United States v. Graham

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0307p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-5993
v.
,
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Defendant-Appellant. -
DONALD GRAHAM,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 06-00095-002—Danny C. Reeves, District Judge.
Argued: January 22, 2010
Decided and Filed: September 21, 2010
Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.

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COUNSEL
ARGUED: Timothy J. McKenna, LAW OFFICE OF TIMOTHY J. McKENNA, LLC,
Cincinnati, Ohio, for Appellant. Andrew Sparks, ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Timothy J. McKenna,
LAW OFFICE OF TIMOTHY J. McKENNA, LLC, Cincinnati, Ohio, for Appellant.
Andrew Sparks, James E. Arehart, Charles P. Wisdom, Jr., ASSISTANT UNITED
STATES ATTORNEYS, Lexington, Kentucky, for Appellee.
MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined.
MERRITT, J. (pp. 27-36), delivered a separate dissenting opinion.
_________________

OPINION
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KAREN NELSON MOORE, Circuit Judge. Donald Graham, convicted of three
counts of a seven-count indictment for crack-cocaine offenses under 21 U.S.C.
§§ 841(a)(1) and 846 and 18 U.S.C. § 2, appeals from the district court’s denial of his

1
No. 08-5993 United States v. Graham Page 2

Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal, denial of his
motion to disregard life sentence, and sentencing decision. Graham’s main contention
on appeal is that his life sentence, imposed for his third qualifying felony under 21
U.S.C. § 841(b)(1)(A), violates the Eighth Amendment to the U.S. Constitution. Finding
no reversible error, we affirm the district court’s rulings on Graham’s motions and his
life sentence.

Graham was arrested as part of an investigation conducted by the Northern
Kentucky Drug Strike Force (“NKDSF”) and the Kenton County Police Department
(“KCPD”). Starting in September 2006, the NKDSF and the KCPD began a series of
six controlled cocaine-base buys with a confidential informant to investigate the
confidential informant’s tip that Jermaine Goodwin was a drug supplier.1 The first four
controlled buys occurred at various locations in northern Kentucky where the
confidential informant was located. The last two controlled buys, on October 16 and 17,
2006, occurred at Goodwin’s residence in northern Kentucky. On each of these days,
Goodwin told the confidential informant when he arrived that the drugs were on their
way. Graham then arrived and went with Goodwin to the back area of Goodwin’s
apartment (a bedroom), after which Goodwin returned to the living room with the drugs
to complete the deal with the confidential informant. Following this sequence of events
on the second day, October 17, the police stormed the apartment to execute a search
warrant. Graham, Goodwin, and William Corey Howard, Graham’s traveling
companion on October 17, were all arrested and charged as co-defendants in a ten-count
indictment.

Both Goodwin and Howard pleaded guilty under plea agreements requiring them
to testify in Graham’s trial. After a three-day trial, the jury convicted Graham of the
three counts pertaining to him: Count One, conspiring with Goodwin, Howard, and
others to distribute and possess with intent to distribute in excess of fifty grams of
cocaine base (21 U.S.C. §§ 841(a)(1), 846); Count Six, distribution of greater than five

1
We present a more developed statement of the facts of Graham’s instant crime and sentencing
where relevant to our analysis below. For present purposes, a summary will suffice.
No. 08-5993 United States v. Graham Page 3

grams of cocaine base, and aiding and abetting Goodwin, Howard, and others in this
distribution (21 U.S.C. § 841(a)(1); 18 U.S.C. § 2); and Count Seven, distribution of
greater than fifty grams of cocaine base, and aiding and abetting Goodwin, Howard, and
others in this distribution (21 U.S.C. § 841(a)(1); 18 U.S.C. § 2). The district court had
denied Graham’s Rule 29 motions for judgment of acquittal at the close of the
government’s case and at the close of all the evidence. With new counsel appointed for
sentencing, Graham filed a belated motion for a new trial and a motion to disregard life
sentence. The district court denied both motions and sentenced Graham on August 1,
2008, to concurrent terms of life imprisonment (the mandatory minimum for Counts One
and Seven under § 841(b)(1)(A)) and 168 months of imprisonment (Count Six).

Graham timely appeals the denial of his acquittal and life sentence motions and
challenges the reasonableness of his sentence.

I. DISCUSSION

A. Denial of Graham’s Motion for Judgment of Acquittal

Graham argues that the district court erred in denying his acquittal motions
because “No One Saw Graham Do Anything,” making the government’s evidence
insufficient to support a conviction. Appellant Br. at 17. The district court denied
Graham’s motions on the record, stating, “A lot of the evidence is by people whose
credibility isn’t the greatest, but the Court has to ignore those issues, and the evidence
taken at its face value is sufficient for it to go to the jury.” Dist. Ct. Doc. (“Doc.”) 125
(Trial Tr. #3 at 37, 56). We review de novo the denial of a motion for acquittal, viewing
the evidence in “a light most favorable to the prosecution, giving the prosecution the
benefit of all reasonable inferences from the testimony.” United States v. McAuliffe, 490
F.3d 526, 537 (6th Cir.), cert. denied, 552 U.S. 976 (2007). “The relevant question in
assessing a challenge to the sufficiency of the evidence is whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Id. We may not “weigh the evidence presented, consider the credibility of witnesses, or
No. 08-5993 United States v. Graham Page 4

substitute our judgment for that of the jury.” United States v. M/G Transp. Servs., Inc.,
173 F.3d 584, 588–89 (6th Cir. 1999).

“A defendant claiming insufficiency of the evidence bears a very heavy burden.”
United States v. Abboud, 438 F.3d 554, 589 (6th Cir.) (internal quotation marks and
alteration omitted), cert. denied, 549 U.S. 976 (2006). We afford the same weight to
both circumstantial and direct evidence. United States v. Gallo, 763 F.2d 1504, 1518
(6th Cir. 1985), cert. denied, 475 U.S. 1017 (1986). Because “‘[c]ircumstantial evidence
alone may sustain a conviction,’” physical evidence is not a prerequisite to sustaining
a conviction. United States v. Davis, 306 F.3d 398, 408 (6th Cir. 2002) (quoting United
States v. Adams, 265 F.3d 420, 423 (6th Cir. 2001)), cert. denied, 537 U.S. 1208 (2003).
“Furthermore, it is well-settled that uncorroborated testimony of an accomplice may
support a conviction in federal court.” United States v. Spearman, 186 F.3d 743, 746
(6th Cir.) (citing, inter alia, Krulewitch v. United States, 336 U.S. 440, 454 (1949)), cert.
denied, 528 U.S. 1033 (1999); accord United States v. Owens, 426 F.3d 800, 808 (6th
Cir. 2005), cert. denied, 546 U.S. 1119 (2006). We may not rule on a challenge to
witness credibility in reviewing the denial of a motion for acquittal because doing so
“would invade the province of the jury as the sole finder of fact in a jury trial.” United
States v. Bearden, 274 F.3d 1031, 1039 (6th Cir. 2001) (internal quotation marks
omitted). A defendant’s attempt to attack witness credibility “simpl[y] challenges . . .
the quality of the government’s evidence and not the sufficiency of the evidence.”
United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006) (internal quotation marks
omitted).

Graham attacks all of his counts of conviction generally, arguing that there is no
direct evidence tying him to Goodwin or the controlled buys because no one saw him
with any drugs or marked money, and that Goodwin’s statements about Graham are not
enough. He does not attack specific elements of any of the counts of conviction, but
rather points out broad problems with the government’s evidence. Because the
government must have presented sufficient evidence for each count of conviction such
that a “rational trier of fact could have found the essential elements of the crime beyond
No. 08-5993 United States v. Graham Page 5

a reasonable doubt,” McAuliffe, 490 F.3d at 537, we set forth the elements required for
each count.

1. The Elements Required for Conviction

a. Count One

To uphold a conviction on Count One, conspiracy to distribute and possess with
intent to distribute, the jury must have found that the government proved beyond a
reasonable doubt:

(1) an agreement by two or more persons to violate the drug laws,
(2) knowledge and intent to join in the conspiracy, and (3) participation
in the conspiracy. [United States v. Salgado, 250 F.3d 438, 446 (6th
Cir.), cert. denied, 534 U.S. 916, 534 U.S. 934 (2001)]; United States v.
Elder, 90 F.3d 1110, 1120 (6th Cir. 1996). . . . It is not necessary that
the government prove a formal agreement, and the existence of a
conspiracy may be inferred from circumstantial evidence that can
reasonably be interpreted as participation in a common plan. United
States v. Avery, 128 F.3d 966, 970–71 (6th Cir. 1997). A conspirator
need not be an active participant in every phase of a conspiracy, so long
as he is a party to the general conspiratorial agreement. Salgado, 250
F.3d at 447. While mere presence at the scene would be insufficient to
establish participation, a defendant’s participation in the conspiracy’s
common purpose may be inferred from the circumstances as well. Id.

Paige, 470 F.3d at 608–09; see also United States v. Gibbs, 182 F.3d 408, 420 (6th Cir.),
cert. denied, 528 U.S. 1051 (1999). “A defendant’s guilty knowledge and voluntary
participation may be inferred from surrounding circumstances,” including a close
relationship between alleged conspirators, but participation requires more than “mere
association with conspirators.” United States v. Brown, 332 F.3d 363, 372–73 (6th Cir.
2003) (internal quotation marks omitted). A buyer-seller relationship with others is not
enough, but evidence of a conspiracy or evidence linking a particular defendant to a
conspiracy may be provided by: repeated sales, Brown, 332 F.3d at 373 (holding regular
arrangement to purchase large amounts is sufficient evidence of conspiracy); “further
evidence indicating knowledge of and participation in the conspiracy,” Gibbs, 182 F.3d
at 422; or “evidence of a large quantity of drugs,” United States v. Caver, 470 F.3d 220,
No. 08-5993 United States v. Graham Page 6

233 (6th Cir. 2006), cert. denied, 549 U.S. 1326, 549 U.S. 1353 (2007). “[O]vert acts
are not needed to prove a conspiracy under § 846.” Gibbs, 182 F.3d at 420.

b. Counts Six & Seven

“[A] violation of 21 U.S.C. § 841(a), distribution of cocaine, requires that a
defendant: (1) knowingly or intentionally distribute cocaine, and; (2) at the time of such
distribution the defendant knew that the substance was cocaine.” United States v. Colon,
268 F.3d 367, 376 (6th Cir. 2001). Counts Six and Seven also charged Graham under
18 U.S.C. § 2 for aiding and abetting another to violate 21 U.S.C. § 841. “[T]he
essential elements of aiding and abetting are (1) an act by the defendant that contributes
to the commission of the crime, and (2) an intention to aid in the commission of the
crime.” Davis, 306 F.3d at 412. “To prove that [Graham] aided and abetted the drug
transactions under 18 U.S.C. § 2, the government must establish that [Graham]
participated in the venture as something []he wished to bring about and sought to make
succeed.” United States v. Ward, 190 F.3d 483, 487 (6th Cir. 1999), cert. denied, 538
U.S. 1118, 529 U.S. 1028 (2000); see also Paige, 470 F.3d at 609; Salgado, 250 F.3d at
447; United States v. Nieto, 226 F. App’x 483, 488 (6th Cir. 2007) (unpublished
opinion). The government was not required to prove that Graham himself actually
distributed or had possession of the cocaine, only that he had knowledge of the
principals’ actions and assisted. Paige, 470 F.3d at 609.

