United States v. Dylan Marshall

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0331p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 12-3805

v.

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Defendant-Appellant. -

DYLAN MARSHALL,

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Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:11-cr-00557-1—Jack Zouhary, District Judge.

Argued: June 13, 2013

Decided and Filed: November 21, 2013

Before: McKEAGUE and DONALD, Circuit Judges; Lawson, District Judge.*

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COUNSEL

ARGUED: Charles L. Gerstein, UNIVERSITY OF MICHIGAN LAW SCHOOL

FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.

Alissa M. Sterling, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for

Appellee. ON BRIEF: Charles L. Gerstein, Rachel Rose Goldberg, UNIVERSITY OF

MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann

Arbor, Michigan, Melissa M. Salinas, Dennis G. Terez, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, for Appellant. Ava R. Dustin, UNITED STATES

ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee.

McKEAGUE, J., delivered the opinion of the court in which DONALD, J.,

joined, and LAWSON, D. J., joined in the result. LAWSON, D. J. (pp. 15–25),

delivered a separate opinion concurring in the judgment.

*

The Honorable David M. Lawson, United States District Judge for the Eastern District of

Michigan, sitting by designation.

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No. 12-3805 United States v. Marshall Page 2

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OPINION

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McKEAGUE, Circuit Judge. Dylan Marshall pled guilty to receiving child

pornography over a period of 5 years, from the time he was 15 until he was 20. The

district court varied downward from the guideline range and sentenced him to 5 years

in prison—the mandatory minimum sentence for the offense—expressing its concerns

with the perceived harshness of that sentence as it did so. Marshall has a rare

physiological condition called Human Growth Hormone Deficiency, which he believes

entitles him to the Eighth Amendment protections accorded to juveniles. But despite his

condition, Marshall was an adult at the time of the offense. We therefore affirm his

sentence.

I. BACKGROUND

The Crime

In the summer of 2010, an FBI agent discovered that an individual operating

under the name “Gotanks721” was using a peer-to-peer file sharing program to share

files containing child pornography. The agent traced the IP address of the individual’s

computer to a residence in Wauseon, Ohio.

FBI agents obtained a warrant and searched the residence, seizing two computers

and other miscellaneous electronic media. They also interviewed Marshall, age 20 at the

time, who lived in the house with his parents. Marshall admitting to using a file sharing

program to share and download child pornography. He told the agents that he possessed

pornographic images and videos of children ranging in age from four to twelve.

The FBI’s analysis of Marshall’s computer and other media revealed 261 images

and 46 videos containing child pornography. The date stamps on the files ranged from

May 2005 to September 2010. The analysis also revealed that beginning in 2009,

Marshall had participated in online chat sessions discussing child pornography.

No. 12-3805 United States v. Marshall Page 3

In December 2011, the government charged Marshall with one count of receiving

child pornography in violation of 18 U.S.C. § 2252(a) and (b). Marshall pled guilty.

The Defendant

Aside from his involvement with child pornography, it appears that Marshall was

headed toward becoming a productive member of society. He graduated from high

school. He lived with his parents. He attended a community college part-time for four

semesters, pursuing a career as a lab technician and paying his own tuition. He worked

as a machine operator for a commercial bakery. He owned a car and had a credit card.

During an interview with his probation officer, Marshall said that he first started

using file sharing programs to acquire music. He soon discovered the availability of

pornography and viewed it almost every day. In his words, he used the file-sharing

programs to look for “naked kids of my age.” PSR ¶ 29. According to his probation

officer, “[h]e said that he felt like he was viewing images of his peers. He indicated he

has often felt like a 15 or 16-year-old individual because of his small frame and stature.”

PSR ¶ 30.

Indeed, Marshall’s size and self-perceived age undergird most of the arguments

he has raised on this appeal. In 2005, when Marshall was 15, he was diagnosed with

Human Growth Hormone Deficiency. According to the Child Growth Foundation:

Growth hormone deficiency or insufficiency occurs when the

pituitary gland, a small pea sized gland at the base of the brain, fails to

produce adequate levels of growth hormone. Part of the brain called the

hypothalamus controls the levels of hormones in the blood by triggering

the pituitary gland into producing the required hormones. This low level

of growth hormone may be due to problems with the hypothalamus or

with the link between the hypothalamus and the pituitary gland or with

the pituitary gland itself . . . . The level of growth hormone insufficiency

may vary from mild to severe but as growth hormone is now available in

large quantities, all children whose growth hormone levels are inadequate

should be able to receive appropriate replacement treatment.

Children with growth hormone deficiency are very short but with

normal body proportions, facial appearance and intelligence. Prior to

treatment the child may also be “chubby” as growth hormone helps to

No. 12-3805 United States v. Marshall Page 4

control the fat under the skin. These children may look young for their

age as physical development and bone age is delayed and consequently

the skull will be immature producing the facial proportions of a younger

child.

Child Growth Foundation, Growth Hormone Deficiency, Growth Hormone Deficiency:

A Guide for Parents and Patients, 4 (Jan. 2003), available at

http://www.childgrowthfoundation.org/CMS/FILES/02_Growth_Hormone_Deficienc

y.pdf. In addition to stunted growth, growth hormone deficiency can result

in delayed pubertal development. Child Growth Foundation, Puberty and the

Growth Hormone Deficient Child, Growth Hormone Deficiency: A Guide for

Parents and Patients, 4 (June 2010), available at

http://www.childgrowthfoundation.org/CMS/FILES/03_GrowthHormoneDeficiency.pdf.

When he was diagnosed at age 15, Marshall was extremely small for his age and

had not yet entered puberty. He was treated with hormone injections for about five

years. When his Presentence Investigation Report was prepared in 2012, he was 5' 5"

and weighed 117 pounds.

Before his sentencing hearing, Marshall was evaluated on two separate occasions

by a clinical psychologist named Gregory Forgac. Marshall told Dr. Forgac that he

started viewing child pornography when he was 15. He said that he began by looking

for people his own age. He did not know it was wrong until the FBI appeared at his

parents’ house.

