NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0831n.06 No. 12-3803 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, ) ) P laintif f-App ellee, ) ) v. ) ) JOSHUA JAMERSON, ) ) Defendan t-Appellant. ) On Appeal from the United States District Court for the Nort hern District

of O hio OP INION

BEFORE: GIBBONS and STRANCH, Circuit Judges; HOOD, DistrictJudge. * HOOD, District Judge

. Appellant J oshua J amer son (“Jame r s o n ” ) a p p e a ls th e Ju d g me nt a

n d
sentenc e imposed by the district court afte r J amer son’s plea of g uilty , without a plea ag ree ment, to

rec eipt of child pornog raphy under 18 U.S.C. § 2252(a) (2) and (b)( 1 ). For the rea sons set forth below, the district cour

t’s judgme nt is AFF I RMED.

I. BACKG ROUND On J une 9, 2011, J amer son was cha r g e d in a o n e - c ount information with knowing ly rec eiving visual depictions of minors e ng ag ed in sexually expli cit conduct via computer betwee n Marc h 26, 2010, and J uly 22, 2010, in violation of 18 U.S.C. § 2252(a) (2) and (b)( 1). J amer son enter ed a plea of g uilty on September 14, 2011. Prior to sentenc ing, J amer son underw ent a psy chiatric evaluation.

T he Ho nor abl e Den is e Pa ge Hood, Un it ed S ta te s Di st ri ct J udge fo r t he E ast er n Di st ri ct of * Mi chi gan , sitti ng by

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He was diag nosed with sever al mental health issues, including schizophrenia, depre ssion, para noia and psy chopathic de viation. J amer son was sentenc ed on J une 18, 2012 to a 60-month term of imprisonment, followed by 10 y ear s of supervised rele ase and the fine waived. The district judge deter mined t h e ad v i s o ry g uideline imprisonment rang e of 108 to 135 months, with at least 5 y ear s of supervised rele ase, and

a fine rang e of $ 1 5 , 0 0 0 t o $150,000, based on a total offe nse level of 30 and criminal history cate g ory I I

. The district judge explained that he depar ted downwar d to the statutory minimum of 60 months beca

use he had no alterna

tive under the statute. The district judge noted that the sentenc es

wer e “drive n larg ely by Congr essional and/or political pressure ,” and wer e “not commensurate with the individual circumstanc es of the c ase.” J amer son timely filed a notice of appea l from the judgme nt and sent en ce i m p o s ed by the district court raising three arguments. J urisdiction is proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)

. J amer son essentially raises a fa i rn ess argument as to the 60-month mandatory minimum sentenc e he rec eived from the district court. He firs t ar gu es t h at the statute is vag ue beca use the

rec eipt of child pornog raphy statute car ries a 60-m o nth ma

n d a to r y minimum , wher eas the possession of child pornog raphy statute does not. J amer son next arg ues that the mandatory minimum sentenc e of 60 months is crue l and unusual punishment under the Ei gh t h Amendment of the United States Constit ution. J amer son’s final argument is that the mandatory sentenc ing require ment violates the separ ation of power s betwee n Congr ess, the Ex ecutive Br anch and the J udiciary

. The g overnme nt

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United States v. Jamerson responds that the district court did not abuse its discretion when it varied downward to the 60-month statutory minimum sentence. II. ANALYSIS A. Void for Vagueness Jamerson did not raise his void-for-vagueness constitutional claim before the district court, other than noting at the sentencing hearing that “there would be a plea on behalf of the defendant to at least have the Sixth Circuit address the difference between the charges which create a mandatory minimum versus those that do not[,] . . . specifically as to the receipt of child pornography versus the possession of child pornography.” The district judge did not address the void-for-vagueness argument at the sentencing hearing. We generally do not review arguments that are raised for the first time on appeal. United States v. Henry, 429 F.3d 603, 618 (6th Cir. 2005). Rule 12(b)(3) of the Rules of Criminal Procedure lists motions which must be made before trial including, a motion alleging that the information fails to state an offense. See Fed. R. Crim. P. 12(b)(3)(B). In a related context, we have held that an appellate court is “categorically without jurisdiction” to hear arguments regarding such pre-trial motions that are raised for the first time on appeal. United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994). But where, as here, a claim of constitutional deficiency is made, we may review for plain error, correcting the district court only if we find: “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Bazazpour, 690 F.3d 796, 801 (6th Cir. 2012) (quoting Johnson v. United States, 520 U.S. 461, 466 67 (1997)) (alteration and internal quotation

