United States v. Michael Nagel

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2535

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M ICHAEL E. N AGEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07 CR 212—J.P. Stadtmueller, Judge.

A RGUED F EBRUARY 19, 2009—D ECIDED M ARCH 24, 2009

Before F LAUM and W ILLIAMS, Circuit Judges, and

K APALA , District Judge.1

K APALA , District Judge. Defendant, Michael E. Nagel,

pled guilty to attempting to entice a minor to engage in

a criminal sexual act in violation of 18 U.S.C. § 2422(b) and

1

The Honorable Frederick J. Kapala of the United States

District Court for the Northern District of Illinois, sitting by

designation.

2 No. 08-2535

was sentenced to the mandatory minimum ten-year term

of imprisonment. On appeal, defendant argues that the

mandatory minimum sentence violates the Fifth and

Eighth Amendments to the United States Constitution

because it is not subject to a “safety valve” allowing for

a sentence below the mandatory minimum term.

We affirm.

I. Background

By indictment, the government charged that defendant

violated § 2422(b) when he:

used a facility and means of interstate commerce to

attempt to persuade, induce, entice, and coerce a

person under eighteen years of age to engage in

sexual activity for which the defendant could be

charged with a criminal offense, namely, by using a

computer connected to the Internet to attempt

to have sexual contact and sexual intercourse with a

14-year old female known to the defendant as “Maria,”

in violation of Wisconsin Statute 948.02(2) (second-

degree sexual assault of a child).

In reality, “Maria” was a detective with the Milwau-

kee Police Department.

Defendant filed a motion to dismiss the charge and to

declare the mandatory minimum ten-year sentence provi-

sion in § 2422(b) unconstitutional on its face and as

applied to him. Defendant argued that the mandatory

minimum penalty violates the Fifth Amendment’s Equal

Protection guarantee because it precludes application

No. 08-2535 3

of the “safety valve” provision contained in 18 U.S.C.

§ 3553(f), and that it constitutes cruel and unusual punish-

ment in violation of the Eighth Amendment because

the penalty is grossly disproportionate to the gravity of

the offense.

Because defendant had not been convicted, the district

court found defendant’s as-applied arguments unripe

and addressed only defendant’s facial challenges. The

district court found that the legislative history provided

a rational basis for the mandatory minimum sentence

because it indicated that Congress contemplated a sen-

tencing mechanism that would underscore the serious-

ness of the offense. The district court held further that

Congress had a rational basis not to provide a safety

valve because there is a rational distinction between

non-violent first-time drug offenders, to which § 3553(f)

applies, and offenders who prey on children, to which

it does not. Citing United States v. Gross, 437 F.3d 691

(7th Cir. 2006), the district court also found defendant’s

Eighth Amendment challenge to be without merit.

Thereafter, the parties entered a conditional plea agree-

ment under which the government agreed to recommend

the mandatory minimum ten-year sentence. The factual

basis for the plea established that Nagel had extensive

sexually explicit computer chats and phone conver-

sations with “Maria,” who identified herself as a 14-year-

old girl from Milwaukee. During these encounters, Nagel

graphically expressed his desire to have sex with Maria.

Eventually, Nagel traveled from Burbank, Illinois, to

Milwaukee, Wisconsin, to meet with Maria and was

arrested.

4 No. 08-2535

After pleading guilty, but before sentencing, defendant

renewed his motion to dismiss the charge on Fifth and

Eighth Amendment grounds and maintained that he met

all the requirements of the § 3553(f) safety valve. The

district court found defendant ineligible for relief under

the safety valve because he did not commit any of the

offenses enumerated in § 3553(f). The district court reiter-

ated its previous conclusion that there was a rational

basis for enacting the mandatory minimum sentence

in § 2422(b) without regard to any safety valve provision

and, therefore, the statute did not violate equal pro-

tection principles. The district court rejected defendant’s

Eighth Amendment as-applied argument that his sen-

tence was unduly harsh in light of his criminal history,

characteristics, and his unlikeliness of repeating the

offense. The district court also continued to reject defen-

dant’s facial challenge to the statute on cruel and unusual

punishment grounds. The district court sentenced defen-

dant to 120 months’ imprisonment, but made clear that

it viewed the mandatory minimum sentence provision

as “draconian” in nature and stated that, but for the

mandatory minimum provision in § 2422(b), it would

have sentenced defendant to a sentence within the other-

wise applicable advisory Sentencing Guidelines range

of 46 to 57 months. Defendant now appeals.

