United States v. Dylan Marshall

оf federal application an unreasonable have been would proceeding of the suit appli- from an incorrect law is different Washington, 466 v. different.” Strickland Indeed, a law. federal cation of federal L.Ed.2d may not issue the writ court explained, if habeas state court As the that court concludes testified, simply because their testi- had step-siblings the that the rele- independent judgment its particularly have been mony would not clearly applied decision vant state-court step-sib- Each of his to Cauthern. helpful erroneously or federal law they had established lings would have testified Rather, (Cauthern’s application incorrectly. by Dagmar been abused unreasonable. This objectively must be was fa- but that Cauthern grandmother), substantially higher creates a family. distinction child” of the “golden as the vored obtaining relief than de State, threshold 145 S.W.3d v. Cauthern imposes AEDPA review. thus that Melin- novo (finding (Tenn.Crim.App.2004) standard for evaluat- highly deferential that Cauthern was have testified da would rulings, and demands eye’”); ing id. at statе-court [Dagmar’s] apple “‘the of the given decisions be that state-court Bud would have testified (finding that benefit of the doubt. initially the favorite Cauthern subject unpredictable child but would be Lett, 766, 773, 130 S.Ct. v. Renico older); (finding id. he became abuse when (2010) (citations 176 L.Ed.2d testified that she that Eveann would have omitted). quotation marks internal children”). “golden were and Cauthern opinion, Dis- 168-page In a meticulous findings, the Court of on these Based care- Trauger thoughtfully and Judge trict Appeals “[e]ven concluded Criminal arguments pre- fully disposed multiple un- though petitioner’s step-siblings I would counsel. petitioner’s sented abusive, child- doubtedly endured isolated judgment of the district affirm hoods, from the no means obvious writ. denying habeas ri- petitioner’s childhood proof fact, testimo- valed Id. 609. theirs.” have step-siblings could well

ny from jury could have because the

hurt Cauthern step-siblings that Cauthern’s

concluded traits manifest obvious antisocial “do not America, STATES UNITED despite having been or violent tendencies” Plaintiff-Appellee, subject abuse at the hands that there was Dagmar. Concluding Id. that the evidence probability

no reasonable MARSHALL, Dylan Defendant- would have of Cauthern’s childhood Appellant. jury’s imposition of the death changed the No. 12-3805. applica- was not an unreasonable penalty tion of Strickland. Appeals, States Court of United Sixth Circuit. sure, rea- majority

To articulates disagreeing with sonable bases Argued: June 2013. and the Supreme Court Court Tennessee Filed: Nov. Decided and prejudice on the two Appeals of Criminal has But issues. explained:

repeatedly Gerstein,

ARGUED: Charles L. Univer- sity of Michigan Ap- Law School Federal Clinic, Arbor, pellate Litigation Ann Michi- gan, Appellant. for Sterling, Alissa M. Office, Toledo, Attorney’s United States Ohio, Appellee. ON BRIEF: Charles Gerstein, L. Rachel Rose Goldberg, Uni- versity of Michigan Law Federal School Appellate Clinic, Arbor, Litigation Ann Salinas, Michigan, Melissa M. Dennis G. Terez, Office of the Federal Public De- fender, Dustin, Appellant. Ava R. Office, Toledo, Attorney’s United States Ohio, for Appellee. admitting to DONALD, parents. with his McKEAGUE

Before: to share and LAWSON, sharing program file using District Judges; Circuit He told the pornography. downlоad child Judge.* im- possessed pornographic agents that he LAWSON, J., DONALD, joined, ranging of children ages and videos LAWSON, D.J. D.J., in the result. joined to twelve. from four 501-08), separate opinion delivered a (pp. com- analysis of Marshall’s The FBI’s judgment. concurring in the images puter and other media revealed OPINION containing pornogra- child and 46 videos ranged on the files stamps The date phy. McKEAGUE, Judge. Circuit 2010. The May September 2005 to from receiving guilty to Dylan pled Marshall in beginning revealed that analysis also years, of 5 period a pornography child over in online participated had Marshall he was 15 until he was from the time pornogra- child discussing sessions chat from downward The district court varied phy. him to 5 guideline range and sentenced mandatory minimum prison in —the government In December expressing its for the sentence offense— count of receiv- charged Marshall with one perceived with the harshness concerns of 18 pornography violation ing child has a as it did so. Marshall 2252(a) (b). pled U.S.C. called Human physiological rаre condition guilty. Deficiency, Hormone which he be- Growth The Defendant him the Amend- lieves entitles juveniles. accorded to protections ment child from his involvement with Aside condition, an his Marshall was despite But appears Marshall was pornography, offense. We adult at the time of the becoming productive . headed toward affirm his therefore sentence. society. graduated He from member of parents. with his high school. He lived

I. BACKGROUND community college part- He attended semesters, pursuing a career time for four The Crime paying his own a lab technician agent FBI In summer of operator a machine tuition. He worked as un- operating that an individual discovered bakery. He owned a car for a commercial using was der the name “Gotanks721” and had a credit card. sharing program file to share peer-to-peer containing pornography. files probation his During an interview with the individ- agent traced the IP address of officer, that he first started Marshall said Wauseon, computer ual’s to a residence sharing programs acquire mu- using file Ohio. availability of He discovered the sic. soon every it almost and viewed agents