2. The Evidence Presented at Trial

We conclude that the government presented sufficient evidence to support the
jury’s verdict as to all counts. In response to Graham’s insufficient-evidence challenge,
the government relies upon Goodwin’s testimony regarding Graham’s repeated
involvement as a supplier and other witnesses’ corroborating testimony. As stated
above, we may not review Goodwin’s credibility, and Goodwin’s testimony alone may
support Graham’s convictions if the testimony was enough to prove Graham’s
involvement beyond a reasonable doubt. See Spearman, 186 F.3d at 746 (upholding
conviction on sufficiency challenge based on one co-conspirator’s testimony); Gibbs,
No. 08-5993 United States v. Graham Page 7

182 F.3d at 425 (upholding convictions on sufficiency challenges where only one
eyewitness testified as to defendant’s involvement, but government cited multiple
corroborating witnesses); Nieto, 226 F. App’x at 487–89 (upholding conviction for
aiding and abetting distribution and for active participation in conspiracy based on co-
conspirator’s testimony and evidence of defendant’s indirect participation); see also
United States v. Henley, 360 F.3d 509, 513–14 (6th Cir. 2004) (upholding conviction on
sufficiency challenge based on testimony of two co-conspirators).

At trial, the confidential informant, Shawn Payne, testified that Goodwin told
him when they first met in the fall of 2006 that Goodwin “basically had a hookup on
narcotics,” and that the first controlled buy was set up the very next day. Doc. 124 (Trial
Tr. #2 at 56). Goodwin never told Payne the identity of his supplier, and Payne never
saw or knew of Graham until October 16. Id. at 76–78. Goodwin testified that he had
been obtaining drugs as a middleman from Graham for three or four months prior to
Goodwin’s arrest on October 16 and that he had obtained drugs from Graham “like 20
times or so.” Doc. 123 (Trial Tr. #1 at 21–24). Goodwin’s fiance, Tasha Abney,
testified that Goodwin would receive drugs from Graham as his supplier “[o]n a weekly
basis” and that she had driven Goodwin to Graham’s house on occasions when Graham
did not bring the drugs to Goodwin. Doc. 124 (Trial Tr. #2 at 107–09). (She also
confirmed on cross that she had stated that this happened “on about 20 occasions.” Id.
at 125.) Howard testified that he knew Goodwin only through Graham, and that he had
dropped packages of cocaine off at Goodwin’s apartment for Graham “three or four
times,” had driven Graham to Goodwin’s apartment occasionally, and had been to
Goodwin’s apartment “nine to eleven times” since he met Goodwin “around April or
May of ’06.” Id. at 146–48. On cross, Howard testified that Goodwin had stated that
he also had another supplier. Id. at 154.

Goodwin testified that for each of the controlled buys on October 16 and 17,
2006, he called Graham to obtain crack cocaine to complete the sales and had to wait for
Graham to arrive before he had the drugs to sell. Doc. 123 (Trial Tr. #1 at 26–30.)
Because Graham did not testify in his own defense, Goodwin was the only person to
No. 08-5993 United States v. Graham Page 8

testify as to what happened in the back bedroom where Goodwin received the cocaine
from Graham. Payne confirmed that Goodwin did not have the drugs when Payne
arrived on October 16 or 17, but that he and Goodwin completed the deals after Graham
arrived and went to the back area of the apartment with Goodwin. Doc. 124 (Trial Tr.
#2 at 63–65, 66–71, 80–81). Abney also confirmed that on October 17 Goodwin was
waiting for Graham to arrive with the drugs for Payne, and that she told Payne after
Graham arrived that Graham was the supplier for whom they had been waiting. Id. at
113–14, 125. Howard testified that he drove Graham to Goodwin’s on October 17 to
drop off a package of cocaine. Id. at 149–50. Goodwin, Abney, and Howard each
testified that they saw Graham throw down money when the police arrived on October
17. Doc. 123 (Trial Tr. #1 at 31, 59); Doc. 124 (Trial Tr. #2 at 127–30, 152).

Officer Scott Hardcorn testified that the NKDSF and the KCPD used a
confidential informant to make six controlled buys from Goodwin, starting in September
2006 after the informant first told police about Goodwin and ending with the two
controlled buys in question that directly involved Graham (one ounce on October 16 for
$1,000 and three ounces on October 17 for $3,0002). Doc. 124 (Trial Tr. #2 at 4–5,
14–15). For the first four buys, Goodwin brought the drugs to the confidential informant
at various locations in Kentucky, but the October 16 and 17 buys occurred at Goodwin’s
apartment. Id. at 5–8. Officer Hardcorn interviewed Goodwin after his arrest, and
Goodwin told the officer that Graham had supplied the cocaine on October 16 and 17.
Id. at 22. Officer Hardcorn testified that he did not actually know the origin of the drugs
for the four previous controlled buys and that none of the baggies for any of the buys
were ever tested for fingerprints. Id. at 24–25, 28–31, 40–41. Officer Andy Muse
testified that on October 16 he saw Graham drive to and enter Goodwin’s apartment after
the confidential informant arrived and then leave before the informant, and that on
October 17 he saw Graham once the police had entered Goodwin’s apartment but had
not observed Graham arrive. Doc. 123 (Trial Tr. #1 at 5–8, 12). Both officers testified
that the confidential informant did not obtain the drugs on October 16 or 17 until after

2
Agent Matthew Rolfsen testified that one ounce is approximately 28 grams. See Doc. 125 (Trial
Tr. #3 at 8).
No. 08-5993 United States v. Graham Page 9

Graham arrived at Goodwin’s apartment. Id. at 5–9; Doc. 124 (Trial Tr. #2 at 17–19).
Officer Hardcorn also testified that he heard Graham’s voice on the recordings from the
October 16 and 17 buys. Doc. 124 (Trial Tr. #2 at 47). Agent Matthew Rolfsen, an
evidence technician, testified about the evidence found at Goodwin’s apartment and
identified buy money found on the floor. Doc. 125 (Trial Tr. #3 at 12, 26–30).

Graham’s trial counsel cross-examined each government witness about his or her
potential biases and credibility issues, and the district court instructed the jury about how
to utilize co-conspirator and paid-informant testimony during Goodwin’s testimony and
after Payne testified, respectively. See Doc. 123 (Trial Tr. #1 at 34); Doc. 124 (Trial Tr.
#2 at 98). Graham stated on the record, outside the jury’s presence, that he understood
his right to testify and that he did not want to testify. Doc. 125 (Trial Tr. #3 at 55–56).

From our review of the entire trial transcript, we conclude that there was
sufficient evidence, viewed in the light most favorable to the government, from which
a reasonable jury could have found the essential elements of Counts One, Six, and Seven
beyond a reasonable doubt.

B. Denial of Graham’s Motion to Disregard Life Sentence

1. Impact of United States v. Hill

We review de novo a constitutional challenge to a sentence. United States v.
Jones, 569 F.3d 569, 573 (6th Cir. 2009). Graham argues that the district court erred
because his sentence, pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), is grossly
disproportionate under the Eighth Amendment as a result of an over-stated criminal
history and in comparison to his co-defendants’ sentences.3 Graham acknowledges this

3
In his motion, Graham’s counsel conceded that Graham had at least two prior felony drug
offenses and that the time period to collaterally attack those had passed under 21 U.S.C. § 851, but argued
that the district court should apply a California district court’s reasoning to reject the mandatory life
sentence as arbitrary, disproportionate, and likely unconstitutional as a violation of the Eighth Amendment,
Due Process Clause, and separation of powers concerns. Doc. 130 at 235–37 (Mot. to Disregard); Doc.
149 at 315–20 (Supplemental Mem. in Support). Counsel argued for a 168-month sentence, “a sentence
that is proportional to the conduct of the co-Defendants, Goodwin and Howard.” Doc. 130 at 237. On
appeal, Graham has not reasserted his Due Process Clause or separation of powers arguments, which raised
facial and as-applied challenges to the use of mandatory minimums under the Guidelines. The district
court did not address these arguments in its first order related to this motion, see Doc. 150 (July 31, 2008
Order at 2 n.2), but the court did reject these arguments, facially and as applied, on the record after
No. 08-5993 United States v. Graham Page 10

court’s decision in United States v. Hill that mandatory minimum sentences under
21 U.S.C. § 841(b)(1)(A)(iii) do not constitute cruel and unusual punishment. United
States v. Hill, 30 F.3d 48, 50–51 (6th Cir.), cert. denied, 513 U.S. 943, 513 U.S. 1025
(1994). Hill confirmed that this court adheres to the Supreme Court’s “‘narrow
proportionality principle’” announced in Harmelin v. Michigan, 501 U.S. 957 (1991),
stating that “the Eighth Amendment only prohibit[s] ‘extreme sentences that are “grossly
disproportionate” to the crime.’” Hill, 30 F.3d at 50 (quoting Harmelin, 501 U.S. at
995–97, 1001); Harmelin, 501 U.S. at 994–95 (“Severe, mandatory penalties may be
cruel, but they are not unusual in the constitutional sense . . . .”). Graham attempts to
distinguish Hill on the grounds that his sentence “was triggered by an over-represented
criminal history” rather than just the statute, and that the government did not present
direct evidence that he “possessed anything.” Appellant Br. at 23. These arguments do
not distinguish Hill. To uphold a mandatory life term without parole for a third-time
felony conspiracy-to-distribute offender responsible for 177.8 grams of cocaine base,
Hill relied upon Harmelin, in which the Supreme Court upheld the same sentence for a
first-time felony possession offender with 650 grams of cocaine. Hill, 30 F.3d at 50–51.
The Hill court neither considered the impact of the defendant’s two prior qualifying
felonies, except to note that they existed, id. at 49, nor remarked on whether the
defendant “possessed anything,”4 id. at 49–51.

