United States v. James Cobler

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4170

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES ROBERT COBLER,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:12-cr-00026-MFU-JGW-1)

Argued: January 29, 2014 Decided: April 11, 2014

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wynn joined. Judge Duncan wrote a separate
opinion concurring in the judgment.

ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the constitutionality and the

reasonableness of a 120-year sentence imposed on a defendant

convicted of production, possession, and transportation of child

pornography, in connection with his sexual molestation of a

four-year-old boy. The defendant argues that his lengthy prison

sentence is disproportionate to his crimes, constituting cruel

and unusual punishment under the Eighth Amendment, and that the

sentence is greater than necessary to achieve legitimate

sentencing goals. Upon our review, we reject the defendant’s

constitutional challenge and conclude that the district court

did not abuse its discretion in imposing a sentence designed to

protect the public and to address the seriousness of the

defendant’s crimes. Accordingly, we affirm.

I.

In April 2012, undercover police investigators identified a

computer belonging to James Robert Cobler (Cobler) as a source

of child pornography on the Internet. After obtaining a warrant

and searching Cobler’s home in Winchester, Virginia,

investigators found numerous images and video recordings

depicting the sexual abuse of children.

During an interview with police, Cobler admitted that he

had downloaded, possessed, and shared child pornography over the

2
Internet using a “peer-to-peer” file-sharing network. Cobler

also confessed that he had sexually molested a four-year-old boy

on four separate occasions while acting as the child’s

babysitter, and had photographed and filmed his sexual

encounters with the child. Cobler, a 28-year-old man in poor

health who is afflicted by a serious communicable disease,

admitted that at the time he molested the child, he was aware of

the possibility that his disease could be transmitted to the

child by sexual contact.

Cobler pleaded guilty to three counts of production of

child pornography, see 18 U.S.C. § 2251(a) and (e), one count of

transportation of child pornography in interstate commerce, see

18 U.S.C. § 2252(a)(1) and (b)(1), and one count of possession

of child pornography, see 18 U.S.C. § 2252(a)(4)(B) and (b)(2).

The United States Probation Office prepared a Presentence Report

(PSR), in which the probation officer concluded that although

Cobler lacked any prior convictions, the severity of his

offenses warranted an initial advisory guidelines term of life

imprisonment. However, because none of Cobler’s criminal

charges provided for a sentence of life imprisonment, Cobler’s

guidelines sentence ultimately was calculated to be 1,440

months, or 120 years, which represented the sum of the statutory

maximum sentences available for each count of conviction.

3
Cobler did not object to the district court’s adoption of the

PSR calculations.

At the sentencing hearing, Cobler requested a significant

downward variance from the applicable guidelines, based in part

on his grave medical condition and short life expectancy, as

well as his lack of criminal history. The government argued

that a guidelines sentence was justified, and that it would

deter others from committing similar crimes.

After considering the sentencing factors set forth in 18

U.S.C. § 3553(a), the district court decided that there was “no

reason to vary from the guidelines in this case” and imposed a

sentence of 120 years’ imprisonment. Cobler filed a timely

appeal, challenging the constitutionality and the reasonableness

of his sentence.

II.

Cobler argues that his 120-year sentence violates the

Eighth Amendment’s prohibition against cruel and unusual

punishment because the sentence is disproportionate to the

severity of his crimes, a question that we review de novo. See

United States v. Meyers, 280 F.3d 407, 416 (4th Cir. 2002)

(citation omitted). Cobler asks that we revisit some of our

recent precedent, which he argues improperly suggests that this

Court need not review his constitutional challenge because

4
proportionality review of any sentence less than life

imprisonment without parole is “not available,” “not

appropriate,” or “not required.” See United States v. Ming

Hong, 242 F.3d 528, 532 (4th Cir. 2001) (“[P]roportionality

review is not available for any sentence less than life

imprisonment without the possibility of parole.”); see also

United States v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995)

(stating that proportionality review “is not appropriate” for

any such sentence); United States v. Polk, 905 F.2d 54, 55 (4th

Cir. 1990) (observing that the Supreme Court “does not require”

proportionality review of such sentences); United States v.

