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«UNITED STATES OF AMERICA, No. 13-30008 Plaintiff-Appellee, D.C. No. v. 3:10-cr-00493-BR-1 RANDY LEE SHILL, Defendant-Appellant. OPINION Appeal from ...»

-- [ Page 1 ] --

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30008

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-00493-BR-1

RANDY LEE SHILL,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Argued and Submitted December 3, 2013—Seattle, Washington Filed January 24, 2014 Before: Richard C. Tallman and Carlos T. Bea, Circuit Judges, and Stephen Joseph Murphy, III, District Judge.* Opinion by Judge Tallman * The Honorable Stephen Joseph Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation.

2 UNITED STATES V. SHILL

SUMMARY** 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.

COUNSEL

Kelly A. Zusman (argued), Appellate Chief, S. Amanda Marshall, United States Attorney, District of Oregon, Office of the United States Attorney, Portland, Oregon, for Plaintiff- Appellee.

Lisa Hay (argued), Assistant Federal Public Defender, Portland, Oregon, for Defendant-Appellant.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

UNITED STATES V. SHILL 3

OPINION

TALLMAN, Circuit Judge:

Randy Shill appeals both his federal conviction following a conditional guilty plea and his ten-year mandatory minimum sentence for one count of online enticement of a female minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). On appeal, Shill contends that § 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,” should be construed narrowly to preclude prosecution where the predicate “criminal offense” is a misdemeanor under state law. Shill also alleges 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. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reject both challenges to Shill’s conviction and sentence.

–  –  –

In October 2010, Randy Shill, age 45, approached “JS,” a 16-year-old high school student, at a school fundraising event. Shill told JS that he had seen her recently at a local Target store and thought she “looked nice.” The next day, Shill sent JS a Facebook “friend” request via the Internet. In the request, Shill wrote that JS looked “incredibly beautiful” at Target, and he requested that she not disclose their conversation to his two children, who attended the same high 4 UNITED STATES V. SHILL school as JS. JS told her father about the Facebook friend request, and he contacted the police. Shortly thereafter, with the consent of JS and her father, an FBI agent took control of JS’s Facebook account and established a Yahoo! e-mail account to instant message Shill.1 Shill engaged in a series of sexually explicit online chats with the agent in which he repeatedly attempted to entice the agent, whom he believed was JS, to have sex with him.

Shill arranged to meet the agent posing as JS at a Portland MAX Light Rail station at 4:00 p.m. on November 10, 2010, and he agreed to bring condoms and alcohol. On November 10, 2010, Shill drove to the station and surveillance officers observed him wait as six trains came and left. Shill was confronted and arrested as he returned to his car. During a search of Shill’s person incident to arrest, agents found condoms and the Samsung smart phone Shill had used to send sexually explicit photos and messages to the agent posing as JS. In Shill’s car, agents found flowers, alcohol, a bottle of Viagra, and additional condoms.

–  –  –

The government indicted Shill on one count of using the Internet to entice a minor to engage in sexual activity in 1 JS was the third female to report Shill’s suspicious behavior to local police. In August 2009, a 16-year-old girl filed a police report, stating that Shill had sent sexually explicit text messages to her. The girl’s father declined to press charges since he did not want his daughter to testify at a trial. In April 2010, another police report was filed by an 18-year-old Portland-area high school student whom Shill had met in a local park and had also attempted to contact through Facebook.





UNITED STATES V. SHILL 5 violation of 18 U.S.C. § 2422(b).2 The indictment specified that Shill had knowingly attempted to coerce a minor to engage in sexual activity for which he could be charged with a criminal offense, namely, Sexual Abuse in the Third Degree, in violation of Oregon Revised Statute § 163.415,3 and Contributing to the Sexual Delinquency of a Minor, in violation of Oregon Revised Statute § 163.435.4 Both crimes are Class A misdemeanors under Oregon law. An attempt to commit either crime is also a misdemeanor under Oregon law. See Oregon Revised Statute § 161.405(1), (2)(e) (stating that “a person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime,” and that

2 The statute provides:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C § 2422(b) (emphasis added).

3 Oregon Revised Statute § 163.415 reads, in pertinent part: “(1) A person commits the crime of sexual abuse in the third degree if: (a) The person subjects another person to sexual contact and:... (B) the victim is incapable of consent by reason of being under 18 years of age[.]” 4 Oregon Revised Statute § 163.435 reads, in pertinent part: “(1) A person 18 years of age or older commits the crime of contributing to the sexual delinquency of a minor if: (a) Being a male, he engages in sexual intercourse with a female under 18 years of age[.]” 6 UNITED STATES V. SHILL

such an attempt constitutes a Class B misdemeanor underOregon law).

Shill filed a motion to dismiss the indictment, which the district court denied in a written opinion and order. Shill ultimately pleaded guilty pursuant to the terms of a conditional plea agreement, which reserved his right to appeal the district court’s denial of his motion to dismiss and to challenge § 2422(b)’s ten-year mandatory minimum on Eighth Amendment grounds.

At Shill’s sentencing hearing, the district court found that Shill’s sentencing guideline range was 70 to 87 months. The district court observed that a sentence of 70 months would be imposed if the court were not bound by the statutory mandatory minimum. Shill challenged the mandatory minimum sentence on Eighth Amendment grounds, and after careful consideration and briefing, the district court issued a written opinion rejecting Shill’s Eighth Amendment challenge and imposing the ten-year mandatory minimum sentence.