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marks omitted). I f these three conditi o n s ar e met, we may then exercise discretion to notice a forf eited err or, but only if the err or “ser iously aff ects the fairne ss, integ rity , or public reputation of judicial proce eding s.” Id. (quoting Johnson, 520 U.S. at 467) (a lteration omitted). Gene rally, a duly enac ted statute has the presumption of constitutionalit y. U.S. ex rel. Atty. Ge n . v. Del. & Hudson Co. , 213 U.S. 366, 407–08 (1909). The Due Process Cl auses o f t h e F i ft h Amendment provides the constitutional foundation for the void-for- vaguene ss doctrine with respe ct to statutes enac ted by Congress. Columbia Natural Res., Inc. v. Tatum , 58 F.3d 1101, 1104 (6th Cir. 1995). A criminal ordinanc e or statute violates the Constit ution if: (1) it fails to define the offe nse with sufficie nt definitene ss that ordinary people can understand prohibited conduct; and (2) it fails
to establish standards to permit the police to enfor ce the law in a non-ar bitrary, non-discriminatory

manner . See Kolender v. Lawson , 461 U.S. 352, 357–58 (1983). A st at ute or regula tion may be vague if it fails to give fair war ning as to what conduct is prohibited. Grayne d v. City of Rock ford , 408 U.S. 104, 1 0 8 (1 9 7 2 ). A statute is vague, not beca use “it require s a person to conform his conduct to an imprecise but compre hensible normative sta n d ar d , but rathe r in the sense that no standard of

conduct is spec ified at a ll.” Coates v. City of Cincinnati , 402 U.S. 611, 614 (1971). We have held that conviction for both rec eipt and possession of the same child pornog raphy obtained v i a t h e i n terne t is a double jeopar dy violation. United St ates v. Ehle, 640 F.3d 689, 698 (6th Cir. 2011). “[W ]hi le possession of child pornog raphy is g ener ally a lesser- included offe nse of

rec eipt of child pornog raphy , conviction under both statutes is permissible if separ ate conduct is found t o underlie the two offe nses.” United St ates v. Du dec k, 657 F.3d 424, 430 (6th Cir. 2011).

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J am er s o n was not char g ed with possession of child pornog raphy , but was char g ed with and pled g uilty to a single count of rec eipt of child pornog raphy under 18 U.S.C. § 2252(a) (2), which car ries

a mandatory minimum sentenc e of five y ear s. J amer son does not argue in his opening brief that any of the phrase s or words found in § 2252(a) (2) are vag ue. Rather, J amer son questions “how and by what standard” the rec eipt and possession statute merits an extensive term of incar cer ation while the possession statute does not mandate any prison time. J amer son arg ues that the t wo s t atut es are essentially the exact same offe nse and that the terms “re ceipt” and “possession” are sy nony mous and intercha ng eable

. We have addre ssed the leg islative history of the two statutes, notin g that the 1990 amendments to the child pornog raphy statutes, which alre ady included “knowing ly rec eiving ” child pornog raphy , added the crime of “knowing ly possessing” child pornog raphy as a g ap-f illing provision. Ehle, 640 F. 3 d at 6 9 8

