United States District Court, E.D. Virginia, Alexandria Division
O'GRADY UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant James Aubrey
Brown, IV's Motion to Strike Mandatory Minimum Sentence
and for Eighth Amendment Proportionality Review. Dkt. No. 62.
December 1, 2015, Mr. Brown was indicted on charges of
violating 18 U.S.C. § 2422(b). Dkt. No. 18. Mr. Brown
chose to go to trial and a jury of his peers ultimately found
Mr. Brown guilty of one count of attempted coercion and
enticement of a minor in violation of 18 U.S.C. §
2422(b). The evidence at trial showed that Mr. Brown
contacted an individual through Craigslist whom he believed
to be a thirteen-year-old girl. After having multiple
conversations in which sexual activity was discussed, Mr.
Brown arranged to meet with this individual at Marine Base
Quantico. Mr. Brown then travelled to Quantico to meet this
minor and engage in sexual activity with her. Mr. Brown was
not actually communicating with a thirteen-year-old girl.
Rather, he was communicating with an undercover officer
posing as a thirteen-year-old. Mr. Brown was arrested when he
arrived at the arranged meeting place at Quantico.
Brown's sentencing is currently scheduled for June 24,
2016, and he faces a mandatory minimum sentence of 120 months
in prison. Mr. Brown now asks this Court to save him from
this punishment by declaring this mandatory minimum sentence
violates his Eighth Amendment right against cruel and unusual
The Applicable Law
Eighth Amendment to the Constitution provides that
"[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted." U.S. Const, amend. VIII. A punishment is
considered cruel and unusual not only when it is
"inherently barbaric" but also when the punishment
is "disproportionate to the crime." Graham v.
Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 2021, 176
L.Ed.2d 825 (2010), as modified (July 6, 2010). A defendant
who believes his punishment is disproportionate to the crime
he is charged with can challenge his sentence through an
"as-applied" challenge or through a
"categorical challenge." United States v.
Cobler, 748 F.3d 570, 575 (4th Cir. 2014). An
"as-applied" challenge, which Mr. Brown raises,
contests the length of a defendant's sentence in light of
the specific circumstances of that defendant's case.
Id. A categorical challenge contests the length of
"an entire class of sentences" as disproportionate
to "the nature of the offense" or "the
characteristics of the offender." Id.
as-applied challenge, the court must conduct a threshold
comparison to determine whether the "gravity for the
offense and the severity of the sentence Meads to an
inference of gross disproportionality.'"
Id. (quoting Graham, 560 U.S. at 59-60). If
the court determines that an inference of gross
disproportionality may be drawn, the court must conduct an
extended analysis to determine whether or not the sentence is
in fact grossly disproportionate. Id. In this second
step, the Court compares the defendant's sentence to:
"(1) [ ] sentences for other offenses in the same
jurisdiction; and (2) [ ] sentences for similar offenses in
other jurisdictions." Id.
Supreme Court has made clear that it will only find a
sentence grossly disproportional in violation of the
Constitution in the most extraordinary cases. Lockyer
v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166,
1175, 155 L.Ed.2d 144 (2003). The Fourth Circuit has noted
that "[t]he Supreme Court has identified a term-of-years
sentence as being grossly disproportionate" in only one
case: Solem v. Helm, 463 U.S. 277 (1983).
In that case, "a recidivist defendant had been sentenced
to life imprisonment without parole for passing a bad check
in the amount of $100." Cobler, 748 F.3d at
576. The Supreme Court found it significant that passing a
bad check was "one of the most passive felonies a person
could commit" while the punishment, which did not
include the possibility of parole, was "the most severe
punishment that the State could have imposed on any criminal
for any crime." Solem, 463 U.S. at 297. Capital
punishment was not authorized in South Dakota when the
defendant in Solem was sentenced. Id.
Court cannot find that the mandatory minimum ten year
sentence Mr. Brown faces for attempting to coerce and entice
a minor gives rise to an inference of gross
disproportionality. The Court first finds it irrelevant that
Mr. Brown never came into contact with any minors and that no
minors were ever at risk of harm during the commission of
this crime. The jury necessarily found that Mr. Brown
believed he was speaking to a person under the age of
eighteen and was attempting to entice or coerce that minor
into engaging in sexual activity. Congress has made clear
that such conduct, which "reflects a real attempt to
engage in sexual abuse of a child, " demonstrates just
as much culpability as when an actual child, rather than an
undercover agent, "was the object of enticement."
H.R. CONF. REP. 108-66, 51, 2003 U.S.C.C.A.N. 683, 685, Joint
Explanatory Statement at 51.
the Court does not find the circumstances of Mr. Brown's
case are comparable to the circumstances present in Solem
v. Helm, 463 U.S. 277 (1983). First, unlike the
crime at issue in Solem, the crime of attempted
coercion and enticement of a minor is not passive. Rather, as
the evidence at trial showed, Mr. Brown actively communicated
with what he thought was a thirteen-year-old girl many times
over the course of twelve days, during which he continuously
pressed her to meet up for sex. Mr. Brown then drove over an
hour to meet up with this thirteen-year-old in order to
engage in sexual activity. There is no question that Mr.
Brown intended to entice a minor and took many active steps
to do so. Second, in contrast to Solem, the ten year
mandatory minimum Mr. Brown faces is far from the "most
severe" punishment this Court could impose. See
Id. at 297. The ten year sentence is also within the
Sentencing Guidelines (97-121) for a first offender.
Court also finds it significant that Congress chose to enact
a mandatory minimum sentence for this crime. Congress
purposefully decided that crimes involving sexual
exploitation of minors were serious and deserved a harsh
punishment that could not be mitigated by a sympathetic
court. See H.R. CONF. REP. 108-66. The Court
respects this decision as "the fixing of prison terms
for specific crimes involves a substantial penological
judgment that, as a general matter, is properly within the
province of the legislature, " not the courts.
Harmelin v. Michigan, 501 U.S. 957, 959,
111 S.Ct. 2680, 2683, 115 L.Ed.2d 836 (1991).
of these reasons, the Court finds this case does not give
rise to an inference of gross disproportionality. Even it if
did, however, the additional analysis would not confirm that
the mandatory minimum is in fact grossly disproportional to
the crime. All of the cases Defendant cites in support of his
contention that many defendants convicted of similar crimes
in this jurisdiction received sentences shorter than 120
months involved defendants who pleaded guilty to 18 U.S.C.
§ 2423(b). travel with intent to engage in illicit
sexual conduct, which does not have a mandatory' minimum
sentence. These are not comparable cases. Further, numerous
courts in other jurisdictions have found that the mandatory
minimum 10-year sentence for violations of 18 U.S.C. §
2422(b) does not violate the Eighth Amendment. See United
Slates v. Hughes,632 F.3d 956, 959 (6th Cir. 2011)
("Hughes's ten-year sentence for attempting to
entice a minor into sexual relations raises no inference that
it is 'grossly disproportionate."'); United
States v. Nagel,559 F.3d 756, 762 (7th Cir. 2009) C[W]e
now hold that the ten-year mandatory minimum sentence
provision in § 2422(b) ...