U.S. v. Nagel

• Citation: 559 F.3d 756
• Decision Date: 24 March 2009
• Docket Number: No. 08-2535.,08-2535.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael E. NAGEL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

559 F.3d 756

UNITED STATES of America, Plaintiff-Appellee, v. Michael E. NAGEL, Defendant-Appellant.

No. 08-2535.

United States Court of Appeals, Seventh Circuit.

Argued February 19, 2009.

Decided March 24, 2009.

Jonathan H. Koenig (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Robert G. Lebell (argued), Lebell Dobroski & Morgan LLP, Milwaukee, WI, for Defendant-Appellant.

Before FLAUM and WILLIAMS, Circuit Judges, and KAPALA, District Judge.¹

KAPALA, District Judge.

Michael E. Nagel, pled guilty to attempting to entice a minor to engage in a criminal sexual act in violation of 18 U.S.C. § 2422(b) and was sentenced to the mandatory minimum ten-year term of imprisonment. On appeal, argues that the mandatory minimum sentence violates the Fifth and Eighth Amendments to the United States Constitution because it is not subject to a "safety valve" allowing for a sentence below the mandatory minimum term. We affirm.

I. Background

By indictment, the government charged that defendant violated § 2422(b) when he:

used a facility and means of interstate commerce to attempt to persuade, induce, entice, and coerce a person under eighteen years of age to engage in sexual activity for which the defendant could be charged with a criminal offense, namely, by using a computer connected to the Internet to attempt to have sexual contact and sexual intercourse with a 14-year old female known to the defendant as "Maria," in violation of Wisconsin Statute 948.02(2) (second-degree sexual assault of a child).

In reality, "Maria" was a detective with the Milwaukee Police Department.

Defendant filed a motion to dismiss the charge and to declare the mandatory minimum ten-year sentence provision in § 2422(b) unconstitutional on its face and as applied to him. Defendant argued that the mandatory minimum penalty violates the Fifth Amendment's Equal Protection guarantee because it precludes application of the "safety valve" provision contained in 18 U.S.C. § 3553(f), and that it constitutes cruel and unusual punishment in violation of the Eighth Amendment because the penalty is grossly disproportionate to the gravity of the offense.

Because defendant had not been convicted, the district court found defendant's as-applied arguments unripe and addressed only defendant's facial challenges. The district court found that the legislative history provided a rational basis for the mandatory minimum sentence because it indicated that Congress contemplated a sentencing mechanism that would underscore the seriousness of the offense. The district court held further that Congress had a rational basis not to provide a safety valve because there is a rational distinction between non-violent first-time drug offenders, to which § 3553(f) applies, and offenders who prey on children, to which it does not. Citing United States v. Gross, 437 F.3d 691 (7th Cir.2006), the district court also found defendant's Eighth Amendment challenge to be without merit.

Thereafter, the parties entered a conditional plea agreement under which the government agreed to recommend the mandatory minimum ten-year sentence. The factual basis for the plea established that Nagel had extensive sexually explicit computer chats and phone conversations with "Maria," who identified herself as a 14-year-old girl from Milwaukee. During these encounters, Nagel graphically expressed his desire to have sex with Maria. Eventually, Nagel traveled from Burbank, Illinois, to Milwaukee, Wisconsin, to meet with Maria and was arrested.

After pleading guilty, but before sentencing, defendant renewed his motion to dismiss the charge on Fifth and Eighth Amendment grounds and maintained that he met all the requirements of the § 3553(f) safety valve. The district court found defendant ineligible for relief under the safety valve because he did not commit any of the offenses enumerated in § 3553(f). The district court reiterated its previous conclusion that there was a rational basis for enacting the mandatory minimum sentence in § 2422(b) without regard to any safety valve provision and, therefore, the statute did not violate equal protection principles. The district court rejected defendant's Eighth Amendment as-applied argument that his sentence was unduly harsh in light of his criminal history, characteristics, and his unlikeliness of repeating the offense. The district court also continued to reject defendant's facial challenge to the statute on cruel and unusual punishment grounds. The district court sentenced defendant to 120 months' imprisonment, but made clear that it viewed the mandatory minimum sentence provision as "draconian" in nature and stated that, but for the mandatory minimum provision in § 2422(b), it would have sentenced defendant to a sentence within the otherwise applicable advisory Sentencing Guidelines range of 46 to 57 months. Defendant now appeals.