FBI obtained a warrant words, residence, file-sharing In he used the seizing day. com- his two searched my look for “naked kids of programs electronic and other miscellaneous puters ¶ According proba- to his age.” PSR 29. They also interviewed media. officer, that he felt like he time, said “[h]e lived the house tion age 20 at the who * Lawson, Michigan, sitting by designation. United The Honorable David M. Judge Eastern District States District for the (Jan.2003), viewing images peers. of his He indi- 4 available http://www. childgrowthfounda- cated he has felt like a 15 or 16- often year-old tion.org/CMS/FILES/02_Growth_Hor- individual because of his small ¶ mone_Deficiency.pdf. frame and stature.” PSR 30. In addition to stunt- growth, growth ed deficiency hormone can Indeed, self-per- Marshall’s size and result in delayed pubertal development. age undergird most of argu- ceived Foundation, Child Growth Puberty and the ments he appeal. has raised this Child, Growth Hormone Growth Deficiеnt diag- Marshall was he was Deficiency: Hormone A Guide for Parents nosed with Human Growth Hormone Defi- (June Patients, 2010), axid available at ciency. According to the Child Growth http://www.childgrowthfoundation.org/ Foundation: CMS/FILES/03_GrowthHormone deficiency Growth hormone or insuffi- Deficiency.pdf. ciency pituitary gland, occurs when the diagnosed When he was age at Mar- pea a small at gland sized the base of extremely shall small age was for his and brain, produce adequate fails to lev- yet had not puberty. entered He was growth els of hormone. Part of the treated injections with hormone for about hypothalamus brain called the controls years. five When his Presentence Investi- the levels of hormones in the blood gation Report prepared was he triggering pituitary gland pro- into weighed pounds. was 5'5" and ducing the required hormones. This low growth may level of hormone be due to Before his sentencing hearing, Marshall problems hypothalamus with the or with was evaluated separate on two occasions hypоthalamus the link between and a clinical psychologist Gregory named pituitary gland or with pituitary Forgac. Forgac Marshall told Dr. that he gland itself.... The growth level of hor- started viewing child insufficiency may mone vary from mild he began by was 15. He said that he growth severe but as hormone is now looking people age. his own He did in large quantities, available all children wrong not know it was until the FBI ap- growth peared whose hormone levels are inade- at parents’ his house. quate appropri- should be able to receive Forgac Dr. noted that ap- Marshall replacement

ate treatment. peared younger chronological age. than his growth Children with hormone defi- He administered a test called the Ammons ciency very ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌​​‌​‌​‌​​​‌​​​​​​‌​‌​‌​‌​​​‌‌‌‌​‍are short but with normal Test, Quick which indicated that Marshall body proportions, appearance facial and I.Q. had an and a age meiital of l&k. intelligence. Prior to treatment the Dr. Forgac diagnosis found Marshall’s may “chubby” also growth be as Human Deficiency Growth Hormоne to be helps hormone to control the fat under noteworthy. report He stated in his that may the skin. These children look in delayed physical addition to growth, “[i]t young for age physical develop- their as quite possible is and self-perception delayed ment and bone and con- self-concept would also significantly de- sequently the skull will be immature 12-1, layed.” Report, PagelD R. #44. producing the facial proportions of a He “appealed] found to be younger child. quite chronological age immature his Foundation, condition, Child Growth Growth Hor- due to his ... which inhibited Deficiency, mone growth physically, Growth Hormone Defi- his and maturation ciency: Patients, A emotionally socially.” Guide for Parents and quite and Id. “It is PagelD at early late 20s.” Id. from 20s to other than chrono- ways

likely that in all only way “the juve- Forgac thought Dr. was still a # 198. individual age, this logical Dr. not still a was] of his arrest.” Id. [Marshall time nile at the that “he chronological age” “Marshall’s behavior and his Forgac [was] believed mor- curiosity, juvenile level.” Id. functioning of adolescent at a product [was] was easy availability por- Mar- and # He believed that immaturity PagelD al at # 44-45. He PagelD younger at much Id. himself nography.” “viewed shall “education, monitoring and much functioning as a recommended and was individual to mature opportunity and supervision individual.” Id. younger physically levels both age appropriate Forgac Dr. court asked The district PagelD # 45. Id. psychologically.” exactly what role Marshall’s explain Hearing Sentencing in the deficiency played hormone growth Forgac’s report Dr. Marshall submitted Forgac Dr. ex- he committed. crime along with his sentenc- the district court Hormone De- that Human Growth plained sentencing hearing His ing memorandum. maturation.” ficiency “basically prevents after for June but scheduled # 211. He identified sever- PagelD Id. meeting with coun- reviewing the case chro- of maturation”: aspects al “different the hear- postponed sel, the district age, physical age, social nological age, Forgac appear Dr. could ing so age. Id. at age, and intellectual emotional testify. PagelD # 212. hearing recommenced June The ado- Forgac explained Dr. further Forgac appeared and testified. 2012. Dr. “group identity.” for a Id. lescents search Test, Quick that the Ammons explained He they interacting peers, expe- with their By he had administered

which validation,” feel- “consensual “start rience 10-15 screening device” takes a “brief and “are group,” affiliation with a ing an produces both minutes to administer group interac- to mature.” Id. This able age. mental I.Q. score and an estimated to an adult individual tion “is the road Tr., # 206. It Hrg. PagelD R. identity.” Id. subject pic- to match asking the involves adolescents, was Marshall Unlike normal “[sjtart pretty out tures with .that words peers due to his short stat- isolated his increas- simple” or and “become concrete immature turned appearance. He ure and PagelD Id. at ingly more abstract.” for children and looked pornography that Marshall’s Forgac # 205. Dr. stated in- age. group He found his own around аverage in “the low I.Q. score was of.87 experience and a shared teractions intelligence” and his mental range of activities, including his his online through 15)6 his academic was consistent with chatting activities. # How- PagelD Id. at performance. ever, noted that Marshall was “not de- he 5,000 performed psycho- Forgac Dr. had intellectually.” Id. velopmentally delayed evaluations, examining but before logical # 199. PagelD at an in- had never encountered Marshall he Hormone Human Growth dividual with Forgac explained

