§140 Cruel and Unusual Punishment
Supreme Court says juveniles cannot be sentenced to mandatory life without parole. (140) Defendants were 14-year-old juveniles convicted of murder in state court and sentenced to a mandatory term of life without parole. In a 5-4 decision written by Justice Kagan, the Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for a juvenile. The Chief Justice, Justice Thomas, and Justice Alito all wrote dissents. Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012).
Supreme Court to decide if life without possibility of parole may be imposed on 14-year-old. (140) In two separate cases, the Supreme Court granted certiorari to decide whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment. Miller v. Alabama, __ U.S. __, 132 S.Ct. 548 (2011) (granting certiorari); Jackson v. Hobbs, __ U.S. __, 132 S.Ct. 548 (2011) (granting certiorari).
Supreme Court rejects death penalty for child rape. (140) A Louisiana law permitted imposition of the death penalty for the rape of a child under the age of 12. Defendant was convicted of raping his eight-year-old stepdaughter, and he was sentenced to death. The Supreme Court, in a 5-4 decision by Justice Kennedy, held that the Eighth Amendment bars imposition of the death penalty for the rape of a child when the crime did not result in the death of the child. The Court stated that “as it relates to crimes against individuals, the death penalty should not be expanded to instances where the victim’s life was not taken.” Justice Alito filed a dissenting opinion. Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641 (2008).
Supreme Court says 9th Circuit misapplied AEDPA in nixing California’s Three Strikes law. (140) Under AEDPA, 28 U.S.C. § 2254(d), a federal court may grant a habeas petition only if the state court’s decision upholding the petitioner’s conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” the U.S. Supreme Court. In striking down a sentence under California’s Three Strikes law as a violation of the Eighth Amendment, the Ninth Circuit held that a state court decision involves an “unreasonable application” of federal law if it constitutes “clear error.” In a 5-4 decision written by Justice O’Connor, the Supreme Court held that the “clear error” standard “fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Instead, the Court held, a federal court may not grant a habeas petition unless the state court judgment was “objectively unreasonable.” Because, the Court found, its prior Eighth Amendment decisions “exhibit a lack of clarity,” the California court’s application of that law was not unreasonable. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166 (2003).
Supreme Court rules 25-to-life sentence under California Three Strikes law is not cruel and unusual. (140) Defendant was convicted of felony grand theft for stealing three golf clubs worth $400 each. Because he had three prior “serious” felony convictions, he was sentenced to 25 years to life under California’s Three Strikes law. The Supreme Court held that the sentence did not violate the Eighth Amendment’s cruel and unusual punishment prohibition, but no opinion commanded a majority. Three Justices agreed that the Eighth Amendment barred sentences that were “grossly disproportionate” to the severity of the crime (as did all four members of the dissent), but they concluded that the sentence imposed on defendant was not grossly disproportionate to his offense. Two members of the Court believe that the Eighth Amendment does not bar disproportionate noncapital sentences and voted to uphold defendant’s sentence on that ground. Four Justices dissented. Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179 (2003).
Supreme Court holds that shackling inmate to “hitching post” violated Eighth Amendment. (140) Alabama prison officials shackled plaintiff, a state prisoner, to a “hitching post” for disruptive conduct. Plaintiff was handcuffed above shoulder height in the hot sun, shirtless, for seven hours, without being allowed to use the bathroom. The Supreme Court held that it was “obvious” that this conduct violated the Eighth Amendment prohibition against cruel and unusual punishments. Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508 (2002).
Supreme Court adopts subjective test for “deliberate indifference” by prison officials. (140) Petitioner, a preoperative transsexual who “projects feminine characteristics,” was raped by another inmate in prison. In an opinion written by Justice Souter, the Supreme Court rejected the petitioner’s invitation to adopt an objective test for deliberate indifference. The court held instead that a “prison official cannot be held liable under the 8th Amendment for denying an inmate humane conditions of confinement unless the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Justices Blackmun and Stevens concurred, but argued that an Eighth Amendment violation would be possible even without an improper subjective motivation. Justice Thomas also concurred, but expressed doubts as to whether the Eighth Amendment covers challenges to conditions of confinement at all. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994).
Supreme Court rules excessive force against prisoner may constitute cruel and unusual punishment despite lack of serious injury. (140) Defendant was beaten by prison guards while he was handcuffed and shackled. A supervisor watched the beating but merely told the officers “not to have too much fun.” The inmate suffered minor bruises, facial swelling, loosened teeth, and a cracked dental plate. In a 7-2 opinion written by Justice O’Connor the Supreme Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury. The court said that although “de minimis” uses of physical force are not protected by the Eighth Amendment, Constitutional standards “always are violated when prison officials maliciously and sadistically use force to cause harm,” regardless of whether that force results in significant injury. Justices Thomas and Scalia dissented, arguing that “a use of force that causes only insignificant harm to a prisoner” is not cruel and unusual punishment. Hudson v. McMillan, 503 U.S. 1, 112 S.Ct. 995 (1992).
Supreme Court holds that prisoner who claims conditions of confinement violate 8th Amendment must show a culpable state of mind on the part of prison officials. (140) Petitioner, a state prisoner, alleged that the conditions of his confinement in inadequate and unsanitary prison facilities constituted cruel and unusual punishment. In an opinion written by Justice Scalia, the Supreme Court emphasized that the 8th Amendment only bans cruel and unusual punishment. “If the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.” The court held that this mental element can be satisfied by showing “deliberate indifference” on the part of prison officials. The judgment was vacated and the case remanded for reconsideration. Justices White, Marshall, Blackmun and Stevens concurred in the judgment but dissented from the holding that prisoners challenging the conditions of their confinement must show “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991).
Supreme Court holds life without parole for first time offender with 1-1/2 pounds of cocaine is not cruel and unusual. (140) In a 5-4 decision, the Supreme Court upheld a sentence of life without parole for possession of 1-1/2 pounds of cocaine, as not cruel and unusual, even though this was the defendant’s first conviction. Justice Scalia, joined by Chief Justice Rehnquist, said that the Eighth Amendment does not require a sentence to fit the crime, noting that “severe mandatory penalties may be cruel, but they are not unusual, in the constitutional sense, having been employed in various forms throughout our nation’s history.” Justices Kennedy, O’Connor and Souter agreed for the most part, but left open the possibility that “extreme sentences that are ‘grossly disproportionate’ to the crime” could be considered unconstitutional. Justices Marshall, White, Blackmun and Stevens dissented. Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2860 (1991).
Supreme Court holds that shooting prisoner in knee while attempting to free a hostage during a prison riot was not cruel and unusual punishment. (140) The Cruel and Unusual Punishments Clause prohibits “obduracy and wantonness,” not inadvertence or good faith error. Thus, the shooting of a prisoner in the knee during a prison riot, even if unnecessary or unreasonable in retrospect, does not constitute cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986).
8th Circuit counts juvenile conviction under ACCA despite Eighth Amendment argument. (140)(540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), requires a minimum 15-year sentence for a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony.” Defendant had a prior felony conviction sustained while he was 15 years old. He argued that counting that conviction as an ACCA predicate violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Eighth Circuit rejected the argument, ruling that it was foreclosed by circuit precedent. U.S. v. Winfrey, __ F.4th __ (8th Cir. Jan. 31, 2022) No. 21-1014.
10th Circuit says mandatory life for aggravated sexual abuse does not violate Eighth Amendment. (140) (215) Defendant was convicted of aggravated sexual abuse for the second time and received a mandatory life sentence under 18 U.S.C. § 3559(e)(1). The Tenth Circuit found the sentence was proportional to the offense and did not violate the cruel and unusual punishments clause of the Eighth Amendment. U.S. v. Burtrum, __ F.4th __ (10th Cir. Dec. 20, 2021) No. 20-5091.
9th Circuit upholds life sentence for juvenile where statute allowed for lower sentence. (140) The Supreme Court in Jones v. Mississippi, 114 S.Ct. 1307 (2021), held that a juvenile can be sentenced to life in prison as long as the statute allows the court to impose a lesser sentence. Here, defendant was a 17-year-old juvenile who belonged to a gang and was sentenced to life in 1997. The Ninth Circuit upheld defendant’s life sentence, finding that the district court properly understood that it could impose a lesser sentence under the statute. U.S. v. Briones, __ F.4th __ (9th Cir. Dec. 6, 2021) No. 16-10150.
9th Circuit says 85-year sentence for robbery does not violate the Eighth Amendment. (140) Defendant was convicted of seven armed robberies and three attempted robberies. He was sentenced to the mandatory minimum of 85 years. Defendant argued that his sentence violated the cruel and unusual punishments clause of the Eighth Amendment. The Ninth Circuit held that the sentence was not grossly disproportionate to defendant’s crimes and denied relief. U.S. v. Holiday, __ F.3d __ (9th Cir. May 27, 2021) No. 20-50157.
1st Circuit finds strict liability sentence for misbranded drugs did not violate 8th Amendment. (140) Defendant was sentenced to 12 months’ probation for introducing a misbranded drug into commerce. Because this is a strict liability offense, defendant argued that it violated the ban on cruel and unusual punishments. The First Circuit affirmed, noting that longer sentences for strict liability crimes have been upheld. U.S. v. Stepanets, __ F.3d __ (1st Cir. Feb. 26, 2021) No. 19-1471.
1st Circuit upholds gambling sentences as not cruel and unusual or unreasonable. (140) Defendants were convicted of racketeering offenses based on their involvement in a gambling business based in Antigua. The first defendant was sentenced to 36 months, and the second defendant to 48 months. The First Circuit rejected their claim that their sentences constituted cruel and unusual punishment or were unreasonable. A sentence violates the Eighth Amendment if it is “grossly disproportionate to the underlying offense.” That was not the case here. Defendants were key players in multi-million-dollar gambling operation that lasted for more than a decade. Their sentences, which fell within their properly calculated guideline ranges, were reasonable, even though they exceeded those of other conspirators who were not charged or did not spend time in jail. Defendants’ roles were more central to the gambling business than the roles of others who were not charged. Moreover, many of the other conspirators cooperated with the government’s investigation and therefore were not directly comparable to defendants for sentencing purposes. U.S. v. Lyons, 740 F.3d 702 (1st Cir. 2014).
2d Circuit says 55-year sentence for 15-year-old murderer did not violate Eighth Amendment. (140)(290) Defendant participated in four murders and was convicted of RICO violations. The district court sentenced him to 55 years. Defendant argued that this was cruel and unusual punishment under Miller v. Alabama, 567 U.S. 460 (2012), which struck down mandatory life sentences for juveniles. The Second Circuit acknowledged that the sentence was “severe,” but held that it did not violate the Eighth Amendment. Nor was the sentence substantively unreasonable. U.S. v. Portillo, __ F.3d __ (2d Cir. Nov. 24, 2020) No. 19-2158.
5th Circuit says restitution did not violate Eighth Amendment. (140)(610) Defendant committed health care fraud. At sentencing, the court ordered defendant to pay more than $19 million in restitution. Defendant argued that this amount violated the Excessive Fines Clause of the Eighth Amendment. Reviewing for plain error, the Fifth Circuit noted that the Supreme Court has never held that a restitution award could violate the Excessive Fines Clause. Accordingly, any error was not plain or obvious. U.S. v. Gozes-Wagner, __ F.3d __ (5th Cir. Sept. 28, 2020) No. 19-20157.
1st Circuit upholds 20-year sentence for selling fake suicide pills. (140)(218) Defendant ran a scheme in which he claimed to sell cyanide to people wanting to commit suicide, but sent them Epsom salts instead. Defendant was convicted of 12 counts of fraud. The district court sentenced him to 20 years, explaining that defendant had preyed on suicidal people, used the internet to further his scheme, and pursued the scheme for 13 months. Defendant contended that his sentence violated the Eighth Amendment’s ban on cruel and unusual punishments. The First Circuit upheld the sentence, finding it was not grossly disproportionate to the offense. U.S. v. Kilmartin, __ F.3d __ (1st Cir. Dec. 6, 2019) No. 18-3282.
5th Circuit upholds 35-year sentence for juvenile against Eighth Amendment challenge. (140) In 1999, defendant, a juvenile, participated in a carjacking which two people were killed. Defendant was prosecuted as an adult, and at sentencing, the district court sentenced him to a within-guidelines sentence of 35 years. He subsequently filed a motion under 28 U.S.C. § 2255 arguing that his sentence was invalid under Miller v. Alabama, 567 U.S. 460 (2012), which held that a mandatory sentence of life without parole could not be imposed on a juvenile. The Fifth Circuit held that Miller did not apply to sentences of less than life without parole and found the sentence constitutional. U.S. v. Sparks, __ F.3d __ (5th Cir. Oct. 24, 2019) No. 18-50225.
8th Circuit finds 200-month sentence for drug trafficking not disproportionate. (140)(242) Defendant pleaded guilty to drug-trafficking. At sentencing, the district court found that defendant was a career offender and that his sentencing range was 188 to 235 months. Citing defendant’s “long history of dealing drugs,” the district court sentenced him to 200 months. The Eighth Circuit found that defendant’s 200-month sentence was not disproportionate to his offense, in violation of the Eighth Amendment. U.S. v. Garth, __ F.3d __ (8th Cir. July 11, 2019) No. 18-1715.
9th Circuit, en banc, vacates life without parole sentence for minor. (140)(190) In 1997, defendant, who was 17 at the time, was sentenced to life without possibility of parole for a murder. The Supreme Court held in Miller v. Alabama, 567 U.S. 460 (2012), that it was unconstitutional to impose a sentence of life without possibility of parole on a minor. The district court held a resentencing hearing and reimposed the same sentence. The Ninth Circuit, en banc, held that although the guidelines range yields a sentence of life without parole, the district court erred because it overemphasized the gravity of defendant’s offense and failed to account for the fact that this is not one of those “rare and uncommon” cases where life without parole is justified. U.S. v. Briones, __ F.3d __ (9th Cir. July 9, 2019) No. 16-10150.
6th Circuit says life sentence for drug dealer did not violate Eighth Amendment. (140)(245) In Miller v. Alabama, 567 U.S. 560 (2012), the Supreme court held that it violates the Eighth Amendment to impose a mandatory life sentence on a juvenile who commits murder. In the present case, defendant was convicted of drug trafficking in violation of 21 U.S.C. § 841, and was sentenced to a mandatory life term because he had two prior drug convictions. He argued that Miller should be extended to adult defendants who commit nonviolent offenses. The Sixth Circuit rejected the argument, holding that defendant’s mandatory life sentence did not violate the Eighth Amendment. U.S. v. Potter, __ F.3d __ (6th Cir. June 11, 2019) No. 18-5830.
8th Circuit affirms 622-month sentence for drugs and guns as not cruel or unusual. (140)(242)(330) Defendant was convicted of drug and gun offenses, including two counts of possession of a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c). The district court sentenced him to 262 months on the drug and gun offenses and a consecutive 360 months on the § 924(c) counts. On appeal, he argued that his sentence violated the Eighth Amendment because it was grossly disproportionate to his offense. The Eighth Circuit found that the 360-month sentence on the § 924(c) counts was not subject to analysis under the Eighth Amendment and the remaining sentence was not disproportionate to defendant’s offenses. U.S. v. McDaniel, __ F.3d __ (8th Cir. May 30, 2019) No. 18-1477.
8th Circuit upholds 264-month sentence for child sexual exploitation as not cruel and unusual. (140)(310) Defendant exchanged sexual messages and images with a 14-year-old boy over a website. He was convicted of transfer of obscene materials to a minor, receipt of child pornography, and sexual exploitation of a minor. He was sentenced to 264 months, below the 360-month statutory maximum. The Eighth Circuit held that this sentence was not cruel and unusual punishment. U.S. v. Walker, __ F.3d __ (8th Cir. Mar. 6, 2019) No. 18-1355.
3rd Circuit rejects Eighth Amendment challenge to life sentence for cyberstalking that resulted in death. (140)(210) Defendant was convicted of multiple counts related to the interstate stalking and cyberstalking that resulted in the death of Belford, her brother’s ex-wife. The Third Circuit rejected defendant’s claim that her life sentence violated the Eighth Amendment. The life sentence was authorized by statute and recommended by the sentencing guidelines. See 18 U.S.C. § 2261(b)(1); U.S.S.G. § 2A1.1. In sentencing defendant, the district court noted that she played an instrumental role in the conspiracy against Belford, whose death was a reasonably foreseeable consequence of the conspiracy. Thus, her life sentence did not violate the Eighth Amendment. U.S. v. Gonzalez, __ F.3d __ (3d Cir. Sept. 7, 2018) No. 16-1540.
5th Circuit upholds 900-month sentence for extensive Medicare fraud as not cruel and unusual. (140) Defendant was convicted of numerous offenses related to Medicare fraud. The guidelines provided for up to a life sentence, but the statutory maximum was 900 months. The Fifth Circuit rejected defendant’s argument that her 900-month sentence constituted cruel and unusual punishment. Defendant was 54 years old, so the 75-year sentence was equivalent to life. Defendant was receiving treatment for metastasized breast cancer, but that did not change the fact of her crimes. Defendant participated as a leader in a prolonged, extensive scheme that defrauded Medicare of over $13 million dollars, and procured the involvement of numerous outside individuals to participate in her scheme. Her 75-year sentence was not grossly disproportionate to her crime. U.S. v. Neba, __ F.3d __ (5th Cir. Aug. 16, 2018) No. 17-20520.
1st Circuit holds that term of imprisonment for drug addict’s use of illegal drugs did not violate 8th Amendment. (140)(800) After defendant’s release from prison following a federal drug trafficking conviction, he failed three drug tests and pleaded guilty to felony drug possession in state court. The district court revoked defendant’s supervised release and sentenced him to 24 months’ imprisonment. Defendant argued for the first time on appeal that because his drug addiction was a disease, imprisoning him constituted cruel and unusual punishment in violation of the Eighth Amendment. The First Circuit upheld the sentence. Drug-addicted defendants are routinely incarcerated for drug use and possession. Whether this practice was good policy was not the question. After examining controlling case law, the panel found that it was not “clear or obvious” that this practice was unconstitutional. U.S. v. Sirois, __ F.3d __ (1st Cir. Aug. 6, 2018) No. 17-1797.
5th Circuit finds 292-month sentence for sex trafficking of minor was not cruel and unusual. (140) Defendant was convicted of sex trafficking involving a 14-year old girl. She was sentenced to 292 months, at the bottom of her guideline range of 292-365 months. The Fifth Circuit rejected defendant’s claim, raised for the first time on appeal, that her sentence was cruel and unusual punishment. The Supreme Court has upheld a 40-year sentence and $20,000 fine for possession and distribution of approximately nine ounces of marijuana. Based on that benchmark, a 292-month sentence for involvement in child sex trafficking does not rise to the level of cruel and unusual punishment. U.S. v. Smith, __ F.3d __ (5th Cir. July 13, 2018) No. 17-30065.
11th Circuit holds that 15-year sentence under ACCA was not cruel or unusual. (140)(540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act to the statutory minimum of 15 years, 18 U.S.C. § 924(e)(1), and USSG § 4B1.4. The Eleventh Circuit rejected defendant’s argument that the armed career criminal enhancement violated his Eighth Amendment right to be free from cruel and unusual punishment. It was “well-settled law that a longer sentence may be imposed on a recidivist, based on his criminal history, even if the offense of conviction is relatively minor in nature.” U.S. v. Lyons, 403 F.3d 1248 (11th Cir. 2005) Possession of a firearm by a convicted felon is not a “relatively minor” crime.” U.S. v. Morales, 893 F.3d 1360 (11th Cir. June 29, 2018) No. 16-16507.
11th Circuit upholds life sentence for terrorist who planned to bomb crowded beach. (140) Defendant, who declared allegiance to ISIS, attempted to recruit others to join him in destroying the United States, and amassed weapons and a bomb in order to carry out an attack on a crowded Key West beach. He was sentenced to life in prison without parole. The Eleventh Circuit rejected defendant’s argument, raised for the first time on appeal, that the life sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Defendant’s age, low intellect, lack of maturity, and gullibility did not raise the same culpability questions the Supreme Court addressed in Graham v. Florida, 560 U.S. 48 (2010). That opinion held that a juvenile cannot constitutionally be sentenced to life without parole for a non-homicide offense. Defendant was 24, and not a juvenile. He intended to kill as many people as possible by exploding a bomb on a crowded beach. On plain error review, the life sentence was not so disproportionate as to be considered cruel and unusual. U.S. v. Suarez, 893 F.3d 1330 (11th Cir. 2018).
