United States of America v. ANTONIO DICKERSON, AKA Girbaud

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO DICKERSON, AKA Girbaud,
Defendant-Appellant.
No. 16-50174
D.C. No.
8:14-cr-00179-SVW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 6, 2018
Pasadena, California
Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.
Antonio Dickerson was charged with sex trafficking a minor in violation of
18 U.S.C. § 1591(a)(1) and production of child pornography in violation of 18
U.S.C. § 2251(a). At trial he claimed that he reasonably believed the victim was
over 18, and he was acquitted of the trafficking charge, which included a mens rea
element as to the victim’s age. He was convicted of the production of child
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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pornography charge, which included no such mens rea element. He now appeals
his conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
Dickerson first claims that the district court erred in failing to instruct the
jury on a reasonable mistake of age defense to the production of child pornography
charge. Dickerson did not raise this claim at trial, and the government argues it is
waived. Because there is no reason to believe that Dickerson “intentionally
relinquished or abandoned a known right,” the claim is instead forfeited and we
review for plain error. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997)
(en banc).
The district court did not plainly err in failing to sua sponte give a
reasonable mistake of age instruction. That defense would require Dickerson to
show that he “did not know, and could not reasonably have learned, that [the
victim] was under 18 years of age.” United States v. U.S. Dist. Court (Kantor),
858 F.2d 534, 543 (9th Cir. 1988). Dickerson testified that he barely knew the
minor victim, CM, and that he believed she was between 19 and 21. In his closing
argument, Dickerson’s counsel argued that Dickerson did not know that CM was a
minor and that she seemed to be an adult based on the context and her appearance.
However, Dickerson’s defense did not focus on the “could not reasonably have
learned” requirement, which is a higher bar than the “reasonable opportunity to

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observe” standard that applied to the trafficking charge. Dickerson presented
evidence that CM sometimes lied about her age, but she told his friend D’Antoine
Thomas that she was 17; had Dickerson asked her age and received the same
answer, he would still have known she was underage. On appeal he argues that
CM’s tattoos were evidence that she was over 18 because California law prohibits
tattooing minors, Cal. Penal Code § 653, but this argument was never presented to
the judge or jury at trial. On this record, it was not “‘clear’ or ‘obvious,’” Perez,
116 F.3d at 846 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)), that a
reasonable mistake of age instruction was required.
Dickerson argues that the government should have been required to
affirmatively prove a scienter element in order to convict him of violating 18
U.S.C. § 2251(a). However, Kantor squarely rejected the argument that § 2251(a)
“should be interpreted to require the government to prove scienter as to age in its
prima facie case.” 858 F.2d at 536–38. Dickerson argues that subsequent
Supreme Court authority, particularly Elonis v. United States, 135 S. Ct. 2001
(2015), is “clearly irreconcilable” with Kantor and we may therefore reject the
latter as “having been effectively overruled,” Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc). Even assuming this claim is forfeited rather than
waived, any conflict between Elonis and Kantor was not so obvious that the
district court plainly erred by following a directly controlling precedent of this

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court.
Finally, Dickerson argues that a fifteen-year mandatory minimum sentence
for a pornography offense that lacks a mens rea element violates the Eighth
Amendment’s guarantee against cruel and unusual punishment. The parties
dispute our standard of review, but even under de novo review we conclude that
the district court did not err. “The Supreme Court has repeatedly emphasized that
‘federal courts should be reluctant to review legislatively mandated terms of
imprisonment, and that successful challenges to the proportionality of particular
sentences should be exceedingly rare.’” United States v. Meiners, 485 F.3d 1211,
1213 (9th Cir. 2007) (per curiam) (quoting Ewing v. California, 538 U.S. 11, 22
(2003)). Indeed, “the Supreme Court has upheld far tougher sentences for less
serious crimes,” United States v. Williams, 636 F.3d 1229, 1232-33 (9th Cir. 2011)
(citing cases), including a 40-year sentence for possession and distribution of less
than nine ounces of marijuana, Hutto v. Davis, 454 U.S. 370, 370, 374–75 (1982)
(per curiam), and a life sentence without the possibility of parole for a first-time
offender convicted of possessing 672 grams of cocaine, Harmelin v. Michigan, 501
U.S. 957, 961, 994–96 (1991). While Dickerson’s fifteen-year sentence is harsh,
under Supreme Court precedent it is not so grossly disproportionate as to violate
the Eighth Amendment.
AFFIRMED.

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