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United States v. Freeman

United States District Court, Eastern District of Virginia, Alexandria Division

April 7, 2015

UNITED STATES OF AMERICA,
v.
RALPH FREEMAN, Defendant.

MEMORANDUM OPINION

JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

This matter is before the Court on Defendant Ralph Freeman’s Motion to Strike the Mandatory Minimum Sentence associated with a conviction for receipt of child pornography. [Dkt. 26.] Following the argument of counsel on April 2, 2015, the Court denied the motion in open court. This opinion memorializes the reasons for that decision.

I. Background

After a two-day non-jury trial, the Court found Defendant Ralph Freeman guilty of two counts: receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). (Mem. Op. [Dkt. 64]; Conviction Order [Dkt. 65].) Prior to trial, Freeman filed a Motion to Strike the Mandatory Minimum Sentence associated with a conviction for receipt of child pornography. (Mot. to Strike [Dkt. 26]; Mem. in Supp. [Dkt. 27].) The Court denied the motion without prejudice, mainly because the motion was not yet ripe--at the time, Freeman had yet to be convicted. (Order [Dkt. 48].) Now that Freeman has been convicted of receipt of child pornography, he faces a five-year statutory mandatory minimum term of incarceration. See 18 U.S.C. § 2252(b)(1) (“Whoever violates . . . paragraph . . . (2) . . . of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years[.]”). Freeman thus renews his motion, which is now properly before the Court. Freeman asks the Court “to find the mandatory minimum sentence to be unconstitutional because the mandatory minimum sentence is grossly disproportionate to the crime charged as applied [to Freeman].” (Def.’s Mem. at 1.) The Government opposes this request. (Gov’t Opp’n [Dkt. 32].)

II. Legal Standard

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. A punishment is cruel and unusual when, inter alia, it is disproportionate to the criminal conduct. Graham v. Florida, 560 U.S. 48, 59 (2010). Criminal defendants can challenge the proportionality of a punishment in two ways. First, in an “as-applied” challenge, the defendant “contests the length of a certain term-of-years sentence as being disproportionate given all the circumstances in a particular case.” United States v. Cobler, 748 F.3d 570, 575 (4th Cir. 2014) (quoting Graham, 560 U.S. at 59) (internal quotation marks omitted). Second, in a “categorical” challenge, the defendant “asserts that an entire class of sentences is disproportionate based on the nature of the offense or the characteristics of the offender.” Cobler, 748 F.3d at 575 (quoting Graham, 560 U.S. at 60)(internal quotation marks omitted). Here, Freeman argues that the five-year mandatory minimum term of imprisonment for receipt of child pornography is disproportionate “as applied” to him.

In an “as applied” proportionality analysis, the Court first makes a threshold determination of whether the “gravity of the offense and the severity of the sentence leads to an inference of gross disproportionality.” Cobler, 748 F.3d at 575 (quoting Graham, 560 U.S. at 59-60 (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring) (brackets omitted))). In the rare instance that this threshold is satisfied and “such an inference may be drawn, the court is required to compare the defendant’s sentence: (1) to sentences for other offenses in the same jurisdiction; and (2) to sentences for similar offenses in other jurisdictions.” Cobler, 748 F.3d at 575 (citation omitted). In the absence of a threshold showing, however, “extended comparative analysis of a sentence is unnecessary to justify its constitutionality.” Id. at 578 (citing Graham, 560 U.S. at 60).

Only one “term-of-years” sentence has been held grossly disproportionate by the Supreme Court, see Solem v. Helm, 463 U.S. 277 (1983) (holding unconstitutional a sentence of life imprisonment without parole for a recidivist who passed a bad check in the amount of $100), and since then, “no defendant before the Supreme Court has been successful in establishing even a threshold inference of gross disproportionality.” Cobler, 748 F.3d at 576 (citations omitted). Thus, the relief Freeman seeks is extraordinarily rare. In short, under this “as-applied” analytical framework, “the narrow proportionality principle of the Eighth Amendment does not require strict proportionality between crime and sentence, but forbids only extreme sentences that are grossly disproportionate to the crime.” Id. at 575 (quoting Graham, 560 U.S. at 59-60 (quoting Harmelin, 501 U.S. at 997, 1000-01 (Kennedy, J. concurring))) (internal quotation marks omitted).

III. Analysis

Now that this matter is ripe for adjudication, Freeman’s proportionality argument fails on the merits. Freeman acknowledges the uphill battle he faces. The Fourth Circuit recently addressed the proportionality issue in United States v. Cobler, 748 F.3d 570 (4th Cir. 2014). There, the Court stated, “[to say the law of this circuit regarding] proportionality review of any sentence less than life imprisonment without parole is not available, not appropriate, or not required . . . discounts the full import of [the] holding in United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985).” Id. at 574, 577. In Rhodes, relying heavily on Solem v. Helm, 463 U.S. 277 (1983), the Fourth Circuit held that “extensive proportionality analysis is required only in those cases involving life sentences without parole, or, alternatively, cases involving terms of years without parole that are functionally equivalent to life sentences because of the defendants’ ages, ” Cobler, 748 F.3d at 578 (citing Rhodes, 779 F.2d at 1028) (emphasis in original). This is because “challenges to non-capital sentences rarely will be successful, due to the substantial deference that reviewing courts owe to Congress and to trial courts.” Cobler, 748 F.3d at 578 (citing Solem, 463 U.S. at 289-90). Stated differently, “as applied” proportionality review of a term-of-years sentence is not automatically foreclosed in the Fourth Circuit, but such term-of-years sentences “that are clearly within the prerogative of Congress and subject to imposition by a district court may be disposed of swiftly.” Cobler, 748 F.3d at 579 (quoting United States v. Wellman, 663 F.3d 224, 231 (4th Cir. 2011)).

The five-year mandatory minimum sentence for receipt of child pornography is clearly within the prerogative of Congress, and therefore, Freeman’s motion will be denied. See, e.g., Chapman v. United States, 500 U.S. 453, 467 (1991) (upholding mandatory minimum sentences for drug offenses in the face of constitutional challenges).

In short, without addressing the gravity of the offense, the Court finds that there is no threshold showing of an inference of gross disproportionality between the offense conduct and the mandatory minimum term of five years, and therefore the Court need not engage in an “extensive” comparative analysis.[1] Cobler, 748 F.3d at at 578 (citing Graham, 560 U.S. at 60); see also United States v. Reingold, 731 F.3d 204, 218-19 (2d Cir. 2013). In Reingold, the Second Circuit vacated a 30-month sentence for one count of distribution of child pornography and remanded to the district court for re-sentencing in adherence with the mandatory minimum five-year term under the statute. The Second Circuit held:

Congress . . . established a graduated sentencing regime for crimes involving child pornography, with any knowing receipt or distribution of child pornography transmitted in interstate or foreign commerce punishable by a prison term of not less than five years and not more than 20 years . . . . The question . . . is not whether we would ourselves have made that precise policy decision if charged with legislative responsibility. In our judicial capacity, we conclude simply that no inference of gross disproportionality can be drawn from Congress’s enactment of a five-year minimum sentence for as serious a felony crime as the distribution [or receipt] of child pornography.

Id. (citing Harmelin 501 U.S. at 999 (Kennedy, J., concurring) (emphasizing “substantial deference” that reviewing courts owe legislature’s “broad authority . . . in determining the types and limits of punishments for crimes”) (internal quotation marks omitted)). The Second Circuit’s analysis is instructive and guides this ...


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