                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0281n.06

                                            No. 16-1731
                                                                                          FILED
                                                                                    May 19, 2017
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.
                                                        ON APPEAL FROM THE UNITED
                                                        STATES DISTRICT COURT FOR THE
TYLER JOHN LAFOND,
                                                        WESTERN DISTRICT OF MICHIGAN
       Defendant-Appellant.




BEFORE:        MERRITT, BATCHELDER, and CLAY, Circuit Judges.

       CLAY, Circuit Judge.          Defendant Tyler LaFond appeals from the judgment and

sentence entered by the district court on May 20, 2016, sentencing Defendant to a thirty-year

mandatory minimum term of imprisonment for engaging in a sexual act with a person who has

not attained the age of twelve years in a territorial jurisdiction of the United States in violation of

18 U.S.C. § 2241(c).

       For the reasons that follow, we AFFIRM the district court’s judgment and sentence.

                                         BACKGROUND

       L. T. reported to the Federal Bureau of Investigation (FBI) that on May 2, 2015, her five-

year-old daughter, M.A.M., informed her that Defendant had pulled down her underwear and

touched her “pee-pee,” and that Defendant then took out his “pee-pee” and rubbed it all over her.

(R. 39, Presentence Investigation Report, Page ID # 82.)            M.A.M. was then forensically
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interviewed by the FBI, and during this interview, M.A.M. confirmed that Defendant had

committed these acts on her the previous summer while he was babysitting her and her younger

sister. On June 18, 2015, the FBI interviewed Defendant at his home. Defendant told the

investigators that he had touched M.A.M. last summer while he was babysitting her and her

younger sister. He explained that while M.A.M. was sleeping, he went into her room, took off

her underwear, inserted his finger into her vagina, and removed his finger when M.A.M. said

“Ow.”    (Id.)   He provided a written statement and a diagram of the extent of the digital

penetration.

        On August 12, 2015, a grand jury returned a two-count indictment against Defendant

alleging: (1) that Defendant did knowingly engage in a sexual act with a child who had not yet

attained the age of twelve years, in violation of 18 U.S.C. § 2241(c) (“Count One”); and (2) that

Defendant did knowingly engage in and intentionally cause sexual contact with and by another

person who had not yet attained the age of twelve years, in violation of 18 U.S.C. § 2244(a)(5),

2244(c), and 2241(c) (“Count Two”). The actions by Defendant occurred on land held in trust

by the United States for the use of the Sault Ste. Marie Tribe of Chippewa Indians. On January

5, 2016, Defendant pleaded guilty to Count One without a plea agreement. The government

agreed to dismiss Count Two at sentencing. On May 19, 2016, the district court sentenced

Defendant to 360 months of imprisonment, the statutory mandatory minimum sentence under

18 U.S.C. § 2241(c).

                                        DISCUSSION

        Defendant argues that the thirty-year mandatory minimum is grossly disproportionate to

his offense, thereby violating the Eighth Amendment’s prohibition against cruel and unusual

punishment.      Specifically, Defendant avers that the thirty-year sentence is grossly



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disproportionate to the crime because he has no prior criminal history, he is a victim of sexual

abuse himself, and he was barely eighteen years old when he committed the crime. Defendant

argues that given the life expectancy in prison for individuals of his age and race, he will likely

not live to see the end of his sentence. Defendant further argues that a juvenile defendant in a

similar case received a three-year term of imprisonment, and thus, his sentence is grossly

disproportionate given that he was barely eighteen years old at the time he committed the

offense.

       1. Standard of Review

       “‘A constitutional challenge to a sentence is a question of law and reviewed de novo.’”

United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009) (quoting United States v. Marks, 209

F.3d 577, 583 (6th Cir. 2000)).

       2. Relevant Legal Principles

       The Eighth Amendment prohibits only “extreme sentences that are grossly

disproportionate to the crime.” United States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010)

(citation and internal quotation marks omitted). The Supreme Court has adopted a “narrow

proportionality principle” when evaluating sentencing challenges under the Eighth Amendment.

Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring in part and concurring

in the judgment). Justice Kennedy explained that, “[t]he Eighth Amendment does not require

strict proportionality between crime and sentence.” Id. at 1001.

