United States v. Graham

procedural require- nor her rights ther her certainly affect the

ments, did not Because in tort. right her sue

waiver of mechanism provides CBA claim, Espi- and because

adjudicating her her- she not avail did

noza concedes Procedure, we find Claims

self of the precluded.

Espinoza’s claims

IV. CONCLUSION Cargill her sue right waived

Espinoza injuries, under Texas work-related law, and enforce-

labor her waiver valid also had the Union

able. Because sue, the right her

authority to waive in the is also valid waiver CBA

Union’s Additionally,

and enforceable. law tort Espinoza’s state

the LMRA bars adjudication Cargill’s

claim because involve

duty Espinoza’s remedies will Final- the terms CBA.

interpreting she suit is barred because

ly, Espinoza’s Procedure. to exhaust Claims

failed reasons, we the district

For affirm these judgment in fa- summary grant

court’s

vor Cargill.

AFFIRMED. America, STATES of

UNITED

Plaintiff-Appellee, GRAHAM,

Donald Defendant-

Appellant.

No. 08-5993. Appeals, States Court of

Sixth Circuit. Jan. 2010.

Argued: Sept. Filed:

Decided and En Banc

Rehearing Rehearing Dec.

Denied 2010.* * grant rehearing stated in would for the reasons his dissent. Judge Merritt judgment acquittal, for a

motion denial disregard sentence, of his motion to and decision. Graham’s main appeal contention on is that his life sen- tence, imposed for his qualifying third felo- 841(b)(1)(A), under 21 ny U.S.C. violates the Amendment to the U.S. Consti- error, Finding tution. no reversible we rulings the on affirm district court’s Gra- ham’s motions and his life sentence. part arrested of an in- Graham was vestigation conducted the Northern (“NKDSF”) Kentucky Drug Strike Force County Department and the Kenton Police (“KCPD”). Starting in September began the NKDSF and the KCPD a series buys of six controlled with a cocaine-base McKenna, Timothy J. Law ARGUED: investigate confidential informant the McKenna, LLC, Timothy J. Cin- Office of tip confidential informant’s that Jermaine Ohio, cinnati, for Appellant. Andrew drug supplier.1 Goodwin was a The first Attorney, Sparks, Assistant United buys four controlled occurred at various Lexington, Kentucky, Appellee. for ON Kentucky locations northern where the McKenna, Timothy J. Office BRIEF: Law confidential informant was located. The McKenna, LLC, Cincinnati, Timothy of J. buys, two last controlled on October 16 Ohio, Sparks, Appellant. for Andrew 17, 2006, occurred at resi- Goodwin’s Arehart, Wisdom, Jr., P. E. Charles James Kentucky. On each of dence northern Lex- Attorneys, Assistant United States days, these Goodwin told confidential Kentucky, ington, Appellee. drugs informant he that the when arrived MERRITT, MOORE, and Before: way. then on their arrived were GIBBONS, Judges. Circuit went Goodwin the back area with (a bedroom), after apartment of Goodwin’s MOORE, J., opinion of delivered the living which Goodwin returned to court, GIBBONS, J., joined. in which drugs complete room with the the deal 465-70), MERRITT, (pp. J. delivered with the confidential informant. Follow- dissenting separate opinion. ing this on the sequence events second OPINION day, police October stormed apartment to execute a search warrant. MOORE, NELSON KAREN Circuit Graham, Goodwin, Corey and William Judge. Howard, companion traveling Graham’s Graham, convicted three Donald charged all October were arrested a seven-count counts of indictment in a as co-defendants ten-count indictment. offenses under U.S.C. crack-cocaine 841(a)(1) pleaded Both and Howard Goodwin §§ and 18 U.S.C. guilty plea agreements requiring denial of appeals from district court’s trial. After a testify Rule of 29 them his Federal Criminal Procedure tencing analysis developed relevant to our below. present 1. We statement where more summary present purposes, a will and sen- For suffice. the facts of Graham's instant crime trial, three-day jury convicted Graham evidence taken at its face value sufficient pertaining three to him: jury.” counts to go for it Dist. Ct. Doc. Goodwin, One, How- conspiring (“Doc.”) (Trial 56). Count Tr. # 3 at We ard, possess and others to distribute and de denial review novo the of a motion for fifty with intent to distribute excess of “a acquittal, viewing light the evidence in (21 grams cocaine base prosecution, giving most favorable to 841(a)(1), 846); Six, §§ Count distribution prosecution the benefit of all reason base, than greater grams five cocaine testimony.” able inferences from the Goodwin, Howard, aiding abetting and and 526, McAuliffe, F.3d United 490 (21 in and others this distribution U.S.C. (6th denied, Cir.), 976, 537 U.S. cert. 552 841(a)(1); 2); 18 Count U.S.C. and (2007). 442, 128 S.Ct. 169 L.Ed.2d 309 Seven, greater fifty distribution of than question assessing “The relevant a chal base, aiding of grams cocaine and and lenge sufficiency of the evidence is Howard, Goodwin, abetting and others whether rational trier of fact could (21 841(a)(1); this distribution U.S.C. 18 found the essential elements of the 2).§ court denied district had beyond a crime reasonable doubt.” Id. We Graham’s Rule 29 of judgment motions not may “weigh the evidence presented, acquittal government’s the close the witnesses, credibility consider the case and the close of all the evidence. substitute our judgment for that the appointed With new counsel for sentenc- jury.” United v. Transp. States M/G ing, filed a for a Graham belated motion Servs., (6th Inc., 584, 173 F.3d Cir. new trial and a motion to disregard 1999). sentence. The district court both denied and August motions Graham on sentenced “A defendant insuffi claiming 1, 2008, impris- to concurrent terms of life ciency very heavy evidence bears a (the mandatory onment minimum for Abboud, burden.” United States v. 438 One Counts Seven (6th Cir.) (internal 554, quotation F.3d 589 841(b)(1)(A)) impris- and 168 months of omitted), marks and alteration cert. de (Count Six). onment nied, 976, 446, 549 127 U.S. 166 S.Ct. timely Graham the appeals denial his (2006). We afford the same acquittal and life sentence motions and weight to both circumstantial and direct challenges the reasonableness of his sen- Gallo, evidence. v. United States 763 F.2d tence. (6th 1504, Cir.1985), denied, 1518 cert. 475 1017, 1200, U.S. 106 S.Ct. I. DISCUSSION “ (1986). ‘[c]ircumstantial Because evi ” conviction,’ A. may Denial of dence alone Graham’s Motion for sustain a Judgment Acquittal physical not a prerequisite evidence is sustaining a conviction. United States v. argues the district Davis, (6th 398, Cir.2002) 306 F.3d 408 court in denying acquittal erred his mo Adams, (quoting United v. 265 F.3d States tions because “No One Saw Graham Do (6th Cir.2001)), denied, 420, 423 cert. 537 Anything,” making government’s the evi 1208, 1290, 123 S.Ct. 154 L.Ed.2d support dence insufficient to a conviction. (2003). “Furthermore, 1054 it is well-set Appellant Br. at 17. The district court testimony tled that uncorroborated of an record, denied motions accomplice may support “A stating, lot of the evidence is people credibility greatest, Spear court.” whose isn’t the but the federal (6th issues, Cir.) ignore man, 743, Court has to those (citing, 186 746 F.3d

449 States, proved government 336 have found alia, Krulewitch v. United inter beyond a reasonable doubt: 454, 716, 790 440, 93 L.Ed. denied, 1033, (1) 120 per more (1949)), agreement by 528 U.S. two or cert. (2) laws, 560, accord knowl sons to violate L.Ed.2d S.Ct. 800, Owens, conspiracy, join and intent edge v. 426 F.3d States United (3) denied, conspiracy. in the (6th Cir.2005), participation cert. 546 U.S. v. Salgado, States [United L.Ed.2d (6th Cir.), witness challenge on a may not rule We of a denial credibility reviewing (2001) Elder, ]; so doing acquittal because

