                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 13a0331p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                    No. 12-3805
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 DYLAN MARSHALL,
                                                N
                  Appeal from the United States District Court
                  for the Northern District of Ohio at Toledo.
              No. 3:11-cr-00557-1—Jack Zouhary, District Judge.
                                  Argued: June 13, 2013
                        Decided and Filed: November 21, 2013
   Before: McKEAGUE and DONALD, Circuit Judges; Lawson, District Judge.*

                                   _________________

                                        COUNSEL
ARGUED: Charles L. Gerstein, UNIVERSITY OF MICHIGAN LAW SCHOOL
FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.
Alissa M. Sterling, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for
Appellee. ON BRIEF: Charles L. Gerstein, Rachel Rose Goldberg, UNIVERSITY OF
MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann
Arbor, Michigan, Melissa M. Salinas, Dennis G. Terez, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, for Appellant. Ava R. Dustin, UNITED STATES
ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee.
        McKEAGUE, J., delivered the opinion of the court in which DONALD, J.,
joined, and LAWSON, D. J., joined in the result. LAWSON, D. J. (pp. 15–25),
delivered a separate opinion concurring in the judgment.




        *
        The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                              1
No. 12-3805        United States v. Marshall                                      Page 2


                                 _________________

                                      OPINION
                                 _________________

       McKEAGUE, Circuit Judge. Dylan Marshall pled guilty to receiving child
pornography over a period of 5 years, from the time he was 15 until he was 20. The
district court varied downward from the guideline range and sentenced him to 5 years
in prison—the mandatory minimum sentence for the offense—expressing its concerns
with the perceived harshness of that sentence as it did so. Marshall has a rare
physiological condition called Human Growth Hormone Deficiency, which he believes
entitles him to the Eighth Amendment protections accorded to juveniles. But despite his
condition, Marshall was an adult at the time of the offense. We therefore affirm his
sentence.

                                 I. BACKGROUND

       The Crime

       In the summer of 2010, an FBI agent discovered that an individual operating
under the name “Gotanks721” was using a peer-to-peer file sharing program to share
files containing child pornography. The agent traced the IP address of the individual’s
computer to a residence in Wauseon, Ohio.

       FBI agents obtained a warrant and searched the residence, seizing two computers
and other miscellaneous electronic media. They also interviewed Marshall, age 20 at the
time, who lived in the house with his parents. Marshall admitting to using a file sharing
program to share and download child pornography. He told the agents that he possessed
pornographic images and videos of children ranging in age from four to twelve.

       The FBI’s analysis of Marshall’s computer and other media revealed 261 images
and 46 videos containing child pornography. The date stamps on the files ranged from
May 2005 to September 2010. The analysis also revealed that beginning in 2009,
Marshall had participated in online chat sessions discussing child pornography.
No. 12-3805        United States v. Marshall                                          Page 3


       In December 2011, the government charged Marshall with one count of receiving
child pornography in violation of 18 U.S.C. § 2252(a) and (b). Marshall pled guilty.

       The Defendant

       Aside from his involvement with child pornography, it appears that Marshall was
headed toward becoming a productive member of society. He graduated from high
school. He lived with his parents. He attended a community college part-time for four
semesters, pursuing a career as a lab technician and paying his own tuition. He worked
as a machine operator for a commercial bakery. He owned a car and had a credit card.

       During an interview with his probation officer, Marshall said that he first started
using file sharing programs to acquire music. He soon discovered the availability of
pornography and viewed it almost every day. In his words, he used the file-sharing
programs to look for “naked kids of my age.” PSR ¶ 29. According to his probation
officer, “[h]e said that he felt like he was viewing images of his peers. He indicated he
has often felt like a 15 or 16-year-old individual because of his small frame and stature.”
PSR ¶ 30.

       Indeed, Marshall’s size and self-perceived age undergird most of the arguments
he has raised on this appeal. In 2005, when Marshall was 15, he was diagnosed with
Human Growth Hormone Deficiency. According to the Child Growth Foundation:

               Growth hormone deficiency or insufficiency occurs when the
       pituitary gland, a small pea sized gland at the base of the brain, fails to
       produce adequate levels of growth hormone. Part of the brain called the
       hypothalamus controls the levels of hormones in the blood by triggering
       the pituitary gland into producing the required hormones. This low level
       of growth hormone may be due to problems with the hypothalamus or
       with the link between the hypothalamus and the pituitary gland or with
       the pituitary gland itself . . . . The level of growth hormone insufficiency
       may vary from mild to severe but as growth hormone is now available in
       large quantities, all children whose growth hormone levels are inadequate
       should be able to receive appropriate replacement treatment.
              Children with growth hormone deficiency are very short but with
       normal body proportions, facial appearance and intelligence. Prior to
       treatment the child may also be “chubby” as growth hormone helps to
No. 12-3805          United States v. Marshall                                      Page 4


         control the fat under the skin. These children may look young for their
         age as physical development and bone age is delayed and consequently
         the skull will be immature producing the facial proportions of a younger
         child.

Child Growth Foundation, Growth Hormone Deficiency, Growth Hormone Deficiency:
A   Guide      for   Parents    and    Patients,    4   (Jan.   2003),     available    at
http://www.childgrowthfoundation.org/CMS/FILES/02_Growth_Hormone_Deficienc
y.pdf.    In addition to stunted growth, growth hormone deficiency can result
in delayed pubertal development.         Child Growth Foundation, Puberty and the
Growth Hormone Deficient Child, Growth Hormone Deficiency: A Guide for
Parents        and      Patients,       4    (June       2010),       available         at
http://www.childgrowthfoundation.org/CMS/FILES/03_GrowthHormoneDeficiency.pdf.

         When he was diagnosed at age 15, Marshall was extremely small for his age and
had not yet entered puberty. He was treated with hormone injections for about five
years. When his Presentence Investigation Report was prepared in 2012, he was 5' 5"
and weighed 117 pounds.

