                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0445n.06

                                           No. 16-5515

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jul 27, 2017
UNITED STATES OF AMERICA,                                )                   DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )     ON APPEAL FROM THE
v.                                                       )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE WESTERN
LARRY AUBREY HENSON,                                     )     DISTRICT OF TENNESSEE
                                                         )
       Defendant-Appellant.                              )


BEFORE: SILER, SUTTON, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Defendant Larry Henson pleaded guilty to one

count of possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), and was sentenced to a

below-Guidelines term of 110 months in prison. Henson reserved the right to appeal the denial

of his motion to dismiss the indictment on the grounds that § 2252(a)(4)(B) is unconstitutionally

overbroad and violates the First Amendment because it prohibits a substantial amount of

protected speech by minors, i.e., “sexting” and other self-publication of sexually explicit images;

and also violates the Equal Protection and Due Process Clauses. We AFFIRM.

                                                I.

       A federal grand jury returned a two-count indictment on April 19, 2007, charging Henson

with possession of child pornography, and seeking forfeiture of the devices used in that offense.

When Henson failed to appear for a hearing, an arrest warrant was issued. The case remained on

the district court docket with Henson listed as a fugitive. PSR ¶ 19. The indictment was

dismissed in March 2011 without prejudice, after attempts to locate Henson were unsuccessful.
No. 16-5515, United States v. Henson


PSR ¶ 48. The unobjected-to PSR states that “[a]n Interpol Red Notice (international notice of a

wanted person) was issued in late 2014,” and authorities later located Henson in Argentina. PSR

¶ 20. After being held in Argentine custody for a time, Henson voluntarily returned to the

United States and was taken into custody in Georgia. PSR ¶¶ 20, 48.

       A second indictment, returned in November 2014, again charged Henson with possessing

child pornography and included a forfeiture provision. PSR ¶ 3. Henson moved to dismiss the

indictment pro se because he wanted to present issues that his court-appointed federal public

defender believed “could not [be] present[ed] based on existing law.” PID 47. After the district

court denied Henson’s motion, he entered into a plea agreement, reserving the right to appeal the

denial of his motion to dismiss. Under the plea agreement, the parties agreed to recommend a

sentence of 110 months.

       At the change-of-plea hearing, the Government stated:

       If we had gone to trial, the Government would have presented through testimony
       and admissible evidence the following:

       In approximately 2006 FBI agents located in the Western District of Tennessee in
       Memphis were investigating the exchange of child pornography online. As part
       of the process, they would obtain search warrants for a suspect’s computer or
       online account, identify people who were trading with the suspect, and then
       develop additional cases.

       One of those individuals used the screen name lonewolfntn@aol.com.

       Agents got subscriber information from AOL through subpoena including the
       name and city of residence of the “Lone Wolf” account owner, and that person
       was identified as Larry Henson of Memphis.

       Agents located Mr. Henson . . . In the [first] interview, which was noncustodial,
       Mr. Henson admitted that he did subscribe to AOL. He did participate in
       sexually-themed chat rooms. He said that people in the rooms would advertise
       the chance to share photos and invited those in the room to add their name to the
       sharing list. He received and distributed images through these lists. He admitted
       having received images of minors engaging in sexually explicit conduct and
       saving those to his computer.

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       Mr. Henson was also interviewed again in March, 2007; and during that
       conversation Mr. Henson noted that he sent images in the chat room because you
       had to send them in order to receive them.

       He let agents review his computer and AOL account and a Yahoo account and he
       provided the computer and also directed the agents to the files where those images
       would be found.

       Forensic review of the computer revealed more than 600 images of minors
       engaging in sexually explicit conduct. Agents also saw there an image of a minor
       female from a case that was prosecuted in the Western District of Tennessee. The
       female had been the victim in another case. It was prosecuted here. She was
       under 18 years old when the picture was taken, and she was identified by the
       initials “N.M.Y.”
       ....
       That would have been the Government’s proof.

PID 165-67/Tr. Change of Plea Hrg.