II. Analysis

On appeal, defendant argues that § 2422(b)’s mandatory

minimum ten-year sentence, which is not subject to the

safety valve provision of § 3553(f), violates the Fifth and

No. 08-2535 5

Eighth Amendments to the United States Constitution. We

review de novo constitutional challenges to a sentence.

United States v. Figueroa-Espana, 511 F.3d 696, 705 (7th Cir.

2007).

A. Fifth Amendment

Defendant continues to advance the same facial equal

protection argument that he made in the district court: that

there is no rational basis to punish more severely those

who have been convicted of violating § 2422(b) than

those who have been convicted of the controlled sub-

stance offenses enumerated in § 3553(f).2 Like the district

court, we have little difficulty perceiving of a rational

basis for the classification.

The Supreme Court has noted that while the Four-

teenth Amendment applies only to the states, the Fifth

Amendment applies to the federal government and also

“contains an equal protection component.” S.F. Arts &

Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21

(1987). The approach to Fifth Amendment equal pro-

tection claims has “ ‘been precisely the same as to equal

protection claims under the Fourteenth Amendment.’ ” Id.

(quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2

2

In his brief, defendant purported to advance both facial and

as-applied equal protection challenges to the statute. However,

counsel for defendant represented at oral argument that

defendant was proceeding only on his facial challenge. Ac-

cordingly, we will only review defendant’s facial challenge.

6 No. 08-2535

(1975)). Equal protection of the laws means that all persons

similarly situated should be treated alike. See Plyler v.

Doe, 457 U.S. 202, 216 (1982).

Defendant concedes on appeal that his equal protection

challenge is subject to the rational-basis test. Under that

lenient standard, the statute will be upheld “if there is a

rational relationship between the disparity of treatment

and some legitimate governmental purpose.” Smith v. City

of Chi., 457 F.3d 643, 652 (7th Cir. 2006) (quotation marks

omitted). The party challenging the statute has the

burden of eliminating any reasonably conceivable state

of facts that could provide a rational basis for the class-

ification. Id.

The offense to which defendant pleaded guilty provides:

Whoever, using the mail or any facility or means of

interstate or foreign commerce . . . knowingly per-

suades, induces, entices, or coerces any individual who

has not attained the age of 18 years, to engage in

prostitution or any sexual activity for which any

person can be charged with a criminal offense, or

attempts to do so, shall be fined under this title and

imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). The “safety valve” provision of

§ 3553(f) applies only to the controlled substance offenses

specifically enumerated therein and “allow[s] certain

non-violent first-time drug offenders to avoid the ap-

plication of statutory minimum mandatory sentences if

they cooperated with the government.” United States v.

Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir. 2007) (quotation

marks omitted).

No. 08-2535 7

Defendant’s equal protection argument fails because

criminal defendants who violate § 2422(b) are not

similarly situated for sentencing purposes with criminal

defendants who violate the controlled substance

offenses enumerated in § 3553(f). See Smith ex rel. Smith

v. Severn, 129 F.3d 419, 429 (7th Cir. 1997) (“An equal

protection violation occurs only when different legal

standards are arbitrarily applied to similarly situated

individuals.”). Therefore, Congress is not required to

treat such disparate individuals in the same manner.

The following distinctions demonstrate this point.