–  –  –

Shill contends that the district court should have dismissed the indictment. Specifically, Shill challenges the following language in § 2422(b): “any sexual activity for which any person can be charged with a criminal offense[.]” According to Shill, this language is ambiguous, vague, inconsistent with Congress’s expressed intent, and leads to the “absurd” result that misdemeanor conduct is punishable by a ten-year sentence under federal law. Shill argues that UNITED STATES V. SHILL 7 § 2422(b) should be construed narrowly to preclude prosecution where the attempted sexual activity is a misdemeanor as opposed to a felony. We review the district court’s denial of a motion to dismiss an indictment de novo, United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir.

2012), and we affirm.

B

The purpose of statutory interpretation “is to discern the intent of Congress in enacting a particular statute.” United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).

“[A]nalysis must begin with the language of the statute itself;

when the statute is clear, ‘judicial inquiry into [its] meaning, in all but the most extraordinary circumstance, is finished.’” United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005) (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 475 (1992)). Unless otherwise defined, “words will be interpreted as taking their ordinary, contemporary, common meaning.” Id. (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). Here, our analysis begins and ends with the ordinary meaning of the statutory language.

The plain meaning of “criminal offense” is generally understood to encompass both misdemeanors and felonies.

Black’s Law Dictionary defines “criminal offense” under “offense” as “a violation of the law; a crime, often a minor one.” Black’s Law Dictionary (9th ed. 2009), available at Westlaw BLACKS. The Supreme Court has used the phrase “criminal offense” broadly, stating in Lawrence v. Texas that while the offense at issue was a “class C misdemeanor” and a “minor offense in the Texas legal system,” it was still “a criminal offense with all that imports” for the person charged.

539 U.S. 558, 575 (2003) (emphasis added). As Shill notes, 8 UNITED STATES V. SHILL the phrase is not defined in the federal criminal code.

Nonetheless, we presume that Congress legislates in light of relevant case law and familiar legal definitions. See Abuelhawa v. United States, 556 U.S. 816, 821 (2009). Thus, Shill’s actions, while a misdemeanor in the Oregon legal system, nonetheless constitute a “criminal offense” under § 2422(b). We decline to embrace Shill’s narrow interpretation of the statute, which belies the plain meaning of the term “criminal offense.” There can be no doubt that Congress has frequently addressed the problem of sexual predators who utilize instrumentalities of interstate commerce to prey on minors.

Each time Congress revisits the Mann Act, it toughens the penalties for violations of the crimes therein.5 Further, Congress’s repeated use of the word “any” suggests that Congress intended the statute’s reach to be broad. See, e.g., United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning.”).

5 The development of § 2422(b) reflects congressional intent to impose increasingly harsh penalties on those who entice, or attempt to entice, minors to engage in unlawful sexual activity. Congress added § 2422(b) in the Telecommunications Act of 1996 to specifically prohibit the enticement of minors, and Congress imposed a maximum penalty of ten years. Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996). Since 1996, Congress has increased the maximum sentence for violations of § 2422(b) three times. See Pub. L. No. 105–314, § 102, 112 Stat. 2974, 2975–76 (Oct. 30, 1998) (increasing the maximum penalty to 15 years); Pub. L.

No. 108–21, 117 Stat. 650, 652–53 (Apr. 30, 2003) (increasing the maximum penalty to 30 years and adding a five-year mandatory minimum); Pub. L. No. 109–248, § 203, 120 Stat. 587, 613 (July 27, 2006) (increasing the maximum penalty to life in prison and increasing the mandatory minimum to ten years). These penalty increases “suggest[] a crystallizing vision on Congress’s part of the need for stern punishment in this milieu.” United States v. Dwinells, 508 F.3d 63, 69 (1st Cir. 2007).

UNITED STATES V. SHILL 9 Indeed, § 2422(b) imposes criminal liability on a person who knowingly uses “any facility” of interstate commerce to entice or “attempt” to entice “any individual who has not attained the age of 18 years” to engage in “any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2422(b) (emphasis added). Without any basis in the text to limit the reach of § 2422(b) to predicate felony offenses, we refuse to read such a narrow limitation into the statute. See Gonzales, 520 U.S. at 5 (refusing to read a limitation into a federal statute where “[t]here is no basis in the text” to do so).

If Congress intended to limit § 2422(b) to apply only to felony conduct, it could have expressly said so, as Congress has done in other sections of the criminal code. See, e.g., 18 U.S.C. § 922(g)(1), (9) (limiting application to those convicted of a felony or a misdemeanor crime of domestic violence); 18 U.S.C. § 924(e)(1) (providing enhanced penalties for “violent felony” offenders). Because Congress failed to limit § 2422(b) in this way, the logical inference is that Congress intended the statute to apply to both state felony and misdemeanor conduct.

Shill argues that the term “any sexual activity” must be read narrowly to exclude misdemeanor offenses. He points to the Seventh Circuit’s opinion in United States v. Taylor, where the court interpreted the phrase “sexual activity” in § 2422(b) to require actual, attempted, or intended physical contact with the victim. 640 F.3d 255, 260 (7th Cir. 2011).



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