concurring:
With a measure of reluctance, I concur in the judgment affirming the denial of Cook’s motion to reduce his sentence. Even assuming arguendo, that his Eighth Amendment claim has not been waived1— *509and my colleagues in the majority hold that it has been — I, like the court, do not believe, in the light of recent Supreme Court precedent, that Cook’s sentence, which imposed imprisonment for only forty percent of the statutory thirty-year maximum, was “so disproportionate as to contravene the Cruel and Unusual Punishment Clause.” See Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (plurality opinion); Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion); Hutto v. Davis, 454 U.S. 370, 370-75, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam).2 Moreover, in the absence of an error of law or of some extraordinary circumstance not here present, we, as an appellate court, lack the authority to review a sentence that is within statutory limits. In re L.J., 546 A.2d 429, 434-36 (D.C.1988); Walden v. United States, 366 A.2d 1075, 1076-77 (D.C.1976).
Nevertheless, in my judgment the sentence in this case is so severe that it warrants brief comment, albeit obiter dictum, at the appellate level. Cook contends, without contradiction by the government, that the twelve-year term of imprisonment imposed by the judge for unarmed possession of heroin -with intent to distribute it (PWID) was:
1. approximately four times as long as a sentence which would probably have been imposed pursuant to the Superior Court’s “Voluntary Sentencing Guidelines” (SCVSG);
2. substantially greater than the guideline range for PWID while aimed;
3. in excess of the range for several aimed and violent offenses, including, inter alia, armed robbery and possession of a firearm during a crime of violence; and
4. approximately three times as harsh as the penalty range under the federal sentencing guidelines.
The SCVSG were issued on June 14, 2004, ten months after Cook was sentenced, but they had been in effect for approximately sixteen months when the judge denied Cook’s motion to reduce sentence. Obviously, the guidelines did not apply to Cook’s case when he was sentenced, for they were not yet in existence at the time. Moreover, they are voluntary guidelines, and the judge was not obliged to follow them when he acted on Cook’s Rule 35 motion or, indeed, at any time. Nevertheless, the guidelines are revealing, for they were “based on historical data *510from the Superior Court Criminal Information System Computer over the past eight years,3 with some adjustments for consistency and symmetry.” SCVSG at 1-1. In other words, the guidelines provide a sentencing judge with information regarding the range of sentence typically imposed by his or her colleagues under comparable circumstances over a substantial period of time.
At the time the trial judge denied Cook’s motion to reduce sentence, he had access to information tending to show that the sentence he had imposed — imprisonment for 144 months, i.e., for twelve years — was roughly four times as harsh as the typical punishment for an offender who had committed a similar crime and who had a similar prior criminal record. In my opinion, the imposition of such a sentence, and the refusal to reconsider it, were not only unfair to the defendant and his family4 (who will be forced to look on as other inmates who have committed similar or worse crimes are released from prison, while Cook has a great many more years to serve), but they also present to the general public an image of judicial arbitrariness, inconsistency, and unfairness, to the detriment of the reputation of the court and of the judicial system. It is worth noting that Cook has already served almost four years, with eight more years to go.
“Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice, but to apply the law and hope that justice is done.” Bifulco v. United States, 447 U.S. 381, 402, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (Burger, C.J., concurring). I am not persuaded that justice has been done in this case.5 Having sworn to uphold the law, however, I am constrained to join my colleagues in affirming the judgment. Cf. Moore v. United States, 608 A.2d 144, 146-48 (D.C.1992) (concurring opinion).
. Rule 35(a) of the Superior Court’s Rules of Criminal Procedure provides that "[t]he Court *509may correct an illegal sentence at any time.” Cook asserts that his sentence constitutes "cruel and unusual punishment,” in violation of the Eighth Amendment, and is therefore unconstitutional. The Constitution of the United States is the Supreme Law of the Land, and an unconstitutional sentence is thus surely an illegal one. At least arguably, therefore, if Cook’s substantive claim of unconstitutionality were sound, he would have the right to raise that claim at any time, and therefore even for the first time on appeal in a post-sentencing proceeding.
I note, on the other hand, that Rule 35(a) has ordinarily been applied when the sentence imposed is at variance with the controlling sentencing statute. See, e.g., Prince v. United States, 432 A.2d 720, 721-22 (D.C.1981) (citing, inter alia, Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947)). Cook has cited no authority for the application of the "at any time” provision of Rule 35(a) to a situation such as this one. Cf. maj. op. at pp. 507-08 (treating Cook’s motion as "a plea for leniency” brought pursuant to Rule 35(b)). Finally, Cook has not filed a Reply Brief, and he has not contested the government’s position that the Eighth Amendment claim has been waived.
. Because the question whether Cook’s sentence violates the Eighth Amendment is one of law, our review is de novo.
. I.e., the eight-year period preceding the guidelines.
. According to the Pre-Sentence Report, Cook is married, and he and his wife have three young children. On the other hand, there is merit to the street maxim: “Don’t do the crime if you can’t do the time.”
. I am under no illusion that Cook’s crime was trivial, or that he deserved probation or just a few months in jail. He was traveling from New York to his home in South Carolina, and heroin with a street value of $5,000 was concealed in his luggage. Cook was apparently what is known in the world of drug trafficking as a "mule.” He was carrying contraband from New York to South Carolina on behalf of suppliers who have no doubt become much wealthier than Cook, at far less risk to themselves. The issue would be quite different, for me, if the appeal were by a supplier — the big enchilada — rather than by an apparent subordinate like Cook. In any event, however, a guideline sentence of between two and four years constitutes a substantial term of imprisonment, and it would not have been a mere slap on the wrist.