       When “determining whether a sentence for a term of years is grossly disproportionate for

a particular defendant’s crime[,] [a] court must begin by comparing the gravity of the offense and

the severity of the sentence.” Graham v. Florida, 560 U.S. 48, 60 (2010) (citing Harmelin, 501

U.S. at 1005). “‘[I]n the rare case in which [this] threshold comparison . . . leads to an inference



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of gross disproportionality’ the court should then compare the defendant’s sentence with the

sentences received by other offenders in the same jurisdiction and with the sentences imposed for

the same crime in other jurisdictions.” Id. (quoting Harmelin, 501 U.S. at 1005). “If this

comparative analysis ‘validate[s] an initial judgment that [the] sentence is grossly

disproportionate,’ the sentence is cruel and unusual.” Id. (quoting Harmelin, 501 U.S. at 1005).

         Criminal defendants challenging their sentences under the Eighth Amendment have a

“tremendously difficult burden to meet.” United States v. Hughes, 632 F.3d 956, 959 (6th Cir.

2011).      The Supreme Court rarely strikes down non-capital sentences under the Eighth

Amendment. Solem v. Helm, 463 U.S. 277 (1983), is an example of how egregious a non-capital

sentence must be in order for it to be found unconstitutional. In Solem, the Supreme Court found

a life sentence without the possibility of parole unconstitutional under the Eighth Amendment

because the crime of uttering a “no account” check for $100 was grossly disproportionate to the

sentence.

         Conversely, in Harmelin, the Court upheld a mandatory life sentence without the

possibility of parole for possession of more than 650 grams of cocaine where the defendant had

no prior felony convictions. 501 U.S. at 961 (plurality opinion). The Harmelin Court not only

recognized “that the Cruel and Unusual Punishments Clause encompasses a narrow

proportionality principle” that applies to non-capital sentences, but also articulated “some

common principles that give content to the uses and limits of proportionality review.” Id. at

997−98.

         “The first of these principles is that the 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 (quoting Rummel v. Estelle, 445 U.S. 263, 275−76 (1980)).



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In other words, mandatory minimum prison terms determined by the legislature are not to be

interfered with casually, and courts “should grant substantial deference to the broad authority

that legislatures necessarily possess in determining the types and limits of punishments for

crimes.” Solem, 463 U.S. at 290. “The second principle is that the Eighth Amendment does not

mandate adoption of any one penological theory.” Harmelin, 501 U.S. at 999. The third

principle is that the “marked divergences both in underlying theories of sentencing and in the

length of prescribed prison terms are the inevitable, often beneficial, result of the federal

structure.” Id. The fourth principle “is that proportionality review by federal courts should be

informed by objective factors to the maximum possible extent.” Id. at 1000 (citation and internal

quotation marks omitted).

        These four principles—“the primacy of the legislature, the variety of legitimate

penological schemes, the nature of our federal system, and the requirement that proportionality

review be guided by objective factors—inform the final one: The Eighth Amendment does not

require strict proportionality between crime and sentence.” Id. at 1001. Rather, the Eighth

Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”

Id. (citation omitted).

        We have recognized the severity and seriousness of crimes involving the sexual

exploitation and abuse of minors. See United States v. Vowell, 516 F.3d 503, 512−13 (6th Cir.

2008) (affirming district court’s 65-year sentence for coercing a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of the conduct, and for

possession of child pornography because the “heinous nature of his crimes demonstrated the

seriousness of the offense”); United States v. Moore, 916 F.2d 1131, 1139 (6th Cir. 1990)

(“Child pornographers commit serious crimes which can have devastating effects upon society



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and, most importantly, upon children who are sexually abused.”); United States v. Dobrowolski,

406 F. App’x 11, 13, 2010 WL 4723779, at *2−3 (6th Cir. 2010) (affirming two 10-year

mandatory minimum sentences imposed for coercing and enticing a minor to engage in illicit

sexual conduct and for traveling in interstate commerce with the intent to engage in illicit sexual

conduct because “in light of the seriousness of his offenses, . . . the crime is [not] so grossly

disproportionate to the sentence”).

       In United States v. Hughes, we held that 18 U.S.C. § 2422(b)’s 10-year mandatory

minimum sentence “for attempting to entice a minor into sexual relations raises no inference that

it is ‘grossly disproportionate.’” 632 F.3d at 959. Moreover, in United States v. Hart, 635 F.3d

850, 852 (6th Cir. 2011), we held that 18 U.S.C. § 2251’s 15-year mandatory minimum term of

imprisonment for attempting to persuade a minor to engage in “sexually explicit conduct for the

purpose of producing visual depictions” of such conduct is not so grossly disproportionate as to

violate the Eighth Amendment. Likewise, in United States v. Farley, 607 F.3d 1294, 1343 (11th

Cir. 2010), the court held that the thirty-year mandatory minimum sentence for crossing a state

line with intent to engage in a sexual act with a person under the age of twelve, in violation of 18

U.S.C. § 2241(c), does not violate the Eighth Amendment.

