UNITED STATES of America, Plaintiff-Appellee, v. Edward L. YOUNG, Defendant-Appellant.
No. 13-5714.
United States Court of Appeals, Sixth Circuit.
Argued: March 13, 2014. Decided and Filed: Sept. 11, 2014.
766 F.3d 621
Before: GRIFFIN, WHITE, and STRANCH, Circuit Judges.
The court delivered a PER CURIAM opinion. STRANCH, J. (pp. 630-34), delivered a separate concurring opinion.
OPINION
PER CURIAM.
Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband‘s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms—resulting from felonies committed some twenty years earlier—extended to ammunition. See
Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young‘s sentence.
I. BACKGROUND
In 2010 or 2011, Edward Young helped a neighbor sort and sell her late husband‘s possessions. When he discovered a box of seven shotgun shells in the collection, he stored the shells in a drawer where they would be safe from his four children. Because Young had previously been convicted of a number of felonies, all burglary-related offenses between 1990 and 1992, it was a crime for him to possess ammunition.
Police officers later showed up on Young‘s doorstep investigating recent burglaries at an auto repair shop and a storage building. During the consent search, officers found several items reported stolen, though it is unclear whether the items were associated with the recent burglaries. They also found the box of seven shotgun shells in a drawer, which Young readily admitted to possessing.
The government charged Young with a single count of being a felon in possession of ammunition in violation of
The district court expressed concern about the fairness of the punishment but determined that it had no discretion in sentencing. Young received the mandatory fifteen-year sentence, and now appeals.
II. ANALYSIS
We review these constitutional challenges to Young‘s sentence de novo. United States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011).
A. Eighth Amendment
Young argues that the ACCA, as applied to him, violates the Eighth Amendment because it imposes on him a harsh sentence—one normally reserved for far more dangerous criminals—for possessing seven shotgun shells in a drawer, a crime he describes as a mere technical violation of the statute. Comparing his crime to overtime parking, which could not constitutionally be punishable by life imprisonment, see Rummel v. Estelle, 445 U.S. 263, 288 (1980), he argues that a mandatory fifteen years is grossly disproportionate under the circumstances.
The government asks that we simply defer to the legislative mandate in the ACCA, which plainly sweeps Young‘s possession of shotgun shells into the same punishment category as the possession of bombs, missiles, or automatic weapons. See
To determine whether a non-capital sentence falls outside the bounds of the Eighth Amendment‘s “evolving standards of decency,” Graham v. Florida, 560 U.S. 48, 58 (2010) (internal quotation marks omitted), this court is instructed to use what has become known as the “narrow proportionality principle,” id. at 59–60 (internal quotation marks omitted). Under this principle, “‘punishment for crime should be graduated and proportioned to [the] offense,‘” id. at 59 (quoting Weems v. United States, 217 U.S. 349, 367 (1910)), but the proportionality required “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime,” id. at 60 (quoting Harmelin, 501 U.S. at 997, 1000–01 (Kennedy, J., concurring in part and concurring in the judgment)).
The test is rarely met. Cf. Ewing, 538 U.S. at 22 (“[S]uccessful challenges to the proportionality of particular sentences should be exceedingly rare.” (internal quotation marks omitted)). The Supreme Court has overturned only a small number of non-capital sentences on Eighth Amendment grounds. In 1910, the Court struck down a sentence of twelve years’ imprisonment, in chains and at hard and painful labor, for falsifying a public document. Weems, 217 U.S. at 357, 365–67, 381. The Court considered the punishment degrading and harsh as compared to an offense that could be committed “though he gain nothing and injure nobody.” Id. at 365–66. Not until over seventy years later did the Court hold unconstitutional another sentence: life without parole for passing a $100 bad check based on the defendant‘s multiple prior convictions. Solem, 463 U.S. at 296–97, 303. The Court observed that the sentence, generally reserved for far more serious offenses, was grossly disproportionate to the crime, “one of the most passive felonies a person could commit,” involving no violence or threat of violence. Id. at 296–99, 303 (internal quotation marks omitted). In reaching this decision, the Court noted that the defendant‘s previous offenses triggering the state recidivism rule, including burglary, were also non-violent and minor in nature. Id. at 296–97. Finally, the Court has held that life without parole for juvenile non-