6th Circuit upholds mandatory life sentences as not cruel and unusual. (140)(245) Defendants were each convicted of cocaine and cocaine base charges. They argued that their life sentences were cruel and unusual, but the Sixth Circuit disagreed. The Supreme Court has rejected the claim that the Eighth Amendment requires strict proportionality; it prohibits only “extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957 (1991). Harmelin upheld a mandatory life sentence for possession of more than 650 grams. The sentences here were not so grossly disproportionate as to violate the Eighth Amendment. U.S. v. Young, 847 F.3d 328 (6th Cir. 2017).
7th Circuit says 151-month drug conspiracy sentence was not cruel and unusual. (140) Defendant pled guilty to drug conspiracy charges and was sentenced to 151 months. The Seventh Circuit rejected his claim that the 151-month sentence was so grossly disproportionate to his crime as to constitute cruel and unusual punishment. It was true that his co-conspirator Meeks received the same sentence despite his more extensive criminal history, but strict proportionality is not required. Only extreme sentences that are “grossly disproportionate” will be deemed cruel and unusual. Moreover, “challenges to sentences that are both prescribed by the guidelines, and within the statutory maximums established by Congress, are looked on with disfavor.” Other cases have permitted lengthier sentences for similar crimes, and have upheld life imprisonment for a single drug crime. U.S. v. Syms, 846 F.3d 230 (7th Cir. 2017).
1st Circuit says 161-year firearms sentence was not cruel and unusual. (140)(330) Defendant acted as armed security for six sham drug deals that were part of an FBI sting operation, and was convicted of various drug and firearms crimes. He argued that his resulting combined sentence 161 years and 10 months violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The bulk of the sentence (130 years), was the result of minimum sentences required by statute for defendant’s six firearms convictions under 18 U.S.C. §924(c)(1)(C) (5 years for his first §924 conviction, and 25-year consecutive sentences for each of the five subsequent convictions). The First Circuit found no Eighth Amendment violation. The judge was guided by and correctly employed a sentencing scheme that was written into statute, a statute that made no distinction between cases involving real versus sham cocaine. At each of the six stings, defendant repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense was a grave one, and Congress has made a legislative determination that it requires harsh punishment. Judge Torruella dissented. U.S. v. Rivera-Ruperto, __ F.3d __ (1st Cir. Jan. 13, 2017) No. 12-2364.
5th Circuit upholds repeat and dangerous offender increase based on prior deferred adjudication. (140) (310)(500) Defendant communicated online with an undercover detective posing as a mother of two young children. He was arrested when he arrived at a meeting to have sex with the two children. He pled guilty to coercion or enticement of a minor to engage in sexual activity. The district court found that defendant was a repeat and dangerous sex offender under §4B1.5(a) because he committed the current offense after a prior conviction for a sex offense. In 2013, defendant pled guilty two counts of Online Solicitation of a Minor and one count of Indecency with a Child, in violation of Texas Penal Code §§33.021 and 21.11. He received a deferred adjudication. The Fifth Circuit upheld the §4B1.5(a) enhancement, because deferred adjudication is the functional equivalent of a final conviction. Defendant’s 300-month sentence, which fell within his guideline range, did not constitute cruel and unusual punishment. U.S. v. Mills, 843 F.3d 210 (5th Cir. 2016).
8th Circuit upholds 768-month carjacking, drug and firearms sentence as not cruel and unusual. (140)(330) (742) Defendant was convicted of carjacking, distribution of heroin, and three counts of using or possessing a firearm in furtherance of a crime of violence or drug trafficking crime. The court sentenced him to 84 months on the non-firearms counts. Additionally, 18 U.S.C. §924(c) required consecutive sentences of 7 years, 25 years, and 25 years on the three firearms counts. The Eighth Circuit held that the 768-month sentence was not cruel and unusual punishment under the Eighth Amendment. Defendant committed two armed carjackings and placed three individuals in fear of their lives. The sentence was not substantively unreasonable. The district court sentenced defendant to 84 months on the non-gun offenses, at the bottom of the guidelines range. This sentence was presumed reasonable, and the sentence mandated by 18 U.S.C. §924(c) was statutorily required and was not subject to reasonableness analysis. U.S. v. Scott, __ F.3d __ (8th Cir. Aug. 5, 2016) No. 15-3461.
6th Circuit finds 84-month mandatory minimum for brandishing firearm was not cruel and unusual. (140) (330) Defendant was convicted of forcibly assaulting a federal law-enforcement officer, in violation of 18 U.S.C. §111(a)(1) and (b), and using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §924(c)(1)(A)(ii). He argued that his 84-month sentence was “grossly disproportionate to the severity of his momentary offense conduct” and thus was cruel and unusual punishment under the Eighth Amendment. The Sixth Circuit disagreed. Section 924(c)(1)(A)(ii) imposes a minimum consecutive sentence of seven years if a firearm is brandished “during and in relation to any crime of violence or drug trafficking crime.” Defendant was sentenced to that term, and the sentence was not “grossly disproportionate” to the crime within the meaning of the Eighth Amendment. U.S. v. Rafidi, __ F.3d __ (6th Cir. July 11, 2016) No. 15-4095.
8th Circuit rejects challenges to prison sentences for corporate officers convicted of misdemeanor. (135) (140)(348) Defendants, corporate officers of an egg production company, pled guilty to the misdemeanor offense of introducing eggs adulterated with salmonella into interstate commerce. The Eighth Circuit rejected defendants’ claims that their three-month prison sentences for violating the Food Drug & Cosmetic Act (FDCA), 21 U.S.C. §333(a)(1), were unconstitutional under the due process clause and the Eighth Amendment. The prison sentences were relatively short. Defendants would not be branded as felons, and the record did not identify any additional civil sanctions they might be subject to beyond their sentences. The elimination of criminal intent under 21 U.S.C. §333(a) did not violate due process. The sentences also did not violate the Eighth Amendment – the sentences were not grossly disproportionate to the gravity of their misdemeanor offenses. The 2010 salmonella outbreak may have affected up to 56,000 victims, some of whom were hospitalized or suffered long term injuries. Judge Beam dissented. U.S. v. DeCoster, __ F.3d __ (8th Cir. July 6, 2016) No. 15-1890.
5th Circuit holds life sentence for marijuana conspiracy was not cruel and unusual. (140) Defendant was convicted of marijuana conspiracy charges, and sentenced to life imprisonment. The Fifth Circuit rejected defendant’s claim that the sentence constituted cruel and unusual punishment. Defendant was found responsible for at least 10,000 kilograms but less than 30,000 kilograms of marijuana. He was also found to have operated a stash house, possessed firearms in connection with his drug trafficking, and eventually become an organizer in this conspiracy. Defendant’s sentence was not so grossly disproportionate as to violate the Eighth Amendment. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
9th Circuit says restitution for mortgage fraud does not violate Eighth Amendment. (140)(610) Defendant participated in a mortgage fraud scheme. The presentence report calculated the loss caused by defendant’s offenses at $52 million. At sentencing, the district court imposed $2.2 million in restitution because that represented the losses proven at trial. The Ninth Circuit held that requiring defendant to repay the amount of loss she caused the victims of her offense cannot be grossly disproportionate, in violation of the Eighth Amendment. U.S. v. Beecroft, __ F.3d __ (9th Cir. June 13, 2016) No. 12-10175.
6th Circuit holds 1395-month sentence for armed robberies was not cruel or unusual. (140) Defendant was one of four men involved in a string of armed robberies around Detroit. In addition to Hobbs Acts counts, defendant was convicted of multiple §924(c) counts, with four mandatory-minimum consecutive sentences of 25 years. His guideline range was 1395-1428 months. Defendant argued that his 1395-month sentence was so disproportionate to his crimes as to constitute cruel and unusual punishment in violation of the 8th Amendment. The Sixth Circuit rejected this argument, noting defendant organized and led several “very violent” robberies that put his victims “in extreme danger.” Previous cases involving armed robbery have held that even longer sentences were constitutionally permissible. See U.S. v. Clark, 634 F.3d 874 (6th Cir. 2011) (2,269 months); U.S. v. Watkins, 509 F.3d 277 (6th Cir. 2007) (1,772 months). U.S. v. Carpenter, __ F.3d __ (6th Cir. Apr. 13, 2016) No. 14-1572.
8th Circuit holds 600-month guideline sentence for juvenile was not cruel and unusual. (140)(190)(742) In 1998, defendant was convicted of various crimes, including murders, committed when he was 16 and 17. Under the then-mandatory Sentencing Guidelines, the district court sentenced defendant to life in prison. Thereafter, in Miller v. Alabama, 132 S.Ct. 2455 (2012), the Supreme Court held that the Eighth Amendment barred a mandatory term of life in prison without possibility of parole for juvenile offenders. The district court granted defendant’s petition for resentencing under 28 U.S.C. §2255. It then varied downward from the now-advisory guidelines range of life in prison, and imposed a sentence of 600 months. The Eighth Circuit affirmed, rejecting defendant’s argument that the 600-month sentence constituted cruel and unusual punishment. Miller did not hold that the Eighth Amendment categorically prohibited a sentence of life without parole for a juvenile offender. Rather, it only a barred a life sentence pursuant to mandatory penalty schemes because they prevented a judge or jury from taking into account “the distinctive attributes of youth.” U.S. v. Jefferson, __ F.3d __ (8th Cir. Mar. 14, 2016) No. 15-1309.
8th Circuit affirms 600-month sentence for juvenile crimes as not unreasonable. (140)(190)(742) In 1998, defendant was sentenced to life under the then-mandatory Sentencing Guidelines for crimes he committed as a juvenile. In light of Miller v. Alabama, 132 S.Ct. 2455 (2012), the district court granted defendant’s 28 U.S.C. §2255 petition, and resentenced him to 600 months. The Eighth Circuit affirmed, finding that the district court made an individualized sentencing decision that took account of “the distinctive attributes of youth,” explaining its sentence in a thorough, 24-page memo. The court found several factors that mitigated against a life sentence, all relating to defendant’s youth and his subsequent, “extraordinary” rehabilitation in prison. Against those factors, the court weighed the seriousness of defendant’s crimes and his refusal to accept responsibility. The court properly gave significant weight to the extreme severity of defendant’s crimes – causing “the horrific deaths of five young, innocent children” in a fire-bombing, attempting to murder another man, and distributing “vast amounts” of controlled substances. U.S. v. Jefferson, __ F.3d __ (8th Cir. Mar. 14, 2016) No. 15-1309.
8th Circuit says 360 months for second-degree murder of child was not cruel and unusual. (140)(210) Defendant was convicted of the second-degree murder of his two-year-old daughter and assault resulting in serious bodily injury. The court sentenced him to the mandatory minimum 360 months. He argued that the mandatory minimum in 18 U.S.C. §3559(f)(1) was unconstitutional as applied to him. He claimed that the government alleged at trial that he struck the girl in reaction to the stress of being late for work, i.e., the government was describing a “heat of passion” assault. The Eighth Circuit upheld the sentence. A sentence within statutory limits is generally not subject to review under the Eighth Amendment. U.S. v. Contreras, __ F.3d __ (8th Cir. Mar. 7, 2016) No. 14-3789.
11th Circuit says 182-year sentence for §924(c) gun charges not cruel and unusual. (140) A jury convicted defendant of eight counts of armed robbery, in violation of 18 U.S.C. §1951(a), and eight counts of carrying, using, and brandishing a weapon, in violation of 18 U.S.C. §924(c)(1)(A)(ii). The district court sentenced defendant to 150 months for the §1951(a) violations and a mandatory 182 years for the §924(c) violations, to run consecutively. The Eleventh Circuit held that the 182-year mandatory sentence was not cruel and unusual punishment. Generally, sentences within the statutory limits are “neither excessive, nor cruel and unusual under the Eighth Amendment.” The sentence was not “grossly disproportionate” to the offenses committed, namely brandishing a firearm during the course of eight robberies. There is a high bar for a sentence to be “grossly disproportionate.” Prior Supreme Court and Eleventh Circuit cases have found that greater sentences, for less serious conduct, for defendants with less serious criminal histories were not grossly disproportionate. See Harmelin v. Michigan, 501 U.S. 957 (1991) (rejecting 8th Amendment challenge to life sentence for possessing 672 grams of cocaine). U.S. v. Bowers, __ F.3d __ (11th Cir. Jan. 22, 2016) No. 14-11585.
7th Circuit upholds life sentences for RICO juvenile crimes as not cruel and unusual. (140)(290) Defendants were sentenced to life in prison for RICO violations committed when they were juveniles. They brought motions under 28 U.S.C. § 2255, contending that the life sentences constituted cruel and unusual punishment under Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that mandatory life sentences without parole for juveniles violated the Eighth Amendment. The district court denied the motions, finding that the life sentences did not violate Miller because they were not mandatory. The Seventh Circuit agreed that the life sentences were not mandatory, and thus did not constitute cruel and unusual punishment. The RICO statute, 18 U.S.C. § 1963(a), provides in part that defendants “shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both.” The panel agreed with the district court that § 1963(a) established a maximum, not a mandatory, sentence of life in prison for defendants. U.S. v. Martinez, __ F.3d __ (7th Cir. Oct. 16, 2015) No. 14-2737.
1st Circuit affirms 12-year sentence for transporting minor as not cruel and unusual. (140) Defendant, an elementary school music teacher, was convicted of transporting a minor with intent to engage in criminal sexual activity. The First Circuit rejected his claim that his 12-year sentence constituted cruel and unusual punishment. The sentence was not grossly disproportionate to the offenses of conviction. The crimes were serious; they involved the repeated touching for sexual gratification of an 11-year-old girl entrusted to the defendant’s care and supervision. Molestation of a young girl is not a trivial matter. His guideline range was 262-327 months, and his sentence was substantially below the bottom of this range. U.S. v. Raymond, 697 F.3d 32 (1st Cir. 2012).
1st Circuit rules mandatory life sentence was not cruel and unusual punishment. (140) Defendant was convicted of drug charges. Due to his prior state drug possession convictions, he was sentenced to life in prison under § 841(b)(1)(A). The First Circuit held that the mandatory life sentence did not violate the Eighth Amendment prohibition on cruel and unusual punishment. Although a life sentence for a first-time drug distribution conviction looks severe, the Supreme Court has upheld sentences that look equivalently severe. See Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding a sentence of life in prison without parole for possession of more than 650 grams of cocaine). Moreover, although this was defendant’s first conviction for distribution, the trial evidence showed that he ran a significant distribution network involving a number of people over several years, possessed guns in connection with this continuing crime, seemingly was prepared to murder informants, and had enough prior convictions to place him in the top criminal history bracket. Further, all this would not have triggered the mandatory minimums had not the quantity of drugs he distributed exceeded the highest of the several statutory thresholds. U.S. v. Jones, 674 F.3d 88 (1st Cir. 2012).
1st Circuit says 15-year mandatory minimum for child porn offense was not cruel and unusual. (140) Defendant pressured an undercover agent posing online as a 13-year girl to take and send him sexually explicit photos of herself. He was convicted of attempting to produce child pornography. The First Circuit rejected defendant’s argument that the mandatory minimum 15-year sentence required by 18 U.S.C. §2251(e) constituted cruel and unusual punishment. The district court actually sentenced defendant to 188 months, a term slightly in excess of the mandatory minimum. The sentence was not grossly disproportionate to the crime. Defendant trivialized the gravity of the offense of conviction. The fact that his offense was an attempt, and not a fully consummated offense, did not matter. The fact that the offense did not involve an actual child did not lessen the severity of the offense. Defendant did not claim entrapment or police misconduct of any sort. The government’s use of an undercover agent was proper. U.S. v. Polk, 546 F.3d 74 (1st Cir. 2008).
1st Circuit says that crack to powder ratio does not violate Eighth Amendment. (140) The guidelines employ a 100 to 1 ratio of crack to powder cocaine, with the result that an offense involving, for example, 100 grams of powder cocaine has the same base offense level as an offense involving one gram of crack cocaine. The First Circuit held that the ratio between powder and crack cocaine is not so disproportionate as to violate the Eighth Amendment’s bar on cruel and unusual punishments. U.S. v. García-Carrasquillo, 483 F.3d 124 (1st Cir. 2007).
1st Circuit holds that career offender sentence did not constitute cruel and unusual punishment. (140) Defendant argued that his 151-month sentence for selling 0.8 grams of heroin violated the Eighth Amendment because it was a penalty grossly disproportionate to the gravity of his offense. However, a defendant seeking proportionality review must demonstrate an “initial inference of gross disproportionality.” U.S. v. Cardoza, 129 F.3d 890 (1st Cir. 1997). The First Circuit found defendant could not meet that burden. Defendant was sentenced as a career offender, not simply as a drug dealer. His sentence reflected a judgment not only about the severity of his drug offenses, but also about the danger of his persistent recidivism. U.S. v. Frisby, 258 F.3d 46 (1st Cir. 2001).
1st Circuit rejects 8th Amendment challenge to 280-month sentence for crack distribution. (140) Defendant pled guilty to selling 85.3 grams of crack to an informant. He argued that his 280-month sentence for distributing so “paltry” an amount of crack constituted cruel and unusual punishment. The First Circuit disagreed. At most, the 8th Amendment gives rise to a “narrow proportionality principle,” forbidding only extreme sentences that are significantly disproportionate to the underlying crime. Given that the Supreme Court has upheld a mandatory life sentence for possessing over 650 grams of crack, the sentence here was not cruel and unusual. U.S. v. Graciani, 61 F.3d 70 (1st Cir. 1995).
1st Circuit upholds consecutive sentences under § 5G1.2(d) to achieve life sentence for RICO offenses. (140) Defendant ran an organization that laundered over $100,000,000 in drug money during a five year period. His total offense level was 45, which required a life sentence regardless of the offender’s criminal history. Since the offenses of conviction all carried maximum sentences of less than life, the district court followed § 5G1.2(d) to impose consecutive sentences for each count, resulting in a sentence of 660 months. The First Circuit affirmed, holding that the district court was required to impose a series of consecutive sentences to effectuate the command of § 5G1.2. There is no congressional mandate for concurrent sentences. The 660-month sentence was not cruel and unusual punishment. U.S. v. Saccoccia, 58 F.3d 754 (1st Cir. 1995).
1st Circuit rejects cruel and unusual punishment challenge to seven year sentence for LSD offense. (140) The 1st Circuit rejected defendant’s claim that his seven year sentence for possessing with intent to distribute 7.7 grams of LSD was so disproportionate to the crime as to violate the 8th Amendment. In Harmelin v. Michigan, 111 S.Ct. 2680 (1991), three Supreme Court Justices cited with approval a case upholding a 40 year sentence for possessing with intent to distribute nine ounces of marijuana, a less potent drug. Even if an inter-jurisdictional comparison still remained relevant after Harmelin, which the court deemed a “doubtful proposition,” this would not have helped defendant. He could have received up to 10 years if prosecuted in a Maine court. U.S. v. Lowden, 955 F.2d 128 (1st Cir. 1992).
1st Circuit upholds pre-guidelines sentence despite co-conspirators’ lighter sentences. (140) Defendant complained that his pre-guidelines sentence of two concurrent terms of 10 years each on his two drug convictions was disproportionate compared to the sentences of his two other co-conspirators who pled guilty. They each received sentences of four years or less. The 1st Circuit upheld the sentences. The sentence was within the statutory limits for his crimes. Although defendant did go to trial while the other defendants pled guilty, there was no evidence that the harsher sentence was in retaliation for not pleading guilty. Defendant was involved in a major marijuana distribution conspiracy for ten years and he admitted at trial that he distributed thousands of pounds of marijuana. Although his sentence was greater than that of some other co-conspirators, it was not so out of line with defendant’s role in the conspiracy as to constitute cruel and unusual punishment. U.S. v. Richard, 943 F.2d 115 (1st Cir. 1991).
