United States v. Robert Lee Chauncey

LAY, Circuit Judge,

dissenting.

I would vacate and remand this case for re-sentencing because Chauncey’s sentence was so grossly disproportionate to the offense that it violates the Eighth Amendment.

*879A sentence for a term of years is not immune from Eighth Amendment scrutiny. See Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (stating that it is “clearly established” that a “gross disproportionality principle is applicable to sentences for terms of years”). Likewise, sentences imposed under anti-recidivism statutes designed to meet out severe punishment on repeat offenders remain subject to Eighth Amendment scrutiny. See Solem v. Helm, 463 U.S. 277, 288-90, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (stating “no penalty is per se constitutional”). In applying these principles, we have determined that a limited review does exist for sentences within statutory limits. See United States v. Richard, 872 F.2d 253, 255 (8th Cir.1989) (reviewing sentence within statutory parameters for Eighth Amendment disproportionality, no violation); Woosley v. United States, 478 F.2d 139, 147-48 (8th Cir.1973) (en banc) (finding sentence within statutory parameters “disproportionate”).4

In determining whether a sentence is grossly disproportionate to the crime, we look primarily to the gravity of the offense and the harshness of the penalty. See Ewing v. California, 538 U.S. 11, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). Other relevant criteria in this review include an analysis of sentences imposed on other criminals in the same jurisdictions and sentences imposed for the same crime in other jurisdictions. See Solem, 463 U.S. at 292, 103 S.Ct. 3001; see also Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (stating that proportionality review should be guided by “objective factors to the extent possible”) (internal quotation marks and citations omitted) (Kennedy, J., concurring in part and concurring in judgment).

In the case at bar, Chauncey’s crime was possessing marijuana with intent to distribute and aiding and abetting the same. The offense involved less than two ounces of marijuana — perhaps a few weeks’ supply for an average user. Considering Chauncey’s undisputed purpose was to help Mary Fast Horse obtain marijuana to alleviate the painful effects of her multiple sclerosis, this offense lacks the severity typically associated with sentences of this length. The typical sentence for this crime under federal law, even for someone with Chauncey’s criminal history, is usually six to twelve months of imprisonment. See U.S.S.G. § 2Dl.l(c). Application of the Career Offender Guideline, see U.S.S.G. § 4B1.1, augmented Chauncey’s sentence to 100 months of imprisonment— roughly ten times greater than the usual sentence. However, even after considering Chauncey’s criminal history, a 100-month sentence is disproportionate. Chauncey’s first prior offense was involuntary manslaughter, which arose out of a car accident in 1990. This offense, while violent, lacks the type of intent normally associated with a career offender and has *880never been repeated. Chauncey’s second prior offense — selling one-quarter ounce of marijuana for fifty dollars in 1998 — lacks the severity, frequency, and gravity of the drug offenses that typically pepper the criminal histories of career offenders.

The glaring disparity between the sentence imposed upon Chauncey and that imposed upon Fast Horse bolsters my conclusion that Chauncey’s sentence was disproportionate to his crime. Fast Horse pled guilty to the exact same offense as Chauncey, yet she was sentenced only to two years of probation. This sentence not only differs in duration, it differs in kind since Fast Horse served no time in prison. Undoubtedly her guilty plea-motivated the prosecutor to grant some degree of leniency, but this alone cannot justify the severely disparate treatment in sentencing, and neither does Chauncey’s criminal record.

Taken together, these factors warrant a holding that a 100-month sentence for possession with intent to distribute less than two ounces of marijuana is disproportionate to the offense. As Chauncey points out, the Government can cite “no case that has approved a sentence as harsh” as Chauncey’s “for possession with intent to distribute less than two ounces of marijuana.” Reply Brief at 25.

I respectfully dissent.

. United States v. Foote, 920 F.2d 1395, 1401 (8th Cir.1990), holds to the contrary. ("[A]s a matter of law, sentences under the Guidelines are sentences within statutorily prescribed ranges and therefore do not violate the Eighth Amendment.”). I note that Foote relied primarily on United States v. Newsome, 898 F.2d 119, 122 (10th Cir.1990), which stands only for the proposition that sentences imposed in accordance with statutory limits do not generally constitute cruel and unusual punishment. Id. Though the difference between Newsome and Foote is slight, it is weighty since the Eighth Amendment is only applicable in a small number of extreme cases. See Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). To the extent that Foote extends beyond our general rule and forecloses, as a matter of law, any Eighth Amendment challenge whatsoever to a sentence within the appropriate guideline range, it conflicts with Lockyer and Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and ought be overturned.