II. Analysis

On appeal, defendant argues that § 2422(b)'s mandatory minimum ten-year sentence, which is not subject to the safety valve provision of § 3553(f), violates the Fifth and Eighth Amendments to the United States Constitution. We review de novo constitutional challenges to a sentence. United States v. Figueroa-Espana, 511 F.3d 696, 705 (7th Cir.2007).

A. Fifth Amendment

Defendant continues to advance the same facial equal protection argument that he made in the district court: that there is no rational basis to punish more severely those who have been convicted of violating § 2422(b) than those who have been convicted of the controlled substance offenses enumerated in § 3553(f).² Like the district court, we have little difficulty perceiving of a rational basis for the classification.

The Supreme Court has noted that while the Fourteenth Amendment applies only to the states, the Fifth Amendment applies to the federal government and also "contains an equal protection component." S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n. 21, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). The approach to Fifth Amendment equal protection claims has "`been precisely the same as to equal protection claims under the Fourteenth Amendment.'" Id. (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975)). Equal protection of the laws means that all persons similarly situated should be treated alike. See Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

Defendant concedes on appeal that his equal protection challenge is subject to the rational-basis test. Under that lenient standard, the statute will be upheld "if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Smith v. City of Chi., 457 F.3d 643, 652 (7th Cir. 2006) (quotation marks omitted). The party challenging the statute has the burden of eliminating any reasonably conceivable state of facts that could provide a rational basis for the classification. Id.

The offense to which defendant pleaded guilty provides:

Whoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). The "safety valve" provision of § 3553(f) applies only to the controlled substance offenses specifically enumerated therein and "allow[s] certain non-violent first-time drug offenders to avoid the application of statutory minimum mandatory sentences if they cooperated with the government." United States v. Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir.2007) (quotation marks omitted).

Defendant's equal protection argument fails because criminal defendants who violate § 2422(b) are not similarly situated for sentencing purposes with criminal defendants who violate the controlled substance offenses enumerated in § 3553(f). See Smith ex rel. Smith v. Severn, 129 F.3d 419, 429 (7th Cir.1997) ("An equal protection violation occurs only when different legal standards are arbitrarily applied to similarly situated individuals."). Therefore, Congress is not required to treat such disparate individuals in the same manner. The following distinctions demonstrate this point.

As noted by the district court, the Joint Explanatory Statement of the Committee of Conference for The Protection of Children from Sexual Predators Act of 1998 (PROTECT Act), Pub.L. No. 105-314 § 203(a)(1), 112 Stat. 2974 (1998), evinces a congressional recognition of the seriousness of attempted sexual enticement of a minor.³ See H.R.Rep. No. 108-66, at 51 (2003) (Conf.Rep.), as reprinted in 2003 U.S.C.C.A.N. 683, 685. Congress also perceived a need to prevent judicial leniency, especially in cases where there is no actual child victim. Id. Because individuals who violate § 2422(b) always present a serious danger to children, it was entirely rational for Congress to conclude that violations of § 2422(b) are always serious enough to require a mandatory minimum sentence. In contrast, while the drug offenses enumerated in § 3553(f) are also serious, particular drug offenders present varying degrees of risk to the community depending upon the circumstances. Congress also believed that violators of § 2422(b) were being sentenced too leniently. In contrast, Congress apparently believed that certain non-violent drug offenders were being sentenced too harshly. See United States v. Williams, 299 F.3d 250, 259 (3rd Cir.2002) ("[P]roviding a safety valve for nonviolent, first-time drug offenders has a rational relationship to the legitimate government goal of providing exceptions to draconian mandatory minimum sentences for such individuals."). Thus, both the relative seriousness of the offense and the leniency problem...