Randy Shill, a 45 year old man, approached a 16 year- old high school girl at a fundraising event at his children's high school and complemented her on her looks. The next day he sent her a friend request on Facebook and sent a message to her saying that she looked “incredibly beautiful” when he saw her at Target. He asked her not to mention their conversation to his children. The girl told her father about the Facebook encounter and he contacted the police. The FBI took over the Facebook account and posed as the girl and continued to instant message Shill. Shill allegedly had sexually explicit online conversations with the agent and began to entice the “girl” to have sex with him. Soon, he planned for the “girl” to meet him at a train station and agreed to bring condoms and alcohol. When Shill arrived at the train station, he was arrested. While searching Shill's car, agents found condoms and the phone Shill had used to send sexual photos and messages to the agents that were impersonating the girl. The agents also found flowers, alcohol, a bottle of Viagra, and more condoms.
Shill was indicted for using the internet to entice a minor, (18 USC 2422(b)), see also, ( CA Penal Code 288.3) contacting a minor with intent to commit a criminal offense and (CA Penal Code 288.4) which prohibits communicating with a minor with sexual intent and arranging a meeting with that minor. The charges stated that Shill had knowingly attempted to pressure a minor to commit two misdemeanor sex offenses. Shill filed a motion to dismiss the charges and challenged the constitutionality of his ten year mandatory minimum sentence under the Eighth Amendment . Shill argued that the plain meaning of “criminal offense” is generally understood to encompass both felonies and misdemeanor The Supreme Court has used the phrase “criminal offense” broadly, stating in Lawrence v. Texas that while the offense in that case was a class C misdemeanor, it was still a criminal offense that supported the charge in the indictment. Shill noted that the phrase “criminal offense” is not defined in the federal criminal code. Thus, Shill's motions were denied he was required to serve the ten year mandatory minimum sentence.
Specifically, Shill challenged the following language in section 2422(b): “any sexual activity for which any person can be charged with a criminal offense.” According to Shill, this language is ambiguous, vague, and inconsistent with Congress's express intent, and leads to the absurd result that misdemeanor conduct is punished by a ten-year sentence under this federal law. Shill argues that section 2422(b) should be interpreted to preclude prosecution where the attempted sexual activity is a misdemeanor as opposed to a felony. The court held that, even though Shill's actions were a misdemeanor in the Oregon legal system, this conduct still constituted a criminal offense under section 2442(b). Thus, the court denied Shill's arguments on appeal.
The imposition of a mandatory minimum sentence in these kinds of cases amounts to a travesty of justice of the highest order. The punishment should fit the crime and misdemeanor conduct should not invoke a ten year sentence. This law needs to be amended to make it rational and to comply with the 8th Amendment prohibition against cruel and unusual punishment.
For more: http://caselaw.findlaw.com/us-9th-circuit/1655708.html
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