                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          July 28, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                         No. 05-8077
                                                          (D. W yoming)
 BILLY CUNNINGHAM ,                                  (D.Ct. No. 04-CR-213-B)

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      After pleading guilty to one count of attempted child exploitation in

violation of 18 U.S.C. § 2251(a) and (e), Billy Cunningham w as sentenced to,




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
inter alia, 180 months imprisonment, the statutory minimum. He challenges the

length of his sentence, claiming the statutory minimum violates his Eighth

Amendment constitutional rights and the separation of powers doctrine.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM .

I.     Background

       After four years in the United States Navy and twenty-four years as an

employee of the United States Postal Service, Billy Cunningham retired and

accepted a part-time position at Lowe’s Home Improvement Center in Kingston,

M assachusetts. After his retirement, Cunningham purchased a computer for his

personal use. On September 28, 2004, Cunningham entered a “Yahoo!” chat

room identified for “11-13 year olds O NLY.” H e initiated communication with

“kaylac93,” w ho purported to be an eleven-year-old girl. Unbeknownst to

Cunningham, “kaylac93" was the moniker of an undercover United States

Immigration and Customs Enforcement (ICE) officer, Special A gent Nicole

Balliet.

       Cunningham invited “kaylac93" into a private chat room where he asked

whether she owned a digital camera and discussed the possibility of her sending

him nude pictures of herself. He also expressed a willingness to travel to

W yoming to engage in sexual activity with her. Later the same day, he initiated

an instant message discussion for approximately two hours. He again discussed

engaging in sexual acts and stated he was comfortable with her age. He e-mailed

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nude pictures of himself during the instant message conversation and discussed

his desire that she reciprocate. The ICE agent was able to obtain Cunningham’s

personal identifying information from the e-mail address.

      Approximately one week later, Cunningham again initiated an instant

message conversation. He again discussed traveling to Cheyenne, W yoming, to

engage in sexual activity and informed her he would be sending her a digital

camera to take photographs in various stages of undress. He also offered to send

her intimate apparel. Later, he sent an e-mail confirming he had mailed the

camera. Cunningham’s next e-mail promised her he would mail thong and g-

string underw ear.

      Agent Balliet received the camera on October 11, 2004. 1 After a search of

Cunningham’s residence, agents found the receipt for the camera. Cunningham

acknowledged his actions and provided agents with various photographs of

underage girls, some of w hich were classified as child pornography. He also

admitted he had met a teenage girl on the Internet who lived in San Antonio,

Texas, and he had been discussing sexual topics with her in the same manner as

his conversations with “kaylac93.” 2 Seizure of Cunningham’s computer revealed


      1
         The presentence report lists receipt of the camera occurring on October 11, 2005
and the search of Cunningham’s residence on December 9, 2005. Given that
Cunningham was indicted in November 2004, and pled guilty in May 2005, we assume
the reference to dates later in 2005 are typographical errors. In any event, the dates do
not affect our analysis.
      2
          This contact was another ICE agent.

                                           -3-
fifteen to twenty images of child pornography.

      Cunningham w as indicted for attempted child exploitation and entered a

plea of guilty to the charge on M ay 16, 2005. The plea agreement provided that

(1) the November 1, 2003 Guidelines M anual be used, (2) the intended victim was

eleven years old, and (3) Cunningham used a computer in connection with the

offense. The plea agreement also identified USSG § 2G2.1 as the appropriate

guideline for determining his advisory sentence. A presentence report was

prepared, to which there were no objections. The report calculated Cunningham’s

base offense level at twenty-seven. An additional four offense levels were added

because his intended victim was eleven years old and another two because he used

a computer in the commission of his offense. Three offense levels were deducted

because Cunningham timely accepted responsibility, resulting in a final offense

level of thirty. Because Cunningham had no prior criminal history, he qualified

for Criminal History Category I. Under this calculation, the applicable advisory

guideline sentence ranged from 97 to 121 months imprisonment. However, the

statutory minimum sentence required imprisonment for 180 months.

      At sentencing, Cunningham did not object to the guideline calculations but

lodged a general constitutional objection to the statutory minimum sentence.

Cunningham did not ask the court to consider his sentence unconstitutional

because it violated the Eighth Amendment as cruel and unusual punishment or

because it violated the separation of powers doctrine. The district court noted the

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disparity between the guideline range and the minimum mandatory sentence

required by statute. It expressed its frustration with the seemingly conflicting

Congressional instructions and, with regret, imposed the 180 month mandatory

minimum. This timely appeal followed.