       The PSR provides further detail:

       11. On March 2, 2007, a review was conducted of the G4 E-MAC computer
       owned by Larry Henson. The review included an analysis of the software
       programs, Internet browsing history, directory structure, active files, saved e-
       mails and a search for sexually explicit images of children . . . . The Netscape
       browser history contained links to the following sites:
              Beam.to/jaks
              Beam.to/little boys
              Kinkeyextreme.com/familysex
              Fucking-boys.com

       The above sites’ names appeared in images found on the hard drive that depicted
       minors engaged in sexually explicit behavior . . . .

       12. The computer’s directories included two directories titled “pictures” and
       “movies” and their subdirectories . . . The images depicting minors engaged in
       sexually explicit behavior were primarily found in the pictures,
       pictures/downloads, pictures/downloads/yng, and movies directories. There were
       approximately 4,600 digital images and 235 digital movie files that were sexually
       explicit in these directories. Of these files, 440 were image files and 4 were
       movie files . . . that depicted prepubescent minors engaged in sexually explicit
       behavior.
       ....
       14. The agents noted that one file titled !toiletsuck.jpg,” which depicted a topless
       prepubescent female minor engaged in oral sex with an adult male, was found in

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No. 16-5515, United States v. Henson


       three different directories . . . Another file titled “youn.jpg1jpg” depicted a fully
       naked prepubescent female being penetrated vaginally by an adult male using his
       penis . . . .

PSR at 5-6.

       The PSR calculated the sentencing guidelines range at 235 to 293 months (total offense

level of 38 and criminal history category I), but determined that the controlling term is 120

months because the statutorily authorized maximum sentence of ten years is less than the range

minimum. PSR ¶ 70.

       At sentencing, the district court adopted the PSR’s findings of fact and guidelines

calculations without objection. PID 178-79. The district court granted the Government’s motion

for a three-point reduction for acceptance of responsibility and imposed a 110-month sentence.

Henson’s court-appointed counsel moved to withdraw after he timely filed a notice of appeal.

This court granted the motion and appointed new counsel. CM/ECF R.E. 9.

                                                II.

       We review de novo the district court’s ruling on the constitutionality of § 2252(a)(4)(B),

United States v. Rose, 522 F.3d 710, 716 (6th Cir. 2008), as well as its legal conclusions on a

motion to dismiss an indictment, United States v. Grenier, 513 F.3d 632, 636 (6th Cir. 2008).

                           A. First Amendment Claim - Overbreadth

       Henson’s overbreadth claim is brought as a defense to prosecution. As the Supreme

Court stated in Los Angeles Police Department v. United Reporting Publishing Corp.:

       [T]he allowance of a facial overbreadth challenge to a statute is an exception to
       the traditional rule that “a person to whom a statute may constitutionally be
       applied may not challenge that statute on the ground that it may conceivably be
       applied unconstitutionally to others in situations not before the Court.” [New
       York v.] Ferber, [458 U.S. 747,] 767 [(1982)] (citing Broadrick [v. Oklahoma],
       [413 U.S. 601, 610 (1973)]). This general rule reflects two “cardinal principles”
       of our constitutional order: the personal nature of constitutional rights and the
       prudential limitations on constitutional adjudication. 458 U.S., at 767 []. “By

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No. 16-5515, United States v. Henson


       focusing on the factual situation before us, and similar cases necessary for
       development of a constitutional rule, we face ‘flesh and blood’ legal problems
       with data ‘relevant and adequate to an informed judgment.’” Id., at 768 []
       (footnotes omitted). Even though the challenge be based on the First
       Amendment, the overbreadth doctrine is not casually employed. “Because of the
       wide-reaching effects of striking down a statute on its face at the request of one
       whose own conduct may be punished despite the First Amendment, we have
       recognized that the overbreadth doctrine is ‘strong medicine’ and have employed
       it with hesitation, and then ‘only as a last resort.’” Id., at 769 [] (citing Broadrick,
       supra, at 613 []). “‘[F]acial overbreadth adjudication is an exception to our
       traditional rules of practice and . . . its function, a limited one at the outset,
       attenuates as the otherwise unprotected behavior that it forbids the State to
       sanction moves from “pure speech” toward conduct and that conduct-even if
       expressive-falls within the scope of otherwise valid criminal laws . . . .’” 458
       U.S., at 770 [] (quoting Broadrick, supra, at 615 []). See also Board of Airport
       Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 [] (1987).

