U.S. v. Burnett, 545 F. Supp. 2d 1207 (N.D. Ala. 2008)

Burnett was convicted of indecent exposure and public lewdness on federal property after he solicited an undercover police officer for oral sex and exposed himself to the officer during a sting operation.
He received a maximum 6-month sentence, which the trial court imposed because "[Burnett] knew he was HIV positive, thus, risking the possibility of transmitting that disease to others out there."

On appeal, Burnett objected to the failure to include a lack of consent of the victim as an essential element of each of the crimes, as well as the maximum sentence imposed by the lower court, arguing an abuse of discretion. The Northern District of Alabama found through statutory interpretation that indecent exposure clearly included an element of non-consent, while public lewdness did not, thus affirming the lewdness conviction.

In reviewing the sentence, the court followed a deferential standard, conducting a "review for reasonableness." The court noted that the original sentencing judge considered Burnett's HIV status not only in formulating the sentence, but also in elevating the seriousness of his crimes. Following controlling Eleventh Circuit precedent, the court stated that a defendant's HIV status may be considered when the offense had the potential to be transmitted to others, and that upward departures in sentencing may be recognized if there is "extreme conduct" on the part of the defendant. Concluding that Burnett's potential to transmit HIV could be considered extreme conduct, the court found the maximum sentence imposed to be reasonable.