                            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.




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