motion for (6th Cir.1996).... It jury province invade “would necessary government jury trial.” of fact in a finder the sole agreement, the exis a formal prove Bearden, conspiracy may of a be inferred tence Cir.2001) (internal quotation that can from circumstantial evidence omitted). to attempt A defendant’s marks reasonably interpreted partic be “simpl[y] chal credibility attack witness plan. in a ipation common United quality government’s ... lenges Avery, 970-71 128 F.3d sufficiency of and not the evidence (6th Cir.1997). conspirator A need not Paige, 470 v. United States evidence.” every phase active participant be ah (6th Cir.2006) (internal quo F.3d party conspiracy, long a as he is a so omitted). marks tation general agreement. conspiratorial all of con- attacks of his counts 447. Salgado, 250 F.3d at While mere no that there is arguing generally, viction at the insuffi presence scene would be or tying him to Goodwin evidence direct a defen participation, cient to establish saw buys no one the controlled because conspiracy’s in the participation dant’s money, any drugs marked him with or purpose may common be inferred from statements about Gra- and that Goodwin’s the circumstances as well. Id. attack enough. does not ham are not He 608-09; at also Unit Paige, 470 F.3d see of the counts specific elements Gibbs, 408, 420 ed States v. conviction, broad points rather out but Cir.), denied, 1051, 120 cert. government’s with the evidence. problems (1999). “A defen 145 L.Ed.2d 492 pre- have government must Because voluntary guilty knowledge and dant’s count for each sented sufficient evidence may from be inferred sur participation trier of conviction such that a “rational circumstances,” including a close rounding ele- the essential fact could found conspirators, relationship alleged between beyond of the crime a reasonable ments more than participation requires but doubt,” we set McAuliffe, 490 F.3d conspirators.” “mere association with for each required the elements forth Brown, F.3d count. (6th Cir.2003) (internal quotation omitted). relation buyer-seller marks A Required for The Elements Con- 1. evi enough, others ship with viction conspiracy linking of a or evidence dence a. Count One a conspiracy defendant to particular sales, repeated uphold may provided by: a conviction on Count be To Brown, (holding regular F.3d One, possess to at 373 conspiracy distribute purchase large to amounts is distribute, jury arrangement must intent conspiracy); “fur 2. The Evidence Presented at Trial evidence of sufficient knowledge indicating evidence ther government We conclude that Gibbs, conspiracy,” in the participation presented support sufficient evidence 422; large quan of a or “evidence F.3d jury’s all In verdict as to counts. Caver, tity drugs,” response Graham’s insufficient-evidence (6th Cir.2006), 220, 233 challenge, government upon relies testimony regarding Goodwin’s Graham’s (2007), supplier repeated involvement as “[O]vert acts corroborating testimony. other witnesses’ prove conspiracy not needed to above, may we As stated not review Good Gibbs, 182 F.3d at 846.” credibility, testimony win’s Goodwin’s if may alone convictions support Seven b. Counts Six & testimony prove was Gra enough of 21 violation “[A] beyond ham’s involvement a reasonable 841(a), cocaine, requires distribution of Spearman, F.3d at 746 doubt. (1) knowingly inten defendant: (upholding sufficiency on chal (2) and; cocaine, tionally at the distribute lenge co-conspirator’s based on one testi of such distribution the time defendant Gibbs, mony); 425 (upholding F.3d at knew the substance was cocaine.” sufficiency challenges convictions where Colon, 376 only eyewitness one as to testified defen (6th Cir.2001). Counts and Seven also Six involvement, government dant’s cited charged Graham under 2 for 18 U.S.C. witnesses); Nieto, multiple corroborating 21 aiding abetting and another to violate Fed.Appx. at con (upholding 226 487-89 of “[T]he U.S.C. 841. essential elements aiding abetting viction for and distribution (1) an aiding abetting and act the for in participation conspiracy and active defendant that contributes commis co-conspirator’s testimony based on and crime, (2) sion to intention indirect partic evidence defendant’s aid the commission the crime.” ipation); Henley, see also United States v. Davis, (6th Cir.2004) prove 306 at 412. “To that 509, F.3d (up holding sufficiency aided and abetted the challenge [Graham] conviction on 2,§ gov testimony transactions under 18 on co-conspira based of two tors). par ernment must that [Graham] establish ticipated something ]he the venture as [ trial, informant, At the confidential bring sought

wished to about and to make Payne, Shawn testified that Goodwin told Ward, succeed.” 190 they him when first met in the fall of 2006 (6th Cir.1999), 487 “basically hookup that Goodwin had a on 120 S.Ct. narcotics,” buy and that the first controlled (2000), 120 up very day. was set next Doc. Paige, see also (Trial 56). Tr. # 2 at told Goodwin never 609; 447; Salgado, 470 F.3d at 250 F.3d at Payne identity supplier, his Nieto, Fed.Appx. Payne never saw or knew Graham until (6th Cir.2007) (unpublished opinion). at October 16. Id. 76-78. Goodwin testi- government required was not prove to obtaining drugs fied that he had been as a actually Graham that himself distributed Graham middleman from for three or four cocaine, possession or only had months to Goodwin’s arrest on Octo- principals’ he had knowledge drugs actions ber 16 and that he had obtained Paige, and assisted. 470 F.3d at Graham “like 20 or so.” Doc. from times 21-24). they waiting. had Id. at (Trial # 1 for whom been Tr. at Goodwin’s 113-14, that he 125. Howard testified fiance, Abney, testified that Good Tasha to Goodwin’s on October 17 Graham drove Graham drugs receive from win would package drop and that off of cocaine. Id. weekly basis” supplier “[o]n his Goodwin, Abney, house and Howard 149-50. had driven Goodwinto Graham’s she they bring each testified saw Graham throw when did occasions Graham on (Trial money Tr. when on police down arrived to Goodwin. Doc. drugs (Trial 107-09). (She 17. Doc. 123 Tr. # 1 at confirmed October also #2 (Trial 127-30, 59); hap Doc. 124 Tr. #2 at had that she stated cross 152). Id. at “on about 20 occasions.” pened 125.) knew testified that he Howard Hardcorn that the Officer Scott testified Graham, and that through Goodwin and the KCPD used a confidential NKDSF off at of cocaine dropped packages he had buys informant to make six controlled “three or apartment for Graham Goodwin’s Goodwin, September 2006 starting from times,” had driven Graham Good four informant police after the first told about occasionally, and had been apartment

win’s ending the two con- Goodwin “nine to eleven apartment to Goodwin’s buys question directly in- trolled he “around since met Goodwin times” (one volved ounce on October 16 May of '06.” at 146-48. On Id. April $1,000 and three ounces on October 17 cross, had Howard testified that Goodwin (Trial $3,0002). Doc. 124 Tr. # at 4- supplier. also that he had another stated 14-15). buys, For the first four Good- Id. at 154. drugs brought win to the confidential Kentucky, at various for each of informant locations testified that

Goodwin buys occurred buys on 16 and but the October controlled October apartment. crack at 5-8. Offi- to obtain at Goodwin’s Id. he called Graham after and had cer Hardcorn interviewed Goodwin complete the sales cocaine arrest, and the officer to he had his Goodwin told for Graham arrive before wait (Trial # 1 had the cocaine on supplied Tr. that Graham drugs to sell. Doc. 123 the 26-30.) testify 16 and 17. at 22. Officer Because did not October Id. at Graham defense, only actually testified that did not was the Hardcorn he in his own Goodwin origin drugs the for the four testify happened as to what know person that none of buys received controlled and previous bedroom where Goodwin the back buys con- for were ever Payne baggies from the the cocaine Graham. 24-25, fingerprints. at 28- have the for Id. that Goodwin did not tested firmed Andy 16 Officer Muse testified Payne on October 40-41. drugs when arrived completed 16 he drive to that he that on October saw Graham and Goodwin after the apartment and went enter Goodwin’s after Graham arrived and the deals with informant arrived and then apartment area of the confidential to the back (Trial 63-65, informant, and that on 124 Tr. # 2 at before Doc. leave Goodwin. 80-81). 66-71, police that 17 he saw Graham once the also confirmed October Abney but had waiting apartment 17 had entered Goodwin’s Goodwin was on October Doc. 123 Graham arrive. drugs arrive not observed Graham (Trial 5-8, 12). Tr. # 1 at Both officers Payne that she after Gra- Payne, and told that the informant did supplier that testified confidential ham arrived Graham was 8). (Trial Tr. # 3 at that one 125 Agent Rolfsen testified 2. Matthew grams. Doc. approximately 28 ounce is 452 drugs on 16 or B. Denial Motion

not obtain the October 17 of Graham’s to Dis- at regard until after arrived Goodwin’s Life Sentence (Trial Id. at 5-9; apartment. 124 Doc. Tr. United States Hill Impact 17-19). # 2 at Officer Hardcorn also testi- We review de a constitution novo fied that heard Graham’s voice on he sentence. al to a recordings challenge from the 16 and 17 October Jones, (Trial (6th 47). Cir.2009). 124 #2 buys. Doc. Tr. F.3d 569 573 Rolfsen, Agent Matthew an evidence tech- Graham that argues the district court nician, about the testified evidence found sentence, erred his pursuant because apartment buy Goodwin’s and identified 841(b)(1)(A)(iii), dispro grossly (Trial money found on the floor. Doc. 125 portionate under Eighth Amendment 26-30). Tr. # 3 at as a result of over-stated criminal histo ry comparison and in to his co-defendants’ cross-examined trial counsel acknowledges sentences.3 Graham government each witness about his or her court’s Hill issues, decision potential credibility and biases minimum jury district court instructed the about sentences under 841(b)(1)(A)(iii) co-conspirator paid-in- how to utilize 21 U.S.C. do not consti testimony during formant Goodwin’s testi- Unit punishment. tute cruel unusual testified, Hill, mony Payne respective- and after ed States v. (Trial See Doc. 123

ly. 34); Tr. # 1 at Cir.), 98). (Trial Doc. 124 Tr. #2 at Graham 350, (1994), L.Ed.2d record, stated jury’s on the outside the

presence, he right his understood to Hill confirmed that this court adheres to “ testify he testify. and that did not want to proportion Court’s ‘narrow ” (Trial 55-56). Doc. # Tr. 3 at ality principle’ announced Harmelin v. Michigan,

