          United States Court of Appeals
                     For the First Circuit


No. 17-1034

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        DOUGLAS BLODGETT,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                   Torruella, Selya and Lynch,
                         Circuit Judges.


     Clifford B. Strike and Strike, Gonzales & Butler Bailey on
brief for appellant.
     Richard W. Murphy, Acting United States Attorney, and
Benjamin M. Block, Assistant United States Attorney, on brief for
appellee.



                       September 27, 2017
            SELYA, Circuit Judge.            In this sentencing appeal, we

confront an issue of first impression in this circuit: defendant-

appellant Douglas Blodgett asks us to declare unconstitutional, as

violative of the Due Process Clause of the Fifth Amendment, the

mandatory    minimum       sentence    for    accessing      child    pornography

applicable to any individual who has a prior state conviction for

abusive    sexual    conduct      involving    a    minor.      See    18   U.S.C.

§    2252A(b)(2).     In    the   bargain,     he   also   contends    that   this

mandatory minimum constitutes cruel and unusual punishment under

the     Eighth     Amendment.         Concluding     that      the    defendant's

asseverational      array    lacks    force,    we    affirm    the    challenged

sentence.

I.    BACKGROUND

            We briefly rehearse the background and travel of the

case.    Because this appeal follows the defendant's guilty plea, we

draw the facts from the undisputed portions of the presentence

investigation report and the sentencing transcript.                   See United

States v. King, 741 F.3d 305, 306 (1st Cir. 2014); United States

v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

            On November 20, 1996, the defendant, then age twenty-

six, was arrested for molesting a thirteen-year-old girl.                     This

incident led to his 1997 conviction, in a Maine state court, on

charges of unlawful sexual contact.            See Me. Rev. Stat. Ann. tit.

17-A, § 255 (1996), repealed by 2001 Me. Laws 562.                    Thereafter,


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the defendant had a clean slate for nearly two decades.               In early

2016, though, an investigation by the Department of Homeland

Security   revealed   that   he   had   downloaded   and    viewed      sexual

depictions of prepubescent minors.

           On April 27, 2016, a federal grand jury sitting in the

District of Maine charged the defendant with one count of accessing

child pornography with the intent to view it.               See 18 U.S.C.

§ 2252A(a)(5)(B). Roughly four months later, the defendant pleaded

guilty to the charge.

           At   the   disposition       hearing,   the     district      court

determined that the defendant's total offense level and criminal

history yielded a guideline sentencing range of 57 to 71 months.

The court held, however, that a ten-year mandatory minimum sentence

required by statute trumped the guideline range, see 18 U.S.C.

§   2252A(b)(2),   and   sentenced      the   defendant    to   ten     years'

imprisonment.   As relevant here, the statutory provision relied on

by the court prescribes a ten-year minimum and a twenty-year

maximum sentence if an individual has accessed child pornography

with intent to view it and has a prior state conviction pertaining

to "aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor."1 Id. After the imposition of sentence,

this timely appeal ensued.


     1 For the sake of completeness, we note that the ten-year
mandatory minimum may also apply if a defendant has previously


                                  - 3 -
II.   ANALYSIS

           On appeal, the defendant assigns error in two respects.

We consider these assignments of error sequentially.

                         A.   Due Process.

           The defendant does not dispute that his 1997 conviction

for unlawful sexual contact was a prior state conviction involving

abusive sexual conduct with a minor.   Rather, his principal claim

is that imposition of the ten-year minimum sentence under section

2252A(b)(2) amounts to arbitrary governmental action in violation

of the Due Process Clause.    We review this claim de novo because

it turns on an abstract legal proposition.    See United States v.

Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007).

           Every person has the "fundamental right" to be free from

criminal punishment unless and until the government "proves his

guilt beyond a reasonable doubt" in a proceeding "conducted in

accordance with the relevant constitutional guarantees."   Chapman

v. United States, 500 U.S. 453, 465 (1991).     Once a person has

been convicted, though, any punishment prescribed is consistent

with the Due Process Clause as long as "Congress had a rational

basis for its choice of penalties" and the particular penalty

imposed "is not based on an arbitrary distinction."        Id.   It



been convicted of certain other federal and state crimes relating
to sexual predation, including the "production, possession,
receipt, mailing, sale, distribution, shipment, or transportation
of child pornography." 18 U.S.C. § 2252A(b)(2).


                               - 4 -
follows that a statute requiring a mandatory minimum sentence is

presumptively valid and will be upheld unless it is not "rationally

related    to     legitimate    government    interests."        Washington    v.

Glucksberg, 521 U.S. 702, 728 (1997); see, e.g., United States v.

Wheelock, 772 F.3d 825, 830 (8th Cir. 2014) (applying rational

basis review to due process challenge to mandatory minimum sentence

for     child     pornography    offense      under    section       2252(b)(1)).