We have repeatedly rejected claims similar to those that Graham raises. Caver,
470 F.3d at 247 (rejecting as meritless any Eighth Amendment claim that fails to
distinguish Hill). The fact that Graham’s current felony conviction is for conspiracy to
distribute in excess of fifty grams5 does not distinguish his case. See Hill, 30 F.3d at

argument at the sentencing hearing, Doc. 160 (Sent. Tr. at 7–17). The Ninth Circuit has vacated the district
court opinion upon which Graham relied. United States v. Grant, 524 F. Supp. 2d 1204 (C.D. Cal. 2007),
vacated in part, 312 F. App’x 39 (9th Cir.), cert. denied, 130 S. Ct. 370 (2009).
4
The Hill court did compare the drug quantity for which the defendant, Hickey, was found
responsible under the conspiracy-to-distribute charge to the drug quantity in the Harmelin possession
charge, Hill, 30 F.3d at 51, but the court did not discuss (even in the fact section) whether Hickey was
found to have possessed any part of the drug quantity involved.
5
The PSR stated that the conspiracy involved between 150 to 500 grams of cocaine base and used
this amount under the relevant-conduct provision to determine Graham’s base offense level. PSR at ¶¶ 25,
29, 35.
No. 08-5993 United States v. Graham Page 11

50–51 (same crime, with statement that defendant was responsible for 177.8 grams of
cocaine base); see also Jones, 569 F.3d at 573–74 (rejecting, under Hill, claim that ten-
year mandatory minimum under § 841(b)(1)(A)(iii) for one count of possession with
intent to distribute over fifty grams of cocaine base was grossly disproportionate);
United States v. Thornton, No. 08-3349, 2010 WL 489508, at *4 (6th Cir. Feb. 10, 2010)
(unpublished opinion) (citing cases and rejecting challenge because defendant’s
circumstances “(including the 72 kilograms of cocaine) are in line with these cited
cases” and “there is no reason to depart from our settled precedent”); United States v.
Nichols, No. 99-3108, 2000 WL 923807, at *2 (6th Cir. June 29, 2000) (unpublished
opinion) (relying on inability to distinguish Hill to reject claim for third felony drug
conviction of possession with intent to distribute 234.75 grams of crack).

Graham’s argument that his criminal history is “overrepresented” is more
troublesome.6 We have previously rejected the argument that the sentencing court
should have been able to consider mitigating factors related to the prior felony
convictions utilized as § 841(b)(1) predicates. See Jones, 569 F.3d at 574 (rejecting
argument that defendant with only one criminal-history point should not have received
statutory mandatory minimum, referencing first-time felon in Harmelin). The Harmelin
Court specifically rejected the defendant’s argument that a court must consider
mitigating factors before imposing a statutory mandatory minimum. Harmelin, 501 U.S.
at 994–95 (rejecting argument that the defendant’s lack of prior felonies should have
mitigated against imposing statutory mandatory minimum of life without parole based
on asserted need to determine individually whether punishment is appropriate under
Eighth Amendment). As “[w]e have held, . . . there is no constitutional right to
individualized sentencing in non-capital cases.” United States v. Odeneal, 517 F.3d 406,
415 (6th Cir. 2008); see also United States v. Jones, 205 F. App’x 327, 336–37 (6th Cir.
2006) (unpublished opinion) (rejecting argument that § 841(b)(1)(A) creates grossly

6
Because Graham’s trial counsel conceded that Graham could not collaterally attack his prior
felony convictions under the period of limitations in § 851, see Doc. 160 (Sent. Tr. at 4–5), we have
construed this Hill argument as claiming that the district court should have been able to consider the
circumstances of his criminal history as mitigating factors. We consider the greater implications of
Graham’s earliest prior felony conviction below.
No. 08-5993 United States v. Graham Page 12

disproportionate sentences because the statute does not distinguish between prior
possession-only felonies and more serious trafficking felonies), cert. denied, 551 U.S.
1109 (2007). “[T]here is no doubt that Congress has authority to limit judicial
discretion, or even eliminate it altogether, by imposing mandatory minimum sentences.”
United States v. Wimbley, 553 F.3d 455, 462–63 (6th Cir.), cert. denied, 129 S. Ct. 2414
(2009). Under Hill and Harmelin, we must conclude that the district court did not
violate the Eighth Amendment in rejecting the arguments Graham advanced in his
motion to disregard life sentence.7 However, the particular circumstance of Graham’s
earliest-in-time prior felony drug conviction presents a separate question.

2. § 841(b)(1) “Prior Convictions for a Felony Drug Offense”:
Committed as a Juvenile, but Convicted and Sentenced as an
Adult
Graham has only two prior felony drug convictions, both of which the district
court counted as triggering offenses for the § 841(b)(1)(A)(iii) mandatory life sentence.
In 1995, when Graham was seventeen, he pleaded guilty under an indictment charging
him as an adult for two counts of aggravated drug trafficking under Ohio law, and he
was sentenced (in 1996, but while still age seventeen) to one year of imprisonment. Two
years later, when Graham was nineteen, he was sentenced to two consecutive six-month
terms of imprisonment for two counts of trafficking in cocaine under Ohio law.
Graham’s counsel at sentencing in the instant case did not present much of an argument
to contest the district court’s ability to consider Graham’s 1995 aggravated trafficking
conviction as a triggering offense for § 841(b)(1)(A)(iii) sentencing purposes.8 And

7
Although our conclusion that Graham’s sentence is not grossly disproportionate obviates the
need to reach Graham’s comparative proportionality allegations, Jones, 569 F.3d at 574 (citing Harmelin,
501 U.S. at 1005), we would reject this argument under precedent. See Odeneal, 517 F.3d at 414–15
(rejecting similar claims under United States v. Layne, and distinguishing between codefendants); United
States v. Layne, 324 F.3d 464, 474 (6th Cir.) (“This Court has agreed [with the Supreme Court] that
comparative proportionality is not constitutionally mandated.”), cert. denied, 540 U.S. 888 (2003).
8
In the motion to disregard mandatory life sentence, Graham’s counsel “concede[d] that the
presentence report is correct in showing at least two previous felony drug offenses” and “concede[d] that
pursuant to 21 U.S.C. Section 851, the period of limitations has expired for collateral attack on those
convictions.” Doc. 130 (Mot. to Disregard at 2). Counsel “note[d] that on the initial conviction, the
Defendant was a juvenile and under applicable federal law, juvenile convictions are typically not counted
as prior felony convictions.” Id. at 3. But counsel did not challenge whether the 1995 conviction qualified
under § 841, arguing instead that “this Court is presented with the Hobson’s choice of imposing a
mandatory life sentence on a Defendant with two prior drug convictions that together required the
No. 08-5993 United States v. Graham Page 13

Graham’s arguments on appeal focused on the district court’s ability to utilize for
mitigation the minor nature of his two prior felonies and the fact that they occurred over
ten years prior to the sentencing in this case. But at oral argument the focus shifted to
whether § 841(b)(1)(A)(iii) supported the district court’s ability to consider in the
§ 841(b)(1)(A)(iii) calculus a conviction stemming from a juvenile action treated as adult
for prosecution and sentencing purposes under state law, and further whether this
practice is constitutional under the Eighth Amendment.

Because Graham failed to raise this constitutional challenge before the district
court, we review only for plain error.9 See United States v. Oliver, 397 F.3d 369, 377
(6th Cir. 2005); United States v. Murillo-Monzon, 240 F. App’x 43, 46 (6th Cir. 2007)
(unpublished opinion), cert. denied, 552 U.S. 1104 (2008). “To establish plain error, a
defendant must show (1) that an error occurred in the district court; (2) that the error was
plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and
(4) that this adverse impact seriously affected the fairness, integrity or public reputation
of the judicial proceedings.” United States v. Blackwell, 459 F.3d 739, 771 (6th Cir.
2006) (internal quotation marks omitted), cert. denied, 549 U.S. 1211 (2007). We have

Defendant to serve two years in prison; were imposed over 10 years ago and are clearly disproportionate
to the life sentence urged as mandatory by the presentence report in this case.” Id. The district court
accepted Graham’s concession and rejected Graham’s contention that his 1995 conviction could be
considered a juvenile adjudication because “as the Presentence Investigation Report indicates, while
Graham was initially charged as a juvenile, he was prosecuted and sentenced as an adult. Such treatment
forecloses any argument that this conviction should be ignored under § 841(b).” Doc. 150 (Dist. Ct. Op.
at 4). At the sentencing hearing, Graham’s counsel reiterated that Graham “objects to the two previous
felony convictions that are in the [PSR]” but that “as I’ve indicated, I have not seen any basis that would
allow me to move the Court to disallow or disregard those.” Doc. 160 (Sent. Tr. at 4).
9
We conclude that we may review this claim because Graham “simply failed to raise this issue
[in this posture] below, and took no affirmative steps to voluntarily waive his claim.” United States v.
Branham, 97 F.3d 835, 842 (6th Cir. 1996). Graham thus forfeited his right to full appellate review of this
claim, but we may review it for plain error. United States v. Olano, 507 U.S. 725, 733 (1993) (“Waiver
is different from forfeiture. Whereas forfeiture is the failure to make a timely assertion of a right, waiver
is the ‘intentional relinquishment or abandonment of a known right.’” (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938))); see United States v. Goodman, 519 F.3d 310, 319 (6th Cir. 2008) (“It is true that a
defendant may waive objections if he intentionally relinquishes or abandons a known right. In particular,
we agree . . . that an attorney cannot agree in open court with a judge’s proposed course of conduct and
then charge the court with error in following that course.” (internal quotation marks and alterations
omitted)); United States v. Blackwell, 459 F.3d 739, 770–71 (6th Cir. 2006) (reviewing defendant’s
constitutional claim for plain error when he failed to raise it in challenging his fine but did challenge the
fine on other grounds), cert. denied, 549 U.S. 1211 (2007); cf. United States v. Smith, 252 F. App’x 20,
31–32 (6th Cir. 2007) (unpublished opinion) (holding that failure to challenge whether prior felony drug
offense qualified for § 841 mandatory life term, and explicit concession at sentencing that it did qualify,
amounted to waiver precluding appellate consideration), vacated on other grounds for different defendant
by Townsend v. United States, 128 S. Ct. 2485 (2008).
No. 08-5993 United States v. Graham Page 14

held that “unconstitutional enhancements of sentences” affect substantial rights. United
States v. Milan, 398 F.3d 445, 452 (6th Cir. 2005).

