U.S. v. Polk, 07-2425.

• Citation: 546 F.3d 74
• Decision Date: 30 October 2008
• Docket Number: No. 07-2425.,07-2425.
• Parties: UNITED STATES of America, Appellee, v. Byron POLK, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

546 F.3d 74

UNITED STATES of America, Appellee, v. Byron POLK, Defendant, Appellant.

No. 07-2425.

United States Court of Appeals, First Circuit.

Submitted August 27, 2008.

Decided October 30, 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 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. 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, ___ U.S. ___, 128 S.Ct. 586, 594 n. 2, 169 L.Ed.2d 445 (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 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, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Weems v. United States, 217 U.S. 349, 381, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Although most frequently applied in the context of capital crimes, see Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641, 2650, 171 L.Ed.2d 525 (2008); Atkins v. Virginia, 536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Woodson v. N. Carolina, 428 U.S. 280, 303-05, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the principle of gross disproportionality also applies, albeit rarely, to sentences in non-capital cases. See Weems, 217 U.S. at 381-82, 30 S.Ct. 544; see also Harmelin v. Michigan, 501 U.S. 957, 997-98, 111 S.Ct. 2680, 115 L.Ed.2d 836 (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, 103 S.Ct. 3001. But there is a caveat: a comparative analysis is not compulsory. Id. at 291, 103 S.Ct. 3001. 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. California, 538 U.S. 11, 23, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (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, 103 S.Ct. 3001. 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, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (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, 103 S.Ct. 3001.

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).

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...