United States of America v. Kerby Gross

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1583
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
K ERBY G ROSS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 280—David H. Coar, Judge.
____________
A RGUED N OVEMBER 28, 2005—D ECIDED F EBRUARY 14, 2006
____________
Before K ANNE , R OVNER , and W OOD , Circuit Judges.
K ANNE , Circuit Judge. Kerby Gross has had a sad and
troubled life marked by his experiences as a victim and
perpetrator of child sexual abuse. He is before us after
pleading guilty to distributing child pornography, and he
asks us to consider whether the application of the manda-
tory minimum sentence in 18 U.S.C. § 2252A(b)(1) to him
constitutes cruel and unusual punishment in violation of
the Eighth Amendment. Because we conclude that Gross’s
sentence of fifteen years (the mandatory minimum) is not
grossly disproportionate and therefore does not violate the
Eighth Amendment, we affirm.

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2 No. 05-1583
1 This conviction had no effect on Gross’s sentence and has never
been relied upon or mentioned by the government in this appeal.
We mention it here only to provide a more complete picture of
Gross’s background, as Gross himself does in his brief.
I. HISTORY
Gross is a convicted sex offender. As is not unusual in
these cases, he was subjected to unspeakable abuse
throughout his childhood. Gross’s parents separated when
he was two years old, and he was eventually raised by his
mother. Beginning at a very young age Gross was sexually
abused by four of his mother’s brothers—men who should
have protected and nurtured him but instead used him for
their own deviant pleasure. By the time he was twelve,
Gross was being raped several times a week by two of his
uncles. And at the age of thirteen, while still the victim of
ongoing sexual abuse, Gross committed his first act of
sexual assault against a younger child. For this crime he
was adjudicated as a juvenile delinquent and placed into
the residential custody of the Illinois Department of
Children and Family Services (“DCFS”) until he was nearly
eighteen years old.1
Gross’s life changed little after his release from DCFS. He
moved back in with his mother, who shortly thereafter
decided to relocate the family to Las Vegas, Nevada, to live
with one of her brothers. She was unaware that this brother
had previously abused Gross, and after they moved in, the
abuse began again. Gross quickly found himself on the
other side of the abuse cycle again. In 1991, at the age of
nineteen, he was arrested in Nevada for sexual assault of a
minor and lewdness with a minor; both victims were under
the age of fourteen. He pled guilty and was sentenced on
the two counts to ten years’ imprisonment for lewdness and
life imprisonment with the possibility of parole for sexual
assault.

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No. 05-1583 3
2 In his sentencing memorandum, Gross informed the district
court that at the completion of his federal sentence he will be
transferred to Nevada where he faces certain parole revocation.
In 1999, Gross was paroled and returned to Chicago as a
registered sex offender. In some ways his life seemed to
stabilize; he became the first person in his extended family
to graduate from college, was gainfully employed, and kept
up with his mandated sex-offender treatment. But Gross
did not comport his conduct to the law and was eventually
arrested for distributing child pornography over the
Internet. Specifically, on May 4, 2003, Gross posted at least
15 still images of child pornography in a folder he created
entitled, “Babyfun2”. On October 22, 2003, he posted a
movie depicting an adult male engaging in sexually explicit
contact with a prepubescent female. All of these acts were
done while Gross was still on parole from his Nevada
convictions.2
Gross pled guilty in October of 2004 to one count of
knowingly distributing child pornography through inter-
state commerce in violation of 18 U.S.C. § 2252A(a)(2)(A).
In his written plea agreement, he recognized that because
his previous convictions in Nevada “relat[ed] to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor,” the single count of child pornography for
which he was pleading guilty carried a statutory minimum
sentence of fifteen years’ imprisonment. 18 U.S.C.
§ 2252A(b)(1).
Prior to sentencing, Gross challenged the constitutionality
of § 2252A(b)(1)’s mandatory minimum. The district court
found Gross’s constitutional objection to be substantial, but
eventually concluded that while the fifteen-year sentence
was harsh, it was not so disproportionate as to violate the
Eighth Amendment. Accordingly, the district court sen-
tenced Gross to the mandatory minimum.

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4 No. 05-1583
II. ANALYSIS
Gross challenges his sentence by relying upon the plural-
ity decision in Ewing v. California, which recognizes “a
‘narrow proportionality principle’ that ‘applies to noncapital
sentences.’ ” 538 U.S. 11, 20 (2003) (quoting Harmelin v.
Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J.,
concurring in part and concurring in judgment)). Both
Gross and the government agree that under the plurality’s
approach in Ewing, our first task is to ascertain whether
Gross’s case is “the rare case in which a threshold compari-
son of the crime committed and the sentence imposed leads
to an inference of gross disproportionality.” Id. (quoting
Harmelin, 501 U.S. at 1005). Absent such an inference, we
need not conduct any “comparative analysis ‘within and
between jurisdictions.’ ” Id. at 23, 30 (quoting Harmelin, 501
U.S. at 1004-05).
Before addressing the particulars of Gross’s argument, it
is important to note the Supreme Court’s admonishment
that “successful challenges to the proportionality of particu-
lar sentences should be exceedingly rare.” Id. at 22 (quoting
Hutto v. Davis, 454 U.S. 370, 374 (1982)). The Court’s
precedent in this area reflects how high the bar is set. See
id. at 28-31 (affirming sentence of 25 years to life imposed
for felony grand theft of three golf clubs under three strikes
law); Harmelin, 501 U.S. at 961, 996 (affirming life in
prison without the possibility of parole for first-time
offender possessing 672 grams of cocaine); Davis, 454 U.S.
at 370-71 (no constitutional error in two consecutive terms
of 20 years in prison for possession with intent to distribute
and distribution of 9 ounces of marijuana); Rummel v.
Estelle, 445 U.S. 263, 265-66, 285 (1980) (upholding life in
prison without the possibility of parole under three strikes
law where triggering offense was obtaining $120.75 by false
pretenses and the loss amount of the two previous fraud
felonies was $80, and $28.36, respectively). But see Solem

