United States v. Caro

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what PART, IN

AFFIRMED IN VACATED

PART, IN- AND REMANDED WITH

STRUCTIONS America,

UNITED STATES

Plaintiff-Appellee, CARO, David Defendant-

Carlos

Appellant.

No. 07-5. Appeals, Court of

United States

Fourth Circuit.

Argued Oct. 2009.

Decided March Barrett,

ARGUED: Denise Charlotte Defender, Office of the Federal Public Bal- timore, Maryland, Appellant. David E. Hollar, Department United States of Jus- tice, D.C., Washington, for Appellee. ON Gannett, BRIEF: Sarah S. Assistant Fed- Defender, eral Public Community Federal Office, Defender’s Philadelphia, Pennsylva- nia, for Appellant. Campbell Dudley, Julia Attorney, Anthony United States P. Gior- no, Assistant Attorney, United States Of- fice of the Attorney, United States Roa- noke, Virginia, Appellee. GREGORY, SHEDD, Before DUNCAN, Judges. Circuit by published Affirmed opinion. Judge majority opinion, DUNCAN wrote the in which Judge Judge SHEDD concurred. dissenting GREGORY wrote a opinion. OPINION DUNCAN, Judge: Circuit appeal This arises from a death sentence imposed Penalty under the Death Federal (the 3591-98, conspiracy possess “FDPA”), April §§ tribute 18 U.S.C. Act kilograms marijuana for murder viola- over one hundred following a conviction Appellant January § 1111. Carlos intent to distribute tion of 18 U.S.C. with district court’s challenges possession David of cocaine with intent dire; Brady of motions under Following voir denial in November 2001.1 distribute 1194, 83, conviction, Maryland, 373 U.S. third Caro was sentenced to his (1963), and Federal Rules thirty years L.Ed.2d 215 imprisonment. 16(a)(1)(E) 17(c); and Procedure Criminal a in the prison, In Caro became leader in- mercy give proposed refusal In Syndicate, prison gang. Texas a violent struction; concern- and various decisions role, was involved in two violent Caro argues that admissibility. Caro also ing In prior incidents to Sandoval’s murder. government’s ar- instruction and the summer of 2002 Federal Correction- lack of remorse violated his gument about (“FCI Oakdale”), al a Institute Oakdale privilege against Fifth Amendment self- to maintain the prison official asked Caro incrimination, clos- government’s that the gang of another peace because members ing argument violated the Due Process responded were scheduled to arrive. Caro 3592(c)(10) Clause, and that 18 U.S.C. Syndicate going that “the Texas were Eighth violate the Amendment. they to do.” 908. do what had J.A. Soon below, we affirm. For the reasons stated after, Syndicate Caro and fellow Texas violently attacked the new arriv- members Background I. responsibility, com- Taking als. Caro on p.m. At about 6:40 December they “I a fuck if send give mented: don’t prison guard discovered inmate Penitentiary. My me to the United States in- strangled Roberto Sandoval to death They brothers follow orders. know what in Special Housing side his cell Unit mat- they’re getting into. It doesn’t even (the “SHU”) Penitentiary at United States I prosecuted. years ter if we’re have 30 (“USP Lee”) Jonesville, Virginia. Lee myself.” I certainly do. don’t care about layHe dead with towel knotted around J.A. 911. his neck. His cellmate Caro had been the only person incident, other inside the locked cell. Following the FCI Oakdale explained, (the “BOP”) later called me “[Sandoval] Caro Bureau of Prisons transferred fucker, whore, why I Lee, mother that’s facility. Caro to USP more secure up.” fucked him J.A. 781. There, in August Caro and another violently inmate attacked fellow Texas

A. Syndicate member Ricardo Benavidez. “shanks,” i.e., knives, poor neighborhood Using Caro comes from a homemade Texas, Falfurrias, twenty-nine where he lived with his stabbed Benavidez times. abusive, siblings Syndicate alcoholic Five father. other Texas members young, began helping nearby still his stood with identical shanks.2 In While Caro transport illegal drugs pleading guilty uncles into the November after homicide, conspiracy He was later convicted of to commit Caro was United States. marijuana twenty-seven years possession of with intent to dis- sentenced to another 2. January a letter to one 1. These convictions were for violations of Ti- In Caro sent Caro, Benavidez, Drug requesting Comprehensive tle II or III of the Abuse Gomez good Prevention and Control Act of 21 U.S.C. others who had been involved remain in standing Syndicate. §§ within the Texas 801-971. He then imprisonment. strangled transferred had later Sandoval for four or Lee. to the SHU USP five until stopped minutes he breathing. day The next prison Caro taunted a murder occurred Sandoval’s weeks guard, out, grinning calling “When placed later. Sandoval was Caro’s cell you ... going assign [are] p.m. [to] [me] on new at around 9:00 December 2003. later, cellie?” days J.A. Several day, next Sandoval and were Caro again grinning, requested in- in their cell at a.m. fellow served breakfast 6:10 mate Ortiz for his next “cellie.” J.A. 680. They later took one hour of recreation by prison outside and were last observed Caro later mentioned Sandoval in two after, p.m.3 staff at 6:17 Soon inmate Sean telephone conversations and a letter. The Bullock, Caro’s, whose cell faced noticed stated, letter “I guy killed a two ago weeks standing behind appar- Caro Sandoval and being [f]or a fool.” J.A. 790. Caro ently him. choking Bullock watched them wife, told his laughing, “[Sandoval] called ground fall to the and assumed were me a mother fucker.” J.A. 782. Caro also tussling. p.m., prison At about 6:40 a her, assured “But I’m right.” all J.A. 783. guard yelled came to deliver mail. Caro to Finally, Syndicate Caro told another Texas times, get him several piece “Come of Rivas, member death,” Roel “I also a have here,” out pointed shit of and at Sandoval explained, and they gave “It’s because me by lying Peering the door. J.A. 676. in- me, a cell mate and disrespected he Iso cell, guard side the observed Sandoval him took down.” J.A. 785. When Rivas lying him motionless with blood on and a proposed claiming self-defense, said, Caro towel knotted neck. around his Blood was “That going is what I’m to do.... That is splattered against also wall. I’m going what for.” J.A. 786-87. guards quickly Other arrived and hand- B. cuffed Caro. When asked whether Sando- val still breathing, responded: Caro On January charged Caro was stinking up “No. At this time he’s first-degree indictment with murder room, get him out.” J.A. 684. Caro later § violation of 18 U.S.C. for the received Miranda warnings after, and was inter- killing of Sandoval. pursuant Soon viewed. 3593(a), § He denied that Sandoval’s mur- the government filed a notice any der had Syn- connection to the Texas of intent to seek death penalty under Instead, explained dicate. that he the FDPA. This statute a pro- established had eaten Sandoval’s breakfast that morn- cedure whereby jury can decide whether awakened, ing; that Sandoval had cursed to impose the death penalty after consider- him, and threatened to eat ing aggravating Caro’s break- mitigating and factors morning; Caro, fast the next properly and that alleged proved and during a sen- using knot, a towel tied with one overhand tencing hearing.4 requires The FDPA 3. Inmates housed in the SHU at § USP Lee § tors listed in 3592. 18 U.S.C. spend twenty-three per day Specifically, hours sentencing body in their cell must consid- and are allowed aggravating one hour of er all recreation out- “whether factor or fac- per day. side sufficiently outweigh tors found to exist all the mitigating factor or factors found to exist to death, or, provides 4. The justify FDPA that a defendant con- a sentence of in the absence factor, § victed of offense mitigating listed in 3591 "shall be of a aggrava- whether sentencing body ting sentenced to death” if the factor or factors alone are sufficient to "imposition justify determines that of a sentence of a sentence of death.” 18 U.S.C. 3593(e). justified” considering § death is after the fac- illegal drugs of com- involving fac- distribution aggravating specific

consideration factors”) punisha- but on different occasions mitted (“statutory aggravating tors allege year, other one government by for over imprisonment allows the ble also (“non-statutory aggra- 3592(c)(10), factors aggravating § that Caro was U.S.C. factors”). vating drug a federal of- convicted of previously years, or more punishable fense five trial, convict- jury Caro was Following a 3592(c)(12). § U.S.C. in violation of murder premeditated ed jury decided § 1111. The same phase, the selection During sentencing FDPA. His under the sentence argument information and about heard phases, an into two hearing was divided factors, the exis- mitigating existence phase. “selection” “eligibility” phase factors, non-statutory aggravating tence determining involved phase The first aggravating whether factors sufficient- capital of- committed a Caro had whether justify mitigating factors to ly outweighed gov- and whether the under fense had sentence.5 The statutory at least one proved had ernment non-statutory aggravating alleged three beyond factor reasonable aggravating impact of Caro’s offense on factors: doubt, making eligible for together Caro (2) family; friends and Sandoval’s phase in- penalty. The second the death other in- dangerousness people, future determining mitigating the and volved (3) inmates; that Caro “has cluding and factors and se- non-statutory aggravating acts, remorse for his violent expressed im- or life lecting either a death sentence to) (but the murder of including not limited prisonment. Sandoval, stabbing the of Benavidez and jury the During eligibility phase, the gang-based the assault Oakdale.” J.A. eligible that was for the decided Caro § 3591 covered his penalty death because jury found closing arguments, After the premeditated of murder under offense non-statutory aggrava- alleged that each statutory aggravating § fac- and two beyond a rea- ting proved factor had been beyond a reasonable proved tors had been (1) jury The also found unani- sonable doubt. that These factors were doubt. mously mitigating that factors had of two offenses twelve previously convicted factors, 3592(a) any sentencing aggravating § determined before Regarding factors are the eight mitigating non-statutory aggrava- that con- alleged mitigating lists factors must be or sidered, covering including a catch-all factor ting factors are considered. mitigating any circumstance. Con- relevant 3592(c) versely, aggravating § lists sixteen 5. We use the term "information” rather than that be considered for a homi- factors must to the FDPA's lan- "evidence” to conform offense, given, assuming notice has been cide guage of and because here the Federal Rules "any aggravating and adds that other factor inapplicable. Evidence See 18 U.S.C. are given” may has been be for which notice 3593(c) (allowing presentation § in- most 3592(c). § A defen- considered. 18 U.S.C. sentencing factors and formation relevant establishing dant has "burden of the exis- the providing is admissible re- "[information that by pre- any mitigating tence of factor admissibility gardless under the rules of its information,” ponderance of the whereas the governing evidence at criminal admission of establishing government has the "burden of except may be trials exclud- information aggravating factor ... the existence of probative outweighed ed if its value is the beyond 18 U.S.C. a reasonable doubt.” confusing danger creating prejudice, unfair 3593(c). § Because a death sentence cannot issues, misleading jury”). the the statutory ag- imposed at least one unless gravating proved, statutory factor has been jurors proved.6 been Some found A. mitigating factors had

four other also been trial, Prior to Caro’s the district court considering After whether proved.7 summoned one fifty prospective hundred sufficiently aggravating outweighed factors jurors to the in groups courthouse fifty. factors, jury mitigating imposed and Caro proposed ques- penalty. appeal them, death This followed. tions for but the court determined questions what would be asked. Voir dire (1) challenges Caro now the district First, then phases. occurred two pro- (2) process; voir court’s dire the denial of spective jurors completed written ques- Brady motions and Federal under Rules of Second, tionnaires. the court divided 16(a)(1)(E) 17(c); Procedure Criminal them into groups questioned of ten and (3) 3592(c)(10) constitutionality orally. them a prospective juror’s When (12), statutory aggravating factors response was unsatisfactory, the court re- eligible pen- made Caro for the death called him individually and follow-up asked (4) alty; government’s closing argu- questions. (5) during phase; ment the selection To inform prospective jurors about the district court’s instruction and the case, questionnaire stated, written government’s argument concerning lack of defendant, Caro, “The Carlos David ac- remorse; rejection pro- of Caro’s cused of murdering Roberto Sandoval in instruction; posed mercy decisions the United States Prison.” J.A. 156. It testimony about whether to admit offered continued, your “Are feelings about the 608(a), under Federal Rule of Evidence you such that always would Sandoval, certain information about vote for a sentence of death a punish- ment for someone convicted of a plead guilty. Caro’s offer to We consider death offense, penalty eligible regardless of the each matter in turn. facts and circumstances?” J.A. 161-62 omitted). (emphasis prospective ju- When II. Voir Dire dire, rors convened for oral voir the dis- begin by considering explained, We trict court “The defendant charged with challenge degree to the the first murder of voir dire conducted Roberto Sandoval while both of them were court. district We review voir dire for inmates at the United States Penitentia- Ross, abuse of discretion. See Ristaino v. ry.” J.A. 464. 589, 594, 1017, 424 U.S. 96 S.Ct. (1976);

