                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS February 29, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-3172
                                                 (D.C. No. 06-CR-10208-WEB)
    BRIAN J. BUTTERS,                                      (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and HOLMES, Circuit Judges.


         Brian J. Butters appeals his conviction and sentence for attempted sexual

enticement of a minor. He argues that (1) there was insufficient evidence to

support his conviction; (2) his confession to FBI agents was involuntary; and

(3) his sentence violates the Fifth and Eighth Amendments to the U.S.

Constitution and the separation-of-powers doctrine. We exercise jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  B ACKGROUND

      At the times relevant to this appeal, Mr. Butters was a forty-two-year-old

Army staff sergeant. On August 6, 2006, he met Julie Posey in an internet chat

room. Posey was a police investigator pretending to be a thirteen-year-old girl

named Michelle. Mr. Butters confirmed that Michelle was thirteen and offered to

“treat [her] like a queen” in exchange for sex. ROA, Supp. Vol. II, Ex. 1 at 3.

Over the ensuing four weeks, Mr. Butters communicated often with Michelle over

the internet and by telephone, making plans to meet for sex. He also used a web

camera to send images of himself masturbating.

      FBI agents arrested Mr. Butters on September 8, 2006, after he purchased

condoms to use during an anticipated meeting with Michelle. Mr. Butters was

taken to an FBI office, where he read, initialed, and signed an advice-of-

rights/waiver form. During the subsequent interview, Mr. Butters admitted

communicating with Michelle and that he believed she was thirteen. He also

stated that he intended to meet Michelle on September 8 for sex.

      Mr. Butters was indicted under 18 U.S.C. § 2422(b) for using the internet

and telephone “to persuade, induce, and entice, and to attempt to persuade, induce

and entice a person whom he believed to be a 13 year old female to engage in

unlawful sexual activity.” Id., Vol. I, Doc. 12 at 1-2. Mr. Butters pleaded not




                                        -2-
guilty. The district court held a Jackson v. Denno hearing 1 and ruled that

Mr. Butters’s statements to the FBI were made voluntarily.

      Trial proceeded on the basis of attempted enticement. The district court

instructed the jury: “[I]t is not necessary for the Government to prove that the

individual was in fact less than 18 years of age, but it is necessary for the

government to prove that [Mr. Butters] believed such individual to be under that

age.” Id., Vol. I, Doc. 37, Instr. 20 at 1. Mr. Butters was found guilty, and the

district court sentenced him to the mandatory minimum, ten years. Mr. Butters

now appeals.

                                    D ISCUSSION

                           I. Sufficiency of the Evidence

      Section 2422(b) imposes criminal liability against a person who

“knowingly persuades, induces, entices, or coerces any individual who has not

attained the age of 18 years, to engage in prostitution or any sexual activity for

which any person can be charged with a criminal offense, or attempts to do so.”

18 U.S.C. § 2422(b). Mr. Butters argues that the statute requires a victim who is

actually under eighteen years of age. Because investigator Posey was forty-two,

Mr. Butters reasons, there was insufficient evidence to support a guilty verdict.




1
      See Jackson v. Denno, 378 U.S. 368, 376 (1964); see also 18 U.S.C.
§ 3501(a) (mandating a hearing on the voluntariness of a confession).

                                         -3-
As this argument was not made in the district court, we review for plain error.

See United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007).

      Plain error requires “(1) an error, (2) that is plain, which means clear or

obvious under current law, and (3) that affects substantial rights.” Id. (quotation

omitted). If these criteria are satisfied, we “may exercise discretion to correct the

error if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted). Our inquiry ends with the first criterion,

as we discern no error. Specifically, in United States v. Sims, 428 F.3d 945,

959-60 (10th Cir. 2005), we held that a defendant’s false belief that a minor is

involved does not undermine a conviction for attempted enticement. We reasoned

that while it would be factually impossible to succeed in the intended crime

without a minor victim, “success is not an essential element of attempt crimes.”

Id. (quotation omitted). As noted by the Ninth Circuit,

      [t]he attempt provision of [§ 2422(b)] underscores Congress’s effort
      to impose liability regardless of whether the defendant succeeded in
      the commission of his intended crime. It would be contrary to the
      purpose of the statute to distinguish the defendant who attempts to
      induce an individual who turns out to be a minor from the defendant
      who, through dumb luck, mistakes an adult for a minor. To hold
      otherwise would bestow a windfall to one defendant when both are
      equally culpable.