Dr. Forgac noted that Marshall appeared younger than his chronological age.

He administered a test called the Ammons Quick Test, which indicated that Marshall had

an I.Q. of 87 and a mental age of 15 ½. Dr. Forgac found Marshall’s diagnosis of

Human Growth Hormone Deficiency to be noteworthy. He stated in his report that in

addition to delayed physical growth, “[i]t is quite possible that self-perception and self-

concept would also be significantly delayed.” R. 12-1, Report, PageID # 44. He found

that Marshall “appear[ed] to be quite immature for his chronological age due to his

condition, . . . which inhibited his growth and maturation physically, emotionally and

socially.” Id. “It is quite likely that in all ways other than chronological age, this

No. 12-3805 United States v. Marshall Page 5

individual was still a juvenile at the time of his arrest.” Id. Dr. Forgac believed that

“Marshall’s behavior was a product of adolescent curiosity, moral immaturity and easy

availability of pornography.” Id. at PageID # 44-45. He recommended “education,

monitoring and supervision and the opportunity to mature to age appropriate levels both

physically and psychologically.” Id. at PageID # 45.

The Sentencing Hearing

Marshall submitted Dr. Forgac’s report to the district court along with his

sentencing memorandum. His sentencing hearing was scheduled for June 4, 2012, but

after reviewing the case and meeting with counsel, the district court postponed the

hearing so that Dr. Forgac could appear and testify.

The hearing recommenced on June 25, 2012. Dr. Forgac appeared and testified.

He explained that the Ammons Quick Test, which he had administered to Marshall, is

a “brief screening device” that takes 10–15 minutes to administer and produces both an

I.Q. score and an estimated mental age. R. 36, Hrg. Tr., PageID # 192, 206. It involves

asking the subject to match pictures with words that “[s]tart out pretty concrete or

simple” and “become increasingly more abstract.” Id. at PageID # 205. Dr. Forgac

stated that Marshall’s I.Q. score of 87 was in “the low average range of intelligence” and

his mental age of 15 ½ was consistent with his academic performance. Id. at PageID #

194. However, he noted that Marshall was “not developmentally delayed intellectually.”

Id. at PageID # 199.

Dr. Forgac explained that the adolescence period does not end at 18 but actually

extends into an individual’s mid-20s. “[D]evelopmental maturation goes to the mid,

sometimes even late 20s so that people will receive developing adult identity from early

20s to late 20s.” Id. at PageID # 198. Dr. Forgac thought “the only way that [Marshall

was] not still a juvenile [was] his chronological age” and that “he [was] functioning at

a juvenile level.” Id. at PageID # 203. He believed that Marshall “viewed himself as a

much younger individual and was functioning as a much younger individual.” Id.

No. 12-3805 United States v. Marshall Page 6

The district court asked Dr. Forgac to explain exactly what role Marshall’s

growth hormone deficiency played in the crime he committed. Dr. Forgac explained that

Human Growth Hormone Deficiency “basically prevents maturation.” Id. at PageID #

211. He identified several “different aspects of maturation”: chronological age, physical

age, social age, emotional age, and intellectual age. Id. at PageID # 212.

Dr. Forgac further explained that adolescents search for a “group identity.” Id.

By interacting with their peers, they experience “consensual validation,” “start feeling

an affiliation with a group,” and “are able to mature.” Id. This group interaction “is the

road to an adult individual identity.” Id.

Unlike normal adolescents, Marshall was isolated by his peers due to his short

stature and immature appearance. He turned to pornography and looked for children

around his own age. He found group interactions and a shared experience through his

online activities, including his chatting activities.

Dr. Forgac had performed 5,000 psychological evaluations, but before examining

Marshall he had never encountered an individual with Human Growth Hormone

Deficiency. He “didn’t do an extensive literature search,” but he talked to a

neuropsychologist friend who “did a little bit of a search.” Id. at PageID # 214. Dr.

Forgac believed that Marshall experienced “a unique developmental delay” and thought

it “significant that he was essentially 16, maybe 15-and-a-half years old in every way

except chronological age at the time” the criminal activity occurred. Id. To a reasonable

degree of psychological certainty, Dr. Forgac believed Marshall was “a kid as opposed

to an adult.” Id. at PageID # 218.

The Sentence

The district court accepted Dr. Forgac’s testimony. It found that Marshall was

not an adult but was “a juvenile in a number of ways, chronological age aside,” when he

engaged in the criminal activity. Id. at PageID # 227. Marshall’s guideline range was

151 to 188 months, but the district court varied downward to the statutory mandatory

minimum sentence of 5 years. See 18 U.S.C. § 2252(b)(1). It found that even the

No. 12-3805 United States v. Marshall Page 7

mandatory minimum sentence was greater than necessary, but realized that it could not

impose a sentence lower than that amount. Instead, the district court expressed hope that

this Court would somehow give it some relief from the constrictions of the mandatory

minimum.

In a supplemental memorandum opinion, the district court explained in more

detail its concerns with the 5-year mandatory minimum sentence. See United States v.

Marshall, 870 F. Supp. 2d 489 (N.D. Ohio 2012). It found that the “[t]estimony and

other evidence at [Marshall’s] sentencing hearing support[ed] the conclusion that at the

time of the crime [Marshall] was, and should be characterized for sentencing as, a

developmentally immature teenager lacking the ability to appreciate the illegality of

child pornography and to control his viewing of easily accessible internet content.” Id.

at 498.

The district court believed that the mandatory minimum sentence for receipt of

child pornography was in “direct conflict” with its responsibility under 18 U.S.C.

§ 3553(a) to “fashion an appropriate sentence.” Id. at 496. It further opined that in

Marshall’s case, the mandatory minimum sentence might be unconstitutional under the

Eighth Amendment. Id. at 499. But it was unwilling to sentence below the mandatory

minimum without some support in the caselaw. Id.