2nd Circuit reverses where court refused to impose five-year minimum sentence for child porn. (140) Defendant pled guilty to distributing child pornography. The district court refused to impose the minimum five-year prison term in 18 U.S.C. § 2252(b)(1), finding that it would constitute cruel and unusual punishment for this immature 19-year-old defendant, and instead sentenced him to 30 months. The Second Circuit reversed, finding that a five-year sentence was not inherently harsh. The panel also rejected the court’s conclusion that there was a consensus against five-year prison terms for juveniles convicted of child pornography. Defendant was already 19 when he committed the crime, and thus was an adult. The record showed no consensus about how immature adults should be sentenced for child pornography crimes. Immaturity, unlike age, is a subjective criterion, ill-suited to categorical rules. Finally, the five-year minimum sentence was not grossly disproportionate as applied to defendant. U.S. v. Reingold, 731 F.3d 204 (2d Cir. 2013).
2nd Circuit upholds constitutionality of armed career criminal sentence. (140) Defendant, convicted of drug charges and possession of ammunition, was subject to an enhanced sentencing guideline range based on his status as an armed career criminal. See 18 U.S.C. § 924(e)(1). He argued that the 216-month sentence imposed was unconstitutionally harsh, and that absent application of the ACCA, his sentence range would have been 70-87 months. The Second Circuit found the argument foreclosed by U.S. v. Mitchell, 932 F.3d 1027 (2d Cir. 1991), which held that § 924(e) was not unconstitutional as applied to a defendant with three prior burglary convictions. Defendant’s own criminal record, which also featured three burglary convictions, rivaled that of the defendant in Mitchell, and the Supreme Court has long recognized the propriety under the Eighth Amendment of subjecting recidivists to enhanced penalties. See Rummell vs. Estelle, 445 U.S. 263 (1980). U.S. v. Gamble, 388 F.3d 74 (2d Cir. 2004).
2nd Circuit upholds 240-year sentence for terrorist. (140) Defendant was convicted of charges relating to a conspiracy to bomb U.S. commercial airliners in Asia, and defendant and a different co-defendant were convicted on charges relating to the 1993 bombing of the World Trade Center. He was sentenced to 240 years on the World Trade Center counts; 180 years on eight counts, plus 30 consecutive years on two other counts. He also received life imprisonment on each counts relating the airline bombing plot, to be served consecutively to the 240-year term for the ten World Trade Center counts. The Second Circuit rejected defendant’s claim that his sentence violated the ex post facto clause or constituted cruel and unusual punishment. Although the law in effect when defendant committed his crime required a jury recommendation before the Court could impose a life term, “a change in law that reduces or eliminates the jury’s role in determining the … punishment of a defendant does not violate the Ex Post Facto Clause because it does not change the substantive definition of the crime, increase the punishment, or eliminate any defense with respect to the offense [charged.]” The length of the sentence did not violate the Eighth Amendment. Lengthy sentences, even those that exceed any conceivable life expectancy, do not constitute cruel and unusual punishment when based on a proper application of the Sentencing Guidelines or statutorily mandated consecutive terms.” Defendant’s sentence was not disproportionate, much less “grossly disproportionate” to his crimes. U.S. v. Yousef, 327 F.3d 56 (2d Cir. 2003).
2nd Circuit holds that 30-year sentence for fraud was not cruel and unusual punishment. (140) The district court departed upward by ten years to impose a 360 month sentence on defendant for his various fraud offenses. The Second Circuit rejected defendant’s claim that his sentence constituted cruel and unusual punishment. Whether defendant’s final sentence was 20 years or 30 years, or something in between, there was no disproportion between sentence and conduct. Defendant’s conduct wiped out the savings of thousands of people, and was not longer than the sentences meted out in other large fraud cases. U.S. v. Bennett, 252 F.3d 559 (2d Cir. 2001).
2nd Circuit upholds life sentences for mid-level drug dealers. (140) Defendants argued that their life sentences violated the 8th Amendment’s prohibition against cruel and unusual punishment, since they were only middle-level drug distributors. The 2nd Circuit upheld the sentences. They were based on the amount of narcotics manufactured and seized, defendants’ leadership role in the conspiracy, and in the case of one defendant, obstruction of justice. Although these factors resulted in an undesirable sentence for defendants, the life sentences were not disproportionate. U.S. v. Valdez, 16 F.3d 1324 (2nd Cir. 1994).
2nd Circuit says that disproportionately large civil forfeiture may violate double jeopardy. (140) Defendant’s $68,000 equity interest in his condominium was forfeited after he sold $250 worth of cocaine from the condominium. He argued that the forfeiture constituted criminal punishment and violated the double jeopardy clause and was cruel and unusual punishment. Relying on U.S. v. Halper, 490 U.S. 435 (1989), the 2nd Circuit held that a civil forfeiture will not be presumed punitive if the property was an instrumentality of crime. However, where the property is not an instrumentality and its value is overwhelmingly disproportionate to the value of the drugs, there is a rebuttable presumption that the forfeiture is punitive in nature. Here, the government conceded that the condominium was not an instrumentality of crime, and the court found that the forfeiture was overwhelmingly disproportionate. Nevertheless, the court found that since the drug offense had been prosecuted by the state rather than the federal government, the double jeopardy clause did not apply. As for cruel and unusual punishment, the equivalent of a $68,000 fine, while large, did not violate the 8th Amendment. U.S. v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, 954 F.2d 29 (2nd Cir. 1992).
2nd Circuit holds court must impose life imprisonment for first-degree murder. (140) Defendant was convicted of first-degree murder, and pursuant to 18 U.S.C. § 1111 sentenced to life imprisonment without parole. The 2nd Circuit rejected defendant’s argument that the Sentencing Reform Act and the sentencing guidelines conferred on a sentencing court the discretion to impose a lesser sentence. The abolition of parole under the sentencing guidelines did not change this analysis. A life sentence without the possibility of parole did not violate the 8th Amendment’s prohibition against cruel and unusual punishment. U.S. v. Gonzalez, 922 F.2d 1044 (2nd Cir. 1991).
3rd Circuit finds no Eighth Amendment violation in 288-month sentence for violent robbery. (140) Defendant robbed a jewelry store at gunpoint, resulting in a total advisory guideline range of 272-319 months. The district court imposed a within-guideline sentence of 288 months, noting that defendant had been a “regular participant in the criminal justice system most of his life.” The Third Circuit held that defendant’s within-guideline sentence did not amount to cruel and unusual punishment, finding proportionality between defendant’s crime and his sentence. During the robbery, defendant terrorized two victims with a gun, forced them to the floor, and bound them with plastic ties. When one of the victims tried to escape, defendant clubbed him, causing head wounds that required seven surgical staples to close. Defendant threatened the victim with future violence, warning the victim that he knew where he lived. The other victim begged defendant not to kill her. Both victims were subjected to “sustained terror,” and feared they would not survive the robbery. Moreover, defen¬dant’s conduct was not personally aberrant behavior. Defendant was a recidivist with several previous violent robberies and assaults. When he committed the robbery, he had been out of prison for only 31 days. U.S. v. Burnett, __ F.3d __ (3d Cir. Dec. 2, 2014) No. 14-1288.
3rd Circuit rejects constitutional challenges to mandatory consecutive sentencing scheme for use of gun during crime of violence. (140 Defendant was convicted of numerous firearms, robbery and drug charges, and received consecutive mandatory minimum sentences totaling 55 years of imprisonment for three violations of 18 U.S.C. § 924(c). The Third Circuit affirmed the 55-year sentence, rejecting defendant’s claim that it violated Due Process or constituted cruel and unusual punishment. Congress had a rational basis for treating second or subsequent offenses under § 924(c)(1) more harshly than first offenses and for imposing severe mandatory punishments for such offenses. The 55-year sentence did not violate our evolving standards of decency, but rather, represented Congress’s attempt to address the serious societal problem of the use of firearms in connection with violent crimes and in connection with drug trafficking. U.S. v. Walker, 473 F.3d 71 (3d Cir. 2007).
3rd Circuit upholds career offender guidelines against due process and 8th Amendment challenges. (140) Defendant contended that classifying him as a career offender violated due process because at the time he committed the predicate offenses he was unaware of the effect that the convictions would have on future sentences. He further argued that the classification was cruel and unusual punishment because it did not consider his drug addiction and was not proportionate to the offenses. The 3rd Circuit upheld the career offender classification, finding defendant was essentially claiming that his prior pleas were involuntary because he was not informed of the effect they might have on his later sentencing. Due process only requires that defendant be informed of the direct consequences of his plea. The effect of a conviction on sentencing for a later offense is a collateral consequence. With regard to the 8th Amendment, the Supreme Court concluded in Harmelin v. Michigan, 111 S.Ct. 2680 (1991) that the 8th Amendment only forbids sentences that are grossly disproportionate to the crime. Defendant’s three concurrent 210-month prison sentences were not grossly disproportionate to his three drug offenses. U.S. v. Salmon, 944 F.2d 1106 (3rd Cir. 1991).
4th Circuit upholds 120-year sentence for sexual abuse of four-year-old. (140) Defendant was convicted of multiple child pornography charges in connection with his sexual molestation of a four-year-old boy. He argued that his 120-year sentence was disproportionate to his crimes and constituted cruel and unusual punishment under the Eighth Amendment. The Fourth Circuit upheld the sentence, rejecting defendant’s constitutional challenge, and finding that the sentence did not constitute an abuse of discretion. “Given the shocking and vile conduct underlying these criminal convictions,” defendant did not establish “gross disproportionality.” Not only did defendant possess large quantities of child pornography, but he also created depictions of his own sexual exploitation, molestation, and abuse of a four-year-old child. To make matters worse, defendant had a serious communicable disease, and was aware that his sexual contact with the child could have caused the child to contract this disease. The sentence, which fell within his guideline range, was not unreasonable, even given defendant’s grave medical condition and diminished life expectancy. U.S. v. Cobler, 748 F.3d 570 (4th Cir. 2014).
4th Circuit reverses Rule 35(b) reduction that was based on factors other than defendant’s cooperation. (140) The government filed a Rule 35(b) motion seeking a 20 percent reduction in defendant’s 96-month sentence based on defendant’s cooperation. However, based on evidence from defendant that he would not be able to receive his preferred ADHD medication in prison because it was not on the BOP’s approved medication list, the district court reduced his sentence to one day. The Fourth Circuit reversed, holding substantial assistance is the sole basis on which a Rule 35(b) reduction may be made. In deciding whether to grant a Rule 35(b) motion, a district court may not consider any factor other than the defendant’s substantial assistance to the government. The panel also rejected defendant’s claim that a longer period of incarceration in his case would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. The BOP’s response “reflected [a] plan to carefully develop an individualized treatment regime for defendant’s [ADHD] based on a review of his medical records, his doctor’s treatment recommendations, and a medical screening.” U.S. v. Clawson, 650 F.3d 530 (4th Cir. 2011).
4th Circuit rejects 8th Amendment challenge to life sentence for felon in possession conviction. (140) Defendant argued that his life sentence without parole based on his conviction for being a felon in possession of a firearm was disproportionate, and violated the 8th Amendment. However, he conceded that his life sentence did not exceed the statutory maximum under 18 U.S.C. § 924(e). Moreover, he was unable to direct the court’s attention to any case in which it reversed a sentence that fell within the statutory range on grounds of disproportionality. The 8th Amendment prohibits only those sentences that are “grossly disproportionate” to the crime. Harmelin v. Michigan, 501 U.S. 957 (1991). The Fourth Circuit rejected defendant’s claim. U.S. v. Myers, 280 F.3d 407 (4th Cir. 2002).
4th Circuit holds that three-year sentence for environmental violations not cruel and unusual. (140) Defendant was convicted of 13 counts of negligently discharging untreated waste-water, in violation of the Clean Water Act, 33 U.S.C. § 1319(c)(1)(A). The district court departed downward from a sentencing range of 51-63 months to impose a sentence of 36 months. Because each of defendant’s misdemeanor convictions provided a maximum penalty of one year, the judge imposed consecutive sentences of 12 months on Counts One, Two and Three, and concurrent 12-month sentences on the remaining counts. The Fourth Circuit held that defendant’s three-year sentence did not constitute cruel and unusual punishment. Proportionality review is not available for any sentence less than life imprisonment without the possibility of parole. Moreover, defendant’s sentence was not disproportionate. Defendant did not just violate his duty of care once, but 13 times. The imposition of consecutive one-year terms of imprisonment for three of those convictions is not disproportionate. U.S. v. Hong, 242 F.3d 528 (4th Cir. 2001).
4th Circuit rejects Eighth Amendment challenge to life sentence for repeat drug offender. (140) Defendant was convicted of conspiracy to distribute five or more kilograms of cocaine. Because of two prior felony drug offenses, he received a mandatory life sentence under 21 U.S.C. § 841(b)(a)(A). He argued that § 841(b) (1)(A) violated the Eighth Amendment because (a) the sentence was disproportionate to the offense, and (b) the mandatory sentence prevented an individualized sentence. The Fourth Circuit rejected both Eighth Amendment challenges. Under the three-part test in Solem v. Helm, 463 U.S. 277 (1983), a sentence of life without parole is not a disproportionate punishment for the offense of drug distribution. The fact that the life sentence was mandatory also did not make it unconstitutional. Judge Niemeyer concurred, noting that the three-part Solem test has been reduced under Harmelin v. Michigan, 501 U.S. 957 (1991) to the single question of whether the punishment is “grossly disproportionate” to the crime. U.S. v. Kratsas, 45 F.3d 63 (4th Cir. 1995).
4th Circuit finds life imprisonment for crack cocaine was not cruel and unusual. (140) Defendant argued that his sentence of life without parole was disproportionate to his crack cocaine offense, and constituted cruel and unusual punishment. The 4th Circuit upheld the constitutionality of the life sentence. The gravity of defendant’s offense was great — drug use has become a pervasive, destructive force in American society. Given the substantial quantity of drugs involved, life without parole was not disproportionate to the crime. The Supreme Court, in Harmelin v. Michigan, 115 L.Ed.2d 836 (1991), implicitly rejected defendant’s claim that life without parole is cruel and unusual punishment. U.S. v. D’Anjou, 16 F.3d 604 (4th Cir. 1994).
4th Circuit upholds aggregate 44-year sentence against 8th Amendment challenge. (140) The 4th Circuit rejected defendant’s claim that his 40-year sentence for fraud, which was to run concurrent to his four-year sentence on related charges, constituted cruel and unusual punishment. Since this was a pre- guidelines case, defendant would be eligible for parole after serving 10 years. Although a co-defendant received a lighter sentence, in setting the sentence, the court took into account that the co-defendant was 64 years old and suffered a life-threatening heart condition. U.S. v. Pavlico, 961 F.2d 440 (4th Cir. 1992).
4th Circuit holds that guidelines do not violate due process clause or Eighth Amendment. (140) The 4th Circuit held that a sentence of 188 months following a conviction for drug dealing violated neither the due process clause nor the 8th Amendment prohibition against disproportionate sentences. The sentence was within the statutory maximum and was not disproportionate to the offense committed. U.S. v. Francois, 889 F.2d 1341 (4th Cir. 1989).
5th Circuit upholds mandatory life sentence for crack cocaine offense. (140) Defendant was convicted of multiple crack cocaine charges, and sentenced to life imprisonment. He argued that the district court erred in not retroactively applying the Fair Sentencing Act of 2010 (FSA) to his sentence. The FSA increased the quantities of crack that triggered various mandatory minimum sentences. The Fifth Circuit held that defendant’s argument was foreclosed by U.S. v. Tickles, 661 F.3d 212 (5th Cir. 2011), which held that the penalties prescribed by the FSA do not apply to sentencing for illegal conduct that preceded the FSA’s enactment. The panel also rejected defendant’s argument that his life sentence was substantively unreasonable, and constituted cruel and unusual punishment. The district court took the § 3553(a) factors into account in determining defendant’s sentence. Successful Eighth Amendment challenges to prison-term lengths are rare, and this court has previously upheld mandatory life sentences imposed under 21 U.S.C. § 841(B)(1)(A). U.S. v. Bennett, 664 F.3d 997 (5th Cir. 2011).
5th Circuit says restitution for all losses was not disproportionate. (140) Defendant, an attorney, was convicted of conspiracy and fraud for his involvement in filing fraudulent claims to recover from the settlement funds set up for victims of the diet drug Fen Phen. He argued that the restitution award (over $5.8 million) violated the Eighth Amendment, because it was disproportionate to require him to pay the full amount of the calculated loss attributable to the fraud when he received only about 12.5% of the total attorney’s fees. The Fifth Circuit held that because the restitution order was tied directly to losses sustained by the victim, it was proportional. The amount of restitution must be tied to the losses suffered by victims of the defendant’s crime, not the defendant’s gain from his illegal conduct. Further, the court ordered defendant’s restitution to be “joint and several” with 11 other persons who had already been convicted of fraud related to the Fen Phen settlements. Thus, defendant could seek contribution from his co-conspirators to pay off the restitution order and reduce the amount he personally owes. U.S. v. Arledge, 553 F.3d 881 (5th Cir. 2008).
5th Circuit affirms 45-year sentence for first-time offender despite Eighth Amendment claim, but criticizes prosecutor. (140) Defendant and her husband were convicted of drug charges and two counts of possessing firearms in furtherance of drug-trafficking crimes. Both received 548-month sentences. Because defendant was 53 at the time of sentence, she effectively received a life sentence. Because of the indictment, defendant was subject to mandatory minimum terms of 40 years (ten years for the drug charges, five years for the first gun charge, and 25 years for the second drug charge). However, there was no evidence that defendant brought a gun with her to any drug deal, that she ever used any of the guns, or that the guns ever left the house. The Fifth Circuit held that the 45-year sentence, while unduly harsh for someone with no prior convictions, did not violate the Eighth Amendment. But the panel noted that instead of charging defendant with two separate § 924(c) offenses, the prosecutor could have charged her with only one or could have chosen to charge her with the drug offenses and requested a two-level firearm enhancement. While there was nothing “legally improper” about the prosecutor’s charging decision, the prosecutor exercised his discretion “rather poorly.” U.S. v. Looney, 532 F.3d 392 (5th Cir. 2008).
5th Circuit upholds sentence based on judicial finding that death resulted from drug distribution. (140) Defendant’s friend, Taylor, had an adverse reaction to heroin defendant provided, and died. The cause of death was an “acute mixed drug reaction.” Taylor had used large amounts of cocaine as well as the heroin she took with defendant, and the combination killed her. A jury convicted defendant of possession with intent to distribute, but could not reach a verdict on whether death resulted from defendant’s distribution of heroin to Taylor. However, at sentencing, the district court found under § 2D1.1(a) that death had resulted from the use of heroin, which resulted in a base offense level of 43 and a life sentence. Because the jury was unable to find that Taylor’s death was a result of defendant’s distribution of heroin, he argued that the court’s sentence violated his right to a jury. The Fifth Circuit found this argument foreclosed by U.S. v. Watts, 519 U.S. 148 (1997), which held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as the conduct has been proved by a preponderance of the evidence.” The panel also rejected defendant’s claim that his 80-year sentence constituted cruel and unusual punishment. The Supreme Court has upheld a statute mandating a life sentence for possessing more than 650 grams of cocaine. U.S. v. Cathey, 259 F.3d 365 (5th Cir. 2001).
5th Circuit rejects sentencing disparity claim. (140) Defendants, who went to trial, received greater sentences than their more culpable co-conspirators who pled guilty and testified against them at trial. Defendants argued that their harsher sentences were in retaliation for their decision to stand trial and constituted cruel and unusual punishment. The Fifth Circuit disagreed. Both defendants received sentences within the guideline range, and did not argue that the guidelines were incorrectly applied. A defendant cannot challenge his sentence based solely on a lesser sentence given to a co-defendant. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit rules that upward departure for armed career offender was not cruel and unusual or double punishment. (140) Defendant’s guideline range was enhanced under the armed career criminal statute from 33 to 41 months to a mandatory minimum 180 months based on his three prior convictions. The 5th Circuit rejected defendant’s claim that an upward departure to a sentence of 230 months based on the seriousness of his criminal history was cruel and unusual or a double penalty for the same conduct. In U.S. v. Fields, 923 F.2d 358 (5th Cir. 1990), the court held that an upward departure of a sentence already enhanced under 18 U.S.C. section 924(e)(1) was permissible. U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992).