L.Ed.2d 258 United States v. dire, For oral proposed voir (4th Brown, 134, 799 F.2d 135-36 Cir. questions two that the district court de- 1986). Question clined to ask. fourteen of his (1) (12) 6. exposed escape, found that Caro was tried securely has been (2) growing up, domestic violence was not detained since December 2003. school, (3) encouraged in came from an im- (4) poverished community, was well-behaved juror 7. One voted that Caro’s father had a (5) growing up, high failed to reach school influence, corrupting five voted that Caro’s education, (6) needing special shy after was grieve family, eight execution would his voted brothers, (7) respectful compared to his family, that Caro's life benefited his and nine brought illegal drug trafficking by into during voted that a life sentence Caro would uncles, (8) his never abused his wife or be "incarcerated in a secure federal institu- daughter, aggressive was not violent or tion.” J.A. 1460. sentence, (10) thirty-year prison until his has staff, (11) prison never attacked has never Rosales-Lopez v. Unit the evidence.” you “Do feel ate read: questions proposed States, anyone convicted intentional ed U.S. get (emphasis murder deserves omit pre-meditated L.Ed.2d not, of case If what kind penalty? ted). juror death im “[a]ny who would Because penal- not deserve the or does does facts and regardless of the pose death Instead, court asked ty?” J.A. follow of conviction cannot circumstances close vari- or some following questions law,” Court the dictates of automatically vote to you ation: “[WJould defendant on trial for his “[a] has held In other penalty?.... impose the death on voir dire to permitted life must be prison words, you consider life would jurors prospective his ascertain whether release, on depending possibility of without misconception.” Mor function under such 502-03. The J.A. the circumstances?” 735-36, Illinois, gan v. “I parties: will court also informed (1992). How 119 L.Ed.2d 492 ad- appropriate circumstances consider ever, ample judges accorded [are] “federal line that the along the questions ditional to con determining how best discretion appro- if I find it suggested has defendant Rosales-Lopez, 451 the voir dire.” duct The court thus asked priate.” J.A. 458. 1629; see United they could con- jurors whether two seated (4th Barber, 964, 967 80 F.3d States convicted life sentence for someone sider a Cir.1996) “must be (noting that voir dire murder. pre-meditated good judgment to the of the committed Question twenty-two proposed of Caro’s perceptions immediate judge trial whose fac- you “Do believe that questions read: questions appropriate what are determine background, in a such as tors defendant’s (in ferreting prejudices” out relevant issues, family background, mental health omitted)). quotations ternal history neglect, abuse or childhood important would be drug or alcohol abuse the district Caro contends juror to consider in determin- factors for because, satisfy Morgan court failed impose the death ing whether to jurors were asked although prospective ... ?” The court declined to ask J.A. 430. they automatically impose a whether would question, and instead ex- proposed this penalty “a death life or death sentence for goes penal- “If the case ... to the plained: murder,” degree or “first eligible offense” jury then the would hear evi- ty phase, they question regard were not asked this mitigation; that aggravation dence mur ing pre-meditated “intentional and is, circumstances that favor evidence about words, In other Caro believes the der.” that penalty, the death and circumstances inadequate prospec voir dire was because penalty that the death would not suggest jurors never told that “death tive were appropriate.” be J.A. 484. degree penalty eligible offense” “first pre-medi murder” meant “intentional B. that, murder.” also contends tated jurors never told prospective because were Amend To enforce the Sixth regarding personal that information Caro’s jury, dis guarantee impartial ment’s of mitigat background could be considered “adequate voir trict courts must conduct voir dire could not weed ing, the court’s prospec “to remove dire” to enable them would refuse to prospective jurors out who impartially jurors tive who will not be able about any mitigating information to follow the court’s instructions and evalu- consider out, background.8 ed personal “Obviously, way troubled most direct to his get possibility at the that a prospective Tipton, States v. F.3d 861 United juror impose would death always following (4th Cir.1996), similar addressed issues. very conviction is to that put ‘reverse- There, the asked prospective district court him,” Witherspoon’ question directly to jurors, you strong feelings “Do have i.e., person to ask whether the would penalty?” of the death Id. at favor irrevocably voting committed to answer “no” un- To those who failed to penalty death regardless of the facts the court then asked whether equivocally, circumstances.9 Id. “[they] always impose would vote to penalty in where a every case defen- Here, asked, court your district “Are guilty capital is found dant of a offense.” feelings penalty about the death such questioning satisfactory. Id. We found this you would vote always for a sentence of punishment death as a for someone con- explained Morgan We established offense, victed of a death penalty eligible right, grounded in Sixth “the Amend- regardless of the facts and circum- ment, adequate to a voir dire assure a omitted). stances?” J.A. (emphasis 161-62 defendant a all of whose members are This is precisely type of “reverse- impartially able to follow the court’s in- Witherspoon” question that Tipton ap- evidence,” structions and evaluate the proved. question, Because this standing is, right to an inquiry “the sufficient to alone, adequately enabled the district limits ensure —within reason and court to prospective jurors weed out irre- practicality jury none whose mem- —a vocably to imposing committed the death impose would unwaveringly bers death af- penalty, the district court’s decision not finding guilt and hence ter would adopt proposed question uniformly reject all fourteen any and evidence of was not an factors, abuse discretion. See also no matter how instruct- mitigating Corcoran, Oken v. 220 F.3d n. 4 Tipton, on the law.” 90 F.3d at ed (4th omitted). Cir.2000) (‘We (internal reject ... quotations the sugges- We then tion that the trial court inquiry adequate required added: “Just how an specific potential ask purpose jurors should be whether conducted would automatically impose is committed the discretion of the dis- the death However, rape-murder trict courts.” Id. we point- also because ... Morgan cases tively 8. Caro also individually.... claims that district court rather than This is es- questioning prospective jurors erred pecially pro- true where the trial court individually. Because he never raised this questioning juror vides for individual of a below, plain issue we review for error. See prove responses whose initial less than satis- Rolle, 133, (4th United States v. F.3d 204 138 ...”). factory. Cir.2000). We that conclude the court did err not because the Constitution does not Tipton referring 9. Witherspoon was to Illi- v. require questioning prospective individual nois, 510, 1770, 88 391 U.S. S.Ct. 20 L.Ed.2d 415, jurors. Virginia, See Mu’Min v. (1968), 776 the where Court found 431-32, 1899, 111 114 L.Ed.2d 493 excluding juror "irrevocably that a who was (1991) (finding no error where a trial court against committed vote pen- to ... the death a questioning, denied motion for individual alty regardless facts and circum- questioned prospective jurors groups, in small violate stances” does not the Sixth Amend- follow-up questions prospective and asked 523, Thus, ment. Id. at 1770. bias); jurors possible who showed United "reverse-Witherspoon" question pro- asks Bakker, 728, (4th v. States 925 F.2d 734 Cir. spective jurors irrevocably are whether 1991) ("[I]t is well that a trial established voting penalty. committed to the death may question jurors judge prospective collec- 616 1056, Kennedy, v. 890 F.2d crime-specific voir dire United States require

does not (9th Cir.1989) (same). 1058 We review the questions.”). 16(a)(1)(E) for Rule decision under abuse reason, the district court’s For the same Afrifa, v. of discretion. United States No. adopt proposed question failure to Caro’s (4th 95-5753, *1 1996 WL Cir. mitigation not twenty-two about also was 3, 1996); v. July see United States Fletch- “re- of discretion. above abuse Cir.1996) (4th er, (noting ” 54 F.3d question adequately verse-'Witherspoon “plac[es] regard- that Rule the decision pro- court to out enabled the district weed ing pre-trial disclosure of witness lists spective jurors who would consider not within the discretion of the trial sound relating per- to mitigating evidence court”). And we also review decision conjecture background. sonal The mere 17(c) under for abuse of Rule discretion. questioning would have more detailed Fowler, F.2d United States v. useful to does elicited information Caro (4th Cir.1991). suggest not that the district court erred. (affirming See 90 F.3d at 878 Tipton, A. to “inqui- district court’s decision not make 3593(c) govern- Under 18 U.S.C. jurors’ prospective willingness ries into alleged non-statutory aggravating ment to such as consider factors defendant’s dangerousness. factor of future In ‘emotional, re- ‘deprived, background,’ poor sponse, hired risk-assessment abuse,’ expert Caro physical ‘young age,’ intelli- ‘limited ”). testify Mark to Cunningham Caro gence,’ un- and ‘brain disfunction’ “The unlikely endanger anyone would be dur- detailed questioning doubted fact such ing a life because the BOP sentence would might helpful somehow have been adequately in the secure Caro Control exercising peremptory challenges [Caro] at the Maximum Unit Administrative Unit- does not suffice show abuse of the dis- Florence, Penitentiary ed States Colora- trict conducting court’s broad discretion in (“Florence ADMAX”), do the BOP’s most inquiry.” Id. at requisite facility,11 concluding secure until that Caro Discovery III. turn, no In longer dangerous. to have former planned war- Next we review district court’s Gregory den of ADMAX Florence Hersh- Brady denial of Caro’s motions under berger testify that Florence ADMAX could Federal Rules Criminal Procedure fully secure Caro and that BOP 17(c). 16(a)(1)(E) and factual Because no would him another likely transfer facili- made, findings Brady were we review the ty about arrival. years three after his decision de novo.10 See United States (11th Cir.1996) Mejia, Cunningham’s testimony, 82 F.3d To inform novo); Brady requested (reviewing decision de information from BOP rec- Eggen, 10. We reviewed for clear error in United ous See Dan New inmates. Home is Trevino, (4th Rockies,” Post, States v. 89 F.3d Cir. May Wash. "Alcatraz of 1996), but there the district had re- court at A6. Guinness World Records has requested viewed the material in camera be- dubbed Florence ADMAX the most secure denying fore the defendant's motion to com- prison in world. Guinness World Records pel. findings court's were thus factual Publishers, (Mint 2001); 2001 53 Inc. see purely legal. rather than Litscher, (7th Scarver v. 434 F.3d Cir.2006) (calling ADMAX Florence "the most Rockies,” 11. Called the "Alcatraz of the Flor- prison system”). secure in the federal danger- the BOP’s ence ADMAXhouses most relating date, to present ords whether inmates like Caro to showing the inmate in- ADMAX, volved, are housed Florence how well inmate number of the inmate violence, prevents Florence ADMAX involved, date of occurrence and descrip- normally when inmates like Caro are conduct, tion of the and the staff mem- ADMAX transferred from Florence to oth- assault; ber victim of each security. Specifical- er facilities with less Names, numbers, G. prison assignment ly, requested the following: rationale and tenures of all inmates in showing A. Data median length stay, of the Control Unit at Florence ADMAX range length stay of of and standard since opening in to present date deviation of the length distribution of showing assigned, date the reason as- stay at Florence ADMAX for all inmates signed and date exiting the Control Unit opened since it pres- in 1994 to the to security BOP; lesser or release from time; ent H. Disciplinary Reports Incident on all B. Data showing many how inmates inmates in the Control Unit at Florence who were admitted to Florence ADMAX ADMAX from present 1994 to date in 1994 or 1995 continue to be confined showing name, number, inmate date of there, broken down offense conduct offense and details of disciplinary inci- that caused them to be transferred to dent; and ADMAX; Florence I. Correctional Significant Services In- C. Movement sheets from the central cidents Data on levels frequency every inmate file on inmate who has violence at security each level at Flor- killed another inmate within the Bureau ence ADMAX by year from Prisons, (“BOP”), within last 20 through 2006. years; D. Investigative reports on all inmate J.A. 396-97. homicides within the BOP within the last government After the denied this re- years including any “after action re- quest, Caro filed various motions. Two ports” indicating any operational or in- requested motions subpoenas duces tecum changes response stitutional to each 17(c) under Rule compelling the BOP’s killing any final memoranda from director and Florence ADMAX’s warden Special Investigative Services to the produce the information. Another mo- Warden of each institution regarding requested tion a court order compelling killing; each government produce the information Regarding E. each inmate involved 16(a)(1)(E). under Rule The final motion an inmate killing within the BOP within requested a court order compelling the years, respective last 20 inmate’s government produce the information un- “Chronological Disciplinary Record” and der Brady. History Inmate ADM-REL and/or movement Sheets within the Bureau of Following an evidentiary hearing,12 a Prisons; magistrate judge concluded that Rule 16(a)(1)(E) F. any Records on assaultive Brady require conduct did gov- by an inmate in the “Control produce Unit” at ernment the information that Florence ADMAX from November 1994 Caro had requested. The court empha- During hearing, repre- during guilt tions in its case-in-chief either the sented that "it not intend d[id] to use penalty phase or the of this case.” J.A. 289. sought Discovery documents in the Mo- that in- that, inquiries at also testified Florence ADMAX “despite [its] sized staff, against prison lashed out us- hearing, government mates the November Finally, through ing any weapons they no affida- could find. produced evidence ha[d] that argument Hershberger system that asserted that “no or otherwise to its vit and informa- the Bureau of has been able to production of documents Prisons completely to to control the requested would be burdensome devise inmates is tion that failsafe.” J.A. 1341. He indicated the BOP.” J.A. guarantee could not that someone the BOP objected to this order. government The weapon like Caro would never make a 20, 2006, court November the district On message gang send a coded to fellow mem- all four It reasoned that denied motions. bers. requested the information was immaterial Hershberger “step defense. States v. further described the to Caro’s See United (W.D.Va. Caro, F.Supp.2d program down” Florence ADMAX de- 2006). However, to channel signed gener- commented: inmates back into the court populations al facilities. prison other out, however, in point light