       3. Analysis

       In this case, Defendant’s thirty-year mandatory minimum sentence for violating

18 U.S.C. § 2241(c) is not constitutionally disproportionate. In non-capital cases, “successful

challenges to the proportionality of particular sentences are exceedingly rare.”         Harmelin,

501 U.S. at 1001 (internal quotation and brackets marks omitted). Such challenges are so rare

that excluding the cases involving juvenile offenders, the Supreme Court has only found one

non-capital sentence to violate the Eighth Amendment. See Solem, 463 U.S. at 280−81 (holding



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sentence of life imprisonment without parole imposed on defendant who wrote a bad check for

$100, and who committed other relatively minor, nonviolent offenses, violated the Eighth

Amendment). Defendant’s case is not one of those “exceedingly rare” circumstances in which

his specified term of imprisonment violates the Eighth Amendment.

           A. Threshold Comparison of Crime Committed and Sentence Imposed

       Starting with a threshold comparison of the crime committed and the sentence imposed,

such a comparison does not lead to an inference of gross disproportionality. See Harmelin, 501

U.S. at 1004−05 (“A better reading of our cases leads to the conclusion that intrajurisdictional

and interjurisdictional analyses are appropriate only in the rare case in which a threshold

comparison of the crime committed and the sentence imposed leads to an inference of gross

disproportionality.”).

       Looking at the crimes and sentences at issue in Harmelin and Farley, it is clear that

Defendant’s crime is as bad as or worse than the crimes Harmelin and Farley committed.

Harmelin was convicted of possessing 672 grams of cocaine and was sentenced to life

imprisonment without parole. Farley was convicted under the same statute at issue in this case,

18 U.S.C. § 2241(c), for traveling across state lines with intent to sexually violate an underage

child, and was sentenced to the same thirty-year mandatory minimum. Farley, 607 F.3d at 1344.

Unlike Defendant, Farley “was unable to inflict that harm on an actual victim.” Id.

       Comparing Defendant’s actions to Farley’s and Harmelin’s actions, Defendant’s actions

are significantly worse. Defendant did what Farley and Harmelin did not do: inflict injury on an

actual victim. Thus, the crime involved in this case is exceptionally worse than the crimes

committed in Harmelin and Farley. The argument for affirming Defendant’s sentence in this

case is stronger since Defendant inflicted harm on an actual victim. Turning to Defendant’s



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sentence, both the Harmelin Court and the Farley court looked at the harm caused by the type of

crime involved in those cases in order to judge the seriousness of the crime. Defendant’s

sentence of thirty years is substantially less severe than the life-without-parole sentence

Harmelin received, and which the Supreme Court upheld as constitutional. Defendant’s thirty-

year sentence is just as severe as Farley’s thirty-year sentence even though Farley did not

physically touch his victim.

       The Supreme Court, this Court, and other courts have discussed in depth on many

occasions the seriousness of crimes involving the sexual abuse of children and the extent of harm

caused by those crimes. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (“Petitioner’s

crime [of raping his 8-year old stepdaughter] was one that cannot be recounted in these pages in

a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the

revulsion society, and the jury that represents it, sought to express by sentencing petitioner to

death.”); id. at 468 (Alito, J., dissenting, joined by Roberts, C.J., and Scalia and Thomas, JJ.)

(“Long-term studies show that sexual abuse is ‘grossly intrusive in the lives of children and is

harmful to their normal psychological, emotional, and sexual development in ways which no just

or humane society can tolerate.’”); New York v. Ferber, 458 U.S. 747, 758 n.9 (1982) (“It has

been found that sexually exploited children are unable to develop healthy affectionate

relationships in later life, have sexual dysfunctions, and have a tendency to become sexual

abusers as adults.”); Vowell, 516 F.3d at 512−13 (affirming district court’s 65-year sentence for

coercing a minor to engage in sexually explicit conduct and on child pornography charges

because the “heinous nature of his crimes demonstrated the seriousness of the offense”); Moore,

916 F.2d at 1139 (“Child pornographers commit serious crimes which can have devastating

effects upon society and, most importantly, upon children who are sexually abused.”); Farley,



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607 F.3d at 959−60 (upholding thirty-year mandatory minimum sentence under 18 U.S.C.