We address the statutory challenge first, and we conclude that the statutory
language supported the district court’s ability to count Graham’s juvenile-age conviction
as a § 841(b)(1)(A)(iii) prior conviction. Section 841(b) provides in relevant part:

If any person commits a violation of this subparagraph . . . after two or
more prior convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment
without release and fined in accordance with the preceding sentence.

21 U.S.C. § 841(b)(1)(A). The Supreme Court has held that the definition of “felony
drug offense” in 21 U.S.C. § 802(44) controls as the “exclusive[]” definition for
purposes of § 841(b)(1)(A). Burgess v. United States, 553 U.S. 124, 127 (2008).
Although the Burgess Court decided this issue in reference to the twenty-year
mandatory-minimum provision, § 841(b)(1)(A) uses the same language in both the
twenty-year and the life-term mandatory-minimum provisions. See id. (rejecting
argument that sentencing courts should defer to state-law crime definitions). Under
§ 802(44), “[t]he term ‘felony drug offense’ means an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a State or
foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802. This circuit
used § 802(44) to define “felony drug offense” in § 841(b)(1) for purposes of the
mandatory life term even before the Supreme Court decided Burgess.10 United States
v. Spikes, 158 F.3d 913, 931–32 (6th Cir. 1998), cert. denied, 525 U.S. 1086 (1999); id.
at 932 (“[Section] 802(44) only requires that the state statute criminalize conduct
‘relating’ to drugs. The use of the expansive term ‘relating’ as the only substantive
limitation on the reach of the statutory phrase ‘felony drug offense’ clearly indicates that
the statute encompasses drug offenses that involve the simple possession of drugs.”).

10
This court has since cited Burgess in unpublished opinions for § 841(b)(1) definitions. See
United States v. Lockett, 359 F. App’x 598, 602–03 (6th Cir. 2009) (unpublished opinion) (defining
§ 841(b)(1)(B)); United States v. Young, 347 F. App’x 182, 189–90 (6th Cir. 2009) (unpublished opinion)
(defining § 841(b)(1)(A)).
No. 08-5993 United States v. Graham Page 15

Thus at the time of Graham’s sentencing the district court was obligated to employ the
§ 802(44) definition of “felony drug offense.”

However, whether a “prior conviction” stemming from a juvenile action, treated
as adult for prosecution and sentencing purposes under state law, that qualifies as a
“felony drug offense” under the § 802(44) definition qualifies as a “prior conviction” for
§ 841(b)(1)(A) mandatory minimum purposes remains an open question in this circuit.
In United States v. Young, an unpublished decision, the defendant argued that such an
offense could not qualify as a “prior conviction” under § 841(b)(1)(A), challenging one
of his predicate state convictions used on the ground that he received it “just under a
month before his eighteenth birthday.” United States v. Young, 347 F. App’x 182, 189
(6th Cir. 2009) (unpublished opinion), cert. denied, 130 S. Ct. 1552, 130 S. Ct. 1554
(2010). However, the state had tried and convicted the defendant “as an adult.” Id. The
Young panel stated that Burgess controlled for its interpretation of § 841(b)(1)(A), and
concluded:

We do not need to decide whether Congress intended this provision to
include convictions received by juveniles as a result of a juvenile
adjudication. Young was convicted as an adult in an adult court. He was
convicted of possessing drugs with the intent to distribute, and he was
eligible for fifteen years in prison. Thus, he was convicted of a felony
drug offense as defined by Congress.11

Id. at 190. In a footnote, the court rejected the defendant’s argument that the Sentencing
Guidelines, specifically U.S.S.G. § 4A1.2(c), indicate that juvenile convictions should
not be considered as prior offenses. The Young panel stated that,

putting to one side the difficulty of using a Guidelines definition to
determine the meaning of a term used in a statute, Young overlooks the
next subsection of the Guidelines. Section 4A1.2(d) provides that
convictions for offenses committed prior to age 18 are considered in

11
The Eleventh Circuit in an unpublished opinion has relied on the same rationale—that the
defendant “was actually charged and convicted as an adult”—to reject a defendant’s argument that a
conviction at age nineteen that could have qualified for youthful-offender status under state law was not
a triggering felony for § 841 under the Eighth Amendment. United States v. Williams, 364 F. App’x 546,
549 (11th Cir. 2010) (unpublished opinion).
No. 08-5993 United States v. Graham Page 16

sentencing if the defendant was convicted as an adult, and received a
sentence of imprisonment exceeding one year and one month.

Id. at 190 n.4.

For similar reasons, we conclude that the district court properly considered
Graham’s 1995 conviction in its § 841(b)(1)(A) mandatory-minimum calculus. 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, but to the extent that it is, age would
appear to matter if it was related to the process in which a defendant’s prior conviction
was obtained. Here, according to the PSR, Graham “was initially arrested and charged
as a juvenile, [but] he was prosecuted and sentenced as an adult.” PSR ¶ 44. He was
indicted by a grand jury on four counts of Aggravated Trafficking under Ohio law, a
felony. He pleaded guilty to two counts of an amended charge of “Trafficking-Sale,”
a fourth-degree felony, in the Hamilton County Court of Common Pleas, and he was
sentenced to one year of confinement for each count. Id. Graham’s 1995 conviction
thus meets the definition of a “felony drug offense” under § 802(44), “an offense that is
punishable by imprisonment for more than one year under any law . . . of a State . . . that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.”12 21 U.S.C. § 802. Contrary to Graham’s
argument, we are bound to utilize the definition in § 802(44) as the exclusive definition
for “felony drug offense” in § 841. Burgess, 553 U.S. at 127, 132–33. Moreover, the
Supreme Court in Burgess stated that § 802(44) is not ambiguous and does not implicate
the rule of lenity in its application. Id. at 135–36 (holding that Congress’s express
definition of “felony drug offense” “is coherent, complete, and by all signs exclusive”
leaving “no ambiguity for the rule of lenity to resolve”). “Section 802(44)’s definition
of ‘felony drug offense’ as ‘an offense . . . punishable by imprisonment for more than
one year,’ in short, leaves no blank to be filled by § 802(13) or any other definition of

12
Graham has never challenged whether his 1995 conviction technically met the “felony drug
offense” definition based on the length of the potential term of imprisonment, and the PSR does not state
the Ohio drug-trafficking law under which he was convicted. We presume that Graham was convicted of
violating a provision of Ohio Revised Code Annotated § 2925.03 and that the state sentencing court had
the discretion to sentence Graham to a term of imprisonment of more than one year. See OHIO REV. CODE
ANN. §§ 2925.03, 2929.13(C).
No. 08-5993 United States v. Graham Page 17

‘felony.’” Id. at 130. The Court stated that “[b]y recognizing § 802(44) as the exclusive
definition of ‘felony drug offense,’ our reading serves an evident purpose of the 1994
revision [to § 841]: to bring a measure of uniformity to the application of § 841(b)(1)(A)
by eliminating disparities based on divergent state classifications of offenses.” Id. at
134. To have a “prior conviction” of a “felony drug offense” is not defined in § 841 or
in § 802; “[w]hen a term is undefined, we give it its ordinary meaning.” United States
v. Santos, 553 U.S. 507, 128 S. Ct. 2020, 2024 (2008). BLACK’S LAW DICTIONARY (9th
ed. 2009) defines “conviction” in part as “[t]he act or process of judicially finding
someone guilty of a crime; the state of having been proved guilty,” and as “[t]he
judgment (as by a jury verdict) that a person is guilty of a crime.” WEBSTER’S THIRD
INTERNATIONAL DICTIONARY (1986) defines “conviction” in part as “the act of proving,
finding, or adjudging a person guilty of an offense or crime . . . ; specif: the proceeding
of record by which a person is legally found guilty of any crime esp. by a jury and on
which the judgment is based.”
No. 08-5993 United States v. Graham Page 18

Unlike the defendants in our sister circuits’ cases addressing this issue,13 Graham
was not adjudicated in the juvenile system. Under Ohio law, a person who was a
“child”—under age eighteen—at the time he or she committed an offense must be placed
under the exclusive jurisdiction of the juvenile courts, but may be bound over to a court

