                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0159n.06

                                     Nos. 09-6166, 09-6167

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                FILED
UNITED STATES OF AMERICA,                        )                           Mar 17, 2011
                                                 )                     LEONARD GREEN, Clerk
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
JERRY LEE McINTOSH,                              )   MIDDLE DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )



       Before: BATCHELDER, Chief Judge; CLAY and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Jerry Lee McIntosh pleaded guilty to two counts of possessing a

computer containing child pornography and one count of making a counterfeit check. This was not

McIntosh’s first child pornography conviction, and as a result this one came with a ten-year

mandatory minimum sentence. As all of McIntosh’s challenges to the sentence fall short, we affirm.


                                                I.


       On August 6, 2004, McIntosh called a Tennessee deli and ordered over $500 of food. When

the deli delivered the food, McIntosh paid with a counterfeit check. Deli employees contacted local

police after the bank notified them that the check was invalid. Using the telephone number of the

person who placed the order, officers traced the check to McIntosh, and they arrested him.
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United States v. McIntosh

       McIntosh waived his Miranda rights, then admitted that he used a counterfeit-check-writing

program to manufacture the check. The police asked to search his computer, and he consented. A

forensic analysis of the computer revealed 35 images of child pornography.


       A federal grand jury charged McIntosh with two counts of possessing a computer containing

images of child pornography, 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and one count of making

a counterfeit check, id. § 513(a). McIntosh pleaded guilty to the three counts without a Rule 11 plea

agreement. Because McIntosh had a prior conviction for child pornography, he faced a ten-year

statutory minimum sentence for the two child pornography counts. See id. § 2252A(b)(2). The

district court imposed a 120-month sentence.


                                                 II.


       McIntosh challenges the constitutionality of his statutory minimum sentence, claiming it is

“cruel and unusual” under the Eighth Amendment. This constitutional guarantee, however, covers

“a narrow proportionality principle” that “forbids only extreme sentences that are grossly

disproportionate to the crime.” Harmelin v. Michigan, 501 U.S. 957, 997, 1001 (1991) (Kennedy,

J., concurring in part and concurring in the judgment); see id. at 994 (majority op.) (rejecting claim

that mandatory sentences are unconstitutional unless sentencing courts consider mitigating factors);

see Graham v. Florida, __ U.S. __, 130 S. Ct. 2011, 2021 (2010) (treating Justice Kennedy’s

Harmelin concurrence as the “controlling opinion”). The guarantee thus does not require that

sentences be in “strict proportion[]” to their underlying crimes. Harmelin, 501 U.S. at 1001 (opinion


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United States v. McIntosh

of Kennedy, J.). “[O]nly an extreme disparity between crime and sentence offends the Eighth

Amendment,” United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000), as the courts give

“substantial deference” to Congress’s sentencing policies. Harmelin, 501 U.S. at 999 (opinion of

Kennedy, J.).


       The short answer to McIntosh’s challenge is that a ten-year sentence for this kind of crime

is neither unusual nor disproportionate to the underlying offense. This Court, to be sure, has yet to

entertain an Eighth Amendment challenge to a ten-year sentence for a defendant convicted solely of

child pornography offenses. But many of our sister circuits have already addressed the 18 U.S.C.

§ 2252A enhancement in the context of child pornography crimes; they have unfailingly found that

there is no violation of the Eighth Amendment. See, e.g., United States v. MacEwan, 445 F.3d 237

(3d Cir. 2006) (upholding 15-year sentence for second conviction for receipt of child pornography);

United States v. Gross, 437 F.3d 691 (7th Cir. 2006) (upholding 15-year sentence for distribution

of child pornography); United States v. Meiners, 485 F.3d 1211 (9th Cir. 2007) (per curiam)

(upholding 15-year sentence for advertisement of child pornography, distribution of child

pornography and possession of child pornography); United States v. Hayes, No. 10-4344, 2010 WL

5065991 (4th Cir. Dec. 10, 2010); United States v. Soule, 250 F. App’x 834, 837–38 (10th Cir.