I that I do so Hershberger stated that this could be done government’s representation of the years; in Cunningham three testified it does not intend introduce of the average Hershberger was five years. in requested data its own case. Other- explained further that inmates sentenced wise, might very require Rule 16 well its are to death housed at Federal Correction- prior disclosure to defendant. Ac- Haute, Complex very al Terre has which disclosure, cordingly, absent proper security, and high are never transferred to may rely in- government specific on other facilities. (other inmate stances of violence than own) seeking prove the defendant’s contrast, By Cunningham testified that dangerousness. his future likely endanger anyone Caro would not serving because, a life given while sentence Although requested Id. at 481-82. Caro’s characteristics, personal his the BOP withheld, Cunningham information was AD- probably would house him at Florence ADMAX, Florence with BOP spoke visited until he stopped being dangerous. MAX information not personnel, received admitted, however, Cunningham that “for by including initial request, covered Caro’s years the next five to ten [Caro] would file Caro’s inmate and Florence ADMAX’s pose significant risk large if at a U.S. policies. official penitentiary.” J.A. 1268. During hearing, Caro’s sentencing government, anticipating Cunningham’s cross-examination, government On testimony, offered that Florence questioned Cunningham using evidence the affidavit ADMAX could not fully discovery secure Caro. This he motions. submitted included descriptions specific forty-seven evidence affidavit listed This inmates instances of violence other than prison inmates who committed and ar- homicide Olsen, example, For Caro. Daniel a code that Caro information gued needed more breaker the government, testified about these his de- prepare inmates an inmate at government about Florence ADMAX who fense. asked whether message ordering Cunningham sent coded a homicide. knew those inmates’ current Hershberger objected, say- Former warden testified locations. Defense counsel two guards ing inmates killed at the United withheld this in- had Marion, Illinois, formation, Penitentiary in States but the court overruled district predecessor objection. ADMAX. He Using Florence the Inmate Locator website, public on the BOP’s govern- guilt either to punishment.” or to that, example, ment then showed Bruce U.S. at 83 S.Ct. 1194. Favorable evi- Pierce committed dence prison had homicide is material “if there is a reasonable that, away probability and been transferred from Florence had the evidence been defense, Cunningham ADMAX. admitted this but disclosed to the the result of the proceeding chafed: would have been different.” United States v. Bagley, 473 U.S. The critical happened issue is what 105 S.Ct. 87 L.Ed.2d 481 him guilty between the time he was (1985). “A ‘reasonable probability’ is a ... killing, now that he’s at probability sufficient to undermine confi- Lewisburg[,] where he go did dence the outcome.” Id. We have of- long, why how did put decide to ten Brady noted that requests cannot be him in Lewisburg, at what level Lew- used discovery devices. As the Su- isburg is he with what disciplinary preme remarked, Court “There gen- is no just history. put So his name up and eral right constitutional discovery in a best, show where he is is misleading, case, criminal Brady did not create in the face of the data that I requested one.” v. Bursey, 429 U.S. you fully from that would have informed Weatherford 545, 559, 51 L.Ed.2d 30 this issue for me and for jury. (1977). government J.A. 1298. The then made the inmate, point same for another David The district court denied Caro’s Fleming, implied that other inmates motion under Brady because Caro failed Cunningham’s listed in affidavit also had to establish that the information request away been transferred from Florence AD- ed would be favorable to him. We MAX. agree. Because Caro can speculate their During closing arguments, both as to what requested information sides debated whether the BOP would ade- reveal, might he satisfy cannot Brady’s quately during secure Caro a life sentence. requirement showing request that the jury ultimately unanimously found ed evidence would be “favorable to [the] government proved had Brady, accused.” 373 U.S. at dangerousness future beyond a reasonable 1194; see Agurs, United States v. doubt; only jurors nine found that during 97, 109-10, a life sentence Caro would be “incarcerat- (1976) (“The L.Ed.2d 342 possibility mere ed in a secure federal institution.” J.A. that an item of undisclosed information challenges 1460. Caro now the district might helped defense, have might court’s denial of his motions Brady under trial, have affected the outcome of the 17(c) 16(a)(1)(E). Caro, and Rules See does not ‘materiality’ establish in the F.Supp.2d at 481. sense.”). constitutional

B. C. We first review the district court’s denial of Caro’s motion under We next review the denial of Caro’s Brady. Brady, 17(c) In requesting Court motions subpoenas. Rule 17(c) announced that the Due “implements Process Clause Rule the Sixth Amend requires to disclose guarantee “evi ment that an accused have com dence upon favorable to accused pulsory process re to secure evidence in his quest ... where the evidence is material favor.” In re Martin Marietta Corp., 856 17(c) 17(c) Moreover, Rule sub- (4th Cir.1988). requested his Rule 619, F.2d 621 information, net that betokens but a wide poenas cast subpoena lets a defendant ” Nixon, or 418 may quash ‘fishing expedition,’ court “general “the provides 3090, merely would subpoena compliance 700, if and modify the at U.S. Fed. oppressive.” discovery or motion under be unreasonable duplicate Caro’s 17(c)(2). Supreme Court 16(a)(1)(E). R.Crim.P. Rule 17(c) is subpoena that a Rule has held unless the oppressive” “unreasonable or D. it requesting demonstrates:

party district court’s we consider the Finally, (1) evidentiary are that the documents under Rule of Caro’s motion denial (2) [sic]; they are and relevent 16(a)(1)(E). Brady, from Rule 16 differs reasonably procurable not otherwise upon process due consider- which rests dili- by exercise of due of trial advance ations, the minimum amount provides (3) prop- party that the cannot gence; in criminal discovery granted pretrial of pro- such for trial without erly prepare Baker, v. 453 cases. See United States of advance inspection duction and Cir.2006) (“Rule (7th 16 ... 419, F.3d 424 such that the failure obtain trial and v. Brady.”); States is broader than United unreasonably to may tend inspection (6th Cir.1970) Conder, 423 F.2d 911 (4) trial; appli- that the the delay (“We the disclo- ... of the view that are is not good made in faith and cation is much by Rule 16 is broader required sure “fishing expedi- a general intended process required by the due than that tion.” ”). Setting Brady out standards of Nixon, 683, 699- 418 States United entitled, are discovery which defendants (1974). 41 L.Ed.2d S.Ct. 1039 94 (a)(1)(E) provides: section a Rule seeking a defendant Accordingly, 17(c) clear three hurdles: subpoena request, govern- “must Upon defendant’s (2) admissibility; speci- relevancy; to in- permit the defendant ment must have books, at 94 3090. We ficity.” Id. S.Ct. copy photograph or spect and 17(c) ... not a data, that “Rule emphasized documents, photographs, papers, Fowler, F.2d at discovery device.” 932 objects, buildings places, or or tangible Dairy Co. v. United (citing items, 311 Bowman copies portions or these States, 95 government’s if the item is within (1951)). L.Ed. 879 custody, or control and: possession, court The district denied (i) preparing is material to item 17(c) subpoenas for Rule because motions defense; tecum cannot subpoena “a Rule duces (ii) intends use discovery other substitute for the limited trial; or item in case-in-chief its and the in criminal cases permitted wise (iii) from or be- the item was obtained does hope obtaining favorable evidence longs to the defendant. justify subpoe issuance such 16(a)(1)(E). The govern- Caro, Fed.R.Crim.P. This F.Supp.2d 481. na.” that the information dispute ment does not not an abuse of discretion. decision was “within the requested by govern- Caro is only speculate as to what Caro can control,” custody, or possession, shown. ment’s requested information would have data they apparently process- call for discovery requests because that certain noteWe requested ing. example, "[d]ata Caro may Rule For made fall that Caro outside The district court denied Caro does not assert subsection Caro’s motion upon finding no indication that the (iii) infor- (ii) Therefore, Id. we applies.14 requested mation support would (i). on subsection focus Cunningham’s testimony. The information (i), govern Under subsection dangerousness was relevant to future to the defendant ment must make available might Cunningham have allowed to formu- any requested that are “material to items late scientifically opinions more reliable Fed.R.Crim.P. preparing defense.” about Caro various government and to test 16(a)(1)(E)(i). allegations, e.g., gang membership For the defendant to show However, dangerous. made Caro more rule, materiality “[t]here under this must presented Caro no facts whatsoever indi- pretrial some indication that disclo information cating that would have of the would disputed sure evidence have actually helped prove his defense. See significantly the defendant to alter enabled Mandel, 1215, United States v. 914 F.2d quantum proof of in his favor.” Unit (9th (“Neither Cir.1990) 1219 a general 757, (5th Ross, States v. F.2d 763 ed 511 description sought of the information nor denied, Cir.1975), 836, 423 cert. 96 conclusory of allegations materiality suf- 62, 46 “[E]vidence L.Ed.2d 54.15 fice; present a defendant must facts which long strong material as as there is indi would tend to show that the Government is important that it in play cation will role in possession of helpful information to the evidence, uncovering aiding admissible wit defense.”). say, No can example, one preparation, corroborating testimony, ness Cunningham’s whether more opin- reliable assisting or impeachment or rebuttal.” actually ions would have favored Caro or 348, 992 Lloyd, States v. F.2d 351 United Cunningham whether would have found (citations (D.C.Cir.1993) quo and internal any government allegations unsupported. omitted). reason, tations For this district court did not showing stay, range 15.Although length adopted median of we not of have this Ross length stay and standard deviation of the any published opinion, standard in we have in stay length distribution at AD- Florence unpublished two opinions. See United States Assuming MAX.” J.A. 396. that here Caro Farah, 06-4712, 2309749, v. No. 2007 WL requests analysis, statistical 14, 2007); (4th Aug. *4 Cir. United States v. obliged comply would not have been under Kirk, 64139, 88-5095, (4th No. 1989 WL at *2 16, requires gov- Rule which that "the 2, 1989). Cir. June Numerous other circuits permit inspect ernment must the defendant to Baker, 425; also follow Ross. See 453 F.3d at copy photograph” requested and to items. Jordan, 1215, United 316 F.3d States v. 1251 However, 16(a)(1)(E). gov- Fed.R.Crim.P. Marshall, (11th Cir.2003); United States v. argument. ernment never raised this 63, (D.C.Cir.1998); 132 F.3d 68 United States Stevens, (2d 1993); 985 F.2d Cir. during argument 14.When asked oral whether Marshall, United States v. 532 F.2d arising gov- Caro asserted claim from the (9th Scott, Cir.1976); United States v. having ernment violated the district court's 92-6272, (10th WL No. at *3 rely "may specific order that it on in- Oct.8, 1993); Cir. see also United States v. (other stances of inmate violence than the Co., (3d Cir.1979) RMI 599 F.2d own) seeking prove defendant's in his fu- context). (noting in the Ross standard another Caro, dangerousness,” F.Supp.2d ture circuits, pro Like our we believe sister Ross stated counsel for Caro that she noted adequate applying vides an formula Rule government's merely misconduct to bol- that, 16.Having we (i). said stress that “materi argument ster her about subsection Re- 16(a)(1)(E)(i) ality” (ii) in gardless Rule differs from "ma ap- of whether subsection would Brady, teriality” grounded which is ply, grant plainly we under cannot relief that Caro request. the Due failed to Process Clause. continuing crimi- engaging in a victed of by finding that its discretion abuse enterprise. nal “material to was not information requested Fed.R.Crim.P. the defense.” preparing (12). 3592(c)(10), ag- § Both 18 U.S.C. 16(a)(1)(E)(i). on factors were based gravating drug for nonviolent convictions previous Statutory Factors Aggravating IV. stipulated being had offenses. Caro intent to dis- possession with convicted constitutional consider Caro’s We next marijuana conspiracy tribute 3592(c)(10) challenge to 18 U.S.C. marijua- with intent to distribute possess (12), factors statutory aggravating with intent to possession na penalty. eligible him for the death made stipu- cocaine in 2001. He had distribute challenge below preserved met that these offenses lated “We re- unsuccessfully moving to strike. 3592(c)(10) (12). Having unsuc- § consti- properly preserved a view de novo strike, now ar- cessfully moved to Caro Hall, v. 551 tutional claim.” United States statutory aggravating gues that these two (4th Cir.2009). 257, 266 F.3d Eighth Amendment be- factors violate the noted, had As we have “rationally relate[d] cause are not statutory aggrava- at least one to establish Ap- who should live or die.” question eligible make ting factor to Caro Br. at pellant’s Moreover, jury had to penalty. death requires that a Eighth Amendment mitigating aggravating all consider limit sentencing scheme must capital determining imposing whether factors to those offend- “[cjapital punishment justified. For homi- sentence was death category a narrow of the ers who commit defendants, FDPA enumerates cide crimes and whose extreme most serious statutory factors. See aggravating sixteen deserving most culpability makes them the 3592(c). During eligibility § 18 U.S.C. Simmons, Roper v. 543 of execution.” hearing, sentencing of phase 568, 1183, 125 S.Ct. 161 L.Ed.2d U.S. following found that the two had been (2005) (internal omitted). quotations 1 beyond a reasonable doubt: proved safeguards The FDPA establishes various (10) felony drug for two of- Conviction Among intended to meet this standard. previously defendant has fenses.—The following: them are the 2 or convicted of or more State been (cid:127) penalty § 3591 authorizes the death by a term punishable Federal offenses crimes; only for certain year, of more than one imprisonment (cid:127) 3593(e) occasions, requires § least one involv- committed on different factor be estab- statutory aggravating a controlled sub- ing the distribution of may sentence be lished before death stance. considered; (cid:127) 3592(a) § consideration of mandates mitigating selecting factors when (12) drug for serious Federal Conviction sentence; and previously had offenses.—The defendant (cid:127) 3595(c) reconsidering § III violating title II or calls convicted been by arbitrary death sentence influenced Comprehensive Drug Abuse Pre- factors, from insufficient evi- resulting Act of vention and Control 1970 for dence, involving legal error not years may which a sentence of 5 or more beyond a reasonable doubt. been con- harmless imposed previously be or had

623 i.e., 420, 433, safeguard, Georgia, U.S. Regarding the second 446 100 S.Ct. (1980) fac- statutory aggravating least one 64 (reversing L.Ed.2d 398 a death a death be established before tor must narrowing sentence because the did factor considered, may sentence “a materially not reflect consciousness statutory aggra- has said that “each Court ‘depraved’ more than that of any person satisfy a consti- vating circumstance must murder”). guilty of murder.” having ing “escaped from lawful confinement” and persons eligible for the ing tutional dant tance nity reason capital felony” of more severe freakishly imposed,” because must da, sentence quirements: (approving ples Specifically, the L.Ed.2d 393 unique ^[2] ring). 235 L.Ed.2d U.S. should ^[1] and (“[W]here determination of whether a human minimize the risk of must must (1983),which reversed death sentences capricious body 862, 876, compared to the See, See be taken or “a rather than caprice Furman,” standard derived from the suitably reasonably justify be, Georgia genuinely prior discretion is afforded Zant, on a matter so 238, 310, Gregg v. e.g., id. at defendant and to the “an (1977) (“It and decision to (1972) (Stewart, J., concur 349, 358, 103 S.Ct. action”); aggravating factors because to others found record of conviction 462 Court articulated aggravating circumstance directed appear sentence on be so had Zant v. spared, Georgia, U.S. narrow the Furman L.Ed.2d 97 S.Ct. Gardner “permitted] is of vital 2733, 77 impose wantonly wholly arbitrary and 103 that discretion Stephens, or grave 877, be, limited so as “adequately v. emotion.”). S.Ct. 2733 imposition the death based on 103 guilty v. 1197, 51 Georgia, sentenc class of L.Ed.2d commu two re of hav as the and so impor princi- defen Flori for a S.Ct. this and 462 life We is for the death unjustified, intentional taking of human life tions that must person meet narrowing the class of ize almost Cartwright, 486 U.S. human,” 1853, some garding or ting] preme omitted)). geously wantonly U.S. at dants.” defendant convicted of Furthermore, or differ ordinary Court has invalidated for not genuinely do not all homicide defendants have prior convic- (1994). 967, 972, (internal especially cruel,” wantonly find his factor, factor, “that circumstance drug apply 100 L.Ed.2d markedly Court could argues 428-29, Section or satisfy and quotations Tuilaepa sensibility and offenses forgiving every “especially satisfy § argument concluding heinous” explained vile, first honestly concluding penalty. these aggravating factors 3592(c)(10) 100 S.Ct. 1759 these two requirements. from ones murder to a the offense was outra- horrible may requirement, omitted)); are could 372 356, 363-64, vile, standard. California, 3592(c)(10) 3592(c)(10) (internal unpersuasive. that “the defendants believe that heinous, subclass of defen- quite that “[a] See (1988) [the 129 L.Ed.2d 750 fairly horrible and as apply and inhuman” the Godfrey, common, outrageously “an Maynard v. offense]; (12) clearly (reviewing (reviewing quotations character- atrocious, person [aggrava- Although 512 U.S. ordinary the Su- or eligible every every (12). Re- 446 in- it Regarding requirement, the second objective, differentiate this case ev one enhanded, dispute and can substantively way hardly congressional rational wis- ... justifies from murder the death dom that cases which recidivism harsher sen- penalty may Godfrey not be v. imposed”); tencing. significant Defendants with crim-