Marshall appealed, challenging his sentence on several grounds.

II. ANALYSIS

A. Standard of Review

“When reviewing sentencing decisions, we review the district court’s factual

findings for clear error, while reviewing the district court’s conclusions of law de novo.”

United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).

No. 12-3805 United States v. Marshall Page 8

B. Eighth Amendment Challenge

Marshall urges us to hold that his mandatory minimum sentence is

unconstitutional based on Miller v. Alabama, in which the Supreme Court held that

“mandatory life without parole for those under the age of 18 at the time of their crimes

violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”

132 S. Ct. 2455, 2460 (2012). The Court declined to decide whether the Eighth

Amendment bars a discretionary sentence of life without parole for juvenile homicide

offenders,1 but noted that “appropriate occasions for sentencing juveniles to this harshest

possible penalty will be uncommon.” Id. at 2469. Relying on Miller, Marshall contends

that his mandatory sentence is unconstitutional because it did not allow the district judge

to sentence him based on his individual characteristics.

Marshall’s Eighth Amendment argument is premised on his assertion that he was

a juvenile when he committed the crime. But this assertion is simply wrong. Marshall

received child pornography between the ages of 18 and 20. He was therefore an adult

when he committed the crime.

Marshall claims that based on his growth hormone deficiency, the district court

explicitly found him to be a mental and physical juvenile and warns that such factual

findings cannot be rejected absent clear error. We do not reject the district court’s

findings.2 But neither do we view them as relevant to the issue of whether Marshall

qualifies as a juvenile for purposes of the Eighth Amendment.3

1

The Court had held two years earlier that a sentence of life without parole for juvenile non-

homicide offenders was unconstitutional under the Eighth Amendment. See Graham v. Florida, 130 S.

Ct. 2011, 2030 (2010).

2

We note, however, that the district court does not appear to have explicitly found Marshall to

have been physically immature at the time of the offense. Nor, on our review, would the record support

such a finding.

3

Presumably a sentencing judge can consider a defendant’s maturity when evaluating his or her

“history and characteristics” under 18 U.S.C. § 3553(a), which the district court did when imposing a

below-guideline sentence in this case. In that context, a defendant’s mental age might have some legal

relevance. But at issue in this case is the imposition of a mandatory minimum sentence, under which

Marshall’s individual characteristics are not pertinent.

No. 12-3805 United States v. Marshall Page 9

Under the Supreme Court’s jurisprudence concerning juveniles and the Eighth

Amendment, the only type of “age” that matters is chronological age. The Supreme

Court’s decisions limiting the types of sentences that can be imposed upon juveniles all

presuppose that a juvenile is an individual with a chronological age under 18. See

Miller, 132 S. Ct. at 2460 (“We therefore hold that mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments.’”); Graham v. Florida, 130 S. Ct. 2011,

2030 (2010) (“Because ‘the age of 18 is the point where society draws the line for many

purposes between childhood and adulthood,’ those who were below that age when the

offense was committed may not be sentenced to life without parole for a nonhomicide

crime.”); Roper v. Simmons, 543 U.S. 551, 568 (2005) (“A majority of States have

rejected the imposition of the death penalty on juvenile offenders under 18, and we now

hold this is required by the Eighth Amendment.”).

The Supreme Court treats juveniles differently because they “have diminished

culpability and greater prospects for reform.” Miller, 132 S. Ct. at 2464. They are often

immature and irresponsible, peculiarly susceptible to bad influences, and their character

is still malleable. Id. Marshall apparently thinks that he shares these traits and therefore

believes there is no reason not to treat him differently as well. But he has ignored the

crucial role that chronological age plays in our legal system and in the Supreme Court’s

jurisprudence. The reasons for according special protections to offenders under 18

cannot be used to extend the same protections to offenders over 18.

The Supreme Court has recognized that drawing lines based on chronological age

is a not-entirely-desirable but nonetheless necessary approach. In Roper v. Simmons, the

Court extended from 16 to 18 the age under which offenders are constitutionally

ineligible for the death penalty. Roper, 543 U.S. at 568. The Court explained its use of

chronological age to establish the divide as follows:

Drawing the line at 18 years of age is subject, of course, to the objections

always raised against categorical rules. The qualities that distinguish

juveniles from adults do not disappear when an individual turns 18. By

the same token, some under 18 have already attained a level of maturity

No. 12-3805 United States v. Marshall Page 10

some adults will never reach. For the reasons we have discussed,

however, a line must be drawn . . . . The age of 18 is the point where

society draws the line for many purposes between childhood and

adulthood. It is, we conclude, the age at which the line for death

eligibility ought to rest.

Id. at 574.

Using chronological age as the touchstone for determining whether an individual

is a juvenile or an adult is the standard approach in our legal system. “For purposes of

[the Juvenile Delinquency Act], a ‘juvenile’ is a person who has not attained his

eighteenth birthday . . . .” 18 U.S.C. § 5031. Chronological age sets the boundaries for

determining whether an individual is eligible to drive, vote, marry, buy and drink

alcohol, be drafted, watch certain movies, and hold certain political offices. None of

these age-based privileges and responsibilities ignore chronological age in favor of

mental age.

In almost every state, Marshall could vote, serve on a jury, or marry without his

parents’ consent when he committed the crime. See Roper, 543 U.S. at 569. His

immaturity did not render him ineligible for these benefits the law granted him by virtue

of his chronological age. Nor does his immaturity excuse him from the punishment the

law imposes upon him as a consequence of that age.

The legal system that would emerge from Marshall’s proposed approach that

defines a juvenile by factors other than chronological age would be essentially

unmanageable. Before a court could impose on a defendant over 18 those punishments

constitutionally barred from being imposed on juveniles, it would first have to wade

through tedious expert testimony to determine whether the defendant’s mental age was

commensurate with his chronological age. We refuse to impose such a difficult and

time-consuming requirement on the district courts.