As noted by the district court, the Joint Explanatory

Statement of the Committee of Conference for The Pro-

tection of Children from Sexual Predators Act of 1998

(PROTECT Act), Pub. L. No. 105-314 § 203(a)(1), 112 Stat.

2974 (1998), evinces a congressional recognition of the

seriousness of attempted sexual enticement of a minor.3

See H.R. Rep. No. 108-66, at 51 (2003) (Conf. Rep.), as

reprinted in 2003 U.S.C.C.A.N. 683, 685. Congress also

perceived a need to prevent judicial leniency, especially

in cases where there is no actual child victim. Id. Be-

cause individuals who violate § 2422(b) always present a

3

The PROTECT Act changed the sentence for a violation of

§ 2422(b) from a maximum of fifteen years imprisonment to a

mandatory minimum of five years and a maximum of thirty

years. On July 27, 2006, Congress passed the Adam Walsh

Child Protection and Safety Act of 2006 (Adam Walsh Act),

Pub. L. No. 109-248, § 203, 120 Stat. 587, 613 (2006), amending

§ 2422(b) to include a mandatory minimum of ten years im-

prisonment and a maximum of life.

8 No. 08-2535

serious danger to children, it was entirely rational for

Congress to conclude that violations of § 2422(b) are

always serious enough to require a mandatory minimum

sentence. In contrast, while the drug offenses enumerated

in § 3553(f) are also serious, particular drug offenders

present varying degrees of risk to the community depend-

ing upon the circumstances. Congress also believed

that violators of § 2422(b) were being sentenced too

leniently. In contrast, Congress apparently believed that

certain non-violent drug offenders were being sentenced

too harshly. See United States v. Williams, 299 F.3d 250,

259 (7th Cir. 2002) (“[P]roviding a safety valve for nonvio-

lent, first-time drug offenders has a rational relationship

to the legitimate government goal of providing excep-

tions to draconian mandatory minimum sentences for

such individuals.”). Thus, both the relative seriousness

of the offense and the leniency problem are two rational

bases for withholding the safety valve from those con-

victed of violating § 2422(b) while permitting the opera-

tion of a safety valve in sentencing qualified violators of

the offenses enumerated in § 3553(f).4

4

In his opening brief, defendant makes the effort to point out

that while the Joint Explanatory Statement of the PROTECT Act

has been used extensively to find a rational basis, there is no

comparable explanatory statement for the provision of the

Adam Walsh Act which increased the mandatory minimum

sentence of § 2422(b) from five years to ten years. Defendant

does not, however, develop any argument in support of this

effort. To the extent defendant is arguing that there can be no

(continued...)

No. 08-2535 9

The court also agrees with the government that the need

for cooperation in drug prosecutions provides a rational

basis for affording the safety valve to qualified drug

offenders and not to offenders who attempt to sexually

entice minors. Often, there are multiple offenders

involved in the distribution of controlled substances

and, consequently, in appropriate cases there is a need

to encourage qualified drug offenders to cooperate with

the government in drug prosecutions. See United States

v. Marin, 144 F.3d 1085, 1090 (7th Cir. 1998) (holding that

the safety valve provision of § 3553(f) “allows less knowl-

edgeable and less culpable defendants who have fully

assisted the government by providing all of the informa-

tion they have to avoid the application of the statutory

mandatory minimum sentences”). The same need

typically is not present in prosecutions for attempted

sexual enticement of a minor because such offenders

ordinarily act alone. For this reason, the public’s interest

in preventing drug trafficking is advanced by affording

the safety valve provision of § 3553(f) to qualifying drug

offenders, while no such interest is advanced by

affording the safety valve to those who violate § 2422(b).

Another rational basis for the disparity in application of

the safety valve is that § 2422(b) is designed to protect

4

(...continued)

rational basis if Congress does not expressly state that basis

when a law is promulgated, he is incorrect. See Smith, 457

F.3d at 652 (“The government need not have articulated a

reason for the challenged action at the time the decision was

made.”).

