United States v. Randy Shill
2014 U.S. App. LEXIS 1473
| 9th Cir. | 2014Background
- In 2010 Randy Shill (45) contacted a 16-year-old (“JS”) via Facebook, sent sexually explicit messages and photos, and arranged to meet, agreeing to bring condoms and alcohol. He was arrested at the meetup location with condoms and a phone showing the messages.
- The FBI used a controlled account (with JS’s and her father’s consent) to communicate with Shill, who believed he was communicating with JS.
- Shill was indicted under 18 U.S.C. § 2422(b) for using interstate commerce to attempt to entice a minor to engage in sexual activity, alleging predicate state offenses (Oregon Sexual Abuse in the Third Degree and Contributing to the Sexual Delinquency of a Minor), both Class A misdemeanors in Oregon.
- Shill moved to dismiss arguing § 2422(b)’s phrase “any sexual activity for which any person can be charged with a criminal offense” should exclude predicate misdemeanor conduct; the district court denied the motion.
- Shill pleaded guilty conditionally to preserve appeal; at sentencing the court found a Guidelines range below the statutory mandatory minimum and imposed the ten-year mandatory minimum.
- On appeal Shill argued (1) § 2422(b) cannot reach state misdemeanors and (2) the ten-year mandatory minimum is categorically cruel and unusual for misdemeanor-predicate offenders. The Ninth Circuit rejected both arguments and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of “criminal offense” in § 2422(b) — whether it excludes state misdemeanors | Gov't: plain meaning of “criminal offense” includes misdemeanors; Congress used expansive language and intended broad reach to protect minors | Shill: phrase is ambiguous/absurd if it allows federal prosecution with a 10-year mandatory minimum for conduct that is only a state misdemeanor; statute should be limited to felony predicates | Court held the statutory text plainly covers both felonies and misdemeanors; no textual basis to limit § 2422(b) to felonies and Congress’s repeated expansions support broad reach |
| Vagueness / Rule of Lenity / Constitutional avoidance | Gov't: statute is unambiguous; lenity and avoidance inapplicable | Shill: statute is ambiguous and vague; lenity and constitutional avoidance require narrowing | Court held statute is not ambiguous or vague; rule of lenity and avoidance do not apply |
| Eighth Amendment categorical challenge to the 10-year mandatory minimum for misdemeanor-predicate offenders | Shill: mandatory minimum is grossly disproportionate for offenses that would be misdemeanors under state law | Gov't: no national consensus against such a penalty; the sentence is not akin to death or life without parole and does not warrant categorical relief | Court refused to apply Graham/Miller categorical approach; no categorical Eighth Amendment violation for the ten-year minimum |
| Applicability of precedents (Taylor, Abuelhawa, Johnson, Lewis) to narrow § 2422(b) | Shill: analogies to cases narrowing statutory reach support limiting § 2422(b) | Gov't: those cases are distinguishable on statutory text and context | Court distinguished those precedents and relied on § 2422(b)’s plain language and congressional intent to reject narrowing |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (uses “criminal offense” to include misdemeanors)
- United States v. Gonzales, 520 U.S. 1 (1997) (interpreting the expansive meaning of “any”)
- Abuelhawa v. United States, 556 U.S. 816 (2009) (construing statutory term narrowly where statutory context supported it)
- Lewis v. United States, 523 U.S. 155 (1998) (interpreting the Assimilated Crimes Act to avoid absurd results)
- Johnson v. United States, 559 U.S. 133 (2010) (rejecting overly broad statutory readings where modifier like “violent” controls scope)
- Graham v. Florida, 560 U.S. 48 (2010) (categorical Eighth Amendment analysis for juvenile life-without-parole)
- Miller v. Alabama, 567 U.S. 460 (2012) (limiting mandatory life-without-parole for juveniles)
- United States v. Taylor, 640 F.3d 255 (7th Cir. 2011) (narrower reading of “sexual activity” prompting discussion of misdemeanor hypotheticals)
- United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007) (Congress’s increasing penalties reflect intent for stern punishment in this area)