13
Our sister circuits confronting similar questions have produced opinions indicating that
sentencing courts may utilize prior juvenile convictions for § 841(b)(1)(A) purposes. We cite these cases
only as background in other circuits and do not evaluate or express our opinion regarding them.
In the most recent published decision, the D.C. Circuit held that a prior felony drug conviction
that was “set aside” under the Federal Youth Corrections Act was still a countable prior conviction for a
§ 841(b)(1)(A) mandatory life term. United States v. Law, 528 F.3d 888, 910–11 (D.C. Cir. 2008), cert.
denied, 129 S. Ct. 1023 (2009). The court held that any policy reasons for setting aside a juvenile
conviction—to give the offender “a fresh start”—were not sufficient to avoid the clear mandate of
§ 841(b). Id. “For purposes of sentences imposed under § 841, however, Congress has not exempted from
the ‘prior convictions’ that must be counted those convictions removed from a criminal record for policy
reasons unrelated to innocence or an error of law.” Id. at 911 (citing cases from the Second, Third, Fourth,
Fifth, Seventh, Ninth, and Eleventh Circuits that “therefore have counted prior felony drug convictions
even where those convictions had been set aside, expunged, or otherwise removed from a defendant’s
record for such reasons,” although only the Second and Eleventh Circuits explicitly dealt with juvenile-age
prior offenses); see also United States v. Smith, 897 F.2d 1168, 1990 WL 27146 (D.C. Cir. 1990)
(unpublished opinion) (upholding § 841(b)(1)(A) enhancement using prior drug offense conviction for
which defendant received probation under the D.C. Youth Rehabilitation Act because conviction qualified
as “final” under statute, and citing, inter alia, Tuten v. United States, 460 U.S. 660 (1983) (Federal Youth
Corrections Act probation sentence can enhance subsequent sentence for same offense)).
The Second Circuit has held that a conviction replaced by a youthful-offender adjudication under
state law may qualify as a prior felony drug conviction for a § 841(b)(1)(A) mandatory minimum if the
defendant was “[1] tried and convicted [2] in an adult court [3] of adult drug offenses [4] punishable by
imprisonment for more than one year.” United States v. Jackson, 504 F.3d 250, 253 (2d Cir.) (applying
United States v. Sampson, discussed below, to apply ten-year mandatory minimum), cert. denied, 552 U.S.
1055 (2007); accord United States v. DeJesus, 314 F. App’x 386, 389 (2d Cir. 2009) (unpublished order)
(applying Jackson to twenty-year mandatory minimum). And both the Second and Eleventh Circuits have
held that § 841(b)(1)(A)’s twenty-year mandatory minimum enhancement could be based on prior felony
drug convictions adjudicated under the New York youthful-offender statute and replaced by a “youthful
offender” finding on criminal records, even if the defendant was adjudicated as a juvenile. United States
v. Sampson, 385 F.3d 183, 194–95 (2d Cir. 2004), cert. denied, 544 U.S. 924 (2005); United States v.
Acosta, 287 F.3d 1034, 1036–38 (11th Cir.), cert. denied, 537 U.S. 926 (2002). In each case, the court
seemed more influenced by the fact that the defendant was a repeat offender than by the fact that the prior
conviction was for an offense committed while a juvenile. The Second Circuit noted that youthful-
offender convictions have become “final,” and that, consistent with the definition of “felony drug offense”
in § 802(44), the defendant at issue was “[i] tried and convicted [ii] in an adult court [iii] of adult drug
‘offense[s] . . . [iv] punishable by imprisonment for more than one year[]’; [v] he served his sentence in
an adult institution; and [vi] no avenue for direct appeal exists.” Sampson, 385 F.3d at 194–95 (quoting
21 U.S.C. § 802(44)) (alterations in original). The Eleventh Circuit held that, consistent with the purposes
of § 841, a guilty plea to a felony drug offense at age sixteen that was adjudicated under the New York
youthful-offender law was a “conviction” that could be used to enhance the defendant’s sentence for a drug
conviction thirteen years later—in the same way that pleas of nolo contendere could be utilized for
“convictions” even though the defendants were never adjudicated as “guilty”—despite the fact that a
youthful-offender defendant was not considered convicted under state law. Acosta, 287 F.3d at 1036–38.
The Second and Seventh Circuits were recently presented with the question we now face, but in
a posture that obviated the need to decide it. See United States v. Deandrade, 600 F.3d 115, 120 (2d Cir.)
(rejecting challenge to district court’s consideration of drug-related juvenile adjudication to trigger
§ 841(b)(1)(A) twenty-year mandatory minimum because Guidelines-range sentence imposed exceeded
statutory sentence such that neither juvenile adjudication nor § 841 contributed to sentence), cert. denied,
130 S. Ct. 2394 (2010); United States v. Williams, 339 F. App’x 654, 658–59 (7th Cir. 2009) (unpublished
order) (concluding that defendant had no basis on which to challenge his twenty-year mandatory minimum
sentence because, although he had a juvenile conviction, he had “successfully avoided the life sentence
by persuading the district court that one of his previous drug convictions should not count because it was
a juvenile conviction obtained in a process that did not guarantee a jury trial”).
No. 08-5993 United States v. Graham Page 19

of common pleas other than the juvenile court to be prosecuted as an adult. See OHIO
REV. CODE ANN. §§ 2152.03, 2152.1214; State v. Wilson, 652 N.E.2d 196, 198–99 (Ohio
1995); State v. West, 856 N.E.2d 285, 288–89 (Ohio Ct. App.), appeal denied, 857
N.E.2d 1230 (Ohio 2006). Graham has not contended that this procedure was not
properly complied with for his 1995 conviction, and we will thus presume that it was.
See Wilson, 652 N.E.2d at 199 (holding that failure to comply with bindover procedure
strips the court of common pleas of subject-matter jurisdiction over juvenile offender
and that a lack of jurisdiction makes the judgment of conviction “void ab initio”).
Graham was clearly prosecuted as an adult, he pleaded guilty, and he was “convicted”
of a felony drug offense under Ohio law.

For this reason, we decline to consider whether the express inclusion of juvenile-
deliquency adjudications in the calculus of prior convictions for the Armed Career
Criminal Act (“ACCA”), see 18 U.S.C. § 924(e), should influence the interpretation of
§ 841(b)(1)(A) in this case.15 Graham’s 1995 conviction was an adult conviction, not
a juvenile-delinquency adjudication. We decline to express any opinion on whether a
juvenile-delinquency adjudication should qualify as a “felony drug offense” for
§ 841(b)(1)(A) mandatory-minimum purposes, and this remains an open question in this

14
Ohio Rev. Code Ann. § 2152.03 is a recodification of § 2151.25, which was in effect at the time
of Graham’s 1995 conviction; § 2152.12 is a recodification of § 2151.26. Neither statute has been
amended in a way that is material here.
15
This circuit has rejected the argument that a first-offender status adjudication resulting in a
sentence of probation is not a “prior conviction for a felony drug offense [that] has become final” for § 841
purposes. See United States v. Miller, 434 F.3d 820, 824 (6th Cir.) (upholding twenty-year mandatory
minimum sentence), cert. denied, 547 U.S. 1086 (2006). Although Miller did not involve a juvenile-age
first-offender adjudication, our reasoning mirrors that of our sister circuits, see supra n.13, who have
addressed that issue:
As the court noted in [United States v.] Petros, [747 F. Supp. 368 (E.D. Mich. 1990),
cited with approval in United States v. Hughes, 924 F.2d 1354 (6th Cir. 1991),] the
policy behind state first-offender provisions and similar alternative sentencing statutes
is “to allow first offenders, who are often youthful, an opportunity to straighten
themselves out on the road of life without the baggage of a drug conviction on their
record” and is meant “as an incentive to learn a lesson . . . [but] is clearly not meant to
provide them with a technical legal advantage if, not having learned a lesson, they
continue their criminal conduct.” 747 F. Supp. at 376. In the wake of continued
criminal conduct, first-offender sentences are considered “prior offenses” under § 841
that become “final” at the point at which they are no longer appealable.
Miller, 434 F.3d at 824.
No. 08-5993 United States v. Graham Page 20

circuit.16 We note that both the juvenile-delinquency language in the ACCA and the
mandatory-life-term language in § 841(b)(1)(A) were added as part of the Anti-Drug
Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, interestingly enough in
consecutive sections, § 6451 and § 6452, respectively. Sections 6451 and 6452 were
both part of “Subtitle N – Sundry Criminal Provisions.” The close proximity of the two
sections, and the express inclusion of juvenile delinquency in the ACCA with no
corresponding amendment to § 841(b)(1)(A), could support an argument that juvenile-
delinquency adjudications were not intended to be counted for § 841(b)(1)(A)
mandatory-minimum purposes, but we are not presented with that issue in the instant
case.

The Sentencing Guidelines’ treatment of adult sentences imposed for offenses
committed prior to a defendant’s eighteenth birthday for criminal history purposes also
does not influence our interpretation of the plain statutory language at issue here. We
acknowledge that Graham’s 1995 conviction did not add any criminal history points to
the Guidelines calculation in his PSR because he was released from confinement more
than five years prior to the instant offense, which reflected a proper interpretation of
U.S.S.G. § 4A1.1, Application Note 2, and § 4A1.2(d), Application Note 7. However,
only the temporal limits in § 4A1.2 saved Graham’s 1995 conviction from fitting the
definition of a prior conviction under the career-offender enhancement in § 4B1.1, which
counts only prior adult felony convictions but classifies as an “adult conviction[]” “[a]
conviction for an offense committed prior to age eighteen . . . if it is classified as an adult
conviction under the laws of the jurisdiction in which the defendant was convicted.”
U.S.S.G. § 4B1.2, cmt. n.1; see United States v. Prado, 228 F. App’x 542, 547–48 (6th

16
The Third Circuit has distinguished § 841(b) from the ACCA, holding that a juvenile-
delinquency adjudication in juvenile court five years prior to the instant § 841(a) offense did not qualify
as a felony drug offense “prior conviction” under the ten-year mandatory minimum in § 841(b)(1)(B).
United States v. Huggins, 467 F.3d 359, 360–62 (3d Cir. 2006). The court distinguished the Second and
Eleventh Circuits’ opinions in Sampson and Acosta, respectively, because unlike the state-law procedures
in those cases, Pennsylvania’s juvenile-adjudication procedures did not “follow[] an adult conviction in
an adult court, with the full panoply of procedural protections that come with the latter.” Id. at 362. The
court further relied on the fact that the clear language incorporating juvenile-delinquency adjudications
as prior convictions under the ACCA was not included in § 841(b)(1)(B) and “it is clear that an
adjudication of delinquency [under Pennsylvania law] is not the same as an adult conviction.” Id. at
361–62.
No. 08-5993 United States v. Graham Page 21

Cir. 2007) (unpublished opinion). Unlike the Guidelines, § 841(b)(1)(A) does not
include a temporal limit. Both the Eighth and Eleventh Circuits have indicated that this
absence of a temporal limit suggests that no such limit should be imposed in its
application. See United States v. Hudacek, 24 F.3d 143, 146 (11th Cir. 1994) (rejecting
challenge to mandatory life term imposed with twenty-year-old prior conviction and
attempted analogy to U.S.S.G. § 4A1.2); see also United States v. Johnston, 220 F.3d
857, 862 n.4 (8th Cir. 2000) (citing Hudacek to reject argument that all pre-1988 prior
felonies are precluded from § 841 based on lack of notice at time of priors); United
States v. Watson, 332 F. App’x 341, 342–43 (8th Cir. 2009) (unpublished opinion)
(holding prior conviction less than fifteen years old not too dated for § 841, referencing
career-offender time limits in U.S.S.G.); United States v. Tyree, 273 F. App’x 830, 833
(11th Cir. 2008) (unpublished opinion) (holding prior conviction more than ten years old
not precluded from consideration under § 841, rejecting under plain error Fed. R. Evid.
609(b) argument). As the Seventh Circuit has stated,

Prior convictions that affect minimum sentences are not treated like
“criminal history” under the Sentencing Guidelines, which both before
and after Booker affects the presumptive sentencing range without
establishing a floor. Recidivist provisions do set floors, and judges must
implement the legislative decision whether or not they deem the
defendant’s criminal record serious enough; the point of such statutes is
to limit judicial discretion rather than appeal to the court’s sense of
justice.

