546 F.3d 74 (1st Cir. 2008), 07-2425, United States v. Polk

Docket Nº:07-2425.
Citation:546 F.3d 74
Party Name:UNITED STATES of America, Appellee, v. Byron POLK, Defendant, Appellant.
Case Date:October 30, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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546 F.3d 74 (1st Cir. 2008)

UNITED STATES of America, Appellee,


Byron POLK, Defendant, Appellant.

No. 07-2425.

United States Court of Appeals, First Circuit.

October 30, 2008

Submitted Aug. 27, 2008.

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.

Before Lynch, Chief Judge, SELYA and HOWARD, Circuit Judges.

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

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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.

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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. 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. Garcí a-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...

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