528 U.S. 32, 38–40 (1999).1 “[P]articularly where conduct and not merely speech is involved,” a

statute will not be invalidated as unconstitutionally overbroad unless it “reaches a substantial

number of impermissible applications.” New York v. Ferber, 458 U.S. 747, 770–71 (1982).

       Further, the Supreme Court observed in United States v. Williams:

       According to our First Amendment overbreadth doctrine, a statute is facially
       invalid if it prohibits a substantial amount of protected speech. The doctrine seeks
       to strike a balance between competing social costs. Virginia v. Hicks, 539 U.S.
       113, 119–120 [] (2003). On the one hand, the threat of enforcement of an
       overbroad law deters people from engaging in constitutionally protected speech,
       inhibiting the free exchange of ideas. On the other hand, invalidating a law that in
       some of its applications is perfectly constitutional—particularly a law directed at
       conduct so antisocial that it has been made criminal—has obvious harmful effects.
       In order to maintain an appropriate balance, we have vigorously enforced the
       requirement that a statute’s overbreadth be substantial, not only in an absolute
       sense, but also relative to the statute’s plainly legitimate sweep. See Board of
       Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485[] (1989); Broadrick v.
       Oklahoma, 413 U.S. 601, 615 [] (1973). Invalidation for overbreadth is “‘“strong
       medicine”’” that is not to be “casually employed.” Los Angeles Police Dept. v.

1
  See also The Supreme Court 2007 Term, 122 Harv. L. Rev. 385, 385, 390 (2008) (noting that
overbreadth claims “have been almost invariably rejected by the Supreme Court when brought as
defenses to prosecution . . . No criminal defendant has won an overbreadth claim without
showing that a statute was applied unconstitutionally since 1981’s Schad v. Borough of Mount
Ephraim[, 452 U.S. 61 (1981)].”


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No. 16-5515, United States v. Henson


          United Reporting Publishing Corp., 528 U.S. 32, 39 [] (1999) (quoting Ferber,
          458 U.S., at 769 []).

553 U.S. 285, 292–93 (2008); see also Speet v. Schuette, 726 F.3d 867, 872 (6th Cir. 2013).

          The first step in a facial overbreadth analysis is to construe the challenged statute; it is

impossible to determine whether a statute reaches too far without first knowing what the statute

covers.     Williams, 553 U.S. at 293.      The second step is to determine whether the statute

“criminalizes a substantial amount of protected expressive activity.” Id. at 297; see also New

York v. Ferber, 458 U.S. 747, 769–70 (1982).

                                                   1.

          Section 2252(a)(4)(B), titled “Certain activities relating to material involving the sexual

exploitation of minors,” provides in pertinent part:

          (a) Any person who—
                  ....
          [(4)](B) knowingly possesses . . . 1 or more books, magazines, periodicals, films,
          video tapes, or other matter which contain any visual depiction that has been
          mailed, or has been shipped or transported using any means or facility of
          interstate or foreign commerce or in or affecting interstate or foreign commerce,
          or which was produced using materials which have been mailed or so shipped or
          transported, by any means including by computer, if—

                 (i)        the producing of such visual depiction involves the use of a
                            minor engaging in sexually explicit conduct; and

                 (ii)       such visual depiction is of such conduct; shall be punished as
                            provided in subsection (b) of this section.

18 U.S.C. § 2252 (emphasis added). “Minor” means any person under the age of eighteen years.

18 U.S.C. § 2256(1).        “Sexually explicit conduct” means “actual or simulated (i) sexual

intercourse including genital-genital, oral-genital, anal-genital, or oral-anal, whether between

persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic




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No. 16-5515, United States v. Henson


abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C.

§ 2256(2)(A).

                                                      2.

         Henson maintains that the district court erred in denying his motion to dismiss because

§ 2252(a)(4)(B) prohibits or chills a substantial amount of protected speech, that is, “sexting”2 or

other forms of self-publication of sexually explicit materials by minors. Henson points out that

this court has struck down other sex-related statutes as overbroad, citing cases including Triplett

Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994) (public-indecency provision of

ordinance held overbroad in that it facially banned all nudity in public places). On appeal (but

not in his pro-se motion to dismiss the indictment) Henson asserts, and cites support for, the

proposition that 20% of teenagers have engaged in sexting.          Appellant Br. 18 (citing The

National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech: Results From a

Survey       of    Teens      and      Young      Adults.           http://thenationalcompaign.org

/sextech/pdf/sextech_summary.pdf.3 (“A significant number of teens have electronically sent, or

posted online, nude or semi nude pictures or videos of themselves . . . . 20% of teens overall”),

and Appellant Br. 21 (citing Birkhold, Mathew H. “Freud on the Court: Reinterpreting Sexting

and Child Pornography Law, 23 Fordham Intell. Prop. Media & Ent. L. J. 897, 903 n.25 (2013)

(“One recent survey found that about one in five teenagers reported having engaged in sexting.”)