         Before his sentencing hearing, Marshall was evaluated on two separate occasions
by a clinical psychologist named Gregory Forgac. Marshall told Dr. Forgac that he
started viewing child pornography when he was 15. He said that he began by looking
for people his own age. He did not know it was wrong until the FBI appeared at his
parents’ house.

          Dr. Forgac noted that Marshall appeared younger than his chronological age.
He administered a test called the Ammons Quick Test, which indicated that Marshall had
an I.Q. of 87 and a mental age of 15 ½. Dr. Forgac found Marshall’s diagnosis of
Human Growth Hormone Deficiency to be noteworthy. He stated in his report that in
addition to delayed physical growth, “[i]t is quite possible that self-perception and self-
concept would also be significantly delayed.” R. 12-1, Report, PageID # 44. He found
that Marshall “appear[ed] to be quite immature for his chronological age due to his
condition, . . . which inhibited his growth and maturation physically, emotionally and
socially.” Id. “It is quite likely that in all ways other than chronological age, this
No. 12-3805        United States v. Marshall                                       Page 5


individual was still a juvenile at the time of his arrest.” Id. Dr. Forgac believed that
“Marshall’s behavior was a product of adolescent curiosity, moral immaturity and easy
availability of pornography.” Id. at PageID # 44-45. He recommended “education,
monitoring and supervision and the opportunity to mature to age appropriate levels both
physically and psychologically.” Id. at PageID # 45.

       The Sentencing Hearing

       Marshall submitted Dr. Forgac’s report to the district court along with his
sentencing memorandum. His sentencing hearing was scheduled for June 4, 2012, but
after reviewing the case and meeting with counsel, the district court postponed the
hearing so that Dr. Forgac could appear and testify.

       The hearing recommenced on June 25, 2012. Dr. Forgac appeared and testified.
He explained that the Ammons Quick Test, which he had administered to Marshall, is
a “brief screening device” that takes 10–15 minutes to administer and produces both an
I.Q. score and an estimated mental age. R. 36, Hrg. Tr., PageID # 192, 206. It involves
asking the subject to match pictures with words that “[s]tart out pretty concrete or
simple” and “become increasingly more abstract.” Id. at PageID # 205. Dr. Forgac
stated that Marshall’s I.Q. score of 87 was in “the low average range of intelligence” and
his mental age of 15 ½ was consistent with his academic performance. Id. at PageID #
194. However, he noted that Marshall was “not developmentally delayed intellectually.”
Id. at PageID # 199.

       Dr. Forgac explained that the adolescence period does not end at 18 but actually
extends into an individual’s mid-20s. “[D]evelopmental maturation goes to the mid,
sometimes even late 20s so that people will receive developing adult identity from early
20s to late 20s.” Id. at PageID # 198. Dr. Forgac thought “the only way that [Marshall
was] not still a juvenile [was] his chronological age” and that “he [was] functioning at
a juvenile level.” Id. at PageID # 203. He believed that Marshall “viewed himself as a
much younger individual and was functioning as a much younger individual.” Id.
No. 12-3805         United States v. Marshall                                      Page 6


        The district court asked Dr. Forgac to explain exactly what role Marshall’s
growth hormone deficiency played in the crime he committed. Dr. Forgac explained that
Human Growth Hormone Deficiency “basically prevents maturation.” Id. at PageID #
211. He identified several “different aspects of maturation”: chronological age, physical
age, social age, emotional age, and intellectual age. Id. at PageID # 212.

        Dr. Forgac further explained that adolescents search for a “group identity.” Id.
By interacting with their peers, they experience “consensual validation,” “start feeling
an affiliation with a group,” and “are able to mature.” Id. This group interaction “is the
road to an adult individual identity.” Id.

        Unlike normal adolescents, Marshall was isolated by his peers due to his short
stature and immature appearance. He turned to pornography and looked for children
around his own age. He found group interactions and a shared experience through his
online activities, including his chatting activities.

        Dr. Forgac had performed 5,000 psychological evaluations, but before examining
Marshall he had never encountered an individual with Human Growth Hormone
Deficiency.    He “didn’t do an extensive literature search,” but he talked to a
neuropsychologist friend who “did a little bit of a search.” Id. at PageID # 214. Dr.
Forgac believed that Marshall experienced “a unique developmental delay” and thought
it “significant that he was essentially 16, maybe 15-and-a-half years old in every way
except chronological age at the time” the criminal activity occurred. Id. To a reasonable
degree of psychological certainty, Dr. Forgac believed Marshall was “a kid as opposed
to an adult.” Id. at PageID # 218.

        The Sentence

        The district court accepted Dr. Forgac’s testimony. It found that Marshall was
not an adult but was “a juvenile in a number of ways, chronological age aside,” when he
engaged in the criminal activity. Id. at PageID # 227. Marshall’s guideline range was
151 to 188 months, but the district court varied downward to the statutory mandatory
minimum sentence of 5 years. See 18 U.S.C. § 2252(b)(1). It found that even the
No. 12-3805          United States v. Marshall                                      Page 7


mandatory minimum sentence was greater than necessary, but realized that it could not
impose a sentence lower than that amount. Instead, the district court expressed hope that
this Court would somehow give it some relief from the constrictions of the mandatory
minimum.

          In a supplemental memorandum opinion, the district court explained in more
detail its concerns with the 5-year mandatory minimum sentence. See United States v.
Marshall, 870 F. Supp. 2d 489 (N.D. Ohio 2012). It found that the “[t]estimony and
other evidence at [Marshall’s] sentencing hearing support[ed] the conclusion that at the
time of the crime [Marshall] was, and should be characterized for sentencing as, a
developmentally immature teenager lacking the ability to appreciate the illegality of
child pornography and to control his viewing of easily accessible internet content.” Id.
at 498.

          The district court believed that the mandatory minimum sentence for receipt of
child pornography was in “direct conflict” with its responsibility under 18 U.S.C.
§ 3553(a) to “fashion an appropriate sentence.” Id. at 496. It further opined that in
Marshall’s case, the mandatory minimum sentence might be unconstitutional under the
Eighth Amendment. Id. at 499. But it was unwilling to sentence below the mandatory
minimum without some support in the caselaw. Id.

