United States v. Shill, No. 13-30008 (9th Cir. 2014)
Annotate this CaseDefendant appealed his sentence and conviction for online enticement of a female minor to engage in sexual activity in violation of 18 U.S.C. 2422(b). The court held that section 2422(b) clearly and unambiguously criminalized attempted sexual activity where the object of the attempt would amount to either a misdemeanor or a felony under state law; because the statutory language of section 2422(b) was not ambiguous, the doctrine of constitutional avoidance was inapplicable as well; section 2422 was not void for vagueness where a person of ordinary intelligence would have no doubt that criminal liability under the statute did not depend on whether the conduct constituted a misdemeanor or a felony under state law; and the court rejected defendant's argument that his sentence violated the Eighth Amendment and the court refused to apply the categorical approach to defendant's ten-year mandatory minimum sentence. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for online enticement of a female minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), which federally criminalizes the attempted enticement of a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” The panel rejected the defendant’s contentions (1) that § 2422(b) should be construed narrowly to preclude prosecution where the predicate “criminal offense” is a misdemeanor under state law, and (2) that the ten-year mandatory minimum sentence under § 2422(b) is cruel and unusual punishment in violation of the Eighth Amendment for the category of offenders who engage in attempted misdemeanor conduct under state law.
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