fact absolves him of criminal responsibility. See United States

v. Dixon, 449 F.3d 194, 202 (1st Cir. 2006); United States v.

Cotts, 14 F.3d 300, 307 (7th Cir. 1994). On the same reasoning, we

think that his mistake of fact cannot tip the Eighth Amendment

balance in his favor.

Because we find no gross disproportionality between the

fifteen-year mandatory minimum term of imprisonment established by

18 U.S.C. § 2251(e) and the offense of which the defendant stands

convicted, we need go no further. The defendant's Eighth Amendment

challenge fails.

Affirmed.

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