          Marshall appealed, challenging his sentence on several grounds.

                                     II. ANALYSIS

A. Standard of Review

          “When reviewing sentencing decisions, we review the district court’s factual
findings for clear error, while reviewing the district court’s conclusions of law de novo.”
United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).
No. 12-3805           United States v. Marshall                                                 Page 8


B. Eighth Amendment Challenge

         Marshall urges us to hold that his mandatory minimum sentence is
unconstitutional based on Miller v. Alabama, in which the Supreme Court held that
“mandatory life without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
132 S. Ct. 2455, 2460 (2012). The Court declined to decide whether the Eighth
Amendment bars a discretionary sentence of life without parole for juvenile homicide
offenders,1 but noted that “appropriate occasions for sentencing juveniles to this harshest
possible penalty will be uncommon.” Id. at 2469. Relying on Miller, Marshall contends
that his mandatory sentence is unconstitutional because it did not allow the district judge
to sentence him based on his individual characteristics.

         Marshall’s Eighth Amendment argument is premised on his assertion that he was
a juvenile when he committed the crime. But this assertion is simply wrong. Marshall
received child pornography between the ages of 18 and 20. He was therefore an adult
when he committed the crime.

         Marshall claims that based on his growth hormone deficiency, the district court
explicitly found him to be a mental and physical juvenile and warns that such factual
findings cannot be rejected absent clear error. We do not reject the district court’s
findings.2 But neither do we view them as relevant to the issue of whether Marshall
qualifies as a juvenile for purposes of the Eighth Amendment.3




         1
          The Court had held two years earlier that a sentence of life without parole for juvenile non-
homicide offenders was unconstitutional under the Eighth Amendment. See Graham v. Florida, 130 S.
Ct. 2011, 2030 (2010).
         2
          We note, however, that the district court does not appear to have explicitly found Marshall to
have been physically immature at the time of the offense. Nor, on our review, would the record support
such a finding.
         3
          Presumably a sentencing judge can consider a defendant’s maturity when evaluating his or her
“history and characteristics” under 18 U.S.C. § 3553(a), which the district court did when imposing a
below-guideline sentence in this case. In that context, a defendant’s mental age might have some legal
relevance. But at issue in this case is the imposition of a mandatory minimum sentence, under which
Marshall’s individual characteristics are not pertinent.
No. 12-3805         United States v. Marshall                                          Page 9


        Under the Supreme Court’s jurisprudence concerning juveniles and the Eighth
Amendment, the only type of “age” that matters is chronological age. The Supreme
Court’s decisions limiting the types of sentences that can be imposed upon juveniles all
presuppose that a juvenile is an individual with a chronological age under 18. See
Miller, 132 S. Ct. at 2460 (“We therefore hold that mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’”); Graham v. Florida, 130 S. Ct. 2011,
2030 (2010) (“Because ‘the age of 18 is the point where society draws the line for many
purposes between childhood and adulthood,’ those who were below that age when the
offense was committed may not be sentenced to life without parole for a nonhomicide
crime.”); Roper v. Simmons, 543 U.S. 551, 568 (2005) (“A majority of States have
rejected the imposition of the death penalty on juvenile offenders under 18, and we now
hold this is required by the Eighth Amendment.”).

        The Supreme Court treats juveniles differently because they “have diminished
culpability and greater prospects for reform.” Miller, 132 S. Ct. at 2464. They are often
immature and irresponsible, peculiarly susceptible to bad influences, and their character
is still malleable. Id. Marshall apparently thinks that he shares these traits and therefore
believes there is no reason not to treat him differently as well. But he has ignored the
crucial role that chronological age plays in our legal system and in the Supreme Court’s
jurisprudence. The reasons for according special protections to offenders under 18
cannot be used to extend the same protections to offenders over 18.

        The Supreme Court has recognized that drawing lines based on chronological age
is a not-entirely-desirable but nonetheless necessary approach. In Roper v. Simmons, the
Court extended from 16 to 18 the age under which offenders are constitutionally
ineligible for the death penalty. Roper, 543 U.S. at 568. The Court explained its use of
chronological age to establish the divide as follows:

        Drawing the line at 18 years of age is subject, of course, to the objections
        always raised against categorical rules. The qualities that distinguish
        juveniles from adults do not disappear when an individual turns 18. By
        the same token, some under 18 have already attained a level of maturity
No. 12-3805        United States v. Marshall                                     Page 10


        some adults will never reach. For the reasons we have discussed,
        however, a line must be drawn . . . . The age of 18 is the point where
        society draws the line for many purposes between childhood and
        adulthood. It is, we conclude, the age at which the line for death
        eligibility ought to rest.

Id. at 574.

        Using chronological age as the touchstone for determining whether an individual
is a juvenile or an adult is the standard approach in our legal system. “For purposes of
[the Juvenile Delinquency Act], a ‘juvenile’ is a person who has not attained his
eighteenth birthday . . . .” 18 U.S.C. § 5031. Chronological age sets the boundaries for
determining whether an individual is eligible to drive, vote, marry, buy and drink
alcohol, be drafted, watch certain movies, and hold certain political offices. None of
these age-based privileges and responsibilities ignore chronological age in favor of
mental age.

        In almost every state, Marshall could vote, serve on a jury, or marry without his
parents’ consent when he committed the crime. See Roper, 543 U.S. at 569. His
immaturity did not render him ineligible for these benefits the law granted him by virtue
of his chronological age. Nor does his immaturity excuse him from the punishment the
law imposes upon him as a consequence of that age.

        The legal system that would emerge from Marshall’s proposed approach that
defines a juvenile by factors other than chronological age would be essentially
unmanageable. Before a court could impose on a defendant over 18 those punishments
constitutionally barred from being imposed on juveniles, it would first have to wade
through tedious expert testimony to determine whether the defendant’s mental age was
commensurate with his chronological age. We refuse to impose such a difficult and
time-consuming requirement on the district courts.