§ 2241(c) for crossing state line with intent to have sex with a child); United States v. Eagle,

515 F.3d 794, 799 (8th Cir. 2008) (explaining that an eight-year old boy who had been sexually

assaulted “experienced mental, emotional, and physical problems[,] . . . and also experienced

encopresis, or involuntary defecation.”); United States v. Nagel, 559 F.3d 756, 761 (7th Cir.

2009) (highlighting that The Protection of Children from Sexual Predators Act of 1998 “evinces

a congressional recognition of the seriousness of attempted sexual enticement of a minor”).

           B. Defendant’s “Juvenile Status” Argument

       Defendant acknowledges the state of the law on the sexual abuse of children mentioned

above. Instead of focusing on the cases involving adult offenders, he is essentially arguing that

those cases should not apply to his case since he was barely an adult when the crime occurred.

He argues that because he was three to six months into his eighteenth year when he committed

the crime, he should be sentenced under juvenile sentencing guidelines rather than adult

guidelines. Defendant points to a case out of the Western District of Michigan, United States v.

Suggitt, Case No. 2:15-cr-18, where a juvenile in a similar situation as Defendant was sentenced

to 36 months’ imprisonment.

       Defendant’s “juvenile status” argument fails. The Supreme Court clearly articulated in

its guiding principles that the courts should give substantial deference to the legislature’s

determinations regarding sentencing and punishment. The legislature demarcated adults as those

eighteen and older. This determination is not something that the courts should casually interfere

with. Notwithstanding, there is no compelling reason to interfere with such a determination in

this case given the seriousness of Defendant’s crime.




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           C. Defendant’s “Death Sentence” Argument

        Additionally, Defendant claims that, based on data on the life expectancy for youth

serving “natural” life sentences in Michigan, he is expected to live to only fifty given the age he

was when he entered prison, his race, and the length of his sentence. Defendant thus argues that

his thirty-year sentence is really a death sentence since he will be almost fifty years old when he

is released from prison. Defendant uses this data to suggest that his thirty-year sentence is

arguably a death sentence, and thus, unconstitutional under the Eighth Amendment.

        Defendant’s “death sentence” argument also falls short of persuading us. First, the thirty-

year sentence is not a “death sentence.” It is a thirty-year sentence which he started serving

when he was nineteen years old. Defendant will be almost fifty years old when he is released

and will have a significant portion of his life left to live. Second, the sentencing range for the

offense Defendant committed was thirty years to life imprisonment. Defendant received the

lowest possible sentence he could have received under the statute. Third, Defendant was charged

as an adult because he was an adult when he committed the crime. The legislature chose

eighteen as the age when individuals become adults. The sentence the juvenile defendant

received in Suggitt is irrelevant to our analysis since that case involves a juvenile.

        Because Defendant’s sentence raises no inference of gross disproportionality, we do not

need to conduct “intrajurisdictional and interjurisdictional analyses.” Harmelin, 501 U.S. at

1005.

        4. Summary

        We hold that Defendant’s thirty-year sentence pursuant to 18 U.S.C. § 2241(c) is not a

violation of the Eighth Amendment. The severity of the crime compared with the sentence

received does not raise an inference of grossly disproportionality which would offend the Eighth



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Amendment’s prohibition on cruel and unusual punishments.              This is not one of those

extraordinarily rare cases in which the sentence is grossly disproportionate to the crime.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment and sentence.




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       MERRITT, Circuit Judge, concurring. I agree with my colleagues that the Eighth

Amendment, as currently interpreted by the Supreme Court, does not authorize us to deviate

from the congressionally mandated 30-year sentence. But I also agree with Judge Edgar below

that the sentence he had to impose is much too long. The only solution to the overly-long

sentence that I can think of would be the reduction in the term of imprisonment as a result of a

motion by the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A). I find no legal

authority recognizing scientific studies and authority about where the line should be drawn in

sentencing these young adults. But recent literature shows that the plasticity of the young adult

brain (age 18-21) is almost as great as the child’s brain. Clearly mandatory 30-year sentences

should not be used. See Laurence Steinberg, Age of Opportunity: Lessons from the New Science

of Adolescence (2015). A recent report by the MacArthur Foundation Research Network on Law

and Neuroscience, How Should Justice Policy Treat Young Offenders? (February 2017) says:

       Young adults do commit a disproportionate amount of the nation’s crime. In fact,
       arrests and recidivism peak in this age group. Yet we know relatively little about
       the developmental factors that may contribute to this phenomenon.

       Judges should be given leeway in sentencing people like LaFond and not be bound by the

straight-jacket that long, unjust mandatory minimums create.




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