Additionally, an approach that ignores chronological age in favor of other aspects

of maturity should cut both ways. Individuals under 18 with the mental maturity of

adults would have to be classified as adults for purposes of the Eighth Amendment. This

No. 12-3805 United States v. Marshall Page 11

approach is unthinkable; the Supreme Court would never accept such an end-run around

the constitutional protections for chronological juveniles.

Marshall contends that he should be treated differently from run-of-the-mill

immature offenders because, due to his growth hormone deficiency, his immaturity is

physiological and not merely psychological. The trouble with this argument is that the

record does not show a direct link between his physiological condition and his mental

immaturity. One of the sources Marshall cites for information on Human Growth

Hormone Deficiency notes that children with this disorder have normal intelligence.

See Child Growth Foundation, Endocrine Gland Disorders,

http://www.childgrowthfoundation.org/Default.aspx?page=ConditionsGHD (last visited

November 20, 2013).

Dr. Forgac’s finding that Marshall had a mental age of 15 ½ was based on the

brief screening test he administered, not on Marshall’s physiological disorder. Dr.

Forgac was by his own admission not an expert on Human Growth Hormone Deficiency.

When asked what role Marshall’s growth hormone deficiency played in the crime he

committed, Dr. Forgac drew only an indirect link by theorizing that Marshall’s small

stature caused other children to ostracize him, which in turn led him to seek “consensual

validation” through pornography and online chatting. Dr. Forgac explicitly stated that

Marshall was not developmentally delayed intellectually.4 Furthermore, Dr. Forgac’s

observation that Marshall functioned as a juvenile is clearly belied by the reality that

Marshall attended college, worked a full-time job, and owned a car and credit card.

From all objective indications, Marshall was functioning as a normal 20-year-old, not

as a 15 1/2-year-old.

4

Marshall’s brief quotes the abstract of an article that connects brain development to human

growth hormone. See Zvi Laron & Avinoam Galatzer, Growth Hormone, Somatomedin and Prolactin:

Relationship to Brain Function, 7 Brain & Dev. 559, 564 (1985). The article notes that children with

growth hormone deficiency have a lower I.Q., deficient visuomotor function, and deficient school

achievements and social adjustment. But the article does not indicate that growth-hormone-deficient

children have a lower mental age or perceive themselves to be younger than their chronological age.

Marshall’s argument is based on his mental and physical age, not on his low I.Q.

No. 12-3805 United States v. Marshall Page 12

And even if we agreed with Marshall’s assertion that his growth hormone

deficiency rendered him “literally unable to grow up,” we would still not be inclined to

classify him as a juvenile. Considerations of efficiency and certainty require a bright

line separating adults from juveniles. For purposes of the Eighth Amendment, an

individual’s eighteenth birthday marks that bright line. We decline to create exceptions,

even for offenders with rare physiological conditions.

In short, Marshall is at the very most an immature adult. An immature adult is

not a juvenile. Regardless of the source of the immaturity, an immature adult is still an

adult. Because Marshall is not a juvenile, he does not qualify for the Eighth Amendment

protections accorded to juveniles. We therefore need not determine whether a

mandatory 5-year sentence for a juvenile would be unconstitutional under the Supreme

Court’s reasoning in Miller v. Alabama.

C. Additional Challenges

Marshall challenges his sentence on three additional grounds. These arguments

lack merit and require only brief discussion.

First, Marshall challenges his sentence based on a perceived conflict between

two federal statutes. Congress instructs district courts to impose sentences “sufficient,

but not greater than necessary, to comply with” several enumerated purposes in the

statute. 18 U.S.C. § 3553(a). Marshall contends that this provision, commonly known

as the “parsimony provision,” conflicts with the 5-year mandatory minimum sentence

required for defendants guilty of knowingly receiving child pornography. Marshall

believes that in his situation a 5-year sentence is greater than necessary to accomplish

the penological goals of deterrence, retribution, incapacitation, and rehabilitation. He

argues that Congress could not have foreseen that the mandatory minimum would be

applied to an offender with his unique characteristics.

This Court has already rejected this very argument. “When it comes to rigid

minimum sentences, we acknowledge the tension with section 3553(a), but that very

general statute cannot be understood to authorize courts to sentence below minimums

No. 12-3805 United States v. Marshall Page 13

specifically prescribed by Congress.” United States v. Cecil, 615 F.3d 678, 695 (6th Cir.

2010) (quotation omitted). No matter how excessive a minimum sentence appears in a

particular case, the parsimony provision does not allow courts to avoid imposing it. The

whole point of mandatory minimums is to remove from judges the discretion to impose

low sentences on sympathetic defendants. Marshall’s argument that the mandatory

minimum should be disregarded based on his unique characteristics must necessarily fail.

Second, Marshall contends that 18 U.S.C. § 2252 impermissibly grants

sentencing authority to the prosecutor because there is no intelligible principle separating

receipt (which carries a 5-year mandatory minimum sentence) from possession (which

does not). But he has failed to recognize that possession of child pornography is a lesser

included offense of receipt of child pornography. See United States v. Ehle, 640 F.3d

689, 695 (6th Cir. 2011).5 Whether to prosecute and whether to charge the greater

offense or the lesser-included offense are decisions well within the prosecutor’s

discretion. See United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v.

Batchelder, 442 U.S. 114, 123–26 (1979).

Furthermore, even when two statutes prohibit the exact same conduct, the

prosecutor can choose which statute to charge under. Batchelder, 442 U.S. at 123–126.

So long as “the provisions at issue plainly demarcate the range of penalties that

prosecutors and judges may seek and impose,” “the power that Congress has delegated

to those officials is no broader than the authority they routinely exercise in enforcing the

criminal laws. Having informed the courts, prosecutors, and defendants of the

permissible punishment alternatives available under each [statutory provision], Congress

has fulfilled its duty.” Id. at 126. This principle applies even when one of the two

statutory provisions carries a mandatory minimum sentence and the other does not.

