US v. James Brown, IV


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-4400 Doc: 39 Filed: 03/16/2017 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4400 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES AUBREY BROWN, IV, Defendant -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 HARRIS, Decided: Circuit Judges, and March 16, 2017 DAVIS, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4400 Doc: 39 Filed: 03/16/2017 Pg: 2 of 6 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 2 Appeal: 16-4400 Doc: 39 Filed: 03/16/2017 and willing to commit it.” omitted). Pg: 3 of 6 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 3 Appeal: 16-4400 Doc: 39 quotation Filed: 03/16/2017 marks Pg: 4 of 6 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 Appeal: 16-4400 Doc: 39 Filed: 03/16/2017 Pg: 5 of 6 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. 5 Appeal: 16-4400 Doc: 39 Based judgment. legal before on Filed: 03/16/2017 the foregoing, Pg: 6 of 6 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 6

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