Dr. adoles- do an extensive Deficiency. He “didn’t but actual- period cence does not end search,” a neu- he talked to but literature ly extends into an individual’s mid-20s. little “did a bit friend who goes ropsychologist “[Djevelopmental maturation #214. Dr. PagelD of a search.” Id. mid, peo- even late 20s so that sometimes experienced that Marshall identity Forgac believed developing adult ple will receive developmental delay” unique “a The district court believed that the man- thought “significant that he was essen- datory minimum sentence for receipt of tially maybe 15-and-a-half old in inwas “direct conflict” way every except chronological age at the responsibility with its under 18 U.S.C. activity time” the criminal occurred. Id. 3553(a) § appropriate to “fashion an sen- degree To a of psychological reasonable tence.” opined Id. at 496. It further certainty, Forgac Dr. believed Marshall case, in Marshall’s the mandatory mini- opposed was “a kid as to an adult.” Id. at mum might be unconstitutional PagelD # 218. under the Amendment. Id. at 499. unwilling Sentence But it was to sentence below the mandatory minimum support without some Dr. accepted Forgac’s district court in the caselaw. Id. testimony. It found that Marshall was not an adult but was “a in a number appealed, challenging his sen- aside,” ways, chronological age when he grounds. tence on several engaged activity. in the criminal Id. at PagelD guideline range # 227. Marshall’s II. ANALYSIS months, was 151 to 188 but the district statutory court varied downward to the A. Standard of Review years. minimum sentencе of 5 reviewing decisions, “When sentencing 2252(b)(1). See 18 U.S.C. It found that we review the district court’s factual find- even the minimum sentence error, ings for reviewing clear while necessary, than but realized district court’s conclusions of law de novo.” that it impose could not a sentence lower Hazelwood, United States v. 398 F.3d Instead, than that amount. the district (6th Cir.2005). expressed hope that this Court give would somehow it some relief from Eighth Challenge B. Amendment the constrictions of the mini- mum. urges Marshall us to that his man- hold datory minimum sentence is unconstitu- supplemental

In a opinion, memorandum Alabama, tional on based Miller v. explained the district court in more detail Supreme which the Court held “man- 5-year mandatory its concerns with the datory parole life without for those under minimum sentence. See United States v. age the of 18 at the time of their crimes (N.D.Ohio F.Supp.2d 2012). Eighth prohibi- violates the Amendment’s “[testimony It found that the and tion on ‘cruel punish- and unusual other evidence at sentencing [Marshall’s] - -, 2455, ments.’” 132 S.Ct. hearing supported] the that at conclusion (2012). was, 183 L.Ed.2d 407 The Cоurt the time of the crime [Marshall] and as, Eighth declined to decide whether the sentencing should be characterized for discretionary Amendment bars a developmental^ teenager immature lack- ing ability appreciate parole juvenile the of life without for homicide illegality the offenders,1 of child but noted that oc- pornography “appropriate and to control his viewing easily sentencing juveniles of accessible internet con- casions for to this tent.” Id. at possible penalty harshest will be uncom- Eighth 1. The Court had held two earlier that a under the Amendment. See Graham v. Florida, parole juvenile sentence of life without for 560 U.S. 130 S.Ct. non-homicide offenders was unconstitutional (2010) (“Because age Miller, ‘the of L.Ed.2d 825 on Relying at 2469. mon.” Id. society the draws point that his sen- 18 is the where Marshall contends it did not childhood many purposes because line for between tence is unconstitutional him judge adulthood,’ to sentence below that district those who were the and allow may charactеristics. on his individual committed age based when the offense was parole life without not be sentenced argu- Eighth Amendment Marshall’s crime.”); Roper v. Sim- a nonhomicide that he his assertion premised on ment is mons, 125 S.Ct. he committed the juvenile when was a (“A (2005) majority 161 L.Ed.2d wrong. simply assertion is But this crime. imposition of the rejected have the States be- Marshall received juvenile offenders under penalty death He of 18 and 20. ages tween required this is and we now hold he an adult when committed therefore Amendment.”). Eighth crime. that based on his claims Marshall juve treats Supreme The deficiency, the district growth hormone they “have dimin differently niles because him to a mental explicitly found greater prospects for culpability ished and that such juvenile and warns physical Miller, They 132 S.Ct. at 2464. reform.” rejected cannot be absent findings factual irresponsible, pe immature and are often reject do not the district clear error. We influences, to bad culiarly susceptible findings.2 But neither do we view court’s malleable. Mar their is still Id. character of whether as relevant issue them thinks that he shares apparently shall juvenile pur- qualifies as a therefore believes there is these traits and Eighth Amendment.3 poses of the differently him no reason not to treat jurispru- Supreme Court’s Under role ignored But he has the crucial well. juveniles concerning dence legal chronological age plays our Amendment, only “age” that type juris Supreme system and Court’s chronological age. is Su- matters according spe prudence. The reasons for limiting types preme decisions Court’s can cial to offenders under 18 protections upon imposed that can be sentences protections not be used to extend the same that a juveniles presuppose all over 18. offenders un- with a chronological an individual recognized that Court has (“We Miller, at 2460 der 18. See chronological age is drawing based on lines life without therefore hold not-entirely-desirable but a nonetheless age of 18 at the parole for those under Roper v. Sim- necessary approach. Eighth of their crimes violates time mons, extended from 16 to 18 the Court on and un- prohibition ‘cruel Amendment’s offenders are consti- ”); age under which v. Flori- punishments.’ usual Graham da, tutionally ineligible penalty. for the death 3553(a), note, however, § did which the district that the U.S.C. court 2. district We appear explicitly below-guideline found Mar- does not to have a sentence in imposing when physically context, at the to have been shall immature a defendant’s men- this case. In that Nor, review, of the offense. our on time legal age might But tal have some relevance. finding. support the record such a would imposition of a at this case is the issue in sentence, which minimum under Presumably sentencing judge a can consider 3. characteristics are Marshall’s individual evaluating maturity his or a when defendant’s pertinent. "history and under 18 characteristics” her legal system 1183. Roper, 543 U.S. that would emerge from explained chronologi- proposed approach its use of Marshall’s The Court juvenile by defines a thе divide as follows: factors other than age cal to establish chronological age essentially would be un- Drawing age the line at 18 is manageable. a impose Before court could course, objections subject, of al- on a defendant over punishments 18 those ways against categorical rules. raised constitutionally being barred from imposed qualities distinguish juveniles juveniles, it would first have to wade disappear from adults do not an through expert testimony tedious to deter- token, By individual turns the same 18. mine whether the age defendant’s mental already have some under 18 attained was commensurate with his chronological maturity level of some adults will never age. impose We refuse to such a difficult reach. For the reasons we have dis- and time-consuming requirement on the cussed, however, a line must be district courts. age point drawn.... The of 18 is the Additionally, an approach ignores society many where draws the line for chronological age in aspects favor of other purposes childhood and adult- between of maturity ways. should cut both Individ- is, conclude, It hood. we uals under 18 with the mental maturity of eligibility ought which the line for death adults would have to be classified as adults to rest. purposes of the Amendment. 574, 125 Id. at S.Ct. 1183. unthinkable; approach This is the Su- preme would Using chronological age accept as the touch- never such an end-run around the constitutional determining protec- stone for whether an individu- chronological juveniles. tions for al is a or an adult is the standard approach legal system. in our “For pur- Marshall contends that he should Act], poses Delinquency [the Juvenile differently be treated from run-of-the-mill ‘juvenile’ person is a who has not attained because, immature offenders due to his eighteenth birthday....” his 18 U.S.C. growth deficiency, immaturity hormone his Chronological age sets the bound- physiological merely psychologi is and not determining aries for whether individu- argument cal. The trouble with this drive, vote, eligible marry, buy al is that the record does not link show direct alcohol, drafted, drink watch cеrtain physiological between his condition and his movies, political and hold certain offices. immaturity. mental One of the sources age-based privileges None these and Marshall cites for information on Human responsibilities ignore chronological age in Deficiency Growth Hormone notes that age. favor of mental children with this disorder have normal intelligence. See Child Growth Founda state, every In almost Marshall could tion, Disorders, http:// Endocrine Gland vote, jury, marry serve on a or without his www.childgrowthfoundation.org/Default. parents’ consent when he committed (last aspx?page=ConditionsGHD visited Roper, crime. See 543 U.S. at 2013). November immaturity S.Ct. 1183. His did not render ineligible him Forgac’s finding these benefits the ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌​​‌​‌​‌​​​‌​​​​​​‌​‌​‌​‌​​​‌‌‌‌​‍law Dr. that Marshall had a by him granted chronological virtue of his mental was based on the brief l&k administered, him age.' immaturity screening Nor does his excuse test he not on punishment imposes upon physiological from the the law Marshall’s disorder. Dr. him a consequence age. Forgac by as of that his own admission not an mandatory 5-year sentence for a a Hormone Defi- Human Growth