United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004).

      Because the involvement of an actual minor is irrelevant to § 2422(b)’s

attempt provision, Mr. Butters’s sufficiency argument fails.


                                           -4-
                    II. Voluntariness of Mr. Butters’s Confession

      Mr. Butters argues that he involuntarily confessed to the FBI his belief

that Michelle was thirteen. We review de novo the district court’s ruling that

Mr. Butters’s confession was voluntary, “crediting the district court’s findings

of fact unless clearly erroneous.” United States v. Rith, 164 F.3d 1323, 1333

(10th Cir. 1999).

      “The essence of voluntariness is whether the government obtained the

statements by physical or psychological coercion such that the defendant’s will

was overborne.” United States v. Carrizales-Toledo, 454 F.3d 1142, 1153

(10th Cir.) (quotation omitted), cert. denied, 127 S. Ct. 692 (2006). The

following factors are relevant to this inquiry: the age, intelligence, and education

of the defendant; the length of the detention; the length and nature of the

questioning; whether the defendant was advised of his constitutional rights; and

whether the defendant was physically punished. Id. At the Jackson v. Denno

hearing, Mr. Butters contended that (1) after reading the advice-of-rights/waiver

form, he did not understand some of it, including the form’s explanation of the

right to counsel; (2) the FBI agents did not respond to his questions about the

right to counsel; and (3) the initials on the form after each of the listed rights

were not his. 2 These contentions were contradicted at the hearing. Specifically,

2
      In his appellate brief, Mr. Butters claims that his will was overborne during
the FBI interview because he is “slow,” “easily manipulated,” and “want[s] to
                                                                       (continued...)

                                           -5-
one of the two FBI agents who interviewed Mr. Butters testified that Mr. Butters

did not ask any questions about the rights listed on the form. And both agents

testified that Mr. Butters freely initialed and signed the form. There was also

testimony that Mr. Butters was a high-school graduate, had attained the rank of

staff sergeant, had not ingested alcohol or drugs on the day of his arrest, was not

threatened or otherwise mistreated during his interview, and had been detained for

only ninety minutes before the interview began. We conclude that the district

court did not err in finding Mr. Butters’s confession voluntary.

      But even if we assume that his confession was involuntary and should have

been excluded, we are convinced that the error would have been harmless beyond

a reasonable doubt. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991)

(holding that the admission of an involuntary confession is subject to harmless-

error analysis). Based on the recorded internet and telephone communications

between Mr. Butters and “Michelle” that were admitted at trial, it is abundantly

clear that Mr. Butters believed Michelle to be thirteen years old.




2
 (...continued)
please others.” Aplt. Br. at 13. But he did not make these claims during the
Jackson v. Denno hearing. And even when testimony was offered at trial during
the defense’s case-in-chief about Mr. Butters being slow, easily manipulated, and
eager to please, defense counsel did not connect it to the voluntariness of Mr.
Butters’s confession.

                                         -6-
                                   III. Sentencing

      Section 2422(b) includes a ten-year mandatory-minimum sentence.

18 U.S.C. § 2422(b). Mr. Butters argues that imposing such a sentence violates

the Fifth and Eighth Amendments to the United States Constitution as well as the

separation-of-powers doctrine. “We review constitutional challenges to a

sentence de novo.” United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006).

                                A. Fifth Amendment

      Mr. Butters first raises the Fifth Amendment guarantee of equal protection,

“which is essentially a direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). Mr. Butters claims that a mandatory-minimum sentence for attempted

sexual enticement of a minor is irrational when there is neither an actual victim

nor a history of preying on children. But he does not suggest that similarly

situated persons are sentenced any differently than he was. In any event, we see

nothing irrational in Mr. Butters receiving the same sentence applicable to

defendants who had contacted an actual child and have a history of predation.

First, the absence of an actual child victim does not detract from the seriousness

of the crime:

      [T]he offender’s conduct in [situations involving an undercover
      agent] reflects a real attempt to engage in sexual abuse of a child,
      and the fact that the target of the effort turned out to be an
      undercover officer has no bearing on the culpability of the offender,


                                          -7-
        or on the danger he presents to children if not adequately restrained
        and deterred by criminal punishment.

H.R. Rep. No. 108-66, at 51 (2003), as reprinted in 2003 U.S.C.C.A.N. 683, 685

(discussing the Protect Act of 2003, Pub. L. No. 108-21, § 103(b), 117 Stat. 650,

653, which inserted a five-year mandatory-minimum sentence into § 2422(b)).

