Lead Opinion
DONALD, J., jоined, and LAWSON, D.J., joined in the result. LAWSON, D.J. (pp. 501-08), delivered a separate opinion concurring in the judgment.
OPINION
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 аddress 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.
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
Indeed, Marshall’s sizе 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 thе child may also be “chubby” as growth hormone helps to 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_Hor-mone_Deficiency.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 axid Patients, 4 (June 2010), available at http://www.childgrowthfoundation.org/ CMS/FILES/03_GrowthHormone Deficiency.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 meiital age of l&k. 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, PagelD #44. He found that Marshall “appealed] to be quite immature for his chronological age due to his condition, ... which inhibited his growth and maturation physicаlly, emotionally and socially.” Id. “It is quite
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 tо administer and produces both an I.Q. score and an estimated mental age. R. 36, Hrg. Tr., PagelD # 192, 206. It involves asking the subject to match pictures with words .that “[sjtart out pretty concrete or simple” and “become increasingly more abstract.” Id. at PagelD # 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)6 was consistent with his academic performance. Id. at PagelD # 194. However, he noted that Marshall was “not developmentally delayed intellectually.” Id. at PagelD # 199.
Dr. Forgac explained that the adolescence period does not end at 18 but actually extends into an individual’s mid-20s. “[Djevelopmental 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 PagelD # 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 levеl.” Id. at PagelD # 203. He believed that Marshall “viewed himself as a much younger individual and was functioning as a much younger individual.” Id.
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 PagelD # 211. He identified several “different aspects of maturation”: chronological age, physical age, social age, emotional age, and intellectual age. Id. at PagelD # 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 neu-ropsychologist friend who “did a little bit of a search.” Id. at PagelD #214. Dr. Forgac believed that Marshall experienced
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 PagelD # 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 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,
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,
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.’” - U.S. -,
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 clеar error. We do not reject the district court’s findings.
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,
The Supreme Court treats juveniles differently because they “have diminished culpability and greater prospects for reform.” Miller,
The Supreme Court has recognized that drawing lines based on chronological age is а 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.
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 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,
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 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 hormonе 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 l&k was based on the brief screening test he administered, not on Marshall’s physiological disorder. Dr. Forgac was by his own admission not an
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 dоes 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 specifically prescribed by Congress.” United States v. Cecil, 615 F.3d
Second, Marshall cоntends 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,
Furthermore, even when two statutes prohibit the exact same conduct, the prosecutor can choose which statute to charge under. Batchelder,
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,
III. CONCLUSION
We affirm Marshall’s 5-year sentence.
Notes
. 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,
. 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.
. 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.
. Marshall's brief quotes the abstract of an article that connects brain development to human growth hormone. See Zvi Laron & Avinoam Galatzer, Growth Hormone, Somato-medin 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.
. 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,
Concurrence Opinion
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 Mаrshall was a juvenile in all material respects except for his chrono
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,
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,
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,
The majority does not dispute any of those points. It simply disregards them as irrelevant because of Marshall’s chrono
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 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,
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,
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,
II.
The question presented is whether the five-year prison sentence mandated by the statute in this case violates the Eighth Amendment when imрosed 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,
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,
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 Eighth Amendment. The Court noted that the “thicket” created by its jurisprudence consisted primarily of its decisions in Solem v. Helm,
The Supreme Court has held that the Eighth Amendment does not require strict proportionality between the crime and sentence. See Harmelin,
“Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Rummel,
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 рossibility 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,
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,
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,
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,
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,
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,
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,
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 Defendant.” Marshall,
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,
Marshall contends that because there is no real difference between thе 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,
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,
If there is to be relief for the occasional defendant like Dylаn 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: 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.”).
(1) General rule. — Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).
Senate Bill 619, however, is not the law at present. Until i1> — 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.