2007); United States v. Weis, 487 F.3d 1148 (8th Cir. 2007) (upholding 15-year sentence for receipt

of child pornography under § 2252, which is similar to § 2252A). We reach the same conclusion

here. In view of the “substantial deference” we owe Congress in defining crimes and assessing




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United States v. McIntosh

punishments, we cannot say that a ten-year sentence is cruel and unusual punishment for the crimes

of a repeat offender like McIntosh.


       McIntosh has no answers to this predicament. He acknowledged at sentencing “that there’s

no case law that supports the challenges that we’ve made.” R.105 at 3. And the only case cited in

his appellate briefs in support of his argument—an out-of-circuit district court case, see United States

v. Farley, No. 1:07-CR-196-BBM, D.E. 106 (N.D. Ga. Sept. 2, 2008)—has been overruled. See

United States v. Brenton-Farley, 607 F.3d 1294 (11th Cir. 2010).


       Moving from one difficult argument to another, McIntosh alternatively claims that his

sentence violates the Fifth Amendment’s Due Process Clause, which as a matter of “reverse

incorporation” picks up the equal-protection guarantees of the Fourteenth Amendment. See Bolling

v. Sharpe, 347 U.S. 497, 499–500 (1954). He makes no claim that he is a member of a suspect class

or that a fundamental right is at stake, leaving him to argue that Congress’s policy lacks a rational

basis. See City of Dallas v. Stanglin, 490 U.S. 19, 25–26 (1989).


       McIntosh cannot overcome the deference the Constitution gives to Congress in making this

type of policy choice. Congress added this mandatory minimum in what has come to be known as

the PROTECT Act, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children

Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650. Attempting to prove the irrationality of this

provision, McIntosh quotes various sections of the Act’s legislative history to show that Congress

passed the Act to punish people who inflict harm on children directly, as opposed to people like


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United States v. McIntosh

McIntosh who possess images of child pornography. Yet the selected quotations do not tell the

whole story. The congressional findings show that the Act sought to further the government’s

“interest in protecting children from those who sexually exploit them, including child molesters and

child pornographers” and that “this interest extends to stamping out the vice of child pornography

at all levels in the distribution chain.” Id. § 501 (emphasis added) (codified at 18 U.S.C. § 2251

Note). Protecting children from those who sexually exploit them is a legitimate objective of

government, and punishing those who create a market for this exploitation—either on the supply or

the demand side—is a rational means of accomplishing that goal. This sentencing policy survives

the modest requirements of rational-basis review.


       McIntosh next challenges the district court’s calculation of his offense level, namely that

McIntosh possessed “at least 10 . . . but fewer than 150” images of child pornography, a finding that

increased his offense level from 16 to 18. U.S.S.G. § 2G2.4(b)(5)(A) (2003). Yet, even if this

argument were accepted, even if indeed this guideline were invalid (as McIntosh also argues), it

would not alter his 120-month mandatory minimum sentence. We “will not address an alleged error

in the offense level if the mandatory minimum penalty trumps the guideline range,” United States

v. Washington, 112 F. App’x 501, 505 (6th Cir. 2004), because the alleged error could not affect the

sentence, United States v. Barnes, 49 F.3d 1144, 1150 (6th Cir. 1995).


       McIntosh adds that the sentence was substantively unreasonable because the district court

intimated that it would have preferred to, but did not, sentence him below the statutory minimum.



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United States v. McIntosh

Yet “[w]hen a court and a mandatory minimum are in conflict, the minimum wins.” United States

v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010).


       That leaves one final argument: that statutory minimum sentences violate separation-of-

powers principles because they remove judicial discretion in sentencing. But “the scope of judicial

discretion with respect to a sentence is subject to congressional control,” Mistretta v. United States,

488 U.S. 361, 364 (1989), and “Congress can constitutionally eliminate all discretion in sentencing

judges by establishing mandatory sentences.” United States v. Dumas, 934 F.2d 1387, 1389–90 (6th

Cir. 1990). Congress had the power to enact this mandatory minimum sentence.


                                                 III.


       For these reasons, we affirm.




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