Second, a mandatory-minimum sentence for even first-time offenders is

responsive to the danger posed to children as it (1) incapacitates those criminals

intent on enticing children; and (2) deters others from engaging in such conduct.

See Angelos, 433 F.3d at 754. Accordingly, we conclude that there is a rational

basis for § 2422(b)’s mandatory-minimum sentence even if the object of the

defendant’s enticement is an undercover agent and the defendant has no criminal

past.

        Mr. Butters also advances a Fifth Amendment substantive-due-process

argument. “Substantive due process prevents the government from engaging in

conduct that shocks the conscience or interferes with rights implicit in the concept

of ordered liberty.” United States v. Batie, 433 F.3d 1287, 1293 (10th Cir. 2006)

(quotation omitted). Mr. Butters asserts that a mandatory-minimum sentence

contravenes due process because it divests the sentencing court of discretion to

consider “the facts relevant to his case,” including his service in Iraq. Aplt. Br.

at 20. There is, however, no “due process right to a discretionary, individualized




                                          -8-
sentence in a noncapital case.” United States v. Horn, 946 F.2d 738, 746

(10th Cir. 1991).

      Mr. Butters’s Fifth Amendment arguments lack merit.

                              B. Eighth Amendment

      The Eighth Amendment prohibits the infliction of cruel and unusual

punishments. U.S. Const. amend. VIII. Encompassed within this prohibition are

“extreme sentences that are grossly disproportionate to the crime.” Angelos, 433

F.3d at 750 (quotations omitted). Mr. Butters argues that the ten-year sentence he

received violates Eighth-Amendment proportionality because “[t]here was no 13

year old victim” and there was no evidence that he was “a sexual predator.” Aplt.

Br. at 16. We disagree.

      In United States v. Munro, 394 F.3d 865, 872-73 (10th Cir. 2005), a case

also involving attempted enticement where there was no actual victim, we held

that the five-year mandatory-minimum sentence formerly in § 2422(b) was not

grossly disproportionate to the crime. Congress’s extension of that term to

ten years 3 does not pose any more of a proportionality problem in regard to

Mr. Butters. As noted above in Part III.A., attempted sexual enticement of a

minor is a serious offense whether or not the defendant has successfully contacted

an actual minor or has preyed on children in the past. See id. at 873. A ten-year


3
     See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, § 203, 120 Stat. 587, 613 (effective July 27, 2006).

                                        -9-
term accurately reflects the serious nature of the offense and is not “inconsistent

with other state and federal guidelines for child sex crimes.” Id. Cf. 18 U.S.C. §

2251(e) (prescribing a fifteen-year minimum sentence for sexual exploitation of a

minor); Ga. Code Ann. § 16-6-5(b) (prescribing a ten-year minimum sentence for

“enticing a child for indecent purposes”). Further, Mr. Butters’s sentence does

not resemble the only sentences struck down by the Supreme Court due to gross

disproportionality in the last hundred years. See Weems v. United States, 217

U.S. 349, 382 (1910) (invalidating a sentence of fifteen years in chains and at

hard labor, plus permanent surveillance and civil disabilities, for falsifying a

public document); Solem v. Helm, 463 U.S. 277, 296, 303 (1983) (invalidating a

life sentence for writing a “no account” check).

      We conclude that Mr. Butters’s sentence does not violate the Eighth

Amendment.

                              C. Separation of Powers

      Mr. Butters argues that “the legislative and executive branches have

usurped the judicial constitutionally assigned sentencing power” by placing a

mandatory-minimum sentence in 18 U.S.C. § 2422(b). Aplt. Br. at 21. To the

extent that we can make sense of this argument, we note that mandatory sentences

generally “do not violate the separation of powers principle.” United States v.

Gurule, 461 F.3d 1238, 1246 (10th Cir. 2006). Mr. Butters’s separation-of-

powers argument lacks merit.

                                         -10-
                                  C ONCLUSION

      We conclude that there was sufficient evidence to support Mr. Butters’s

conviction for attempted sexual enticement of a minor, and his confession to FBI

agents was voluntary. We further conclude that the ten-year mandatory-minimum

sentence he received was not constitutionally infirm.

      Accordingly, we AFFIRM Mr. Butters’s conviction and sentence.

                                                   Entered for the Court


                                                   Jerome A. Holmes
                                                   Circuit Judge




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