Whitehead, 849 F.2d 849, 860 (4th Cir. 1988) (same); United

States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (same).

Before addressing these arguments, we examine the analytical

framework for proportionality challenges established by the

Supreme Court.

The Eighth Amendment states that “[e]xcessive bail shall

not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend. VIII.

Punishment is deemed cruel and unusual not only when it is

“inherently barbaric,” but also when it is disproportionate to

the crime for which it is imposed. Graham v. Florida, 560 U.S.

48, 59 (2010); see Weems v. United States, 217 U.S. 349, 367

5
(1910) (referring to the “precept of justice that punishment for

crime should be graduated and proportioned to [the] offense”).

A defendant may challenge the proportionality of a sentence

under the Eighth Amendment in two different ways. Under an “as-

applied” challenge, a defendant contests the length of a certain

term-of-years sentence as being disproportionate “given all the

circumstances in a particular case.” Graham, 560 U.S. at 59.

In a “categorical” challenge, a defendant asserts that an entire

class of sentences is disproportionate based on “the nature of

the offense” or “the characteristics of the offender.” Id. at

60. In this appeal, Cobler argues that his prison sentence is

constitutionally infirm under both these approaches.

The Supreme Court has emphasized the limited scope of both

types of proportionality challenges. In the context of an as-

applied challenge, the Court has explained that the “narrow

proportionality principle” of the Eighth Amendment “does not

require strict proportionality between crime and sentence,” but

“forbids only extreme sentences that are grossly

disproportionate to the crime.” Graham, 560 U.S. at 59-60

(quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1991)

(Kennedy, J., concurring)) (internal quotation marks omitted).

Before an appellate court concludes that a sentence is grossly

disproportionate based on an as-applied challenge, the court

first must determine that a “threshold comparison” of the

6
gravity of the offense and the severity of the sentence “leads

to an inference of gross disproportionality.” Id. (quoting

Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)) (brackets

omitted). In the “rare case” that a reviewing court concludes

that such an inference may be drawn, the court is required to

compare the defendant’s sentence: (1) to sentences for other

offenses in the same jurisdiction; and (2) to sentences for

similar offenses in other jurisdictions. Id. If this extended

analysis validates the threshold determination that the sentence

is grossly disproportionate, the sentence is deemed “cruel and

unusual” punishment under the Eighth Amendment. Id.

The Supreme Court has identified a term-of-years sentence

as being grossly disproportionate on only one occasion. In

Solem v. Helm, 463 U.S. 277 (1983), a recidivist defendant had

been sentenced to life imprisonment without parole for passing a

bad check in the amount of $100. In reviewing the defendant’s

Eighth Amendment challenge to his sentence, the Court identified

the following “objective criteria” to be used in conducting a

full proportionality analysis: (1) “the gravity of the offense

and the harshness of the penalty;” (2) “the sentences imposed on

other criminals in the same jurisdiction;” and (3) “the

sentences imposed for commission of the same crime in other

jurisdictions.” Id. at 292. Because the bad check crime was

“one of the most passive felonies a person could commit” and the

7
punishment was “the most severe” non-capital sentence available,

the Court inferred that the defendant’s sentence was grossly

disproportionate. Id. at 296-97. Accordingly, the Court

conducted an extended proportionality review, engaging in a

comparative analysis of other penalties and other jurisdictions,

and concluded that the defendant’s sentence was

unconstitutional. Id. at 296-300.

Since the decision in Solem, no defendant before the

Supreme Court has been successful in establishing even a

threshold inference of gross disproportionality. See, e.g.,

Ewing v. California, 538 U.S. 11 (2003); Harmelin, 501 U.S. 957;

Hutto v. Davis, 454 U.S. 370 (1982) (per curiam); Rummel v.