expert on under Su- role Marshall’s unconstitutional what would be ciency. asked When in the v. Ala- deficiency played reasoning Miller preme Court’s growth hormone committed, only Dr. drew Forgac crime he bama. that Mar- by theorizing

an indirect link Challenges caused other children stature Additional

shall’s small C. him him, in turn led to to which ostracize challenges his sentence Marshall through por- validation” seek “consensual argu- grounds. These three additional chatting. Forgac Dr. nography and online require only merit and brief ments lack was not de- that Marshall explicitly stated discussion. intellectually.4 delayed velopmentally First, challenges his sen Marshall Furthermore, Forgac’s Dr. observation perceived on a be tence based conflict juvenile is functioned as a Marshall in Congress tween two federal statutes. reality Marshall clearly belied impose district courts to sentences job, structs a full-time college, worked attended “sufficient, necessary, greater but not than credit From all a car and card. and оwned indications, pur several comply was func- to with” enumerated objective Marshall 3553(a). 20-year-old, not a poses a normal the statute. U.S.C. tioning as com provision, contends that this 1/2-year-old. monly “parsimony provi as the known Marshall’s agreed even if we with And sion,” 5-year with the conflicts growth that his defi- hormone assertion required minimum for defendants to “literally him unable ciency rendered receiving pornog guilty knowingly not inclined to grow up,” we would still Marshall believes that his situa raphy. juvenile. a classify him as Considerations than sentence is 5-year tion bright efficiency certainty require necessary accomplish penological juveniles. For adults from separating line deterrence, retribution, incapaci goals of Amendment, an purposes Eighth of the tation, argues He rehabilitation. birthday marks eighteenth individual’s not have foreseen that the Congress could to create bright line. We decline applied minimum would be even for offenders with rare exceptions, unique an offender with his characteristics. conditions. physiological rejected this already This has short, very at the most an Marshall is rigid very argument. “When comes to An immature adult is not immature adult. sentences, acknowledge minimum we of the source of the juvenile. Regardless 3553(a), very section but that still an tension with immaturity, an immature adult is juvenile, cannot be general Marshall is not a statute understood adult. Because mini- authorize courts to sentence below for the Amend- qualify he does juveniles. specifically prescribed mums Con- accorded to protections ment Cecil, F.3d gress.” whether United States v. therefore need not determine We function, quotes and deficient the abstract of an cient visuomotor 4. Marshall's brief adjustment. and social development school achievements that connects brain article growth- article does not indicate that growth See Zvi Laron & But the hormone. human Galatzer, Hormone, have a lower hormone-deficient children Growth Somato- Avinoam youn- perceive Relationship age or themselves to be to Brain mental medin and Prolactin: Function, chronological age. ger than their Marshall’s 7 Brain & Dev. physical argument mental and growth is based on his with article notes children I.Q. I.Q., age, low deficiency defi- not on his have a lower hormone

501 Cir.2010) omitted). (6th (quotation gress delegated has to those 695 officials is no a minimum than authority they routinely No matter how excessive sen- broader case, appears particular enforcing exercise in tence the criminal laws. courts, provision Having does not allow courts informed parsimony prosecutors, imposing point avoid it. The whole and permissible to defendants of the punish- mandatory mínimums is to remove from ment alternatives available under each impose low sen- judges [statutory provision], Congress the discretion ful- has sympathetic defendants. Mar- duty.” tences filled its Id. at 99 S.Ct. 2198. mandatory that the mini- argument principle applies shall’s This even when one of the disregarded mum on his statutory provisions should be based two carries a manda- necessarily characteristics unique tory must minimum sentence and the other does fail. not.