5th Circuit upholds sentence for failing to report money from legitimate sources. (140) Defendant was convicted of failing to report $48,000 in currency as he attempted to board a plane to South Korea. He contended that the sentence mandated by the Guidelines violated both the 8th Amendment and Congressional intent because his money was not derived from illegal activities. The 5th Circuit rejected this argument in light of its recent decision in U.S. v. O’Banion, 943 F.2d 1422 (1991), which held that the statute applies whether or not the money is derived from legitimate sources and that this does not constitute cruel and unusual punishment. U.S. v. Park, 947 F.2d 130 (5th Cir. 1991), vacated in part, U.S. v. Park, 951 F.2d 634 (5th Cir. 1992).
5th Circuit upholds two and one-half year sentence against 8th Amendment challenge. (140) In this pre-guidelines case, defendant complained that his two and one half year sentence constituted cruel and unusual punishment, primarily because his co-defendant received a sentence of probation from a different judge. The 5th Circuit rejected this argument. Disparity of sentences among co-defendants, by itself, is not grounds for reversal. The record showed that the sentencing judge considered a variety of factors in imposing the sentence, including the sentencing range recommended by the sentencing guidelines. Given the quantity of drugs involved, defendant could have received a much more severe sentence. There was no abuse of discretion. U.S. v. Harrison, 918 F.2d 469 (5th Cir. 1990).
5th Circuit holds that 75 months imprisonment and $290,000 fine for mail fraud not constitute cruel and unusual punishment. (140) Defendant pled guilty to mail fraud and falsifying a social security number in connection with a swindling scam. The first offense was subject to a guideline sentence, the second was not. He received consecutive sentences of 15 months and a $40,000 fine on the first count and the 5 year maximum term and $250,000 fine on the second. The 5th Circuit rejected his 8th Amendment appeal. The court held that the guideline sentence (and fine) were not disproportionate. “Developed from empirical research with the goal of making the punishment fit the crime, the guidelines are a convincing objective indicator of proportionality.” Here, the defendant made no showing to the contrary, and the sentence was affirmed. The court also held that the imposition of the maximum statutory punishment (custody, fine) on the non-guidelines count was neither a precipitous punishment nor disproportionate to the offense, given the facts of this case. U.S. v. Sullivan, 895 F.2d 1030 (5th Cir. 1990).
6th Circuit affirms life sentence for underwear bomber as not cruel and unusual or unreasonable. (140) Defendant, the so-called “underwear bomber,” was convicted of multiple charges relating to his attempt to detonate a bomb in his underwear while on an international flight to the United Sates. The Sixth Circuit rejected defendant’s claim that his life sentence was cruel and unusual punishment and was substantively unreasonable. The penalty was not “grossly disproportionate” to the crime. Defendant attempted to blow up an airplane with 289 people on board, and he failed to accomplish this objective only because of a technical problem with the bomb. Defendant was “deeply committed’ to his mission, and was a continuing threat to the United States and its citizens. The life sentences were constitutional, as they were fully proportional with the crimes, especially in light of defendant’s desire to engage in future terrorist activity. The life sentences were also substantively reasonable. The court properly weighed the factors in 18 U.S.C. § 3553(a), particularly the fact that defendant committed an act of terrorism and communicated a desire to commit future acts of terrorism if he were released. U.S. v. Abdulmutallab, 739 F.3d 891 (6th Cir. 2014).
6th Circuit holds that defendant suffering from Human Growth Hormone Deficiency did not qualify as juvenile. (140) Defendant pled guilty to receiving child pornography over a period of five years, from the time he was 15 until he was 20. He suffered from a rare condition called Human Growth Hormone Deficiency, and he argued that he was entitled him to the same Eighth Amendment protection as a juvenile. The district court found that other than chronological age, defendant was a juvenile, and varied downward from the guideline range. He was sentenced to five years in prison, the mandatory minimum for the offense. The Sixth Circuit rejected defendant’s claim that the mandatory minimum sentence was cruel and unusual punishment. Defendant’s argument was premised on his assertion that he was a juvenile when he committed the crime, but this was wrong. Defendant was an adult when he committed the crime. Even if he was mentally and physically a juvenile, this was not relevant for Eighth Amendment purposes. Chronological age is the touchstone for determining whether an individual is a juvenile or an adult. U.S. v. Marshall, 736 F.3d 492 (6th Cir. 2013).
6th Circuit says 15 years was not cruel and unusual despite defendant’s mild mental retardation. (140) Defendant, a four-time convicted felon, was convicted of being a felon in possession of a firearm. The district court sentenced him as an Armed Career Criminal to a mandatory minimum penalty of 180 months. Government doctors diagnosed defendant with mild mental retardation. The Sixth Circuit rejected defendant’s argument that the mandatory minimum sentence, as applied to him, constituted cruel and unusual punishment. Defendant’s prior qualifying sentences included two violent felonies involving aggravated burglary and two involving the distribution of crack cocaine. On the night of his arrest, witnesses reported seeing defendant beat his girlfriend. Despite this, defendant actually received the minimum sentence under the statute. His sentence did account for his mental retardation—the guidelines authorized a sentence up to 188 months, and the statute imposed no cap. The fact that mentally retarded defendants are “categorically” less culpable than average criminal defendants, see Atkins v. Virginia, 536 U.S. 304 (2002), did not make this statutory penalty unconstitutional. U.S. v. Moore, 643 F.3d 451 (6th Cir. 2011).
6th Circuit holds that mandatory minimum 15-year sentence for child porn offense did not violate Eighth Amendment. (140) Defendant was convicted under 18 U.S.C. § 2422(b) of attempting to persuade a minor to engage in unlawful sexual activity, and under 18 U.S.C. § 2251 of attempting to persuade a minor to engage in sexually explicit conduct for the purpose of producing visual depictions. The district court sentenced Hart to concurrent mandatory-minimum sentences of 120 months for violating § 2422(b) and 180 months for violating § 2251, for a total sentence of 180 months’ imprisonment. Given the seriousness of defendant’s conduct, the Sixth Circuit joined other circuits in holding that the mandatory minimum sentence was not so grossly disproportionate to the crimes as to violate the Eighth Amendment. See, e.g. U.S. v. Polk, 546 F.3d 74 (1st Cir. 2008). U.S. v. Hart, 635 F.3d 850 (6th Cir. 2011).
6th Circuit counts drug offense committed as juvenile where defendant was convicted as adult. (140) Defendant had two prior felony drug convictions, both of which the district court counted as triggering offenses for purposes of imposing a mandatory life sentence under § 841(b)(1)(A)(iii). The Sixth Circuit held that the district court properly counted a drug offense defendant committed as a juvenile, but for which he was convicted and sentenced as an adult. First, the statutory language supported the district court’s ability to count defendant’s juvenile-age conviction as a § 841(b)(1)(A)(iii) prior conviction. Nothing in § 841(b)(1)(A) indicates that a defendant’s age at the time of his or her prior conviction is relevant to the application of § 841. Defendant was not adjudicated in the juvenile system. Under Supreme Court precedent and the plain language of the statute, a sentencing court imposing a mandatory minimum under § 841(b) (1)(A) must use the “felony drug offense” definition in § 802(44) with reference to the state law of conviction. Here, the state chose to prosecute defendant for an adult drug offense that qualified as a felony under state law. Judge Merritt dissented. U.S. v. Graham, 622 F.3d 445 (6th Cir. 2010).
6th Circuit holds that mandatory life sentence did not violate Eighth Amendment. (140) Defendant was convicted of three crack cocaine offenses under 21 U.S.C. § 841(a)(1) and 846. He argued that his life sentence, imposed for his third qualifying felony under § 841(b)(1)(A), was grossly disproportionate under the Eighth Amendment as a result of an over-stated criminal history, and in comparison to his co-defendants’ sentences. He acknowledged that U.S. v. Hill, 30 F.3d 48 (6th Cir. 1994) held that mandatory minimum sentences under 21 U.S.C. § 841(B)(1) (a)(iii) do not constitute cruel and unusual punishment, but argued that his sentence “was triggered by an overrepresented criminal history” rather than just the statute, and that the government did not present direct evidence that he “possessed anything.” The Sixth Circuit disagreed. These arguments did not distinguish Hill. The district court did not violate the Eighth Amendment in imposing a life sentence. U.S. v. Graham, 622 F.3d 445 (6th Cir. 2010).
6th Circuit rejects claim that mandatory life sentence was cruel and unusual. (140) Defendant was convicted of drug and firearms charges. At sentencing, the district court found that defendant had two prior felony convictions, and, as a result, that a statutory minimum of life imprisonment was required on the drug conspiracy conviction. He argued that the application of a mandatory life sentence violated the Eight Amendment because it was grossly disproportionate to the offenses at issue, noting that he served a total of only 90 days’ imprisonment for his prior drug-related convictions, and that his prior felonies did not involve any personal injury or property damage. The Sixth Circuit found this argument foreclosed by Harmelin v. Michigan, 501 U.S. 957 (1991), which concluded that a life sentence for possession of 672 grams of cocaine did not violate the Eighth Amendment, even though it was the defendant’s first offense. The panel also rejected claims that the life sentence was disproportionate to the sentences received by his co-defendants, violated separation of powers doctrines, or improperly prohibited the judge from considering defendant’s individual circumstances. U.S. v. Odeneal, 517 F.3d 406 (6th Cir. 2008).
6th Circuit holds that 1,772-month prison term for robbery and firearms violations was not cruel and unusual punishment. (140) On six different occasions, defendant and/or his accomplices robbed a bank by brandishing firearms and abducting bank employees from their homes. Defendant’s guideline range was 188-235 months, but after imposing a variety of consecutive sentences for six counts of brandishing a firearm during the robberies, the district court sentenced him to a total of 1,772 months. The Sixth Circuit held that the 1,772-month sentence was reasonable, and did not constitute cruel and unusual punishment. Although defendant did not fire a gun, no one was injured, and he lacked any previous criminal history, this did not render his sentence unreasonable. Under 18 U.S.C. § 924(c), firearms convictions may not run concurrently with any other term of imprisonment, including the sentence for the underlying offense. U.S. v. Watkins, 509 F.3d 277 (6th Cir. 2007).
6th Circuit holds that 57-month sentence for illegally reentering country was not cruel and unusual. (140) Defendant pled guilty to illegally reentering the country after deportation. The Sixth Circuit found no merit to his claim that his 57-month sentence was so disproportionate and excessive as to constitute cruel and unusual punishment. The Eighth Amendment does not mandate strict proportionality between crime and sentence; instead, at most, only sentences that are “grossly disproportionate” to the crime are prohibited. Harmelin v. Michigan, 501 U.S. 957 (1991). A sentence of 57-months is not grossly disproportionate to the crime of reentering the U.S. after being deported subsequent to the commission of an aggravated felony. U.S. v. Olan-Navarro, 350 F.3d 551 (6th Cir. 2003).
6th Circuit rejects cruel and unusual punishment challenge to 46-month sentence. (140) Defendant was convicted of illegally possessing a firearm while subject to a domestic violence protection order, in violation of 18 U.S.C. § 922(g)(8). The Sixth Circuit held that his 46-month sentence was not cruel and unusual punishment. Only extreme sentences that are grossly disproportionate to the crime committed are barred by the cruel and unusual punishment clause. Given the dangers Congress sought to avoid in enacting § 922(g)(8), defendant’s 46-month sentence was not extreme. U.S. v. Baker, 197 F.3d 211 (6th Cir. 1999).
6th Circuit rules that life sentence for drug smuggling is not cruel and unusual punishment. (140) Defendant was convicted of possessing with intent to distribute five kilograms of cocaine. Because he had two prior felony convictions, the district court sentenced defendant to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A). The Sixth Circuit held that the life sentence without the possibility of parole was not cruel and unusual punishment. In U.S. v. Hill, 30 F.3d 48 (6th Cir. 1994), the court held that a mandatory life imprisonment without release upon a third felony drug conviction did not violate the Eighth Amendment’s protection against cruel and unusual punishment. Only extreme sentences that are grossly disproportionate to the crime are prohibited. U.S. v. Flowal, 163 F.3d 956 (6th Cir. 1998).
6th Circuit says that 157-month sentence for armed robbery is not cruel and unusual punishment. (140) The 6th Circuit held that defendant’s 157-month sentence for armed robbery was not cruel and unusual punishment. Congress has decided that a person convicted of carrying a sawed-off shotgun in relation to a crime of violence must be sentenced to a 10-year term. The total 157-month sentence was not grossly disproportionate to defendant’s two crimes. U.S. v. Duerson, 25 F.3d 376 (6th Cir. 1994).
6th Circuit upholds 15-year sentence for armed career criminal in possession of firearm. (140) Defendant argued that his 15-year mandatory minimum sentence as an armed career criminal was grossly disproportionate to the offense of being a felon in possession of a firearm and constituted cruel and unusual punishment. The 6th Circuit affirmed the sentence. Defendant’s claim that his prior convictions were unarmed, non-violent felonies was rejected. Breaking and entering constitutes burglary under section 924(e), and thus is a violent felony. The mere unavailability of transcripts of defendant’s plea hearing did not bar the use of the prior convictions for sentence enhancement purposes. Under the totality of the circumstances, the 15-year sentence was not cruel and unusual punishment. U.S. v. Johnson, 22 F.3d 674 (6th Cir. 1994).
6th Circuit upholds 262-month sentence for conspiracy involving several hundred pounds of marijuana. (140) Defendant argued that his 262-month sentence, resulting largely from the career offender guideline, was so disproportionate to the gravity of his offense as to be cruel and unusual punishment. The 6th Circuit, relying on Harmelin v. Michigan, 111 S.Ct. 2680 (1991), found that a 262-month sentence for a conspiracy with intent to distribute several hundred pounds of marijuana was not disproportionate. U.S. v. Garcia, 20 F.3d 670 (6th Cir. 1994).
6th Circuit rejects 8th Amendment challenge to 15-year sentence for Armed Career Criminal. (140) Defendant was convicted of various firearms-related offenses, and received a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C section 924(e). The 6th Circuit rejected defendant’s claim that the 15-year sentence was so disproportionate to his crime as to constitute cruel and unusual punishment. Under Harmelin v. Michigan, 111 S.Ct. 2680 (1991), a plurality of the Supreme Court held that the 8th Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. Defendant’s 15-year sentence was not an extreme sentence, nor was it grossly disproportionate to his series of crimes. U.S. v. Warren, 973 F.2d 1304 (6th Cir. 1992).
6th Circuit upholds 360-month sentence for drug trafficker against cruel and unusual punishment claim. (140) Defendant was convicted of various drug-related offenses and received three concurrent terms of 360 months and one 41 month concurrent term. The 6th Circuit rejected as “patently meritless” defendant’s claim that the 360-month sentence constituted cruel and unusual punishment under the facts of his case. U.S. v. Straughter, 950 F.2d 1223 (6th Cir. 1991).
6th Circuit upholds 10-month sentence for illegal sale of machine gun against 8th Amendment challenge. (140) The 6th Circuit rejected defendant’s claim that his 10-month sentence for selling a machine gun without a license violated the 8th Amendment’s guarantee against cruel and unusual punishment. A plurality of the Supreme Court recently supported a “narrow proportionality” test in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2860 (1991). Under this approach, there is no requirement of strict proportionality. The 8th Amendment is offended only by an extreme disparity between crime and sentence. Defendant’s 10-month sentence easily survived this test. The unauthorized distribution or use of dangerous weapons constituted a sufficiently grave threat to society that a sentence of 10 months is more than justified. U.S. v. Hopper, 941 F.2d 419 (6th Cir. 1991).
6th Circuit rejects claim that bribery sentence was harsh and excessive. (140) Defendant was an elected city councilman convicted of violating the Hobbs Act by soliciting a bribe. Defendant was sentenced to 30 months in prison, a $3,000 fine and two years of supervised probation. The 6th Circuit rejected defendant’s argument that his sentence was harsh and excessive. Defendant’s sentence was within the applicable guideline range. The sentence was also not cruel and unusual because it was not grossly disproportionate to the severity of his offense or to the sentence imposed on similarly situated criminals. U.S. v. Peete, 919 F.2d 1168 (6th Cir. 1990).
6th Circuit finds 22-year sentence not cruel and unusual punishment. (140) In a pre-guidelines case, defendant contended that his 22-year sentence was excessive. He was sentenced for violations of the Travel Act, possession of marijuana, and importation of marijuana. The 6th Circuit noted that while the length of the sentence might seem severe, in light of defendant’s extensive criminal history, the sentence was not “so grossly disproportionate to the crime as to constitute cruel and unusual punishment.” U.S. v. Sammons, 918 F.2d 592 (6th Cir. 1990).
6th Circuit upholds 40-year sentence against 8th Amendment challenge. (140) A drug conspirator argued that his 40-year sentence was not proportionate to the crime of conspiring to distribute cocaine, and therefore violated the 8th Amendment’s prohibition against cruel and unusual punishment. The 6th Circuit disagreed, finding that the 40-year maximum statutory sentence was not unusual in light of today’s climate of drug intolerance. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).
6th Circuit agrees with other circuits that 100:1 ratio of cocaine base to cocaine is not cruel and unusual punishment. (140) Defendant argued that because there was no proof that cocaine base is 100 times more powerful than cocaine hydrochloride, this 100:1 ratio was unconstitutionally disproportionate. The 6th Circuit rejected the argument, agreeing with four other circuits which have considered the issue. The court noted that there have been only three recognized instances of disproportionality arising to the level of an Eighth Amendment violation. “A 10-year sentence for drug possession simply does not approach the same level of gross inequity.” U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990).
7th Circuit upholds mandatory minimum for sexual predators. (140) Defendant pled guilty to attempting to entice a minor to engage in a criminal sexual act, in violation of 18 U.S.C. § 2422(b). He argued that § 2422(b)’s mandatory minimum 10-year sentence violates the Fifth and Eighth Amendments because it is not subject to a “safety valve” allowing for a sentence below the mandatory minimum term. The Seventh Circuit held that the mandatory minimum did not violate equal protection. Criminal defendants who violate § 2422(b) are not similarly situated for sentencing purposes with criminal defendants who violate the controlled substances offenses enumerated in § 3553(f). There is a rational distinction between first time, non-violent drug offenders who have cooperated with the government, and those offenders who have attempted to prey on children. The 10-year mandatory minimum sentence was not grossly disproportionate to the offense of sexual enticement of a minor and therefore it did not violate the Eighth Amendment. U.S. v. Nagel, 559 F.3d 756 (7th Cir. 2009).
7th Circuit says using juvenile convictions to support ACCA enhancement was not cruel and unusual punishment. (140) Defendant argued that using his juvenile armed robbery offenses to increase his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Eighth Amendment. The Seventh Circuit disagreed. Although Roper v. Simmons, 43 U.S. 551 (2005) held that it was cruel and unusual punishment to execute a person for conduct that occurred before age 18, Roper permitted a life sentence for conduct committed while the offender was a juvenile, and did not address sentence enhancements based on juvenile crimes. Roper was based in large part on the “special force” with which the Eighth Amendment applies when the state imposes the ultimate punishment of death. U.S. v. Salahuddin, 509 F.3d 858 (7th Cir. 2007).
7th Circuit says imprisonment was not cruel and unusual punishment for defendant who allegedly needed heart transplant. (140) Defendant claimed that the policy of the Bureau of Prisons is to automatically deny requests for organ transplants, and therefore, because he needed a heart transplant, it was cruel and unusual punishment to sentence him to any term of imprisonment. The Seventh Circuit rejected the claim. The general policy against organ transplants cited by defendant says that the medical director may make an exception to this rule as a particular inmate’s case warrants. Defendant presented no evidence that he was a viable candidate for a heart transplant or that he was being denied the opportunity to receive a new heart by prison officials. U.S. v. Dowell, 388 F.3d 254 (7th Cir. 2004).