From our review of trial the entire tran- (1991), stating L.Ed.2d that “the script, we conclude there was suffi- evidence, Amendment prohibits] cient ‘ex light viewed in the most treme government, “grossly dispro favorable sentences from which a ” Hill, portionate” jury reasonable could found crime.’ the es- Harmelin, One, Six, sential elements of at 50 (quoting Counts U.S. at 995- Harmelin, beyond Seven 2680); reasonable doubt. motion, 3. In his separa Graham’s counsel conceded reasserted Due his Process Clause or prior felony that Graham had at least two powers arguments, tion of raised which facial period and offenses that the time to as-applied challenges and to the use of man collaterally passed attack those had under 21 datory mínimums under the Guidelines. The argued but the that district arguments district did court not these address apply court should district California court’s motion, in its first order related to this see reasoning reject mandatory the to life sen- (July 2), Doc. 150 at 2 n. Order but arbitrary, disproportionate, tence as and like- reject arguments, facially the court did these ly unconstitutional as violation of the applied, argument on the record after Amendment, Clause, Due separa- Process (Sent. sentencing hearing, at the Doc. 160 Tr. powers tion of concerns. Doc. 130 at 235-37 7-17). at The Ninth Circuit has vacated the (Mot. Disregard); to Doc. 149 at 315-20 opinion upon district court which Graham (Supplemental Support). Mem. in Counsel Grant, F.Supp.2d relied. United States v. sentence, argued for a 168-month "a sen- (C.D.Cal.2007), part, vacated in 312 Fed. proportional tence that is conduct of Cir.), denied,-U.S.-, (9th Appx. 39 co-Defendants, Goodwin Howard.” appeal, Doc. 130 at 237. On Graham has not Hill, claim (rejecting, under (“Severe, at 573-74 994-95, 111 S.Ct. 2680 at cruel, mandatory minimum ten-year may be mandatory penalties posses- count of 841(b)(1)(A)(iii) constitutional for one in the not unusual they are fifty ”). distin- over attempts to intent to distribute with sion sense.... that his sen- grounds grossly dispro- on the base was Hill of cocaine guish grams Thornton, over-represent- triggered tence “was States portionate); just rather than history” (6th Cir.2010) criminal (unpub- ed 373, 379 609 F.3d not did statute, government and that rejecting (citing cases opinion) lished “possessed that he direct present evidence circum- defendant’s challenge because These Br. at 23. Appellant anything.” kilograms of “(including the 72 stances Hill. To distinguish do not arguments cocaine) cited cases” with line these pa- mandatory life term without uphold from our depart is no reason and “there felony conspiracy-to- for a third-time role precedent”); United settled 177.8 responsible for offender distribute Nichols, 99-3108, 221 F.3d No. base, upon Hill relied grams of cocaine 2000) *2 Cir. June WL Harmelin, Court which inability (relying on opinion) (unpublished for a first-time sentence the same upheld for third reject toHill claim distinguish grams with offender felony possession possession conviction of with felony drug Hill, The at 50-51. 30 F.3d of cocaine. crack). grams 234.75 intent to distribute impact considered Hill court neither felo- qualifying that his criminal prior argument two the defendant’s existed, they id. more trou- nies, “overrepresented” note that is except history rejected whether the defen- previously nor remarked We blesome.6 49-51. anything,”4 id. at “possessed court dant argument mitigat- to consider been able should have rejected claims sim- repeatedly haveWe felony con- factors related ing Caver, Graham raises. ilar to those that 841(b)(1) predicates. §as victions utilized (rejecting as meritless at 247 Jones, (rejecting argu- 569 F.3d at 574 that fails to dis- claim Eighth Amendment crimi- one defendant ment that Hill). The fact that Graham’s tinguish have received should not nal-history point conspiracy is for felony conviction current minimum, referenc- statutory does fifty grams5 excess to distribute Harmelin). felon Hill, ing first-time case. See distinguish his rejected the specifically Court (same Harmelin crime, with statement at 50-51 a court must argument defendant’s grams for 177.8 responsible defendant was impos- before mitigating factors Jones, consider base); also see of cocaine conceded Graham's trial counsel drug quanti- compare 6.Because did The Hill court defendant, Hickey, collaterally attack his found ty was could not for which the that Graham conspiracy-to-distribute responsible the period under the felony under prior convictions drug quantity in the charge the Harmelin (Sent. 851, Tr. at § see Doc. 160 limitations 51, Hill, the charge, 30 F.3d at possession 4-5), argument as construed this Hill have we section) (even in the fact not court did discuss should have claiming that the district court Hickey possessed to have was found whether of his to consider circumstances been able quantity drug involved. any part of the We mitigating factors. history criminal implications greater of Graham's consider conspiracy involved that the 5. The PSR stated felony below. prior conviction earliest grams base 500 of cocaine 150 to between relevant- under the this amount and used provision to determine Graham's conduct 29, ¶¶ 25, 35. PSR at offense base level. 454 statutory mandatory

ing a minimum. Graham advanced his motion to disre- Harmelin, 994-95, However, gard the particu- at 111 life sentence.7 S.Ct. lar (rejecting argument circumstance of Graham’s earliest-in- 2680 that defen felony prior drug presents time prior dant’s should have lack of felonies separate question. mitigated imposing statutory man against datory parole minimum of life without 841(b)(1) §2. “Prior Convictions for based on asserted need to determine indi Felony Drug Offense”: Commit- vidually punishment appropri whether is Juvenile, ted as but Convicted Amendment). Eighth ate under As “[w]e Adult Sentenced as an held, ... there is no constitutional right sentencing to individualized in non- prior felony Graham has two Odeneal, capital convictions, v. cases.” United States both of which the district 406, (6th Cir.2008); F.3d see also court as triggering counted offenses for Jones, 841(b)(1)(A)(iii) 327, Fed.Appx. life sen (6th Cir.2006) (unpublished opinion) 336-37 tence. In when Graham was seven argument (rejecting teen, pleaded guilty he under an indict grossly disproportionate creates sentences ment him charging as an adult for two distinguish because the statute not does aggravated drug trafficking counts of un possession-only prior law, (in between felonies and der Ohio and he was sentenced felonies), seventeen) more trafficking serious cert. de still age but while to one nied, S.Ct. 168 year years later, of imprisonment. Two (2007). “[Tjhere nineteen, L.Ed.2d no doubt when was he was sen Congress judi has to limit authority tenced to two consecutive six-month terms discretion, cial or even eliminate it alto of imprisonment for two counts of traffick gether, by imposing mandatory minimum ing under law. cocaine Ohio Graham’s sentences.” United v. Wimbley, States counsel at instant case (6th Cir.), 462-63 cert. de present did not much argument of an - nied, -, ability contest the district court’s to con Hill Under aggravated sider Graham’s 1995 traffick Harmelin, we must ing conclude the dis- triggering conviction as a offense for 841(b)(1)(A.)(iii) trict court did not violate the sentencing purposes.8 in rejecting arguments Amendment And arguments appeal fo- Although presentence our conclusion report showing that Graham's sen is correct grossly disproportionate previous tence is felony drug not obviates at least two offenses” comparative the need pro to reach Graham's pursuant "concede[d] to 21 U.S.C. Jones, allegations, portionality 569 F.3d at period Section of limitations has Harmelin, (citing 501 U.S. at expired for collateral attack on those convic- 2680), we reject argument (Mot. would 2). Disregard tions.” Doc. 130 Odeneal, precedent. under 517 F.3d at "note[d] Counsel that on the initial convic- tion, (rejecting similar claims under United the Defendant was a and under Layne, distinguishing law, between applicable federal convictions codefendants); Layne, typically felony counted as con- Cir.) ("This Court has victions.” Id. 3. But counsel did not agreed [with Court] that challenge com quali- whether the 1995 conviction parative proportionality constitutionally is not arguing fied instead that "this denied, 888, mandated."), cert. 540 U.S. 124 presented Court is with the Hobson's choice 270, (2003). S.Ct. L.Ed.2d 157 160 imposing a mandatory sentence life on a prior Defendant with two convictions disregard mandatory together required In the motion to that life Defendant to serve sentence, years prison; imposed "concede[d] Graham’s counsel that two were over 10