Second, finally, argues Third and Marshall contends that 18 substantively § his sentence is unrea impermissibly grants 2252 sen U.S.C. thought sonable because district court tencing authority prosecutor be it should have impose discretion to a sen intelligible principle sep cause there is no (which tence mandatory below the minimum but arating receipt 5-year carries a sentence) not do so. district mandatory “[A] minimum did court’s ardent pos from (which not). go desire to lower does not make a statuto session does But he has ry mandatory minimum sentence unrea recognize possession failed to of child Cecil, sonable.” 615 at 695. F.3d “When pornography is a lesser included offense of a court and a minimum are receipt pornography. of child See United (6th conflict, Ehle, the minimum wins.” Id. When it States v. 640 F.3d 695 Cir.2011).5 challenged being high, has been too prosecute Whether and minimum sentence is defini charge offense or whether tion substantively reasonable. are lesser-inсluded offense decisions prosecutor’s well within the discretion. III. CONCLUSION

See United States v. Armstrong, U.S. 5-year affirm We Marshall’s sentence. (1996); Batchelder, United States 114, 123-26, LAWSON, U.S. L.Ed.2d Judge. District Concurring judgment. in the The court Furthermore, today Dylan even when two statutes finds Marshall’s sentence conduct, the exact prohibit prose- same does not violate the Amendment adult, charge chronologically cutor can choose which statute to he because Batchelder, 123-126, protection under. he is not afforded the therefore juveniles long provisions given 99 S.Ct. 2198. So as “the under the Court’s plainly range juvenile sentencing at issue cases'. The district demarcate penalties prosecutors judges may court found that Marshall was a impose,” power respects except seek and “the all material for his chrono- Con- receipt possession receipt 5. Ehle dealt with sion is a lesser included offense of ,2252. 2252A, § § the ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌​​‌​‌​‌​​​‌​​​​​​‌​‌​‌​‌​​​‌‌‌‌​‍two statutes are "ma- under which can under But identical,” Dudeck, images terially be violated when the involve real or United States v. contrast, (6th Cir.2011), only § and there is virtual minors. 2252 can 657 F.3d images holding depicting be violated real no to extend Ehle’s minors. reason yet posses- The Sixth Circuit has not held that 502 ic, Third, majority finding crime-producing settings.” the Ibid.

logical age—a reject.” sentencing Because develop because a child’s character is still “do[es] task, Gall v. United an “individualized” ing, “his traits are fixed’ and his ‘less States, 38, 50, 128 S.Ct. 169 552 U.S. likely actions less to be ‘evidence of irre ” (2007), 445 and Marshall is not L.Ed.2d (quoting deprav[ity].’ Ibid. trievable] seeking categorical a ban on 1183). Roper, at 125 543 U.S. S.Ct. juvenile minimum sentences for all offend- juveniles distinguish These features that ers, chronological age I do not find that his prompted Supreme from adults have to the relief he seeks. presents obstacle impose authority Court to limits under the majority’s I Nor do share the concern Eighth upon specific of the Amendment sentencing regime unmanagea- a would be sentencing prac- kinds of sentences and chronological age ble if courts look behind instance, juvenile tices for offenders. For case-by-case on basis assess those imposed the Court has an absolute bar to juveniles factors that render “constitution- imposition penalty upon of the death ally different from adults for purposes age Roper, defendants under 543 U.S. — Alabama, sentencing.” Miller v. U.S. Similarly, at 125 S.Ct. 1183. -, 2464,183 132 S.Ct. L.Ed.2d 407 Court has held unconstitutional sentences (2012). Nonetheless, inappropriate, as parole of life without for offenders counterproductive, unnecessary who commit nonhomicide offenses. Gra- five-year custody imposed sentence ham, 130 S.Ct. 2034. And the manda- case, in this might is not tory imposition life-without-parole of a “grossly disproportionate” to the offense crime, upon juvenile any in- and therefore neither a cruel nor unusual homicide, cluding Eighth contravenes the punishment juveniles form of in the Miller, Amendment. 132 at 2469. S.Ct. justice system. American criminal There- fore, reluctantly I judg- must concur The district court found that Marshall ment of affirming the court the sentence exhibited all the traits identified acceptable under the Amend- Supreme juvenile sentencing in its ment. cases. The uncontested evidence estab- lished that Marshall suffered from human I. growth deficiency hormone that was not Court has on several occa- until diagnosed 2005. That led to a lower- explicated why juveniles sions the reasons than-average intelligence quotient and “an are different from adults when it comes to years.” estimated mental of 15.5 First, imposing criminal punishment. v. F.Supp.2d United States immaturity “underdeveloped their (N.D.Ohio 2012). 489, 498 The district responsibility” sense of is said to lead to court concluded that “at the time of the “recklessness, impulsivity, and heedless was, crime and should be char- [Marshall] Miller, risk-taking.” 132 S.Ct. as, sentencing developmen- acterized for Florida, (quoting Graham v. tally teenager lacking ability immature 67-68, 2011, 2026, 176 L.Ed.2d appreciate illegality pornog- of child Simmons, (2010), Roper raphy viewing easily and to control his 161 L.Ed.2d accessible internet content.” Ibid. (2005)). Second, thought children are majority dispute any be more vulnerable does not negative peer pres- points. simply disregards sure and other influences and “lack the those It them ability to extricate from horrif- themselves as irrelevant because of Marshall’s chrono- But that is incorrect. The logical age. Supreme Nor is the categorical Court’s bar recognized types to certain of Court in Miller the obvious fact sentences limited to chronological juveniles, those who are that these features of adolescence do not is, years under 18 old. In Virgi- Atkins v. instantly disappear upon the arrival of nia, 304, 2242, 536 U.S. 122 S.Ct. 153 birthday, which eighteenth presum- one’s (2002), 335 L.Ed.2d the Court found that ably prompted the Court to observe that “ imposing the death penalty on mentally ‘youth chronological is more than a ” retarded defendants is unconstitutional. Eddings fact.’ at 2467 (quoting Id. v. reaching conclusion, In the Court Oklahoma, 455 U.S. 102 S.Ct. identified the same features diminish- (1982)). 869, 71 L.Ed.2d 1 ed the defendant’s culpability as in the A youth, varying defendant’s its with juvenile 318, cases. at Id. S.Ct. immaturity, of characteristics vulnerabili- (“Because of impairments, their ... [men- character, ty, less-than-fully-developed and tally persons], by retarded definition ... always determining is a factor in an appro- capacities have diminished to understand It priate plain sentence. that “children information, process communicate, and constitutionally are different from adults” to abstract from mistakes and learn from they years because are under 18 of experience, to engage logical in reasoning, age, they but because have not attained impulses, to control and to understand the others.”). maturity Atkins, the level of that characterizes reactions of In the de- Miller, adult, adult mentation. fendant was an See 132 S.Ct. at but he had the age” “mental of years 2464-65. The between and 12 Court’s use of 310, Indeed, old. Id. at 122 S.Ct. 2242. chronological age does not diminish that Court, essence, equated has dimin- Rather, precept. chronological age has capabilities juveniles ished mental of and merely bright been used as a line to define mentally persons retarded as the central categorical prohibitions imposition on the justification categorical for its restrictions of certain kinds of sentences deemed dis- types of sentences for classes of individ- proportionate as a matter constitutional juveniles mentally uals: both retarded law. passage Roper quoted by The from “categorically culpable individuals are less majority point. is a case in average than the criminal.” Roper, 543 “draw[ing] age the line” at 18 for death (quoting U.S. 125 S.Ct. 1183 At- penalty eligibility (raising pre- it from the kins, 2242). S.Ct. vious bright-line limit of estab- Oklahoma, lished in v. Thompson 487 U.S. categorical Marshall does not bar seek imposition mandatory minimum (1988)), the Court defined a class of indi- offenders, upon juvenile sentences of which penalty viduals for whom the death is au- Rather, he counts himself as one. he ar- tomatically disproportionate deemed gues minimum sen- pro- therefore unconstitutional. That pre- tence is unconstitutional because it justify does not nouncement the converse considering vented the district court from рroposition, that the penalty death is con- developmental features that render stitutional for all those over 18 old. him a in all respects, material And it does not render immaterial therefore his sentence is excessive Eighth analysis Amendment the fact that a against culpabili- measured his diminished defendant has the mental ty. characteristics of I that chronological age do not believe juvenile. plays determining argument, role tapes, worth violated join I the court’s theft of of video