7th Circuit upholds sentence that exceeded defendant’s life expectancy. (140) Defendant argued that his 8th Amendment rights were violated when the district court denied his motion for a downward departure and sentenced him to 352 months (29.33 years), a sentence exceeding his life expectancy of 16.96 years. Defendant claimed that his sentence was imposed in violation of 21 U.S.C. § 841(b)(1)(C), which states that “a person shall be sentenced to a term of not … more than life.” Defendant argued that any sentence in excess of his life expectancy was more than life, and therefore prohibited under the statute. The Seventh Circuit rejected this argument. The case cited by defendant, U.S. v. Martin, 63 F.3d 683 (7th Cir. 2001) (stating that where a statute bars a life sentence, sentence for a term of years that exceeds a defendant’s life expectancy constitutes an abuse of discretion), applies only in limited circumstances not applicable here. U.S. v. Spiller, 261 F.3d 683 (7th Cir. 2001).
7th Circuit holds that sentencing disparity among co-defendants was not cruel and unusual punishment. (140) The Seventh Circuit rejected defendant’s argument that his sentence was cruel and unusual punishment because it was longer than that of his co-defendants. First, while severe disproportionality in sentencing may lead to an Eighth Amendment violations, there is no constitutional guarantee of proportionality in non-capital cases. Second, whether defendant’s sentence was “disproportionate” to those of his co-defendants was not a pertinent question because sentencing takes into account factors other than the type of crime, such as a defendant’s criminal history and the specific circumstances of the crime. Here, the difference in sentences stemmed from differences in the defendants’ criminal histories and personal backgrounds, not from an Eighth Amendment violation. U.S. v. Cavender, 228 F.3d 792 (7th Cir. 2000).
7th Circuit says 83 years for robberies and four § 924(c) counts was not cruel and unusual. (140) Defendant committed a series of bank robberies and was convicted of robbery and four counts of using or carrying a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c). The Seventh Circuit held that his 83-year sentence was not cruel and unusual punishment. The sentence was based on a proper application of the robbery guidelines (18 years) and consecutive terms (of 5-20-20-20) on the four § 924(c) counts. Given the limited nature of Eighth Amendment proportionality review, and precedents upholding life sentences for lesser crimes, it was clear that the Eighth Amendment does not prohibit the heavy 65-year consecutive terms that § 924(c) required. U.S. v. Arrington, 159 F.3d 1069 (7th Cir. 1998).
7th Circuit rejects constitutional challenges to mandatory minimum 240-month sentence. (140) Although defendant had a guideline range of 188-235 months, he was subject to a mandatory minimum 240-month sentence for his drug offense. The Seventh Circuit rejected defendant’s argument that the mandatory 240-month sentence was cruel and unusual punishment under the Eighth Amendment or violated the due process clause of the Fifth Amendment. These claims were previously considered and rejected by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991) and Chapman v. United States, 500 U.S. 453 (1991). U.S. v. Magana, 118 F.3d 1173 (7th Cir. 1997).
7th Circuit rejects constitutional challenges to 10-year sentence for residential burglary. (140) Defendant committed a residential burglary on a federal enclave. The 7th Circuit rejected defendant’s claim that the 120-month sentence he received as a career offender violated due process or constituted cruel and unusual punishment. It was unclear how the sentence violated due process, other than simply being “unfair” because he would have received a lesser sentence under state law and the guidelines had he not been a career offender. Although the Assimilative Crimes Act states that punishment should be “like” that of the state, the federal government does not have to adopt the same provisions for computing when a sentence is satisfied. Defendant was sentenced within the state guidelines (four to 15 years), which is all the Assimilative Crimes Act requires. The 120-month sentence was not so “grossly disproportionate” to defendant’s crimes as to constitute cruel and unusual punishment. U.S. v. Coleman, 38 F.3d 856 (7th Cir. 1994).
7th Circuit rejects challenge based on district court’s claim that sentence was “unjust.” (140) The district court opined that defendant’s guideline sentence was “unjust,” but found no basis for a downward departure. The 7th Circuit rejected defendant’s claim that the judge’s remarks revealed that her sentence violated due process and constituted cruel and unusual punishment. U.S. v. Gulley, 992 F.2d 108 (7th Cir. 1993).
7th Circuit affirms that RICO guideline complies with guidelines’ enabling legislation. (140) The 7th Circuit rejected the argument that the RICO guideline, section 2E1.1, conflicts with the guidelines’ enabling legislation by unfairly providing a high minimum base offense level and then failing to set forth specific aggravating or mitigating factors. Congress intended to make RICO a “weighty offense.” The very structure of the statute demonstrates that Congress has decided that a RICO conspiracy is a specific, identifiable crime apart from any underlying predicates. U.S. v. Ashman, 979 F.2d 469 (7th Cir. 1992).
7th Circuit rejects 8th Amendment challenge to 262-month drug sentence despite co-conspirator’s 16-month sentence. (140) Defendant was convicted of drug conspiracy charges, and as a career offender, received a 262-month sentence. The 7th Circuit rejected defendant’s claim that the sentence constituted cruel and unusual punishment because it was disproportionate to his crime and to the 16-month sentence of a co-conspirator. The 8th Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Defendant’s harsh sentence was not grossly disproportionate to either the crime or his co-conspirator’s relatively light sentence. Congress made clear that it considers repeat drug violations among the gravest offenses in the federal code. Defendant’s heavy punishment resulted from his classification as a career offender, and a decision not to cooperate with authorities. His co-conspirator had no criminal record and cooperated with authorities from the start. U.S. v. Saunders, 973 F.2d 1354 (7th Cir. 1992).
7th Circuit upholds 72-month sentence for solicitation as not cruel and unusual. (140) The 7th Circuit rejected defendant’s claim that his 72-month sentence for soliciting a prison inmate to join a bank robbery conspiracy constituted cruel and unusual punishment. The sentence defendant received was about half of the statutory maximum prescribed by Congress. The court rejected defendant’s argument that solicitation and the underlying offense are treated equally under the guidelines: section 2X1.1(b)(3)(A) provides for a three-level reduction in base offense level for solicitation offenses. U.S. v. Jones, 950 F.2d 1309 (7th Cir. 1991).
7th Circuit rejects claim that seven-year sentence for pre-guidelines offense constituted cruel and unusual punishment. (140) In this pre-guidelines case, defendant contended that his seven-year sentence for attempted armed robbery was cruel and unusual punishment and was disproportionate compared to his co-defendants. The 7th Circuit rejected both arguments. Given defendant’s “sordid record of criminal activity,” a seven-year sentence on a maximum 50-year term was not cruel or unusual. Disparity among co-defendants’ sentences does not alone prove abuse of discretion. In this case, there were valid reasons why two co-defendants received lesser sentences than defendant. One defendant had far less culpability, and the other defendant’s sentence was imposed consecutively to an 18-year term of imprisonment. U.S. v. Harty, 930 F.2d 1257 (7th Cir. 1991).
7th Circuit holds that 30-year sentence for career offender’s possession of a firearm did not violate 8th Amendment. (140) Defendant was convicted of being a felon in possession of a firearm. The district court found he was a career offender, and sentenced him to 30 years. The 7th Circuit ruled that the 30-year sentence did not constitute cruel and unusual punishment. Defendant failed to demonstrate that a 30-year sentence was disproportionate to his crime. The statute under which he was convicted authorized a sentence from 15 years to life, and he was sentenced within the statutory maximum. The 7th Circuit also rejected defendant’s argument that the career offender provisions violated the double jeopardy clause. U.S. v. Alvarez, 914 F.2d 915 (7th Cir. 1990), superseded on other grounds by rule as stated in Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
8th Circuit rules 120-month sentence for failing to register as sex offender did not violate Eighth Amendment. (140) Defendant pled guilty to violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). His guideline range was 18-24 months, but the district court sentenced him to 120 months. The Eighth Circuit rejected his argument that the sentence was grossly disproportionate to his crime, in violation of the Eighth Amendment. Defendant’s offense was more serious than simply failing to “fill out the proper registration forms within the proper time period.” He fraudulently registered an address at which he never resided. He hid his actual location from the police, and hid his sex offender history from the family that housed him. When defendant was arrested lurking around a school, he had in his possession numerous personal items he had taken from the 14-year-old girl who lived at the house where he lived. Defendant’s failure to properly register led to the type of situation that SORNA was enacted to prevent. The context of defendant’s most recent arrest, when combined with his criminal history, which included rape and attempted rape, supported the sentence. U.S. v. Martin, 677 F.3d 818 (8th Cir. 2012).
8th Circuit says 600-month sentence for drug conspiracy was not cruel and unusual. (140) Defendant was convicted of conspiracy to distribute 50 grams or more of methamphetamine and five kilograms or more of cocaine. The district court sentenced him to two concurrent terms of 600 months with five years of supervised release. The Eighth Circuit held that defendant’s two concurrent 600-month sentences were not cruel and unusual punishment under the Eighth Amendment. “It is exceedingly rare for an offense that does not have a capital sentence to violate the Eighth Amendment, which forbids only extreme sentences that are grossly disproportionate to the crime.” The Supreme Court has held that life imprisonment for possession of 650 grams of cocaine with intent to distribute does not violate the Eighth Amendment. Certainly then, a sentence of 600 months for defendant’s possession of five kilograms of cocaine does not violate the Eighth Amendment. U.S. v. Rodriguez-Ramos, 663 F.3d 356 (8th Cir. 2011).
8th Circuit says life sentence for felon in possession was not cruel and unusual. (140) Defendant pled guilty to being a felon in possession of a firearm and to possessing stolen firearms. He argued that his sentence of life imprisonment was cruel and unusual punishment because it was grossly disproportionate to the offense. The Eighth Circuit rejected the argument. First, defendant ignored the fact that he qualified as an armed career criminal based on his recidivism. The statute required a minimum of 15 years, and, with applicable enhancements, the advisory guidelines sentence was life imprisonment. Moreover, the harm caused or threatened by his crimes weighed in favor of the life sentence. Defendant had stolen and possessed between 8 and 24 firearms, one of which was a semi-automatic weapon. He arranged for the sale of some of these weapons to a drug dealer and felon, and he used the remaining weapons as part of an armed robbery at a local hotel. Defendant’s lengthy criminal history also supported the sentence. U.S. v. Lee, 625 F.3d 1030 (8th Cir. 2010).
8th Circuit holds that 684-month sentence based on three violations of § 924(c) was not cruel and unusual. (140) Defendant was convicted of three counts of bank robbery and three counts of possession of a firearm in furtherance of a crime of violence, and was sentenced to 58 years in prison. Under 18 U.S.C. § 924(c)(1)(B) and (C), defendant’s first conviction for the § 924(c) offense required a sentence of not less than seven years, and the subsequent two convictions each required a 25-year sentence. All of the § 924(c) sentences must be served consecutively to one another. The Eighth Circuit rejected defendant’s argument that the mandatory minimum sentence of 684 months for three violations of § 924(c) violated the Eighth Amendment. Defendant’s sentence was not grossly disproportionate to the crime committed, and thus did not violate the Eighth Amendment. U.S. v. Wiest, 596 F.3d 906 (8th Cir. 2010).
8th Circuit counts robberies committed when defendant was 15 for ACCA purposes. (140) Defendant challenged the use of his robbery convictions, committed when he was a juvenile and unarmed, to increase his sentence under the Armed Career Criminal Act. Citing Roper v. Simmons, 543 U.S. 551 (2005), he argued that applying the ACCA to his sentence violated the Eighth Amendment because it was based on crimes that he committed as a juvenile. Roper held that executing a person for conduct that occurred before the offender was 18 violated the Eighth Amendment, but it permitted imposing a sentence of life imprisonment based on conduct that occurred when the offender was a juvenile. The Eighth Circuit held that the Eighth Amendment does not prohibit using an adult conviction based on juvenile conduct to increase a sentence under the ACCA. Roper does not deal, even tangentially, with sentence enhancement. U.S. v. Jones, 574 F.3d 546 (8th Cir. 2009).
8th Circuit affirms life sentence for producer of child porn against 8th Amendment claim. (140) Defendant pled guilty to five counts of producing child pornography, in violation of 18 U.S.C. §2251(a). The Eighth Circuit held that the life sentence imposed by the district court did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Each of the five counts of conviction involved a different child victim. The first nude photos of the victims were taken when they were between 11 and 12 years old, and each victim was photographed multiple times over the course of a number of years. Defendant admitted taking thousands of nude photos of these five victims, as well as other boys. The victims were engaged in sexually explicit conduct in 10 of the 114 images seized. Additionally, defendant molested or attempted to molest at least three of the victims. Despite defendant’s attempt to minimize the severity of his conduct, his offenses were very serious. For a defendant with at least two prior convictions related to the sexual exploitation of a minor, §2255(e) provides a minimum term of imprisonment of 35 years and a maximum of life for the production of child pornography. Thus, defendant’s sentence, while harsh, was within the statutory range provided by Congress. U.S. v. Paton, 535 F.3d 829 (8th Cir. 2008).
8th Circuit says defendant waived claim that sentence he agreed to was cruel and unusual. (140) Defendant signed a Rule 11(c)(1)(C) plea agreement, in which he agreed to a sentencing range of 324-360 months’ imprisonment. On appeal, he argued that his 324-month sentence constituted cruel and unusual punishment because the court considered the sentence unjust, but was bound by Rule 11(c) to impose the agreed-upon sentence. The Eighth Circuit ruled that this argument was waived. A defendant who is sentenced within the range agreed upon in his plea agreement is merely receiving what he bargained for in the agreement. The fact that defendant entered the plea agreement to avoid going to trial and facing a possible life sentence did not matter. Defendants frequently enter plea agreements to avoid the possibility of a longer sentence after trial. The record did not show that defendant was laboring under any infirmity or was coerced into entering the agreement. U.S. v. Kling, 516 F.3d 702 (8th Cir. 2008).
8th Circuit holds that 100-month sentence for drug trafficking offense was not grossly disproportionate. (140) Defendant was convicted of possession with intent to distribute marijuana, and was sentenced to 100 months’ imprisonment. The Eighth Circuit rejected defendant’s contention that the sentence was grossly disproportionate to his crime, in violation of the Eighth Amendment. The fact that his companion received a much lighter sentence was attributable to his companion’s decision to cooperate, and defendant’s classification as a career offender. Defendant also was not entitled to be resentenced under the Supreme Court’s recent decision in Leocal v. Ashcroft, 125 S.Ct. 377 (2004), which held that the crime of driving under the influence of alcohol could not be considered a “crime of violence” for purposes of 18 U.S.C. § 16. Act. Despite Leocal, defendant’s involuntary manslaughter conviction, which resulted from driving while intoxicated, was properly classified as a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). The guidelines define “crime of violence” more broadly than does 18 U.S.C. § 16. The commentary to § 4B1.2 specifically provides that “crime of violence” includes “manslaughter.” U.S. v. Chauncey, 420 F.3d 864 (8th Cir. 2005).
8th Circuit upholds maximum sentence for manufacturing conspiracy even though no drugs ever produced. (140) Defendant ordered a total of 440 pounds of iodine from two separate chemical companies. He was convicted of conspiracy to manufacture methamphetamine and possession of a listed chemical with cause to believe it would be used to manufacture methamphetamine. The district court sentenced him to 240 months’ imprisonment for the conspiracy conviction and 120 months’ on the possession conviction, to run concurrently. The Eighth Circuit rejected defendant’s claim that his sentence was grossly disproportionate to the crime and that it constituted cruel and unusual punishment. The sentencing guidelines did not apply to defendant on the conspiracy and iodine possession charges because there were no guidelines in existence for those at the time of his offense. As a result, the district court sentenced defendant to the statutory maximum on both counts, basing its sentence, in part, on the testimony of a chemist who reported that 440 pounds of iodine could have produced about 146 pounds of 80 percent pure meth. The fact that no drugs were ever manufactured from the iodine the police actually seized was irrelevant. The fact that police prevented the distribution of the iodine to meth manufacturers did not diminish defendant’s culpability. U.S. v. Crossland, 301 F.3d 907 (8th Cir. 2002).
8th Circuit holds that 15-year sentence for possessing ammunition was not cruel and unusual punishment. (140) Defendant pled guilty to possessing ammunition as a felon, in violation of the Armed Career Criminal Act (ACCA), 18 U.S.C. §§ 922(g) and 924(e). The Eighth Circuit held that his 15-year sentence under the ACCA was not cruel and unusual punishment. In U.S. v. Rudolph, 970 F.2d 467 (8th Cir. 1992), the court held that the mandatory minimum sentence of 15 years’ imprisonment under § 924(e) was not cruel and unusual punishment and did not violate the Eighth Amendment. U.S. v. Yirkovsky, 259 F.3d 704 (8th Cir. 2001).
8th Circuit upholds 132-month sentence for conspiring to distribute more than 100 grams of methamphetamine. (140) Defendant received a 132-month sentence for conspiring to distribute more than 100 grams of methamphetamine. The 8th Circuit upheld the sentence, rejecting the claim that the sentence was disproportionate to the crime, or that it violated due process. Even if the guidelines do punish methamphetamine traffickers more severely than other drug traffickers, the classification only needed a rational basis to survive a due process challenge. Defendant offered nothing to show that the punishment for methamphetamine traffickers lacked a rational basis. U.S. v. Frieberger, 28 F.3d 916 (8th Cir. 1994).
8th Circuit upholds 360-month sentence for career offender. (140) Defendant was convicted of aiding and abetting the distribution of methamphetamine, and as a career offender, was sentenced to 360 months’ imprisonment. The 8th Circuit rejected defendant’s claim that the 360-month sentence violated the 8th Amendment’s prohibition of excessive punishment. There was no support for defendant’s argument that the sentence was disproportionate to his offense or to the sentence received by his co-defendant. U.S. v. Ailport, 17 F.3d 235 (8th Cir. 1994).
8th Circuit upholds 36-month sentence for fraud against cruel and unusual punishment challenge. (140) Defendant received a 36-month sentence after being found in possession of over 52 unauthorized credit cards. He had previously been convicted for similar fraudulent activity, and derived a substantial portion of his income from this activity. The 8th Circuit held that the 36-month sentence was not “grossly disproportionate” to defendant’s crime, and thus did not violate the 8th Amendment’s prohibition against cruel and unusual punishment. U.S. v. Morse, 983 F.2d 851 (8th Cir. 1993).
8th Circuit reaffirms constitutionality of consideration of uncharged drug quantities at sentencing. (140) The 8th Circuit, relying on its recent en banc decisions in U.S. v. Galloway, 976 F.2d 414 (8th Cir. 1992) and U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992), rejected defendant’s claim that the inclusion of uncharged drug quantities in the computation of his sentence violated his constitutional rights to indictment, jury trial, and confrontation. Galloway held that a sentencing enhancement based on uncharged relevant conduct that is proven by a preponderance of the evidence does not violate the right to indictment, jury trial and proof beyond a reasonable doubt. Wise held that the right to confront witnesses does not attach at the sentencing phase. Relying on Galloway, the court also rejected defendant’s claim that the Commission exceeded its statutory authority in promulgating section 1B1.3(a)(2), the relevant conduct provision. Senior Judge Heaney concurred. U.S. v. Calva, 979 F.2d 119 (8th Cir. 1992).
8th Circuit affirms that 15-year sentence for felon’s possession of a firearm was not cruel and unusual. (140) The 8th Circuit affirmed that defendant’s 15-year sentence for being a felon in possession of a firearm did not constitute cruel and unusual punishment. A mandatory life sentence without parole imposed for a drug crime does not violate the 8th Amendment. Neither does a 15-year sentence imposed on a felon with 14 previous convictions for crimes of violence. Judge Bright concurred, but felt it was a “travesty” to sentence defendant to a mandatory term of 15 years imprisonment under 18 U.S.C. section 924(e)(1) for possession of an old shotgun which he may not have even intended to use. U.S. v. Rudolph, 970 F.2d 467 (8th Cir. 1992).
