                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0831n.06

                                            No. 12-3803

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Sep 16, 2013
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )            On Appeal from the United
                                                       )            States District Court for the
               v.                                      )            Northern District of Ohio
                                                       )
JOSHUA JAMERSON,                                       )                       OPINION
                                                       )
       Defendant-Appellant.                            )



BEFORE:        GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*

       HOOD, District Judge. Appellant Joshua Jamerson (“Jamerson”) appeals the Judgment and

sentence imposed by the district court after Jamerson’s plea of guilty, without a plea agreement, to

receipt of child pornography under 18 U.S.C. § 2252(a)(2) and (b)(1). For the reasons set forth

below, the district court’s judgment is AFFIRMED.

                                       I. BACKGROUND

       On June 9, 2011, Jamerson was charged in a one-count information with knowingly receiving

visual depictions of minors engaged in sexually explicit conduct via computer between March 26,

2010, and July 22, 2010, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Jamerson entered a plea

of guilty on September 14, 2011. Prior to sentencing, Jamerson underwent a psychiatric evaluation.


       *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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He was diagnosed with several mental health issues, including schizophrenia, depression, paranoia

and psychopathic deviation.

       Jamerson was sentenced on June 18, 2012 to a 60-month term of imprisonment, followed by

10 years of supervised release and the fine waived. The district judge determined the advisory

guideline imprisonment range of 108 to 135 months, with at least 5 years of supervised release, and

a fine range of $15,000 to $150,000, based on a total offense level of 30 and criminal history

category II. The district judge explained that he departed downward to the statutory minimum of 60

months because he had no alternative under the statute. The district judge noted that the sentences

were “driven largely by Congressional and/or political pressure,” and were “not commensurate with

the individual circumstances of the case.”

       Jamerson timely filed a notice of appeal from the judgment and sentence imposed by the

district court raising three arguments. Jurisdiction is proper under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

       Jamerson essentially raises a fairness argument as to the 60-month mandatory minimum

sentence he received from the district court. He first argues that the statute is vague because the

receipt of child pornography statute carries a 60-month mandatory minimum, whereas the possession

of child pornography statute does not. Jamerson next argues that the mandatory minimum sentence

of 60 months is cruel and unusual punishment under the Eighth Amendment of the United States

Constitution. Jamerson’s final argument is that the mandatory sentencing requirement violates the

separation of powers between Congress, the Executive Branch and the Judiciary. The government


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responds that the district court did not abuse its discretion when it varied downward to the 60-month

statutory minimum sentence.

                                           II. ANALYSIS

A.      Void for Vagueness

        Jamerson did not raise his void-for-vagueness constitutional claim before the district court,

other than noting at the sentencing hearing that “there would be a plea on behalf of the defendant to

at least have the Sixth Circuit address the difference between the charges which create a mandatory

minimum versus those that do not[,] . . . specifically as to the receipt of child pornography versus

the possession of child pornography.” The district judge did not address the void-for-vagueness

argument at the sentencing hearing.

        We generally do not review arguments that are raised for the first time on appeal. United

States v. Henry, 429 F.3d 603, 618 (6th Cir. 2005). Rule 12(b)(3) of the Rules of Criminal

Procedure lists motions which must be made before trial including, a motion alleging that the

information fails to state an offense. See Fed. R. Crim. P. 12(b)(3)(B). In a related context, we have

held that an appellate court is “categorically without jurisdiction” to hear arguments regarding such

pre-trial motions that are raised for the first time on appeal. United States v. Yannott, 42 F.3d 999,

1005 (6th Cir. 1994). But where, as here, a claim of constitutional deficiency is made, we may

review for plain error, correcting the district court only if we find: “(1) error, (2) that is plain, and

(3) that affects substantial rights.” United States v. Bazazpour, 690 F.3d 796, 801 (6th Cir. 2012)

(quoting Johnson v. United States, 520 U.S. 461, 466 67 (1997)) (alteration and internal quotation


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marks omitted). If these three conditions are met, we may then exercise discretion to notice a

forfeited error, but only if the error “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quoting Johnson, 520 U.S. at 467) (alteration omitted).

        Generally, a duly enacted statute has the presumption of constitutionality. U.S. ex rel. Atty.

Gen. v. Del. & Hudson Co., 213 U.S. 366, 407–08 (1909). The Due Process Clauses of the Fifth

Amendment provides the constitutional foundation for the void-for-vagueness doctrine with respect

to statutes enacted by Congress. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir.

1995). A criminal ordinance or statute violates the Constitution if: (1) it fails to define the offense

with sufficient definiteness that ordinary people can understand prohibited conduct; and (2) it fails

to establish standards to permit the police to enforce the law in a non-arbitrary, non-discriminatory

manner. See Kolender v. Lawson, 461 U.S. 352, 357–58 (1983). A statute or regulation may be

vague if it fails to give fair warning as to what conduct is prohibited. Grayned v. City of Rockford,

408 U.S. 104, 108 (1972). A statute is vague, not because “it requires a person to conform his

conduct to an imprecise but comprehensible normative standard, but rather in the sense that no

standard of conduct is specified at all.” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).

