United States of America v. Douglas Blodgett

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

-- 1 of 12 --

- 2 -
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17-A, § 255 (1996), repealed by 2001 Me.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,

-- 2 of 12 --

- 3 -
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 of 12 --

- 4 -
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 of 12 --

- 5 -
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 of 12 --

- 6 -
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 of 12 --

- 7 -
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 of 12 --

- 8 -
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 of 12 --

- 9 -
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 of 12 --

- 10 -
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 of 12 --

- 11 -
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 of 12 --

- 12 -
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.

-- 12 of 12 --