8th Circuit affirms that life sentence for defendant with two prior drug felonies was not cruel and unusual. (140) For violating 21 U.S.C. section 841(b)(1)(A), the district court sentenced defendant, as a career offender with two prior drug felony convictions, to a mandatory sentence of life in prison without parole. The 8th Circuit rejected defendant’s claim that section 841(b)(1)(A)’s mandatory life sentence constituted cruel and unusual punishment. In Harmelin v. Michigan, 111 S.Ct. 2680 (1991), the Supreme Court concluded that a sentence of life without parole for a serious drug crime was not cruel and unusual punishment. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).
8th Circuit affirms that five-year enhancement for prior state drug conviction was not cruel and unusual punishment. (140) Defendant received a five-year sentence enhancement under 21 U.S.C. section 841(b(1)(B), because he had a prior Illinois felony conviction for possession of methaqualone. He argued that since this was only a serious misdemeanor in many other states, the enhancement constituted cruel and unusual punishment and violated the equal protection clause. The 8th Circuit rejected the argument. Even if the Illinois statute was the most stringent in the 50 states, that severity did not render his sentence grossly disproportionate to his offense or to the punishment he would have received in other states. Section 841(b)(1)(B) does not require the sentencing court to compare how conduct has been classified in various jurisdictions. Nor did the enhancement violate equal protection. Imposing heavier penalties on persons with prior felony convictions is rationally related to the purpose of deterring repeat offenders. U.S. v. Curtis, 965 F.2d 610 (8th Cir. 1992).
8th Circuit rejects cruel and unusual punishment challenge where defendant received substantial downward departure. (140) Defendant received an 87-month sentence for her role in a conspiracy to cultivate and distribute marijuana. The 8th Circuit rejected defendant’s claim that the sentence constituted cruel and unusual punishment even though other participants who had a longer involvement in the conspiracy received the same sentence. Because defendant and the others received substantial downward departures, the cruel and unusual punishment argument lacked merit. Senior Judge Heaney concurred separately to stress that minimal and latecomer participants in a drug conspiracy may not necessarily be chargeable for drug quantities attributable to other conspirators. U.S. v. Knapp, 955 F.2d 566 (8th Cir. 1992).
8th Circuit upholds career offender sentence against cruel and unusual punishment challenge. (140) Defendant was convicted of aiding and abetting the manufacture of a controlled substance. He was found to be a career offender, and received a 262-month sentence. The 8th Circuit rejected defendant’s claim that the career offender provisions resulted in a sentence which was unconstitutionally disproportionate to the gravity of the crime. In Harmelin v. Michigan, 111 S.Ct. 2680 (1991), the Supreme Court upheld a life sentence for a first offense of cocaine possession. Since defendant was convicted of a series of drug offenses and received a lesser sentence, his 8th Amendment claim had no merit. Senior Judge Heaney, joined by Chief Judge Arnold, concurred separately, stating that the career offender provisions “create penalties so distorted as to hamper federal criminal adjudications.” U.S. v. Gordon, 953 F.2d 1106 (8th Cir. 1992).
8th Circuit upholds 15-month sentence for failing to appear at sentencing hearing against 8th Amendment challenge. (140) The 8th Circuit rejected defendant’s argument that his 15-month sentence for failing to appear at his sentencing hearing violated the 8th Amendment. The sentence was not grossly disproportionate to the crime. U.S. v. Manuel, 944 F.2d 414 (8th Cir. 1991).
8th Circuit upholds life sentence for drug offense against 8th Amendment challenge. (140) The 8th Circuit rejected defendant’s claim that his life sentence without the possibility of parole for his drug felony violated the 8th Amendment. The court found that proportionality review was not required in light of the Supreme Court’s recent decision in Harmelin v. Michigan, 111 S.Ct. 2680 (1991), and that the 8th Amendment only forbids sentences that are grossly disproportionate. Here, Congress reasonably determined that offenses involving the distribution of cocaine base were at the root of some of the gravest problems facing the country. Defendant’s sentence was not grossly disproportionate to his offense. U.S. v. Johnson, 944 F.2d 396 (8th Cir. 1991).
8th Circuit affirms life sentence for felon in possession of firearm. (140) Defendant contended that the guidelines violated his 8th Amendment right against cruel and unusual punishment by requiring him to be sentenced to life imprisonment for being a felon in possession of a firearm. The 8th Circuit rejected this argument. Although the sentence was severe, it was within the statutory maximum. The court also rejected without discussion defendant’s argument that the guidelines violate the presentment clause. U.S. v. Williams, 923 F.2d 76 (8th Cir. 1991).
8th Circuit upholds career offender provisions against 8th Amendment challenge. (140) Defendant complained that enhancement of his sentence under the career offender provisions of the guidelines constituted cruel and unusual punishment in violation of the 8th Amendment. The 8th Circuit rejected this argument, finding that as a matter of law, sentences under the guidelines “are sentences within statutorily prescribed ranges and therefore do not violate the 8th Amendment.” U.S. v. Foote, 920 F.2d 1395 (8th Cir. 1990).
8th Circuit upholds life without parole sentence for drug dealer against 8th Amendment challenge. (140) Defendant was convicted of various drug-related charges and sentenced to life imprisonment without parole. The 8th Circuit rejected defendant’s claim that his sentence was disproportionate to his offenses and therefore violated the 8th Amendment. First, although defendant’s sentence was harsh, his crime was very serious. A life sentence for repeatedly dealing drugs cannot be considered disproportionately cruel and unusual. Second, defendant’s sentence was not disproportionate when compared to other defendants similarly situated in the 8th Circuit and in other circuits. U.S. v. Meirovitz, 918 F.2d 1376 (8th Cir. 1990).
8th Circuit holds that 25-year sentence for 40-year old man was not cruel and unusual punishment. (140) Defendant argued that since he was forty years old, the twenty five year sentence he received amounted to a virtual life sentence without possibility of parole in violation of the 8th Amendment ban against cruel and unusual punishment. The 8th Circuit rejected the argument, holding that the sentence was proper because it was within the statutory maximum and within the appropriate guideline range. Defendant’s age was held to be irrelevant to the validity of his sentence under the 8th Amendment. U.S. v. Murphy, 899 F.2d 714 (8th Cir. 1990).
8th Circuit holds distinction between cocaine and cocaine base does not offend Eighth Amendment. (140) Defendant argued on appeal that the distinction between cocaine and cocaine base under guideline sections 2D1.1(a)(3) and 21 U.S.C. § 841(b) violated the Eighth Amendments ban of cruel and unusual punishment. The Eighth Circuit used the three step proportionality analysis of Solem v. Helm, 463 U.S. 277, 290 (1983) and found that: (1) because crack is a much greater threat than cocaine the sentences were not disproportionate to the crime; (2) in light of Congress’s findings about the dangers of crack use and distribution, the fact that certain drug offenses are treated the same as heinous crimes of violence was proper; and (3) the standardized penalties for crack are imposed on all similarly situated individuals in all federal jurisdictions and are comparable to sentences imposed by several states. Since defendant did not meet his heavy burden of showing disproportionality, the sections were found not to offend the Eighth Amendment. U.S. v. Buckner, 894 F.2d 975 (8th Cir. 1990).
9th Circuit says 10-year mandatory minimum for enticing minors to have sex is not cruel and unusual. (140) Under 18 U.S.C. § 2422(b), a person convicted of enticing a minor to engage in criminal activity that constitutes a misdemeanor is subject to a 10-year mandatory minimum sentence. The Ninth Circuit held that the 10-year mandatory sentence is not cruel and unusual punishment, in violation of the Eighth Amendment. U.S. v. Shill, 740 F.3d 1347 (9th Cir. 2014).
9th Circuit finds no Eighth Amendment violation in five-year mandatory sentence. (140) Defendants were ranchers who set fire to land owned by the United States that was adjacent to their land and that they leased for grazing. Defendants were convicted of maliciously damaging the real property of the United States by fire, in violation of 18 U.S.C. § 844(f)(1). That statute carries a minimum mandatory five-year sentence. The district court imposed a sentence below five years on each defendant because it believed that a five-year sentence would be cruel and unusual punishment, in violation of the Eighth Amendment. On the government’s appeal, the Ninth Circuit found that the mandatory five-year sentence would not violate the Eighth Amendment. U.S. v. Hammond, 742 F.3d 880 (9th Cir. 2014).
9th Circuit upholds life in prison without parole for juvenile. (140) Defendant was convicted in state court of murdering her mother when defendant was 17 years old. Relying on a state statute that gives courts discretion over how to sentence juveniles, the trial court sentenced defendant to life without possibility of parole. The Ninth Circuit held that because the trial court had discretion and could take into account mitigating factors, its sentence did not violate the Eighth Amendment bar on cruel and unusual punishments. Bell v. Uribe, 729 F.3d 1052 (9th Cir. 2013), superseded Bell v. Uribe __ F.3d __ (9th Cir. 2014).
9th Circuit gives retroactive effect to Supreme Court case rejecting life without parole for juveniles. (140) In 1991, defendant was convicted at age 16 of nine counts of forcible rape, seven counts of forcible sexual copulation, forcible sodomy, kidnapping, and genital penetration by a foreign object. He was sentenced to 254 years and was not eligible for parole for 127 years. The state court of appeal affirmed his sentence in 1993. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011 (2010), the Supreme Court held that the Eighth Amendment bars life without parole for juvenile non-homicide offenders. Defendant sought habeas relief under Graham, and the Ninth Circuit held that Graham applies retroactively to defendants whose convictions were final when Graham was decided. Applying Graham to defendant, the court held that defendant’s sentence was contrary to Graham and should be vacated. Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013).
9th Circuit holds that “three strikes” sentence does not violate Eighth Amendment. (140) Defendant was convicted of failing to register as a sex offender in California state court. Because defendant had prior felony convictions for rape, forced copulation, and robbery, his failure-to-register conviction triggered California’s “three-strikes” law, and defendant received a sentence of 26 years to life. A divided panel of the Ninth Circuit held that defendant’s sentence was not so grossly disproportionate that it violated the Eighth Amendment’s ban on cruel and unusual punishment. Crosby v. Schwartz, 678 F.3d 784 (9th Cir. 2012).
9th Circuit says multiple § 924(c) gun counts totaling 746-year sentence did not violate Eighth Amendment. (140) Defendant was convicted on 30 counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). As a result of those convictions, at sentencing, the district court imposed a sentence of 746 years. Defendant argued that application of § 924(c) to him violated the Eighth Amendment ban on cruel and unusual punishment. A divided panel of the Ninth Circuit noted that defendant’s sentence was “harsh” but held that it did not violate the Eighth Amendment. Judge Noonan dissented on the ground that affirming a sentence of 746 years was an “utterly empty gesture.” U.S. v. Major, 676 F.3d 803 (9th Cir. 2012).
9th Circuit rules life supervised release for sex offender is not cruel and unusual. (140) Defendant pleaded guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). When arrested, defendant admitted to having fantasies about the rape of young girls. He had a prior state conviction for sexual assault for an incident involving girls aged nine and 13. His supervised release term on this offense was revoked when he skipped counseling sessions and obtained employment that brought him into contact with children. At his § 2252A sentencing, the district court imposed a mandatory minimum 15-year sentence and a supervised release term of life. The court concluded that a life supervised release term was necessary to protect the community. The Ninth Circuit held that the lifetime supervised release term did not constitute cruel and unusual punishment, in violation of the Eighth Amendment and was not substantively unreasonable. U.S. v. Williams, 636 F.3d 1229 (9th Cir. 2011).
9th Circuit finds sentence for failing to update registration as sex offender was grossly disproportionate to offense. (140) Defendant was convicted of failing to update his registration as a sex offender within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(A). Evidence at trial showed that defendant had updated his sex offender registration nine months before his birthday and three months after his birthday. Because defendant had three prior convictions for serious or violent felonies, he was subject to California’s Three Strikes law. Based on that law, he was sentenced to an indeterminate term of 28 years to life. The Ninth Circuit held that the sentence defendant received for this “regulatory offense” was “grossly disproportionate to the offense.” Accordingly, the court held, the sentence violated the Eighth Amendment’s ban on cruel and unusual punishments. Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008).
9th Circuit holds that 18-year term does not violate ban on life sentences for extradited Mexicans. (140) Defendant was extradited from Mexico on drug-trafficking charges. The U.S. government has given the Mexican government assurances that the U.S. will not seek the death penalty or a life sentence for any Mexican national extradited to the U.S. Defendant, who was 53 years’ old, argued that the 18-year sentence he received was tantamount to a life sentence, in violation of the extradition agreement and the Eighth Amendment prohibition on cruel and unusual punishment. The Ninth Circuit held that the U.S. government’s assurances to Mexico did not prevent the imposition of a sentence for a precise number of years and that his sentence was not cruel and unusual. U.S. v. Corona-Verbera, 509 F.3d 1105 (9th Cir. 2007).
9th Circuit says 15-year sentence for distributing violent child porn is not cruel and unusual. (140) Defendant operated a file server that he used to advertise and distribute child pornography. A search of defendant’s computers uncovered 10,000 to 12,000 pornographic images, including images of children engaged in sado-masochistic activity. Defendant pleaded guilty to four counts of advertising child porn, in violation of 18 U.S.C. § 2251(d) and four counts of distributing child porn, in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced defendant to 15 years’ imprisonment. The Ninth Circuit held that the 15-year sentence was not grossly disproportionate to the gravity of defendant’s offense and therefore did not constitute cruel and unusual punishment, in violation of the Eighth Amendment. U.S. v. Meiners, 485 F.3d 1211 (9th Cir. 2007).
9th Circuit finds 25-to-life sentence under three strikes law is not cruel and unusual. (140) Defendant was convicted of shoplifting tools from a Home Depot. Because he had at least two prior predicate convictions, he was sentenced to 25 years to life under California’s “three-strikes” law. On appeal to the state courts, he argued that his sentence was grossly disproportionate to the offense, in violation of the Eighth Amendment’s ban on cruel and unusual punishment. The California courts rejected that claim, but in doing so did not compare defendant’s sentence to the sentences that result from other crimes in California or the sentences that result from the same crime in other jurisdictions. In federal habeas proceedings, the Ninth Circuit held that the only principle clearly established in prior Supreme Court decisions was that a sentence may not be “grossly disproportionate to the defendant’s circumstances” and that the California courts had not erred in rejecting defendant’s claim that his sentence violated the Eighth Amendment. Nunes v. Ramirez-Palmer, 485 F.3d 432 (9th Cir. 2007).
9th Circuit says ineligibility for safety valve did not result in Eighth Amendment violation. (140) Defendant received a mandatory minimum 60-month sentence for his drug-trafficking offense. He was not eligible for a sentence below the mandatory minimum under the safety valve, 18 U.S.C. § 3553(f), because he had a prior conviction for a minor offense and he had committed the instant offense while on probation for that offense. He argued that denial of relief from the mandatory minimum under the safety valve constituted cruel and unusual punishment, in violation of the Eighth Amendment. The Ninth Circuit rejected that argument and held that § 3553(f) does not violate the Eighth Amendment by limiting its benefit to defendants who have no more than one criminal history point. U.S. v. Gomez, 472 F.3d 671 (9th Cir. 2006).
9th Circuit says 25-year mandatory minimum in § 924(c) is not cruel and unusual punishment. (140) Defendant was convicted of seven counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). That statute requires a five-year mandatory minimum for the first violation and a 25-year mandatory minimum for each “second or subsequent” conviction. Defendant received a total of 155 years’ imprisonment for her § 924(c) convictions. The Ninth Circuit held that § 924(c) did not violate the Fifth Amendment by taking discretion, and that defendant’s sentence did not constitute cruel and unusual punishment. U.S. v. Hungerford, 465 F.3d 1113 (9th Cir. 2006).
9th Circuit holds that 25-year sentence for possession of 36 milligrams of crack is not cruel and unusual. (140) Defendant was convicted in California state court of possession 36 milligrams of crack cocaine. Because that conviction amounted to defendant’s third “strike” under California’s “Three Strikes” law, he was sentenced to a term of 25 years to life. The Ninth Circuit held that the sentence was not so disproportionate to the crime to constitute cruel and unusual punishment. Taylor v. Lewis, 460 F.3d 1093 (9th Cir. 2006).
9th Circuit remands to determine whether Three Strikes sentence is cruel and unusual. (140) Defendant was convicted of perjury based on his false statements on a driver’s license application. He had a prior juvenile conviction for residential burglary and a prior adult conviction for armed robbery. After his conviction for perjury, defendant was sentenced to a “Three Strikes” sentence of 26 years to life. Relying on Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004), the Ninth Circuit held that Eighth Amendment challenges to Three Strikes convictions remain viable in “exceedingly rare” cases. The court found that defendant’s case met some of the requirements to qualify as an “exceedingly rare” case because the offense of conviction did not threaten grave harm to society and because defendant’s burglary conviction was a juvenile offense. The court remanded to the district court to develop an additional record on the “gravity” of defendant’s armed robbery conviction. Judge Tallman dissented. Reyes v. Brown, 399 F.3d 964 (9th Cir. 2005).
9th Circuit rejects Eighth Amendment challenge to Three Strikes sentence for petty theft. (140) Defendant had two prior convictions for robbery under California law when he was caught stealing two watches worth $79. Because of his prior convictions, defendant was charged with felony petty theft with a prior and with second-degree commercial burglary. A jury found defendant guilty of both counts and determined that he had the two prior robbery convictions. Under California’s Three-Strikes law, the state court sentenced defendant to 25 years to life. The Ninth Circuit held that under Lockyer v. Andrade, 538 U.S. 63 (2003), defendant’s sentence did not violate the Eighth Amendment’s prohibition on cruel and unusual punishments. Rios v. Garcia, 390 F.3d 1082 (9th Cir. 2004).
9th Circuit finds that life sentence for RICO conviction is not cruel and unusual or in violation of equal protection. (140) Defendant was convicted of RICO and RICO conspiracy based on his participation in drug trafficking and violence on behalf of the Mexican Mafia, a violent street and prison gang. The predicate acts for defendant’s RICO conviction included conspiracy to commit murder. The Ninth Circuit found that defendant’s life sentence was not so grossly disproportionate as to violate the Eighth Amendment’s ban on cruel and unusual punishments. The court also held that no equal protection violation arose from the fact that under RICO similar criminal conduct may receive a different sentence based on the state where it occurs. U.S. v. Fernandez, 388 F.3d 1199 (9th Cir. 2004), amended, U.S. v. Fernandez, 425 F.3d 1248 (9th Cir. 2005).
9th Circuit upholds supervised release condition requiring defendant to wear sign stating his crime. (140) Defendant was convicted of theft of mail. At sentencing, the district court ordered defendant, as a condition of supervised release, to stand outside a post office for a day wearing a signboard stating, “I stole mail. This is my punishment.” A divided panel of the Ninth Circuit held that requiring defendant to wear the sign was reasonably related to the permissible goal of rehabilitation and did not violate 18 U.S.C. § 3583(d). The court also held that the supervised release condition did not violate the Eighth Amendment ban on cruel and unusual punishments. U.S. v. Gementera, 379 F.3d 596 (9th Cir. 2004).
9th Circuit says 30 years is not cruel and unusual sentence for methamphetamine trafficking. (140) Defendant was convicted of manufacturing methamphetamine. Based on the quantity of methamphetamine involved in his offense, he had an offense level of 38. The district court added enhancements for possession of firearms in connection with the offense and obstruction of justice. Defendant fell into criminal history category I, and his resulting sentencing range was 360 months to life. The district court sentenced him to 360 months. The Ninth Circuit held that in light of defendant’s “serious drug offenses,” his sentence was not grossly disproportionate to his crime and did not violate the Eighth Amendment’s cruel and unusual punishments clause. U.S. v. Barajas-Avalos, 377 F.3d 1040 (9th Cir. 2004).
9th Circuit strikes down Three Strikes sentence as “rare” violation of Eighth Amendment. (140) California’s Three Strikes law requires imposition of a minimum 25-year sentence for a defendant convicted of a qualifying felony who has two prior felony convictions. In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court held that this statute did not result in cruel and unusual punishment for a defendant sentenced to 50 years in prison with no possibility of parole based on his theft of $153 worth of videotapes. The Court found that the sentence was not disproportionate to defendant’s criminal activity because he had a long criminal history. Here, defendant had two prior felony robbery convictions based on his unarmed theft of merchandise from retail stores. Five years after sustaining these convictions, defendant shoplifted a $199 VCR from a store and was convicted of “petty theft with a prior theft-related conviction,” a felony. Because defendant had two prior felony convictions, he was sentenced to a minimum 25-year sentence. The Ninth Circuit found that defendant’s case was one of the “exceedingly rare” exceptions to the Supreme Court’s decision in Andrade and held that his sentence was grossly disproportionate to his offense, in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. Judge Kleinfeld dissented. Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004).