Estelle, 445 U.S. 263 (1980). Notably, in Harmelin, the Court

upheld a life sentence without parole for a first-time felon

convicted of possession of 672 grams of cocaine. See 501 U.S.

at 961, 996. Justice Kennedy, whose concurrence in Harmelin

later was regarded as the “controlling opinion” in that case,

Graham, 560 U.S. at 59-60, contrasted the “passive” check fraud

in Solem with the “pernicious” drug offenses that “threaten[] to

cause grave harm to society” by contributing to “violence,

crime, and social displacement.” 501 U.S. at 1002-03 (Kennedy,

J., concurring).

In another as-applied proportionality challenge, the

Supreme Court in Ewing reviewed a prison sentence of 25 years to

8
life under California’s “three strikes” statute, 1 imposed for

theft of $1200 in merchandise. 538 U.S. at 19-20. Employing

its analysis from Solem, the Court observed that the theft crime

was “certainly not ‘one of the most passive felonies a person

could commit’” and could justify a prison sentence of between 25

years and life imprisonment. Ewing, 538 U.S. at 28 (plurality

opinion) (quoting Solem, 463 U.S. at 296); see also Lockyer v.

Andrade, 538 U.S. 63 (2003) (affirming, upon habeas review, a

sentence under California’s “three strikes” law of two

consecutive terms of 25 years to life in prison for petty theft

of videotapes worth about $150).

In comparison to the as-applied challenges described above,

categorical challenges to whole classes of prison sentences also

have had very limited success in the Supreme Court. With

respect to a categorical challenge, the reviewing court first

1
California’s three strikes law was designed “to ensure
longer prison sentences and greater punishment for those who
commit a felony and have been previously convicted of serious
and/or violent felony offenses.” Cal. Penal Code § 667(b).
Under the version of the statute in effect at the time of Ewing,
a defendant who had been convicted of two or more prior
“serious” or “violent” felonies, and who committed any new
felony, must receive “an indeterminate term of life
imprisonment.” 538 U.S. at 16 (citations and internal quotation
marks omitted). In 2012, the three strikes law was amended by
Proposition 36, also known as the Three Strikes Reform Act,
which among other things required that a defendant’s new offense
must also be a “serious” or “violent” felony before a defendant
would qualify for a life sentence as a third strike offender.
See Cal. Penal Code § 1170.126 (allowing resentencing of
defendants pursuant to the Three Strikes Reform Act of 2012).

9
determines whether a “national consensus against the sentencing

practice at issue” is evident from “objective indicia of

society’s standards, as expressed in legislative enactments and

state practice.” Graham, 560 U.S. at 61. Next, the court

exercises its “independent judgment whether the punishment in

question violates the Constitution.” Id. Thus, a categorical

challenge “requires consideration of the culpability of the

[class of] offenders at issue in light of their crimes and

characteristics, along with the severity of the punishment in

question.” Id. at 67.

Before 2010, the Supreme Court had deemed only certain

classes of death sentences as being categorically

disproportionate. The Court held that capital punishment was

unconstitutional under certain circumstances, either because

offenders’ underlying convictions fell outside the “narrow

category of the most serious crimes,” see, e.g., Kennedy v.

Louisiana, 554 U.S. 407, 420 (2008) (rape), Enmund v. Florida,

458 U.S. 782 (1982) (certain types of felony murder), or because

some populations of offenders had diminished personal

responsibility for their crimes, such as persons who are

intellectually disabled, see Atkins v. Virginia, 536 U.S. 304

(2002), and juveniles, see Roper v. Simmons, 543 U.S. 551

(2005).

