UNITED STATES оf America, Plaintiff-Appellee, v. Anthony A. OUSLEY, Defendant-Appellant.
No. 11-2760.
United States Court of Appeals, Seventh Circuit.
Decided Oct. 22, 2012.
Argued Sept. 20, 2012.
698 F.3d 972
As for the judge‘s refusal to give a self-defense instruction, there was no basis for a defense of self-defense. The defendant testified that he had seen Rodriguez with a knife the day before the assault but not on the day of the assault. There was no evidence that Rodriguez had a knife when the defendant attacked him or that he threatened the defendant. The defendant could not have had a reasonable belief that he was in imminent danger from Rodriguez, and without such a belief there can be no defense of self-defеnse. E.g., United States v. Haynes, 143 F.3d 1089 (7th Cir.1998). The only “provocation” for the attack was Rodriguez‘s nationality. Far from being a basis for a defense of self-defense, the defendant‘s motive compounded the wrongfulness of his action. He should be grateful that he didn‘t recеive a longer sentence.
AFFIRMED.
Joseph H. Hartzler (argued), Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.
Martin J. Pruhs (argued), Attorney, Pruhs & Donovan, S.C., Milwaukee, WI, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and MANION and TINDER, Circuit Judges.
MANION, Circuit Judge.
Anthony A. Ousley has an extensive history of peddling illegal drugs. Caught dealing drugs yet again, Ousley was convicted of four felonies, including one count of possession of more than 50 grams of crack cocaine with the intent to distribute,
I. Background
Prior to committing the offense giving rise to this appeal, Ousley amassed five felony drug convictions. His most recent enсounter with law enforcement occurred on March 18, 2010, when he sold 13.4 grams of crack cocaine to a police informant. As Ousley departed the scene of the transaction, police officers attempted to stop him. Ousley initially eluded the officers and then abandoned his vehicle. His evasive maneuvers proved fruitless, however, as officers soon apprehended him. Thereafter, officers searched his apartment and discovered 579 grams of crack cocaine and a number of firearms.
Ultimately, a grand jury indicted Ousley for one count of distribution of more than 5 grams of crack cocaine, in violation of
Ousley pleaded not guilty. At trial, a jury found Ousley guilty on all counts. By
Recognizing that these arguments were futile in light of
II. Discussion
On apрeal, Ousley challenges only his mandatory life sentence.3 He argues that the imposition of a life sentence pursuant to
Before discussing Ousley‘s argument, we address the govеrnment‘s contention that Ousley forfeited his argument by failing to raise it at sentencing. When a defendant fails to raise an Eighth Amendment claim before the sentencing court, he forfeits that claim. United States v. Carraway, 612 F.3d 642, 646 (7th Cir.2010). Here, Ousley did not specifically cite the Eighth Amendmеnt or expressly argue that a life sentence would be cruel and unusual. Ousley contends, however, that his trial counsel raised the Eighth Amendment by discussing concerns commonly cited in opposition to mandatory life sentences. See Graham v. Florida,
“To preserve an issue for appellate review, a party must make a timely and specific objection, in order that he or she might alert the court and the opposing party as to the spеcific grounds for the objection....” United States v. Harris, 271 F.3d 690, 700 (7th Cir.2001). Remarks generally alluding to the expense of imprisonment, the viability of deterrence and rehabilitation, and the probability that the defendant may cease to be a menace to society at some future date are concerns implicated by nearly every lengthy prison sentence. Without more, these generalities do not sufficiently apprise a sentencing court that the defendant is raising an Eighth Amendment challenge. Consequently, Ousley forfeited his Eighth Amendment claim, and our review is for plain error. Carraway, 612 F.3d at 646.
There is no error, plain or otherwise, because Supreme Court precedent, as well as our own precedent, forecloses Ousley‘s Eighth Amendment challenge. In Harmelin v. Michigan, the Supreme Court held that a mandatory life sentence for possession of 672 grams of cocaine does not constitute cruel and unusual punishment within the meaning of the Eighth Amendment. 501 U.S. 957, 994-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Harmelin expressly rejected the contеntion that the “mandatory” nature of a life sentence somehow makes it cruel and unusual. Id. 994-95, 111 S.Ct. 2680. Thus, Harmelin declined to adopt an Eighth Amendment requirement that a life sentence be attended by particularized consideration of the offender‘s character and record. Id. at 995-96, 111 S.Ct. 2680. Additionally, the Supreme Court has rejected Eighth Amendment challenges to statutorily mandated life sentences for defendants with prior felony convictions. See Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (upholding California‘s “three-strikes” law); cf. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In line with such precedent, we have rеpeatedly upheld mandatory life sentences imposed pursuant to
Ousley questions the continued vitality of these decisions in light of the Supreme Court‘s recent Graham decision addressing the constitutionality of sentencing a juvenile to life without parole for a non-homicide crime. Before Graham, the Supreme Court had adopted categorical rules prohibiting death sentences for certain types of crimes or offenders. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 413, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (rape of a child under twelve years of age); Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (execution of juvenile offenders); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of mentally retarded criminals); Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (rape of an adult woman). In Graham, the Supreme Court held that sentencing a juvenile to life without parole for a non-homicide crime constitutes cruel and unusual punishment. 130 S.Ct. at 2030; see also Miller v. Alabama, U.S. —, 132 S.Ct. 2455, 2475, 183 L.Ed.2d 407 (2012) (extending Graham to juvenile murderers). Thus, Graham is the first instance wherein the Supreme Court endorsed a categorical prohibition on a non-
Ousley argues that Graham relieves us of our obligation to follow Harmelin, Ewing, and our decisions rejecting Eighth Amendment challenges to life sentences imposed pursuant to
Congress has addressed any national consensus issue in the Fair Sentencing Act.4 And this court recently held that Graham and Miller do not abrogate Harmelin. United States v. Cephus, 684 F.3d 703, 709 (7th Cir.2012) (“Neither opinion overrules Harmelin; both, indeed, distinguish it explicitly. Our defendants were not juveniles and their crimes were more serious than thе crime in Harmelin.“). Moreover, “[e]ven if we thought Harmelin inconsistent with Graham and Miller and likely to be overruled, the Supreme Court has ... told the lower courts in no uncertain terms to leave the overruling of its precedents to it.” Id.
Therefore, we conclude that Harmelin, Ewing, and our precedent unmistakably foreclose Ousley‘s Eighth Amendment challenge to
III. Conclusion
For the foregoing reasons, Ousley‘s life sentence is AFFIRMED.