While this court has considered as-applied Eighth Amendment challenges to the ACCA mandatory minimum a number of times—mostly in cases involving the possession of firearms—we have never found sufficient disproportionality in these cases. See, e.g., United States v. Banks, 679 F.3d 505, 506, 507–08 (6th Cir. 2012) (rejecting categorical claim that ACCA fifteen-year minimum sentence for being a felon in possession of a firearm was unconstitutional where the defendant committed the prior offenses as a minor); Moore, 643 F.3d at 454–55 (rejecting an Eighth Amendment challenge to the ACCA minimum because the defendant‘s prior offenses were violent crimes and because he was seen with a gun while beating his girlfriend on the night of the arrest); United States v. Johnson, 22 F.3d 674, 677, 682–83 (6th Cir. 1994) (rejecting challenge to fifteen-year ACCA sentence for being a felon in possession of a firearm and ammunition); United States v. Warren, 973 F.2d 1304, 1305–06, 1311 (6th Cir. 1992) (holding that the fifteen-year sentence was not grossly disproportionate to the offense of being a felon in possession of a firearm). In an unpublished case, this court has also rejected, without proportionality review, an as-applied challenge where the defendant was convicted under the ACCA solely for possessing ammunition. United States v. Walker, 506 Fed. Appx. 482, 489–90 (6th Cir. 2012). There, the defendant had been convicted for possessing thirteen 9 mm rounds of ammunition, the ammunition was discovered during a drug-related investigation, and he was simultaneously prosecuted on state drug charges. Id. at 483.
The government suggests that because this court has never concluded that a particular application of the ACCA mandatory minimum violated the Eighth Amendment, this court is bound to reach the same result. That is not necessarily so. A defendant‘s particular circumstances are relevant to an as-applied Eighth Amendment claim and could render a sentence unconstitutional. Graham, 560 U.S. at 59 (“[T]he Court considers all of the circumstances of the case to determine whether [a term-of-years] sentence is unconstitutionally excessive.“); see also Solem, 463 U.S. at 291–94 (discussing the fact-specific, objective factors to be considered in an Eighth Amendment proportionality analysis); Moore, 643 F.3d at 454–55 (engaging in fact-specific proportionality review despite this court‘s prior holding that mental disability did not categorically render a mandatory sentence unconstitutional). “[N]o penalty is per se constitutional... . [A] single day in prison may be unconstitutional in some circumstances.” Solem, 463 U.S. at 290 (internal citation omitted).
The Supreme Court has identified three “objective criteria” for assessing proportionality: the gravity of the offense as compared to the harshness of the penalty; the sentences imposed on others in the same jurisdiction; and the sentences imposed for the same offense in other jurisdictions. Solem, 463 U.S. at 292. But, in most cases, a gravity-versus-harshness analysis will answer the question; only if we reach an initial inference of gross disproportionality must we consider the other criteria. Harmelin, 501 U.S. at 1004–05; Graham, 560 U.S. at 60. The gravity of an offense depends heavily on the nature and circumstances of a particular case, including the harm or risk of harm, magnitude of the crime, degree of culpability, motive, and any other facts specific to the
The harm caused, and even the risk of harm caused, was extremely low in Young‘s case. Indeed, under the facts as they were found by the district court, we cannot say that there was any risk of harm or violence inherent in Young‘s crime. See Begay v. United States, 553 U.S. 137, 146 (2008) (noting that the ACCA was designed to punish the special danger created when those most likely to pull the trigger possess a gun). Young possessed seven shotgun shells in a drawer, a crime that involved no violence and was committed “though he gain[ed] nothing and injure[d] nobody.” See Weems, 217 U.S. at 365. He owned no compatible gun, and there is no evidence that he intended to use the shells in a crime, had ever used any weapon in any crime, or would provide the shells to someone who would use them in a crime. Cf. Moore, 643 F.3d at 455 (rejecting Eighth Amendment challenge, in part, because the defendant possessed a gun while beating his girlfriend). Young says that he intended to return the shells to the widowed neighbor, and no one has accused the widow of being a violent or dangerous criminal.
