                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0672n.06

                                           No. 12-4372                                   FILED
                                                                                      Jul 19, 2013
                          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
DANIEL W. BALL,                                      )       COURT FOR THE NORTHERN
                                                     )       DISTRICT OF OHIO
       Defendant-Appellant.                          )


       BEFORE: MOORE, CLAY, and WHITE, Circuit Judges.


       PER CURIAM. Daniel W. Ball, a federal prisoner, appeals the sentence imposed following

his guilty plea to a charge of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2).

       Ball was charged with downloading child pornography to his computer over a one-and-a-half

year period. He entered a guilty plea to the charge in 2012. A presentence report was prepared,

which calculated Ball’s base offense level as 22 under USSG § 2G2.2(a)(2), added fifteen levels

under § 2G2.2(b)(2) (images of prepubescent minors), (3)(F) (using a public file-sharing program),

(4) (material that portrays sadistic or masochistic content), (6) (using a computer), and (7)(D) (600

or more images), and subtracted three levels for Ball’s acceptance of responsibility. After noting

Ball’s lack of any criminal history, the report calculated Ball’s guidelines range at 151 to 188

months’ imprisonment. The statutory mandatory minimum sentence for receiving child pornography

is five years’ imprisonment. 18 U.S.C. § 2252(b)(1). At the sentencing hearing, the district court

criticized the government for charging Ball with a crime carrying a mandatory minimum sentence,
No. 12-4372
United States v. Ball

opining that the sentence was longer than necessary to comply with the purposes of sentencing.

Nevertheless, the district court imposed the mandatory minimum sentence.

       On appeal, Ball argues that his sentence violates the Eighth Amendment because it is

disproportionate to his crime, noting that state punishments for the same offense are much lower and

that courts and the American Bar Association have criticized the mandatory minimum sentences for

child pornography; and that the use of mandatory minimum sentences without a safety valve

provision violates the principles of separation of powers and due process.

       “The Supreme Court has adopted a ‘narrow proportionality principle’ in evaluating Eighth

Amendment claims” and only “‘extreme sentences that are grossly disproportionate to the crime’”

are forbidden by the Eighth Amendment. United States v. Hughes, 632 F.3d 956, 959 (6th Cir. 2011)

(quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1001 (1991) (Kennedy, J., concurring in part and

concurring in the judgment)). For example, in Hughes we held that a mandatory ten-year sentence

was not grossly disproportionate to the crime of attempting to entice a minor into sexual relations.

Id. at 959. We have consistently recognized the seriousness of crimes involving the sexual

exploitation of minors. Id. at 959–60; United States v. Dobrowolski, 406 F. App’x 11, 13–14 (6th

Cir. 2010). Ball pled guilty to the possession of over 600 images of child pornography, including

a video that depicted the sexual penetration of a female victim who was approximately two-years

old. A Child Identification Report from the National Center for Missing and Exploited Children

indicated that 176 images and two of the videos found on Ball’s computer contained identified

victims. Ball’s crime was quite serious and a five-year sentence was not extreme or grossly

disproportionate.


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No. 12-4372
United States v. Ball

       Regarding Ball’s argument that the use of a mandatory-minimum sentence without a safety-

valve provision violates the principles of separation of powers and due process, in Mistretta v.

United States, 488 U.S. 361, 364 (1989), the Supreme Court held that Congress has the power to fix

sentences for crimes, and that the scope of judicial discretion in sentencing is subject to

congressional control. Accord United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008). Ball

fails to meaningfully distinguish his case from this precedent.

       Accordingly, we AFFIRM the district court’s judgment.




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