455 denied, 2007) (unpublished opinion), cert. ability to uti- the district court’s eused 879, 1104, his 128 S.Ct. minor nature of 552 U.S. mitigation the lize for (2008). error, they plain that “To establish and the fact 738 felonies prior two (1) to the sen- that an error years prior defendant must show over ten occurred (2) court; argument that But at oral in the district tencing in this case. occurred i.e., (3) clear; whether obvious or plain, focus shifted error was 841(b)(1)(A)(iii) the district supported defendant’s sub the error affected (4) ability consider this adverse rights; court’s and stantial (A)(iii) (b)(1) fairness, a conviction calculus in seriously § 841 affected the impact action treated as from a stemming reputation judicial tegrity public or Blackwell, sentencing pur- v. prosecution for United States adult proceedings.” law, Cir.2006) (internal and further whether (6th under state poses 739, 771 459 F.3d denied, under is constitutional practice omitted), this 549 quotation marks Amendment. 1211, 1336, 127 S.Ct. 167 L.Ed.2d 84 (2007). We have held that “unconstitution failed to raise Because of sentences” affect sub enhancements al before the dis challenge this constitutional Milan, rights. United States v. stantial court, error.9 plain review trict we (6th Cir.2005). 445, 452 Oliver, 369, v. F.3d United States 397 first, statutory challenge v. Muril (6th We address United States Cir.2005); 377 (6th lo-Monzon, 43, statutory we conclude that lan- 46 Cir. Fed.Appx 240 right, disproportionate of a waiver is the 'intentional relin ago clearly years and are mandatory by urged quishment as of a the life sentence or abandonment known ” Zerbst, report this case.” Id. The presentence right.’ (quoting v. Johnson 304 U.S. accepted concession 1019, court Graham's 458, 464, district 82 L.Ed. 1461 rejected that his Graham’s contention Goodman, (1938))); see juve- considered a conviction could be 310, (6th ("It Cir.2008) is true that a F.3d adjudication the Presentence because "as nile may objections waive if he inten defendant indicates, Report Investigation while Graham tionally relinquishes or abandons known juvenile, initially charged he was was particular, agree we ... that an right. In adult. Such prosecuted and sentenced as an agree open attorney court with a cannot any argument that this treatment forecloses then judge’s proposed course of conduct and ignored should be following charge the court error 4). 841(b).” (Dist. Op. Ct. At Doc. 150 (internal quotation marks and altera course.” sentencing hearing, counsel re- Blackwell, omitted)); v. tions "objects pre- to the two that Graham iterated (6th Cir.2006) (review 770-71 felony are in the convictions that vious ing plain claim for defendant’s constitutional indicated, I have not that “as I've [PSR]” challenging it in error when he failed to raise that would allow me to move seen basis challenge did the fine on other his fine but disregard those.” the Court to disallow grounds), cert. 549 U.S. (Sent. 4). Tr. at Doc. 167 L.Ed.2d 84 United S.Ct. cf. may claim that we review this 9. We conclude Smith, (6th Fed.Appx. "simply failed to raise this because Graham Cir.2007) (holding (unpublished opinion) below, posture] and took no [in issue felony drug challenge failure to whether voluntarily steps waive his affirmative qualified offense Branham, claim.” United States term, explicit concession 1996). Graham thus forfeit Cir. pre qualify, to waiver that it did amounted right appellate review of this ed his to full consideration), cluding appellate vacated on claim, plain may it for error. but we review grounds Town other defendant for different Olano, 507 U.S. States, v. United send ("Waiver (1993) forfeiture. Whereas forfei is different from timely assertion the failure to make ture is guage supported ability the district court’s the state statute criminalize conduct ‘relat- juvenile-age to count ing’ drugs. Graham’s expansive The use of the 841(b)(1)(A.)(iii) § as a ‘relating’ conviction. term as the limi- substantive 841(b) provides part: Section relevant tation on statutory the reach of the phrase ‘felony drug clearly offense’ indicates that any person If commits violation of this the statute encompasses drug offenses that subparagraph ... after pri- two or more simple possession involve the of drugs.”). or a felony drug convictions for offense Thus the time of final, person become such shall be the district obligated court was employ mandatory sentenced to a term of life 802(44) § definition “felony drug imprisonment without release and fined offense.” in accordance with the preceding sen- tence. However, “prior whether a conviction” 841(b)(1)(A). stemming juvenile action, from a § treated U.S.C. prosecution as adult for and sentencing Court has held the definition of “felo purposes law, 802(44) under state ny drug qualifies as § in 21 offense” U.S.C. “felony drug offense” under controls as the “exelusive[ ]” definition for 802(44) § 841(b)(1)(A). qualifies definition purposes “prior §of as a Burgess v. 841(b)(1)(A) States, § conviction” for 124, 127, United 553 U.S. minimum (2008). purposes open ques- remains an 170 L.Ed.2d Although tion in this circuit. In Burgess United Court decided States this issue in Young, decision, an unpublished reference to the the defen- twenty-year mandatory- dant argued that such an § minimum offense could not provision, uses qualify as a “prior conviction” language same under twenty-year both the 841(b)(1)(A), § challenging pred- and the life-term one of his mandatory-minimum pro icate state convictions used on ground visions. See id. (rejecting argument that that he “just received it under sentencing courts a month should defer to state-law definitions). eighteenth before his birthday.” 802(44), § crime United Under “[t]he Young, States v. ‘felony Fed.Appx. term drug offense’ means an of (6th Cir.2009) (unpublished punishable opinion), fense that cert. by imprisonment — denied, -, for more than year one law of How- United States or of a foreign State or ever, the country state had tried and prohibits convicted the or restricts conduct defendant “as an adult.” relating marihuana, Young Id. The drugs, narcotic ana panel steroids, stated that Burgess bolic depressant controlled for its or stimulant interpretation § 841(b)(1)(A), substances.” 21 § con- 802. This cir 802(44) cluded: cuit used “felony to define 841(b)(1)

offense” in purposes of the We do not need to decide whether Con- mandatory life term even before gress the Su intended provision to include preme Court Burgess.10 decided convictions by juveniles received aas (6th Spikes, 931-32 juvenile adjudication. result of a Young Cir.1998), was convicted as an adult in an adult id. at court. He possessing was convicted of (“[Section] 802(44) only requires that drugs distribute, with the intent to ion) This court Burgess 841(b)(1)(B)); has since cited (defining § in un published 841(b)(1) opinions Young, Fed.Appx. definitions. 189-90 Cir. Lockett, 2009) See United Fed.Appx. (unpublished opinion) (defining (6th Cir.2009) (unpublished opin 841(b)(1)(A)). ¶ 44. by grand a He was indicted years pris- PSR for fifteen eligible