        Additionally, an approach that ignores chronological age in favor of other aspects
of maturity should cut both ways. Individuals under 18 with the mental maturity of
adults would have to be classified as adults for purposes of the Eighth Amendment. This
No. 12-3805           United States v. Marshall                                             Page 11


approach is unthinkable; the Supreme Court would never accept such an end-run around
the constitutional protections for chronological juveniles.

        Marshall contends that he should be treated differently from run-of-the-mill
immature offenders because, due to his growth hormone deficiency, his immaturity is
physiological and not merely psychological. The trouble with this argument is that the
record does not show a direct link between his physiological condition and his mental
immaturity. One of the sources Marshall cites for information on Human Growth
Hormone Deficiency notes that children with this disorder have normal intelligence.
See     Child      Growth         Foundation,         Endocrine          Gland       Disorders,
http://www.childgrowthfoundation.org/Default.aspx?page=ConditionsGHD (last visited
November 20, 2013).

        Dr. Forgac’s finding that Marshall had a mental age of 15 ½ was based on the
brief screening test he administered, not on Marshall’s physiological disorder. Dr.
Forgac was by his own admission not an expert on Human Growth Hormone Deficiency.
When asked what role Marshall’s growth hormone deficiency played in the crime he
committed, Dr. Forgac drew only an indirect link by theorizing that Marshall’s small
stature caused other children to ostracize him, which in turn led him to seek “consensual
validation” through pornography and online chatting. Dr. Forgac explicitly stated that
Marshall was not developmentally delayed intellectually.4 Furthermore, Dr. Forgac’s
observation that Marshall functioned as a juvenile is clearly belied by the reality that
Marshall attended college, worked a full-time job, and owned a car and credit card.
From all objective indications, Marshall was functioning as a normal 20-year-old, not
as a 15 1/2-year-old.




        4
          Marshall’s brief quotes the abstract of an article that connects brain development to human
growth hormone. See Zvi Laron & Avinoam Galatzer, Growth Hormone, Somatomedin and Prolactin:
Relationship to Brain Function, 7 Brain & Dev. 559, 564 (1985). The article notes that children with
growth hormone deficiency have a lower I.Q., deficient visuomotor function, and deficient school
achievements and social adjustment. But the article does not indicate that growth-hormone-deficient
children have a lower mental age or perceive themselves to be younger than their chronological age.
Marshall’s argument is based on his mental and physical age, not on his low I.Q.
No. 12-3805        United States v. Marshall                                     Page 12


       And even if we agreed with Marshall’s assertion that his growth hormone
deficiency rendered him “literally unable to grow up,” we would still not be inclined to
classify him as a juvenile. Considerations of efficiency and certainty require a bright
line separating adults from juveniles. For purposes of the Eighth Amendment, an
individual’s eighteenth birthday marks that bright line. We decline to create exceptions,
even for offenders with rare physiological conditions.

       In short, Marshall is at the very most an immature adult. An immature adult is
not a juvenile. Regardless of the source of the immaturity, an immature adult is still an
adult. Because Marshall is not a juvenile, he does not qualify for the Eighth Amendment
protections accorded to juveniles.     We therefore need not determine whether a
mandatory 5-year sentence for a juvenile would be unconstitutional under the Supreme
Court’s reasoning in Miller v. Alabama.

C. Additional Challenges

       Marshall challenges his sentence on three additional grounds. These arguments
lack merit and require only brief discussion.

       First, Marshall challenges his sentence based on a perceived conflict between
two federal statutes. Congress instructs district courts to impose sentences “sufficient,
but not greater than necessary, to comply with” several enumerated purposes in the
statute. 18 U.S.C. § 3553(a). Marshall contends that this provision, commonly known
as the “parsimony provision,” conflicts with the 5-year mandatory minimum sentence
required for defendants guilty of knowingly receiving child pornography. Marshall
believes that in his situation a 5-year sentence is greater than necessary to accomplish
the penological goals of deterrence, retribution, incapacitation, and rehabilitation. He
argues that Congress could not have foreseen that the mandatory minimum would be
applied to an offender with his unique characteristics.

       This Court has already rejected this very argument. “When it comes to rigid
minimum sentences, we acknowledge the tension with section 3553(a), but that very
general statute cannot be understood to authorize courts to sentence below minimums
No. 12-3805            United States v. Marshall                                                Page 13


specifically prescribed by Congress.” United States v. Cecil, 615 F.3d 678, 695 (6th Cir.
2010) (quotation omitted). No matter how excessive a minimum sentence appears in a
particular case, the parsimony provision does not allow courts to avoid imposing it. The
whole point of mandatory minimums is to remove from judges the discretion to impose
low sentences on sympathetic defendants. Marshall’s argument that the mandatory
minimum should be disregarded based on his unique characteristics must necessarily fail.

         Second, Marshall contends that 18 U.S.C. § 2252 impermissibly grants
sentencing authority to the prosecutor because there is no intelligible principle separating
receipt (which carries a 5-year mandatory minimum sentence) from possession (which
does not). But he has failed to recognize that possession of child pornography is a lesser
included offense of receipt of child pornography. See United States v. Ehle, 640 F.3d
689, 695 (6th Cir. 2011).5 Whether to prosecute and whether to charge the greater
offense or the lesser-included offense are decisions well within the prosecutor’s
discretion. See United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v.
Batchelder, 442 U.S. 114, 123–26 (1979).

         Furthermore, even when two statutes prohibit the exact same conduct, the
prosecutor can choose which statute to charge under. Batchelder, 442 U.S. at 123–126.
So long as “the provisions at issue plainly demarcate the range of penalties that
prosecutors and judges may seek and impose,” “the power that Congress has delegated
to those officials is no broader than the authority they routinely exercise in enforcing the
criminal laws.       Having informed the courts, prosecutors, and defendants of the
permissible punishment alternatives available under each [statutory provision], Congress
has fulfilled its duty.” Id. at 126. This principle applies even when one of the two
statutory provisions carries a mandatory minimum sentence and the other does not.