United States v. Canon, 429 F.3d 1158, 1160 (7th Cir. 2005) (affirming conviction, but
vacating and remanding with instructions to impose life sentence). “[W]hether or not
[the Sentencing Commission’s] method would be preferable for the statute and Guideline
alike, it has no authority to override the statute as [the Supreme Court] ha[s] construed
it.”17 Neal v. United States, 516 U.S. 284, 294 (1996); see United States v. Branham,
97 F.3d 835, 845 (6th Cir. 1996) (“[O]ur deference to the Commission’s commentary
ceases once we find that such commentary, and the interpretation therein, contravenes
federal law.” (citing Neal, 516 U.S. at 289, 293–94)).

17
We note that the Supreme Court in Burgess did not opine on the use of the Sentencing
Guidelines in defining what offenses constitute a “felony drug offense” for § 841(b)(1)(A).
No. 08-5993 United States v. Graham Page 22

In the absence of a new Supreme Court precedent or congressional enactment to
the contrary, see Neal, 516 U.S. at 295, we conclude that, under Supreme Court
precedent and the plain language of the statute, a sentencing court imposing a mandatory
minimum under § 841(b)(1)(A) must utilize the “felony drug offense” definition in
§ 802(44) with reference to the state law of conviction. Here, the state chose to
prosecute Graham for an adult drug offense that qualifies as a felony under state law, and
we will not second-guess the state’s decision. Because Graham was prosecuted and
convicted of an adult drug offense that qualified as a felony under state law, the
sentencing court did not commit plain error by considering Graham’s 1995 conviction
as a prior felony drug offense for § 841(b)(1)(A) mandatory-minimum purposes.

We also are not persuaded that this approach violates the Eighth Amendment.
After oral argument and supplemental briefing in this case, the Supreme Court decided
Graham v. Florida, — U.S. —, 130 S. Ct. 2011 (2010), in which the Court held that it
was unconstitutional to impose life imprisonment without parole as the punishment for
a nonhomicide offense committed by a juvenile, accepting a categorical challenge to “a
particular type of sentence as it applies to an entire class of offenders who have
committed a range of crimes.” Id. at 2022–23. The defendant in the instant case,
however, was an adult at the time he committed the § 841 offense for which he received
the mandatory life term, and we have applied the non-categorical, circumstance-specific
approach of Harmelin to § 841(b)(1) sentences. See Hill, 30 F.3d at 50–51; cf. Graham,
130 S. Ct. at 2023 (explaining the difference between the circumstance-specific approach
applied to term-of-years sentences as in Harmelin and the categorical approach applied
to death sentences, stating that “in addressing the question presented, the appropriate
analysis is the one used in cases that involved the categorical approach, specifically,
Atkins, Roper, and Kennedy”). As the Eleventh Circuit has noted, Graham “did not
undermine Harmelin insofar as adult offenders are concerned.” United States v. Farley,
607 F.3d 1294, 1342 n.34 (11th Cir. 2010) (holding that Graham did not affect the
defendant’s thirty-year mandatory minimum child-pornography sentence because the
defendant was an adult at the time he committed the instant offense). The instant
defendant is not similar to the situation that the Supreme Court addressed in
No. 08-5993 United States v. Graham Page 23

Graham—he is not a “juvenile offender” for purposes of the punishment he received in
the instant case. See Graham, 130 S. Ct. at 2030 (stressing that its holding applies to
“those who were below [eighteen] when the offense was committed”). We express no
opinion on whether Graham would support finding unconstitutional a mandatory life
term under § 841(b)(1) for a third-time juvenile felony offender. See United States v.
Scott, — F.3d —, No. 09-2577, 2010 WL 2650709, *7 (8th Cir. July 6, 2010) (“The
Court in Graham did not call into question the constitutionality of using prior
convictions, juvenile or otherwise, to enhance the sentence of a convicted adult.”
(emphasis added)).

The Eighth Circuit has rejected an Eighth Amendment challenge similar to the
one presented here, concluding that the defendant’s two prior juvenile-age felony drug
offenses, for which the defendant was tried and convicted as an adult, may be utilized
for both triggering prior felony drug offenses for a § 841(b)(1)(A) mandatory life term
imposed for a later adult offense. Id. at *7. The Scott court rejected both a gross
proportionality argument under Harmelin and an argument that recent Supreme Court
precedents relating to juveniles extended to § 841 sentences under Roper v. Simmons,
543 U.S. 551 (2005), and Graham because “[n]either . . . involved the use of prior
offenses committed as a juvenile to enhance an adult conviction, as here.” Scott, 2010
WL 2650709, *7. The Eighth Circuit distinguished Graham and Roper because the
defendant did not receive the mandatory life term for the offenses he committed while
a juvenile, but rather for the offense that he committed as an adult. Id. The Fifth Circuit
has also upheld the constitutionality of using an adult conviction for a drug offense
committed while a juvenile to impose the mandatory life sentence enhancement in
§ 841(b)(1)(A). United States v. Mays, 466 F.3d 335, 339–40 (5th Cir. 2006), cert.
denied, 549 U.S. 1234 (2007). Mays was convicted of violating § 841(a) and (b)(1)(A),
and he objected to the sentencing court’s use of a state narcotics conviction from 1992
when he was seventeen, although he had been tried as an adult. Id. at 339. On appeal,
Mays argued that using this juvenile-age offense violated the Eighth Amendment under
Roper, which held that the Eighth and Fourteenth Amendments prohibit imposing the
death penalty on offenders who were under the age of eighteen at time of their offense.
No. 08-5993 United States v. Graham Page 24

The Fifth Circuit rejected this argument, finding that Mays “has not proffered any
evidence of a national consensus that sentencing enhancements to life imprisonment
based, in part, on juvenile convictions contravene modern standards of decency,” and
noting that federal sentences often allow enhancements based on juvenile offenses. Id.
at 340 (citing U.S.S.G. § 4A1.2(d)(2)).

Graham has not provided us with any information to suggest that we should not
adopt the reasoning of our sister circuits and reject this further Eighth Amendment
challenge. Indeed, Graham did not even attempt to rely upon the categorical reasoning
in Roper—a case readily available to him at each level of appeal—and we do not believe
that the approach of Roper or Graham v. Florida extends to the situation here.18
Graham did not commit the instant offense while a juvenile with the “lessened
culpability” that would caution us to believe that he is “less deserving of the most severe
punishments.” Graham, 130 S. Ct. at 2026 (citing Roper, 543 U.S. at 569); see also id.
at 2040 (Roberts, C.J., concurring in the judgment) (“Graham’s age places him in a
significantly different category from the defendants in Rummel, Harmelin, and Ewing,
all of whom committed their crimes as adults.”). This is not a situation where the state
failed to offer a juvenile defendant “some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation,” id. at 2030 (majority opinion), or where
a juvenile was “deprived of the opportunity to achieve maturity of judgment and self-
recognition of human worth and potential,” id. at 2032; instead, Graham was twice
convicted of felony drug offenses and he re-offended thereafter, a situation in which
Congress has determined that a defendant should receive a sentence of life without
parole. Further, it is not clear that the Supreme Court would apply the categorical
analysis utilized in Graham to the situation presented here—the use of an adult
conviction resulting from a juvenile-age offense to enhance the punishment for an adult-
age offense to life without parole, especially in light of Harmelin, upholding a sentence
of life without parole for a first-time adult offender possessing 650 grams of cocaine.

18
We note that Graham has not filed a Federal Rule of Appellate Procedure 28(j) letter to request
that we consider and apply Graham v. Florida here.
No. 08-5993 United States v. Graham Page 25

If we are wrong in our interpretation of binding precedent, we hope that the Supreme
Court will correct us.

Graham has not asserted any additional arguments not rejected above to contend
that applying § 841(b)(1)(A) to juvenile-age offenses prosecuted and convicted as adult
proceedings violates the Eighth Amendment.19 For the reasons stated above, we
conclude that Graham’s sentence under § 841(b)(1)(A)(iii) is not unconstitutional.

C. Reasonableness of Graham’s Life Sentence

Graham argues that the district court’s decision to impose a life sentence was
substantively unreasonable because he asserts that the district court “failed to consider
fully the sentencing factors outlined in § 3553(a) as they apply to [him].” Appellant Br.
at 30; see United States v. Moon, 513 F.3d 527, 543 (6th Cir.) (outlining substantive
errors), cert. denied, 128 S. Ct. 2493 (2008). Although Graham did not object explicitly
on this ground at sentencing, we review all substantive arguments for abuse of discretion
and reasonableness, affording a rebuttable presumption of reasonableness to a properly
calculated, within-Guidelines sentence. United States v. Vonner, 516 F.3d 382, 389–90
(6th Cir.) (en banc), cert. denied, 129 S. Ct. 68 (2008). Graham concedes that his
sentence is within the Guidelines range and entitled to a reasonableness presumption
under Vonner, and we conclude that his substantive unreasonableness argument fails.
“Even assuming that the district court abused its discretion in sentencing [Graham],
remand is inappropriate. [Graham] was sentenced pursuant to a statutory mandatory