II.   Discussion

             1.     Eighth Amendment

      Cunningham contends “[t]he mandatory minimum of 18 U.S.C. § 2251(a)

and (e) may not be unconstitutional per se, but it is grossly disproportionate as

applied to [him] and is, therefore, unconstitutional.” (A ppellant’s Br. at 16.)

N orm ally, w e review de novo whether a criminal sentence violates the Eighth

Amendment’s prohibition against cruel and unusual punishment. United States v.

Angelos, 433 F.3d 738, 750 (10th Cir. 2006). In this case, however, because

Cunningham raised only a vague and non-specific objection, we review his claim

for plain error. United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir.) (en

banc), cert. denied, 126 S.Ct. 303 (2005). To find plain error, we must find (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.) (en

banc), cert. denied, 126 S.Ct. 495 (2005). W e apply the plain error standard of

review less rigidly when reviewing a potential constitutional error. Id.

Nonetheless, we need only address the first prong of the plain error test here.

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      The Eighth Amendment provides: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In

determining whether a sentence for a period of years constitutes cruel or unusual

punishment (rather than the manner of punishment), the Supreme Court has

recognized, “[t]he Eighth Amendment . . . contains a narrow proportionality

principle that applies to noncapital sentences.” Ewing v. California, 538 U.S. 11,

20 (2003) (internal quotation omitted). The Court has acknowledged it has “not

established a clear or consistent path for courts to follow” when faced with a

proportionality question. Lockyer v. Andrade, 538 U.S. 63, 72 (2003). W e know ,

however, the Eighth Amendment “does not require strict proportionality between

crime and sentence, . . . . forbid[ding] only extreme sentences that are ‘grossly

disproportionate’ to the crime.” Ewing, 538 U.S. at 11-12 (quoting Harmelin v.

M ichigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and

concurring in the judgment)). Thus, “[t]he gross disproportionality principle

reserves a constitutional violation for only the extraordinary case.” Lockyer, 538

U.S. at 77. This is not such a case.

      An appellant has a high hurdle to overcome to demonstrate his sentence

violates the Eighth Amendment. In Angelos, we catalogued the Supreme Court

precedent rejecting Eighth A mendment claims based on prison sentences for a




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term of years. Angelos, 433 F.3d at 750-51. 3 Cunningham does not explain how

the fifteen years imprisonment he received for attempting to sexually abuse an

eleven year old girl is any more grossly disproportionate than a forty year

sentence for possession and use of marijuana. See Hutto, 454 U.S. at 375.

Cunningham argues, “[t]o insure justice and equity, . . . it is vital that the

sentencing judge have a manner and means by which he can identify the

defendant as an individual.” (Appellant’s Br. at 15.) W hile this may be a

heartfelt belief, the Supreme Court has “drawn the line of required individualized




      3
             [T]he Supreme Court has rejected Eighth Amendment
             challenges to the following sentences:

      • A life sentence, with the possibility of parole, under a Texas recidivist
      statute for successive convictions of (1) fraudulent use of a credit card to
      obtain $80 worth of goods or services, (2) passing a forged check in the
      amount of $28.36, and (3) obtaining $120.75 by false pretenses. Rummel v.
      Estelle, 445 U.S. 263, 285 (1980).

      • A forty-year sentence for possession and distribution of 9 ounces of
      marijuana. Hutto v. Davis, 454 U.S. 370, 375 (1982).

      • A life sentence, without the possibility of parole, for possession of more
      than 650 grams of cocaine. Harmelin, 501 U.S. at 1005.

      • A twenty-five year to life sentence imposed under a California recidivist
      statute for the offense of felony grand theft (i.e., stealing three golf clubs
      worth approximately $1,200). Ewing, 538 U.S. at 30-31.

      • Two consecutive twenty-five-year to life sentences under a California
      recidivist statute for two counts of petty theft. Lockyer, 538 U.S. at 77.

Angelos, 433 F.3d at 750-51.

                                            -7-
sentencing at capital cases, and see[s] no basis for extending it further.”

Harm elin, 501 U.S. at 996. M oreover, “[t]here can be no serious contention . . .

that a sentence which is not otherw ise cruel and unusual becomes so simply

because it is ‘mandatory.’” Id. at 995.