624 statutory Therefore, these we find unwillingness demonstrate inal histories reasonably justify im- factors justifies aggravating the law. This to follow inability on Caro in- a more severe sentence provide posing harsher sentences imposing Prior compared deterrence. to others. and creased retribution routinely properly and are thus convictions above, con- stated we For the reasons Al- sentencing. See in federal considered 3592(e)(10) (12) do not § clude that States, 523 v. United mendarez-Torres In so Eighth Amendment.16 violate L.Ed.2d 224, 230, 140 U.S. only other circuit we follow the concluding, (“[Pjrior (1998) of a seri- commission this issue. See United to have considered sentencing typical crime is ous (8th Bolden, 545 F.3d 616-17 v. States Moreover, imagine.”). might as one factor 3592(c)(10)). Cir.2008) § (upholding by drug offenses described felony (12) indeed, 3592(c)(10) are serious Closing Argument V. may be their commis- common however Edmond, challenge to the next consider Caro’s v. We City Indianapolis sion. See during the closing argument government’s L.Ed.2d that various (“There Caro asserts phase. that traffic selection no doubt violated the by harms of remarks illegal narcotics creates social Amendment’s Due Process Clause. Fifth magnitude.”). Although Caro’s the first 3592(c)(10) miscon- assessing alleged prosecutorial In satisfying § convictions prior duct, “whether the so [misconduct] we ask “nonviolent” might be considered unfairness as to infected the trial with themselves, long have illegal drugs a denial of resulting conviction violence. make associated with justifiably been Green, Wainwright, Darden v. process.” due 436 F.3d See United States Cir.2006) 168, 181, (4th 106 91 L.Ed.2d Congress (noting that (internal omitted). (1986) quotations that recidi- the determination policy “made error, the defendant more, prove To reversible dealing, without is drug vism for (1) prosecutor’s “that the re- v. must show United States especially dangerous”); (4th Cir.1999) improper” conduct were Ward, marks or F.3d trade.”). (“Guns prejudicial- remarks or conduct drug “that such are tools of the category a narrow of the most presupposes each statuto- who commit 16. The dissent that standing ry aggravating culpability factor alone must extreme serious crimes and whose persons eligible for the narrow the class deserving the of execution.” makes them most only penalty include those who de- to (inter- at S.Ct. 1183 Roper, 543 U.S. Specifically, the dis- serve a death sentence. However, omitted). quotations it does nal “pyramid” metaphor Zant sent invokes statutory aggravating that a factor not follow capital adopted Georgia's sentenc- to describe (Indeed, satisfy requirement. that alone must scheme, penalty applying ing the death “with safeguards intend- the FDPA contains various only few cases which are contained to those satisfy requirement when taken ed to that apex,” space just beneath the in the Instead, together.) Court stated (internal quotations 103 S.Ct. 2733 only statutory aggravating factor need omitted), question that “the and concludes eligi- persons "genuinely narrow the class of by appeal is whether the two raised Caro's reasonably ... the death ble for [statutory] aggravating found factors imposition justify of a more severe sen- constitutionally sufficient to move are compared the defendant to others tence on apex....” Op. Dis. him from the base to Zant, guilty 462 U.S. at of murder.” found Existing Supreme precedent Court at 638. 2733. For the reasons stated requirement. capi- A impose does not such above, 3592(c)(10) satisfy plainly sentencing as a whole must limit tal scheme punishment ... those offenders this standard. "[c]apital to ly rights [Caro],” affected his substantial so as to can do to deter explained, but him of a fair trial.” United States deprive thing “There is one that we can do.” J.A. (4th Cir.2002). Scheetz, 175, 185 293 F.3d government continued, 1404. The “[W]hat way is the that we can deter Carlos Caro?

A. we, say IWhen this is I something can’t do, closing argument it, government’s judge The dur- can’t do ques- because the ing phase only the selection stressed that tion of penalty, the death gen- ladies and tlemen, death sentence could “control” Par- Caro. is left exclusively you, to jury. ticularly, government indicated that a your It’s decision.” J.A. 1404. gov- The imposed death sentence should be because ernment concluded: the BOP would not secure adequate- So, gentlemen, ladies and we now come ly prevent govern- to future violence. The you. You’re it. I’m the United argued, “[E]very ment time the Bureau of Attorney, States powerless to control attempted Prisons has to control Carlos Caro. United States District Judge, fed- Caro, to, bring pressure they whatever judge, eral powerless to do it. The law bear, security they had whatever had to option, allows one last you. and that is him, bear on ... he has defeated those only you. And Judge Jones will do what added, attempts.” J.A. 1395. It he “[C]an you say. go You back there and find a be controlled in the Bureau I of Prisons? life, unanimous verdict for that’s what he suspect to that question answer impose. death, will You find that’s what no.... The reason he can’t be controlled is he’ll authority do. The respon- and the system because the is not failsafe.” J.A. sibility for the control of Carlos David Responding Cunningham’s testi- in your Caro is hands. We have done all mony during a life sentence Caro we can do. And you. so we come to incapacitated would be AD- Florence J.A. 1438-39. MAX until the BOP found him no longer dangerous, remarked: B. system about this classification “[W]hat that the BOP has? question is can we principal challenge here relates rely on the BOP to send a place Caro to government’s to the argument where he won’t kill? know that [W]e death sentence could control Al- Caro.17 system the for classification is not fail- though argument we find this troubling for safe.” J.A. 1401-02. below, the reasons discussed we cannot asserted, government

The later “There conclude that prejudice Caro suffered such simply nothing the Bureau of to Prisons as warrant reversal. challenges 17. Caro makes other that are un- involve "an individualized determination on persuasive, but one merits discussion. the basis of the character of the individual challenges government's argument crime,” Zant, He the and the circumstances the 879, messages. that life sentence would send bad 462 U.S. at (emphasis 103 S.Ct. 2733 omitted), The stated that government's a life sentence the comments about Syndicate, messages would tell the anyone Texas can kill “[Y]ou sent to other than Caro 1436; okay,” prison and it's might J.A. would tell improper. Regardless have been inmates, however, open staff and "It's improper, season because whether we found them community punishment there's no prejudice these comments did not Caro murder,” 1436; enough J.A. and would tell Sando- to violate the Due Process Clause parents val's “that their unlikely son’s life was mean- because were isolated and to Scheetz, ingless,” jury. J.A. 1435. Because the decision mislead the See 293 F.3d at impose penalty whether to the death should 175. jury the to divert ately placed before analytical an frame FDPA created The (5) matters; the death attention to extraneous considering work prosecutor’s minimize arbitrariness. remarks were to whether clearly designed explained that conduct of defense by improper invited The Court penal counsel; the death in- to select whether curative decision whether jury. “an individualized deter given involve were to the ty should structions the character of the basis of mination on Scheetz, 293 F.3d at 186. circumstances of the and the the individual about the government’s The comments Zant, crime.” not extensive. jury’s role were isolated and omitted). suggestion (emphasis regarding govern- significantly, More not secure Caro ade the BOP would whether the BOP ment’s comments about impli future to violence quately prevent prevent to adequately would secure Caro considerations policy cates and resource dangerousness, argu- future Caro’s own v. See Tucker quite that are different. expert opened ment the door. Caro’s (11th Cir.1985) 1496, 1508 Kemp, 762 F.2d Cunningham acknowledged that Caro re- (en banc) (“Neither diligence the future dangerous, mained but testified possibility appellate court nor endanger anyone would not because pa of corrections and incompetence future him incapacitate at Florence BOP would invoked to alter personnel role should be gov- invited the plainly ADMAX.18 This capital jury’s perception of its role that, respond actually, ernment Moreover, calling upon the sentencing.”). adequately BOP would not secure Caro a role jury gives to “control” Caro them future violence. prevent than im more akin to law enforcement Furthermore, in- the district court’s partial arbitration between the defendant any improper structions counterbalanced government. See United States jury court stated that the comments. The Young, 470 unique, should “make a individualized (1985) (“The ... prosecutor L.Ed.2d 1 justification for and judgment about the try to exhort the to ‘do its error appropriateness penalty....” of the death no job’; that kind of has pressure Tr. Trial Doc. June jus place in the administration of criminal cautioned, you “I tice.”). The court also remind statements, questions, argu- notwithstanding, Our concerns on these are not evidence.” Trial ments of counsel prejudice find such as to facts we cannot Tr. 102. warrant reversal. We reach that conclu- non-statutory on various factors we have Finally, alleged ag- sion based each assessing prejudice: found relevant when gravating supported by factor was well vio- notably, previous record. Most degree prosecutor’s to which the conduct, evincing lent his statements indif- tendency remarks had a to mislead the (2) defendant; punishment, Cunningham’s ference to jury prejudice and to the danger- future remarks own admission about Caro’s whether the were isolated extensive; remarks, certainly sufficed to establish the absent the the ousness non-statutory aggravating factor of future strength competent proof introduced Therefore, defendant; say we cannot guilt dangerousness. the of the establish government’s closing argument the whether comments were deliber- admitted, seriously very high Cunningham general risk that Mr. Caro would “[I]n population penitentiary, injure J.A. 1267. of a U.S. there is a someone else.” to) “prejudicially Sandoval, affected substantial not limited [Caro’s] the murder of him rights deprive so as to of a fair trial.” stabbing of Benavidez and gang-based Scheetz, 293 at 185. F.3d assault in Oakdale.” (emphasis J.A. 57

added). Lack of VI. Remorse objected Caro and moved to strike the We next consider Caro’s Fifth Amend- government’s allegation, arguing that regarding ment claim lack of remorse. of lack of “[e]vidence remorse must be argues government that the and dis- more than mere part silence on the of the trict court violated his Fifth Amendment defendant implicate and must not his con- privilege against by self-incrimination hav- right stitutional to remain silent.” J.A. 75. ing consider Caro’s failure to objected Caro also to the district court’s speak government words remorse. The proposed jury instruction, which referred referring admits during to Caro’s silence government’s to the allegation but cau- closing argument but contends tioned, silence, alone, by “[M]ere the de- permitted Fifth Amendment using silence fendant should not be considered proof prove non-statutory aggravating fac- of lack of remorse.” J.A. 1449. Caro tor of lack of remorse. “We review de proposed following alternative: properly preserved novo a constitutional government The alleged has as a non- Hall, claim.” 551 F.3d 266. Given the statutory aggravating factor that Carlos cautionary court’s instruction and over- David Caro expressed has not remorse whelming showing information Caro’s lack killing of Roberto Sandoval.... remorse, any we conclude that error factor, To find this aggravating the gov- would have been harmless under 18 U.S.C. ernment prove beyond must a reason- 3595(c)(2). able Caro, doubt that by Carlos David actions, his words or his indicated a A. pervading and continuing lack of re- government’s notice of intent killing morse for the of Roberto Sando- seek the death under the FDPA part val. Mere silence on his or the a non-statutory aggravating asserted fac- absence of an expression affirmative tor of lack of remorse. Cases which the part may remorse on his never be the government has properly established this basis of a lack of remorse because Car- non-statutory aggravating factor gen- have los David Caro has a Constitutional erally involved affirmative words or con- right to remain silent which cannot be See, e.g., Basham, duct. United States v. against used him for purpose. (4th Cir.2009) 561 F.3d (deeming J.A. 459. The district court declined to drug evidence of use and sexual encoun- give this proposed instruction. The court during spree highly probative ters a crime objection also overruled Caro’s and denied remorse); of lack of Kelly, Emmett v. strike, his motion to reasoning that (4th Cir.2007) F.3d (holding that a prove intended to Caro’s lack statement, made in response police “by statements, of remorse his actions and murder, questioning about a that the vic- mere silence.” United States v. tim “was ‘an asshole’ who ‘wouldn’t loan Caro, 06-1, 1594185, No. 2006 WL at *7 remorse). money’” me no showed lack of (W.D.Va. 2006). 2, June Here, however, government the alleged expressed “Carlos David Caro has not government’s The closing argument dur- (but acts, remorse for his violent including ing the phase selection addressed this is- 628 you, form stated: “Do the The verdict out Caro’s government pointed

sue. The unanimously govern- find that the jury, apologize: failure to beyond a reasonable proven ment has being remorse as lack of We talk about not the defendant has ex- doubt know, a lot of times You aggravator. killing remorse for Roberto San- pressed around and you sit things, do we question, J.A. 1459. Beside doval?” “Gee, boy, I have you say, shouldn’t a blank labeled foreperson All checked that.” of sorry I’m I did done that. We, many times “Yes.” J.A. like that. things us do members, our family our apologize we to “Gee, was I think- friends, say what B. that.” Have I didn’t mean to do