The magnitude of Young‘s crime was low, as was his culpability and motive. On the well-accepted scale of criminal culpability, ranging from negligent and reckless acts to malicious acts, Young‘s act of innocently acquiring and knowingly continuing to possess ammunition entails the lowest level of culpability that could have rendered him guilty of the crime. See United States v. McCormick, 517 Fed.Appx. 411, 414 (6th Cir. 2013) (“Section 924(a)(2) requires that any violation of section
Young‘s Achilles heel, however, is his recidivism. As the Supreme Court recognized in Ewing, legislatures are permitted to impose more severe penalties on those who have not been deterred from criminal behavior by traditional punishments. 538 U.S. at 24–28. In such cases, “we must place on the scales not only [the defendant‘s] current felony, but also his long history of felony recidivism.” Id. at 29. In other words, the gravity of the present offense is viewed in light of the defendant‘s previous offenses. Id. For example, in Ewing, the defendant had previously been convicted of numerous felonies and misdemeanors, including robbery and residential burglaries; had committed many offenses while on probation for previous ones; and had served nine terms of imprisonment. Id. at 30. This rendered the present offense of stealing $1,200 worth of merchandise sufficiently grave to warrant a sentence of 25 years to life under California‘s three-strikes law. Id. at 28, 30; see also Moore, 643 F.3d at 455 (considering defendant‘s prior offenses of aggravated burglary and distribution of crack cocaine in gravity analysis of firearm possession offense). Of course, recidivism does not render any sentence constitutional; the offense still must be sufficiently grave in combination with the recidivism. See Solem, 463 U.S. at 279–80, 296–97, 303 (striking down
Young‘s recidivism, resulting from numerous felony convictions roughly twenty years prior to his present offense, increases the gravity of his offense under Ewing and Solem. These prior triggering offenses include four counts of burglary and seven counts of aggravated burglary. See
Having reviewed the gravity of Young‘s offense, the court must now compare it to the length and other terms of the sentence, generally assuming that a longer sentence is harsher, to determine whether the sentence is grossly disproportionate. Solem, 463 U.S. at 294–95. There can be no question that a fifteen-year mandatory minimum sentence is harsh and severe. See Moore, 643 F.3d at 456 (“Fifteen years is by any measure a considerable amount of time.“). Courts have found shorter sentences unconstitutional, but only in certain circumstances. For non-recidivist offenders, a twelve-year sentence in chains and hard labor was too harsh for falsifying public documents, Weems, 217 U.S. at 365–67, 382, but a mandatory life sentence was not too harsh for possessing a large amount of cocaine because the crime posed a serious health risk to society. Harmelin, 501 U.S. at 1002–03. For recidivist offenders, the line is different. A life sentence is too harsh for a recidivist felon who passed a bad check. Solem, 463 U.S. at 296, 303. But a twenty-five-year sentence is not too harsh for a recidivist felon who stole $1,200 worth of merchandise, Ewing, 538 U.S. at 28–31, and a fifteen-year sentence is not too harsh for a recidivist felon who possessed a firearm while beating his girlfriend, Moore, 643 F.3d at 455–56. While Young‘s fifteen-year sentence may be disproportionate to his offense in the abstract, our understanding of this precedent compels us to conclude that it is not grossly disproportionate when taking his recidivism into account.
Because Young‘s sentence is not grossly disproportionate to his crime under Ewing and Solem, we must ultimately reject his Eighth Amendment claim. See, e.g., United States v. Nagy, 760 F.3d 485, 490 (6th Cir. 2014) (“The striking and troublesome harshness [of a fifteen-year sentence for felon in possession of a firearm] ... is but a particularly clear example of our sometimes difficult duty to apply the policy choices of Congress, rather than our own.“).
B. Fifth Amendment
Because he lacked notice of the
According to Young, notice cannot properly be imputed to him because felons and the general public lack knowledge of the ammunition prohibition. As evidence, he argues that generic judgment forms and plea colloquies notify new felons of the legal prohibition against possession of firearms but not ammunition. His judgment in the present case, for example, specifies that he “shall not possess a firearm, destructive device, or any other dangerous weapon” but makes no mention of ammunition. While sentencing him, the district court below repeated the same prohibition, as many district courts do, with no mention of the prohibition against ammunition.