2
  Merriam-Webster defines sexting as “the sending of sexually explicit messages or images by
cell phone.”  See Merriam-Webster Online, https://www.merriam-webster.com/dictionary
/sexting.
3
  The correct web address/URL is https://thenationalcompaign.org/sites/default/files/resource-
primary-download/sex_and_tech_summary.pdf. This 2008 survey “was fielded online to a total
of 1,280 respondents—653 teens (ages 13-19) and 627 young adults (ages 20-26).”


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No. 16-5515, United States v. Henson


       Addressing the second step of overbreadth analysis, Henson asserts that the challenged

statute could encompass images of sexually explicit conduct regardless whether the photographer

or viewer actually knows the age of the person being photographed, the minor in the picture

posted the picture him or herself, or the minor is even alive or dead. As such, Henson argues,

“the statute’s sweep is too broad.” Appellant Br. 19.

                                                3.

       Assuming, without deciding, that Henson can establish that sexting by minors constitutes

protected speech under the First Amendment, he has not established that there is a “substantial

amount” of such speech burdened by the enforcement of § 2252(a)(4)(B) because he cites no

case where federal authorities have attempted to enforce the statute against a minor who

produced and disseminated a sexually explicit depiction of him or herself.4          Under these

circumstances, Henson has not shown that § 2252(a)(4)(B) is overbroad.

                                          B. Due Process

       The Fifth Amendment provides that no person “shall be deprived of life, liberty, or

property, without due process of law . . .” U.S. Const. amend. V. Henson does not assert that he

did not have notice that he was prohibited from possessing sexually explicit images, or that he

was deprived of some procedure to which he is constitutionally entitled. We thus assume his



4
  In his pro se motion to dismiss the indictment, however, Henson cited one case Miller v.
Mitchell, 598 F.3d 144 (3d Cir. 2010). In Miller, parents, on behalf of their minor children,
sought a temporary restraining order to enjoin a county district attorney from initiating child
pornography charges under a Pennsylvania statute, 18 Penn. Stat. § 6312, against the minors for
sexting. The county attorney promised to drop charges if the minors completed a six- to nine-
month program focused on education and counseling. Id. at 143–45. The plaintiffs’ § 1983
action alleged that the defendant county attorney’s threatened prosecution was in retaliation for
the minors refusing to participate in the education program, in violation of the minors’ First and
Fourth Amendment rights. We note that this case did not involve a threatened federal
prosecution.


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No. 16-5515, United States v. Henson


claim is one of substantive due process. To establish a substantive due process violation, Henson

must establish the existence of a constitutionally protected property or liberty interest. EJS

Properties, LLC v. City of Toledo, 698 F.3d 845, 861 (6th Cir. 2012). “Substantive due process

affords only those protections so rooted in the traditions and conscience of our people as to be

ranked as fundamental.” Id. at 862.

       On appeal, Henson reiterates his First Amendment overbreadth arguments: “The statute

. . . violates Due Process because it is overbroad, due to the vast amount of new technology and

possibility of self publishing in this area, and Mr. Henson reincorporates the First Amendment

arguments from the first assignment of error as violative of Due Process.” Appellant Br. 36-37.

Citing Stanley v. Georgia, 394 U.S. 557 (1969), Henson asserts that § 2252(a)(4)(B) violates due

process “as he has the right to read or observe what he pleases—the right to satisfy his

intellectual and emotional needs–in the privacy of his own home.” Appellant Br. 37.

       We agree with the district court that even assuming a liberty interest in possessing child

pornography, § 2252(a)(4)(B) would not violate due process because banning the possession of

child pornography serves a legitimate governmental interest. PID 91, citing Osborne v. Ohio,

495 U.S. 103, 109–10 (1990) (“Given the gravity of the State’s interests in this context, we find

that Ohio may constitutionally proscribe the possession and viewing of child pornography.” Id.

at 111.)