ing? any privilege against at all from Carlos Fifth Amendment we seen remorse The every stuff crimi- regard guarantees to bad Caro with self-incrimination silent right ever done? No. nal defendant “the ‘to remain that he’s in unfet- speak he chooses to unless men- government The also J.A. 1397. will, to exercise of his own suffer tered following callous remarks tioned Caro’s ” v. for such silence.’ Estelle no death; Cunningham’s testimo- Sandoval’s 454, 468, 1866, Smith, 101 S.Ct. 451 U.S. ‘Well, assuming I’m Carlos Caro has ny, (1981) (quoting Malloy v. 68 L.Ed.2d 359 remorse,” 1398; and Janu- no J.A. 1, 8, 1489, 12 Hogan, U.S. 84 S.Ct. 378 showing more ary 2004 letter to Gomez (1964)). Thus it “forbids ei- L.Ed.2d 653 standing among Tex- concern about Caro’s prosecution comment on the ther Benavi- Syndicate members than about by the silence or accused’s instructions also suffering. dez’s The court that such silence is evidence apologize mentioned Caro’s failure 609, California, v. guilt.” U.S. killing Ghiffin Gomez for Sandoval. (1965); 14 L.Ed.2d 106 argument, At the district the close Arizona, 384 U.S. see Miranda following jury instruction: gave court n. 16 L.Ed.2d C, lack of remorse. The Government may at (noting prosecutor that a not “use has alleged has that Carlos David Caro mute trial the fact that stood [a defendant] for his violent expressed not remorse face of privilege or claimed his acts, of Roberto including the murder accusation”). Sandoval, stabbing attempted Benavidez, and the murder of Ricardo recognized Court has at Oakdale. Re- gang based assault applies during the Fifth Amendment sen- has a consti- member that the defendant tencing hearings. See Mitchell v. United silent, right tutional to remain and mere States, 314, 327, silence, alone, by the defendant should Estelle, (1999); 143 L.Ed.2d see also proof lack of not be considered as (applying 101 S.Ct. 1866 remorse. capital Fifth sentenc- Amendment Mitchell, pleaded In the defendant ing). court later cautioned: J.A. 1448-49. The distributing during cocaine but testify. guilty The law “The defendant did to admit Accordingly, plea colloquy him that her refused gives right.... testify Following sentencing quantity fact that the defendant did not must involved. testified any way, hearing where her codefendants by you not be considered much the defendant arriving your deci- about how cocaine even discussed week, usually each the district sion.” Trial Tr. 115-16. distributed she had a capital sentencing court found distributed a defendant’s silence enough kilograms may to mandate a minimum regarding be considered lack of re morse), years. making Lehman, of ten In sentence with Lesko v. 925 F.2d (3d Cir.1991) finding, expressly the court considered the 1544-45 (holding that testify. Finding during defendant’s refusal to er- capital sentencing a a defendant’s ror, Court concluded that failure to apologize may not be considered “[b]y holding petitioner’s against regarding remorse), silence lack of United States Roman, in determining (D.P.R. her the facts of the offense v. 371 F.Supp.2d 2005) the sentencing hearing, the District (holding during a capital sen imposed impermissible tencing Court burden on lack may of remorse proved be the exercise of the right using constitutional “information that has a substantial against compelled possibility self-incrimination.” of encroaching on the defen Mitchell, 526 U.S. at 119 S.Ct. 1307. dants’ constitutional right to remain si lent”), and United Cooper, States v. Importantly, Mitchell avoided the issue (D.D.C.2000) (bar F.Supp.2d 112-13 may of whether a defendant’s silence ring the inference of lack of remorse from regarding considered a non-statutory ag- a defendant’s “unwillingness to acknowl lack gravating factor of of remorse. The edge post-arrest his statements that he stated: Court “Whether silence bears blameworthy is for the crimes to which he upon the determination of a lack of re- (internal omitted)). quotations admitted” separate question. morse ... is a It is not Despite having Mitchell reserved ques us, express before and we no view on it.” tion of whether upon silence bears lack of Furthermore, Id. our sister circuits are remorse, that decision may resolve the over Fifth divided whether Amend- question we face today when read con prohibits using ment silence to show lack junction with Estelle.19 inviting of remorse a harsher sentence. Mikos, Compare v. United States 539 F.3d Sentencing findings involves about (7th Cir.2008) 706, 718 (holding during circumstances of criminal conduct and Mikos, 19. The maintains that we should In United States v. the court later follow two Seventh Circuit decisions. In Burr sentencing routinely reasoned that courts Pollard, the court reasoned that "silence determining consider silence in failure to ac- exercising can be consistent not with cept responsibility under Section 3E1.1 of the right, one’s constitutional but also with a lack Guidelines, Sentencing provid- United States properly ... [which] remorse considered ing sentencing acceptance a discount for sentencing speaks because it to traditional responsibility. pre- 539 F.3d at 718. But we penological interests such as rehabilitation viously withholding sentencing held that a ... and deterrence....” 546 F.3d El.l, discount under section 3 unlike a sen- (7th Cir.2008). This rationale overlooks the enhancement, penalize tence does not the de- implications remaining silent. Because re- remaining fendant silent. See United implies guilt, speak- morse consciousness of Gordon, (4th States v. 895 F.2d 936-37 ing prevents words of remorse for conduct Cir.1990) ("[F]or guide- section 3E1.1 of the denying defendant from later that conduct. apply, lines to accept defendant must first Likewise, choosing deny guilt prevents responsibility for all of his criminal con- speaking defendant from words of remorse However, duct. ... penal- a defendant is not charged Exercising for the offense. one’s failing accept ized responsibility. Rath- right Fifth Amendment to remain silent there- er, acceptance responsibility mitigating is a speak fore entails failure to words of remorse. appropriate factor available under circum- Accordingly, penalizing capital defendant (citations omitted)). stances.” for failure to articulate remorse burdens his privilege against Fifth Amendment self-in- crimination. 630 the de- of nal and characteristics 18 conduct See of the defendant.

characteristics Mitchell, 526 U.S. at 3553(a)(1) also sentencing a fendant. See (requiring § U.S.C. (Scalia, J., dissenting) circum- 340, nature and “the 119 S.Ct. to consider court history and drawing the such the offense and basis for (finding logical of “no stances Zant, defendant”); (em- the of sentencing phase” characteristics the a line within (requiring omitted)). at 103 S.Ct. 462 U.S. might have been Estelle phasis capital sen- during a decision that selection involving unwarned distinguishable determina- “an individualized tencing be silence, than but Mitch- rather statements of the the character the basis of tion on argument. that See forecloses ell itself of the circumstances and the individual Mitchell, at S.Ct. omitted)). Following (emphasis crime” case, its capital was a (“Although Estelle that Mitchell held progeny, and its here, Griffin with full force reasoning applies cannot be considered silence a defendant’s peti- seeks to use where the Government at facts of the offense determining “in the silence----”). Thus, Estelle tioner’s hearing,” 526 U.S. sentencing that Fifth suggest together Mitchell men- but the Court avoided may prohibit considering Amendment well be consid- silence could tioning whether regarding the non- a silence defendant’s character. regarding the defendant’s ered factor of lack of re- statutory aggravating reason, argues For this morse.21 permits considering silence that Mitchell non-statutory aggravating recognize Estelle Although we regarding remorse, relates to ultimately lack of which find guidance, factor of we Mitchell’s character. have been harmless. any that error would 3595(c)(2) (“The § court of See 18 U.S.C. however, in tension argument,

This or vacate a appeals shall not reverse sen- There, Court with Estelle. any of error on account tence prohibit- Fifth that the Amendment found harmless, including erro- which can be unwarned state- using ed defendant’s finding aggravating of an special neous non-statutory aggrava- prove ments factor, establishes where Government dangerousness. future See ting factor of error doubt beyond reasonable Estelle, 468, 101 1866. 451 U.S. at harmless.”). suf- Any prejudice Caro remorse dangerousness and lack of Future mitigated by the district greatly fered was pertain to charac- are similar factors jury The cautionary instruction. court’s crimi- than to circumstances of ter rather stated, defen- “Remember court for the Accordingly, least nal conduct.20 right to remain dant constitutional be- has capital sentencing, Estelle purpose silent, silence, alone, by the de- by and mere created any supposed lies distinction proof considered as crimi- fendant should not be circumstances of Mitchell between in this alleged phase and cannot enlist the defendant government originally lack of 20. The sup- expense process as one of three considerations at the of the self-incrimina- remorse non-statutory aggravating porting the factor U.S. at privilege.” tion dangerousness. record does not future reasoning applies 1307. This fortiori became its clear when lack of remorse make aggravating lack of non-stalulory factor of factor, non-statutory aggravating but the own ("The 3593(c) bur- See 18 U.S.C. remorse. separately. them instruction treats any aggra- establishing the existence of den of vating government, and is not factor is on the Furthermore, "[t]he Mitchell reasoned that of such a factor the existence satisfied unless proving retains the burden Government doubt.”). beyond a reasonable is established sentencing the crime at the facts relevant to substantially charge of lack of remorse.” J.A. 1449. This indi- covered the court’s (3) jury; that silence could never be consid- to the point cated dealt with some non-statutory regarding aggrava- important, ered the trial so that failure to remorse, lack of and “we ting give requested factor of seriously instruction jury that a instructed presume properly impaired ability the defendant’s to conduct (internal in a manner with the has acted consistent his defense.” Id. quotation omit- Alerre, ted). “Moreover, 430 instruction[ ].” United States we a single do not view (4th Cir.2005); isolation; F.3d 692 see also instruction in rather we consider Marsh, 200, 206, Richardson v. whether taken a whole the con- (1987) 95 L.Ed.2d 176 charge, text of the entire the instructions (recognizing “the almost invariable as- accurately fairly controlling state the (internal omitted). sumption jurors of the law that follow their law.” Id. quotations instructions”). A.

Furthermore, affirmative Caro’s conduct Caro requested following jury in- displaying significant lack of remorse was struction, indicating mercy that alone Sandoval, telling. killing Just after justify could a life sentence: yelled, get piece “Come of shit [Wjhatever findings you make with re- out of here.” J.A. 676. When asked spect to the aggravating and mitigating breathing, whether Sandoval was Caro re- factors, you required are never to im- plied: At stinking up “No. this time he’s pose a example, sentence of death. For room, get him out.” J.A. 684. He also may there be something about this case explained, a “[Sandoval] called me mother or about Carlos David Caro that one or fucker, whore, why that that’s I fucked you identify more are not able to aas boasted, him up.” J.A. 781. And Caro “I factor, special mitigating but that never- ... guy ago being killed two weeks [f]or theless creates a reasonable doubt about short, a fool.” J.A. 790. In Caro exhibit- the need for Carlos David Caro’s death. quite clearly ed lack of remorse until de- case, In such a jury should render a ciding plead guilty not and claim self- against decision a death sentence. considering defense. Even without Caro’s Moreover, even when a sentence of silence, jury reasonably could not have evidence, fully death is supported reached regarding another conclusion lack Congress given has nevertheless each of of remorse.

you temper justice the discretion to with mercy. Any you one of is free to Mercy VII. Instruction decide that a death sentence should Next we review the district court’s fail imposed in this case for reason that give jury ure to proposed Caro’s instruc you see fit. explain You will not have to mercy. tion about See United States v. Indeed, specifically the reason. I am Caro, (W.D.Va. F.Supp.2d 483 517-18 required by you you law to advise 2007). “We review the district court’s de have this broad discretion. give give jury cision to or refuse to J.A. 461. instruction for abuse of discretion.” Unit Passaro, rejected

ed States v. 577 F.3d 221 The district court pro- (4th Cir.2009). “A posal. “proposed mercy district court commits It found the in- reversible error in ... refusing provide improper struction because it would proffered jury instruction when have told the it could base its correct; specified instruction was not determination on factors not Caro, provides eligible that an defendant F.Supp.2d FDPA.” 517- if, that, con- although the “shall be sentenced to death after explained The court 18. factors set forth in section mercy weighing while sideration jury could exercise [,] imposi- it factors, is determined sentencing it could not find a death justified.” tion of a sentence of death “justified” under 18 U.S.C. sentence 3593(e) § elaborates U.S.C. 3591. Section fail and thereafter to recommend as follows: death sentence. Id. ... all jury shall consider whether [T]he instruction, proposed