      “[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.” Id. at 998 (Justice Kennedy concurring in part and

concurring in the judgment) (internal quotation omitted) . The statute of

conviction, 18 U.S.C. § 2251, was amended by Section 103 of the PROTECT Act

on April 30, 2003. 4 Prior to amendment, the m andatory minimum sentence for a

violation was ten years. The amendment to a minimum of fifteen years was

explained in the House Conference Report:

      The increased mandatory minimum sentences are responsive to real
      problems of excessive leniency in sentencing under existing law. For
      example, the offenses under chapter 117 of title 18, United States Code,
      apply in sexual abuse cases involving interstate movement of persons
      or use of interstate instrumentalities, such as luring of child victims
      through the Internet. Courts all too frequently impose sentences more
      lenient than those prescribed by the sentencing guidelines in cases
      under chapter 117, particularly in situations where an undercover agent
      rather than a child was the object of the enticement. Yet the offender's
      conduct in such a case reflects a real attempt to engage in sexual abuse
      of a child, and the fact that the target of the effort turned out to be an
      undercover officer has no bearing on the culpability of the offender, or
      on the danger he presents to children if not adequately restrained and
      deterred by criminal punishment. Likewise, courts have been disposed


      4
        The “PROTECT ACT” is the common reference to the "Prosecutorial Remedies
and Other Tools to end the Exploitation of Children Today Act of 2003."

                                          -8-
          to grant downward departures from the guidelines for child pornography
          possession offenses under chapter 110, based on the misconception that
          these crimes are not serious.

H.R. Conf. R. No. 10-866, Joint Explanatory Statement at 51 (commenting on

Title 1 § 103(b)(A)). The comment patently illustrates a specific Congressional

intent.

          W hile Cunningham may have been a model citizen up to his retirement, he

pled guilty to attempting to persuade an eleven year old girl to pose nude and

send the picture to him. He e-mailed the child naked pictures of himself. In on-

line chats, he stated he would travel to W yoming if she would have oral and

vaginal intercourse. In addition, Cunningham admitted this w as not his only

victim. Considering these facts, there is no question Cunningham’s sentence was

not disproportionate to his behavior.

          Cunningham argues the disparity between the mandatory minimum sentence

imposed in his case and the applicable guideline range is evidence that his

sentence is disproportionate. This argument is unconvincing. Cunningham’s

guideline calculation was derived from the November 5, 2003 Guidelines M anual.

However, the applicable guideline, USSG §2G2.1, was amended to reflect the

PROTECT Act changes to § 2251. Although the PROTECT Act was effective on

April 30, 2003, the associated amendments to the guidelines did not appear until

the November 1, 2004 Guidelines M anual was issued. Therefore, had

Cunningham w aited only five weeks later to commit his criminal acts, the 2004


                                           -9-
edition would have applied. Under the amended guideline, his sentencing range

would have been 168 to 210 months, a sentencing range encompassing the

sentence he received. Accordingly, the district court did not violate

Cunningham’s Eighth Amendment rights when applying the mandatory minimum

sentence.

      2.     Separation of Powers

      Cunningham claims the minimum sentence of 180 months violates the

separation of pow ers doctrine. W ithout citing to authority, he declares,

“Congress has not imparted or created an[y] measure or mechanism by which a

trial court may deviate from a mandatory minimum sentence imposed under 18

U.S.C. § 2251(a) or [(e)]. Therefore, the legislature has improperly divested the

judiciary of its discretion and has prohibited it from any measure to avoid

imposition of a cruel and unusual sentence as applied in individual cases.”

(A ppellant’s Br. at 21.) Again, this argument must be review ed under a plain

error standard.

      W e need not tarry long. Cunningham’s argument is clearly contrary to

Supreme Court precedent. In Lujan v. Defenders of Wildlife, the Supreme Court

observed that “the Constitution's central mechanism of separation of powers

depends largely upon common understanding of what activities are appropriate to

legislatures, to executives, and to courts.” 504 U.S. 555, 559-60 (1992). The

Constitution expressly vests the legislative power in Congress, and confers on

                                         -10-
Congress the power to enact those laws that are “necessary and proper for

carrying into Execution” its pow ers. U.S. Const., Art. I, §§ 1, 8. Thus,

“Congress has the power to define criminal punishments w ithout giving the courts

any sentencing discretion.” Chapman v. United States, 500 U.S. 453, 467 (1991);

see also Ex parte United States, 242 U.S. 27, 42 (1916) (“[T]he authority to

define and fix the punishment for crime is legislative, and . . . the right to relieve

from the punishment fixed by law . . . belongs to the executive department.”). A s

a result, the application of the mandatory minimum sentence of 180 months

imprisonment to Cunningham did not violate the separation of powers doctrine.

AFFIRM ED.

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




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