10
 In recent years, the Court has extended its use of the

categorical analysis to a very narrow group of non-capital

prison sentences involving juvenile offenders. Employing a

categorical analysis, the Court has barred certain sentences of

life imprisonment without parole for juveniles. See Graham, 560

U.S. 48 (prohibiting life imprisonment without parole for

juveniles convicted of non-homicide crimes); Miller v. Alabama,

132 S. Ct. 2455 (2012) (barring mandatory life imprisonment

without parole for juveniles convicted of homicide crimes). The

Court linked its “unprecedented” willingness to reverse non-

capital sentences to this narrow, special context of juvenile

offenders, for whom a life sentence without parole can be

“likene[d] . . . to the death penalty itself,” particularly

given the reality that a juvenile will spend more of his life in

prison than an adult. Miller, 132 S. Ct. at 2466.

Within this limited framework for proportionality review of

as-applied and categorical challenges, we turn to consider

Cobler’s assertion that our Circuit improperly imposes a

wholesale restriction against proportionality review for any

prison sentence of less than life imprisonment without parole.

Cobler bases his assertion on the statements in some of our

decisions cited above, which suggested that proportionality

review is “not available,” “not appropriate,” or “not required”

for a term-of-years sentence. See supra at 4.

11
 Cobler’s argument fails, however, because it discounts the

full import of our holding in United States v. Rhodes, 779 F.2d

1019 (4th Cir. 1985). It is well-established law in this

Circuit that our first case to decide an issue controls later

consideration of that same issue, unless it is overruled by this

court sitting en banc or by the Supreme Court. McMellon v.

United States, 387 F.3d 329, 334 (4th Cir. 2004). And, on the

subject of judicial review available for proportionality

challenges to term-of-years sentences under the Eighth

Amendment, the earliest, controlling case in this Circuit is

Rhodes.

In Rhodes, two defendants in a drug conspiracy case

asserted as-applied proportionality challenges to their

respective prison sentences of 50 and 75 years, arguing that the

Supreme Court’s decision in Solem entitled them to “extensive

proportionality review” of those sentences. Id. at 1026. The

Supreme Court held in Solem that the Eighth Amendment principle

of proportionality is applicable generally to the review of non-

capital felony prison sentences, and that “no penalty is per se

constitutional.” 463 U.S. at 288-90. The Court further

emphasized, however, that “a reviewing court rarely will be

required to engage in extended analysis to determine that a

sentence is not constitutionally disproportionate.” 463 U.S. at

290 n.16 (emphasis added). Additionally, the Court explained

12
that proportionality challenges to non-capital sentences rarely

will be successful, due to the “substantial deference” that

reviewing courts owe to Congress and to trial courts. Id. at

289-90; see also Hutto, 454 U.S. at 374 (noting that for felony

crimes, because there is “no clear way to make any

constitutional distinction between one term of years and a

shorter or longer term of years,” the “length of the sentence

actually imposed is purely a matter of legislative prerogative”

and “successful challenges to the proportionality of particular

sentences should be exceedingly rare”) (citations and internal

quotation marks omitted).

In view of this instruction in Solem, we held in Rhodes

that “extensive proportionality analysis” is required “only in

those cases involving life sentences without parole,” or,

alternatively, in cases involving “terms of years without

parole” that are functionally equivalent to life sentences

“because of [the defendants’] ages.” 779 F.2d at 1028 (emphasis

added). In considering the term-of-years sentences before us in

Rhodes, we further explained that additional proportionality

analysis generally is not required when “a simple matching of

the facts of a particular case against the Solem principles will

suffice [to establish the constitutionality of a given sentence]

without extended discussion.” Id. at 1028-29.

13
 This observation, that the need for an “extended

discussion” of proportionality often will be obviated by a

“simple matching” of facts to law, essentially presaged Graham’s

directive that a reviewing court first consider whether there is

a “threshold . . . inference” of “gross disproportionality.”

560 U.S. at 60 (citation and internal quotation marks omitted).

Our decision in Rhodes is also consistent with the Supreme

Court’s further instruction in Graham that, in the absence of

such a “threshold inference,” extended comparative analysis of a

sentence is unnecessary to justify its constitutionality. Id.

Thus, in contrast to some of our later decisions, Rhodes did not

hold that judicial review of proportionality challenges to term-

of-years sentences is “not available,” “not appropriate,” or

“not required.”