9th Circuit says additions to tax for fraud do not violate double jeopardy or Eighth Amendment. (140) After defendant was convicted and sentenced for tax fraud, the IRS imposed additions to tax for fraud pursuant to 26 U.S.C. § 6653(b). The Ninth Circuit rejected defendant’s arguments that this constituted double jeopardy, ruling that under Hudson v. U.S., 522 U.S. 93 (1997), additions to tax for fraud are a civil remedy, not a criminal punishment. The court also rejected defendant’s argument that the additional tax violated the excessive fines clause of the Eighth Amendment. Although § 6653(b)(3) provides an “innocent spouse exception” similar to the “innocent owner defense” in the forfeiture statute that was considered punitive in Austin v. U.S., 509 U.S. 602, 619 (1993), “the statutory language provides no other indication of punitive intent.” Therefore, additions to tax for fraud are properly characterized as remedial, and not subject to review under the excessive fines clause. Louis v. Commission of Internal Revenue, 170 F.3d 1232 (9th Cir. 1999).
9th Circuit says 14-year sentence for minor role in meth conspiracy was not cruel and unusual. (140) Outside of the death penalty context, the Eighth Amendment is offended only by sentences that are “grossly disproportionate” to the crime. See Harmelin v. Michigan, 501 U.S. 957, 959 (1991). The Ninth Circuit noted that longer sentences based on similar drug convictions have been held not to violate the Eighth Amendment. Defendant’s fourteen-year sentence was within the guideline range and was not disproportionate to the offense. U.S. v. Aguilar-Muniz, 156 F.3d 974 (9th Cir. 1998).
9th Circuit reluctantly upholds 95-years for multiple armed robberies as not cruel or unusual. (140) Two defendants were convicted of a string of armed robberies while they were on football scholarships at Fresno State University. They were each sentenced to the statutory minimum 60 months on the first count of using a firearm under 18 U.S.C. § 924(c)(1) and 240 months for each of the other firearm counts to be served consecutively as required by the statute. Thus, one defendant was sentenced to 95 years without possibility of parole and the other to 49 years. On appeal, the Ninth Circuit reluctantly affirmed these sentences against a claim that they were cruel and unusual under the Eighth Amendment. Nevertheless, the panel urged Congress to reconsider its scheme of mandatory consecutive minimum sentences, and suggested that the President consider clemency after an appropriate time. U.S. v. Harris, 154 F.3d 1082 (9th Cir. 1998).
9th Circuit says pre-guidelines fine did not require ability to pay, and was not double punishment. (140) Petitioner argued that his $750,000 fine was cruel and unusual punishment because the court failed to inquire into his ability to pay. The Ninth Circuit rejected this argument because defendant was sentenced in September, 1986, before the effective date of the sentencing guidelines which require the court to consider the defendant’s ability to pay. The fine was within statutory limits and was presumptively valid. That it was in addition to imprisonment did not result in multiple punishment or double jeopardy. The fine and prison sentence were defined by Congress as a single punishment. U.S. v. Mejia-Mesa, 153 F.3d 925 (9th Cir. 1998).
9th Circuit says labeling prisoner as a “sex offender” is not cruel and unusual punishment. (140) The prisoner argued that being labeled a sex offender and being forced to participate in Hawaii’s Sex Offender Treatment Program violated the Eighth Amendment’s prohibition against cruel and unusual punishment. However, the Supreme Court says the Eighth Amendment is violated only when the state’s conduct “violates contemporary standards of decency.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Here, the state’s program “was designed to identify and treat sex offenders so as to reduce the rate of recidivism among inmates released from the system.” The Ninth Circuit held that the state’s pursuit of these goals, whether viewed as a whole or specifically as applied to the prisoner, did not violate contemporary standards of decency. Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997).
9th Circuit finds 15-year sentence for Armed Career Criminal was not disproportionate. (140) Defendant argued that his 15-year sentence for being an Armed Career Criminal under 18 U.S.C. § 924(e) was unconstitutionally disproportionate to the crime he committed because he was simply in possession of a firearm but had never used a firearm in the commission of any crime. The Ninth Circuit found defendant’s crime and sentence were similar to others that have withstood proportionality challenges, and therefore found no constitutional disproportionality. U.S. v. Bonat, 106 F.3d 1472 (9th Cir. 1997).
9th Circuit okays sentencing 15-year-old murderer to life without parole. (140) The Ninth Circuit found no violation of the Eighth Amendment in sentencing a 15-year-old to life without parole on for aggravated first degree murder in the State of Washington. Evolving standards of decency did not preclude his punishment, because at least 21 states impose the same sentence on 15-year-old offenders. Nor could petitioner show that the punishment was disproportionate, or that the statute (Wash. Rev. Code § 10.95.030) was unconstitutionally vague in failing to specify a minimum age for the punishment. Judge Pregerson dissented, arguing that this extreme penalty for a 15-year-old should not be sanctioned absent the Washington legislature’s affirmative statement that the punishment was appropriate for someone his age. Harris v. Wright, 93 F.3d 581 (9th Cir. 1996).
9th Circuit upholds life sentence for possession of 1,000 pounds of cocaine. (140) The Ninth Circuit held that the fact that the sentencing guidelines’ base offense level of 42 for drug offenses existed only during a relatively small window of time did not violate due process, since the district courts must apply the sentencing guidelines in effect on the date of sentencing. 18 U.S.C. § 3553(a)(4). As for defendant’s 8th Amendment claim, defendant cited no case law in support of the proposition that a life sentence for possession of thousands of pounds of cocaine is constitutionally defective. Instead, he conceded the existence of both Ninth Circuit and Supreme Court cases holding just the opposite. See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (life sentence for possession of l.5 pounds of cocaine); U.S. v. VanWinroe, 951 F.2d 1069 (9th Cir. 1991) (life sentence for possession of 150 grams of cocaine with intent to distribute). U.S. v. Duque, 62 F.3d 1146 (9th Cir. 1995).
9th Circuit says 16-level increase for criminal aliens is not cruel and unusual. (140) Defendant argued that the 16-level increase in offense level for re-entering the U.S. after deportation following conviction of an aggravated felony under 8 U.S.C. § 1326 constituted cruel and unusual punishment. The Ninth Circuit found dispositive its prior opinion in U.S. v. Cupa-Guillan, 34 F.3d 860, 864 (9th Cir. 1994), cert. denied, 115 S.Ct. 921 (1995). That case upheld a 100-month sentence for a 1326(b) defendant with two prior aggravated drug felonies. U.S. v. Estrada-Plata, 56 F.3d 578 (9th Cir. 1995).
9th Circuit upholds 30-year career offender sentence for 67 grams of cocaine base. (140) Defendant was convicted of possession with intent to distribute 67 grams of cocaine base. Because he had two prior felony drug offenses, he was subject to a 30-year sentence under the career offender guideline, §4B1.1. The Ninth Circuit rejected the argument that his 30 year sentence violated the Eighth Amendment and the due process clause. The court noted that in Harmelin v. Michigan, 501 U.S. 957, 961 (1991), the Supreme Court upheld a sentence of life without parole for a first offense of possession of 672 grams of cocaine, against an Eighth Amendment challenge. See also Hutto v. Davis, 454 U.S. 370, 375 (1982) (upholding a 40-year sentence for possession of less than 9 ounces of marijuana); Rummel v. Estelle, 445 U.S. 263, 265 (1980) (upholding a life sentence under a “recidivist statute” where the three felonies were (1) passing a forged check for $28.36 (2) fraudulently using a credit card to obtain $80 worth of goods and services, and (3) obtaining $120.75 by false pretenses). Although harsh, the sentence in this case was less severe than the sentences upheld in those cases. U.S. v. Carr, 56 F.3d 38 (9th Cir. 1995).
9th Circuit finds 40 years for ten counts of child molestation not cruel and unusual. (140) The 9th Circuit held that a state prison sentence of 40 years before parole eligibility is not cruel and unusual. The court compared the gravity of the offenses with the harshness of the sentence and found no gross disproportionality. Cacoperdo v. Demosthenes, 37 F.3d 504 (9th Cir. 1994).
9th Circuit says 100-month sentence for illegally re-entering U.S. after aggravated felony was not cruel and unusual. (140) A 100-month sentence for being a deported alien found in the United States after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2), was well within the statutory limit of 15 years. It was not so grossly disproportionate to the crime as to “shock [the court’s] sense of justice,” and therefore it was not cruel and unusual. U.S. v. Cupa-Guillen, 34 F.3d 860 (9th Cir. 1994).
9th Circuit rejects 8th Amendment challenge made to Oregon’s Dangerous Special Offender Statute. (140) Petitioner was convicted of various offenses in Oregon state court arising out of a rape and assault on a woman. On federal habeas, petitioner argued that the Dangerous Special Offender Statute as applied to him constituted cruel and unusual punishment. The Ninth Circuit agreed with the district court that petitioner made no “cogent legal argument” nor “articulated any cognizable constitutional challenge” to the statute. Such enhanced sentencing laws were deemed constitutional by the Supreme Court in Spencer v. Texas, 385 U.S. 554, 560 (1967). Hendricks v. Zenon, 993 F.2d 664 (9th Cir. 1993).
9th Circuit says mandatory sentence for possessing weapon in drug crime is not cruel and unusual. (140) The district court ruled that a thirty-year consecutive prison term for possessing a machine gun during a drug crime was cruel and unusual punishment. The government appealed, and the 9th Circuit reversed. The court held that drugs and guns are a major societal ill, and mandatory consecutive sentences are consistent with the eighth amendment. However, the court rejected the government’s argument that separate mandatory consecutive sentences were required for each weapon. The court ruled that each section 924(c) charge must be based on a separate predicate offense. Here, while there were two weapons, there was only one drug crime. Defendant’s sentence was vacated and the case was remanded for resentencing. U.S. v. Martinez, 967 F.2d 1343 (9th Cir. 1992).
9th Circuit holds that life without parole for felon in possession of a firearm is not cruel and unusual. (140) Defendant was sentenced to life imprisonment without possibility of parole pursuant to 18 U.S.C. section 924(e), the “Armed Career Criminal” statute, after he was convicted of being a felon in possession of a firearm. The 9th Circuit held that in judging the appropriateness of his sentence under a recidivist statute “we may take into account the government’s interest not only in punishing the offense of conviction, but also its interest ‘in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’“ Given the defendant’s criminal history, the court found “no need to compare his sentence with others across the nation” and held that the sentence was not cruel or unusual. U.S. v. Bland, 961 F.2d 123 (9th Cir. 1992).
9th Circuit rejects constitutional challenges to minimum life sentence for first degree murder. (140) Defendants argued that their mandatory minimum life sentence for first degree murder under 18 U.S.C. section 1111(b) constituted cruel and unusual punishment, and violated equal protection and due process. The 9th Circuit rejected each of these arguments, relying on Harmelin v. Michigan, 111 S.Ct. 2680 (1991). The court found no right to an individual assessment of the appropriateness of a life sentence, and no violation of the 8th Amendment’s protection against cruel and unusual punishments. With regard to equal protection, the court noted that even though defendants convicted of murder under 21 U.S.C. section 848(e) may receive a sentence of between 20 years and death, the differences between that statute and section 1111(b) provide a rational basis for proscribing different punishments and for allowing sentencing discretion under 848(e). U.S. v. LaFleur, 971 F.2d 200 (9th Cir. 1991).
9th Circuit upholds life sentence without parole for crack dealer with three priors. (140) Defendant was convicted of possessing with intent to distribute 151.9 grams of 94% pure cocaine base. He had three prior California felony convictions for cocaine possession, and received the mandatory sentence of life imprisonment without possibility of parole under 21 U.S.C. section 841(b)(1)(A). The 9th Circuit rejected his argument that the sentence violated the 8th Amendment’s ban on cruel and unusual punishment, citing Harmelin v. Michigan, 111 S.Ct. 2680 (1991). The court rejected the argument that the 8th Amendment requires the judge to be able to consider mitigating circumstances, noting that Harmelin held that the 8th Amendment does not require individualized sentencing for sentences other than death. U.S. v. Van Winrow, 951 F.2d 1069 (9th Cir. 1991).
9th Circuit upholds life sentence without parole against Eighth Amendment challenge. (140) Defendant argued that his life sentence without parole for violating 21 U.S.C. § 848(b) violated the Eighth Amendment, in that Congress did not intend “small” kingpins like himself to get life without parole. The 9th Circuit rejected the argument, noting that the new mandatory life sentence for large drug dealers does not imply that Congress intended that only “king-kingpins” should be sentenced to life. The court noted that § 848(a) “still allows for life sentences without parole.” U.S. v. Lai, 944 F.2d 1434 (9th Cir. 1991).
9th Circuit holds that two consecutive life sentences for kidnapping did not constitute cruel and unusual punishment. (140) Defendant was sentenced to life in prison for first degree kidnapping with a consecutive life sentence for his use of a weapon to commit the kidnapping. Under the applicable Nevada statute, it appeared that defendant would be eligible for parole on the kidnapping conviction and weapon enhancement in ten years. The 9th Circuit reviewed the sentence in light of the factors set out in Solem v. Helm, 463 U.S. 277, 290 (1983) and concluded that the sentence was not cruel and unusual punishment under the 8th Amendment. Eckert v. Tansy, 936 F.2d 444 (9th Cir. 1991).
9th Circuit finds no Eighth Amendment violation despite lesser sentence under state law. (140) The 9th Circuit rejected defendant’s argument that his sentence violated the Eighth Amendment because it was not proportional to the crime or to the sentence he would have received under Oregon law. “The Eighth Amendment does not require harmonization among sentences imposed by different courts.” U.S. v. Lillard, 929 F.2d 500 (9th Cir. 1991).
9th Circuit rules that career offender guideline does not punish “status” nor is cruel or unusual punishment. (140) Defendant argued that his sentence violated the 8th Amendment’s prohibition against cruel and unusual punishment because it punished him for his “status” of being a career offender and because the punishment was disproportionate to the crime. He relied on Robinson v. California, 370 U.S. 660 (1962) which invalidated a statute that criminalized the “status” of being a drug addict. The 9th Circuit rejected the argument, stating that defendant was not being punished for his status of being a career criminal, “he is being punished for selling cocaine base.” Section 4B1.1 “is an ordinary enhancement provision, which does not increase the statutory maximum for the crime,” but merely “requires the judge to sentence him nearer to this maximum penalty.” The court also found that defendant’s 262-month sentence for selling cocaine near a school yard and being a career offender, was not cruel and unusual. U.S. v. McDougherty, 920 F.2d 569 (9th Cir. 1990).
9th Circuit holds that 10-year enhancement for prior felony drug conviction did not violate 8th Amendment. (140) Defendant argued that his 10 year sentence enhancement for his prior felony drug conviction under 21 U.S.C. 841(b)(1)(A) was disproportionate to his crime and therefore violated the 8th Amendment. Reiterating its earlier ruling in U.S. v. Kinsey, 843 F.2d 383, 392-93 (9th Cir. 1988), the 9th Circuit rejected his argument. U.S. v. Brownlie, 915 F.2d 527 (9th Cir. 1990).
9th Circuit upholds life sentence with minimum 25 years before parole as not cruel or unusual. (140) Defendant was convicted of manslaughter and driving under the influence of alcohol. Because he was on probation for conspiracy to commit burglary, he was sentenced under Arizona law to life imprisonment with no opportunity for release for a minimum of 25 years. Following the proportionality analysis of Solem v. Helm, 463 U.S. 277 (1983), Judges Goodwin, Alarcon and Nelson held that this sentence did not violate the Eighth Amendment’s proscription against cruel and unusual punishment. The court noted that “it is exceedingly rare that a non-capital sentence is violative of the Eighth Amendment.” Cocio v. Bramlett, 872 F.2d 889 (9th Cir. 1989).
9th Circuit holds that life imprisonment with possibility of parole for habitual criminal is not cruel and unusual punishment. (140) Petitioner was convicted in Washington state court of being an habitual criminal. He received a life sentence, which meant that he would be eligible for parole after serving 15 years, though Washington’s Indeterminate Sentence Review Board could grant parole after six years. The 9th Circuit found no violation of the Eighth Amendment prohibition against cruel and unusual punishment. The court noted that although the Washington legislature had reduced the penalties for habitual criminals by making the statute inapplicable to felonies committed after July 1, 1984, that change was not made retroactive. Alford v. Rolfs, 867 F.2d 1216 (9th Cir. 1989).
9th Circuit holds that 365-year prison term for espionage was not cruel and unusual. (140) The 9th Circuit noted that “[e]spionage is one of this nation’s most serious offenses.” Testimony at trial indicated that the damage done by the defendant “could significantly, if not irrevocably, tilt the very strategic balance in which our survival as a nation depends.” Defendant’s 365-year sentence with no parole for 60 years, “is not disproportionate to [defendant]’s crimes.” U.S. v. Whitworth, 856 F.2d 1268 (9th Cir. 1988).
9th Circuit holds that forfeiture of money obtained by fraud and restitution to victims in the same amount, plus 10 year jail sentence, did not violate Eighth Amendment. (140) The indictment alleged that defendant defrauded insurance companies out of $2.4 million. The jury returned a special verdict of forfeiture of almost $2 million. The judge ordered almost $2 million forfeited to the government, and also ordered defendant to make restitution to the victim in the same amount. Defendant argued that this was an “excessive fine” in violation of the Eighth Amendment, and in combination with his 10 year sentence, constituted cruel and unusual punishment. The 9th Circuit found no Eighth Amendment violation. U.S v. Feldman, 853 F.2d 648 (9th Cir. 1988).
9th Circuit finds no abuse of discretion in sentencing a defendant with multiple sclerosis to prison. (140) Defendant argued that the district court should have granted him a hearing to determine whether incarcerating him despite his multiple sclerosis “would constitute cruel and unusual punishment.” But the Bureau of Prisons had informed the probation officer that their hospitals could handle “someone with an advanced or severe case of multiple sclerosis.” Also the district court sentenced defendant under 18 U.S.C. § 4205(b)(2) to permit the parole board to release him immediately if it was determined that the Bureau of Prisons could not provide adequate care. Accordingly there was no abuse of discretion. U.S. v. Monaco, 852 F.2d 1143 (9th Cir. 1988).
9th Circuit holds that forfeiture provision is mandatory but district court must still consider whether it violates the Eighth Amendment. (140) The forfeiture provision of 21 U.S.C. 853 is mandatory, leaving the district court no discretion to avoid excessively harsh or fortuitous applications. The district court, however, has the constitutional responsibility to assure that the forfeiture proceeding does not inflict excessive punishment in violation of the Eighth Amendment. In making this determination the court may take into account relevant considerations including the value of the illegal drugs cultivated on the property, and the nexus between the portion of the property actually used to grow the marijuana plants and the rest of the land. U.S. v. Littlefield, 821 F.2d 1365 (9th Cir. 1987).
9th Circuit upholds life sentence without parole for violating 21 U.S.C. 848. (140) The trial court sentenced defendant to life imprisonment without possibility of parole, for violating the Continuing Criminal Enterprise Statute, even though he was 47 years old, the father of six and had no prior record. The 9th Circuit upheld the sentence, noting that the trial court properly considered that defendant had continued his operation while free on bail, expanding its scope considerably, and had directed the operation from his jail cell. Since the trial court properly “individualized” the sentence, it must stand. U.S. v. Stewart, 820 F.2d 1107 (9th Cir. 1987).