10 No. 08-2535

children while the drug offenses specifically enumerated

in § 3553(f) were not designed exclusively for the protec-

tion of children. As the Supreme Court has stated: “It is

evident beyond the need for elaboration that [the gov-

ernment’s] interest in safeguarding the physical and

psychological well-being of a minor is compelling.”

Osborne v. Ohio, 495 U.S. 103, 109 (1990) (quotation marks

omitted).

In sum, we agree with the district court that there is a

rational distinction between first time, non-violent, drug

offenders who have cooperated with the government

and those offenders who have attempted to prey on

children. This distinction provides a rational basis for

the sentencing disparity that defendant challenges. There-

fore, defendant has not carried his burden of eliminating

any reasonably conceivable state of facts to support a

rational basis for withholding the safety valve provision

of § 3553(f) from those who violate § 2422(b). See Smith,

457 F.3d at 652. Consequently, defendant’s equal protec-

tion challenge to § 2422(b)’s ten-year mandatory mini-

mum sentence fails.

B. Eighth Amendment

Defendant also argues that the ten-year mandatory

minimum sentence provision of § 2422(b) is grossly

disproportionate to the offense and therefore violates the

Eighth Amendment’s proscription of cruel and unusual

punishment both as applied to him and on its face. In

response, the government argues that the ten-year manda-

tory minimum sentence is not disproportionate to the

No. 08-2535 11

offense of attempted sexual enticement of a minor and,

therefore, does not violate the Eighth Amendment.

This court has yet to rule on an Eighth Amendment

disproportionate penalty argument with respect to the

ten-year mandatory minimum sentence of § 2422(b). Last

December, however, we rejected such a claim in dicta. See

United States v. Davey, 550 F.3d 653, 658 (7th Cir. 2008)

(concluding that defendant’s argument that his 126-month

sentence violated the Eighth Amendment was barred by

his appeal waiver, but stating, “[e]ven if Davey’s Eighth

Amendment argument somehow escapes his appeal

waiver . . . we would reject it”). Our rationale in Davey

is consistent with the Tenth Circuit’s opinion in United

States v. Munro, 394 F.3d 865, 873 (10th Cir. 2005), holding

that the former five-year mandatory minimum sentence

of § 2422(b) does not constitute cruel and unusual punish-

ment. Id. at 873; see also United States v. Butters, 267 F. App’x

773, 778 (10th Cir. 2008) (holding that § 2422(b)’s manda-

tory minimum ten-year sentence does not violate the

Eighth Amendment). For the following reasons, we now

hold that the ten-year mandatory minimum sentence

provision in § 2422(b) is not grossly disproportionate to

the crime of attempting to entice a minor to engage in a

criminal sexual act and therefore does not violate the

Eighth Amendment’s prohibition of cruel and unusual

punishment.

The Supreme Court has recognized that, “[t]he Eighth

Amendment . . . contains a narrow proportionality princi-

ple that applies to noncapital sentences.” Ewing v. Cal.,

538 U.S. 11, 20 (2003) (quotation marks omitted). The

12 No. 08-2535

Eighth Amendment’s Cruel and Unusual Punishment

Clause prohibits sentences that are grossly disproportion-

ate to the crime committed. Solem v. Helm, 463 U.S. 277, 284

(1983). Three factors are relevant in determining

whether a sentence is so disproportionate to the crime

committed that the sentence violates the Eighth Amend-

ment: “(i) the gravity of the offense and the harshness of

the penalty; (ii) the sentences imposed on other criminals

in the same jurisdiction; and (iii) the sentences imposed

for commission of the same crime in other jurisdictions.”

