United States v. Thomas Alan Henry , 223 F. App'x 523 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2470
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Thomas Alan Henry, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 12, 2007
Filed: May 17, 2007
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Before MELLOY, BOWMAN and GRUENDER, Circuit Judges.
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PER CURIAM.
Thomas Alan Henry entered a conditional guilty plea to the charge of
knowingly traveling in interstate commerce with the intent to engage in illicit sexual
conduct with a person under the age of eighteen in violation of 18 U.S.C. § 2423(b).
The district court1 sentenced Henry to 57 months’ imprisonment. Henry appeals his
sentence. We affirm.
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
In February and March of 2005, Henry corresponded over the internet with an
individual he believed was a 13-year-old girl named Cindy. The individual was
actually an adult female in Eureka Springs, Arkansas, who assisted law enforcement
agencies in finding internet predators. During their discussions on the internet, Henry
told Cindy that he wanted to have sexual relations with her. A second adult female
also assisted in the operation by conversing with Henry on the phone as Cindy
because her voice sounded like a child’s voice. As a result of the internet and phone
conversations, Henry drove from Illinois to Arkansas to meet Cindy at a motel room
on March 19, 2005. Police officers knew about this arrangement and arrested Henry
before he reached the motel room. Henry admitted that he was planning to have sex
with Cindy and that he knew what he was planning to do was wrong.
Henry was indicted by a federal grand jury and charged with violating 18
U.S.C. § 2423(b). The district court denied Henry’s motion to dismiss the indictment
on the basis of legal impossibility, and Henry entered a conditional guilty plea so that
he could maintain the right to appeal the district court’s denial of his motion.
However, on appeal Henry only challenges his 57-month sentence.
At sentencing, the district court calculated an advisory sentencing guidelines
range of 57 to 71 months based on a total offense level of 25 and a criminal history
category of I. Henry did not challenge the determination of the advisory guidelines
range but argued that the district court should consider the state sentences imposed for
similar offenses despite the contradictory holding of this court in United States v.
Jeremiah, 446 F.3d 805, 808 (8th Cir. 2006) (ruling that district courts may not
consider potential sentencing disparities between federal and state sentences when
sentencing a defendant). He also argued that such disparity violates the Eighth
Amendment. The district court adhered to this court’s holding in Jeremiah, rejected
the Eighth Amendment argument, and sentenced Henry to 57 months’ imprisonment.
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On appeal, Henry first argues that his sentence was unreasonable because he
claims that a state sentence for a similar offense in Arkansas would be 90 days or less
in jail, much lower than his 57-month federal sentence. Henry bases his
unreasonableness argument on the contention that the district court should consider
the disparity between his federal sentence and a state sentence for a similar crime as
part of its consideration of “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.” 18
U.S.C. § 3553(a)(6). However, as Henry recognizes, as a panel we are bound by our
holding in Jeremiah that a district court is “neither required nor permitted under
§ 3553(a)(6) to consider a potential federal/state sentencing disparity in imposing [a]
sentence.” Jeremiah, 446 F.3d at 808.
Henry also argues that his 57-month federal sentence constitutes cruel and
unusual punishment in violation of the Eighth Amendment because it is so
disproportionate to what he claims would have been a sentence of 90 days or less if
he had been prosecuted by the State of Arkansas. However, “[t]he Eighth Amendment
forbids only extreme sentences that are grossly disproportionate to the crime.” United
States v. Atteberry, 447 F.3d 562, 565 (8th Cir. 2006) (quotation omitted). In the
context of non-capital cases, Eighth Amendment challenges based upon
disproportionality are rarely successful. Harmelin v. Michigan, 501 U.S. 957, 1001
(1991) (Kennedy, J., concurring in part and concurring in judgment). Further, the type
of inter-jurisdictional comparison Henry advocates is only appropriate if he can make
a threshold showing of a gross imbalance between his crime and his sentence. Ewing
v. California, 538 U.S. 11, 23 (2003). Henry can make no such showing. Henry’s
sentence is at the low end of the advisory guidelines range and is significantly less
than the statutory maximum of 30 years. We do not find Henry’s 57-month sentence
to be grossly disproportional to his crime. Thus, we reject his argument that it violates
the Eighth Amendment.
Accordingly, Henry’s sentence is affirmed.
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