Rebutting this presumption is a daunting task, requiring the

defendant to show the irrationality of any and all justifications

potentially undergirding the challenged sentence.                See González-

Droz v. González-Colón, 660 F.3d 1, 9 (1st Cir. 2011) (citing Bd.

of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2011)).

            The defendant has failed to carry this heavy burden.

The legislative history of a statute is often a window into the

reasons behind its enactment.         See Richardson v. Belcher, 404 U.S.

78, 82 (1971).      To find a rational basis for the mandatory minimum

penalty under section 2252A(b)(2), we need look no further than

the statute's legislative history.

            Congress increased the penalty under section 2252A(b)(2)

from two years to ten years in the Prosecutorial Remedies and Other

Tools to end the Exploitation of Children Today Act of 2003

("PROTECT Act"), Pub. L. No. 108-21, § 103(b)(1)(F), 117 Stat.

650, 653 (2003).       As new modes of communication proliferated over

time,     child    pornography    —   and     with    it,   sexual    abuse   and


                                      - 5 -
exploitation of minors — became increasingly prevalent problems.

See United States v. Polk, 546 F.3d 74, 77 (1st Cir. 2008); see

also United States v. MacEwan, 445 F.3d 237, 250 (3d Cir. 2006).

The PROTECT Act was designed to penalize participants "at all

levels in the distribution chain" for child pornography.            Polk,

546 F.3d at 77 (citation omitted).        Congress fashioned the ten-

year mandatory minimum sentence under section 2252A(b)(2) out of

a concern that federal judges had sentenced child pornography

defendants too leniently and had not accounted sufficiently for

the dangers posed by recidivist offenders.      See H.R. Rep. No. 108-

66, at 51 (2003) (Conf. Rep.) (noting that "increased mandatory

minimum sentences" were necessary because, inter alia, many courts

had misconceived of possessory child pornography crimes as being

"not serious"); S. Rep. No. 108-2, at 19 (2003) (noting that

Section 103 of the PROTECT Act was meant to "enhance[] penalties

for repeat offenders of child sex offenses").

          This legislative history makes pellucid that Congress's

insistence   on   a   ten-year   mandatory    minimum    under   section

2252A(b)(2) has a rational basis.        After all, "the punishment of

recidivism . . . 'has long been recognized as a legitimate basis

for increased punishment.'"      MacEwan, 445 F.3d at 248 (quoting

Ewing v. California, 538 U.S. 11, 25 (2003) (plurality opinion)).

Against   this    backdrop,   Congress    reasonably    concluded   that

participants in the child pornography market who had a prior


                                 - 6 -
history of sexual abuse and had been unable to "comport their

conduct to the dictates of the law" were especially dangerous and

needed to be punished more severely.         United States v. Gross, 437

F.3d 691, 694 (7th Cir. 2006).

           In an effort to blunt the force of this reasoning, the

defendant argues that the mandatory minimum sentence is arbitrary

as applied to him due to the two-decade lapse between his state

conviction and his federal conviction.         Relatedly, the defendant

argues that section 2252A(b)(2) is arbitrary under the facts of

this case because — in his view — Congress was concerned chiefly

with   punishing   offenders   who    distribute   or   manufacture   child

pornography,   not    those    who    simply   access    and   view   child

pornography.

           These arguments are simply jejune.            Congress already

accounted for the distinction between these sorts of offenses by

providing for a longer fifteen-year mandatory minimum sentence for

those who distribute or manufacture child pornography and who have

a prior conviction involving sexual predation.             See 18 U.S.C.

§ 2252A(b)(1). Moreover, Congress plainly chose not to distinguish

between defendants based on the amount of time elapsed since the

commission of the predicate offense.

           In all events, to the extent the defendant is arguing

that the Due Process Clause entitles him to a wholly individualized




                                     - 7 -
sentence, formulated without regard to any mandatory minimum, this

argument is unavailing.

                It    is     apodictic       that     in     non-capital        cases,       the

Constitution confers no right to such a totally individualized

sentence.        See United States v. Campusano, 947 F.2d 1, 3-4 (1st

Cir.     1991).              While        sentencing       ordinarily          entails       "an

individualized            assessment"       of   a    defendant        and    his    personal

circumstances, Gall v. United States, 552 U.S. 38, 50 (2007); see

18     U.S.C.    §        3553(a),    a    sentencing        paradigm        "providing     for

individualized sentences rests not on constitutional commands, but

on public policy enacted into statutes," Chapman, 500 U.S. at 467

(internal quotation marks omitted).                     Here, it is undisputed that

the defendant's criminal history placed him squarely within the

confines    of        the    mandatory       minimum       prescribed        under    section

2252A(b)(2).              Congress     chose     to    divest     district       courts      of

discretion           to    impose     sentences        below     ten     years       in     such

circumstances — and that was Congress's choice to make.                              See id.;

MacEwan, 445 F.3d at 252-53; Campusano, 947 F.2d at 3-4.