         5
          Ehle dealt with receipt and possession of child pornography under § 2252A, which can be
violated when the images involve real or virtual minors. In contrast, § 2252 can only be violated by
images depicting real minors. The Sixth Circuit has not yet held that possession is a lesser included
offense of receipt under § 2252. But the two statutes are “materially identical,” United States v. Dudeck,
657 F.3d 424, 429 (6th Cir. 2011), and there is no reason not to extend Ehle’s holding to § 2252.
No. 12-3805        United States v. Marshall                                    Page 14


       Third and finally, Marshall argues that his sentence is substantively unreasonable
because the district court thought it should have discretion to impose a sentence below
the mandatory minimum but did not do so. “[A] district court’s ardent desire to go lower
does not make a statutory mandatory minimum sentence unreasonable.” Cecil, 615 F.3d
at 695. “When a court and a mandatory minimum are in conflict, the minimum wins.”
Id. When it has been challenged as being too high, a mandatory minimum sentence is
by definition substantively reasonable.

                                III. CONCLUSION

       We affirm Marshall’s 5-year sentence.
No. 12-3805        United States v. Marshall                                     Page 15


                     ____________________________________

                      CONCURRING IN THE JUDGMENT
                     ____________________________________

       LAWSON, District Judge. Concurring in the judgment. The court today finds
that Dylan Marshall’s sentence does not violate the Eighth Amendment because
chronologically he is an adult, and therefore he is not afforded the protection given
juveniles under the Supreme Court’s juvenile sentencing cases. The district court found
that Marshall was a juvenile in all material respects except for his chronological age —
a finding that the majority “do[es] not reject.” Because sentencing is an “individualized”
task, Gall v. United States, 552 U.S. 38, 50 (2007), and Marshall is not seeking a
categorical ban on mandatory minimum sentences for all juvenile offenders, I do not find
that his chronological age presents an obstacle to the relief he seeks. Nor do I share the
majority’s concern that a sentencing regime would be unmanageable if courts look
behind chronological age on a case-by-case basis to assess those factors that render
juveniles “constitutionally different from adults for purposes of sentencing.” Miller v.
Alabama, 132 S. Ct. 2455, 2464 (2012).                 Nonetheless, as inappropriate,
counterproductive, and unnecessary the five-year custody sentence imposed on Marshall
might be in this case, it is not “grossly disproportionate” to the offense and therefore
neither a cruel nor unusual form of punishment for juveniles in the American criminal
justice system. Therefore, I must reluctantly concur in the judgment of the court
affirming the sentence as acceptable under the Eighth Amendment.

                                            I.

       The Supreme Court has on several occasions explicated the reasons why
juveniles are different from adults when it comes to imposing criminal punishment.
First, their immaturity and “underdeveloped sense of responsibility” is said to lead to
“recklessness, impulsivity, and heedless risk-taking.” Miller, 132 S. Ct. at 2464 (quoting
Graham v. Florida, 560 U.S. 48, ---, 130 S. Ct. 2011, 2026 (2010), and Roper v.
Simmons, 543 U.S. 551, 569 (2005)). Second, children are thought to be more
vulnerable to negative peer pressure and other influences and “lack the ability to
No. 12-3805         United States v. Marshall                                         Page 16


extricate themselves from horrific, crime-producing settings.” Ibid. Third, because a
child’s character is still developing, “his traits are ‘less fixed’ and his actions less likely
to be ‘evidence of irretrievabl[e] deprav[ity].’” Ibid. (quoting Roper, 543 U.S. at 570).

        These features that distinguish juveniles from adults have prompted the Supreme
Court to impose limits under the authority of the Eighth Amendment upon specific kinds
of sentences and sentencing practices for juvenile offenders. For instance, the Court has
imposed an absolute bar to the imposition of the death penalty upon defendants under
age 18. Roper, 542 U.S. at 575. Similarly, the Court has held unconstitutional sentences
of life without parole for juvenile offenders who commit nonhomicide offenses.
Graham, 130 S. Ct. at 2034. And the mandatory imposition of a life-without-parole
sentence upon a juvenile for any crime, including homicide, contravenes the Eighth
Amendment. Miller, 132 S. Ct. at 2469.

        The district court found that Marshall exhibited all the traits identified by the
Supreme Court in its juvenile sentencing cases. The uncontested evidence established
that Marshall suffered from human growth hormone deficiency that was not diagnosed
until 2005. That led to a lower-than-average intelligence quotient and “an estimated
mental age of 15.5 years.” United States v. Marshall, 870 F. Supp. 2d 489, 498 (N.D.
Ohio 2012). The district court concluded that “at the time of the crime [Marshall] was,
and should be characterized for sentencing as, a developmentally immature teenager
lacking the ability to appreciate the illegality of child pornography and to control his
viewing of easily accessible internet content.” Ibid.

        The majority does not dispute any of those points. It simply disregards them as
irrelevant because of Marshall’s chronological age. But that is incorrect. The Court in
Miller recognized the obvious fact that these features of adolescence do not instantly
disappear upon the arrival of one’s eighteenth birthday, which presumably prompted the
Court to observe that “‘youth is more than a chronological fact.’” Id. at 2467 (quoting
Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).

