Monday, January 24, 2011

Sixth Circuit rejects constitutional challenges to ten-year mandatory minimum for enticing a minor

In United States v. Hughes, Case No. 09-5787 (6th Cir. Jan. 24, 2011), the Sixth Circuit rejected a defendant's challenges to his ten-year mandatory minimum sentence pursuant to 18 U.S.C. § 2422(b) for attempting to entice a minor to engage in a sexual act. The defendant based his challenges on three constitutional provisions: the Eight Amendment's guarantee against cruel and unusual punishment, the Fifth Amendment's guarantee of equal protection of the laws, and the Fifth Amendment's guarantee of due process of law.

As to the Eighth Amendment, the defendant argued that his sentence was "grossly disproportionate to his offense, thereby violating the Eighth Amendment's protection against cruel and unusual punishment." The court noted that the defendant had "a tremendously difficult burden to meet," as "[i]n the last century, the Supreme Court has struck down only a handful of non-capital sentences under the Eighth Amendment, and those cases have been egregious in the extreme." Here, the mandatory minimum sentence gave rise to "no inference of gross disproportionality," and the court therefore "join[ed] the other circuits to decide the question" by holding that the ten-year sentence did not offend the Eighth Amendment.

As to the Equal Protection Clause, the defendant argued that the Government lacks any rational basis to distinguish between his own conduct and the similar conduct prohibited by 18 U.S.C. § 2423(b), which addresses interstate travel and contains no mandatory minimum. The court first noted that "[a]s a technical matter," Sections 2422(b) and 2423(b) are "separate crimes encompassing different elements." Although both crimes address sexual contact with minors, Section 2423(b) "has no requirement that there be an element of enticement or coercion," whereas Section 2422(b) "requires that a defendant 'persuades, induces, entices, or coerces' a minor to perform illicit sexual activity, or attempts to do so." Thus, the court found that "Congress could reasonably have decided that attempting to induce, or otherwise compel a minor to engage in sexual activity was a more serious crime than merely crossing state lines with the intent to engage in illicit sexual conduct with a minor. . . . This distinction is a rational basis on which Congress could have decided to punish the crimes differently."

Lastly, as to the Due Process Clause, the defendant argued that he could have been prosecuted under a separate statute without a mandatory minimum and that his ten-year sentence "shocks the conscience." The court found that "[a]bsent some more pertinent allegation such as selective enforcement," it would not question the Government's exercise of its "broad discretion" in deciding which charges to pursue. The court further noted that whether the sentence "shocks the conscience" "is more properly presented as an Eighth Amendment claim, which we have already rejected." And to the extent that the defendant could argue that the Government has no rational basis for depriving his fundamental rights, the argument would similarly fail because he "has no fundamental right at stake."

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