and therefore cannot $150 and Unusual Punishment Clause holds the Cruel opinion, which otherwise. Eighth of the Amendment. II. noted that the “thicket” created its de jurisprudence primarily consisted its question presented is whether Helm, cisions Solem mandated five-year prison sentence (1983), 3001, 77 Harme L.Ed.2d 637 in this case violates statute 957, Michigan, 501 111 S.Ct. lin v. U.S. imposed upon Amendment (1991), 2680, 115 L.Ed.2d 836 and Rummel juvenile. argues that a virtual Estelle, 1133, 445 U.S. 63 v. 100 S.Ct. circumstances, all the the sentence under (1980). state L.Ed.2d 382 In Andrade’s Eighth The Amendment is excessive. proceedings, the court ob California punish that “cruel unusual states served that the rule set proportionality inflicted.” not Sentences be] ments [shall by in forth Solem was cast into doubt prohibi that are “excessive” violate that proceeded analyze An Harmelin Atkins, 311, 122 tion. 536 at S.Ct. U.S. taken approach drade’s sentence under the A if it is dis 2242. sentence is excessive Rummel, where Supreme in the Court re is, that proportionate, if it contravenes jected imposed a claim that a life sentence ‘precept justice punish basic of “the gross Texas’s was under recidivist statute graduated for crime ment should be ” felonies ly disproportionate to the theft Roper, 543 proportioned offense.’ [the] predicate the the that formed for sentence. 560, 125 (quoting at Weems U.S. S.Ct. 1183 that An The California court concluded States, 349, 367, 217 30 v. United disproportionate. drade’s sentence was not (1910)). Notably, 54 L.Ed. S.Ct. 793 Supreme Court the held that decision Miller, the Court that a added contrary not to or an unreasonable proportionate must be thе offend “to both clearly that was application federal law Miller, er and the offense.” 132 S.Ct. at by established the Lock Supreme Court. 72-77, at yer, 538 U.S. 123 S.Ct. 1166. proportionality principle But the found Eighth the Amendment is not well de- the Supreme Court has held term-of-years it fined when comes to Eighth require Amendment strict does not Supreme sentence. The has ac- proportionality between the crime and sen- knowledged “that in this precedents [its] Harmelin, at 111 tence. See 501 U.S. clarity.” area have not been a model of 2680; Graham, at 2021. S.Ct. Andrade, Lockyer v. 538 U.S. Supreme As ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌​​‌​‌​‌​​​‌​​​​​​‌​‌​‌​‌​​​‌‌‌‌​‍the Court observed Lock- “In- S.Ct. yer, generally recognized after deed, in determining particular whether a the Harmelin and Unusual Cruel years sentence for a term of can violate Eighth Punishment Clause of the Amend- Amendment, Eighth have not es- we only disparity ment forbids an extreme path tablished a clear or consistent is, sentence, between crime and sen- courts to follow.”Ibid. that are “grossly disproportionate” tences Andrade,

