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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