                We    add,    moreover,       that     the    defendant's        attempt      to

downplay the severity of his conduct because he was a viewer of

vile     material,          not   a    producer       or     distributor        of    it,     is

unpersuasive.               Congress      reasonably         determined       that    it    was

necessary to reduce "both supply and demand in the interstate

market" for child pornography.                   United States v. Paige, 604 F.3d


                                             - 8 -
1268, 1273-74 (11th Cir. 2010).           By accessing child pornography

with intent to view it, the defendant contributed to the continued

viability    of    this    highly   exploitative    market;      and    Congress

reasonably determined that such conduct, especially when carried

out by a recidivist offender, warranted heightened punishment.

See United States v. Ellison, 113 F.3d 77, 81 (7th Cir. 1997)

(observing that "even the receipt of [child pornography] for

personal use, without more, keeps producers and distributors of

this filth in business").

            The short of it is that the defendant tries to shrug off

his accessing of child pornography as a mere peccadillo. Congress,

however,    took     that    sort    of    misbehavior        more   seriously,

particularly when perpetrated by an individual with a prior record

of abusive sexual conduct involving a minor.

            In    making     this   judgment,      Congress      recognized     —

reasonably, we think — that manufacturers and distributors of child

pornography cannot thrive without consumers eager to embrace the

smut that they produce.        Given this perception, we conclude that

the   mandatory      minimum    sentence     established        under    section

2252A(b)(2) is part of a rational sentencing scheme.                     It is,

therefore, consistent with the Due Process Clause.

                    B.    Cruel and Unusual Punishment.

            We turn next to the defendant's plaint that his ten-year

sentence    was    grossly   disproportionate      to   the    crime    that   he


                                     - 9 -
committed and, thus, infringed his Eighth Amendment right to be

free from cruel and unusual punishment.          Inasmuch as the defendant

failed to raise his Eighth Amendment argument below, our review is

limited to plain error.     See United States v. Duarte, 246 F.3d 56,

57, 60 (1st Cir. 2001).      We detect no error, plain or otherwise.

            The Eighth Amendment's proscription against cruel and

unusual     punishment     reaches   sentences       "that   are   grossly

disproportionate to the underlying offense."             Polk, 546 F.3d at

76.   Given the high bar set by this standard, we need not linger

long over the defendant's plaint.

            The   Eighth    Amendment     does     not   mandate   "strict

proportionality between crime and sentence but rather forbids only

extreme sentences that are grossly disproportionate to the crime."

Graham v. Florida, 560 U.S. 48, 60 (2010) (internal quotation marks

omitted).    A finding of gross disproportionality is "hen's-teeth

rare," especially outside the capital punishment milieu.             Polk,

546 F.3d at 76.     As the Supreme Court has explained, mandatory

minimum sentences, though perhaps appearing to be cruel in some

circumstances, "are not unusual in the constitutional sense."

Harmelin v. Michigan, 501 U.S. 957, 994 (1991).                Instead, a

mandatory minimum sentence reflects Congress's policy judgment, to




                                 - 10 -
which the judicial branch owes substantial deference.      See Polk,

546 F.3d at 76.    So it is here.2

           Undaunted by this stockpile of precedent, the defendant

suggests that society would be better served if consumers of child

pornography      obtain   psychological   treatment   in   lieu   of

incarceration.    This suggestion, though, is misdirected: under our

tripartite system of government, "Congress — not the judiciary —

is vested with the authority to define, and attempt to solve

. . . societal problems."      United States v. Saccoccia, 58 F.3d

754, 789 (1st Cir. 1995).    When Congress has identified a societal

problem and articulated a rational response, courts must "step

softly and cede a wide berth" to the legislature's "authority to

match the type of punishment with the type of crime."      Polk, 546

F.3d at 76.

           Congress has concluded that a ten-year mandatory minimum

sentence is appropriate for an individual previously convicted of

a state crime of sexual predation involving a child, who is

thereafter convicted of accessing child pornography with intent to

view it.   Because this conclusion is neither irrational nor prone


     2 Of course, a court weighing an Eighth Amendment challenge
should also consider "the sentences imposed on other criminals in
the same jurisdiction" as well as "the sentences imposed for
commission of the same crime in other jurisdictions." Solem v.
Helm, 463 U.S. 277, 292 (1983). But a court may bypass these two
steps when the challenged sentence, on its face, is not grossly
disproportionate to the offense of conviction. See Polk, 546 F.3d
at 76 (citing Ewing, 538 U.S. at 23, 30-31). This is such a case.


                                - 11 -
to produce grossly disproportionate sentences, we are without

authority to second-guess the legislative branch.        See United

States v. Dwinells, 508 F.3d 63, 69 (1st Cir. 2007).

III.   CONCLUSION

            We need go no further. For the reasons elucidated above,

the judgment of the district court is



Affirmed.




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