       Henson’s reliance on Stanley is misplaced. In Osborne, the Supreme Court limited

Stanley’s applicability to child pornography cases, noting that unlike the statute at issue in

Stanley, prohibitions on possession of child pornography serve legitimate important functions

such as preventing child abuse. Osborne, 495 U.S. at 111 (“Osborne points out that in Stanley

we rejected Georgia’s argument that its prohibition on obscenity possession was a necessary



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No. 16-5515, United States v. Henson


incident to its proscription on obscenity distribution. This holding, however, must be viewed in

light of the weak interests asserted by the State in that case. Stanley itself emphasized that we

did not ‘mean to express any opinion on statutes making criminal possession of other types of

printed, filmed, or recorded materials . . . . In such cases, compelling reasons may exist for

overriding the right of the individual to possess those materials.’ (citing Stanley, 394 U.S. at 568,

n.11)).

          As for Henson’s argument that § 2252(a)(4)(B) violates due process because it might

operate unconstitutionally under a set of circumstances not applicable to Henson, the Supreme

Court does not recognize an overbreadth doctrine outside the limited context of the First

Amendment. See United States v. Salerno, 481 U.S. 739, 745 (1987). Henson’s due process

claim thus fails.

                                     C. Equal Protection

          The Fourteenth Amendment provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. The states and, by

extension, the federal government,5 are prohibited from “mak[ing] distinctions which either

burden a fundamental right, target a suspect class, or intentionally treat one differently from

others similarly situated without any rational basis for the difference.” Radvansky v. City of

Olmsted Falls, 395 F. 3d 291, 312 (6th Cir. 2005).



5
  Although the Fourteenth Amendment’s Equal Protection Clause is not applicable to the federal
government, the concepts of equal protection implicit in the due process guaranty of the Fifth
Amendment are applicable to actions of the federal government. Bolling v. Sharpe, 347 U.S.
497, 498 (1954), opinion supplemented, Brown v. Bd. of Ed., 349 U.S. 294 (1955); see also Ctr.
for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (“We evaluate
equal protection claims against the federal government under the Fifth Amendment just as we
would evaluate equal protection claims against state and local governments under the Fourteenth
Amendment.”)


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No. 16-5515, United States v. Henson


       Equal-protection claims that neither implicate a fundamental right nor involve a
       suspect or quasi-suspect class require only rational-basis review. Romer v. Evans,
       517 U.S. 620, 631 [] (1996); Liberty Coins, LLC v. Goodman, 748 F.3d 682, 693
       (6th Cir. 2014). Under that deferential standard, the burden is on the challenger to
       show that the government’s action is not rationally related to any legitimate public
       interest. Heller v. Doe, 509 U.S. 312, 319 [] (1993). Many state actions burden
       some persons in a way that is different from the way they burden others, and the
       Equal Protection Clause generally requires no more than a reasoned basis for such
       differing treatment in situations where foundational liberties and suspect criteria
       are not implicated. Under rational-basis review, the government’s actions enjoy a
       “strong presumption of validity.” Id. at 319 [].

Ondo v. City of Cleveland, 795 F.3d 597, 608 (6th Cir. 2015).


       Henson asserts that the district court erred by failing to apply strict scrutiny to his equal

protection claim since his challenge “involved First Amendment free speech in the privacy of his

own home.” Appellant Br. 32. Citing Stanley, which struck down a Georgia law outlawing

private possession of obscene material, 394 U.S. 557 (1969), Henson maintains that

§ 2252(a)(4)(B) is unconstitutional because it unfairly punished him while allowing, for

example, hate groups to possess photographs depicting violent crimes against minorities.

Appellant Br. 33.

       As the district court determined, there is no fundamental right to possess child

pornography, see Ferber, 458 U.S. at 763–64, and the government has a “compelling” interest in

criminalizing all facets of child pornography, including possession. Ferber, 458 U.S. at 764;

Osborne, 495 U.S. at 111. Henson’s equal protection claim is a non-starter.

       For these reasons, we AFFIRM Henson’s conviction and sentence.




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