        We have held that conviction for both receipt and possession of the same child pornography

obtained via the internet is a double jeopardy violation. United States v. Ehle, 640 F.3d 689, 698

(6th Cir. 2011). “[W]hile possession of child pornography is generally a lesser-included offense of

receipt of child pornography, conviction under both statutes is permissible if separate conduct is

found to underlie the two offenses.” United States v. Dudeck, 657 F.3d 424, 430 (6th Cir. 2011).



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Jamerson was not charged with possession of child pornography, but was charged with and pled

guilty to a single count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), which carries

a mandatory minimum sentence of five years. Jamerson does not argue in his opening brief that any

of the phrases or words found in § 2252(a)(2) are vague. Rather, Jamerson questions “how and by

what standard” the receipt and possession statute merits an extensive term of incarceration while the

possession statute does not mandate any prison time. Jamerson argues that the two statutes are

essentially the exact same offense and that the terms “receipt” and “possession” are synonymous and

interchangeable.

        We have addressed the legislative history of the two statutes, noting that the 1990

amendments to the child pornography statutes, which already included “knowingly receiving” child

pornography, added the crime of “knowingly possessing” child pornography as a gap-filling

provision. Ehle, 640 F.3d at 698. The added crime of “knowingly possessing” targeted those

individuals who “possessed” child pornography, relieving the government from having to prove

receipt of child pornography. In Dudeck, 657 F.3d at 430, we held that “while possession of child

pornography is generally a lesser-included offense of receipt of child pornography, conviction under

both statutes is permissible if separate conduct is found to underlie the two offenses.” In light of the

legislative history of the two statutes, the two terms, “receipt” and “possession,” are neither

synonymous nor interchangeable. We found that the two offenses can stand if separate facts support

each of them. Congress intended to clarify the difference between receipt and possession of child




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pornography, and its decision to add the possession statute as a gap-filler shows that the two terms

are neither synonymous nor interchangeable.

        Vagueness challenges to an offense will not be entertained where a defendant’s conduct

clearly falls within the ambit of the statute. See United States v. Kemell, 667 F.3d 746, 750 (6th Cir.

2012). In this case, Jamerson, by entering a plea of guilty to the receipt charge, admitted to receiving

child pornography. Jamerson does not seek to set aside his guilty plea before the district court, nor

does he seek to change his plea on appeal.

        Jamerson does not challenge the government’s decision to charge him with the receipt

offense, as opposed to the possession offense. It is well established that prosecutors have broad

discretion in charging decisions. See Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000).

Even when two statutes with “identical elements” prohibit the same criminal conduct but provide

different penalties, the government may prosecute under either statute “so long as it does not

discriminate against any class of defendants.” United States v. Batchelder, 442 U.S. 114, 124 25

(1979). A criminal defendant has no constitutional right to choose which penalty he will receive.

Id. at 125. Because possession is a lesser-included offense of the receipt charge, the penalty for

possession is less than the receipt of child pornography offense and the government has the broad

discretion to charge Jamerson with the offense carrying the higher penalty.

        In his reply brief, Jamerson argues that based on the record, it is clear that he is not a person

of ordinary intelligence sufficient to receive fair notice of what constitutes prohibited criminal

conduct under the statute. However, fair notice of what is prohibited in a criminal statute is not


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measured by a particular defendant’s intelligence, but is measured by a person with ordinary

intelligence. See United States v. Williams, 553 U.S. 285, 306 (2008). Jamerson does not argue that

the statute fails to give fair notice of the prohibited criminal conduct to a person with ordinary

intelligence. Jamerson’s mental status does not render the statute vague.

       The district judge did not commit plain error when Jamerson was sentenced to the 60-month

mandatory minimum set forth in § 2252(a)(2) and (b), a significant downward departure from the

advisory sentencing guidelines of 108 to 135 months. Jamerson has not shown that the statute is

void for vagueness.

B.     Cruel and Unusual Punishment

       Jamerson next argues that the 60-month mandatory minimum sentence under the receipt

statute, § 2252(a)(2) and (b), is cruel and unusual punishment, due to Jamerson’s mental status.

Again, Jamerson did not frame his argument before the district court as an Eighth Amendment claim.

       Constitutional challenges to a sentence present questions of law that are reviewed de novo.

United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009). The Eighth Amendment forbids “extreme

sentences that are grossly disproportionate to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (internal quotation marks omitted) (Kennedy, J. concurring in part and concurring in the

judgment); see also United States v. Layne, 324 F.3d 464, 473 (6th Cir. 2003). “The Supreme Court

has adopted a ‘narrow proportionality principle’ in evaluating Eight Amendment claims.” United

States v. Hughes, 632 F.3d 956, 959 (6th Cir. 2011) (quoting Harmelin, 501 U.S. at 997). The

Eighth Amendment does not require strict proportionality between crime and sentence; “only an


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extreme disparity between crime and sentence offends the Eighth Amendment.” United States v.