        A defendant’s youth, with its varying characteristics of immaturity, vulnerability,
and less-than-fully-developed character, is always a factor in determining an appropriate
No. 12-3805         United States v. Marshall                                       Page 17


sentence. It is plain that “children are constitutionally different from adults” not because
they are under 18 years of age, but because they have not attained the level of maturity
that characterizes adult mentation. See Miller, 132 S. Ct. at 2464–65. The Supreme
Court’s use of chronological age does not diminish that precept. Rather, chronological
age has been used merely as a bright line to define categorical prohibitions on the
imposition of certain kinds of sentences deemed disproportionate as a matter of
constitutional law. The passage from Roper quoted by the majority is a case in point.
In “draw[ing] the line” at age 18 for death penalty eligibility (raising it from the previous
bright-line limit of age 16, established in Thompson v. Oklahoma, 487 U.S. 815 (1988)),
the Court defined a class of individuals for whom the death penalty is automatically
deemed disproportionate and therefore unconstitutional. That pronouncement does not
justify the converse proposition, that the death penalty is constitutional for all those over
18 years old. And it does not render immaterial for an Eighth Amendment analysis the
fact that a defendant has the mental characteristics of a juvenile.

        Nor is the Supreme Court’s categorical bar to certain types of sentences limited
to those who are chronological juveniles, that is, under 18 years old. In Atkins v.
Virginia, 536 U.S. 304 (2002), the Court found that imposing the death penalty on
mentally retarded defendants is unconstitutional. In reaching that conclusion, the Court
identified the same features that diminished the defendant’s culpability as in the juvenile
cases. Id. at 318 (“Because of their impairments, . . . [mentally retarded persons], by
definition . . . have diminished capacities to understand and process information, to
communicate, to abstract from mistakes and learn from experience, to engage in logical
reasoning, to control impulses, and to understand the reactions of others.”). In Atkins,
the defendant was an adult, but he had the “mental age” of between 9 and 12 years old.
Id. at 310. Indeed, the Court, in essence, has equated diminished mental capabilities of
juveniles and mentally retarded persons as the central justification for its categorical
restrictions on types of sentences for classes of individuals: both juveniles and mentally
retarded individuals are “categorically less culpable than the average criminal.” Roper,
543 U.S. at 567 (quoting Atkins, 536 U.S. at 316).
No. 12-3805        United States v. Marshall                                     Page 18


       Marshall does not seek a categorical bar to the imposition of mandatory
minimum sentences upon juvenile offenders, of which he counts himself as one. Rather,
he argues that the mandatory minimum sentence is unconstitutional because it prevented
the district court from considering the developmental features that render him a juvenile
in all material respects, and therefore his sentence is excessive when measured against
his diminished culpability. I do not believe that chronological age plays a determining
role in that argument, and therefore I cannot join the court’s opinion, which holds
otherwise.

                                           II.

       The question presented is whether the five-year prison sentence mandated by the
statute in this case violates the Eighth Amendment when imposed upon Marshall, a
virtual juvenile. Marshall argues that under all the circumstances, the sentence is
excessive. The Eighth Amendment states that “cruel and unusual punishments [shall not
be] inflicted.” Sentences that are “excessive” violate that prohibition. Atkins, 536 U.S.
at 311. A sentence is excessive if it is disproportionate, that is, if it contravenes “the
basic ‘precept of justice that punishment for crime should be graduated and proportioned
to [the] offense.’” Roper, 543 U.S. at 560 (quoting Weems v. United States, 217 U.S.
349, 367 (1910)). Notably, in Miller, the Court added that a sentence must be
proportionate “to both the offender and the offense.” Miller, 132 S. Ct. at 2463.

       But the proportionality principle found in the Eighth Amendment is not well
defined when it comes to a term-of-years sentence.            The Supreme Court has
acknowledged “that [its] precedents in this area have not been a model of clarity.”
Lockyer v. Andrade, 538 U.S. 63, 72 (2003). “Indeed, in determining whether a
particular sentence for a term of years can violate the Eighth Amendment, we have not
established a clear or consistent path for courts to follow.” Ibid.

       In Lockyer v. Andrade, the Supreme Court reversed the Ninth Circuit’s grant of
a writ of habeas corpus on the ground that two twenty-five-years-to-life sentences
imposed under California’s “three strikes” law, where the triggering felony was the theft
of $150 worth of video tapes, violated the Cruel and Unusual Punishment Clause of the
No. 12-3805        United States v. Marshall                                      Page 19


Eighth Amendment. The Court noted that the “thicket” created by its jurisprudence
consisted primarily of its decisions in Solem v. Helm, 463 U.S. 277 (1983), Harmelin v.
Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445 U.S. 263 (1980). In
Andrade’s state court proceedings, the California court observed that the proportionality
rule set forth in Solem was cast into doubt by Harmelin and proceeded to analyze
Andrade’s sentence under the approach taken in Rummel, where the Supreme Court
rejected a claim that a life sentence imposed under Texas’s recidivist statute was grossly
disproportionate to the theft felonies that formed the predicate for the sentence. The
California court concluded that Andrade’s sentence was not disproportionate. The
Supreme Court held that the decision was not contrary to or an unreasonable application
of federal law that was clearly established by the Supreme Court. Lockyer, 538 U.S. at
72–77.

         The Supreme Court has held that the Eighth Amendment does not require strict
proportionality between the crime and sentence. See Harmelin, 501 U.S. at 965;
Graham, 130 S. Ct. at 2021. As the Supreme Court observed in Lockyer, it is generally
recognized after Harmelin that the Cruel and Unusual Punishment Clause of the Eighth
Amendment forbids only an extreme disparity between crime and sentence, that is,
sentences that are “grossly disproportionate” to the crime. Lockyer, 538 U.S. at 72
(citing Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)); see also Graham, 130 S.
Ct. at 2021 (reading Harmelin as stating “that the 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’” (citations omitted)).

         “Outside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.” Rummel, 445 U.S.
at 272. Rummel was convicted of obtaining $120.75 by false pretenses, a crime
punishable by at least two years but not more than ten years in prison. He was sentenced
as a recidivist to life imprisonment with the possibility of parole. His two prior felonies
consisted of fraudulent use of a credit card to obtain $80 worth of goods and services,
No. 12-3805          United States v. Marshall                                    Page 20


a felony punishable by two to ten years in prison; and passing a forged check for $28.36,
a crime punishable by two to five years in prison. The Supreme Court held that
Rummel’s life sentence under the state recidivist statute did not constitute cruel and
unusual punishment. In Harmelin, the Supreme Court upheld a life sentence without the
possibility of parole for possession of more than 650 grams of cocaine for an offender
with no prior felony convictions.