he was Aggravated of Traf jury on four counts Thus, felony a convicted of he was on. law, felony. He ficking under Ohio by Congress.11 drug as defined offense two counts of an amend pleaded guilty to footnote, reject- court In a Id. at 190. a fourth- charge “Trafficking-Sale,” ed that the argument Sen- the defendant’s ed felony, County in the Hamilton degree Guidelines, specifically U.S.S.G. tencing Pleas, he was sen of Common and Court 4A1.2(c), juvenile convic- § indicate that year of confinement for each tenced to one prior not be considered as tions should thus count. Id. Graham’s 1995 conviction that, Young panel stated offenses. The “felony drug of a of meets the definition difficulty using to one side the putting 802(44), § that fense” under “an offense is to determine a Guidelines definition than punishable by imprisonment for more statute, used in a meaning of a term ... ... year any one law of State Young overlooks the next subsection prohibits relating that or restricts conduct 4A1.2(d) pro- Section the Guidelines. marihuana, drugs, to narcotic anabolic for offenses com- vides that convictions steroids, or stimulant sub depressant or are considered in prior age mitted Contrary § 802. stances.” if was convict- sentencing the defendant argument, we are bound to uti adult, a sentence as an and received ed 802(44) §in lize the definition as the exclu year and exceeding one imprisonment “felony drug sive definition for offense” one month. 127, 132-33, § Burgess, 553 U.S. at at 190 n. 4. Id. Moreover, 128 S.Ct. 1572. reasons, that For similar we conclude 802(44) § Burgess Court stated properly considered Gra- the district court ambiguous implicate and does not 841(b)(1)(A) in its 1995 conviction ham’s lenity in application. rule of its Id. 135- mandatory-minimum Nothing calculus. (holding Congress’s 128 S.Ct. 1572 that a defendant’s indicates “felony drug express definition of offense” her convic- age at the time of his or coherent, complete, by signs all “is §of application tion is relevant to the ambiguity “no for leaving exclusive” is, age it would resolve”). to the extent lenity to “Section rule of if appear 802(44)’s to matter it was related ‘felony drug definition of offense’ prior con- process in which a defendant’s punishable by imprison ‘an ... offense Here, according to short, viction was obtained. year,’ than ment for more one 802(13) PSR, initially arrested Graham “was no to be filled leaves blank ” juvenile, ‘felony.’ as a he was Id. at charged [but] other definition 130, 128 The Court stated that and sentenced as adult.” S.Ct. 1572. prosecuted challenged unpublished never whether his Eleventh Circuit in an 12. Graham has 11. The technically "felony met the 1995 conviction opinion the same rationale— has relied on length on the offense” definition based actually charged defendant "was that the imprisonment, potential term of reject an adult” —to a defen- convicted as drug-traffick- the PSR does not state the Ohio age argument nine- dant's that a conviction ing which he was convicted. We law under youthful- qualified teen that could have presume Graham was convicted of violat- law status under state was not offender ing provision Code Annotat- of Ohio Revised triggering felony 841 under §ed 2925.03 and that the state Williams, Amendment. United States v. court had the discretion sentence (11th Cir.2010) (unpub- Fed.Appx. imprisonment than one to a term of of more opinion). lished 2925.03, §§ year. See Ohio Rev.Code Ann. 2929.13(C). 802(44) § “[b]y recognizing part as the exclu- fines “conviction” in as act or “[t]he offense,’ process judicially finding ‘felony drug guilty sive definition of someone our crime; a having the state of been reading purpose serves an evident (as proved guilty,” and judgment “[t]he as § bring 1994 revision a [to 841]: meas- verdict) by jury a that a person guilty is uniformity application ure of a crime.” Third Webster’s International 841(b)(1)(A) § by eliminating disparities Dictionary (1986) defines “conviction” in divergent based on state classifications of part proving, finding, as “the act of 134, offenses.” Id. 128 S.Ct. 1572. To adjudging person guilty a of an offense or “prior have a a “felony drug conviction” of ...; crime specif: proceeding of rec- § offense” is not defined 841 or person ord which a legally found 802; § undefined, a term is we “[w]hen guilty esp. by jury crime a and on give it ordinary meaning.” its United judgment which the is based.” Santos, 507, States v. 553 U.S. 128 S.Ct. (2008). 2020, 2024, 170 L.Ed.2d Unlike the defendants in our sister cir- Dictionary (9th 2009) issue,13 Black’s Law ed. de- addressing cuits’ cases Gra- 13. Our sister circuits fenses); offense conviction for which defendant re- though only the Second and Eleventh Circuits a defendant's record for such have counted explicitly policy reasons unrelated to innocence or an (unpublished aside, even where those victions removed from a criminal record for Ninth, and Eleventh Circuits that "therefore fresh start” —were not sufficient to avoid the convictions' that must be counted those con of sentences clear mandate of error of law.” Id. at 911 held that Congress States v. ce § We cite these cases conviction that was "set aside” under the countable Federal Youth Corrections Act D.C. Circuit held that a nile convictions for our other circuits and do not evaluate or questions 1023, 841(b)(1)(A) In the most recent opinion regarding Second, Third, Fourth, Fifth, Seventh, expunged, or otherwise removed from 173 L.Ed.2d 310 rt. see Law, conviction—to any policy has not dealt with denied, also 1990 WL 27146 imposed 528 F.3d enhancement prior felony drug mandatory life term. United produced courts United exempted 841(b). convictions opinion) reasons for - § published them. juvenile-age prior may 841(b)(1)(A) 888, give U.S. confronting (2009). opinions (citing prior felony drug Id. "For utilize using prior drug 910-11 the offender "a from the -, background (D.C.Cir.1990) however, 841, setting had reasons,” decision, was still convictions Smith, cases from (upholding prior juve- The court indicating 129 S.Ct. purposes. purposes (D.C.Cir.2008), been set express aside similar 'prior of al a juvenile. ful even if the defendant was tions ful-offender statute and mum). And both the Second and Eleventh could be based on ing ty-year mandatory minimum enhancement Circuits have held that minimum), tion under bilitation Act because conviction discussed hance imprisonment (2d Cir.) (applying tion mandatory minimum if the defendant was felony drug United States v. [3] of adult Tuten v. United ceived United States v. Corrections “final” under "[1] 1412, The Second Circuit has held that a convic Jackson to offender” (2d Cir.2009) replaced by youthful-offender adjudica tried and 194-95 adjudicated subsequent 75 L.Ed.2d 359 probation In each below, 169 L.Ed.2d 539 state cert. Act conviction for a (2d Cir.2004), convicted finding statute, States, for more than one twenty-year mandatory (11th Cir.), DeJesus, case, Jackson, a denied, probation law under the D.C. Youth Reha- under the New York sentence for same (unpublished offenses United States v. prior felony drug apply ten-year mandatory may qualify the court seemed more 460 U.S. (1983) (Federal on criminal replaced by "youth ^[2] 841(b)(1)(A)'s Sampson, 504 F.3d Acosta, ^[4] sentence can en- adjudicated citing, in an adult court cert. Fed.Appx. (2007); punishable by § 660, order) denied, 841(b)(1)(A) qualified as a inter Sampson, 250, offense)). 103 S.Ct. records, convic (apply youth accord year.” Youth twen mini prior as a alia, as Wilson, that it was. presume thus adjudicated in the ham was (holding at 199 that failure to com- N.E.2d law, person who Ohio system. Under procedure strips ply with bindover age eighteen was a “child” —under —at pleas subject-matter court of common must committed an offense time he or she jurisdiction juvenile over offender and that jurisdiction exclusive under placed be jurisdiction judgment makes the a lack of courts, may be bound juvenile of the ”). “void ab initio Graham of conviction other than pleas a court of common over to adult, clearly as an he prosecuted was prosecuted as an juvenile court to be he “convicted” of a pleaded guilty, and was 2152.03, adult. See §§ Ann. Ohio Rev.Code felony drug offense under Ohio law. Wilson, 14; State 73 Ohio St.3d 2152.12 reason, For this we decline to consider State 196, (1995); 198-99 652 N.E.2d express juvenile- whether inclusion of West, N.E.2d App.3d 167 Ohio delinquency adjudications in the calculus denied, appeal (Ohio Ct.App.), 288-89 the Armed prior convictions Ca- 1492, 857 N.E.2d 1230 111 Ohio St.3d see (“ACCA”), Act reer Criminal (2006). that has not contended 924(e), § U.S.C. should influence the in- complied properly 841(b)(1)(A) was not procedure this § in terpretation conviction, conviction an and we case.15 Graham’s 1995 was with for his 1995 will 841(b)(1)(A) § twenty-year mandatory by the fact that the defendant was mini influenced by Guidelines-range repeat than the fact that the mum because sentence im a offender posed statutory exceeded prior was for an offense committed sentence such that conviction juvenile § adjudication nor juvenile. The Second Circuit noted neither con while a - sentence), denied, cert. youthful-offender convictions have be- tributed -, "final,” that, consistent with the come Williams, "felony drug Fed.Appx. offense” in States v. definition of (7th Cir.2009) order) 802(44), (unpublished § at was 658-59 "[i] the defendant issue (concluding in adult court that defendant had no basis on [ii] [iii] tried and convicted challenge twenty-year mandatory drug punishable ... which to his offense[s] [iv] of adult because, ]'; year[ although imprisonment than one minimum sentence he had [v] for more institution; conviction, juvenile "successfully in an adult a he had he served his sentence by persuading appeal direct exists.” avoided the life sentence no avenue for [vi] previous drug Sampson, (quoting district court that one of his 385 F.3d 802(44)) (alterations original). § convictions should not count because it was a that, process in a Circuit held consistent conviction obtained The Eleventh trial”). guarantee jury guilty plea § a did not a purposes a age felony drug sixteen that was offense § 14. Ohio Rev.Code Ann. 2152.03 is a recodi- youthful- adjudicated New York 2151.25, § fication of which was in effect at that could be offender law was "conviction” conviction; the time of Graham's 1995 to enhance the defendant's sentence for used 2152.12 is a recodification of 2151.26. years thirteen later-in the way Neither statute has been amended way pleas could same of nolo contendere here. that is material though even be utilized for "convictions” adjudicated never defendants were rejected argument youthful— 15. This circuit has "guilty” despite the fact that a — adjudication resulting a first-offender status defendant was not considered con- offender Acosta, probation "prior not a in a sentence of law. 287 F.3d at victed under state felony drug [that] conviction for a offense has 1036-38. purposes. become final” for 841 See United Circuits were re- The Second and Seventh Miller, (6th Cir.) cently presented question we with the now face, (upholding twenty-year minimum posture but in a that obviated the need Deandrade, sentence), it. to decide (2d Cir.) Al (rejecting chal- juvenile-age drug- though involve a lenge Miller did not to district court's consideration reasoning adjudication trigger adjudication, our mir- first-offender related conviction, juvenile-delinquen- Sentencing not a Guidelines’ treatment of adult imposed adult for offenses com sentences cy adjudication. express decline to We eighteenth mitted defendant’s juvenile-delin- any on whether a opinion birthday history purposes for criminal also adjudication qualify should as a quency interpretation does not influence our “felony drug offense” plain statutory language at issue here. mandatory-minimum purposes, and this acknowledge We that Graham’s 1995 con open question remains an this circuit.16 history viction did not add criminal juvenile-delinquen- note that We both points to the Guidelines calculation in his cy language the ACCA and the man- PSR because he was released from con datory-life-term language years prior finement more than five 841(b)(1)(A) § part were added as offense, proper instant which reflected a 1988, Anti-Drug Act Abuse Pub.L. 4A1.1, § interpretation Appli of U.S.S.G. 100-690, interestingly No. 102 Stat. 4A1.2(d), § cation Note Application sections, § enough in consecutive However, only temporal Note limits § respectively. Sections §in 4A1.2 saved Graham’s 1995 conviction part and 6452 were both of “Subtitle N— fitting prior from the definition aof convic Sundry Criminal Provisions.” close tion under the career-offender enhance sections, proximity of the two and the 4B1.1, §in only prior ment which counts express delinquency inclusion of felony adult convictions but classifies as an in the corresponding ACCA no “adult an conviction[ ]” “[a] 841(b)(1)(A), § amendment to sup- could prior age eighteen offense committed to port an argument juvenile-delinquen- ... if it is classified as an adult conviction cy adjudications not were intended to be jurisdiction under the laws of the in which 841(b)(1)(A) § mandatory- counted for the defendant was convicted.” U.S.S.G. purposes, minimum pre- 4B1.2, 1; but we are not § cmt. n. see United States Prado, (6th with that Fed.Appx. sented issue the instant case. 547-48 Cir circuits, supra rors that of our distinguished sister see n. 16. The Third Circuit has 841(b) ACCA, § holding juve who have from the addressed that issue: that a nile-delinquency adjudication juvenil [United As court noted in States v.] e 841(a) years prior § court five to the instant Petros, (E.D.Mich.1990), F.Supp. [747 qualify felony drug did offense not as a of approval cited with in United States v. “prior ten-year fense conviction” under the (6th Cir.1991),] Hughes, 924 F.2d 1354 841(b)(1)(B). mandatory § minimum in Unit policy provisions behind state first-offender Huggins, ed States v. 467 F.3d and similar alternative statutes (3d Cir.2006). distinguished The court offenders, is "to allow first who are often opinions Second and Eleventh Circuits' youthful, opportunity straighten to them- Acosta, Sampson respectively, because selves out the road of life without the cases, procedures unlike state-law in those baggage aof conviction on their rec- Pennsylvania's juvenile-adjudication proce ord” and is meant "as an incentive to learn dures did not an adult conviction in "follow[ ] clearly a lesson ... [but] is not meant to court, panoply proce an adult with the full provide legal them with a technical advan- protections dural that come with the latter.” if, lesson, tage having they not learned a Id. at 362. The court further relied on the continue their criminal conduct.” language incorporating ju fact clear F.Supp. at 376. the wake of In continued venile-delinquency adjudications con conduct, criminal first-offender sentences victions under the ACCAwas not included in "prior 841(b)(1)(B) are § considered offenses” under adjudi and "it is clear that an point 841 that become "final” at the delinquency Pennsylvania cation of [under they longer appealable. which are no law] same as an adult conviction.” Miller, 434 F.3d at 824. Id. at 361-62. sentence). “[Wjhether .2007) opinion). impose Unlike the tions (unpublished Guidelines, Sentencing does not include or not [the Commission’s] limit. Both the temporal preferable method would be for the statute that this alike, have indicated authority Eleventh Circuits it has no and Guideline suggests limit temporal of a absence Supreme the statute as [the override imposed be in its no limit should such construed it.”17 Neal v. Court] ha[s] v. Huda See United States application. States, 284, 294, United (11th Cir.1994) (re cek, see life term jecting challenge Branham, twenty-year-old prior convic imposed with Cir.1996) (“[O]ur deference to the Commis attempted analogy to U.S.S.G. tion and commentary sion’s ceases once we find 4A1.2); States v. John see also United commentary, interpreta that such and the (8th Cir.2000) ston, n. 4 therein, (cit tion contravenes federal law.” reject argument that all (citing Hudacek Neal, 289, 293-94, 116 ing 516 U.S. at precluded from pre-1988 prior felonies 763)). of notice at time of 841 based on lack In the absence of new Court Watson, v. 332 Fed. priors); United States precedent congressional or enactment to (8th Cir.2009) (unpub Appx. Neal, contrary, the see 516 U.S. at opinion) (holding prior conviction lished that, we conclude under Su- old not too dated for years less than fifteen preme precedent and plain Court the lan- time referencing § career-offender statute, guage sentencing a court U.S.S.G.); Tyree, v. limits in United States imposing a minimum under (un (11th Cir.2008) Fed.Appx. 841(b)(1)(A) § “felony must utilize the (holding prior conviction published opinion) 802(44) drug § offense” definition in years precluded than ten old not more reference to the state law of conviction. § rejecting from consideration under Here, prosecute the state chose 609(b) argu plain under error Fed.R.Evid. drug qualifies for an adult offense that as a ment). stated, Circuit has As the Seventh law, felony state will and we not minimum Prior convictions that affect the second-guess state’s decision. Because sentences are not treated like “criminal prosecuted and Graham was convicted of history” Sentencing under the Guide- drug qualified an adult offense that as a lines, which both before and after Book- law, felony sentencing under state presumptive er affects the plain court did not commit error consid- a range establishing without floor. Re- ering Graham’s 1995 conviction as a floors, do set provisions cidivist 841(b)(1)(A) felony drug § for offense judges implement legislative must mandatory-minimum purposes. they not decision whether or deem