Instead of Caro’s or found aggravating the factor factors following jury gave the district court the sufficiently outweigh to exist all the miti- instruction: factor factors found to exist to gating or findings you make with re- Whatever death, or, justify a of in the sentence aggravating mitigating fac- spect to factor, mitigating absence of a whether tors, weighing process result of the aggravating factor or factors alone in is never decided advance. For justify are sufficient to a sentence of reason, jury required to im- a is never consideration, upon death. Based pose a sentence of death. At this last jury by ... unanimous vote shall ... stage your up of deliberation it is recommend whether defendant whether, you any proper to decide for death, should be sentenced to to life evidence, you reason established imprisonment possibility without of re- impose choose not to such a sentence on lease or some other lesser sentence. the defendant. 3593(e). § argues 18 U.S.C. Caro justification What constitutes sufficient 3593(e)’s § structure creates two-sentence of death in this case is sentence [a] (1) two-step process whereby a the death exclusively you. left to Your role is to penalty might justified, ag- found with community be the conscience of the in gravating sufficiently outweighing factors making judgment a moral about (2) factors, mitigating jury might but worth of individual life balanced impose nonetheless lesser sentence out against the societal of what the value mercy. Conversely, the district court pun- Government contends is deserved 3593(e) §§ interpreted together 3591 and ishment defendant’s offense. that, penalty to mean once the death has aggravating mitigating Whatever justified aggravating found because been found, factors are is never re- sufficiently outweigh mitigating factors quired to conclude the weighing process factors, im- penalty the death must be death, in favor your sentence of but posed. one, decision must be a reasoned free passion, prejudice,

from the influence of interpretation unpersua- We find Caro’s arbitrary consideration. First, opening sive. clause of 3593(e)’s sentence, § namely, second 1442-43,1451. J.A. consideration,” “Based on this refers back B. preceding thereby to the sentence and im- selecting fail- challenges plies the district court’s that when sentence the give proposed mercy jury may ure to his instruction. consider whether the death 3593(e) § penalty justified. turns on how the wheth- 18 issue decision is U.S.C. added). Second, § (emphasis er to select the death rather than a 3591 states according plainly eligible life sentence should be made that an defendant “shall be 3593(e). §§ if ... 3591 and sentenced to death it is determined 18 U.S.C. Section abuse of discretion. See of a sentence of death United States v. imposition (7th Cir.2000). Johnson, and we are 223 F.3d justified,” 18 U.S.C. 3593(e) §§ read 3591 and obliged to A. States, 508 harmony, see Smith v. United 223, 233, L.Ed.2d U.S. First we review the admission of certain (“Just word cannot single as a testimony during murder trial. isolation, single provi nor can a occupied directly be read Bullock the cell Sean statute.”); King v. Vincent’s of a St. across from Caro’s cell when sion Sandoval was 215, 221, 570, 116 trial, Hosp., During killed. Bullock testified “Well, (noting “the cardinal about that event as follows: I’m L.Ed.2d 578 standing my read as a door ... and I seen out rule that a statute is to be whole my being rear view someone like meaning statutory language, choked. since (citations not, I looked and I seen Caro depends standing on context” plain or omitted)). Allen, guy.” behind the 707. 247 J.A. Bullock also See United States v. (8th Cir.2001) seeing “an orange noted towel” around (interpret F.3d 780-81 3593(e) Finally, Sandoval’s neck. J.A. 707. Bull- § ing way the same based on ock described several occasions 3591), where he § grounds, vacated on other prison by guards providing assisted infor- L.Ed.2d mation about other inmates. Cross-exami- (2002). proposed instruc Because Caro’s aliases, nation showed that Bullock used incorrect, legally tion was the district convictions, prior had and testified with that instruction was give court’s refusal to greater much detail than his earlier state- not an abuse of discretion. response, ments. In tried by calling prison to rehabilitate Bullock Admissibility VIII. guard Gregory explain- Bondurant. After Next we review decisions about whether ing that Bullock had been a confidential testimony to admit offered under Federal informant, my Bondurant testified: “In 608(a), certain informa- Rule of Evidence opinion truthful in was the deal- [Bullock] Sandoval, tion about offer to ings he had with me.” J.A. 779. Caro evidentiary plead guilty. “We review rul- objected testimony to Bondurant’s but ings of the district court for abuse of dis- objected testimony. never to Bullock’s Basham, cretion.” 561 F.3d challenges now Caro district court’s testimony. admission of Bondurant’s Fed- Decisions to admit or exclude informa- 608(a) provides: eral Rule Evidence during sentencing hearing tion an FDPA credibility may of a witness be at- governed by are not normal rules of evi- supported by tacked or evidence in the Instead, provides dence. the FDPA that a opinion reputation, form of or but sub- may present any “defendant information ject to these limitations: the evi- mitigating relevant factor” and may only dence refer to character for regardless is admissible of its “[i]formation untruthfulness, truthfulness or admissibility governing under the rules ad- evidence of truthful character is admissi- at criminal mission evidence trials ex- ble after the character of the wit- cept may that information be excluded if ness for truthfulness has been at- probative outweighed its value is ... tacked. danger creating prejudice, unfair con- 608(a). 608(b) issues, However, jury.” Rule fusing misleading or Fed.R.Evid. 3593(c). § provides part: “Specific still review for instances of the U.S.C. We Notwith- witness, gether with J.A. 550. purpose [Caro].” for the of a conduct char- warned that standing, the witness’ the court Caro attacking supporting or truthfulness, may lay proper ... not be founda- “might not be able acter relevancy Fed. of this evidence.” by extrinsic evidence.” tion for the proved 608(b). until the sen- R.Evid. J.A. 550-51. Caro waited tencing hearing to offer information about truthful- Bullock’s character for Because in the why placed Sandoval was SHU. The clearly during attacked cross- ness information, court excluded this district examination, contests that Bondu- no one however, because Caro had laid no founda- testimony about Bullock’s opinion rant’s tion for its relevance. under Rule was admissible character however, 608(a). asserts, that Bondu- during Because this decision was made testimony that Bullock had been rant’s sentencing hearing, apply we 18 U.S.C. 608(b). violated Rule confidential informant 3593(c) rather than normal rules of evi- not abuse its discre- The district court did usually generous more Although dence. by rejecting argument. Bondu- tion 3593(c) rules, § evidentiary than normal provide rant was allowed to a foundation requires likewise that information be rele- opinion testimony by explaining his his mitigating aggravating vant to some Bullock, see United relationship with agree factor. We that Caro never laid (3d 310, 322 Murray, States 103 F.3d theory foundation for his that Sandoval Cir.1997) “testimony (holding that following plan gain was a to access to a confidential informant been] Brown [had points nothing in the Caro. Caro to record necessary ... on ‘numerous occasions’ was support theory, to this and we could find ... which to offer to establish a basis on Moreover, nothing. the information of- opinion ... character for as to Brown’s appear any does not to sen- fered relevant truthfulness”), statement and Bondurant’s tencing factor. thus We conclude that Bullock had a confidential infor- been district court’s exclusion of that informa- mant nothing did more.22 tion was not an abuse of discretion. B. C. We next review the exclusion of certain Finally, information about Sandoval. Caro has we review the exclusion of suggested might plead guilty. Hoping that Sandoval have tar- Caro’s offer to to intentionally non-statutory him geted provoked alleged rebut factor of remorse, Anticipating argument, sought present scuffle. lack of to Caro government sentencing in limine moved to exclude letter he had written to the placed government offering plead guilty. evidence that in the Sandoval Caro being carrying explained, SHU after found a shank. would like ... “[W]e motion, willing The district court denied the rea- to know that Mr. Caro was conduct, soning accept responsibility that such evidence could be rele- for his vant to alleged accept Sandoval’s “motive for be- a life sentence.” J.A. 1313. The ing placed prison’s Special objected Housing government under Federal Rule likely where 410.23 court Unit he would be celled to- of Evidence The district then argues testimony objected giving 22. Caro details Bullock himself. And Caro never testimony. Bullock’s prison about Bullock’s assistance to officials 608(b). testimony, violated Rule Such how- that, excep- provides with two 23. Rule 410 ever, came not from Bondurant but from tions, "any statement made in the course of penalty. irrelevant and “for not to seek the death excluded the letter as Because the reasons stated the Government.” letter persuade Caro’s was calculated to J.A. 1314. government not to seek the death pen- alty, rather than expressing unqualified contends that the district court

Caro remorse, First, we agree he cannot with ar- separate erred for two reasons. that the letter was admissible un- argues gument that the acceptance letter shows 3593(c) § it supported der because Therefore, responsibility. say we cannot mitigating acceptance responsi- factor of that the district court its abused discretion 3593(c) (“The bility. de- See 18 U.S.C. process by or violated due excluding it as may rele- present fendant information Guida, irrelevant.24 See Oioens v. factor.”). mitigating vant to a He claims (6th Cir.2008) F.3d (indicating trial proceeded to have because the plea that a conditional offer does not show Second, rejected his offer. acceptance responsibility). argues process “right Caro that his due required admitting fair rebuttal” the letter IX. Cumulative Error alleged non-statutory aggra- to rebut the vating factor of lack of remorse. See Finally, argues that cumulative er- Carolina, Skipper v. South 5 n. ror warrants reversal. See Chambers v. 90 L.Ed.2d 284, 302-03, Mississippi, 410 U.S. (“Where prosecution specifically relies 35 L.Ed.2d (finding prediction dangerousness on of future exclusion of critical coupled evidence with asking for the death ... the de- inability to cross-examine pro- violated due opportunity fendant [must] be afforded trial). by denying cess a fair “Pursuant to point to introduce evidence on this doctrine, the cumulative error the cumula- [given] process require- the elemental due tive effect of two individually or more ment that defendant not be sentenced to potential harmless errors has the preju- to death on the basis of information which he dice a defendant to the same extent as a opportunity deny explain.” had no or (internal omitted)). quotations Basham, single reversible error.” (internal omitted). F.3d at 330 quotations by responds arguing

The satisfy “To requirement, such errors plea negotiation that a failed does not fatally must so infect the trial that of acceptance responsibility show or rebut violated the trial’s fundamental lack fairness.” alleged of remorse. Caro’s letter of- (internal omitted). fering plead guilty requested promise a quotations Id. plea attorney pros- discussions with an for the .We have said that neither Rule 32 nor the ecuting authority in a which do not result provides "right Constitution to make an plea guilty plea which in a or result jury unsworn statement of remorse before guilty later withdrawn” is "not admissible subject which was not to cross examination” against plea the defendant who made the or during capital sentencing. United States v. participant plea was a in the discussions.” Barnette, (4th Cir.2000). F.3d 410(4). Fed.R.Evid. Accordingly, the decision of whether to allow the allocution fell within the district court’s addition, challenges In Caro the district discretion. Because court could reason- denial of his motion for allocution court’s ably have concluded that such information (unsworn testimony without cross-examina- unduly prejudicial, confusing, would be or tion) prior sentencing. Caro moved for 3593(c), misleading § under we see no abuse allocution under Federal Rule of Criminal of discretion. Procedure the Due Process Clause of the Amendment, Fifth and the Sixth Amendment. if that defen- eligible murderer is death recognized possible several

Although we previously been convicted of 2 or errors, dant “has widespread preju- or they were not punishable more State or Federal offenses fatally infected enough to have dicial than by imprisonment a term of more hearing. sentencing trial occasions, year, one committed on different to fundamental proceeding below adhered involving the distribution of a controlled aggravating Each factor deter- fairness. 3592(c)(10). § Subsection substance.” by jury supported mined was well makes a convicted murderer death- twelve how Finally, the record. we cannot see eligible previously if defendant had “[t]he could have caused the cumulative error violating convicted of title II or III of been jury weigh sentencing factors dif- Drug Comprehensive Abuse Preven- ferently. Act tion and Control of 1970 for which above, we explained For the reasons years may im- sentence of 5 or more AFFIRM. 3592(c)(12). III, § II posed.” Titles amended, prescribe years fíve-or-more GREGORY, Judge, dissenting: Circuit for, prison among things, simple pos- other Today majority with consti- blesses of “a mixture or which session substance imprimatur a sentence that tutional base,” 844(a), contains cocaine 21 U.S.C. imposed could have been after the substances, and distribution of controlled jury previously found that Carlos Caro had including possession with intent to distrib- minor, relatively been convicted of nonviol- ute, § 841. drug ent offenses. If his sentence is ulti- It is clear from the statute’s structure out, mately might carried well be the Congress target relatively intended to first, yet only, and as defendant executed drug death-eligibility, minor offenders for him death-eligible solely after found simply and not the worst of the worst. type due to this conduct. nonviolent To Congress eligibility could have crafted fac- result, majority applies reach this tors that covered the worst offenders— wrong deciding eligibility test for whether those, example, operate through who sufficiently factors narrow the class of de- intimidation, drug kingpins, violence and fendants who can be executed and renders target and those who children and important step capital jurisprudence fact, Congress schools—in did so in other so, virtually doing my useless. In col- parts of the FDPA. See 18 U.S.C. leagues uphold statutory provisions that 3591(b)(1) § (authorizing death for a de- distinguish those who live from those who part fendant who was of a “continuing in a wholly arbitrary capricious die and enterprise” criminal to drugs), distribute I

way. respectfully dissent.1 3591(b)(2) § (authorizing death for the drug conspiracy leader of a who kills or

I. officer, kill attempts public juror, to outset, At important the it is to be clear conspiracy), witness to further the 3592(e)(13) about what eligibility (authorizing conduct the factors death for mur- 3592(c)(10) (12) §§ in 18 U.S.C. part and cover der defendants who were a continu- of and how those apply ing enterprise drugs subsections to Caro. to distribute to mi- nors). provides twelve, Subsection ten that a convicted But subsections ten and My judgment scrutiny. dissent is limited to the Amendment I the concur with rest majority's holding the in Part IV that the analysis. the Court’s eligibility pass Eighth factors in this case function, narrowing eligibility fac- target quired offenders Congress opted to jury’s must limit the focus to ladder: indi- tors drug-offender bottom of violent conduct. Because defendant’s carrying prison crimes convicted of viduals challenged plainly here do not factors do year; one street-level as low as sentences so, they cannot distributors, mules, basis Caro’s and even some drug death sentence. possessors. low-level, this kind of precisely was A. mule, drug He was a

nonviolent offender. uncles at a by By capital juris- his father and now it is axiomatic in recruited across the age smuggle drugs prudence that “where discretion is afford- young Mexico, process sentencing body grave from who on a matter border ed so with in- possession convicted of the determination of whether a human was twice as marijuana once of spared, be taken or tent to distribute life should discre- co- suitably with intent to distribute tion must be directed and limited possession high- by wholly no means to minimize the risk of arbi- caine. Caro so as conspiracy and ranking drug trary capricious Godfrey member of a action.” v. 420, 427-28, Georgia, all accounts was never violent before U.S. S.Ct. FDPA, 1759, howev- going prison. (plurality) Under the 64 L.Ed.2d 398 er, history 153, sufficient to drug (quoting Gregg Georgia, is in the absence eligible make him for death 49 L.Ed.2d 859 Stewart, Powell, aggravating relating (joint other factor opinion and Ste- JJ.)). unaccepta- vens, This is Statutory eligibility his character or crime. factors Eighth necessary Amendment and the “play constitutionally ble under function” majority wrong to find otherwise. process by “circumscribing] persons eligible pen- class of for the death