5

Ehle dealt with receipt and possession of child pornography under § 2252A, which can be

violated when the images involve real or virtual minors. In contrast, § 2252 can only be violated by

images depicting real minors. The Sixth Circuit has not yet held that possession is a lesser included

offense of receipt under § 2252. But the two statutes are “materially identical,” United States v. Dudeck,

657 F.3d 424, 429 (6th Cir. 2011), and there is no reason not to extend Ehle’s holding to § 2252.

No. 12-3805 United States v. Marshall Page 14

Third and finally, Marshall argues that his sentence is substantively unreasonable

because the district court thought it should have discretion to impose a sentence below

the mandatory minimum but did not do so. “[A] district court’s ardent desire to go lower

does not make a statutory mandatory minimum sentence unreasonable.” Cecil, 615 F.3d

at 695. “When a court and a mandatory minimum are in conflict, the minimum wins.”

Id. When it has been challenged as being too high, a mandatory minimum sentence is

by definition substantively reasonable.

III. CONCLUSION

We affirm Marshall’s 5-year sentence.

No. 12-3805 United States v. Marshall Page 15

____________________________________

CONCURRING IN THE JUDGMENT

____________________________________

LAWSON, District Judge. Concurring in the judgment. The court today finds

that Dylan Marshall’s sentence does not violate the Eighth Amendment because

chronologically he is an adult, and therefore he is not afforded the protection given

juveniles under the Supreme Court’s juvenile sentencing cases. The district court found

that Marshall was a juvenile in all material respects except for his chronological age —

a finding that the majority “do[es] not reject.” Because sentencing is an “individualized”

task, Gall v. United States, 552 U.S. 38, 50 (2007), and Marshall is not seeking a

categorical ban on mandatory minimum sentences for all juvenile offenders, I do not find

that his chronological age presents an obstacle to the relief he seeks. Nor do I share the

majority’s concern that a sentencing regime would be unmanageable if courts look

behind chronological age on a case-by-case basis to assess those factors that render

juveniles “constitutionally different from adults for purposes of sentencing.” Miller v.

Alabama, 132 S. Ct. 2455, 2464 (2012). Nonetheless, as inappropriate,

counterproductive, and unnecessary the five-year custody sentence imposed on Marshall

might be in this case, it is not “grossly disproportionate” to the offense and therefore

neither a cruel nor unusual form of punishment for juveniles in the American criminal

justice system. Therefore, I must reluctantly concur in the judgment of the court

affirming the sentence as acceptable under the Eighth Amendment.

I.

The Supreme Court has on several occasions explicated the reasons why

juveniles are different from adults when it comes to imposing criminal punishment.

First, their immaturity and “underdeveloped sense of responsibility” is said to lead to

“recklessness, impulsivity, and heedless risk-taking.” Miller, 132 S. Ct. at 2464 (quoting

Graham v. Florida, 560 U.S. 48, ---, 130 S. Ct. 2011, 2026 (2010), and Roper v.

Simmons, 543 U.S. 551, 569 (2005)). Second, children are thought to be more

vulnerable to negative peer pressure and other influences and “lack the ability to

No. 12-3805 United States v. Marshall Page 16

extricate themselves from horrific, crime-producing settings.” Ibid. Third, because a

child’s character is still developing, “his traits are ‘less fixed’ and his actions less likely

to be ‘evidence of irretrievabl[e] deprav[ity].’” Ibid. (quoting Roper, 543 U.S. at 570).

These features that distinguish juveniles from adults have prompted the Supreme

Court to impose limits under the authority of the Eighth Amendment upon specific kinds

of sentences and sentencing practices for juvenile offenders. For instance, the Court has

imposed an absolute bar to the imposition of the death penalty upon defendants under

age 18. Roper, 542 U.S. at 575. Similarly, the Court has held unconstitutional sentences

of life without parole for juvenile offenders who commit nonhomicide offenses.

Graham, 130 S. Ct. at 2034. And the mandatory imposition of a life-without-parole

sentence upon a juvenile for any crime, including homicide, contravenes the Eighth

Amendment. Miller, 132 S. Ct. at 2469.

The district court found that Marshall exhibited all the traits identified by the

Supreme Court in its juvenile sentencing cases. The uncontested evidence established

that Marshall suffered from human growth hormone deficiency that was not diagnosed

until 2005. That led to a lower-than-average intelligence quotient and “an estimated

mental age of 15.5 years.” United States v. Marshall, 870 F. Supp. 2d 489, 498 (N.D.

Ohio 2012). The district court concluded that “at the time of the crime [Marshall] was,

and should be characterized for sentencing as, a developmentally immature teenager

lacking the ability to appreciate the illegality of child pornography and to control his

viewing of easily accessible internet content.” Ibid.

The majority does not dispute any of those points. It simply disregards them as

irrelevant because of Marshall’s chronological age. But that is incorrect. The Court in

Miller recognized the obvious fact that these features of adolescence do not instantly

disappear upon the arrival of one’s eighteenth birthday, which presumably prompted the

Court to observe that “‘youth is more than a chronological fact.’” Id. at 2467 (quoting

Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).

A defendant’s youth, with its varying characteristics of immaturity, vulnerability,

and less-than-fully-developed character, is always a factor in determining an appropriate

No. 12-3805 United States v. Marshall Page 17

sentence. It is plain that “children are constitutionally different from adults” not because

they are under 18 years of age, but because they have not attained the level of maturity

that characterizes adult mentation. See Miller, 132 S. Ct. at 2464–65. The Supreme

Court’s use of chronological age does not diminish that precept. Rather, chronological

age has been used merely as a bright line to define categorical prohibitions on the

imposition of certain kinds of sentences deemed disproportionate as a matter of

constitutional law. The passage from Roper quoted by the majority is a case in point.