Moore, 643 F.3d 451, 454 (6th Cir. 2011) (internal quotation marks omitted). “A defendant

challenging [a] sentence under the Eighth Amendment has a tremendously difficult burden to meet.”

Hughes, 632 F.3d at 959. Generally, a sentence within statutory limitations does not violate the

Eighth Amendment. Layne, 324 F.3d at 474; United States v. Williams, 15 F.3d 1356, 1364 (6th Cir.

1994). We have held that the ten-year mandatory minimum sentence under 18 U.S.C. § 2422(b)

raises no inference that it is grossly disproportionate. Hughes, 632 F.3d at 960.

       Jamerson cites United States v. Rothwell, 847 F. Supp. 2d 1048 (E.D. Tenn. 2012), in support

of his argument that his sentence should be below the 60-month mandatory minimum sentence under

§ 2252(a)(2), comparing his own mental status to that of the defendant in Rothwell. However, the

defendant in Rothwell was convicted of attempting to possess child pornography in violation of 18

U.S.C. § 2252A(a)(5)(B) and (b)(2), whereas Jamerson pled guilty to receiving child pornography

under 18 U.S.C. § 2252(a)(2). The attempt statute does not contain a mandatory minimum sentence.

The Rothwell court departed downward from the sentencing guideline range of 27 to 32 months to

18 months, finding that the departure was warranted due to the defendant’s mental capacity. 847 F.

Supp. 2d at 1061 63. Since there was no mandatory minimum involved in Rothwell, the district

court had the discretion to depart below the advisory sentencing guidelines.

       In this case, the district judge also departed downward from the sentencing guideline range

of 108 to 135 months to the 60-month mandatory minimum required under § 2252(a)(2) and (b) due

to Jamerson’s mental capacity. Although the district judge noted he was bound by the 60-month


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mandatory minimum under the statute, the judge expressed an opinion that if he were able to go

below the mandatory minimum, he would do so. Jamerson argues that the district court below was

“hamstrung” in imposing a sentence it did not support and sentenced Jamerson to the mandatory

minimum which the district court “blatantly dispute[s] the wisdom of.” We have noted that when

a court disagrees with a mandatory minimum, the minimum prevails and the district court’s desire

to sentence below the minimum does not render a statutory mandatory minimum sentence

unreasonable. United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010). Jamerson has not carried

his heavy burden to show that the 60-month mandatory minimum set forth in § 2252(a)(2)

constitutes cruel and unusual punishment.

C.     Separation of Powers

       Jamerson concedes in his reply brief that it is well established in this circuit that statutory

mandatory sentences do not violate the separation-of-powers doctrine. Yet, he continues to assert

a policy argument that the mandatory minimums effectively usurp the power of the judiciary and

place the job of fashioning an appropriate sentence in the hands of the legislature and the prosecuting

attorney.

       As conceded by Jamerson, statutory mandatory sentences do not violate the separation-of-

powers doctrine. Cecil, 615 F.3d at 695 96. Congress has broad authority to determine the

appropriate punishment for federal crimes and thereby restrict the sentence a court may impose.

Mistretta v. United States, 488 U.S. 361, 363 64 (1989); Kimbrough v. United States, 552 U.S. 85,

108 (2007) (Congress has the authority to set criminal sentences, including mandatory minimum


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sentences). A mandatory sentence enacted by Congress does not violate the separation-of-powers

doctrine. United States v. Odeneal, 517 F.3d 406, 414 15 (6th Cir. 2008).

D.     Reasonableness of Sentence Imposed

       Jamerson also concedes that the district court did not abuse its discretion in varying

downward to the statutory minimum, but restates his policy arguments related to mandatory

sentences. A district court’s judgment of sentence is reviewed for reasonableness. United States v.

Jones, 445 F.3d 865, 869 (6th Cir. 2006). A sentence imposed within the properly calculated

advisory guidelines range is afforded a rebuttable presumption of reasonableness, and the party

arguing that the sentence is unreasonable has the burden to show unreasonableness. Id.; see also

United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). A sentence should reflect the factors

listed in 18 U.S.C. § 3553(a). United States v. Deen, 706 F.3d 760, 763 n.1 (6th Cir. 2013). The

district court considered these factors and explained that its downward departure to the minimum

60-month sentence was sufficient, but not greater than necessary to accomplish the sentencing goals

set forth in § 3553(a). The sentence imposed by the district court, which departed downward to the

60-month mandatory minimum from the advisory guideline range of 108 to 135 months, is

reasonable.

                                      III. CONCLUSION

       For the reasons set forth above, the district court’s judgment and imposition of sentence is

AFFIRMED.




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