Id. at 292. However, it is clear that “our first task is to

ascertain whether [the defendant’s] case is ‘the rare case

in which a threshold comparison of the crime com-

mitted and the sentence imposed leads to an inference

of gross disproportionality.’ ” Gross, 437 F.3d at 692-93

(quoting Ewing, 538 U.S. at 20). “Absent such an inference,

we need not conduct any comparative analysis within

and between jurisdictions.” Id. at 693 (quotation marks

omitted). Successful proportionality challenges to

noncapital sentences have been exceedingly rare. Ewing,

538 U.S. at 21. “[T]he fixing of prison terms for specific

crimes involves a substantive penological judgment that,

as a general matter, is properly within the province of

legislatures, not courts.” Harmelin v. Michigan, 501 U.S.

957, 998 (1991) (Kennedy, J., concurring in part and con-

curring in the judgment) (quotation marks omitted).

As for his as-applied challenge, defendant argues that

under his particular circumstances his case is the rare

occurrence which renders his sentence grossly dispropor-

tionate. Specifically, defendant maintains that he has no

criminal history, let alone a history of sex offending, the

No. 08-2535 13

evidence at the sentencing hearing shows that he has a

low risk for recidivism, and in his case there was no

actual minor victim. For the reasons that follow,

we conclude that these circumstances do not raise an

inference of gross disproportionality.

In Gross, we rejected the defendant’s as-applied argu-

ment that the fifteen-year mandatory minimum sentence

for distribution of child pornography constituted cruel

and unusual punishment. In doing so, we highlighted

various decisions of the Supreme Court rejecting Eighth

Amendment disproportionate sentence arguments:

The Court’s precedent in this area reflects how high

the bar is set. See [Ewing, 538 U.S.] at 28-3 (affirming

sentence of 25 years to life imposed for felony grand

theft of three golf clubs under three strikes law);

Harmelin, 501 U.S. at 961, 996 (affirming life in prison

without the possibility of parole for first-time offender

possessing 672 grams of cocaine); Davis, 454 U.S. at

370-71 (no constitutional error in two consecutive

terms of 20 years in prison for possession with intent

to distribute and distribution of 9 ounces of mari-

juana); Rummel v. Estelle, 445 U.S. 263, 265-66 (1980)

(upholding life in prison without the possibility of

parole under three strikes law where triggering

offense was obtaining $120.75 by false pretenses and

the loss amount of the two previous fraud felonies

was $80, and $28.36, respectively). But see Solem v.

Helm, 463 U.S. 277, 296-97 (1983) (holding that the

Eighth Amendment prohibited a sentence of life

without the possibility of parole where the defendant

14 No. 08-2535

had previously committed six “minor” and “nonvio-

lent” felonies and his triggering offense was uttering

a “no account” check for $100).

Gross, 437 F.3d at 693 (parallel citations omitted). We

concluded that “[u]nder this precedent, it is clear that [the

defendant’s] case is not the rare one in which comparing

the gravity of the offense to the harshness of the sen-

tence leads to an inference of gross disproportionality.”

Id. Similarly, we conclude that the instant case does not

lead to an inference of gross disproportionality.

While defendant may have had no criminal history

prior to the events that led to the instant prosecution, in

this case he pled guilty to attempting to meet with a girl

that he believed to be 14 years old and with whom he

intended to have sexual intercourse. Employing sexually

graphic language, defendant arranged this would-be

rendezvous over the Internet, which he also used to send

video images of his genitals and anus to the person he

thought was a 14-year-old girl. For this he received a

ten-year sentence, the statutory minimum. Defendant

has not demonstrated how his ten-year sentence for

attempting to entice a minor to engage in a criminal sexual

act is any more disproportionate than the life sentence

without the possibility of parole imposed on a first-time

offender for possessing 672 grams of cocaine. See Harmelin,

501 U.S. at 1021 (White, J., dissenting). Suffice it to say

that defendant’s sentence is less severe that the sen-

tence imposed in Harmelin where the Supreme Court

rejected an Eighth Amendment proportionality chal-

lenge, and does not resemble the life sentence for

No. 08-2535 15

multiple non-violent felonies struck down as dispropor-

tionate in Solem.