In “draw[ing] the line” at age 18 for death penalty eligibility (raising it from the previous

bright-line limit of age 16, established in Thompson v. Oklahoma, 487 U.S. 815 (1988)),

the Court defined a class of individuals for whom the death penalty is automatically

deemed disproportionate and therefore unconstitutional. That pronouncement does not

justify the converse proposition, that the death penalty is constitutional for all those over

18 years old. And it does not render immaterial for an Eighth Amendment analysis the

fact that a defendant has the mental characteristics of a juvenile.

Nor is the Supreme Court’s categorical bar to certain types of sentences limited

to those who are chronological juveniles, that is, under 18 years old. In Atkins v.

Virginia, 536 U.S. 304 (2002), the Court found that imposing the death penalty on

mentally retarded defendants is unconstitutional. In reaching that conclusion, the Court

identified the same features that diminished the defendant’s culpability as in the juvenile

cases. Id. at 318 (“Because of their impairments, . . . [mentally retarded persons], by

definition . . . have diminished capacities to understand and process information, to

communicate, to abstract from mistakes and learn from experience, to engage in logical

reasoning, to control impulses, and to understand the reactions of others.”). In Atkins,

the defendant was an adult, but he had the “mental age” of between 9 and 12 years old.

Id. at 310. Indeed, the Court, in essence, has equated diminished mental capabilities of

juveniles and mentally retarded persons as the central justification for its categorical

restrictions on types of sentences for classes of individuals: both juveniles and mentally

retarded individuals are “categorically less culpable than the average criminal.” Roper,

543 U.S. at 567 (quoting Atkins, 536 U.S. at 316).

No. 12-3805 United States v. Marshall Page 18

Marshall does not seek a categorical bar to the imposition of mandatory

minimum sentences upon juvenile offenders, of which he counts himself as one. Rather,

he argues that the mandatory minimum sentence is unconstitutional because it prevented

the district court from considering the developmental features that render him a juvenile

in all material respects, and therefore his sentence is excessive when measured against

his diminished culpability. I do not believe that chronological age plays a determining

role in that argument, and therefore I cannot join the court’s opinion, which holds

otherwise.

II.

The question presented is whether the five-year prison sentence mandated by the

statute in this case violates the Eighth Amendment when imposed upon Marshall, a

virtual juvenile. Marshall argues that under all the circumstances, the sentence is

excessive. The Eighth Amendment states that “cruel and unusual punishments [shall not

be] inflicted.” Sentences that are “excessive” violate that prohibition. Atkins, 536 U.S.

at 311. A sentence is excessive if it is disproportionate, that is, if it contravenes “the

basic ‘precept of justice that punishment for crime should be graduated and proportioned

to [the] offense.’” Roper, 543 U.S. at 560 (quoting Weems v. United States, 217 U.S.

349, 367 (1910)). Notably, in Miller, the Court added that a sentence must be

proportionate “to both the offender and the offense.” Miller, 132 S. Ct. at 2463.

But the proportionality principle found in the Eighth Amendment is not well

defined when it comes to a term-of-years sentence. The Supreme Court has

acknowledged “that [its] precedents in this area have not been a model of clarity.”

Lockyer v. Andrade, 538 U.S. 63, 72 (2003). “Indeed, in determining whether a

particular sentence for a term of years can violate the Eighth Amendment, we have not

established a clear or consistent path for courts to follow.” Ibid.

In Lockyer v. Andrade, the Supreme Court reversed the Ninth Circuit’s grant of

a writ of habeas corpus on the ground that two twenty-five-years-to-life sentences

imposed under California’s “three strikes” law, where the triggering felony was the theft

of $150 worth of video tapes, violated the Cruel and Unusual Punishment Clause of the

No. 12-3805 United States v. Marshall Page 19

Eighth Amendment. The Court noted that the “thicket” created by its jurisprudence

consisted primarily of its decisions in Solem v. Helm, 463 U.S. 277 (1983), Harmelin v.

Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445 U.S. 263 (1980). In

Andrade’s state court proceedings, the California court observed that the proportionality

rule set forth in Solem was cast into doubt by Harmelin and proceeded to analyze

Andrade’s sentence under the approach taken in Rummel, where the Supreme Court

rejected a claim that a life sentence imposed under Texas’s recidivist statute was grossly

disproportionate to the theft felonies that formed the predicate for the sentence. The

California court concluded that Andrade’s sentence was not disproportionate. The

Supreme Court held that the decision was not contrary to or an unreasonable application

of federal law that was clearly established by the Supreme Court. Lockyer, 538 U.S. at

72–77.

The Supreme Court has held that the Eighth Amendment does not require strict

proportionality between the crime and sentence. See Harmelin, 501 U.S. at 965;

Graham, 130 S. Ct. at 2021. As the Supreme Court observed in Lockyer, it is generally

recognized after Harmelin that the Cruel and Unusual Punishment Clause of the Eighth

Amendment forbids only an extreme disparity between crime and sentence, that is,

sentences that are “grossly disproportionate” to the crime. Lockyer, 538 U.S. at 72

(citing Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)); see also Graham, 130 S.

Ct. at 2021 (reading Harmelin as stating “that the 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’” (citations omitted)).

“Outside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.” Rummel, 445 U.S.

at 272. Rummel was convicted of obtaining $120.75 by false pretenses, a crime

punishable by at least two years but not more than ten years in prison. He was sentenced

as a recidivist to life imprisonment with the possibility of parole. His two prior felonies

consisted of fraudulent use of a credit card to obtain $80 worth of goods and services,

No. 12-3805 United States v. Marshall Page 20

a felony punishable by two to ten years in prison; and passing a forged check for $28.36,

a crime punishable by two to five years in prison. The Supreme Court held that

Rummel’s life sentence under the state recidivist statute did not constitute cruel and

unusual punishment. In Harmelin, the Supreme Court upheld a life sentence without the

possibility of parole for possession of more than 650 grams of cocaine for an offender

with no prior felony convictions.