defendant’s criminal record serious persuaded also are not We enough; point of such statutes is to approach Eighth violates the Amend judicial ap- limit discretion rather than argument supple ment. After oral justice. to the court’s sense of peal case, in this briefing Supreme mental — Florida, Cannon, v. Court decided Graham 429 F.3d Cir.2005) U.S.-, conviction, (affirming (2010), remanding with instrue- in which the Court held that it was vacating “felony drug Supreme Court in Bur- stitute a offense” 17. We note that the opine gess 841(b)(1)(A). did on the use of the Sentenc- ing defining Guidelines in what offenses con- impose imprison juvenile felony unconstitutional third-time offender. Scott, parole punishment as the for See United States v. ment without (8th Cir.2010) (“The by ju committed Court Gra- a nonhomicide offense venile, question ham did not call into the constitu- challenge accepting categorical tionality convictions, using prior applies it particular type “a of sentence as otherwise, to enhance the sentence of a have to an entire class of offenders who added)). (emphasis convicted adult.” range of crimes.” Id. at committed a in the instant 2022-23. The defendant rejected Circuit has case, however, was an adult at the time he Eighth Amendment challenge similar to 841 offense for which he committed here, presented the one concluding that term, mandatory life we received the prior juvenile-age the defendant’s two felo circum applied non-categorical, offenses, ny drug for which the defendant approach of Harmelin to stance-specific adult, may was tried and convicted as an 841(b)(1) Hill, sentences. See be utilized for both triggering prior felony 50-51; Graham, 130 S.Ct. at 2023 §a offenses for manda cf. (explaining the difference between the cir tory imposed life term for a later adult cumstance-specific approach applied to offense. Id. at 1018. The Scott court term-of-years sentences as in Harmelin rejected gross proportionality argu both categorical approach and the applied to argument ment under Harmelin and an sentences, stating death that “in address that recent precedents Court re ing question presented, appropri lating juveniles extended to 841 sen analysis ate is the one used in cases that Simmons, Roper tences under categorical approach, specifi involved the 1183, (2005), 1 cally, Virginia, Atkins [v. 536 U.S. and Graham because ... in “[n]either (2002) ], 122 S.Ct. volved the use of offenses committed Louisiana, Roper, Kennedy and [v. juvenile aas to enhance an adult convic 128 S.Ct. 171 L.Ed.2d 525 tion, Scott, as here.” at F.3d ”). (2008) ] As the Eleventh Circuit has Eighth distinguished The Circuit noted, Graham “did not undermine Roper and because the defendant did not Harmelin insofar as adult offenders mandatory receive the life term for the Farley, concerned.” United States v. juvenile, offenses he committed while a (11th Cir.2010) (hold 1294, 1342n. rather for the offense he committed ing that Graham did not affect the defen as an adult. Id. The Fifth Circuit has also thirty-year mandatory dant’s minimum upheld constitutionality using of child-pornography sentence because the adult conviction for a offense commit defendant was an adult at the time he juvenile impose ted while a to the manda offense). committed the instant in tory life sentence enhancement stant defendant is not similar to the situa 841(b)(1)(A). Mays, Supreme tion that the Court addressed Cir.2006), “juvenile Graham —he is not a offender” 549 U.S. purposes of the punishment he re (2007). Mays L.Ed.2d 124 was convicted Graham,

ceived in the 841(a) instant case. See (b)(1)(A), violating and and he (stressing 130 S.Ct. at 2030 holding its objected sentencing court’s use of a applies [eigh to “those who were below state narcotics conviction from 1992 when committed”). when the offense seventeen, teen] was he although was he had been express no opinion We on whether Gra tried as an adult. at appeal, Id. 339. On support finding ham would Mays argued unconstitution that using juvenile-age this 841(b)(1) al a life Eighth term under offense violated the Amendment (1980) Harmelin, Roper; Eighth which held that the Ewing [v. Califor- nia, prohibit and Fourteenth Amendments im- (2003) posing penalty ], the death on who offenders all of whom commit- adults.”). age eighteen were under the at time of ted their crimes as This is not a rejected their offense. The Fifth Circuit situation where the state to failed offer a argument, finding Mays juvenile “has not defendant meaningful op- “some any evidence of a national proffered portunity con- to obtain release based on dem- sensus that maturity rehabilitation,” enhancements to onstrated id. based, imprisonment part, juve- (majority opinion), on at 2030 ju- or where a nile convictions contravene modern stan- venile was “deprived opportunity decency,” noting dards of that federal maturity judgment achieve and self- sentences often allow recognition enhancements based of human potential,” worth and 2032; (citing instead, offenses. Id. id. Graham was twice 4A1.2(d)(2)). U.S.S.G. felony convicted of drug offenses and he thereafter, re-offended a situation in which provided Graham has not us with Congress has determined that a defendant suggest information to that we should not should receive sentence of life without adopt the reasoning of our sister circuits Further, parole. it is not clear that the reject this further Amendment apply Court would categori- Indeed, challenge. Graham did not even analysis cal utilized in Graham to the situ- attempt rely upon categorical rea- presented ation here —the use of an adult soning Roper readily case available —a resulting juvenile-age from a of- him appeal at each level of we do —-and fense to punishment enhance the for an approach Roper believe adult-age offense to parole, life without Graham v. Florida extends the situa- Harmelin, especially light upholding tion here.18 Graham did not commit the parole sentence of life without for a first- instant offense while a with the time adult possessing grams offender culpability” “lessened that would caution of cocaine. If wrong we are in our inter- us to believe that deserving he is “less pretation binding precedent, we hope Graham, punishments.” the most severe that Court will correct us. (citing 130 S.Ct. at 2026 Roper, 543 U.S. at 1183); 125 S.Ct. see also at id. has any Graham not asserted additional (Roberts, C.J., concurring judg- arguments rejected above to contend ment) (“Graham’s 841(b)(1)(A) age places him in a sig- applying § juvenile- nificantly category different from age the de- prosecuted offenses and convicted as Estelle, fendants Rummel [v. adult proceedings violates the Eighth 100 S.Ct. 63 L.Ed.2d 382 Amendment.19 For the reasons stated McKissick, 18. We note that Graham has not filed a Fed- tection Clause. United v. Appellate 28(j) (10th Cir.2000). eral Rule of Procedure letter to 204 F.3d 1300-02 The request apply that we consider and Graham v. "Congress court reasoned that intentionally Florida here. aspects § left certain of the 841 enhance- triggered by ments to be the laws of the states,” 802(13) Although § arguments did that under the Graham not raise definition of "felony” any provisions tied under other of the to state Constitu- classifications the two tion, reject- trigger § we note that the Tenth Circuit Oklahoma has felonies could a 841 man- that, term, argument datory ed an differing because the states treat life and that the states' differently, charge records the use of the criteria for when to a as an juvenile- defendant’s two adult § convictions adult did not render 841 an irrational sen- age trigger mandatory Furthermore, tencing offenses to life term scheme. Id. at 1301. Equal under violates Pro- because the defendant "was convicted as an ” imprisonment.’ impose shorter term above, sentence conclude we 841(b)(1) (A) (iii) Higgins, v. 557 F.3d is not unconstitu Cir.) (6th (quoting United States tional. (6th Cir.2005)), Smith, Life of Graham’s C. Reasonableness denied, id. 130 S.Ct. Sentence (same rea conclusion for substantive sonableness). Even if we construed Gra the dis argues that

