                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 8 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID L. LARSON,

                Petitioner-Appellant,

    v.                                                   No. 97-4160
                                                    (D.C. No. 94-CV-1142)
    HANK GALETKA, Warden, Utah                             (D. Utah)
    State Prison,

                Respondent-Appellee.




                            ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner David L. Larson challenges the constitutionality of the state

statute under which he was denied probation for his convictions for sodomy on a

child and sexual abuse of a child. In his petition for habeas corpus relief under

28 U.S.C. § 2254, he claims that Utah Code Ann. § 76-5-406.5(1) is

unconstitutionally vague and violates his rights to due process, to equal protection

of the laws, and to be free from cruel and unusual punishment. The district court

denied habeas relief. We exercise jurisdiction under 28 U.S.C. § 1291, 1 and

affirm.

      On July 28, 1986, petitioner pled guilty to one count of sodomy on his five-

year-old stepdaughter in violation of Utah Code Ann. § 76-5-403.1(1) and one

count of sexual abuse of his four-year-old stepdaughter in violation of Utah Code

Ann. § 76-5-404.1(1). He had been married to the girls’ mother for about five

months. He committed the offenses sequentially and in the presence of both girls

on a day when their mother was away from the home. The trial court sentenced

him to concurrent terms of a mandatory minimum five years’ imprisonment to


1
       Because petitioner filed his petition before the enactment of the
Antiterrorism and Effective Death Penalty Act, the Act’s certificate of
appealability provisions do not apply. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). We grant
petitioner a certificate of probable cause.

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life, and one to fifteen years’ imprisonment. The trial court did not sentence

petitioner to probation because § 76-5-406.5(1) and subsections (1)(d) and (1)(f)

did not provide probation as an alternative for a defendant who had lived with his

stepchildren for less than a year, or who had committed an offense against more

than one victim at the same time or during the same course of conduct, or who

had knowingly committed the offense in front of a person other than the victim.

See State v. Larson, 758 P.2d 901, 902-03 (Utah 1988) (discussing facts of case

and quoting then-current version of § 76-5-406.5(1)). Petitioner believes he

should have been sentenced to probation.

      Petitioner’s claims are without merit. The five-year minimum mandatory

sentence for sodomy on a child does not constitute cruel and unusual punishment.

See State v. Bishop, 717 P.2d 261, 268-72 (Utah 1986). Nor does § 76-5-406.5(1)

violate the equal protection clause. See id. at 265-67; State v. Egbert, 748 P.2d

558, 559 (Utah 1987). Finally, § 76-5-406.5(1) is not unconstitutionally vague.

See Egbert, 748 P.2d at 559-60.




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      Petitioner is granted a certificate of probable cause. The judgment of the

United States District Court for the District of Utah is AFFIRMED.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




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