Young also argues that notice cannot be imputed to him because he did not have specific intent to commit a criminal act. He refers to
Young‘s suggestion that general knowledge and specific criminal intent are necessary to impute notice to a criminal defendant is based on a misreading of case law. In Papachristou, one of Young‘s primary sources, the Supreme Court held that a vagrancy statute was unconstitutional as applied to specific individuals because the defendants were not likely to be alerted to the regulation because they did not have specific intent to commit unlawful acts, and because the ordinance was written in such an archaic manner that few would understand it. 405 U.S. at 162–63. In other words, specific intent to commit a criminal act or actual knowledge can suffice for notice where the statute is unclear. See, e.g., United States v. Caseer, 399 F.3d 828, 839 (6th Cir. 2005) (“[T]he requirement of specific intent in this case mitigates any constitutional infirmity resulting from the vagueness of the [statute].“); United States v. Baker, 197 F.3d 211, 219 (6th Cir. 1999) (holding that even if the
Young may have believed that his possession was innocent conduct, but he does not argue that the ACCA is too technical or obscure to impart legal notice had he read it. Nor could he, as the language in
III. CONCLUSION
In conclusion, based on our binding precedent, we affirm Young‘s fifteen-year sentence.
STRANCH, Circuit Judge, concurring.
Edward Young received a mandatory fifteen-year prison sentence for the crime of having in a drawer in his home seven shotgun shells belonging to his widowed neighbor. Young was then caught in the dragnet of the Armed Career Criminal Act (ACCA) which imposes the same minimum sentence on a person who acquires shotgun shells passively as it does on a recently-released felon who possesses automatic weapons. See
The district court did not make the sentencing decision lightly. Judge Collier compared Young‘s story to a Charles Dickens novel and noted that “[a] lot of people think these laws are unfair.” In the end, however, Judge Collier determined that binding precedent left him with no discretion in the case. He sentenced Young to the mandatory fifteen-year sentence, suggested that “this is an issue the appellate courts and perhaps the Supreme Court will one day address” and encouraged Young to appeal.
Precedent compels us to conclude that this sentence does not violate the Constitution. But holding that a sentence is constitutional does not make the sentence just. As our former colleague representing the Judicial Conference described it, “[m]andatory minimum sentences mean one-size-fits-all injustice.” Statement on Behalf of the Judicial Conference of the United States from U.S. District Judge Paul Cassell before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security, 19 Fed. Sent. R. 344, 344–47 (2007) (declaring widespread and judicial opposition to the use of mandatory minimum sentencing). This is not a newly minted or passing concern—since the early 1950s, the Judicial Conference has expressed its consistent and insistent opposition to mandatory minimum sentences. Id.
Even if we put aside the well-recognized concerns calling into question the propriety and effectiveness of mandatory minimums as a whole, problems with the ACCA‘s over-inclusive provisions remain. The concept behind mandatory minimum sentencing was to identify dangerous felons likely to cause public harm and achieve the important goal of removing them from society. For an individual not posing that level of dangerousness, district court judges most familiar with that particular
Throughout the ACCA‘s long history of enactments and revisions, “Congress focused its efforts on career offenders—those who commit a large number of fairly serious crimes ... and who, because they possess weapons, present at least a potential threat of harm to persons.” See generally, Taylor v. United States, 495 U.S. 575, 587–88 (1990) (discussing history of enactment and revisions of the ACCA); accord Begay v. United States, 553 U.S. 137, 146 (2008) (noting that the purpose of the ACCA is to focus on the “special danger” created when violent criminals or drug traffickers possess a gun). It does this, in part, by creating mandatory sentences of at least fifteen years for those who violate the statute while committing or after having committed drug crimes or crimes of violence, indicating that Congress sought to remove the most dangerous individuals from society. See
Two objective criteria—sentences imposed on others in the federal jurisdiction and sentences imposed for the same offense in other jurisdictions—as well as common sense, suggest that the ACCA dragnet is too broad. See Harmelin, 501 U.S. at 1005. Speaking on behalf of the Judicial Conference, Judge Cassell provided a telling example of inequities generated by mandatory minimum sentences as compared to other sentences:
Mandatory minimum sentences produce sentences that can only be described as bizarre. For example, recently I had to sentence a first-time offender, Mr. Weldon Angelos, to more than 55 years in prison for carrying (but not using or displaying) a gun at several marijuana deals. The sentence that Angelos received far exceeded what he would have received for committing such heinous crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. Indeed, the very same day I sentenced Weldon Angelos, I gave a second-degree murderer 22 years in prison—the maximum suggested by the Sentencing Guidelines. It [is] irrational that Mr. Angelos will be spending 30 years in prison longer for carrying a gun to several marijuana deals than a defendant who murdered an elderly woman by hitting her over the head with a log.