19
Although Graham did not raise arguments under any other provisions of the Constitution, we
note that the Tenth Circuit has rejected an argument that, because the states treat juvenile records
differently, the use of the defendant’s two adult convictions for juvenile-age offenses to trigger a
mandatory life term under § 841(b)(1)(A) violates the Equal Protection Clause. United States v.
McKissick, 204 F.3d 1282, 1300–02 (10th Cir. 2000). The court reasoned that “Congress intentionally left
certain aspects of the § 841 enhancements to be triggered by the laws of the states,” that under the
§ 802(13) definition of “felony” tied to state classifications the two Oklahoma felonies could trigger a
§ 841 mandatory life term, and that the states’ differing criteria for when to charge a juvenile as an adult
did not render § 841 an irrational sentencing scheme. Id. at 1301. Furthermore, because the defendant
“was convicted as an adult,” the potential different treatment between states in unsealing juvenile records
was irrelevant. Id. at 1301. The Tenth Circuit had previously rejected a defendant’s ability to contest the
validity of a triggering prior felony drug offense used for a mandatory life term under the plain language
of § 851—disallowing any collateral attack on the validity of a prior conviction “‘which occurred more
than five years before the date of the information alleging such prior conviction’”—even though the
defendant argued that the prior conviction “was presumptively invalid because he was a juvenile at the
time of the crime and the conviction.” United States v. Green, 175 F.3d 822, 834–35 & n.7 (10th Cir.)
(quoting 21 U.S.C. § 851(e)), cert. denied, 528 U.S. 852 (1999).
No. 08-5993 United States v. Graham Page 26

minimum such that on remand, ‘the district court would not have the discretion to
impose a shorter term of imprisonment.’” United States v. Higgins, 557 F.3d 381, 397
(6th Cir.) (quoting United States v. Smith, 419 F.3d 521, 532 (6th Cir. 2005)), cert.
denied, 130 S. Ct. 817 (2009); id. at 398 (same conclusion for substantive
reasonableness). Even if we construed Graham’s appeal to challenge the 168-month
sentence imposed for Count Six, we would conclude that it is reasonable. Id. at 397
(rejecting reasonableness arguments to non-mandatory-minimum sentences because term
concurrent to mandatory life sentence and remand could not alter sentence). Our
independent review of the sentencing transcript did not reveal any errors.

II. CONCLUSION

The government presented sufficient evidence at trial for a reasonable jury to find
beyond a reasonable doubt that Graham was guilty of the offenses charged, and the
district court did not err in denying Graham’s motions for a judgment of acquittal. The
district court also did not err in denying Graham’s motion to disregard life sentence and
did not commit plain error in utilizing Graham’s 1995 adult conviction for an offense
committed while a juvenile, but prosecuted and sentenced in an adult proceeding, as a
triggering prior felony-drug-offense conviction under 21 U.S.C. § 841(b)(1)(A).
Applying state law and the definition of “felony drug offense” in 21 U.S.C. § 802(44),
we conclude that Graham’s 1995 offense was an adult conviction of an offense
punishable by more than one year of imprisonment under state law that prohibits conduct
relating to drugs, which satisfies the prerequisites to be counted as a triggering offense
for a § 841(b)(1)(A) mandatory-minimum sentence. We are also unpersuaded by
Graham’s Eighth Amendment challenge. And we conclude that Graham’s further
sentencing appeal is without merit because the district court did not err in imposing
Graham’s statutory mandatory minimum life sentence. We therefore AFFIRM the
district court’s judgment under the facts of this case and current precedent.
No. 08-5993 United States v. Graham Page 27

_________________

DISSENT
_________________

MERRITT, Circuit Judge, dissenting. My view in this case of first impression
in this Circuit is that the sentencing of this nonviolent, 30-year-old petty drug trafficker
to life imprisonment by using a juvenile conviction as a necessary third strike not only
violates clear congressional intent revealed by clear rules of statutory construction but
also violates sound principles of penological policy based on the Eighth Amendment
values recently outlined by the Supreme Court in Graham v. Florida, 130 S. Ct. 2011
(2010). I would have preferred that my colleagues in the majority acknowledge and
address the arguments made here against the use of a juvenile conviction to send this
nonviolent drug offender to prison for life. Instead they have chosen to ignore those
arguments. I leave it to the readers to determine for themselves the usefulness and
credibility of this kind of appellate decision making.

Three canons of statutory construction apply here. It is a well settled canon of
statutory construction that when interpreting statutes, “[t]he language of the statute is the
starting point for interpretation, and it should also be the ending point if the plain
meaning of that language is clear.” United States v. Choice, 201 F.3d 837, 840 (6th
Cir.2000) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)).
With respect to the question presented here, I find the statutory language to be
unambiguous. The plain language of the statute used to imprison Graham for life simply
does not mention using juvenile convictions as predicate “prior felonies,” and we should
not read such an interpretation into the statute. There is no indication; and, as will be
demonstrated below, the indication is to the contrary, that Congress intended to endorse
the use of juvenile convictions in this statute to enhance a defendant’s sentence.
No. 08-5993 United States v. Graham Page 28

1. In pari materia

In this case we are interpreting one statute with two immediately adjacent
sections that enhance the punishment for two separate federal crimes. The first section
amends the “career criminal” statute dealing with violent felonies, 18 U.S.C § 924(e),
and it says expressly that the punishment for violent, career criminal conduct must be
increased by using convictions for juvenile conduct. The second section amends the
drug law, 21 U.S.C. § 841(b)(1)(A); and, contrary to the first section, this section says
only that the punishment must be increased to life imprisonment for three or more
“convictions.” Unlike the career criminal section immediately above it, the drug
enhancement section does not specify the use of juvenile convictions.1 Courts in three
circuits have recognized the pari materia principle as an appropriate method of
interpreting these two provisions in the statute distinguishing between the use of prior
juvenile convictions. United States v. Huggins, 467 F.3d 359, 361 & n.2 (3d Cir. 2006);
United States v. Peyton, No. 10-015 (RMC), — F. Supp. 2d —, 2010 WL 2308186
(D.D.C. June 10, 2010); United States v. Ivory, No. 04-20044-01-KHV, 2010 WL
1816236, at *3 & n.3 (D. Kan. Feb. 26, 2010).

1
The statutory amendments read as follows in pertinent part:
SEC. 6451. VIOLENT FELONIES BY JUVENILES
Section 924(e) [Career Criminal Act] of title 18, United States Code, is amended . . .
(2) by adding at the end thereof the following:
“(C) the term ‘conviction’ includes a finding that a person has
committed an act of juvenile delinquency involving a violent felony.”
SEC 6452. LIFE IN PRISON FOR THREE-TIME DRUG OFFENDER.
(a) PENALTY FOR THIRD OFFENSE — Section 401(b)(1)(A) of the Controlled Substances
Act (21 U.S.C. 841(b)(1)(A)) is amended —
(1) in the sentence beginning “If any person commits” by striking “one or more
prior convictions” through “have become final” and inserting “a prior conviction for a
felony drug offense has become final”; and
(2) adding after such sentence the following: “If any person commits a
violation of this subparagraph . . . after two or more prior convictions for a felony drug
offense have become final, such person shall be sentenced to a mandatory term of life
imprisonment without release and fined in accordance with the preceding sentence.
Anti-Drug Abuse Act, Pub. L. No. 100-690, §§ 6451-52, 102 Stat. 4371 (1988).
No. 08-5993 United States v. Graham Page 29

Statutes are considered to be in pari materia when they relate to the same person
or thing, to the same class of persons or things, or have the same purpose or object. Each
section of a law which deals with the same subject matter must be read in pari materia
with other sections on the same subject. Norman J. Singer, 2A Statutes and Statutory
Construction § 51.3 (2000 ed.). Obviously, language is in pari materia when in the very
same statute in paragraphs placed next to each other. In view of Congress’ failure to
include in § 841 a definition of “prior conviction” that specifically includes convictions
obtained when the defendant was a juvenile, I would rely on the canon of statutory
construction that states: “[I]t is generally presumed that Congress acts intentionally and
purposely when it includes particular language in one section of a statute but omits it in
another.” Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338 (1994) (quoting Keene Corp.
v. United States, 508 U.S. 200, 208 (1993)); see also Norman J. Singer, 3B Statutes and
Statutory Construction § 75.4 (2000 ed.). This distinction between two statutory
amendments passed at the same time in adjacent sections shows that Congress knew how
to include a juvenile conviction when it wanted to. See Pub. L. No. 100-690, § 6451,
102 Stat. 4181, 4371 (1988).

My position is simply that the two adjacent sections of the same statute invoke
an ancient, sensible, common law canon of statutory construction and must be read in
pari materia.2 Thus by specifically including juvenile convictions in the first
enhancement for violent career criminals but leaving it out in the next section dealing
with drugs, the statutory drafters did not intend to allow juvenile conduct resulting in a
conviction to be used to enhance the punishment to life imprisonment, as my colleagues
insist. I think the pari materia canon is clear and leads to a clear result of no increased
penalty based on juvenile conduct.

Upon a moment’s reflection, the reason Congress chose to treat juvenile
convictions differently in the statute becomes obvious. Congress made the distinction
because a pattern of violent conduct involving the use of force is more culpable than a

2
See extensive discussion and acceptance of this principle in United States v. Freeman, 441 U.S.
(3 HOW) 641, 643-44 (1845) (discussing older English cases) (“all acts in pari materia are to be taken
together as if they were one law”).
No. 08-5993 United States v. Graham Page 30

pattern of nonviolent sales of drugs that may be, as here, relatively minor in nature. The
recent Supreme Court case of Johnson v. United States, 130 S. Ct. 1265 (2010),
reinforces this view by making it clear that the conduct underlying the recidivist
enhancements of the career criminal provision must be violent and involve the use of
significant force rather than a mild form of battery. That is the “context” of the two
different adjacent provisions – the one including juvenile convictions, the other
excluding them – and as the Johnson case states quite logically, in statutory construction,
“ultimately, context determines meaning . . . .” Id. at 1270 (citing Jarecki v. G.D. Searle
& Co., 367 U.S. 303, 307 (1961). If so, the “context” of the two different adjacent
penalties means that juvenile convictions should not be used to enhance penalties under
the drug statute.

“Context” is also the reason that a few cases have allowed the use of juvenile
convictions in drug cases. In these cases, the court was not informed of the fact that the
enacting statute contained, side by side, the two different penalty provisions. Counsel
for the defendant did not inform the courts of this crucial fact, and the Department of
Justice did not disclose it either. Perhaps we should not be too critical of the courts for
not discovering the context because the federal criminal law has become exceedingly
complex and convoluted during the last forty years. But once a court discovers the
context, I do not see how it can simply reject the application of the pari materia rule.