Under the first-in-time precedential authority of Rhodes,

any later decisions in this Circuit that imprecisely have

characterized Rhodes’s discussion of proportionality review are

not controlling. 2 See McMellon, 387 F.3d at 334. Thus, we take

2
Some of our colleagues already have observed that Ming
Hong’s statement that proportionality review is available only
in limited circumstances is not “good law,” although they have
expressed different opinions regarding the precise way to
resolve our conflicting cases. For example, some have suggested
that en banc review is necessary to resolve a conflict in our
cases. See, e.g., United States v. Hashime, 722 F.3d 572, 574
(4th Cir. 2013) (Gregory, J., concurring in denial of reh’g en
banc). Another colleague has expressed the view that in Polk
(Continued)
14
the opportunity here to reaffirm the vitality of Rhodes and of

the cases that accurately have applied its holding. See, e.g.,

United States v. Wellman, 663 F.3d 224, 231 (4th Cir. 2011)

(noting the observation in Rhodes that “extensive

proportionality analyses are only required in those cases

involving life sentences without the possibility of parole,” and

that “lesser sentences that are clearly within the prerogative

of Congress and subject to imposition by a district court may be

disposed of swiftly”); Sutton v. Maryland, 886 F.2d 708, 712

(4th Cir. 1989) (doubting, based on Rhodes, whether using all of

the Solem factors in a proportionality analysis is necessary

where “[c]learly, the gravity of the [assault] offense and the

circumstances of the crime justify a fifteen year sentence”).

We further observe that our dictum in cases such as Ming

Hong stands in conflict with the Supreme Court’s modern

proportionality jurisprudence. As the Court stated in Solem,

“no penalty is per se constitutional,” and even “a single day in

and in other cases since Rhodes, we established that
proportionality review of prison sentences less than life
imprisonment without parole is “not required” and therefore is
discretionary. United States v. Hashime, 734 F.3d 278, 286-88
(4th Cir. 2013) (King, J., concurring). However, because none
of these later cases purported to amplify the holding in Rhodes,
and because Rhodes articulated the law of this Circuit and
anticipated the Supreme Court’s adoption of a clear structure
for proportionality review in Graham, we regard Rhodes as the
touchstone for our analysis and need not consider the above
efforts to reconcile our later cases.

15
prison may be unconstitutional in some circumstances.” 463 U.S.

at 290. In Graham, the Court clarified that when a defendant

challenges the proportionality of a term-of-years sentence,

courts “must begin by comparing the gravity of the offense and

the severity of the sentence.” 560 U.S. at 60. These decisions

afford constitutional protection to every prison sentence, and

compel us to review challenges to such sentences for

proportionality under the Eighth Amendment. 3

We therefore turn to consider the merits of Cobler’s as-

applied proportionality challenge. The first step in our

3
We disagree with our esteemed concurring colleague’s view
that revisiting our dictum in cases such as Ming Hong is
“unnecessary” because “[a] finding that proportionality analysis
is available is scarcely outcome determinative” given the
severity of Cobler’s crimes. Post at 25. Indeed, Ming Hong and
some of our other cases did not merely concern the applicability
of a mode of “analysis,” but wrongly suggested that any judicial
“review” of proportionality challenges “less than life
imprisonment without the possibility of parole” would be
foreclosed. See Ming Hong, 242 F.3d at 532. Such a sweeping
prohibition conflicts with our decision in Rhodes and “seems
plainly incorrect in light of the Supreme Court’s observation in
Solem that ‘no penalty is per se constitutional,’” as one of our
sister circuits already has observed. United States v. Kidder,
869 F.2d 1328, 1333 n.5 (9th Cir. 1989) (quoting Solem, 463 U.S.
at 290). Our recognition of this conflict is necessary because
the Supreme Court’s statement in Graham that proportionality
review applies to “a sentence for a term of years,” 560 U.S. at
60, does not independently supersede our dictum in Ming Hong
limiting such review to life sentences, given that the Supreme
Court construes the phrase “term of years” to include a life
sentence. See, e.g., Graham, 560 U.S. at 70 (noting that Solem,
which involved a sentence of life imprisonment without parole,
was “the only previous case striking down a sentence for a term
of years as grossly disproportionate”).

