22-234

United States v. Nugent

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 24th day of March, two thousand twenty-three.

PRESENT: Rosemary S. Pooler,

Richard C. Wesley,

Steven J. Menashi,

Circuit Judges.

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-234

KEVIN NUGENT,

Defendant-Appellant.

____________________________________________
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For Appellee: Emmet O’Hanlon and Rajit S. Dosanjh, 

Assistant United States Attorneys, for Carla 

B. Freedman, United States Attorney for the 

Northern District of New York, Syracuse, 

NY.

For Defendant-Appellant: James P. Egan, Assistant Federal Public 

Defender, Syracuse, NY.

Appeal from a judgment of the United States District Court for the Northern 

District of New York (D’Agostino, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Kevin Nugent pleaded guilty to attempted coercion 

and enticement of a minor, and the district court imposed a 10-year mandatory 

minimum sentence pursuant to 18 U.S.C. § 2422(b). Nugent argues that the 

sentence violates the Eighth Amendment’s prohibition on cruel and unusual 

punishment. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal.

I

In August 2019, an FBI agent maintained undercover profiles on Grindr, a 

social networking and online dating site, and Kik, a messaging service. 
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Presentence Investigation Report (“PSR”) ¶¶ 3(b), 6-7, United States v. Nugent, No. 

21-CR-0007 (N.D.N.Y. 2021), ECF No. 48. The undercover Grindr profile of “Ryan” 

listed the age of the user as “99,” the maximum age possible. ¶ 9. The profile 

further identified the user as a “young trans looking for daddy” and invited other 

users to “kik me” because the user would “not talk on here.” Id.

On August 15, 2019, Nugent messaged Ryan on Kik. During the 

conversation, Ryan explained that he lived with his mother and was a “younger 

dude.” Id. ¶ 12. After Nugent sent Ryan a picture of male genitalia, Ryan 

responded that he was “nervous” because he was “only 14,” which he knew was 

“not cool.” Id. Nugent replied that “[i]t’s not cool if you talk about it” and 

explained that “[i]f you told someone we were hanging out then that would be a 

problem.” Id.

On August 21, 2019, Nugent requested that Ryan send him a picture of his 

penis. Id. ¶ 13. Ryan responded that the prospect of doing so “scare[d]” him, to 

which Nugent replied: “I have a lot more to lose than you.” Id. Nugent described 

how he wanted to engage in sex acts with Ryan despite Ryan repeating that he 

was 14 years old. Id. ¶ 14. 
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Ryan eventually agreed to meet Nugent at a Burger King in Menands, New 

York, on August 27, 2019. Id. ¶ 15 Nugent traveled to the meeting spot and was 

arrested after walking into the restaurant. Id.

After being advised of his Miranda rights, Nugent confirmed that he 

believed “Ryan” was a 14-year-old child. Nugent further acknowledged that the 

purpose of meeting “Ryan” was to travel to Nugent’s apartment and possibly 

engage in oral sex. Id. ¶ 17.

On January 7, 2021, a jury returned an indictment charging Nugent with 

attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). 

Nugent pleaded guilty to this charge without a plea agreement on July 19, 2021. 

On February 1, 2022, the district court sentenced Nugent to the mandatory 

minimum prison term of 120 months, to be followed by 10 years of supervised 

release. 

At sentencing, the district court determined that Nugent’s guidelines 

imprisonment range was 120 months pursuant to U.S.S.G. § 5G1.1(b), as a result 

of the applicable statutory minimum. Responding to Nugent’s argument that the 

sentence violated the Eighth Amendment, the district court explained that the 

sentence was “not grossly disproportionate to the offense” because “in the 
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recorded conversations that the defendant thought that he was having with a 14-

year-old boy, he is savvy enough ... to really know exactly what he’s doing.” App’x 

83. 

The district court entered judgment on February 2, 2022, and Nugent filed a 

timely notice of appeal.

II

We review a district court’s determination whether a statutory minimum 

violates the Eighth Amendment de novo. United States v. Reingold, 731 F.3d 204, 

210 (2d Cir. 2013).

