United States v. 2007-05-21 | 06-30389 | USA VMEINERS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-30389
Plaintiff-Appellee, D.C. No.
v.  CR-05-00065-JDS
EVERT MEINERS, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Submitted April 12, 2007*
Seattle, Washington
Filed May 21, 2007
Before: Alex Kozinski and Raymond C. Fisher,
Circuit Judges and Andrew J. Guilford, District Judge.**
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
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COUNSEL
Mark S. Werner and Anthony R. Gallagher, Federal Defend-
ers of Montana, Billings, Montana, for appellant Evert
Meiners.
William W. Mercer and Marcia Hurd, United States Attor-
ney’s Office, Billings, Montana, for appellee United States of
America.
OPINION
PER CURIAM:
Defendant-Appellant Evert Meiners operated a child por-
nography file server (“f-serve”), which he utilized to advertise
child pornography images for distribution in exchange for
other child pornography images to be sent to him.1 During
summer 2004, Meiners advertised and distributed child por-
nography to several Federal Bureau of Investigation special
agents, a New York State detective and an officer with the
German National Police.
United States Immigration and Customs agents identified
Meiners as the operator of the f-serve and executed a warrant
at his residence in Billings, Montana in November 2004. Dur-
ing the search, agents seized computer equipment containing
10,000-12,000 pornographic images, some of which depicted
children engaged in sado-masochistic activity, including
bondage and sexual intercourse.
1A “file server is a computer with a large amount of disk capacity used
for storing files on a computer network.” See G. Andrew Barger, Lost in
Cyberspace: Inventors, Computer Piracy and “Printed Publications”
Under Section 102(B) of the Patent Act, 71 U. Det. Mercy L. Rev. 353,
383 n.145 (1994).
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Meiners agreed to plead guilty to four counts of advertise-
ment of child pornography in violation of 18 U.S.C.
§ 2251(d), four counts of distribution of child pornography in
violation of 18 U.S.C. § 2252A(a)(2) and one count of posses-
sion of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court sentenced Meiners to 15
years in prison, comprised of 180 months on each advertise-
ment count, 121 months on each distribution count and 120
months on the possession count, with all terms to be served
concurrently. On appeal, Meiners challenges his sentence
under the Eighth Amendment’s prohibition against cruel and
unusual punishment. Because a 15-year sentence is not
grossly disproportionate to the gravity of Meiners’ offense,
we affirm.
[1] We review de novo whether a sentence violates the
Eighth Amendment. See United States v. Fernandez, 388 F.3d
1199, 1258 (9th Cir. 2004). The Eighth Amendment forbids
as “cruel and unusual punishment” prison terms that are
“grossly disproportionate.” See Solem v. Helm, 463 U.S. 277,
288 (1983); United States v. Harris, 154 F.3d 1082, 1084 (9th
Cir. 1998). The Supreme Court has repeatedly emphasized
that “federal courts should be reluctant to review legislatively
mandated terms of imprisonment, and that successful chal-
lenges to the proportionality of particular sentences should be
exceedingly rare.” Ewing v. California, 538 U.S. 11, 22
(2003) (quoting Hutto v. Davis, 454 U.S. 370, 374 (1982) (per
curiam)).
[2] When confronted with an Eighth Amendment chal-
lenge, we first make “a threshold comparison of the crime
committed and the sentence imposed.” Harmelin v. Michigan,
501 U.S. 957, 1005 (1991) (Kennedy, J., concurring in part
and concurring in the judgment). In the rare case in which a
threshold comparison leads to an inference of gross dispropor-
tionality, we then compare the sentence at issue with sen-
tences imposed for analogous crimes in the same and other
jurisdictions. See id.
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[3] Meiners’ challenge fails at the threshold stage because
a 15-year sentence is not grossly disproportionate to the grav-
ity of his offense. In Hutto, law enforcement officers seized
approximately nine ounces of marijuana and drug parapherna-
lia at the defendant’s home, leading to his conviction for pos-
session and distribution of marijuana. 454 U.S. at 370. The
Supreme Court upheld the defendant’s 40-year sentence
against an Eighth Amendment challenge. Id. at 370, 375.2 In
Harmelin, the Court upheld a life sentence, without the possi-
bility of parole, for a first-time offender convicted of possess-
ing 672 grams of cocaine. 501 U.S. at 961. Meiners received
a lesser sentence than the defendants in Hutto and Harmelin
even though his conduct was no less serious.
[4] Like drug possession and distribution offenses, advertis-
ing and distributing child pornography is a significant crime
because it “threaten[s] to cause grave harm to society.” Har-
melin, 501 U.S. at 1002 (Kennedy, J., concurring in part and
concurring in the judgment). The distribution of child pornog-
raphy feeds an industry that causes physiological, emotional
and mental trauma to the child victims. See Osborne v. Ohio,
495 U.S. 103, 109 (1990). By advertising his desire to receive
and trade child pornography, Meiners directly encouraged the
production and distribution of material that is created by abus-
ing children. See United States v. Pabon-Cruz, 255 F. Supp.
2d 200, 210 (S.D.N.Y. 2003) (recognizing that “the advertis-
ing statute bears a different relationship to the purpose of pre-
venting child abuse than does the receipt and distribution
statute” because advertising directly encourages production of
child pornography).
Because this is not the “rare case in which a threshold com-
parison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality,” Harmelin,
2Although the defendant in Hutto was not a first time offender, see 454
U.S. at 379-80 (Powell, J., concurring), the Court’s decision did not turn
on the defendant’s recidivism or prior conduct.
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501 U.S. at 1005, we need not conduct an inter- and intra-
jurisdictional analysis.
AFFIRMED.
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