19 Fed. Sent. R. at 344.
Regarding the second criterium, Young‘s mandatory minimum sentence under the ACCA finds no comparability to sentences
In a general sense, federal sentences often far exceed state sentences for comparable conduct, a fact that may itself suggest disproportionality or unfairness. See Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L.Rev. 893, 916–17 (2000). Considering the facts of the crime charged—that it was: committed with little culpability or risk of harm as compared to other crimes governed by the ACCA; consisting of behavior that many states do not criminalize and none would penalize so harshly; punishable by the same mandatory harshness as crimes posing a real risk to society—the inference of unfairness is unavoidable. Such comparisons have been held to support Eighth Amendment violations. E.g., Kennedy v. Louisiana, 554 U.S. 407, 426 (2008) (finding it significant in Eighth Amendment analysis of a death penalty case that the defendant would not have received similar punishment “in 45 jurisdictions“); Solem, 463 U.S. at 303 (finding Eighth Amendment violation in part because the defendant had been treated more harshly than other criminals in the state who had committed more serious crimes and “more harshly than he would have been in any other jurisdiction“).
The practical problems with—and unfairness of—the ACCA and mandatory minimum sentences in general have long been a concern of legal scholars and many in the judiciary. E.g., Paul J. Hofer, Review of the U.S. Sentencing Commission‘s Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, 24 Fed. Sent. R. 193, 193 (2012) (“Mandatory minimum penalty statutes are particularly wasteful and unfair; they sweep too broadly and require excessively long sentences for over ten thousand offenders every year.“); Paul G. Cassell and Erik Luna, Sense and Sensibility
While the means Congress has selected must be accepted, this case once again reveals the need for, at minimum, a more sensible and targeted ACCA, one that would continue to remove from society those most likely to cause harm while allowing less severe sentences for those who, like Young, do not pose that risk. The ACCA would benefit from practical measures such as a safety valve or graduated sentencing based on the kind of weapon or ammunition possessed, the indicia of risk, or the remoteness of past crimes. E.g., The Justice Safety Valve Act of 2013, S. 619, 113th Congress (2013) (proposing to allow federal judges to impose sentences below statutory minimums to prevent injustice). Or Congress could simply give district court judges—who tend to have better knowledge of whether defendants truly pose a risk to society—the discretion to impose appropriate sentences. See Statement on Behalf of the Judicial Conference, 19 Fed. Sent. R. at 348–49 (highlighting various policy options for increasing judicial discretion in a fair and transparent manner); Judge Nancy Gertner, Supporting Advisory Guidelines, 3 Harv. L. & Pol‘y Rev. 261, 262 (2009) (arguing that judicial discretion in sentencing “is not a spigot [that must] be turned on or off” but something that can be used with proper guidelines for consistency and transparency); see also Judge Nancy Gertner, A Short History of American Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J.Crim. L. & Criminology 691, 694–704 (2010) (tracing sentencing trends and showing how, ironically, the Guidelines and mandatory minimums were originally part of an effort to reduce sentencing disparity). Such discretion would have made all the difference in this case, as Judge Collier made quite clear that his factual findings showed Young not to be the kind of person who should be put away for fifteen years to protect society.
Society pays a great price when Congress over-criminalizes conduct. The cycle of poverty, criminality, and incarceration decimates communities, often “for no truly good law enforcement reason.” Attorney General Eric Holder, Remarks at the Annual Meeting of the American Bar Association‘s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/
Congress is well aware of the problem of over-criminalization; indeed, it has taken sufficient notice for the House Judiciary Committee to form a special task force to address the drastically expanding repertoire of federal crimes, many of which, like the present offense, include no criminal intent element. Judiciary Committee, Press Release, House Judiciary Committee Reauthorizes Bipartisan Over-Criminalization Task Force (posted Feb. 5, 2014), http://judiciary.house.gov/index.cfm/2014/2/house-judiciary-committee-reauthorizes-bipartisan-over-criminalization-task-force. The United States Sentencing Commission has set as a priority for its Sentencing Guidelines amendment cycle for May 1, [c]ontinuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission‘s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the ‘safety valve’ at
“[W]e judges have a right—a duty even—to express criticism of legislative judgments that require us to uphold results we think are wrong.” United States v. Ingram, 721 F.3d 35, 43 n. 9 (2d Cir. 2013) (Calabresi, J., concurring). I therefore join the continuous flood of voices expressing concern that the ACCA and other mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation. I commend this case as another example of the need to reconsider the ACCA and mandatory sentencing in general.
STRANCH
CIRCUIT JUDGE