485 F.3d 1211 (9th Cir. 2007), 06-30389, United States v. Meiners

Docket Nº:06-30389.
Citation:485 F.3d 1211
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Evert MEINERS, Defendant-Appellant.
Case Date:May 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1211

485 F.3d 1211 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Evert MEINERS, Defendant-Appellant.

No. 06-30389.

United States Court of Appeals, Ninth Circuit.

May 21, 2007

Submitted April 12, 2007. [*]

Page 1212

Mark S. Werner and Anthony R. Gallagher, Federal Defenders of Montana, Billings, MT, for appellant Evert Meiners.

William W. Mercer and Marcia Hurd, United States Attorney's Office, Billings, MT, for appellee United States of America.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-05-00065-JDS.

Before ALEX KOZINSKI and RAYMOND C. FISHER, Circuit Judges and ANDREW J. GUILFORD, District Judge. [**]

PER CURIAM.

Defendant-Appellant Evert Meiners operated a child pornography file server ("f-serve"), which he utilized to advertise child pornography images for distribution in exchange for other child pornography images to be sent to him. 1 During summer 2004, Meiners advertised and distributed child pornography to several Federal Bureau of Investigation special agents, a New York State detective and an officer with the German National Police.

United States Immigration and Customs agents identified Meiners as the operator of the f-serve and executed a warrant at his residence in Billings, Montana in November 2004. During the search, agents seized computer equipment containing 10,000-12,000 pornographic images, some of which depicted children engaged in sado-masochistic activity, including bondage and sexual intercourse.

Meiners agreed to plead guilty to four counts of advertisement of child pornography in violation of 18 U.S.C. § 2251(d), four counts of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced Meiners to 15 years in prison, comprised of 180 months on each advertisement count, 121 months on each distribution count and 120 months on the possession count, with all terms to be served concurrently. On appeal, Meiners challenges his sentence under the Eighth Amendment's prohibition against cruel and unusual punishment. Because a 15-year sentence is not grossly disproportionate to the gravity of Meiners' offense, we affirm.

We review de novo whether a sentence violates the Eighth Amendment. See United States v. Fernandez, 388 F.3d 1199, 1258 (9th Cir.2004). The Eighth

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Amendment forbids as "cruel and unusual punishment" prison terms that are "grossly disproportionate." See Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.1998). The Supreme Court has repeatedly emphasized that "federal courts should be reluctant to review legislatively mandated terms of imprisonment, and that successful challenges to the proportionality of particular sentences should be exceedingly rare." Ewing v. California, 538 U.S. 11, 22, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting Hutto v....

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