       The Supreme Court overturned a life sentence in Solem on the ground that it was
significantly disproportionate to Helm’s crime and therefore prohibited by the Eighth
Amendment. However, Helm had been sentenced to life imprisonment without the
possibility of parole for uttering a “no account” check for $100, and his prior felonies
also were minor, nonviolent crimes. By contrast, the Supreme Court reaffirmed Rummel
and found constitutional a sentence of twenty-five years to life imposed upon a fifth
felony theft conviction. See Ewing v. California, 538 U.S. 11, 24–31 (2003).

       None of those cases involved juveniles. Nonetheless, the general approach to
evaluating a proportionality challenge to a term-of-years sentence for both juveniles and
adults calls first for “comparing the gravity of the offense and the severity of the
sentence.” Graham, 130 S. Ct. at 2022. Second, the court must 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.”
Ibid. “If this comparative analysis ‘validate[s] an initial judgment that [the] sentence is
grossly disproportionate,’ the sentence is cruel and unusual.” Ibid. (quoting Harmelin,
501 U.S. at 1005).

       The gravity of offenses dealing with child pornography cannot be overestimated.
This court and others have documented well the devastating and long-lasting effects that
the creation and dissemination of child pornography have on its victims, inflicting
emotional, physical, and psychological damage, sometimes permanently. See United
States v. Bistline, 665 F.3d 758, 766 (6th Cir. 2012); see also New York v. Ferber, 458
U.S. 747, 757–59 & nn.8–10 (1982). Neither the district court nor the defendant here
suggests otherwise. See United States v. Marshall, 870 F. Supp. 2d at 493.
No. 12-3805        United States v. Marshall                                     Page 21


       In light of the sentences found constitutional in Lockyer, Harmelin, Rummel, and
Ewing, it is difficult to conclude that a five-year sentence for the serious crime of
receiving child pornography supports an inference of gross disproportionality. The
Second Circuit concluded that no such inference arises from the mandatory five-year
sentence in a distribution-of-child-pornography case, and that reasoning conveniently
applies here. United States v. Reingold, 731 F.3d 204, 218–19 (2d Cir. 2013) (noting
“the depicted sexual exploitation of an eight-year old on the distributed video” in that
case and concluding “that the crime of conviction here is a more serious offense than the
golf club and videotape thefts in Ewing and Lockyer, for which the Supreme Court
upheld prison sentences of 25 years to life”).

       But Marshall argues that the five-year sentence is disproportionate to him
because its mandatory nature prevents the court from considering his individual
characteristics as a virtual juvenile. After all, he says, the Supreme Court did not hold
that a life-without-parole sentence for juvenile murderers was unconstitutional per se in
Miller v. Alabama; it “mandate[d] only that a sentencer follow a certain process —
considering an offender’s youth and attendant characteristics — before imposing a
particular penalty.” Miller, 132 S. Ct. at 2471.

       I do not believe that Miller can be read to prohibit mandatory term-of-years
sentences for juveniles across the board. It is true that the Miller court did distinguish
the statement in Harmelin that “a sentence which is not otherwise cruel and unusual”
does not “becom[e] so simply because it is ‘mandatory,’” Harmelin, 501 U.S. at 995,
by observing that Harmelin “had nothing to do with children and did not purport to apply
its holding to the sentencing of juvenile offenders.” Miller, 132 S. Ct. at 2470.
However, the Miller court’s main premise was that “youth matters for purposes of
meting out the law’s most serious punishments,” id. at 2471 (emphasis added) —
meaning death and life without parole — and therefore the failure to consider individual
characteristics in those types of cases is unconstitutional. See id. at 2469 (“Although we
do not foreclose a sentencer’s ability to [impose a life-without-parole] judgment in
homicide cases, we require it to take into account how children are different, and how
No. 12-3805        United States v. Marshall                                     Page 22


those differences counsel against irrevocably sentencing them to a lifetime in prison.”
(emphasis added)). Applying that reasoning to a five-year mandatory sentence is too
great a span to be supported by the Court’s rationale.

       The five-year sentence in this case, which almost certainly is greater than
necessary to achieve any rational sentencing objectives, cannot be considered extreme
in the greater context of juvenile punishment. There are hundreds of cases in which
youthful offenders have been sentenced to much longer prison terms for serious crimes.
See, e.g., Lelenoa v. Uribe, No. 11-6522, 2013 WL 569598 (C.D. Cal. Feb. 10, 2013)
(denying an Eighth Amendment habeas claim where petitioner was sentenced to 23 years
total for five armed robberies committed when he was a juvenile); Young v. State, No.
01-09-00790, 2012 WL 668927 (Tex. App. Mar. 1, 2012) (holding that a sentence of
15 years for aggravated sexual assault involving a child under the age of 14 was not
disproportionate where the defendant was 17 at the time of the crime); State v. Pettigrew,
204 N.C. App. 248, 693 S.E.2d 698 (2010) (holding that a sentence of 32 to 40 years was
not disproportionate for convictions of sexual assault of a minor stemming from
defendant’s frequent abuse of his younger relative when defendant was between 11 and
16 years old); Cuvas v. State, 306 Ga. App. 679, 703 S.E.2d 116 (2010) (upholding a
sentence of 10 years imprisonment for armed robbery where the defendant was 13 years
old at the time of the crime); Stovall v. State, 05-95-01862, 1997 WL 459082 (Tex. App.
Aug. 13, 1997) (holding that a sentence of 20 years for aggravated assault (the statutory
maximum) was not disproportionate where the defendant was 15 at the time of the crime
and had only a misdemeanor criminal record). Despite Marshall’s immaturity and
juvenile-like characteristics, I cannot conclude that the five-year custody sentence is
grossly disproportionate to the crime to which he pleaded guilty. Therefore, I concur in
the court’s judgment affirming the sentence against Marshall’s Eighth Amendment
challenge.