16
analysis requires us to decide whether a threshold comparison of

the gravity of Cobler’s offenses and the severity of his

sentence leads us to infer that his sentence is grossly

disproportionate to his crimes. Id.

Given the shocking and vile conduct underlying these

criminal convictions, we hold that Cobler has failed to

substantiate the required threshold inference of gross

disproportionality. Even assuming, without deciding, that

Cobler’s 120-year term of imprisonment is functionally

equivalent to a sentence of life imprisonment without the

possibility of parole, 4 we conclude that Cobler’s multiple child

pornography crimes are at least as grave as the drug offense in

Harmelin, which the Supreme Court deemed sufficiently egregious

to justify a similar sentence. See 501 U.S. at 996.

4
The Supreme Court has not yet decided the question whether
a lengthy term-of-years sentence is, for constitutional
purposes, the same as a sentence of life imprisonment without
the possibility of parole. See, e.g., Lockyer, 538 U.S. at 74
n.1 (noting the argument that it is “‘unrealistic’ to think that
a sentence of 50 years to life for [a 37-year-old defendant] is
not equivalent to life in prison without parole,” but stating
only that “[t]wo different sentences do not become materially
indistinguishable based solely upon the age of the persons
sentenced”); Bunch v. Smith, 685 F.3d 546, 552 (6th Cir. 2012)
(recognizing the controversy amongst state and federal courts
regarding whether Graham’s categorical rule “only applies to
juvenile nonhomicide offenders expressly sentenced to ‘life
without parole’” or also extends to juvenile offenders sentenced
to “consecutive, fixed terms resulting in an aggregate sentence
that exceeds the defendant’s life expectancy”).

17
 As a general matter, the prohibition of child pornography

derives from a legislative judgment that such materials are

harmful to the physiological, emotional, and mental health of

children, and that preventing the sexual exploitation of this

uniquely vulnerable group “constitutes a government objective of

surpassing importance.” New York v. Ferber, 458 U.S. 747, 757-

58 (1982). We further observe that the usual severity of

conduct of this nature is far exceeded by the particular

circumstances of this case. Not only did Cobler possess large

quantities of child pornography that he downloaded and shared on

the Internet, fueling the public consumption of materials

harmful to children, but he also created depictions of his own

sexual exploitation, molestation, and abuse of a four-year-old

child. To make matters worse, Cobler was aware that his sexual

contact with the child could have caused the child to contract

Cobler’s serious communicable disease. Far from being “one of

the most passive felonies a person could commit,” Solem, 463

U.S. at 296, Cobler’s heinous acts exploited, injured, and

inflicted great harm on a most vulnerable victim.

Accordingly, we conclude that the relationship between the

gravity of Cobler’s offenses and the severity of his punishment

fails to create the threshold inference of gross

disproportionality that is required to maintain a successful as-

applied challenge to a criminal sentence under the Eighth

18
Amendment. We also observe that other courts have reached

similar results in child pornography cases in which sentences of

life imprisonment were imposed. See, e.g., United States v.

McGarity, 669 F.3d 1218, 1255-57 (11th Cir. 2012) (holding that

life sentences for seven defendants involved in a child

pornography ring were not grossly disproportionate under the

Eighth Amendment); United States v. Paton, 535 F.3d 829, 837-38

(8th Cir. 2008) (upholding constitutionality of a defendant’s

life sentence for five counts of producing child pornography).