. The added crime of “knowing ly possessing” targ eted those individuals who “possessed” child pornog raphy , relieving the g overnme nt fr o m h aving to prove

rec eipt of child pornog raphy . I n Dudec k, 657 F.3d at 430, we held that “while possession of child pornog raphy is g ener ally a lesser- included offe nse of rec eipt of child pornog raphy , conviction under both statutes is permissible if separ ate conduct is found to underlie the two offe nses.” I n light of the leg islative his t ory of the two statutes, the two terms, “re ceipt” and “possession,” are neither sy nony mous nor intercha

ng eable

. We found that the two offe nses can stand if separ ate fac ts support

eac h of them. Cong ress intende d to clarify the diffe renc e betwe en re ceipt and possession of child

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United States v. Jamerson pornography, and its decision to add the possession statute as a gap-filler shows that the two terms are neither synonymous nor interchangeable. Vagueness challenges to an offense will not be entertained where a defendant’s conduct clearly falls within the ambit of the statute. See United States v. Kemell, 667 F.3d 746, 750 (6th Cir. 2012). In this case, Jamerson, by entering a plea of guilty to the receipt charge, admitted to receiving child pornography. Jamerson does not seek to set aside his guilty plea before the district court, nor does he seek to change his plea on appeal. Jamerson does not challenge the government’s decision to charge him with the receipt offense, as opposed to the possession offense. It is well established that prosecutors have broad discretion in charging decisions. See Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000). Even when two statutes with “identical elements” prohibit the same criminal conduct but provide different penalties, the government may prosecute under either statute “so long as it does not discriminate against any class of defendants.” United States v. Batchelder, 442 U.S. 114, 124 25 (1979). A criminal defendant has no constitutional right to choose which penalty he will receive. Id. at 125. Because possession is a lesser-included offense of the receipt charge, the penalty for possession is less than the receipt of child pornography offense and the government has the broad discretion to charge Jamerson with the offense carrying the higher penalty. In his reply brief, Jamerson argues that based on the record, it is clear that he is not a person of ordinary intelligence sufficient to receive fair notice of what constitutes prohibited criminal conduct under the statute. However, fair notice of what is prohibited in a criminal statute is not

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m ea s u re d b y a particula r defe ndant’s intelligenc e, but is measure d by a person with ordinary intelligenc e. See United States v. W illiams, 553 U.S. 285, 306 (2008). J amer son does not argue that the statute fails to g ive fair notice of the prohibited criminal co n duct to a person with ordinary intelligenc e. Jamerson’s mental status does not re nder the statute vag ue. The district judge did not commit plain err or when J amer son was sentenc ed to the 60-month mandatory minimum set forth in § 2252(a) (2) and (b), a signific ant downward departure from the ad v i s o ry sentenc ing guidelines of 108 to 135 months. J amer son has not shown that the statute i s void for vagueness. B. Cruel and Unu sual Punish m ent J amer son next arg

ues that the 60-month mandatory minimum sentenc e under the rec eipt statute, § 2252(a) (2) and (b), is crue l and unusual punishment, due to J amer s o n ’s m en tal status. Ag ain, J amer son did not fra me his argument befor e the district court as an Eig hth Amendment claim. Constit utional c halleng es to a sentenc e prese nt questions of law that are revie wed de novo . United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009). The Eig hth Amendment forbids “extreme sentenc es that are g rossly disproportionate to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (interna l quotation marks omitted) (Ke nnedy , J

. concur ring in part and concur

ring in the judgme nt); see also United States v. Layne, 324 F.3d 464, 473 (6th Cir. 2003). “The Supreme Court has adopted a ‘na

rrow pr oportionality

principle’ in e valuatingEig ht Amendment claims.” United States v. Hughes, 632 F.3d 956, 959 (6th Cir. 2 0 1 1 ) (quoting Harmelin, 501 U.S. at 997). The Ei gh th Amendment does not require strict proportionality betwee n crime and sentenc e; “only an