The Supreme Court overturned a life sentence in Solem on the ground that it was

significantly disproportionate to Helm’s crime and therefore prohibited by the Eighth

Amendment. However, Helm had been sentenced to life imprisonment without the

possibility of parole for uttering a “no account” check for $100, and his prior felonies

also were minor, nonviolent crimes. By contrast, the Supreme Court reaffirmed Rummel

and found constitutional a sentence of twenty-five years to life imposed upon a fifth

felony theft conviction. See Ewing v. California, 538 U.S. 11, 24–31 (2003).

None of those cases involved juveniles. Nonetheless, the general approach to

evaluating a proportionality challenge to a term-of-years sentence for both juveniles and

adults calls first for “comparing the gravity of the offense and the severity of the

sentence.” Graham, 130 S. Ct. at 2022. Second, the court must then “compare the

defendant’s sentence with the sentences received by other offenders in the same

jurisdiction and with the sentences imposed for the same crime in other jurisdictions.”

Ibid. “If this comparative analysis ‘validate[s] an initial judgment that [the] sentence is

grossly disproportionate,’ the sentence is cruel and unusual.” Ibid. (quoting Harmelin,

501 U.S. at 1005).

The gravity of offenses dealing with child pornography cannot be overestimated.

This court and others have documented well the devastating and long-lasting effects that

the creation and dissemination of child pornography have on its victims, inflicting

emotional, physical, and psychological damage, sometimes permanently. See United

States v. Bistline, 665 F.3d 758, 766 (6th Cir. 2012); see also New York v. Ferber, 458

U.S. 747, 757–59 & nn.8–10 (1982). Neither the district court nor the defendant here

suggests otherwise. See United States v. Marshall, 870 F. Supp. 2d at 493.

No. 12-3805 United States v. Marshall Page 21

In light of the sentences found constitutional in Lockyer, Harmelin, Rummel, and

Ewing, it is difficult to conclude that a five-year sentence for the serious crime of

receiving child pornography supports an inference of gross disproportionality. The

Second Circuit concluded that no such inference arises from the mandatory five-year

sentence in a distribution-of-child-pornography case, and that reasoning conveniently

applies here. United States v. Reingold, 731 F.3d 204, 218–19 (2d Cir. 2013) (noting

“the depicted sexual exploitation of an eight-year old on the distributed video” in that

case and concluding “that the crime of conviction here is a more serious offense than the

golf club and videotape thefts in Ewing and Lockyer, for which the Supreme Court

upheld prison sentences of 25 years to life”).

But Marshall argues that the five-year sentence is disproportionate to him

because its mandatory nature prevents the court from considering his individual

characteristics as a virtual juvenile. After all, he says, the Supreme Court did not hold

that a life-without-parole sentence for juvenile murderers was unconstitutional per se in

Miller v. Alabama; it “mandate[d] only that a sentencer follow a certain process —

considering an offender’s youth and attendant characteristics — before imposing a

particular penalty.” Miller, 132 S. Ct. at 2471.

I do not believe that Miller can be read to prohibit mandatory term-of-years

sentences for juveniles across the board. It is true that the Miller court did distinguish

the statement in Harmelin that “a sentence which is not otherwise cruel and unusual”

does not “becom[e] so simply because it is ‘mandatory,’” Harmelin, 501 U.S. at 995,

by observing that Harmelin “had nothing to do with children and did not purport to apply

its holding to the sentencing of juvenile offenders.” Miller, 132 S. Ct. at 2470.

However, the Miller court’s main premise was that “youth matters for purposes of

meting out the law’s most serious punishments,” id. at 2471 (emphasis added) —

meaning death and life without parole — and therefore the failure to consider individual

characteristics in those types of cases is unconstitutional. See id. at 2469 (“Although we

do not foreclose a sentencer’s ability to [impose a life-without-parole] judgment in

homicide cases, we require it to take into account how children are different, and how

No. 12-3805 United States v. Marshall Page 22

those differences counsel against irrevocably sentencing them to a lifetime in prison.”

(emphasis added)). Applying that reasoning to a five-year mandatory sentence is too

great a span to be supported by the Court’s rationale.

The five-year sentence in this case, which almost certainly is greater than

necessary to achieve any rational sentencing objectives, cannot be considered extreme

in the greater context of juvenile punishment. There are hundreds of cases in which

youthful offenders have been sentenced to much longer prison terms for serious crimes.

See, e.g., Lelenoa v. Uribe, No. 11-6522, 2013 WL 569598 (C.D. Cal. Feb. 10, 2013)

(denying an Eighth Amendment habeas claim where petitioner was sentenced to 23 years

total for five armed robberies committed when he was a juvenile); Young v. State, No.

01-09-00790, 2012 WL 668927 (Tex. App. Mar. 1, 2012) (holding that a sentence of

15 years for aggravated sexual assault involving a child under the age of 14 was not

disproportionate where the defendant was 17 at the time of the crime); State v. Pettigrew,

204 N.C. App. 248, 693 S.E.2d 698 (2010) (holding that a sentence of 32 to 40 years was

not disproportionate for convictions of sexual assault of a minor stemming from

defendant’s frequent abuse of his younger relative when defendant was between 11 and

16 years old); Cuvas v. State, 306 Ga. App. 679, 703 S.E.2d 116 (2010) (upholding a

sentence of 10 years imprisonment for armed robbery where the defendant was 13 years

old at the time of the crime); Stovall v. State, 05-95-01862, 1997 WL 459082 (Tex. App.

Aug. 13, 1997) (holding that a sentence of 20 years for aggravated assault (the statutory

maximum) was not disproportionate where the defendant was 15 at the time of the crime

and had only a misdemeanor criminal record). Despite Marshall’s immaturity and

juvenile-like characteristics, I cannot conclude that the five-year custody sentence is

grossly disproportionate to the crime to which he pleaded guilty. Therefore, I concur in

the court’s judgment affirming the sentence against Marshall’s Eighth Amendment

challenge.