II. 862, 878, alty.” Stephens, Zant v. 462 U.S. (1983). 103 S.Ct. 77 L.Ed.2d 235 majority by fundamentally first errs misconstruing purpose the nature and eligibility In order for factors to serve statutory eligibility factors in the death function, they this constitutional must “ad- eligibility It penalty schema. claims objective, in an equately differentiate long they so as factors are constitutional even-handed, substantively rational apply every murder defendant do way” jury may those whom a consider for long supported by and so are some may death and those whom it not. Id. at legislative goal. Maj. Op. at conceivable Creech, 2733; Arave v. see By substituting 623-24. rational basis re- appropriate Eighth view for the Amend- (1993) (aggravating L.Ed.2d 188 factors analysis, majority glosses ment over distinguish must defendant sentenced to very way eligibili- in which the serious of murder in a death from others convicted ty challenged by factors Caro fail to nar- “principled” way); Phelps, v. Lowenfield death-eligible offenders in row the class of 231, 244, 546, 484 U.S. 108 S.Ct. 98 required by the way the Constitution. (1988) (eligibility L.Ed.2d 568 factors are Amendment, only genuinely narrowing the “a means of the class Eighth

Under death-eligible persons”); Godfrey, in 446 government’s deterring interest and 433, (invalidating in 100 1759 punishing implicates violence its interest U.S. at S.Ct. Consequent- upon eligibility sentence based fac- imposing penalty. the death principled way no ly, perform constitutionally “[t]here their re- tor where is 638 case, (aggravating 1534 factors are consti- this in which the death S.Ct.

distinguish many tutionally they apply every cases infirm if “to penalty imposed, from not”). eligible penalty” in it defendant for the death which was in (emphasis original)). helped has illustrate Supreme Court statutory eligi narrowing process, B. it, by describing bility factors’ role within framed, Properly question by raised Zant, at it See 462 U.S. pyramid. appeal aggrava- is whether the two 2733; Arizona, 870-71, 103 Walton v. S.Ct. jury ting found are constitu- factors 639, 716-18, 3047, 110 111 497 U.S. S.Ct. tionally sufficient to move him from the (1990) (Stevens, J., L.Ed.2d 511 dissent apex, aggrava- base to the or whether the ing). point At the first above the base of distinguish tors so fail to him from other specific category lies the pyramid this they defendants that are not constitution- legislature, crimes for which the and sub Zant, 879, ally significant. See 462 at U.S. jury, may prescribe death. sequently the 103 S.Ct. 2733. The factors here fail to Zant, 462 at 103 S.Ct. 2733. As U.S. sufficiently distinguish gen- Caro from the today, category limit the law stands is population eral offender because do in ed to murder or other crimes result not involve violence. Kennedy the death of the victim. v. Loui — siana, U.S.-, 2641, 2665, A review of jurispru- Court (2008) (“Difficulties 171 L.Ed.2d 525 only why dence illustrates the nature or administering penalty to ensure extent of a defendant’s violent conduct can arbitrary against capricious appli its moving up be a basis for him the death require cation adherence to a rule know, instance, reserv penalty pyramid. We ing its use ... for crimes that take the life penalty punish- because the death is a victim.”). pyramid’s apex of the At the is severity ment different in-kind its particular a jury crime for which ulti finality punishments, from other it war- is mately sentences defendant to die. punishes ranted to the extent that it Zant, 462 U.S. at 103 2733. In S.Ct. conduct that fundamentally is itself dis- apex, order to move from the base tinct apho- from other crimes—hence the however, pass through a defendant must Ohio, rism “death is different.” Lockett v. eligibility plane. 586, 604, S.Ct. (1978); L.Ed.2d 973 Gregg, 428 U.S. at eligibility plane, jury In that must Stewart, (joint opinion 96 S.Ct. 2909 legislatively prescribed decide whether fac- Powell, Stevens, JJ.); Furman tors that separate gener- exist murderers 238, 287-88, Georgia, 408 U.S. ally death-eligible from murderers. Id. (Brennan, J., 33 L.Ed.2d 346 concur- Importantly, where a convicts a de- (1972). (Stewart, J., ring), concurring) fendant of murder but does not convict How imposed the death must be special him of aggrava- circumstances or tailored unique penological goals to the ting conjunction factors in with that mur- justify extraordinary power the state’s der, then that defendant does not move to take human life the fust instance. apex from the base to the and therefore constitutionally cannot be executed. Id. When state renounces a defendant’s factors, death, (aggravating humanity by putting 103 S.Ct. 2733 him to Fur man, (Stew which move the defendant from the base to art, J., plane, “constitutionally are nec- it concurring), second does so deter Arave, essary”); potential see at from that renouncing defendants 3592(c)(6) § way, e.g., horrible express appro- particularly in and to humanity others heinous, cruel, depraved” (“especially disrespect the outrage at the priate moral 3592(c)(5) conduct), § risk of (grave dan towards has shown defendant condemned victims), ger multiple or whether those it, e.g., Kenne- by extinguishing human life targeted individuals who deserve add 2661-62; acts Gregg, 428 U.S. at dy, S.Ct. violence, protection e.g., from ed (joint opinion of at 3592(c)(11) (vulnerable victims), § JJ.). Stevens, Powell, Only Stewart, 3592(c)(14)(D)(law § enforcement officials results in that which specifically violence— officers). police catego Each of these in- the state’s implicates another’s death — distinguish defendants on the basis of ries in capital punishment imposing terest in conduct, and not external fac their violent at Kennedy, 128 S.Ct. the first instance. unrelat tors —like whether the defendant in- that if the state’s It follows 2661-62. edly bag had a of cocaine in his car at the ini- implicated is imposing terest in death the defen time of the murder or whether violence, constitutionally then the tially by delinquent in contemporaneously dant was narrowing function used to select required no filing his tax returns —that have bear deserving to receive that sen- the most culpability capi ing on the defendant’s severity on the relative tence must focus punishment purposes. tal In past crime or conduct. that violent words, interest to be for the state’s other logic applies aggravators The same death —to move from impose sufficient to defendants distinguish death-eligible that im- interest is first at which the the base prior based on their conduct. Prior-con- the interest is apex to the where plicated eligibility duct factors must show that a condemned’s con- sufficiently acute'—the more violent than murder defendant is by sufficiently aggravated duct must justi- in other murder defendants order Eligibility violence. past concurrent or Oth- fy imposing death on defendant. in order focus on this interest factors must erwise, eligibility cannot be said to in a jury’s genu- discretion to narrow the “substantively in a distinguish defendants “substantively way.” rational ine Zant, way. rational” 462 U.S.

Zant, 103 S.Ct. 2733. 462 U.S. at 2733. considering ag- when those This is clear rule most consistent with how This by offenders gravators distinguish general- the states and federal offense, opposed specific nature of their distinguish factors to ly prior-conduct use here that focus on the defen- to the factors prior-con- The common defendants. most The for- past conduct or behavior. dant’s statutes aggravators duct death defendant used mer must show that prior convictions for murder or other are way that particularly Indeed, in a horrible aggra- violence the other violent felonies.2 id. at typical is not even to murder. See FDPA that relate to defen- vators 877; Godfrey, history character all involve dant’s dis- resulting eligibility factors violent crimes. 18 prior convictions for 3592(c)(2) (prior § based on whether their conviction for tinguish murderers U.S.C. firearm), (pri- particular- felony involving violent acts were committed violent 3592(c)(8) reasons, for crime that resulted ly e.g., or conviction abhorrent (murder convic- gain), person), of another pecuniary (prior committed for resulting in death or in a tion of serious offense were committed whether those acts Center, (2009), http://www.deathpenaltyinfo.org/ Penalty Information State 2. See The Death aggravating-factors-capital-punishment-state. Aggravating Capital Punishment Factors for bodily injury). Except serious when it other death-eligible defendant made for offenses, evasion, fraud, tax wire drug driving comes to the states and or while influence; under the government agree prior, prior, federal non- none of this nonviolent conduct implicate violent insufficient to make a would conduct is government’s interest the death death-eligible. murder defendant It is this rule, and therefore would not constitutionally exception by not its embraced death-eligible narrow the class of offend- majority today, comports which with the ers. Eighth Amendment. majority The disagrees. Instead of

C. holding any eligibility relating factor history to a defendant’s prior or conduct revamp capital- Rather than the entire violence, majority must involve sub- sentencing developed by structure the Su- jects the factors at issue here to rational preme decades, Court over the last four I Maj. basis review. Op. at 623-24. But would find that death sentence vio- scrutiny rational basis has no bearing on Eighth lates the Amendment because the whether or not a statutory provision com- eligibility factors under which the plies Eighth with the Amendment. As the sentenced him fail to narrow the class of recently explained: Court eligible offenders “princi- death pled” scrutiny [R]ational-basis or is a mode of “substantively way. rational” See Arme, analysis we have used 1534; evaluating when 507 U.S. at 113 S.Ct. Zant, laws under constitutional commands that at U.S. 103 S.Ct. 2733. prohibitions are themselves on irrational mule, Caro was a drug low-level convicted cases, laws. In those “rational basis” is possession with intent to distribute mar- just the standard of scrutiny, but the ijuana and cocaine. These convictions do very substance of the constitutional not distinguish him from other murderers guarantee. Obviously, the same test in a constitutionally-significant way be- could not be used to evaluate the extent cause implicate do not the state’s legislature may which a regulate a qualitatively different in taking interest specific, right, enumerated it human life to deter future or im- violence freedom of speech, guarantee pose retribution for escalating violence re- against double jeopardy, right sulting in murder. Kennedy, See 128 S.Ct. counsel, or right keep and bear 2661-62; Gregg, 428 arms. (joint Stewart, S.Ct. 2909 opinion of Pow- —

ell, JJ.). Stevens, government’s The Heller, District Columbia v. U.S. interest in punishing -, minor drug offenders 2818 n. (2008) (internal is different in-kind from its interest in L.Ed.2d 637 citations omit ted). punishing the most basis, therefore, violent and heinous Rational cannot be murderers and usefully therefore does not used to evaluate statutory provi whether a distinguish Caro from other murderers. complies specific sion with the proscription The same would be true were against cruel punishment.3 and unusual majority apparently Eighth conceivable, confuses the ensure that there is at least some requirement Amendment's to review non-discriminatory purpose or rational sentences for arbitrariness with rational basis that action. See United States v. Carotene Maj. Op. review. at 624. This is a clear Co., 144, 152-53, Products mistake. art; Rational basis is a term of a method which courts review almost all state action to by the proposed In the rule otherwise, practice, majority the effec- holding

In today pyramid transforms the majority prob- Amendment Eighth the tively avoids into a the Court created Eighth Amend- that by pretending lem rhombus, eligibility factors serve which Rather than apply. do not ment standards Though narrowing function whatever. the no show that government the require eligibility factors here it concedes that the jury’s narrows a discretion suitably FDPA violence, majority the insists not involve punish- do capital way that advances in a limited, they survive its deferential that majority the de- goals, legitimate ment’s offenses are “associ- drug review because every reason that Caro rebut mands Maj. at It is Op. violence.” 624. conceivably ated with is factors that eligibility these it to be associated hardly clear what means matter how goal, no to a legislative related mean, violence, it but whatever does that with limited interests from the attenuated cannot be test the associated-with-violence executing a human be- justify the state’s narrowing prac- construct genuinely Eighth the majority recognizes ing. The Among many factors considered tice. eligibility that requirement Amendment psychiatric public- in the and by those substantively narrow genuinely factors “associated with vio- defendants, health fields to be it robs this but death-eligible fire-setting, truancy, family lence” are: by declaring that meaning requirement humiliation, conflict, history of bul- is recent long as there sufficient so any factor is bullied, poverty, unstruc- lying being be- legislative consideration plausible some time, community disorganiza- Amend- tured Eighth it. This renders hind majority reasonably can the tion.5 How without content.4 ment rhetoric Amendment, (1938). statutory aggravating factors Eighth The 82 L.Ed. persons "genuinely arbitrary-and-capricious review narrow class must Amendment's reviewing penalty,” a death in the eligible When for the death but quite different. is Amendment, "presup- Eighth me paragraph chastises sentence under same statutory aggravating the sentence was im- fac- posing] looks to whether each court that that create substan- posed standing under conditions the class of alone must narrow tor a defen- to execute risk that the decision to in- persons eligible tial for the death capriciously. arbitrarily and dant was reached who deserve a death sen- clude those (joint (internal Gregg, 428 U.S. Maj. Op. cita- at 624 n. 16 tence.” Stevens, Powell, JJ.). Stewart, omitted). opinion of quotation marks The tions and oppo- Essentially, review is the rational basis inconsistency ob- logical in this statement is The arbitrary-and-capricious review. site says aggra- Supreme Court that vious. If the acting assumes that former genuinely narrow the vating factors must any accept ex- almost appropriately and will pen- eligible for the death class of offenders support assumption. See planation that great presupposition to hardly a alty, it is Products, factors, themselves, Carotene must conclude that places the burden on the state The latter Eighth with the in accordance narrow human decides to take a that where it to show majority all it can insist Amendment. life, in the being’s that decision it has reached aggravating here that factors wants way possible. principled scrupulous and most it in- "plainly” satisfy the ad hoc standard ("In Kennedy, most 128 S.Ct. at See pretend that its today, but it cannot vents by terminat- justice better served cases is not Eighth Amend- is derived from standard than perpetrator rather ing life of the the Su- the decisions of ment or flows from him”); confining Gregg, 428 U.S. at preme Court. Stewart, Powell, opinion (joint S.Ct. 2909 Stevens, JJ.). Health, Office of Mental 5. New York State Factors, http://www. Prevention: Risk Violence majority’s embrace of unabashed 4. The must, admits, Eri- omh.state.ny.us/omhweb/sv/risk.htm. See startling. it It position is Garcia-Rill, Edgar Dan- & Eighth ca Beecher-Monas comply with the order offenders, is a eligible of the factors could the result sentence argue above statutory If eligibility factors? without properly distinguishing serve as reached must, admits, majority which it all other But of Caro from murderers. all at perform must least eligibility factors government the non-violent offenses the function, narrowing surely its assoei- some distinguish have chosen could death- test must fail. ated-with-violence defendants, eligible offenses drug create perhaps greatest the a risk that defendant Likewise, that majority claims arbitrarily. will be executed justi- today before are eligibility factors us pun- in by interest government’s fied doubt, the

ishing recidivists. Who could A. asks, that reason- Congress could majority ably repeat deserve decide that offenders long It has been that a settled death Maj. than harsher treatment first-timers? provision penalty to a applies vast question, Op. very This 623-24. population applied offender but is inconsis- general though, government’s conflates the sparingly tently proscrip- or violates the deterring socially in interest detrimental punishment. against tion cruel and unusual deterring conduct with its interest in 433, E.g., Godfrey, 446 100 U.S. at in death-eligible conduct. Recidivism the Furman, 249, (plurality); 1759 408 U.S. at justifies escalating pun- abstract of course J., 2726 (Douglas, concurring), 92 S.Ct. 276 ishment. But “death is different” (Brennan, J., (Stewart, J., concurring), 309 principle underlying all capital jurispru- J., concurring), (White, concurring), 312 dence be dif- illustrates conduct must (Marshall, J., concurring). 366 This is so kind, just ferent in order degree in largely because when the se- trigger put- in government’s interest few large lects so offenders from such a See, ting e.g., to death. Lock- defendant execution, pool it cannot further its ett, 604, 438 98 This U.S. S.Ct. 2954. is interests; legitimate penological instead it precisely why charged analyz- we are with merely gratuitous pain inflicts and suffer- ing Eighth claims under the ing. Gregg, See 428 U.S. at generalized Amendment and not rational Stewart, (joint opinion Powell, 2909 recidivists, basis drug review. Nonviolent JJ.); Stevens, Rees, see v. also Baze 553 nonviolent, like all repeat other offenders 170 L.Ed.2d Eighth do not meet that crite- Amendment (2008) (Stevens, J., concurring). 420 rion. According to a Department Justice