Graham appeal challenge the 168-month ham’s a life sen impose decision to trict court’s Six, we would imposed sentence for Count be substantively unreasonable tence was it Id. at 397 conclude that is reasonable. court the district cause he asserts (rejecting arguments reasonableness fully sentencing consider “failed to non-mandatory-minimum sentences be 3553(a) they apply as factors outlined term concurrent to cause 30; Br. at see Unit Appellant to [him].” and remand could not alter sen (6th sentence Moon, ed States tence). independent Our review Cir.) errors), cert. (outlining substantive not reveal sentencing transcript did 2493, 171 errors. (2008). Although Graham L.Ed.2d 782 object ground on this explicitly did not II. CONCLUSION all ar

sentencing, we review substantive sufficient ev- government presented and rea guments for abuse of discretion sonableness, jury idence at trial for a reasonable to find affording pre a rebuttable beyond a reasonable doubt that Graham properly of reasonableness to a sumption calculated, charged, the offenses and the guilty sentence. was within-Guidelines Vonner, denying court did not err in Gra- district Cir.) (en banc), judgment acquittal. motions for a cert. de ham’s - nied, -, deny- 172 The district court also did not err disregard life sen- ing concedes that Graham’s motion plain tence and did not commit error is within the his sentence Guidelines utilizing Graham’s 1995 adult conviction range and entitled to reasonableness Vonner, juvenile, and we con for an offense committed while a presumption under prosecuted and sentenced in an adult clude that his substantive unreasonable prior felony- assuming proceeding, triggering fails. “Even argument ness drug-offense its discre conviction under the district court abused 841(b)(1)(A). [Graham], state law and Applying tion in remand is “felony drug the offense” in 21 inappropriate. was sentenced definition [Graham] 802(44), § mini that pursuant statutory mandatory to a we conclude Gra- remand, mum ‘the district ham’s 1995 offense was adult conviction such on punishable by to of an offense more than one court would not have the discretion adult,” alleging prior convic potential treatment be- information such the different unsealing juvenile argued was though tween states in records tion' ”—even the defendant Id. at Tenth Circuit irrelevant. 1301. The prior presumptively that the conviction "was ability previously rejected a had defendant's juvenile he was a at the time invalid because validity triggering prior to contest the of a the United of the crime and conviction.” felony drug life offense used for Green, & 7 n. language § plain 851— term under Cir.) 851(e)), (quoting 21 U.S.C. disallowing any validi- collateral attack on the 120 S.Ct. 528 U.S. " ty of a 'which occurred years more than five before the date of the statutes, year imprisonment preting language under state law that “[t]he starting point statute is the relating drugs, interpreta- conduct which prohibits tion, and it should be ending point also prerequisites satisfies the to be counted as if plain meaning of that language is offense for a triggering Choice, clear.” mandatory-minimum sentence. We are (6th Cir.2000) 837, 840 (citing by Eighth Graham’s unpersuaded also Enters., Inc., States v. Ron Pair challenge. And we Amendment conclude 235, 241, sentencing further appeal Graham’s (1989)). respect question With pre- without merit because the district court here, sented I statutory language find the in imposing statutory did not err to be unambiguous. plain language mandatory minimum life sentence. We the statute used to imprison Graham for therefore AFFIRM the district court’s simply using juvenile does not mention judgment under facts of this case and felonies,” predicate “prior convictions as precedent. current and we not should read such an interpre- MERRITT, tation into the statute. Judge, dissenting. Circuit There is no indica- tion; and, below, as will be demonstrated My impression view this case of first the indication contrary, is to the that Con- in this Circuit is that the of this gress juve- intended to endorse use of nonviolent, 30-year-old petty drug traf- nile convictions in this statute to enhance imprisonment by using juve- ficker to life a defendant’s sentence. necessary nile conviction as a third strike congressional violates clear intent pari 1. In materia by statutory revealed clear rules of con- In this case we are interpreting one struction but also violates sound principles statute with two immediately adjacent sec- of penological policy based on the tions that punishment enhance the for two recently Amendment values by outlined separate federal crimes. The first section Florida, Court Graham v. amends the “career criminal” statute deal- — U.S.-, felonies, ing with violent 18 U.S.C. (2010). I preferred would have 924(e), says and it expressly that my colleagues majority in the acknowledge violent, punishment career criminal arguments and address the made here conduct must be using increased convic- against the use of conviction to tions for conduct. The second drug send this nonviolent pris- offender to law, section drug amends the 21 U.S.C. they for life. Instead have chosen to 841(b)(1)(A); and, contrary to the first ignore arguments. those I leave it to the section, says only this section readers to determine for themselves the punishment must be increased to life im- credibility usefulness and of this kind of prisonment for three or more “convic- appellate making. decision tions.” Unlike the career criminal section statutory Three canons of construction immediately it, above enhance- apply here. It is a well settled canon of ment specify section does not the use of statutory juvenile construction that when inter- in convictions.1 Courts three cir- (2) statutory by adding 1. The read amendments as follows at the end thereof the follow- pertinent part: in ing: "(C) the term 'conviction' includes a SEC. 6451. VIOLENT FELONIES BY JU- finding person that a has committed an VENILES 924(e) juvenile delinquency involving Section act of [Career Act] Criminal of title a Code, felony.” United States is amended ... violent 466 (1994) pari materia recognized have

cuits States, 508 Corp. Keene v. United (quoting method of in- appropriate as principle in U.S. provisions two the stat- these terpreting (1993)); Singer, also Norman 3B see J. of prior between the use distinguishing

ute Statutory and Construction Statutes juvenile convictions. (2000 ed.). (3d § 75.4 This distinction between 361 & n. Huggins, at the statutory passed two amendments Cir.2006); Peyton, 716 adjacent time in sections shows same (D.D.C.2010); F.Supp.2d juvenile a Congress knew how to include 04-20044-01-KHV, 2010 WL Ivory, No. it to. Pub.L. conviction when wanted (D.Kan. Feb.26, n. at *3 & 100-690, No. 102 Stat. 2010). (1988). in pari are considered to be Statutes adja- that the My position simply is two they relate same materia when invoke an cent sections of the same statute thing, per- to the same class of person or sensible, ancient, common law canon of purpose or have the same things, sons or in statutory construction and must be read Each section of a law which object. includ- pari specifically materia.2 Thus subject the same matter must deals with in ing juvenile convictions the first en- pari in materia with other sec- be read hancement for violent career criminals but subject. Norman tions on the same J. in leaving dealing it out the next section Statutory 2A Con- Singer, Statutes statutory drafters did not drugs, (2000 ed.). Obviously, § 51.3 struction juvenile resulting to allow conduct intend in when in the language pari is materia used to enhance the a conviction be very paragraphs placed statute same my punishment imprisonment, In Congress’ next to each other. view of pari I think the materia colleagues insist. §in a definition of failure to include clear and leads to a clear result of canon is “prior specifically conviction” that includes penalty based on no increased the defendant convictions obtained when conduct. juvenile, rely a I would on the canon was statutory reflection, “[I]t construction states: Upon a moment’s the reason acts generally presumed Congress to treat convic- Congress chose intentionally purposely when it in- differently tions the statute becomes particular language Congress cludes in one section of made the distinction obvious. it in conduct in- pattern a statute but omits another.” Chica- because violent Fund, 328, 338, volving culpable the use of is more go v. Envtl. Def. force felony drug prior offense SEC 6452. LIFE IN PRISON FOR convictions for final, THREE-TIME DRUG OFFENDER. person become such shall be (a) PENALTY FOR THIRD OFFENSE— term of life im- sentenced to Section of the Controlled Sub prisonment without release and fined (21 841(b)(1)(A)) stances Act is amend preceding accordance with the sentence. ed — Act, 100-690, Anti-Drug Abuse Pub.L. No. (1) beginning any per- “If sentence 6451-52, §§ 102 Stat. 4371 by striking son commits” "one or more prior through convictions” "have become acceptance 2. See extensive discussion and inserting "a conviction for final” Freeman, principle in United States final”; felony drug become offense has 556, 564, (3 HOW) (1845) 11 L.Ed. cases) ("all (discussing English acts in older (2) adding such sentence the follow- after they together if pari mateña are to be taken as ing: any person "If commits a violation of law”). subparagraph were one this ... after two or more (Draft the pattern drugs op. of that issue in instant case.” than nonviolent sales be, here, relatively 22-23.) minor in may pp. my That is all colleagues Court case Supreme nature. The recent the say about matter' —that it is “not — States, Johnson v. United question “why My issue.” not?” -, (2010), S.Ct. 176 L.Ed.2d it by making clear that