We conclude that Cobler’s categorical challenge likewise

lacks merit. The present case involves neither a sentence of

death nor a sentence of life imprisonment without parole for a

juvenile offender, the only two contexts in which the Supreme

Court categorically has deemed sentences unconstitutionally

disproportionate. Cf. Graham, 560 U.S. at 60-62. To the extent

that this 28-year-old defendant argues that his developmental

immaturity categorically requires that he be treated more

leniently as a juvenile, we reject that argument at the outset

given the complete lack of evidence in the record regarding any

national consensus about how immature adults should be sentenced

for child pornography crimes. See United States v. Reingold,

731 F.3d 204, 215 (2d Cir. 2013) (stating that even if the

defendant was a “developmentally immature young adult” at the

time of the crime, that assessment “hardly supports categorical

19
rule analysis” in the absence of any consensus regarding the

sentencing of immature adults). Moreover, we decline to

substitute a subjective judgment about the relative immaturity

of a particular defendant for the objective age of minority that

the Supreme Court has used as the benchmark for its categorical

analysis of young offenders. See Roper, 543 U.S. at 574

(stating that even though “[t]he qualities that distinguish

juveniles from adults do not disappear when an individual turns

18,” a line for death eligibility “must be drawn” at the age

“where society draws the line for many purposes between

childhood and adulthood”); see also Reingold, 731 F.3d at 215

(observing that “immaturity, unlike age, is a subjective

criterion, ill suited to the pronouncement of categorical

rules”). Because we find no merit in Cobler’s as-applied and

categorical proportionality challenges, we conclude that his

sentence of 120 years’ imprisonment does not constitute cruel

and unusual punishment under the Eighth Amendment.

III.

Cobler also challenges the reasonableness of his sentence,

which we review for abuse of discretion. United States v.

McManus, 734 F.3d 315, 317 (4th Cir. 2013) (citing Gall v.

United States, 552 U.S. 38, 51 (2007)). We first assess whether

the district court committed any significant procedural error,

20
such as “failing to calculate (or improperly calculating) the

[g]uidelines range, treating the [g]uidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” Gall, 552 U.S. at 51.

Next, we consider the substantive reasonableness of the sentence

based on the totality of the circumstances. Id.

We do not detect any significant procedural error in this

case. The district court properly determined the guidelines

range, considered and discussed the Section 3553(a) factors, and

articulated reasons for the sentence imposed. Cobler maintains,

nevertheless, that the court erred by referring in its

“statement of reasons” to the allegedly erroneous fact that

Cobler recorded his “rape” of his four-year-old victim.

However, based on our review of Cobler’s admissions to police

investigators, we reject Cobler’s argument and agree with the

government that the district court did not err in characterizing

Cobler’s sexual contact with the child as “rape.”

Having determined that the sentencing court did not commit

significant procedural error, we next evaluate whether Cobler’s

sentence is substantively reasonable. In considering the

substantive reasonableness of a sentence, we review whether the

district court abused its discretion in determining that the

21
factors contained in Section 3553(a) supported the sentence.

See id. at 56.

A sentence that falls within a properly calculated

guidelines range is presumptively reasonable. United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007). Cobler challenges the

presumptive reasonableness of his within-guidelines sentence,

arguing that the sentence was greater than necessary to address

the sentencing factors set forth in Section 3553(a). In

particular, Cobler contends that the district court abused its

discretion by relying upon the factor of deterrence in setting

the sentence, especially given Cobler’s grave medical condition

and diminished life expectancy, and by ultimately fashioning a

sentence unique in its severity for the type of sex crimes at

issue in this case. See 18 U.S.C. § 3553(a)(2) (referring to

the need “to afford adequate deterrence to criminal conduct” and

“to protect the public from further crimes of the defendant”);

18 U.S.C. § 3553(a)(6) (noting the “need to avoid unwarranted

sentence disparities among defendants with similar records who

have been found guilty of similar conduct”).