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United States v. Jamerson extreme disparity between crime and sentence offends the Eighth Amendment.” United States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011) (internal quotation marks omitted). “A defendant challenging [a] sentence under the Eighth Amendment has a tremendously difficult burden to meet.” Hughes, 632 F.3d at 959. Generally, a sentence within statutory limitations does not violate the Eighth Amendment. Layne, 324 F.3d at 474; United States v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994). We have held that the ten-year mandatory minimum sentence under 18 U.S.C. § 2422(b) raises no inference that it is grossly disproportionate. Hughes, 632 F.3d at 960. Jamerson cites United States v. Rothwell, 847 F. Supp. 2d 1048 (E.D. Tenn. 2012), in support of his argument that his sentence should be below the 60-month mandatory minimum sentence under § 2252(a)(2), comparing his own mental status to that of the defendant in Rothwell . However, the defendant in Rothwell

was convicted of attempting to possess child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), whereas Jamerson pled guilty to receiving child pornography under 18 U.S.C. § 2252(a)(2). The attempt statute does not contain a mandatory minimum sentence. The Rothwell

court departed downward from the sentencing guideline range of 27 to 32 months to 18 months, finding that the departure was warranted due to the defendant’s mental capacity. 847 F. Supp. 2d at 1061 63. Since there was no mandatory minimum involved in Rothwell, the district court had the discretion to depart below the advisory sentencing guidelines. In this case, the district judge also departed downward from the sentencing guideline range of 108 to 135 months to the 60-month mandatory minimum required under § 2252(a)(2) and (b) due to Jamerson’s mental capacity. Although the district judge noted he was bound by the 60-month

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United States v. Jamerson mandatory minimum under the statute, the judge expressed an opinion that if he were able to go below the mandatory minimum, he would do so. Jamerson argues that the district court below was “hamstrung” in imposing a sentence it did not support and sentenced Jamerson to the mandatory minimum which the district court “blatantly dispute[s] the wisdom of.” We have noted that when a court disagrees with a mandatory minimum, the minimum prevails and the district court’s desire to sentence below the minimum does not render a statutory mandatory minimum sentence unreasonable. United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010). Jamerson has not carried his heavy burden to show that the 60-month mandatory minimum set forth in § 2252(a)(2) constitutes cruel and unusual punishment. C. Separation of Powers Jamerson concedes in his reply brief that it is well established in this circuit that statutory mandatory sentences do not violate the separation-of-powers doctrine. Yet, he continues to assert a policy argument that the mandatory minimums effectively usurp the power of the judiciary and place the job of fashioning an appropriate sentence in the hands of the legislature and the prosecuting attorney.As conceded by Jamerson, statutory mandatory sentences do not violate the separation-ofpowers doctrine. Cecil, 615 F.3d at 695 96. Congress has broad authority to determine the appropriate punishment for federal crimes and thereby restrict the sentence a court may impose. Mistretta v. United States, 488 U.S. 361, 363 64 (1989); Kimbrough v. United States, 552 U.S. 85, 108 (2007) (Congress has the authority to set criminal sentences, including mandatory minimum

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United States v. Jamerson sentences). A mandatory sentence enacted by Congress does not violate the separation-of-powers doctrine. United States v. Odeneal, 517 F.3d 406, 414 15 (6th Cir. 2008). D. Reasonableness of Sentence Imposed Jamerson also concedes that the district court did not abuse its discretion in varying downward to the statutory minimum, but restates his policy arguments related to mandatory sentences. A district court’s judgment of sentence is reviewed for reasonableness. United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). A sentence imposed within the properly calculated advisory guidelines range is afforded a rebuttable presumption of reasonableness, and the party arguing that the sentence is unreasonable has the burden to show unreasonableness. Id. ; see also United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). A sentence should reflect the factors listed in 18 U.S.C. § 3553(a). United States v. Deen, 706 F.3d 760, 763 n.1 (6th Cir. 2013). The district court considered these factors and explained that its downward departure to the minimum 60-month sentence was sufficient, but not greater than necessary to accomplish the sentencing goals set forth in § 3553(a). The sentence imposed by the district court, which departed downward to the 60-month mandatory minimum from the advisory guideline range of 108 to 135 months, is reasonable. III. CONCLUSION For the reasons set forth above, the district court’s judgment and imposition of sentence is AFFIRMED.

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