                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-4400


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES AUBREY BROWN, IV,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:15-cr-00342-LO-1)


Submitted:   March 14, 2017                 Decided:     March 16, 2017


Before FLOYD and    HARRIS,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey D. Zimmerman, JEFFREY ZIMMERMAN, PLLC, Alexandria,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney, Whitney Dougherty Russell, Assistant United States
Attorney, Kevin M. Schneider, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     James Aubrey Brown, IV, appeals his jury conviction and the

120-month sentence imposed for enticing a minor to engage in

criminal sexual activity, in violation of 18 U.S.C. § 2422(b)

(2012).        Brown      asserts      that           the    district       court     committed

reversible      error        when     it     refused          to    issue     an     entrapment

instruction     to     the    jury,        and    when       it    refused    to    conduct      an

Eighth    Amendment       proportionality                review       and    denied        Brown’s

motion to strike the mandatory minimum sentence applicable to

his crime.     Finding no error, we affirm.

     We    discern      no    error    in        the    district      court’s       refusal      to

issue     an   entrapment           jury     instruction.                 Entrapment       is    an

affirmative      defense        consisting              of     “two       related     elements:

government inducement of the crime, and a lack of predisposition

on the part of the defendant to engage in the criminal conduct.”

Mathews v. United States, 485 U.S. 58, 63 (1988).                                  To obtain an

entrapment instruction, the initial burden is on the defendant

to produce “more than a scintilla of evidence of entrapment.”

United    States     v.      Hsu,     364        F.3d       192,    198     (4th    Cir.    2004)

(internal quotation marks omitted).                          Thus, a district court may

refuse    to   issue    an     entrapment             instruction         “when    there    is   no

evidence in the record that, if believed by the jury, would show

that the government’s conduct created a substantial risk that

the offense would be committed by a person other than one ready

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and willing to commit it.”       Id. at 199 (internal quotation marks

omitted).      We review de novo a district court’s refusal to issue

an entrapment instruction.           See United States v. Hackley, 662

F.3d 671, 681 (4th Cir. 2011).

     Evidence of email exchanges between Brown and an undercover

agent reveal that Brown believed the agent to be a 13-year old

girl,     whom    Brown   repeatedly        and   aggressively   pursued   and

pressured to meet him to have sex.                Thus, there was not more

than a “scintilla of evidence” that the Government induced Brown

to commit the crime of which he was convicted, or that Brown

lacked    a    predisposition   to     engage     in   the   criminal   conduct

underlying his offense of conviction.                  See id. at 681 (“This

circuit has repeatedly held that solicitation of the crime alone

is not sufficient to grant the instruction, as that is not the

kind of conduct that would persuade an otherwise innocent person

to commit a crime.” (internal quotation marks omitted)).

     We also reject Brown’s assertion that the district court

erred when it denied his motion to conduct an Eighth Amendment

proportionality review and strike the mandatory minimum sentence

applicable to his crime.         “[T]he Eighth Amendment contains a

narrow proportionality principle, that does not require strict

proportionality between crime and sentence[,] but rather forbids

only extreme sentences that are grossly disproportionate to the

crime.”       Graham v. Florida, 560 U.S. 48, 59-60 (2010) (internal

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quotation       marks    omitted).          When    reviewing   an     as-applied

challenge, we must first determine if the defendant showed there

was an inference that his sentence was grossly disproportionate

to his crime.           United States v. Cobler, 748 F.3d 570, 579-80

(4th Cir. 2014) (“Given the shocking and vile conduct underlying

these criminal convictions [for child pornography], we hold that

Cobler    has     failed    to     substantiate      the    required      threshold

inference of gross disproportionality.”).                   In the “rare case”

that the defendant shows this inference, we must then compare

the defendant’s sentence “(1) to sentences for other offenses in

the same jurisdiction; and (2) to sentences for similar offenses

in other jurisdictions.”            Id. at 575.        If the court does not

find a threshold inference, “extended comparative analysis of a

sentence is unnecessary to justify its constitutionality.”                      Id.

at 578.       We review Eighth Amendment challenges to a sentence de

novo.    Id. at 574.

       Contrary to Brown’s suggestion, neither his lack of prior

criminal history, nor the fact that he never actually placed any

minors at risk of harm, renders his 120-month sentence “grossly

disproportionate” to his crime.              First, Congress chose to enact

the mandatory minimum sentence for a violation of § 2422, and

there is no reason to usurp the role of the legislature and

impose a lower sentence.             See Harmelin v. Michigan, 501 U.S.

957,    998   (1991)     (“[T]he   fixing    of    prison   terms   for    specific

                                        4
crimes involves a substantive penological judgment that, as a

general matter, is properly within the province of legislatures,

not courts.” (internal quotation marks omitted)) (Kennedy, J.,

concurring).          Moreover,         protecting       children     from      sexual

exploitation       clearly    “constitutes        a   government      objective     of

surpassing importance.”               Cobler, 748 F.3d at 580 (noting that

defendant’s    “heinous       acts      exploited,       injured,    and   inflicted

great harm on a most vulnerable victim” (internal quotations

omitted)).         Notably,       several       courts    have     rejected     Eighth

Amendment challenges to the mandatory minimum sentence required

by § 2422(b).       See, e.g., United States v. Shill, 740 F.3d 1347,

1355-57     (9th    Cir.     2014)       (rejecting       a   categorical      Eighth

Amendment    challenge       to   the    mandatory       minimum    sentence     under

§ 2422(b)); United States v. Hughes, 632 F.3d 956, 959 (6th Cir.

2011)   (despite     lacking      a    serious    criminal    history,     “Hughes’s

ten-year sentence for attempting to entice a minor into sexual

relations      raises        no       inference       that    it     is       ‘grossly

disproportionate’”); United States v. Nagel, 559 F.3d 756, 762-

65 (7th Cir. 2009) (rejecting facial and as-applied challenges

to mandatory minimum sentence under § 2422(b)).                     We thus discern

no error in the district court’s decision to deny Brown’s motion

to strike the mandatory minimum sentence applicable to his crime

and for proportionality review.



                                            5
    Based       on   the   foregoing,   we    affirm   the   district     court’s

judgment.    We dispense with oral argument because the facts and

legal    contentions       are   adequately    presented     in   the   materials

before   this    court     and   argument    would   not   aid    the   decisional

process.



                                                                          AFFIRMED




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