In Lockyer Lockyer, the crime. at 538 U.S. Harmelin, grant (citing Court reversed Ninth 501 U.S. at Circuit’s S.Ct. J., corpus ground (Kennedy, of a writ of habeas on the 111 S.Ct. 2680 concur- Graham, twenty-five-years-to-life ring)); that two sentences see also 130 S.Ct. at imposed stating under strikes” “that (reading California’s “three Harmelin as law,- felony was the Amendment a ‘narrow triggering where contains juveniles. None of those principle,’ that ‘does cases involved proportionality Nonetheless, proportionality general approach strict between to eval- require uating proportionality challenge but rather ‘forbids to a crime and sentence’ term-of-years “grossly juveniles that are sentence for both only extreme sentences ” (citations “comparing to the crime’ and adults calls disproportionate” first omitted)). gravity severity of the offense and the Graham, the sentence.” at 2022. S.Ct. capital punish- the context of “Outside Second, the court “compare must then ment, challenges propor- successful defendant’s sentence with the sentencеs have been tionality particular sentences by received other offenders in the same Rummel, exceedingly rare.” jurisdiction and with the sentences im- 272, 1133. Rummel was convict- posed jurisdic- for the same crime in other pretenses, false obtaining ed of $120.75 “If comparative analysis tions.” Ibid. this punishable a crime least two judgment an initial ‘validate^] [the] years in He prison. but not more than ten grossly disproportionate,’ sentence is the impris- was sentenced as a recidivist to life sentence is cruel and unusual.” Ibid. His possibility parole. onment with the Harmelin, 1005, (quoting 501 U.S. at 111 prior two felonies consisted of fraudulent 2680). S.Ct. use of a credit card to obtain worth of $80 services, goods felony punishable gravity dealing and a The of offenses with years prison; passing pornography two to ten in and a child cannot be overestimat- $28.36, forged punishable check for a crime ed. This court and others have document- years prison. devastating long-lasting two to five in The Su- ed well the and held that Rummel’s life sen- effects that the creation and dissemination preme Court victims, pornography under the recidivist did of child have on its tence state statute emotional, inflicting physical, unusual and punish- psycho- not constitute cruel and Harmelin, Supreme logical damage, permanently. In the sometimes ment. Court Bistline, without the v. upheld possibili- a life sentence See United States 665 F.3d (6th Cir.2012); ty parole possession of more than see also New York Ferber, 8-10, grams of cocaine for an offender with v. 458 U.S. 757-59 & nn. (1982). felony 73 L.Ed.2d 1113 prior no convictions. S.Ct. Neither the district court nor the defen- life Supreme The Court overturned a suggests dant here otherwise. See United ground in that it sentence Solem at 493. F.Supp.2d States v. to significantly disproportionate was constitu prohibited by light crime and of the sentences found Helm’s therefore Harmelin, Rummel, However, Lockyer, Amendment. Helm tional in to conclude that a imprisonment Ewing, had been sentenced to life is difficult five-year sentence for the serious crime of possibility parole without the for utter- $100, ing receiving pornography supрorts a “no account” check for and his minor,- gross disproportionality. were inference of prior felonies also nonviolent contrast, in By concluded that no such Supreme crimes. Court Second Circuit mandatory five- reaffirmed Rummel and found constitu- ference arises from the year in a distribution-of-child- twenty-five years tional a sentence of sentence case, reasoning fifth and that con imposed upon felony life a theft con- California, veniently applies here. United States v. Ewing viction. See v. (2d 11, 24-31, Reingold, 731 F.3d 218-19 Cir. S.Ct. 2013) (noting depicted exploita “the sexual ferent, old on the distributed and how those differences counsel eight-year tion of an against irrevocably sentencing them to a concluding in ease and “that video” added)). prison.” (emphasis in of conviction here is a more the crime lifetime a Applying reasoning five-year golf than the club and vid serious offense great span sentence is too Lockyer, in eotape Ewing thefts supported by rationale. Court’s upheld prison Supreme Court which life”). years to sentences of 25 case, five-year this certainly greater which almost than nec five-year But that the argues essary any sentencing achieve rational disproportionate sentence is to him be- objectives, cannot be considered extreme prevents cause its nature juvenile punish context of considering court from his individual char- ment. There are hundreds of cases all, juvenile. a virtual acteristics as After youthful which offenders have been sen says, he did not hold longer prison tenced to much terms for ju- life-without-parole sentence for See, Uribe, e.g., serious crimes. Lelenoa v. per venile murderers was unconstitutional (C.D.Cal. 11-6522, No. 2013 WL 569598 Alabama; inse Miller v. it “mandate[d] 2013) (denying Feb. an Eighth Amend only pro- that a sentencer follow a certain ment habeas claim petitioner where considering youth an offender’s cess— sentenced to 23 total for five armed attendant imposing characteristics —before juvenile); robberies committed when he was a Miller, particular penalty.” State, 01-09-00790, ung No. Yo - -, (Tex. S.W.3d 2012 668927 WL I do not believe that Miller can be read 2012) 1, App. Mar. (holding that a sentence prohibit mandatory term-of-years to sen- years of 15 for aggravated sexual assault juveniles tences for across the board. It is involving a child 14 under the of was true that the Miller distinguish court did disproportionate where the defendant the statement in Harmelin that “a sen- crime); was 17 at the time of the State v. tence which is not otherwise cruel and 248, Pettigrew, N.C.App. 204 693 S.E.2d simply unusual” does not “becom[e] so be- (2010) (holding 698 that a sentence of 32 to ” Harmelin, it ‘mandatory,’ cause is 501 years 40 was not disproportionate for con 995, 2680, 2680, 111 U.S. S.Ct. 111 S.Ct. victions of sexual assault of a minor stem by observing that nothing Harmelin “had ming frequent from defendant’s abuse of to do with children and purport did not to younger his relative' when defendant was apply holding sentencing juve- its of old); years between 11 and 16 v. Cuvas Miller, nile offenders.” 132 at 2470. State, 679, Ga.App. 306 703 S.E.2d 116 However, premise the Miller court’s main (2010) (upholding years a sentence of 10 “youth was that purposes matters for of imprisonment robbery for armed where meting out punish- the law’s most serious years the defendant was 13 old the time ments,” added)— id. at 2471 (emphasis crime); State, of the Stovall v. 05-95- meaning parole— death and life without 01862, 13, (Tex.App. Aug. 1997 WL 459082 1997) and therefore the failure to consider indi- (holding that a of sentence 20 vidual types (the characteristics in those aggravated statutory assault maxi mum) cases is unconstitutional. id. at See 2469 was not disproportionate where the (“Although we do not foreclose a sentenc- defendant was at the time of the crime .15 ability er’s [impose life-without-parole] to only and had a misdemeanor criminal rec ord). cases, judgment in homicide require we Despite immaturity Marshall’s characteristics, to juvenile-like take into account children are I how dif- cannot con- custody pornography, is which can often five-year that the sentence times elude conduct, virtually to be identical to the crime but nonethe grossly disproportionate Therеfore, vastly I guilty. con- less results different pleaded which he ranges.” judgment affirming sentencing United States v. Rob cur the court’s (6th inson, 669 F.3d 776 n. Cir. against Marshall’s 2012); Dudeck, challenge. see also United States v. Amendment (6th (acknowl Cir.2011) 657 F.3d “ ‘[tjhese III. edging statutory provisions ”) ... (quoting identical.’ [are] materially points Two more deserve discussion. Miller, United States v. 64 n. F.3d court found that a sentence of The district (3d Cir.2008)). excessive, unjust, great- “60 months is necessary applied to this Defen- er than Marshall contends that because there is F.Supp.2d at 499. dant.” no real difference between the crime of record, quar- it is difficult to Based on the possession of child and re injustice rel with that conclusion. ceipt pornography, of child save that the this case results from the combination latter carries a minimum sen government’s charge decision to tence, Congress unlawfully delegated what receipt posses- with rather than defendant judicial sentencing authority to amounts to rigidity and the pornography, sion of child majority the executive branch. The re mandаtory minimum of the sentence— jects argument, obligated as it is to which divests the district court discre- do, prosecutor because the has broad dis individual characteristics tion consider charge present cretion to select the attempting impose a sentence that grand jury. United States v. Arm “sufficient, but not than neces- strong, 517 U.S. 116 S.Ct. sary” to reflect the seriousness of the (1996); Wayte see also deterrence, crime, protect pub- achieve States, United lic, special and address the defendant’s (1985); 1524, 84 L.Ed.2d 547 Bordenkircher (2). 3553(a)(1), § needs. 18 U.S.C. Hayes, v . 663, might One