Defendant’s reliance on the clinical psychologist’s

report presented at sentencing, which indicated that

defendant is unlikely to reoffend, also is misplaced. Even

if there was no need to incapacitate or rehabilitate defen-

dant, as this evidence seems to suggest, defendant’s

ten-year sentence continues to serve the purposes of

societal retribution and deterring others from engaging

in similar conduct. See Ewing, 538 U.S. at 25 (“A sen-

tence can have a variety of justifications, such as incapaci-

tation, deterrence, retribution, or rehabilitation.”). Thus,

even if the psychologist’s predictions that defendant

will not reoffend prove true, an inference of gross

disproportionality does not arise.

Defendant’s “no actual minor victim” argument also

fails to raise an inference of gross disproportionality. The

type of crime defendant pled guilty to does not require

an actual minor victim but, rather, only that the

defendant believed the victim was a minor. See, e.g.,

United States v. Morris, 549 F.3d 548, 550 (7th Cir. 2008);

United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007),

cert. denied, 128 S. Ct. 2519 (U.S. May 27, 2008) (No. 07-

10525). It is clear that Congress contemplated a man-

datory minimum sentence whether there is an actual

minor involved or not. As indicated above, the legislative

history clearly indicates a congressional belief that at-

tempted sexual enticement of a minor is a serious offense

even where a law enforcement agent poses as the minor

victim and that it did not want those who commit the

16 No. 08-2535

offense under those circumstances to receive lenient

sentences. See H.R. Rep. No. 108-66, at 51; see also, Butters,

267 F. App’x at 778 (“[A]ttempted sexual enticement of a

minor is a serious offense whether or not the defendant

has successfully contacted an actual minor or has preyed

on children in the past.”). The fact that defendant had

not actually victimized a minor, therefore, raises no

inference that his ten-year sentence was grossly dispropor-

tionate to the crime he committed.

The only Eighth Amendment facial challenge that we

can glean from defendant’s briefs is that the ten-year

mandatory minimum sentence in § 2422(b) is grossly

disproportionate to the offense of attempted sexual

enticement of a minor. In order to mount a successful

facial attack, “the challenger must establish that no set

of circumstances exists under which the [statute] would

be valid.” United States v. Salerno, 481 U.S. 739, 745

(1987). As noted above, the Eighth Amendment forbids

extreme sentences that are “grossly disproportionate to

the crime.” See Harmelin, 501 U.S. at 995. The Supreme

Court has recognized the theoretical possibility of

finding a statute facially disproportionate in violation of

the Eighth Amendment. See Rummel, 445 U.S. at 274 n.11

(“This is not to say that a proportionality principle

would not come into play in the extreme example . . .

[where] a legislature made overtime parking a felony

punishable by life imprisonment.”). In this case, defendant

has failed to establish gross disproportionality on the

face of § 2422(b) because a ten-year sentence for at-

tempted sexual enticement of a minor does not approach

the theoretical possibility mentioned in Rummel. In addi-

No. 08-2535 17

tion, as discussed above, the ten-year mandatory

minimum sentence defendant received is not grossly

disproportionate to his offense; therefore, defendant is

unable to succeed on his Eighth Amendment facial chal-

lenge. See Salerno, 481 U.S. at 745.

We conclude that neither the ten-year mandatory

minimum sentence provision of § 2422(b) itself, nor the ten-

year sentence defendant received in this case, lead to an

inference of gross disproportionality. Therefore, defen-

dant’s facial and as-applied Eighth Amendment chal-

lenges to § 2422(b) fail. Because we have determined

that defendant’s case does not lead to an inference of

gross disproportionality we do not need to conduct any

comparative analysis of sentences within and between

jurisdictions. See Gross, 437 F.3d at 694.

III. Conclusion

Based on the foregoing, we A FFIRM defendant’s sen-

tence and the district court’s order rejecting defendant’s

constitutional challenges under the Fifth and Eighth

Amendments.

3-24-09