                                           III.

       Two more points deserve discussion. The district court found that a sentence of
“60 months is excessive, unjust, and greater than necessary as applied to this
No. 12-3805        United States v. Marshall                                      Page 23


Defendant.” Marshall, 870 F. Supp. 2d at 499. Based on the record, it is difficult to
quarrel with that conclusion. The injustice in this case results from the combination of
the government’s decision to charge the defendant with receipt rather than possession
of child pornography, and the rigidity of the mandatory minimum sentence — which
divests the district court of discretion to consider individual characteristics when
attempting to impose a sentence that is “sufficient, but not greater than necessary” to
reflect the seriousness of the crime, achieve deterrence, protect the public, and address
the defendant’s special needs. 18 U.S.C. § 3553(a)(1), (2).

                                            A.

       The crime of receiving child pornography is prohibited by 18 U.S.C.
§ 2252(a)(2); it is punishable by a sentence of at least five years and up to 20 years. Id.
§ 2252(b)(1). The crime of possessing child pornography is prohibited by 18 U.S.C.
§ 2252(a)(5); it is punishable by a sentence of up to 20 years (if the images involve
prepubescent minors). There is no mandatory minimum sentence for possession. Id.
§ 2252(b)(2). The statutes do not define the terms “receipt” or “possession.” This court
has stated, however, that “standing alone, the current statutory scheme makes no
principled distinction between possessing and receiving child pornography, which can
often times be virtually identical conduct, but nonetheless results in vastly different
mandatory sentencing ranges.” United States v. Robinson, 669 F.3d 767, 776 n.2 (6th
Cir. 2012); see also United States v. Dudeck, 657 F.3d 424, 429 (6th Cir. 2011)
(acknowledging that “‘[t]hese statutory provisions . . . [are] materially identical.’”
(quoting United States v. Miller, 527 F.3d 54, 64 n.10 (3d Cir. 2008)).

       Marshall contends that because there is no real difference between the crime of
possession of child pornography and receipt of child pornography, save that the latter
carries a mandatory minimum sentence, Congress unlawfully delegated what amounts
to judicial sentencing authority to the executive branch. The majority rejects that
argument, as it is obligated to do, because the prosecutor has broad discretion to select
the charge to present to the grand jury. United States v. Armstrong, 517 U.S. 456, 464
(1996); see also Wayte v. United States, 470 U.S. 598, 607 (1985); Bordenkircher v.
No. 12-3805        United States v. Marshall                                     Page 24


Hayes, 434 U.S. 357, 364 (1978). One might expect that the government would take
great care when deciding to charge a crime that carries a mandatory minimum sentence,
especially when an identical crime without a mandatory sentence is available and will
serve the same penological goals. But the charging decision in this case was woefully
uninformed and even irresponsible. Nonetheless, “an exercise of prosecutorial discretion
cannot be successfully challenged merely on the ground that it is irrational or arbitrary;
in the realm of prosecutorial charging decisions, only invidious discrimination is
forbidden.” United States v. Moore, 543 F.3d 891, 900 (7th Cir. 2008). Although the
government’s judgment in this case can be questioned, there is no legal basis to second-
guess the government’s choice of charges.

                                           B.

       Nor can the defendant prevail on his argument that the mandatory minimum
sentence must yield to the parsimony provision in 18 U.S.C. § 3553(a), as the majority
correctly states. This court’s precedents have established that a sentencing court’s
determination that a mandatory sentence works an injustice is insufficient by itself to
disregard the mandate. United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010)
(declaring that “[w]hen a court and a mandatory minimum are in conflict, the minimum
wins”). Furthermore, statutes mandating minimum sentences trump the more general
command of section 3553(a). Ibid. (quoting United States v. Franklin, 499 F.3d 578,
585–86 (6th Cir. 2007)). And curtailing a court’s sentencing discretion by requiring
mandatory minimum sentences does not offend the separation of powers doctrine.
United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008).

       If there is to be relief for the occasional defendant like Dylan Marshall for whom
a mandatory minimum sentence “is excessive, unjust, and greater than necessary,” it
must come from Congress. In March of this year, Senator Rand Paul introduced S. 619,
the Justice Safety Valve Act of 2013, which would amend 18 U.S.C. § 3553 to add
subsection (g), that would state:

       (1) General rule.--Notwithstanding any provision of law other than this
       subsection, the court may impose a sentence below a statutory minimum
No. 12-3805        United States v. Marshall                                      Page 25


       if the court finds that it is necessary to do so in order to avoid violating
       the requirements of subsection (a).

The legislation would require “[t]he court [to] state, in the written statement of reasons,
the factors under subsection (a) that require imposition of a sentence below the statutory
minimum.” S. 619, 113th Cong. § 2(g)(3). The Bill is co-sponsored by Senator Patrick
Leahy. It appears that the intent of the Bill’s sponsors is to allow sentencing courts a
broader measure of discretion and give full effect to Congress’s stated sentencing goals
reflected in section 3553(a). See Reevaluating the Effectiveness of Federal Mandatory
Minimum Sentences: Hearing on S. 619 Before the S. Comm. on the Judiciary (2013)
(Statement of Sen. Patrick Leahy) (referencing mandatory minimum sentences and
acknowledging, “When I look at the evidence we have now, I realize we were wrong.
Our reliance on a one-size-fits-all approach to sentencing has been a great mistake.
Mandatory minimums are costly, unfair, and do not make our country safer. . . . Senator
Paul and I believe that judges, not legislators, are in the best position to evaluate
individual cases and determine appropriate sentences.”).

       Senate Bill 619, however, is not the law at present. Until it — or legislation like
it — is enacted, defendants like Dylan Marshall are out of luck. The mandatory five-
year sentence imposed in this case is not unconstitutional, despite the defendant’s mental
age, and under the applicable statutes, the district court was bound to impose it. For
those reasons, I concur in the judgment affirming the sentence.