III.

Two more points deserve discussion. The district court found that a sentence of

“60 months is excessive, unjust, and greater than necessary as applied to this

No. 12-3805 United States v. Marshall Page 23

Defendant.” Marshall, 870 F. Supp. 2d at 499. Based on the record, it is difficult to

quarrel with that conclusion. The injustice in this case results from the combination of

the government’s decision to charge the defendant with receipt rather than possession

of child pornography, and the rigidity of the mandatory minimum sentence — which

divests the district court of discretion to consider individual characteristics when

attempting to impose a sentence that is “sufficient, but not greater than necessary” to

reflect the seriousness of the crime, achieve deterrence, protect the public, and address

the defendant’s special needs. 18 U.S.C. § 3553(a)(1), (2).

A.

The crime of receiving child pornography is prohibited by 18 U.S.C.

§ 2252(a)(2); it is punishable by a sentence of at least five years and up to 20 years. Id.

§ 2252(b)(1). The crime of possessing child pornography is prohibited by 18 U.S.C.

§ 2252(a)(5); it is punishable by a sentence of up to 20 years (if the images involve

prepubescent minors). There is no mandatory minimum sentence for possession. Id.

§ 2252(b)(2). The statutes do not define the terms “receipt” or “possession.” This court

has stated, however, that “standing alone, the current statutory scheme makes no

principled distinction between possessing and receiving child pornography, which can

often times be virtually identical conduct, but nonetheless results in vastly different

mandatory sentencing ranges.” United States v. Robinson, 669 F.3d 767, 776 n.2 (6th

Cir. 2012); see also United States v. Dudeck, 657 F.3d 424, 429 (6th Cir. 2011)

(acknowledging that “‘[t]hese statutory provisions . . . [are] materially identical.’”

(quoting United States v. Miller, 527 F.3d 54, 64 n.10 (3d Cir. 2008)).

Marshall contends that because there is no real difference between the crime of

possession of child pornography and receipt of child pornography, save that the latter

carries a mandatory minimum sentence, Congress unlawfully delegated what amounts

to judicial sentencing authority to the executive branch. The majority rejects that

argument, as it is obligated to do, because the prosecutor has broad discretion to select

the charge to present to the grand jury. United States v. Armstrong, 517 U.S. 456, 464

(1996); see also Wayte v. United States, 470 U.S. 598, 607 (1985); Bordenkircher v.

No. 12-3805 United States v. Marshall Page 24

Hayes, 434 U.S. 357, 364 (1978). One might expect that the government would take

great care when deciding to charge a crime that carries a mandatory minimum sentence,

especially when an identical crime without a mandatory sentence is available and will

serve the same penological goals. But the charging decision in this case was woefully

uninformed and even irresponsible. Nonetheless, “an exercise of prosecutorial discretion

cannot be successfully challenged merely on the ground that it is irrational or arbitrary;

in the realm of prosecutorial charging decisions, only invidious discrimination is

forbidden.” United States v. Moore, 543 F.3d 891, 900 (7th Cir. 2008). Although the

government’s judgment in this case can be questioned, there is no legal basis to second-

guess the government’s choice of charges.

B.

Nor can the defendant prevail on his argument that the mandatory minimum

sentence must yield to the parsimony provision in 18 U.S.C. § 3553(a), as the majority

correctly states. This court’s precedents have established that a sentencing court’s

determination that a mandatory sentence works an injustice is insufficient by itself to

disregard the mandate. United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010)

(declaring that “[w]hen a court and a mandatory minimum are in conflict, the minimum

wins”). Furthermore, statutes mandating minimum sentences trump the more general

command of section 3553(a). Ibid. (quoting United States v. Franklin, 499 F.3d 578,

585–86 (6th Cir. 2007)). And curtailing a court’s sentencing discretion by requiring

mandatory minimum sentences does not offend the separation of powers doctrine.

United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008).

If there is to be relief for the occasional defendant like Dylan Marshall for whom

a mandatory minimum sentence “is excessive, unjust, and greater than necessary,” it

must come from Congress. In March of this year, Senator Rand Paul introduced S. 619,

the Justice Safety Valve Act of 2013, which would amend 18 U.S.C. § 3553 to add

subsection (g), that would state:

(1) General rule.--Notwithstanding any provision of law other than this

subsection, the court may impose a sentence below a statutory minimum

No. 12-3805 United States v. Marshall Page 25

if the court finds that it is necessary to do so in order to avoid violating

the requirements of subsection (a).

The legislation would require “[t]he court [to] state, in the written statement of reasons,

the factors under subsection (a) that require imposition of a sentence below the statutory

minimum.” S. 619, 113th Cong. § 2(g)(3). The Bill is co-sponsored by Senator Patrick

Leahy. It appears that the intent of the Bill’s sponsors is to allow sentencing courts a

broader measure of discretion and give full effect to Congress’s stated sentencing goals

reflected in section 3553(a). See Reevaluating the Effectiveness of Federal Mandatory

Minimum Sentences: Hearing on S. 619 Before the S. Comm. on the Judiciary (2013)

(Statement of Sen. Patrick Leahy) (referencing mandatory minimum sentences and

acknowledging, “When I look at the evidence we have now, I realize we were wrong.

Our reliance on a one-size-fits-all approach to sentencing has been a great mistake.

Mandatory minimums are costly, unfair, and do not make our country safer. . . . Senator

Paul and I believe that judges, not legislators, are in the best position to evaluate

individual cases and determine appropriate sentences.”).

Senate Bill 619, however, is not the law at present. Until it — or legislation like

it — is enacted, defendants like Dylan Marshall are out of luck. The mandatory five-

year sentence imposed in this case is not unconstitutional, despite the defendant’s mental

age, and under the applicable statutes, the district court was bound to impose it. For

those reasons, I concur in the judgment affirming the sentence.