United States v. James Brown, IV , 681 F. App'x 268 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4400
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES AUBREY BROWN, IV,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:15-cr-00342-LO-1)
Submitted: March 14, 2017 Decided: March 16, 2017
Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey D. Zimmerman, JEFFREY ZIMMERMAN, PLLC, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Whitney Dougherty Russell, Assistant United States
Attorney, Kevin M. Schneider, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Aubrey Brown, IV, appeals his jury conviction and the
120-month sentence imposed for enticing a minor to engage in
criminal sexual activity, in violation of 18 U.S.C. § 2422(b)
(2012). Brown asserts that the district court committed
reversible error when it refused to issue an entrapment
instruction to the jury, and when it refused to conduct an
Eighth Amendment proportionality review and denied Brown’s
motion to strike the mandatory minimum sentence applicable to
his crime. Finding no error, we affirm.
We discern no error in the district court’s refusal to
issue an entrapment jury instruction. Entrapment is an
affirmative defense consisting of “two related elements:
government inducement of the crime, and a lack of predisposition
on the part of the defendant to engage in the criminal conduct.”
Mathews v. United States, 485 U.S. 58, 63 (1988). To obtain an
entrapment instruction, the initial burden is on the defendant
to produce “more than a scintilla of evidence of entrapment.”
United States v. Hsu, 364 F.3d 192, 198 (4th Cir. 2004)
(internal quotation marks omitted). Thus, a district court may
refuse to issue an entrapment instruction “when there is no
evidence in the record that, if believed by the jury, would show
that the government’s conduct created a substantial risk that
the offense would be committed by a person other than one ready
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and willing to commit it.” Id. at 199 (internal quotation marks
omitted). We review de novo a district court’s refusal to issue
an entrapment instruction. See United States v. Hackley, 662
F.3d 671, 681 (4th Cir. 2011).
Evidence of email exchanges between Brown and an undercover
agent reveal that Brown believed the agent to be a 13-year old
girl, whom Brown repeatedly and aggressively pursued and
pressured to meet him to have sex. Thus, there was not more
than a “scintilla of evidence” that the Government induced Brown
to commit the crime of which he was convicted, or that Brown
lacked a predisposition to engage in the criminal conduct
underlying his offense of conviction. See id. at 681 (“This
circuit has repeatedly held that solicitation of the crime alone
is not sufficient to grant the instruction, as that is not the
kind of conduct that would persuade an otherwise innocent person
to commit a crime.” (internal quotation marks omitted)).
We also reject Brown’s assertion that the district court
erred when it denied his motion to conduct an Eighth Amendment
proportionality review and strike the mandatory minimum sentence
applicable to his crime. “[T]he Eighth Amendment contains a
narrow proportionality principle, that does not require strict
proportionality between crime and sentence[,] but rather forbids
only extreme sentences that are grossly disproportionate to the
crime.” Graham v. Florida, 560 U.S. 48, 59-60 (2010) (internal
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quotation marks omitted). When reviewing an as-applied
challenge, we must first determine if the defendant showed there
was an inference that his sentence was grossly disproportionate
to his crime. United States v. Cobler, 748 F.3d 570, 579-80
(4th Cir. 2014) (“Given the shocking and vile conduct underlying
these criminal convictions [for child pornography], we hold that
Cobler has failed to substantiate the required threshold
inference of gross disproportionality.”). In the “rare case”
that the defendant shows this inference, we must then compare
the defendant’s sentence “(1) to sentences for other offenses in
the same jurisdiction; and (2) to sentences for similar offenses
in other jurisdictions.” Id. at 575. If the court does not
find a threshold inference, “extended comparative analysis of a
sentence is unnecessary to justify its constitutionality.” Id.
at 578. We review Eighth Amendment challenges to a sentence de
novo. Id. at 574.
Contrary to Brown’s suggestion, neither his lack of prior
criminal history, nor the fact that he never actually placed any
minors at risk of harm, renders his 120-month sentence “grossly
disproportionate” to his crime. First, Congress chose to enact
the mandatory minimum sentence for a violation of § 2422, and
there is no reason to usurp the role of the legislature and
impose a lower sentence. See Harmelin v. Michigan, 501 U.S.
957, 998 (1991) (“[T]he fixing of prison terms for specific
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crimes involves a substantive penological judgment that, as a
general matter, is properly within the province of legislatures,
not courts.” (internal quotation marks omitted)) (Kennedy, J.,
concurring). Moreover, protecting children from sexual
exploitation clearly “constitutes a government objective of
surpassing importance.” Cobler, 748 F.3d at 580 (noting that
defendant’s “heinous acts exploited, injured, and inflicted
great harm on a most vulnerable victim” (internal quotations
omitted)). Notably, several courts have rejected Eighth
Amendment challenges to the mandatory minimum sentence required
by § 2422(b). See, e.g., United States v. Shill, 740 F.3d 1347,
1355-57 (9th Cir. 2014) (rejecting a categorical Eighth
Amendment challenge to the mandatory minimum sentence under
§ 2422(b)); United States v. Hughes, 632 F.3d 956, 959 (6th Cir.
2011) (despite lacking a serious criminal history, “Hughes’s
ten-year sentence for attempting to entice a minor into sexual
relations raises no inference that it is ‘grossly
disproportionate’”); United States v. Nagel, 559 F.3d 756, 762-
65 (7th Cir. 2009) (rejecting facial and as-applied challenges
to mandatory minimum sentence under § 2422(b)). We thus discern
no error in the district court’s decision to deny Brown’s motion
to strike the mandatory minimum sentence applicable to his crime
and for proportionality review.
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Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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