            Case: 13-10556    Date Filed: 11/15/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10556
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:12-cr-00253-AKK-HGD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

COLT BRYAN LECUYER,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (November 15, 2013)

Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Colt Lecuyer appeals his 120-month sentence, the statutory mandatory

minimum, after being convicted of one count of attempt to entice a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Lecuyer contends

that his sentence is cruel and unusual in violation of the Eighth Amendment and

that § 2422(b)’s mandatory minimum is grossly disproportionate to his crime. He

also contends that his sentence violates the separation of powers doctrine because

mandatory minimum sentences foreclose the judicial discretion provided for in 18

U.S.C. § 3553(a). Finally, Lecuyer contends that his sentence deprives him of his

substantive due process rights under the Fifth Amendment because the sentencing

court was not able to meaningfully consider mitigating factors.

      We review de novo constitutional challenges to a sentence. United States v.

Flores, 572 F.3d 1254, 1268 (11th Cir. 2009).

                                         I.

      A defendant who challenges a non-capital sentence on Eighth Amendment

grounds must show as a threshold requirement that the sentence is grossly

disproportionate to the offense committed. United States v. Johnson, 451 F.3d

1239, 1243 (11th Cir. 2006). A prison sentence within the statutory limits

generally does not violate the Eighth Amendment. Id. In fact, we have “never

found a term of imprisonment to violate the Eighth Amendment, and outside the

special category of juvenile offenders the Supreme Court has only found one to do


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so.” United States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010). In

determining whether a sentence of imprisonment is grossly disproportionate to the

crime, the mandatory nature of it is irrelevant. Id.

      Without the mandatory minimum, Lecuyer’s guidelines range would have

been 97 to 121 months. With the mandatory minimum it became 120 to 121

months. Lecuyer has failed to show that his 120-month sentence is grossly

disproportionate to the crime of attempting to entice a 13-year-old child to engage

in sex. See id. 1343–45 (rejecting an Eighth Amendment challenge to a 30-year

mandatory minimum sentence for crossing a state line with intent to engage in a

sexual act with a child under the age of 12).

                                          II.

      Lecuyer next contends that his sentence violates the separation of powers

doctrine. We have consistently rejected that contention in regard to mandatory

minimum sentences. See, e.g., United States v. Paige, 604 F.3d 1268, 1274 (11th

Cir. 2010) (holding that this Court’s precedent establishes that mandatory

minimums do not violate the separation of powers doctrine); United States v.

Osburn, 955 F.2d 1500, 1504–05 (11th Cir. 1992) (“Federal legislation mandating

length of sentences does not violate the separation of powers doctrine.”); United

States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988) (holding that mandatory

minimum sentences do not violate the separation of powers doctrine because “[i]t


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is for Congress to say what shall be a crime and how that crime shall be punished”)

(quotation marks and ellipsis omitted). Lecuyer’s separation of powers argument is

foreclosed by binding precedent.

                                         III.

      As for Lecuyer’s substantive due process argument, we note that the

Supreme Court has held that a sentencing court may impose whatever penalty is

authorized by statute so long as the penalty is not cruel and unusual and is not

based on an arbitrary distinction that would violate the Due Process Clause of the

Fifth Amendment. Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919,

1927 (1991). A sentence imposed by statute is not arbitrary when the statute has a

rational basis. See United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988)

(analyzing the mandatory minimum for possession of cocaine with the intent to

distribute under a rational basis standard because no suspect classification or

fundamental right was at issue). Lecuyer bears the burden of showing that

§ 2422(b)’s 120-month mandatory minimum lacks any rational basis. See Bah v.

City of Atlanta, 103 F.3d 964, 967 (11th Cir. 1997) (“Those attacking the

rationality of the legislative classification have the burden to negative every

conceivable basis which might support it.”) (quotation marks and brackets

omitted).




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      Lecuyer has failed to present any evidence or authority to suggest that

Congress lacked a rational basis for enacting a 120-month minimum sentence for

defendants convicted of attempting to entice a minor to engage in sexual activity.

We have rejected similar due process challenges to mandatory minimums imposed

for drug offenses, determining that Congress could have rationally concluded that

those mandatory sentences are necessary to protect the public’s health and welfare.

See Solomon, 848 F.2d at 157; Holmes, 838 F.2d at 1177–78. It is obvious that

Congress could have rationally determined that long sentences are necessary to

protect the public from criminals who have been convicted of attempting to

commit sex offenses against children.

      Nor does Lecuyer’s sentence violate the Fifth Amendment Due Process

Clause just because it involved a mandatory minimum. See Holmes, 838 F.2d at

1177–78. The district court was still able to impose an individualized sentence

within the statutory range of 120 months to life imprisonment, see 18 U.S.C.

§ 2422(b), and it did so by determining that Lecuyer should receive the statutory

minimum sentence.

      AFFIRMED.




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