After reviewing the record, we conclude that Cobler’s

arguments fail to defeat the presumption that his within-

guidelines sentence is substantively reasonable. The district

court explicitly considered the need for Cobler’s sentence to

deter others from engaging in what the court considered “the

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most serious and egregious conduct.” Cognizant that it was

imposing a term of imprisonment that effectively would be a

“life sentence,” the court reasoned that it could not “imagine a

situation where [the court] can allow the defendant back into

the public” given that the case involved not only child

pornography, but actual sexual abuse of a four-year-old victim

that was aggravated by the defendant’s knowledge that the victim

could have become infected with a serious communicable disease.

We cannot conclude that the district court abused its

discretion in reaching this decision. Furthermore, we observe

that other courts have upheld similar sentences. See, e.g.,

United States v. Demeyer, 665 F.3d 1374, 1375 (8th Cir. 2012)

(affirming the reasonableness of a 120-year, within-guidelines

sentence composed of consecutive 30-year prison terms for sexual

exploitation of a minor, and noting that the district court did

not abuse its “discretion to impose concurrent or consecutive

sentences for the multiple counts of conviction in order to

ensure that [the defendant] would in fact serve a life

sentence”); United States v. Noel, 581 F.3d 490, 500-01 (7th

Cir. 2009) (affirming an 80-year, below-guidelines prison

sentence for production and possession of child pornography as

reasonable); United States v. Sarras, 575 F.3d 1191, 1219-21

(11th Cir. 2009) (affirming a within-guidelines sentence of 100

years’ imprisonment as substantively reasonable given that

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“[c]hild sex crimes are among the most egregious and despicable

of societal and criminal offenses”); United States v. Betcher,

534 F.3d 820, 827-28 (8th Cir. 2008) (upholding the

reasonableness of a 750-year prison sentence for production,

receipt, and possession of child pornography); United States v.

Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006) (upholding the

reasonableness of a 140-year, within-guidelines prison sentence

for production and distribution of child pornography).

Accordingly, we conclude that the district court imposed a

sentence that reflects the nature and the circumstances of the

offense, as well as the other considerations of Section 3553(a).

We therefore hold that the sentence is substantively reasonable.

IV.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

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DUNCAN, Circuit Judge, concurring in the judgment:

With great respect for the majority’s thoughtful opinion, I

am of the view that this appeal can (and therefore should) be

decided more simply and without finding an irreconcilable

conflict between two of our prior opinions. I therefore concur

in the judgment.

First, as the majority correctly acknowledges, its analysis

is ultimately unnecessary. A finding that proportionality

analysis is available is scarcely outcome determinative here,

because Cobler’s conduct was sufficiently grave to have

justified even a life sentence without the possibility of

parole. See supra p. 17.

Further, I remain unpersuaded that United States v. Rhodes,

779 F.2d 1019 (4th Cir. 1985), is so inconsistent with United

States v. Ming Hong, 242 F.3d 528 (4th Cir. 2001), as to meet

the high standard of “irreconcilable conflict” required by

McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004).

Rhodes merely held that Solem v. Helm, 463 U.S. 277 (1983),

“requires an extensive proportionality analysis only in those

cases involving life sentences without parole.” 779 F.2d at

1028. Strictly speaking, our holding in Ming Hong that

“proportionality review is not available” for a term-of-years

sentence, 242 F.3d at 532, is not inconsistent with our holding

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in Rhodes that extensive proportionality analysis is not

required in such a case.

The majority points out that the panel in Rhodes went on to

apply a limited form of proportionality review to the sentences

at issue. But it did so having assumed, arguendo, that the

sentences were equivalent to life sentences without the

possibility of parole. See Rhodes, 779 F.2d at 1028.

While I cannot agree that Ming Hong conflicts with our

prior precedent, I nevertheless find it to be clearly

inconsistent with, and therefore superseded by, the Supreme

Court’s holding in Graham v. Florida, 560 U.S. 48, 59-60 (2010)

(“[In] determining whether a sentence for a term of years is

grossly disproportionate . . . . [a] court must begin by

comparing the gravity of the offense and the severity of the

sentence.”)

I therefore respectfully concur in the judgment.

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