US v. James Brown, IV

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00342-LO-1 Copies to all parties and the district court/agency. [1000043255]. [16-4400]

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UNPUBLISHED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

Before FLOYD and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

and

March 16, 2017

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

reversible

error

instruction

to

Eighth

when

the

Amendment

that
it

jury,

the

district

refused
and

committed

issue

an

entrapment

refused

to

to

when

proportionality

court

it

review

and

conduct

denied

an

Brown’s

motion to strike the mandatory minimum sentence applicable to
his crime.
We
issue

Finding no error, we affirm.

discern
an

affirmative

no

error

entrapment
defense

in

jury

the

district

court’s

instruction.

consisting

of

refusal

Entrapment

“two

related

is

to
an

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

(internal quotation marks omitted).
refuse

to

issue

an

entrapment

192,

198

(4th

Cir.

2004)

Thus, a district court may

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.”
omitted).

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Id. at 199 (internal quotation marks

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

pressured to meet him to have sex.

pursued

and

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

underlying his offense of conviction.

the

criminal

conduct

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

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marks

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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

inference of gross disproportionality.”).

required

threshold

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.”
at 578.
novo.

Id.

We review Eighth Amendment challenges to a sentence de

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.
957,

998

(1991)

(“[T]he

See Harmelin v. Michigan, 501 U.S.
fixing
4

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,

exploitation

clearly

“constitutes

surpassing importance.”
defendant’s

protecting

“heinous

children

a

from

government

sexual

objective

of

Cobler, 748 F.3d at 580 (noting that

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).
1355-57
Amendment

(9th

See, e.g., United States v. Shill, 740 F.3d 1347,
Cir.

challenge

2014)
to

(rejecting

the

mandatory

a

categorical

minimum

Eighth

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, 76265 (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
judgment.
legal
before

on

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the

foregoing,

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we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

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