The Eighth Amendment provides that “[e]xcessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual punishments 

inflicted.” U.S. Const. amend. VIII. A punishment is “cruel and unusual” when it 

is “grossly disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 60 (2010). 

In determining whether a term-of-years sentence in a particular case is grossly 

disproportionate, a “court must begin by comparing the gravity of the offense and 

the severity of the sentence.” Id. Only in “the rare case in which this threshold 

comparison leads to an inference of gross disproportionality,” id. (alterations 

omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., 
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concurring in part and concurring in the judgment)), do we proceed to “compare 

the defendant’s sentence with the sentences received by other offenders in the 

same jurisdiction and with the sentences imposed for the same crime in other 

jurisdictions” to determine whether the sentence is in fact disproportionate, id. In 

evaluating proportionality, we accord “substantial deference” to “the broad 

authority that legislatures necessarily possess in determining the types and limits 

of punishments for crimes.” Reingold, 731 F.3d at 211 (quoting Harmelin, 501 U.S. 

at 999 (Kennedy, J., concurring in part and concurring in the judgment)). 

Nugent cannot make the required threshold showing that his sentence leads 

to an “inference of gross disproportionality.” Graham, 560 U.S. at 60. Over several 

days, Nugent persisted in attempting to persuade a person whom he believed to 

be 14 years old to engage in sexual conduct. He was undeterred by the minor’s 

repeated expressions of reluctance and fear. PSR ¶¶ 12, 14. Nugent sent his 

intended victim a pornographic image, described sex acts in which they would 

engage, and stressed the importance of keeping their contact secret. Id. ¶ 14. 

Nugent tried several times to arrange a meeting and, after succeeding, traveled 14

miles from his home to meet “Ryan.” He intended to take “Ryan” back to his 

residence, where he hoped to engage in sexual activity. Given the gravity of the 
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offense and the “broad authority that legislatures ... possess in determining the 

types and limits of punishments for crimes,” the sentence does not lead to an 

inference of gross disproportionality. Reingold, 731 F.3d at 211 (quoting Harmelin, 

501 U.S. at 999 (Kennedy, J., concurring in part and concurring in the judgment)). 

Nugent argues that the “sentence grossly overstates the seriousness of the 

harm criminalized by § 2422(b)” because “all [the statute] requires is that a 

defendant gain a minor’s assent,” not that the defendant form an actual intent to 

carry out the sexual acts. Appellant’s Br. 11. We reject this argument and conclude 

that the sentence is not grossly disproportionate to the conduct of knowingly 

“persuad[ing]” or “entic[ing]” a minor to engage in sexual activity. 28 U.S.C. 

§ 2422; see United States v. Rivas, 39 F.4th 974, 978 (8th Cir. 2022); United States v. 

Shill, 740 F.3d 1347, 1355-57 (9th Cir. 2014); United States v. Hughes, 632 F.3d 956, 

959 (6th Cir. 2011); United States v. Nagel, 559 F.3d 756, 762-65 (7th Cir. 2009); United 

States v. Brown, 681 F. App’x 268, 270-71 (4th Cir. 2017); United States v. Butters, 267 

F. App’x 773, 778 (10th Cir. 2008). 

Nugent also asks us to compare § 2422(b) with § 2423(b) and observes that 

the latter statute does not impose a mandatory minimum sentence. Appellant’s Br. 

20-21. But because Nugent’s sentence under § 2422(b) does not give rise to an 
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inference of gross disproportionality, we need not engage in a comparative 

analysis of other federal and state penalties. See Graham, 560 U.S. at 60. 

Even if we were to conduct the comparative analysis, the analogy is inapt. 

Section 2423(b) criminalizes interstate or international travel “with a motivating 

purpose of engaging in any illicit sexual conduct,” which is defined to include sex 

acts with minors or the production of child pornography. 18 U.S.C. § 2423(b), (f). 

The statute does not require the enticement or coercion of a minor or even any 

contact with an actual or purported minor. By contrast, § 2422(b) “was designed 

to protect children from the act of solicitation itself—a harm distinct from that 

proscribed by § 2423(b).” Hughes, 632 F.3d at 961. 

* * *

We have considered Nugent’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we affirm the judgment of the district 

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court