reinforces view Lenity 2. Rule of underlying conduct the recidivist en- the But if other judges ambiguity even see provi- of the career criminal hancements clarity, must be violent and the use of where I see there is an- sion involve another cient, rather mild form of significant force than a canon of statutory sensible construc- battery. That of the two is the “context” tion that to the same leads result. Where adjacent one in- provisions different penalty through has not been endorsed —the convictions, cluding juvenile other ex- the “deliberate, express, legislative and full cluding them—and case as the Johnson consideration,” it should not imposed be quite logically, statutory construc- states when a reasonable alternative exists. tion, “ultimately, context determines mean- says that That canon our constitutional ing....” (citing Id. at 1270 Jarecki v. philosophy maximizing liberty de- over Co., 303, 307, Searle & G.D. tention that we means must use a rule (1961)). so, If S.Ct. lenity liberty to prefer over incarceration adjacent “context” of the two the different when in reasonable doubt as to the cover- means that convictions penalties age of a criminal statute. This recent penalties not be used to enhance should the rule of lenity statement of from comes drug under the statute. the Court: “Context” is also the that a few reason long decisions, line of our Under the juvenile con- cases have allowed the use of go tie must defendant. rule cases, cases. In the victions these requires of lenity ambiguous criminal fact that was not informed of the the court interpreted in laws to be favor the contained, side, enacting statute side subjected defendants to them. provisions. two different penalty Gradwell, v. United States 243 U.S. for the not inform Counsel defendant did (1917); S.Ct. L.Ed. [37 857] fact, courts of this crucial States, McBoyle United 283 U.S. Department of Justice did disclose it not 75 L.Ed. [51 S.Ct. 816] Perhaps not be too either. we should Bass, discovering critical the courts for not [92 488] context because the criminal federal This venerable rule not exceedingly complex law has become principles vindicates fundamental during forty years. convoluted the last that no citizen should be held accounta- context, once a court I But discovers the violation of ble for a a statute whose reject not see how it can simply do uncertain, are subjected commands pari rule. application materia is not punishment clearly pre- My colleagues deal with this issue of places weight It also scribed. of iner- interpretation puz- in a indecisively and party upon tia that can best induce zling way. They simply say the issue speak Congress clearly more contrary because the two arises keeps courts from criminal making provisions “interestingly Congress’s law in stead enough in consecutive sections ... but we are presented should.”). the “lan- statute, they Here clearly we said a criminal interpreting When In life versus a much shorter guishing” mindreader. is for part play not do decision, rule-of-lenity Chief term. prison our seminal rejected impulse Marshall Justice statutory interpretation, In the realm of congres- a dubious regarding speculate require- implements process due the Court “[Probability is not intent. sional lenity, the rule of which through ments court, construing in which a guide give courts to criminal defendants requires statute, safely take.” can penal criminal of the doubt when the benefit Santos, 507, 514- 553 U.S. v. States United concerning the ambiguity statutes contain 2020, 2025-26, L.Ed.2d 15, 128 S.Ct. punishment. of an offense or its elements omitted). (2008) citations (parallel Granderson, See, e.g., United statutory con- rule of an ancient It was 39, 54, 127 L.Ed.2d be penal statutes should struction (1994) lenity to a (applying the rule of govern- against “strictly construed” statutory ambiguity concerning sentenc- to enforce statuto- seeking parties ment or States, v. ing); Dunn United persons in favor of the on ry penalties (1979) imposed. sought are be penalties whom lenity that the rule of “reflects (explaining Wiltberger, 5 Wheat. v. merely a convenient maxim of statuto- not (“The (1820) rule 5 L.Ed. 37 18 U.S. construction,” but rather “is rooted ry strict- laws are to be construed penal process principles due fundamental not much less old than con- perhaps ly, is be forced mandate that no individual which itself.”). Today principle struction indictment, wheth- speculate, peril given are their means that words simply prohibited”). er his conduct meaning and that reasonable ordinary statute, there is no From the face of the meaning is decided in doubt about includes to think that “conviction” reason criminal anyone subjected to a favor of conduct; but, even convictions for Singer, J. generally Norman statute. ambiguity that some exists if one believes Statutory Construction 3 Statutes and intent, Congressional language in the ed.) (2000 penal (interpretation My togo “the tie must the defendant.” statutes). say at all to colleagues nothing explicitly has stated Court statutory inter- response to this canon of crimi- lenity interpreting the rule of They simply silent in the pretation. when particularly applicable nal statutes is goes a rule that back centuries face of analyzing a statute that would increase Anglo-American law. meted out to a defendant. punishment lenity that the Court policy “The means Consequences criminal interpret a federal statute will my colleagues’ to me In what seems penalty places that it so as to increase the justify effort to the life sentence strained interpreta- when such an on an individual conduct, they in this case based guess than a can based on no more tion be account of neither the well-estab- take Congress to what intended.” Ladner statutory construction dis- lished canons States, 169, 178, 79 S.Ct. United 358 U.S. consequences nor the social cussed above only recently become conven- of what has Bass, 336, 348, 92 favoring long pris- (1971) (The judicial tional behavior rule embodies drug offenses. on terms for nonviolent lan- against “the instinctive distaste men pointing numerous studies There are now prison unless the lawmaker has guishing out the extreme financial and social “tough costs tive instinct to be on crime” in our in our huge prison increase U.S. on Drugs.” “War population from less than half a million in Penologists and other close observers of to almost two and one-half million penal system, along with budgetary Many 2009—a five fold increase. Too experts study who the cost of our correc- Laws, Prisons, Economist, Many Too The tion system,3 call for alternatives to long July 2010. The increase in our federal incarceration, periods of including the re- prison population has been even more dra- invention of parole systems to review matic, 211,000 increasing during possibility of conditional release as period same time ten fold increase. —a prisoners reach age. middle and old Oth- Justice, Dep’t of Fed. Bureau of Pris- techniques er halfway houses, such as ons, Quick Facts about the Bureau of Pris- confinement, home and electronic monitor- (2009) (available ons at http://www.bop. ing employed could be drastically cut 4). gov/news/quick.jsp# By comparison, the social and economic long costs of im- basis, a per capita on we have five times prisonment. people imprisoned more than Great Britain Germany. and nine times more than The life sentence imposed in this case is Economist, supra. of our prison Out total only contrary not to well-established can- States, 140,000 population the United statutory ons of interpretation and has serving imprisonment, life including adverse social consequences for our coun- 6,000 prisoners life in the prison federal try, it longstanding undermines constitu- (37.2%) system, and more than a third tional recently values described Graham serving federal offenders are manda- — Florida, U.S.-, tory minimum sentences of 10 or more (2010), striking down life years. Sentencing Comm’n imprisonment imposed juveniles (found Report Annual for 2009 at http:// Amendment. www.ussc.gov/ANNRPT/2009/table43.pdf). That case at should least make our court sentences, long Because of drug offend- and the system court more sensitive to the represent ers more than half of the federal important distinction between prison population. Justice, Dep’t adult criminal conduct. The Court points Prisons, Quick Fed. Bureau Facts about out parole “life without sentences (2009) (available the Bureau of Prisons share some characteristics with death sen- 4) http://www.bop.gOv/news/quick.jsp# by tences that are shared no other sen- (51% persons prisons federal convict- tences”: violations). of drug ed As soon as one The State does execute the offender drug defendant is incarcerated his of- sentenced to life fense, parole, without but the steps Long another into his shoes. sentence periods alters the offender’s of incarceration have done little except drive forfeiture that up the costs of our correction is irrevocable. It de- system appeal to our perhaps prives retribu- the convict of the most basic lib- JUSTICE, 13, 2008), 3. U.S. DEP’T OF FY2008 BUDGET June http://www.thefederalregis1.er SUMMARY, .com/d.p/2008-06-13-E8-13265. AND PERFORMANCE available There are 210,774 http://www.usdoj .gov/jmd/2008summary/ (exclud currently prisoners federal pdf7127_bop.pdf. ing halfway As of June the annual those in house and other facili ties). JUSTICE, cost of incarceration was estimated at U.S. DEP'T OF BUREAU OF $24,922 PRISONS, per prisoner. Annual Determination WEEKLYPOPULATIONREPORT Incarceration, 26, 2010), Average Fed.Reg. (August Cost of http://www. available at Justice, (Dep’t Bureau of bop.gov/locations/weekly_report.jsp. Prisons my colleagues restoration, cy, constitutional hope of giving without erties values— was con- clemency— lame defense: “Graham by offer one executive except perhaps mitigate in a trafficking juvenile drug does possibility the remote victed of jurisdiction harshness of sentence. rather general state court of jurisdic- exclusively juvenile

than one tion,” seems to this “adult” conviction any legitimate peno- lacking A sentence arguments to the nature dis- them that all by is its mean to justification logical They re- to the offense. With aside. refer contrary swept proportionate juvenile parole to life without as spect juvenile conduct convictions for such offenders, none of the non-homicide they really mean when “adult convictions” been that have penal sanctions goals court of a state “juvenile convictions” recognized legitimate retribution, as courts differ jurisdiction. State general — deterrence, rehabili- incapacitation, and pros- how crime significantly in adequate justifica- provide an tation — law ecuted, of federal application and the tion. ran- turn on such not be made to should re- Court’s variations.

dom without imprisonment of life A sentence ruling not allow its cent case does however, justified cannot be parole, variations. procedural turn on such state The penalty rehabilitation. goal Moreover, Sentencing even the Guide- the rehabilitative altogether forswears very harsh source of lines themselves —a By denying defendant ideal. defining cases—-in punishments community, the right to re-enter history to be used in criminal “convictions” judgment makes an irrevocable State such a dis- recognize calculations do not place value and person’s about that (b) makes it § 4A1.1 tinction. Guideline society. is not to be that such a distinction clear juvenile sen- when “an adult or recognized prison possibility without the Life commit- imposed for an offense tence [is] fulfillment no chance for parole gives eighteenth the defendant’s ted walls, chance for rec- prison no outside every legitimate birthday____” Thus society, hope. no Matu- onciliation leads me to the reflec- of law I can find can lead to that considered source rity remorse, should not count tion which is the foundation conclusion that the courts renewal, young A rehabilitation. conviction as a third has no who knows that he or she person strike. life’s end prison to leave before

chance responsi-

has little incentive to become individual.

ble (citations omitted). 2027-30, 2032

Id. at is, techni-

Although holding of the case binding, all of

cally speaking, probably not apply equally to the defen-

these words

dant, Graham, they did for in this case Graham, defendant, in the recent Su- case.

preme Court argu- all of these point: more To

One construction, good poli-

ments —canons

Case Details

Case Name: United States v. Graham

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 21, 2010

Citation: 622 F.3d 445

Docket Number: 08-5993

Court Abbreviation: 6th Cir.