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No. 05-1583 5
v. Helm, 463 U.S. 277, 296-97, 303 (1983) (holding that the
Eighth Amendment prohibited a sentence of life without the
possibility of parole where the defendant had previously
committed six “minor” and “nonviolent” felonies and his
triggering offense was uttering a “no account” check for
$100).
Under this precedent, it is clear that Gross’s case is not
the rare one in which comparing the gravity of the offense
to the harshness of the sentence leads to an inference of
gross disproportionality. Ewing, 538 U.S. at 30. Gross’s
offense is quite serious. The distribution of child pornogra-
phy creates a market for its production, which inevitably
leads to the abuse of children. Osborne v. Ohio, 495 U.S.
103, 109-11 (1990). Furthermore, the dissemination of child
pornography, even by those such as Gross who had no
involvement in its production, “causes the child victims
continuing harm by haunting the children in years to
come.” Id. at 111 (citation omitted); see also United States
v. Sherman, 268 F.3d 539, 547 (7th Cir. 2001) (“The posses-
sion, receipt and shipping of child pornography directly
victimizes the children portrayed by violating their right to
privacy, and in particular violating their interests in
avoiding the disclosure of personal matters.” (citing New
York v. Ferber, 458 U.S. 747, 759 n.10 (1982))).
Gross attempts to minimize the magnitude of his crime by
arguing that it was “nonviolent” because he merely pos-
sessed and distributed the child pornography, as opposed to
being involved in its production. It may be true that there
is only an indirect link between Gross’s crime and any
actual violence to children. See Sherman, 268 F.3d at 546
(explaining, for purposes of grouping under the Sentencing
Guidelines, that the “market maker theory provides only an
indirect link between a particular child used in the produc-
tion of pornography and a later purchaser or possessor of
that material”). But this distinction does little for Gross

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6 No. 05-1583
because whether described as violent or nonviolent, as
explained above, Gross’s crime is still very serious. Further-
more, Gross’s offense is at least as serious as those held by
the Supreme Court to permissibly trigger sentences of up to
life in prison. See Ewing, 538 U.S. at 28-31 (25 years to life
where triggering offense was felony grand theft of three golf
clubs); Rummel, 445 U.S. at 284-85 (life in prison without
the possibility of parole where triggering offense was
obtaining $120.75 by false pretenses). Nor can Gross’s
offense be described as “one of the most passive felonies a
person could commit,” as was the case in Solem, where the
court found an Eighth Amendment violation when the
triggering offense was uttering a “no account” check for
$100. See 463 U.S. at 296-97.
Moreover, Gross did not merely plead guilty to distribu-
tion of child pornography; he pled guilty to distributing
child pornography after already having convictions “relating
to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor.” These previous convictions led
to the imposition of the mandatory minimum for the
triggering offense of possessing child pornography. 18
U.S.C. § 2252A(b)(1). Therefore, when considering the
gravity of Gross’s offense, we must consider these convic-
tions, because “[a]ny other approach would fail to accord
proper deference to the policy judgments that find expres-
sion in [Congress’s] choice of sanctions.” Ewing, 538 U.S. at
29; Solem, 463 U.S. at 296 n.21.
There can be no doubt that Gross’s two previous felony
convictions, which included sexual assault of a child under
the age of fourteen, were serious and violent felonies. These
convictions far remove Gross from the defendant in Solem
whose prior offenses were all “minor” and “nonviolent.” See
463 U.S. at 296-97. Instead, the gravity of Gross’s offense is
at least as serious as the two recidivist defendants for
whom the Supreme Court has denied relief; and the fifteen-

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No. 05-1583 7
year sentence Gross received is less harsh than the sen-
tences in those cases. See Ewing, 538 U.S. at 19 (previous
felonies of burglary and robbery and a sentence of 25 years
to life); Rummel, 445 U.S. 265-67 (previous felonies involv-
ing small amounts of money and a sentence of life in prison
with the possibility of parole). Under the Supreme Court’s
precedent, Gross’s Eighth Amendment challenge must fail,
and we need not conduct any analysis “within and between
jurisdictions.” Ewing, 538 U.S. at 23, 30.
This conclusion is not altered by Gross’s argument that
his previous victimization mitigates his culpability. Gross
may or may not be less culpable, morally speaking, because
of what he has been through. But a defendant’s culpability
is not the only basis for imposing a prison sentence. Deter-
rence and incapacitation are also reasons to punish. Id. at
24-25 (“A sentence can have a variety of justifications, such
as incapacitation, deterrence, retribution, or rehabilitation.”
(citing 1 W. LaFave & A. Scott, Substantive Criminal Law
§ 1.5, pp. 30-36 (1986))). When punishing the distribution
of child pornography, it is entirely reasonable for Congress
to have heightened concern—expressed in harsher punish-
ments—with individuals such as Gross who have already
been convicted of sexually abusing a minor yet will not or
cannot comport their conduct to the dictates of the law. Id.
at 30 (explaining that the defendant’s sentence “reflect[ed]
a legislative judgment, entitled to deference, that offenders
who have committed serious or violent felonies and who
continue to commit felonies must be incapacitated”).
III. CONCLUSION
For the foregoing reasons, we A FFIRM the ruling of the
district court that the mandatory minimum sentence of
fifteen years imposed on Gross under 18 U.S.C.
§ 2252A(b)(1) is not grossly disproportionate and therefore

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8 No. 05-1583
does not violate the Eighth Amendment’s prohibition on
cruel and unusual punishment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-06

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