United States v. Jamerson
| Decision Date | 16 September 2013 |
| Docket Number | No. 12-3803,12-3803 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA JAMERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0831n.06
On Appeal from the United States District Court for the Northern District of Ohio
BEFORE: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*
HOOD, District Judge. Appellant Joshua Jamerson ("Jamerson") appeals the Judgment and sentence imposed by the district court after Jamerson's plea of guilty, without a plea agreement, to receipt of child pornography under 18 U.S.C. § 2252(a)(2) and (b)(1). For the reasons set forth below, the district court's judgment is AFFIRMED.
On June 9, 2011, Jamerson was charged in a one-count information with knowingly receiving visual depictions of minors engaged in sexually explicit conduct via computer between March 26, 2010, and July 22, 2010, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Jamerson entered a plea of guilty on September 14, 2011. Prior to sentencing, Jamerson underwent a psychiatric evaluation.He was diagnosed with several mental health issues, including schizophrenia, depression, paranoia and psychopathic deviation.
Jamerson was sentenced on June 18, 2012 to a 60-month term of imprisonment, followed by 10 years of supervised release and the fine waived. The district judge determined the advisory guideline imprisonment range of 108 to 135 months, with at least 5 years of supervised release, and a fine range of $15,000 to $150,000, based on a total offense level of 30 and criminal history category II. The district judge explained that he departed downward to the statutory minimum of 60 months because he had no alternative under the statute. The district judge noted that the sentences were "driven largely by Congressional and/or political pressure," and were "not commensurate with the individual circumstances of the case."
Jamerson timely filed a notice of appeal from the judgment and sentence imposed by the district court raising three arguments. Jurisdiction is proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Jamerson essentially raises a fairness argument as to the 60-month mandatory minimum sentence he received from the district court. He first argues that the statute is vague because the receipt of child pornography statute carries a 60-month mandatory minimum, whereas the possession of child pornography statute does not. Jamerson next argues that the mandatory minimum sentence of 60 months is cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Jamerson's final argument is that the mandatory sentencing requirement violates the separation of powers between Congress, the Executive Branch and the Judiciary. The governmentresponds that the district court did not abuse its discretion when it varied downward to the 60-month statutory minimum sentence.
Jamerson did not raise his void-for-vagueness constitutional claim before the district court, other than noting at the sentencing hearing that "there would be a plea on behalf of the defendant to at least have the Sixth Circuit address the difference between the charges which create a mandatory minimum versus those that do not[,] . . . specifically as to the receipt of child pornography versus the possession of child pornography." The district judge did not address the void-for-vagueness argument at the sentencing hearing.
We generally do not review arguments that are raised for the first time on appeal. United States v. Henry, 429 F.3d 603, 618 (6th Cir. 2005). Rule 12(b)(3) of the Rules of Criminal Procedure lists motions which must be made before trial including, a motion alleging that the information fails to state an offense. See Fed. R. Crim. P. 12(b)(3)(B). In a related context, we have held that an appellate court is "categorically without jurisdiction" to hear arguments regarding such pre-trial motions that are raised for the first time on appeal. United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994). But where, as here, a claim of constitutional deficiency is made, we may review for plain error, correcting the district court only if we find: "(1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Bazazpour, 690 F.3d 796, 801 (6th Cir. 2012) (quoting Johnson v. United States, 520 U.S. 461, 466 67 (1997)) (alteration and internal quotationmarks omitted). If these three conditions are met, we may then exercise discretion to notice a forfeited error, but only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting Johnson, 520 U.S. at 467) (alteration omitted).
Generally, a duly enacted statute has the presumption of constitutionality. U.S. ex rel. Atty. Gen. v. Del. & Hudson Co., 213 U.S. 366, 407-08 (1909). The Due Process Clauses of the Fifth Amendment provides the constitutional foundation for the void-for-vagueness doctrine with respect to statutes enacted by Congress. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). A criminal ordinance or statute violates the Constitution if: (1) it fails to define the offense with sufficient definiteness that ordinary people can understand prohibited conduct; and (2) it fails to establish standards to permit the police to enforce the law in a non-arbitrary, non-discriminatory manner. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). A statute or regulation may be vague if it fails to give fair warning as to what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A statute is vague, not because "it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).
We have held that conviction for both receipt and possession of the same child pornography obtained via the internet is a double jeopardy violation. United States v. Ehle, 640 F.3d 689, 698 (6th Cir. 2011). "[W]hile possession of child pornography is generally a lesser-included offense of receipt of child pornography, conviction under both statutes is permissible if separate conduct is found to underlie the two offenses." United States v. Dudeck, 657 F.3d 424, 430 (6th Cir. 2011).Jamerson was not charged with possession of child pornography, but was charged with and pled guilty to a single count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), which carries a mandatory minimum sentence of five years. Jamerson does not argue in his opening brief that any of the phrases or words found in § 2252(a)(2) are vague. Rather, Jamerson questions "how and by what standard" the receipt and possession statute merits an extensive term of incarceration while the possession statute does not mandate any prison time. Jamerson argues that the two statutes are essentially the exact same offense and that the terms "receipt" and "possession" are synonymous and interchangeable.
We have addressed the legislative history of the two statutes, noting that the 1990 amendments to the child pornography statutes, which already included "knowingly receiving" child pornography, added the crime of "knowingly possessing" child pornography as a gap-filling provision. Ehle, 640 F.3d at 698. The added crime of "knowingly possessing" targeted those individuals who "possessed" child pornography, relieving the government from having to prove receipt of child pornography. In Dudeck, 657 F.3d at 430, we held that "while possession of child pornography is generally a lesser-included offense of receipt of child pornography, conviction under both statutes is permissible if separate conduct is found to underlie the two offenses." In light of the legislative history of the two statutes, the two terms, "receipt" and "possession," are neither synonymous nor interchangeable. We found that the two offenses can stand if separate facts support each of them. Congress intended to clarify the difference between receipt and possession of childpornography, and its decision to add the possession statute as a gap-filler shows that the two terms are neither synonymous nor interchangeable.
Vagueness challenges to an offense will not be entertained where a defendant's conduct clearly falls within the ambit of the statute. See United States v. Kemell, 667 F.3d 746, 750 (6th Cir. 2012). In this case, Jamerson, by entering a plea of guilty to the receipt charge, admitted to receiving child pornography. Jamerson does not seek to set aside his guilty plea before the district court, nor does he seek to change his plea on appeal.
Jamerson does not challenge the government's decision to charge him with the receipt offense, as opposed to the possession offense. It is well established that prosecutors have broad discretion in charging decisions. See Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000). Even when two statutes with "identical elements" prohibit the same criminal conduct but provide different penalties, the government may prosecute under either statute "so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 124 25 (1979). A criminal defendant has no constitutional right to choose which penalty he will receive. Id. at 125. Because possession is a lesser-included offense of the receipt charge, the penalty for possession is less than the receipt of child pornography offense and the government has the broad discretion to charge Jamerson with the offense carrying the higher penalty.
In his reply brief, Jamerson argues that based on the record, it is clear that he is not a person of ordinary intelligence sufficient to receive fair notice of what constitutes prohibited criminal conduct under the statute. However, fair notice of what is prohibited...
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