My colleagues deal with this issue of interpretation indecisively and in a puzzling
way. They simply say that the issue arises because the two contrary juvenile conviction
provisions are “interestingly enough in consecutive sections § 6451 and 6452 . . . but we
are not presented with that issue in the instant case.” (Draft op. pp. 22-23.) That is all
my colleagues have to say about the matter — that it is “not an issue.” My question is
“why not?”
No. 08-5993 United States v. Graham Page 31

2. Rule of Lenity

But even if other judges see ambiguity where I see clarity, there is another
ancient, sensible canon of statutory construction that leads to the same result. Where a
penalty has not been endorsed through “deliberate, express, and full legislative
consideration,” it should not be imposed when a reasonable alternative exists. That
canon says that our constitutional philosophy of maximizing liberty over detention
means that we must use a rule of lenity to prefer liberty over incarceration when in
reasonable doubt as to the coverage of a criminal statute. This recent statement of the
rule of lenity comes from the Supreme Court:

Under a long line of our decisions, the tie must go to the defendant. The
rule of lenity requires ambiguous criminal laws to be interpreted in favor
of the defendants subjected to them. See United States v. Gradwell, 243
U.S. 476, 485 (1917); McBoyle v. United States, 283 U.S. 25, 27 (1931);
United States v. Bass, 404 U.S. 336, 347, -49 (1971). This venerable rule
not only vindicates the fundamental principles that no citizen should be
held accountable for a violation of a statute whose commands are
uncertain, or subjected to punishment that is not clearly prescribed. It
also places the weight of inertia upon the party that can best induce
Congress to speak more clearly and keeps the courts from making
criminal law in Congress’s stead.
....
When interpreting a criminal statute, we do not play the part of
mindreader. In our seminal rule-of-lenity decision, Chief Justice
Marshall rejected the impulse to speculate regarding a dubious
congressional intent. “[P]robability is not a guide which a court, in
construing a penal statute, can safely take.”

United States v. Santos, 553 U.S. 507, ___, 128 S. Ct. 2020, 2025-26 (2008) (parallel
citations omitted).

It was an ancient rule of statutory construction that penal statutes should be
“strictly construed” against the government or parties seeking to enforce statutory
penalties and in favor of the persons on whom penalties are sought to be imposed.
United States v. Wiltberger, 18 U.S. 76 (1820) (“The rule that penal laws are to be
construed strictly, is perhaps not much less old than construction itself.”). Today this
No. 08-5993 United States v. Graham Page 32

principle simply means that words are given their ordinary meaning and that any
reasonable doubt about the meaning is decided in favor of anyone subjected to a criminal
statute. See generally Norman J. Singer, 3 Statutes and Statutory Construction § 59
(2000 ed.) (interpretation of penal statutes).

The Supreme Court has stated explicitly that the rule of lenity in interpreting
criminal statutes is particularly applicable when analyzing a statute that would increase
the punishment meted out to a defendant. “The policy of lenity means that the Court will
not interpret a federal criminal statute so as to increase the penalty that it places on an
individual when such an interpretation can be based on no more than a guess as to what
Congress intended.” Ladner v. United States, 358 U.S. 169, 178 (1958); United States
v. Bass, 404 U.S. 336, 348 (1971) (The rule embodies “the instinctive distaste against
men languishing in prison unless the lawmaker has clearly said they should.”). Here the
“languishing” is for life versus a much shorter prison term.

In the realm of statutory interpretation, the Court implements due process
requirements through the rule of lenity, which requires courts to give criminal
defendants the benefit of the doubt when criminal statutes contain ambiguity concerning
the elements of an offense or its punishment. See, e.g., United States v. Granderson, 511
U.S. 39, 54 (1994) (applying the rule of lenity to a statutory ambiguity concerning
sentencing); Dunn v. United States, 442 U.S. 100, 112 (1979) (explaining that the rule
of lenity “reflects not merely a convenient maxim of statutory construction,” but rather
“is rooted in fundamental principles of due process which mandate that no individual be
forced to speculate, at peril of indictment, whether his conduct is prohibited”).

From the face of the statute, there is no reason to think that “conviction” includes
convictions for juvenile conduct; but, even if one believes that some ambiguity exists in
the language or Congressional intent, “the tie must go to the defendant.” My colleagues
have nothing at all to say in response to this canon of statutory interpretation. They are
simply silent in the face of a rule that goes back centuries in Anglo-American law.
No. 08-5993 United States v. Graham Page 33

3. Consequences

In what seems to me my colleagues’ strained effort to justify the life sentence in
this case based on juvenile conduct, they take account of neither the well-established
canons of statutory construction discussed above nor the social consequences of what
has only recently become conventional judicial behavior favoring long prison terms for
nonviolent drug offenses. There are now numerous studies pointing out the extreme
financial and social costs of the huge increase in our U.S. prison population from less
than half a million in 1980 to almost two and one-half million in 2009 – a five fold
increase. Too Many Laws, Too Many Prisons, The Economist, July 22, 2010. The
increase in our federal prison population has been even more dramatic, increasing to
211,000 during the same time period — a ten fold increase. U.S. Dep’t of Justice, Fed.
Bureau of Prisons, Quick Facts about the Bureau of Prisons (2009) (available at
http://www.bop.gov/news/quick.jsp#4). By comparison, on a per capita basis, we have
five times more people imprisoned than Great Britain and nine times more than
Germany. The Economist, supra. Out of our total prison population in the United
States, 140,000 are serving life imprisonment, including 6,000 life prisoners in
the federal prison system, and more than a third (37.2%) of federal drug
offenders are serving mandatory minimum sentences of 10 or more years. United
States Sentencing Comm’n Annual Report for 2009 (found at
http://www.ussc.gov/ANNRPT/2009/table43.pdf).

Because of long sentences, drug offenders represent more than half of the federal
prison population. U.S. Dep’t of Justice, Fed. Bureau of Prisons, Quick Facts about the
Bureau of Prisons (2009) (available at http://www.bop.gov/news/quick.jsp#4) (51% of
persons in federal prisons convicted of drug violations). As soon as one drug defendant
is incarcerated for his offense, another steps into his shoes. Long periods of
incarceration have done little except drive up the costs of our correction system and
perhaps appeal to our retributive instinct to be “tough on crime” in our “War on Drugs.”
No. 08-5993 United States v. Graham Page 34

Penologists and other close observers of the penal system, along with budgetary
experts who study the cost of our correction system,3 call for alternatives to long periods
of incarceration, including the re-invention of the parole systems to review the
possibility of conditional release as prisoners reach middle and old age. Other
techniques such as halfway houses, home confinement, and electronic monitoring could
be employed to cut drastically the social and economic costs of long imprisonment.

The life sentence imposed in this case is not only contrary to well-established
canons of statutory interpretation and has adverse social consequences for our country,
it undermines longstanding constitutional values recently described in Graham v.
Florida, 130 S. Ct. 2011 (2010), striking down life imprisonment imposed on juveniles
under the Eighth Amendment.

That case should at least make our court and the court system more sensitive to
the important distinction between juvenile and adult criminal conduct. The Court points
out that “life without parole sentences share some characteristics with death sentences
that are shared by no other sentences”:

The State does not execute the offender sentenced to life without parole,
but the sentence alters the offender’s life by a forfeiture that is
irrevocable. It deprives the convict of the most basic liberties without
giving hope of restoration, except perhaps by executive clemency — the
remote possibility does not mitigate the harshness of the sentence.
....
A sentence lacking any legitimate penological justification is by its
nature disproportionate to the offense. With respect to life without parole
for juvenile non-homicide offenders, none of the goals of penal sanctions
that have been recognized as legitimate — retribution, deterrence,
incapacitation, and rehabilitation — provide an adequate justification.

3
U.S. DEP’T OF JUSTICE, FY2008 BUDGET AND PERFORMANCE SUMMARY, available
at http://www.usdoj.gov/jmd/2008summary/pdf/127_bop.pdf. As of June 2008, the annual cost of
incarceration was estimated at $24,922 per prisoner. Annual Determination of Average Cost of
Incarceration, 73 Fed. Reg. 33853 (Dep’t of Justice, Bureau of Prisons June 13, 2008),
http://www.thefederalregister.com/d.p/2008-06-13-E8-13265. There are currently 210,774 federal
prisoners (excluding those in halfway house and other facilities). U.S. DEP’T OF JUSTICE, BUREAU
OF PRISONS, WEEKLY POPULATION REPORT (August 26, 2010), available at
http://www.bop.gov/locations/weekly_report.jsp.
No. 08-5993 United States v. Graham Page 35

....
A sentence of life imprisonment without parole, however, cannot be
justified by the goal of rehabilitation. The penalty forswears altogether
the rehabilitative ideal. By denying the defendant the right to re-enter the
community, the State makes an irrevocable judgment about that person’s
value and place in society.
....
Life in prison without the possibility of parole gives no chance for
fulfillment outside prison walls, no chance for reconciliation with
society, no hope. Maturity can lead to that considered reflection which
is the foundation for remorse, renewal, and rehabilitation. A young
person who knows that he or she has no chance to leave prison before
life’s end has little incentive to become a responsible individual.

Id. at 2027-30, 2032 (citations omitted). Although the holding of the case is, technically
speaking, probably not binding, all of these words apply equally to the defendant,
Graham, in this case as they did for the defendant, Graham, in the recent Supreme Court
case.

One more point: To all of these arguments — canons of construction, good
policy, constitutional values — my colleagues offer one lame defense: “Graham was
convicted of juvenile drug trafficking in a state court of general jurisdiction rather than
one exclusively of juvenile jurisdiction,” and this “adult” conviction seems to mean to
them that all arguments to the contrary are swept aside. They refer to such convictions
for juvenile conduct as “adult convictions” when they really mean “juvenile convictions”
in a state court of general jurisdiction. State courts differ significantly in how juvenile
crime is prosecuted, and the application of federal law should not be made to turn on
such random variations. The Supreme Court’s recent Graham case does not allow its
ruling to turn on such state procedural variations.

Moreover, even the Sentencing Guidelines themselves — a source of very harsh
punishments in drug cases — in defining “convictions” to be used in criminal history
calculations do not recognize such a distinction. Guideline § 4A1.1(b) makes it clear
that such a distinction is not to be recognized when “an adult or juvenile sentence [is]
imposed for an offense committed prior to the defendant’s eighteenth birthday . . . .”
No. 08-5993 United States v. Graham Page 36

Thus every legitimate source of law I can find leads me to the conclusion that the courts
should not count Graham’s juvenile conviction as a third strike.