9th Circuit upholds 12-year sentence for ordering a contract murder to silence government witnesses. (140) In Solem v. Helm, 463 U.S. 277 (1983);, the Supreme Court reaffirmed the proportionality principle behind the Eighth Amendment. The court held that no penalty was per se unconstitutional, but must be evaluated under objective factors, including the harm to society, the nature of the crime, and relationship to sentences for similar crimes. The 9th Circuit (per curiam) held that Solem did not eliminate the trial court’s broad discretion. Here the trial court weighed the Solem criteria in light of defendant’s actions. The 9th Circuit found no abuse of discretion in imposing a twelve year sentence where defendant ordered a contract murder, and after he thought it had been committed, he bargained for three more. U.S. v. Cutler, 806 F.2d 933 (9th Cir. 1986).
9th Circuit finds punishment not disproportionate to crime in light of amount of money involved. (140) The Eighth Amendment prohibits cruel and unusual punishment. The record showed that defendant was ordered to pay $9,761.00 in restitution. One year imprisonment was not disproportionate in view of the long-term nature of defendant’s acts and the large sum of money involved. U.S. v. Terrovona, 785 F.2d 767 (9th Cir. 1986).
10th Circuit holds that use of juvenile adjudication as predicate ACCA offense did not violate Eighth Amendment. (140) Defendant was convicted of being a felon in possession of a firearm, and was sentenced to 198 months under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He argued that the use of his juvenile aggravated assault adjudications as predicate offenses for ACCA purposes violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Tenth Circuit disagreed, concluding that defendant did not establish that a national consensus existed against the use of juvenile adjudications to enhance a later adult sentence. Further, because the full punishment of a sentence imposed pursuant to a recidivist statute is related to the crime of conviction rather than to any prior offenses, defendant’s reliance on precedent establishing that juveniles are less culpable than adults was misplaced. U.S. v. Orona, 724 F.3d 1297 (10th Cir. 2013).
10th Circuit upholds mandatory life sentence for carjacking under federal three-strikes law. (140) Defendant was convicted of carjacking, in violation of 18 U.S.C. § 2119. Because the district court found that defendant had two prior “serious violent felony” convictions, the court sentenced him to life imprisonment under the federal three strikes law, 18 U.S.C. § 3559(c). The Tenth Circuit affirmed the mandatory life sentence, rejecting defendant’s arguments that the law violated separation of powers principles, due process clause, or the cruel and unusual punishment ban in the U.S. Constitution. U.S. v. Gurule, 461 F.3d 1238 (10th Cir. 2006).
District courts reach diverse conclusions on meaning of Booker. (140) A jury convicted defendant of using a computer to attempt to persuade a minor to engage in illegal sexual acts, in violation of 18 U.S.C. § 2422(b). Defendant claimed that under the PROTECT Act his mandatory minimum punishment of five years was grossly disproportionate to his crime and therefore cruel and unusual punishment under the Eighth Amendment. The Tenth Circuit disagreed. Attempted sexual abuse of a child is a serious offense and a mandatory minimum sentence of five years is not inconsistent with other state and federal guidelines for child sex crimes. U.S. v. Munro, 394 F.3d 865 (10th Cir. 2005).
10th Circuit holds that armed robber’s life sentence under “three strikes law” did not violate 8th Amendment. (140) Defendant was convicted of various Hobbs Act violations, bank robbery, and firearms charges stemming from a several-month crime spree. He received a mandatory life sentence under the “three strikes” provision of 18 U.S.C. § 3559(c)(1), plus a consecutive 45 years for the firearms convictions. He argued that such a sentence was disproportionate to the gravity of his crimes and therefore violated the Eighth Amendment. The Tenth Circuit disagreed. Under Harmelin v. Michigan, 501 U.S. 957 (1991), a court looks only to the relation of the sentence to defendant’s crimes for a “gross disproportionality.” Defendant’s life sentence for the commission of five robberies and assorted firearms violations after previous multiple convictions for armed robberies was not grossly disproportionate. Moreover, the sentence of life imprisonment was mandated by Congress in 18 U.S.C. § 3559(c). U.S. v. Jones, 213 F.3d 1253 (10th Cir. 2000).
10th Circuit holds life sentence for first drug offense not cruel and unusual punishment. (140) Defendant argued that his life sentence for drug charges, his first felony offense, constituted cruel and unusual punishment and violated his right to equal protection. The Tenth Circuit, relying on the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957 (1991), disagreed and affirmed his sentence. U.S. v. McKneely, 69 F.3d 1067 (10th Cir. 1995).
10th Circuit upholds constitutionality of life sentence for drug offenses. (140) Defendant conspired to distribute more than 50 grams of cocaine base and possessed, with intent to distribute, more than 500 grams of powder cocaine. The Tenth Circuit held that a life sentence for these crimes was not cruel and unusual punishment. The district court properly considered defendant’s “extended and serious” criminal history in imposing the life sentence. District courts have broad discretion in sentencing a defendant within the range prescribed by Congress. U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).
10th Circuit says 240-month sentence was not cruel and unusual punishment. (140) Defendant argued that his 240-month sentence for possessing cocaine with intent to distribute was cruel and unusual punishment in violation of the 8th Amendment. The 10th Circuit affirmed the sentence. When a sentence is within the sentencing guidelines, it is generally not considered cruel and unusual. The 240-month sentence was clearly within the applicable guideline range of 210 to 262 months. U.S. v. Nicholson, 17 F.3d 1294 (10th Cir. 1994).
10th Circuit holds that sentencing disparity does not violate 8th Amendment. (140) Defendant complained that his sentence was so disproportionate to the sentence received by his co-conspirator as to constitute cruel and unusual punishment. The co-conspirator testified that he had transported about 1040 ounces of crack annually between 1988 and 1990, while defendant was convicted of transporting only 16-1/2 ounces of crack on one occasion. The 10th Circuit found that the sentencing disparity did not violate the 8th Amendment. Defendant’s sentence fell within the guideline range. Any disparity could be explained by the fact that the co-conspirator cooperated with the government in the prosecution of others, while defendant refused. U.S. v. Rackstraw, 7 F.3d 1476 (10th Cir. 1993).
10th Circuit rules defendant’s sentence was not disproportionate. (140) Defendant asserted that since he received the second most severe sentence of the four co-conspirators, it was clearly too severe for his level of involvement. The 10th Circuit affirmed the sentence since it was within statutory limits, within the applicable guideline range, and was not disproportionate to the crime. When two or more defendants are convicted of the same crime a sentencing difference may be expected since the guidelines dictate a sentence based upon each defendant’s conduct and criminal history. Such sentencing differences do not make a sentence disproportionate. U.S. v. Youngpeter, 986 F.2d 349 (10th Cir. 1993).
10th Circuit says defendant’s disproportionate sentence did not violate 8th Amendment. (140) The 10th Circuit rejected defendant’s argument that the disproportionality of his 235-month sentence as compared to the 5-year sentences received by his co-conspirators constituted cruel and unusual punishment. First, defendant did not allege that his sentence was grossly disproportionate to his crimes, which is a critical factor in assessing whether a sentence is so disproportionate so as to constitute cruel and unusual punishment. Moreover, even if stated properly, the claim would fail. Inasmuch as the Supreme Court has held that a life sentence for possession of 650 grams of cocaine base did not violate the 8th Amendment, then a 235-month sentence for possessing with intent to distribute a kilogram of cocaine base does not violate the 8th Amendment. U.S. v. Easter, 981 F.2d 1549 (10th Cir. 1992).
10th Circuit rejects 8th Amendment challenge to consecutive 30-year terms for drug offender. (140) Defendant was convicted of various drug and firearms offenses and received two consecutive 30-year terms of imprisonment. The 10th Circuit rejected the claim that the sentence violated the 8th Amendment because it was in effect a life term. A life sentence for a drug trafficker does not violate the 8th Amendment. U.S. v. Sturmoski, 971 F.2d 452 (10th Cir. 1992).
10th Circuit upholds pre-guidelines 20-year sentence for cocaine charges against Eighth Amendment and proportionality challenges. (140) In this pre-guidelines case, defendant pled guilty to conspiracy to distribute cocaine and conspiracy to commit tax fraud. He was sentenced to 20 years, consecutive to his current federal sentence. The 10th Circuit rejected defendant’s claims that his sentence violated the Eighth Amendment and was disproportionate to the 5-year sentence his co-defendant received. The sentence was within prescribed statutory limits. The sentence was not disproportionate given the serious nature of the charged offense, defendant’s four prior felonies, and defendant’s disclosure of confidential grand jury information. Defendant failed to demonstrate that the disparity in sentence vis-a-vis his co-defendant was an abuse of discretion. U.S. v. Jimenez, 928 F.2d 356 (10th Cir. 1991).
10th Circuit rules that career offender provisions do not violate 8th Amendment by mechanically aggregating disparate offenses. (140) Defendant argued that the career offender provisions of the guidelines violate the ban against cruel and unusual punishment by mechanically aggregating disparate offenses without regard to the seriousness of the offense or adequately considering the defendant’s personal characteristics. The 10th Circuit disagreed, holding that even if the 8th Amendment required the sentencing judge to retain some measure of discretion in imposing sentence, the guidelines provide a sufficient degree of discretion in § 5K2.0, which allows departure downward in appropriate cases. U.S. v. Hughes, 901 F.2d 830 (10th Cir. 1990).
10th Circuit holds base offense levels for crack cocaine are not cruel and unusual punishment. (140) Defendant pled guilty to conspiracy to distribute cocaine base and was sentenced to 264 months. Defendant argued that the sentencing guidelines for distribution of cocaine base, 21 U.S.C. § 841(b)(1)(A)(iii), violated the 8th Amendment’s prohibition against cruel and unusual punishment. The 10th Circuit affirmed the sentence, finding that the base offense level for the crime “was clearly not disproportionate to what Congress and other jurisdictions have indicated is appropriate for drug offenses.” The court also compared the sentence to the 22 year sentence for possession of 9 ounces of marijuana upheld by the Supreme Court in Hutto v. Davis, 454 U.S. 370 (1982). U.S. v. Colbert, 894 F.2d 373 (10th Cir. 1990).
11th Circuit says mandatory life sentence based on prior juvenile convictions did not violate Eighth Amendment. (140) Defendant was convicted of methamphetamine trafficking and possession, and received a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii). He argued for the first time on appeal that the mandatory life sentence constituted cruel and unusual punishment because it was based on two prior convictions for offenses defendant committed when he was 17. The Eleventh Circuit held that the court’s consideration of the juvenile drug offenses was not plain error. Defendant cited no binding authority that holds that a mandatory life sentence based in part upon prior juvenile offenses violates the Eighth Amendment. The panel also rejected defendant’s argument that his sentence was unreasonable because the district court considered only the amount of methamphetamine and his prior drug convictions, and failed to consider the 18 U.S.C. § 3553(a) factors. The district court was bound by the statutory mandatory minimum sentences, even post-Booker. U.S. v. Hoffman, 710 F.3d 1228 (11th Cir. 2013).
11th Circuit says life sentences for child porn enterprise were not cruel and unusual. (140) Defendants participated in an international child pornography ring, and were convicted of multiple child porn offenses, including engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g). They argued that their life sentences were grossly disproportionate to their offenses and constituted cruel and unusual punishment. The Eleventh Circuit disagreed. Defendants’ sentences were all within the applicable advisory guideline ranges and were not grossly disproportionate. Law enforcement observed the defendants and their cohorts sharing more than 400,000 images and 1,000 videos, many of which showed brutal and sadistic sexual acts being committed against children of all ages and nationalities. The number of images and videos alone was sufficient to support the life sentences. Moreover, “the violence, disrespect, and inhumanity of the acts photographed and recorded, gleefully shared between the defendants and other members of their child pornography ring,” further supported the sentences. U.S. v. McGarity, 669 F.3d 1218 (11th Cir. 2012).
11th Circuit holds that life sentence for RICO murder was not cruel and unusual punishment. (140) Defendant was convicted under Count 1 of a RICO conspiracy, with a special jury finding that defendant committed the Guzman murder, and under Count 2 of the Guzman murder, a violent crime in aid of racketeering (VICAR murder). Defendant was sentenced to life imprisonment. The Eleventh Circuit rejected defendant’s argument that this was cruel and unusual punishment. There was no evidence that the sentence was disproportionate to the offense. Life sentences are expressly permitted for RICO conspiracy and were required for the VICAR murder. 18 U.S.C. §§ 1959(a)(1), 1963(a). Defendant was convicted of both charges, and, for the RICO charge, the jury issued a special verdict finding that he murdered the victim. Although defendant did not accompany the shooters, he organized the attack, provided the guns, collected the guns after the offense, and ordered the gang members not to discuss the shooting. U.S. v. Flores, 572 F.3d 1254 (11th Cir. 2009).
11th Circuit holds that lifetime supervised release term was not cruel and unusual punishment. (140) Defendant pled guilty to several child pornography-related counts. The district court sentenced him to the statutory maximum sentence of 240 months and a lifetime of supervised release. Section 3583(k) of Title 18 authorized the imposition of a lifelong term of supervised release on two of the three counts. However, the maximum term of supervised release for the violation of 18 U.S.C. § 1466A(a), a Class C felony, was three years. Remand was necessary to clarify as to the term of supervised release for Count Three. However, the Eleventh Circuit rejected defendant’s argument that the lifetime supervised release constituted cruel and unusual punishment. Whatever relevance various factors such the years of sexual abuse he suffered as a child might have to his degree of moral culpability, they did not lessen the need for supervised release. Given the connection between defendant’s possession of child pornography and his apparent propensity for engaging in the sexual abuse of children, a lifetime term of supervised release was not grossly disproportionate to his child pornography offenses under 18 U.S.C. § 2252A. U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005).
11th Circuit holds that 235-month sentence for armed career criminal was not cruel and unusual. (140) Defendant was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g), and received a 235-month sentence based on his status as an “armed career criminal” pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(b). The Eleventh Circuit held that the 235-month sentence was not cruel and unusual punishment. Defendant’s guideline range of 235-293 months was entirely the result of his recidivism. Section 922(g)(1) only applies to individuals with predicate convictions. The length of his sentence was the result of his extensive criminal history and it is well-settled law that a longer sentence may be imposed on a recidivism, based on his criminal history, even if the offense of conviction is relatively minor in nature. U.S. v. Lyons, 403 F.3d 1248 (11th Cir. 2005).
11th Circuit holds that 15-year ACCA sentence was not cruel and unusual. (140) Defendant received a 180-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), for his felon-in-possession conviction. The Eleventh Circuit held that the 180-month sentence did not constitute cruel and unusual punishment. “In non-capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle.” U.S. v. Brant, 62 F.3d 367 (11th Cir. 1995). Under Brant, a reviewing court must make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed. If so, the court must then consider the sentences imposed on others convicted in the same jurisdiction and the sentences imposed for the same crime in other jurisdictions. Defendant’s 15-year sentence was not grossly disproportionate to his offense of possession of a firearm by a three-time felon. His predicate crimes included a serious drug offense, a robbery where he pretended to have a gun, and an aggravated battery where he detained the victim while his associate struck the victim in the head. Every circuit to have considered this issue has concluded that the 15-year minimum sentence under the ACCA is neither disproportionate to the offense nor cruel and unusual punishment. U.S. v. Reynolds, 215 F.3d 1210 (11th Cir. 2000).
11th Circuit rejects 8th Amendment challenge to 188-month sentence for manufacturing marijuana. (140) Defendant pled guilty to one count of manufacturing marijuana. Defendant received a 188-month sentence as a career offender. The Eleventh Circuit held that the 188-month sentence did not constitute cruel and unusual punishment. The 15.66 year sentence was not sufficiently disproportionate to the offense to trigger application of the analysis in Solem v. Helm, 463 U.S. 277 (1983). U.S. v. Brant, 62 F.3d 367 (11th Cir. 1995).
11th Circuit upholds life sentence for drug offense. (140) Defendant argued that his life sentence for a drug offense violated the 8th Amendment because the court mechanically applied the guidelines and failed to appreciate that defendant did not possess the intent or ability to purchase the cocaine. The 11th Circuit upheld the life sentence. The district court sentenced each defendant individually. Moreover, even if the court failed to make individualized findings, a sentence can be affirmed where, as here, the record supports the amount of drugs attributed to the defendant. U.S. v. Diaz, 26 F.3d 1533 (11th Cir. 1994).
11th Circuit upholds mandatory life sentences against statutory and constitutional challenges. (140) Defendant received concurrent life sentences for conspiracy to possess and possessing with intent to distribute at least five kilograms of cocaine. Because he had two prior drug convictions, the life sentences were mandatory under 21 U.S.C. section 841(b)(1)(A). The 11th Circuit rejected defendant’s contention that the mandatory life sentence provisions conflicted with 28 U.S.C. section 994(h), which requires that the should be at or near the statutory maximum. The guidelines accommodate this in section 5G1.1(b) by providing that where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. The life sentence did not violate the 8th Amendment. The Supreme Court recently rejected a similar argument in Harmelin v. Michigan, 111 S.Ct. 2680 (1991). U.S. v. Willis, 956 F.2d 248 (11th Cir. 1992).
D.C. Circuit upholds constitutionality of career offender guideline. (140) Defendant qualified as a career offender, which subjected him to 30 years to life. The district court found the career offender guideline unconstitutional as applied to defendant, and sentenced him to the mandatory minimum 10 years’ imprisonment. The D.C. Circuit reversed, holding that the career offender guidelines did not violate either the 8th Amendment or the 5th Amendment. The 30-year sentence for defendant’s drug offense was not cruel and unusual punishment. Section 4B1.1’s failure to consider an offender’s individual circumstances did not violate due process. However, the district court may have misunderstood its authority to depart downward. If the court determined that defendant’s criminal history was so minor that it made his an “unusual” career offender case, a departure under § 4A1.3 would be permitted. Finally, at resentencing, defendant might not qualify as a career offender. The district court must determine whether defendant’s “attempt” conviction was a predicate career offender offense in light of U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 1993) U.S. v. Spencer, 25 F.3d 1105 (D.C. 1994), reversing U.S. v. Spencer, 817 F.Supp. 176 (D.D.C. 1993).
D.C. Circuit rejects 8th Amendment challenge to 30-year career offender sentence for drug offense. (140) Because he was classified as a career offender, defendant received a 360-month sentence for his drug offense involving 26.41 grams of cocaine and 19.56 grams of cocaine base. The D.C. Circuit rejected the claim that the sentence constituted cruel and unusual punishment, since the Supreme Court has approved a 40-year sentence for a drug offense involving only nine ounces of marijuana. U.S. v. Garrett, 959 F.2d 1005 (D.C. Cir. 1992).
D.C. Circuit rejects cruel and unusual punishment challenge to 17-1/2 year sentence for crack distribution. (140) The D.C. Circuit rejected defendant’s claim that his 17-1/2 year sentence was so grossly disproportionate to his crime of crack distribution as to violate the 8th Amendment. Defendant’s lengthy sentence was mostly the result of his classification as a career offender with three prior felony convictions. The 8th Amendment permits legislatures to combat recidivism by imposing lengthy sentences on criminals with a prior record. The fact that defendant would have received a much lower sentence if he had been prosecuted in the District of Columbia courts was not relevant. U.S. v. McLean, 951 F.2d 1300 (D.C. Cir. 1991).
Article critiques Harmelin v. Michigan. (140) The Supreme Court rejected an Eighth Amendment challenge to a life sentence without the possibility of parole in Harmelin v. Michigan, 111 S. Ct. 2680 (1991). A student author argues that Harmelin too severely restricts the availability of proportionality review for noncapital prison sentences. The author traces the development of Eighth Amendment jurisprudence in both capital and noncapital cases. Note, A Trunk Full of Trouble, 27 Harv. C.R.-C.L. L. Rev. 262-80 (1992).
Article claims need to clarify 8th Amendment proportionality review. (140) A student author objects that the Court failed to provide adequate guidance to lower courts in Harmelin v. Michigan, 111 S. Ct. 2680 (1991), in which the Court upheld a sentence of life without the possibility of parole for a defendant convicted of possessing more than 650 grams of cocaine. In upholding the sentence against an Eighth Amendment challenge, the author argues, the Court failed to clarify when a reviewing court should conduct “proportionality” review of a noncapital sentence. Notwithstanding the position of some of the justices that such review should never take place, the author advocates retention of some general proportionality review. Note, Eighth Amendment Proportionality Principle, 2 Seton Hall Con. L. J. 409-44 (1991).