A. government that would take expect deciding charge to receiving pornogra- great The crime of child care when a mandatory that a minimum phy prohibited by is 18 U.S.C. crime carries sentence, 2252(a)(2); an punishable by especially § it is a sen- identical mandatory a sentence is years up tence of at least five and crime without 2252(b)(1). years. penologi § The crime of available and will serve the same Id. goals. charging cal But the decision possessing prohibited is 2252(a)(5); wоefully § uninformed and by punishable 18 U.S.C. it is this case (if Nonetheless, “an exer up irresponsible. a to 20 even sentence minors). cannot be prepubescent prosecutorial cise of discretion images involve successfully merely on the mandatory challenged minimum sentence There is no 2252(b)(2). arbitrary; ground § that it is irrational or possession. Id. prosecutorial charging deci “receipt” define the terms the realm of statutes do not stated, sion's, is for only invidious discrimination “possession.” or This court has Moore, alone, F.3d however, bidden.” States v. “standing the current United (7th Cir.2008). Although gov statutory principled scheme makes no dis- in this ease can be receiving judgment ernment’s possessing tinction between and legal legislation require to sec- The would “[t]he there is no basis questioned, state, in of rea- choice of the written statement ond-guess government’s [to] (a) sons, the factors under subsection charges. require imposition of a sentence below the Cong. statutory minimum.” S. 113th B. 2(g)(3). co-sponsored by § The Bill is prevail on his Nor can thе defendant Leahy. appears Patrick It Senator mandatory minimum ‍‌‌​‌‌​‌‌‌​​‌​‌‌‌​​‌​‌​‌​​​‌​​​​​​‌​‌​‌​‌​​​‌‌‌‌​‍argument sponsors the intent of the Bill’s is to allow parsimony pro yield sentence must measure of sentencing courts broader 3553(a), major vision in 18 U.S.C. and.give Congress’s full discretion effect ity correctly prece This court’s states. sentencing goals stated reflected in section sentencing that a dents have established 3553(a). Reevaluating See the Effective- mandatory that a court’s determination Mandatory Minimum ness Federal injustice is insufficient sentence works Hearing Sentences: on S. Before disregard itself to the mandate. Unit Comm, (2013) (State- Judiciary on the S. (6th Cecil, ed States v. 615 F.3d Leahy) (referencing ment of Sen. Patrick Cir.2010) “[wjhen (declaring that a court mandatory minimum sentences and ac- conflict, mandatory minimum are in and I knowledging, “When look the evidence wins”). Furthermore, the minimum stat now, have I wrong. we realize we were mandating trump utes minimum sentences approach reliance on a one-size-fits-all Our general the more command of section sentencing great has been mistake. Ibid, 3553(a). (quoting United States v. unfair, Mandatory costly, are minimums (6th Franklin, 499 F.3d 585-86 Cir. country do not make our safer.... 2007)). curtailing sentencing And a court’s Paul I judges, Senator and believe mini by requiring mandatory discretion legislators, position are in the best eval- mum separa sentences does not offend the appro- uate individual and determine cases powers tion of doctrine. United States sentences.”). priate (6th Cir.2008). Odeneal, 406, 414 517 F.3d 619, however, Senate Bill is not the law If there to be relief for the occasional present. legislation Until i1>—or like Dylan defendant like Marshall for whom a enacted, Dylan it—is defendants like Mar- minimum sentence “is exces- shall are out of luck. The five- sive, unjust, necessary,” than year imposed in this case is not Congress. from must come March of unconstitutional, despite the defendant’s year, this Rand Paul Senator introduced S. age, applicable mental under stat- Safety the Justice Valve Act of utes, the district court was to im- bound which would amend 18 U.S.C. 3553 to reasons, pose it. For those I concur in the (g), add subsection that would state: judgment affirming the sentence. (1) Notwithstanding any General rule.— than provision of law other this subsec-

tion, may impose a the court statutory

below a minimum if the court necessary

finds that it is to do so in violating require-

order to avoid (a). of subsection

ments

Case Details

Case Name: United States v. Dylan Marshall

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 21, 2013

Citation: 736 F.3d 492

Docket Number: 16-2440

Court Abbreviation: 6th Cir.