III. percent 54 report, of federal inmates in in prison nonviolent majority drug Because test that were applies way by no narrows the death- class of far the highest percentage offenses6 — ger Predicting Edge Report at the explicitly Chaos: Violent 6. state does not that the World, nonviolent; Behavior in a Post-Daubert 24 Cardozo however, drug offenders are (2003) (listing L.Rev. 1867-68 mental miscellaneous, report distinguish does violent illness, dysfunction, family poverty, living drug organizes offenders from offenders and high potential urban crime or areas as risk offenses, the statistics most serious illus- explaining factors for violence then trating drug veiy that the offenders were like- presence risk little factor does ly nonviolent. predict whether not an individual with that actually risk ture). factor will violent in fu- (c)(10). under subsection See That same sentence any category.7 of offenders Bolden, States F.3d nearly percent of United found that report also Cir.2008). (8th I am aware of one there for were prison inmates in state also other case in which defendant was crimes,8 percent were sen- of which 60 drug jury after a found him tenced to die death- and nonviolent.9 low-level provisions challenged by under the eligible Congress all the nonviolent offenses Of Higgs, States v. 353 F.3d Caro. See United clear, it eligible, have made death could (4th Cir.2003). In both Bolden offenses then, targeted the class of that it however, Higgs, also found offenders. largest number of with the eligible the defendants were under are viewed in reports these And when just not of provisions, other and because people million who conjunction with the 8.6 That, prior drug nonviolent offenses. 2007,10 using crack cocaine as of reported my knowledge, of makes Caro the the best of persons convicted and the number who deemed death eli- only defendant was longer who are no drug offenses applicable gible only under one or both these factors used to eligibility prison, in provisions. FDPA potentially apply death-eligible make Caro considering The is the same when This makes sub- result people. million to several any analogous provisions. By state law functionally catch- ten and twelve sections states, count, my only can two Louisiana and prosecutor a all which provisions, that ar- Hampshire, provisions in New have arbitrarily not use to use or choose FDPA’s;11 broadly guably apply as as the sentenc- way a that leads to “standardless I case in which yet at aware no either Godfrey, See 446 U.S. ing am discretion.” (internal a of those courts considered death quotation 1759 states’ 100 S.Ct. omitted). for an offender who was sentence selected and alterations marks prior because of a for death non- eligibility theoretically ap- be if could Even conviction. drug violent juries use the reasonably, courts plied therefore, government, cannot claim they gravely risk The rarely that factors so further its executing legiti- Caro will arbitrarily practice. gov- in so doing in deterrence or an mate interests retribution. cites to one case in which ernment at 2649-50. Low- Kennedy, a death See 128 S.Ct. previously upheld appellate court Sabol, Supreme Court the Louisiana inter- C. & William J. Prison- which 7. West Heather (2008), http:// App. at preted ers in 2007 12 available it did so provision, its www.ojp.usdoj.gov/bjs/pub/pdi/p07.pdf. capital killed defendant who dur- context a ing drug deal and a of a course App. at 8. Id. death-eligible a defendant was made for who Neal, past v. 796 offense. See Louisiana Ryan King, A 25 Year Mauer & S. 9. Marc (La.2001). So.2d 661 Drugs Impact Quagmire: The War on its (2007), Society at available on American Furthermore, authorizes a Florida defen- http://www.sentencingproject.org/doc/ conviction, drug carrying prior a sen- dant’s publications/dp_25yearquagmire.pdf. year, a than one to be used as tence of more statutory only if the aggravator, but defen- Abuse, Drug NIDA 10. National Institute of underlying capital conviction for dant's (2009), http:// Crack and Cocaine InfoFacts: trafficking. drug Fla. Stat. Ann. www.drugabuse.gov/pdf/infofacts/Cocaine09. 2009). 921.142(6)(b) (LexisNexis pro- § This pdf. surely unconstitutional vision almost (2009); La. 11. N.H.Rev.Stat. Ann. 630:1 light decision in of the Court's Ken- 905.4(A)(11) Ann. art. Crim. Proc. Code (2009). nedy. S.Ct. at 2665. See 128 I am aware in The one case of which rarely evidence that be drug closely offenders are so selected scrutinize can level for their ultimately death and executed “two-edged for used sword” against FDPA cannot prior offenses alone that the defendant, i.e., capital mitigating evidence murder. See said to deter them from might that a also consider aggrava- Furman, S.Ct. 2726 408 U.S. at juries ting, give appro- can ensure Likewise, (White, J., concurring). murder- priately mitigating weight to that evidence. inconsistently are infrequently ers so Abdul-Kabir, on asserted here selected to die the bases Simmons, 1654; Roper 543 U.S. any existing “very that it is doubtful that 161 L.Ed.2d 1 would be need retribution general (abolishing juveniles, measurably satisfied” Caro’s execution. juries part might because inappropriately Executing Caro would therefore be Id. youth aggravating, consider than rather pointless and needless execution of “the factor); Atkins, mitigating only marginal with life contributions 320, 122 (creating bright-line public purposes.” discernible social or Id. barring rule execution of mentally retard- consequently It would irreconcilable be ed, part juries in because of the risk that Eighth with the Amendment. would evidence of consider mental retarda- aggravating, mitigating). tion B. history A drug defendant’s is abuse The inherent in arbitrariness subsec- evidence, mitigating classic which Su ten and twelve tions is exacerbated prevent preme jury in to has way they which can work Court held must be able giving from jury meaningful consideration give to consider and effect to sen when relevant, mitigating jus- to Our Bell, evidence. tencing E.g., a defendant. Cone v. - system, reflecting tice broader concerns of -, 1769, 1784, U.S. S.Ct. society at-large, takes an ambivalent often (2009). Likewise, L.Ed.2d 701 evidence offenders; of minor drug view one that that a defendant was induced into criminal recognizes criminality their simulta- but a young age by behavior at close relatives neously accepts their own victimhood. Be- precisely type is of “troubled child drug part- cause offenses can so be often jurors hood” evidence to which must be and-parcel of mitigating otherwise circum- give meaningful, mitigating allowed to ef stances, making eligibility these offenses Abdul-Kabir, 262, fect. See 550 U.S. at ability pres- factors limits a to defendant’s Indeed, the FDPA itself mitigating ent evidence and increases the in acknowledges specifically juveniles arbitrary of an likelihood sentence. drug duced into trafficking by adults are capital Not must a defendant be presumably victims who are less blame present to mitigating allowed evidence at 3592(d)(7) worthy for their conduct. See sentencing, his but the must be able an (making aggravating it factor to use give meaningful to effect that evidence. to drug in trafficking). minors Quarterman, 233, Abdul-Kabir v. 550 U.S. in Caro’s ex- Jurors case could not be 127 S.Ct. L.Ed.2d pected meaningful give effect to Caro’s (2007); Penry v. Lynaugh, 492 U.S. drug and troubled background use because 106 L.Ed.2d 256 (1989), they forced to consider were both as the grounds, overruled on other Atkins should Virginia, death-eligible reasons he in the (2002). 153 L.Ed.2d 335 place. Courts must first The record reveals that Caro IV. dropped and that he a cocaine addict12 drug at his mule out of school become Today’s decision comes on the heels of attor- behest. Caro’s father uncles’ interesting report regarding the state with a therefore faced modern neys were capital punishment country, this forcefully present either Sophie’s Choice: particularly in our circuit. According to evidence, thereby emphasizing to the report, number of death sentences the basis for which selected jurors nationally year handed over past down hardly or men- death-eligibility, the lowest has decreased to level since the at all to avoid further tion the evidence Supreme punish- reinstated capital Court jurors’ crime aggravating Caro’s particularly ment This is true in 1976.13 eyes. traditionally Virginia, which the death uses rare, indeed, attorney’s that an It penalty more than state all-but-one other present emphasize not to miti- decision in the union.14 truly be characterized gating evidence can the reasons for this Among suggested But here strategic choice. it is not response phenomenon are to recent lawyers opted surprising prohibiting decisions exe- Court dangerousness to focus on Caro’s future classes, jurors’ cutions certain offender drug rather addiction or jury, than his executing people, concerns about innocent drug early smuggling his introduction legislative prosecutorial concerns Even if by his father and uncles. his overusing about the death in the it, best, lawyers emphasized had Ironically, current climate.15 economic one give any jury expected could not be given of the of reasons the reduction the same meaningful effect to evidence Virginia prose- death in that sentences is crime to aggravated that death- increasingly seeking cutors are not death At worst the evidence eligible murder. drug-related apparently be- murders — have reinforced their initial would cause they do not view these offenders as of worthy that the ulti- finding Caro was the worst of the worst.16 in This reduction punishment. quite mate Caro’s sentence prosecutors’ death pursuing sentences and spite possibly “imposed factors juries’ has imposing them not correlated for a may severe [have] eall[ed] which less executions, with similar reduction nor Lockett, penalty,” it hampered ability has the states’ to exe- prevented because the FDPA cute the heinous most offenders.17 relevant, considering mitigating from All resulting suggests The that the that decades- evidence. risk sen- which imposed arbitrarily long polit- “is between and the unaccept- dialogue tence was courts incompatible capital punishment able and with the commands ical branches about finally Eighth starting Fourteenth Amend- to achieve a constitutional- and equilibrium; ly-neeessary Id. one that accom- ments.” appear in the record whether 14. Id. 12. It does powder Caro was addicted to cocaine or co- caine base. 15. Id. Glod, & Maria

13. Robert Barnes Number of 16. Id. Low, Falls to a Historic Death Sentences Post, 18, 2009, http:// available Wash. Dec. 17. See id. www.washingtonpost.com/wp-dyn/content/ AR2009121704299.html. article/2009/12/17/ government’s pun- penalty jurisprudence. modates the interest majority Yet the ishing murderers and the Constitution’s disagrees. command that the not do so in Furman of the spoke Justice Stewart arbitrarily. judiciary As the has tried inway which some “death sentences are implement Eighth pro- Amendment’s cruel and unusual in way the same that scription against cruel and punish- unusual being struck lightning is cruel and un- by requiring ment that death sentences be usual.” 408 U.S. at 92 S.Ct. 2726 imposed only selects, process after a (Stewart, J., concurring). Thirty-eight non-arbitrary way, in a the worst-of-the- later, years I can think apt way of no more offenders, political

worst branches to describe Caro’s sentence. The FDPA responded by have recalibrating their no- provisions prescribe such a random tion of which eligible offenders are death unprincipled sentence do not with- proceeding accordingly. apparent Eighth stand scrutiny. Amendment Had upshot charged is that those with the awe- majority applied that scrutiny, level of power seeking imposing some I have little doubt it would have sought have power to limit that to those reached the same respectful- conclusion. I deserving, most and in so doing, have ly dissent. made the death more effective and efficient, even as have limited the

class of may offenders whom it ap-

plied.18

This decision threatens to undermine

that constitutionally necessary equilibrium.

Carlos Caro’s imposed death sentence was

because he had previously committed rela- tively minor, drug DAVIS, nonviolent Surviving crimes. Of Kevin Spouse of Dece all similarly defendants, dent, situated appears Davis, it Individually Donise Caro now prospect Court-Appointed faces the as Administrator of being being executed after chosen because the Succession of Donise Davis and completely factors so divorced from Davis; the Succession of Donise Les legitimate state’s penological Lasenburg, interests lie Michelle Widow of taking human life. Whatever prior Kevin court-appoint Davis and also as says character, conduct about his under ed Administratrix of the Succession of Amendment, Eighth it cannot Davis; Mary serve as Kevin Michael Beth the sole reason for eligibility Brown, his death surviving mother of Donise compared Davis, to other defendants. Even the court-appointed and as Admin government’s attorney had to allow at oral istratrix of the Succession of Donise argument Davis; that Caro’s Davis, sentence seemed Keith Plaintiffs-Appellants, light “anachronistic” in evolving v Despite the dramatic reduction in death Conversely, 2009111001396.html. since the Virginia, person sentences in the last executed capital punish- Court reinstated ment, in the put Commonwealth average to death with- condemned inmate has years in six of his spent sentence and conviction. over a decade on death row before the Glod, Josh White & Maria Muhammad Exe- implemented. sentence has been See The Post, Sniper cuted Killing, Center, Penalty Wash. Nov. Death Information Time on Row, available http://www.washingtonpost. Death http://www.deathpenaltyinfo.org/ com/wp-dyn/content/article/2009/11/10/ AR time-death-row.

Case Details

Case Name: United States v. Caro

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 17, 2010

Citation: 597 F.3d 608

Docket Number: 075

Court Abbreviation: 4th Cir.