UNITED STATES of America, Plaintiff-Appellee, v. Paul George KRATSAS, a/k/a P. J. Kratsas, Defendant-Appellant.
No. 93-5509.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 3, 1994. Decided Jan. 17, 1995.
45 F.3d 63
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a separate opinion concurring in the judgement.
OPINION
MURNAGHAN, Circuit Judge:
On June 2, 1992, a federal grand jury returned a single-count indictment charging Paul George Kratsas with conspiracy to distribute and with possession with intent to distribute five kilograms or more of cocaine, in violation of
Kratsas was convicted of both counts on March 18, 1993. In a sentencing hearing held on June 22, 1993, the United States District Court for the District of Maryland sentenced Kratsas to mandatory life imprisonment without release pursuant to
Kratsas now appeals the district court‘s sentence, in particular challenging the constitutionality of the sentence under the Eighth Amendment to the Constitution.
I. Factual Background
On June 2, 1992, Kratsas was indicted for conspiracy to distribute and for possession with intent to distribute five or more kilograms of cocaine in violation of
On June 22, 1993, a sentencing hearing was held before the United States District Court for the District of Maryland. At the sentencing hearing, the attorney for the government informed the district court that the government would seek the maximum mandatory sentence under the applicable statute,
The district court correctly found that because the mandatory minimum life sentence prescribed in
It is not without considerable misgivings that the Court sentences a 28-year old man to spend the rest of his life behind bars. Unfortunately, however, in the Court‘s view, the defendant has brought this upon himself by choosing to distribute kilo quantities of cocaine after having twice been convicted of drug felonies at the state level. On each of these prior occasions, the state courts dealt with the defendant very leniently and provided him with the opportunity to rehabilitate himself. Having failed to do so, the defendant must now pay the extremely stiff price which Congress has deemed appropriate for those like him who have chosen to make the distribution of narcotics a considerable part of their life‘s work.
The court also imposed a 70-month sentence for the money laundering count to run concurrently with the life sentence.
Kratsas now challenges the constitutionality of the sentence under the Eighth Amendment.
II. Discussion
Section 841(b) of Title 21 of the United States Code provides for a mandatory life sentence without release for participants in certain drug offenses involving five or more kilograms of cocaine. Specifically, the statute provides:
If any person commits a violation of this subparagraph or of section 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release....
The Supreme Court has definitively held that, as applied to most repeat drug offenders, a life sentence is not violative of the Eighth Amendment‘s prohibition against cruel and unusual punishment. Indeed, the Supreme Court‘s two most important decisions on the issue suggest that Kratsas‘s “proportionality” challenge to his life sentence, and his challenge to the mandatory nature of the sentence, are both unavailing.
The Supreme Court‘s most recent consideration of the constitutionality of a mandatory life sentence was in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In Harmelin, the Supreme Court addressed an appeal by a petitioner who was convicted under a Michigan statute for possessing more than 650 grams of cocaine, and was sentenced to a mandatory term of life in prison without the possibility of parole. 501 U.S. at 961, 111 S.Ct. at 2684. In particular, the Court addressed and rejected two Eighth Amendment arguments by the petitioner, identical to those advanced by Kratsas here: (1) that the life sentence was “significantly disproportionate” to the crime committed, and (2) that the mandatory nature of the sentence unconstitutionally required the sentencing judge to impose a life sentence without considering the particularized circumstances of the crime or the criminal. Id. at 961-62, 111 S.Ct. at 2684. Justice Scalia delivered the opinion of the Court with regard to the petitioner‘s second argument; the Court, however, produced three separate, and somewhat unharmonious, opinions as to the petitioner‘s first contention.
First, the majority of the Harmelin Court rejected Kratsas‘s “proportionality” challenge to his sentence, but did so on varying grounds. Justice Scalia, joined by Justice Rehnquist, based his decision on the conclusion that the “cruel and unusual punishment”
The Harmelin Court also rejected the petitioner‘s second claim that the life sentence was unconstitutional because it was mandatory, and thus precluded the consideration of mitigating factors by the sentencing court. 501 U.S. at 994, 111 S.Ct. at 2701. In particular, the Court held:
As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation‘s history.
As noted earlier, mandatory death sentences abounded in our first Penal Code.... There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.”
Id. at 994-95, 111 S.Ct. at 2701. Accordingly, the Court held that individualized sentencing is constitutionally required only in capital cases, and saw “no basis for extending it further.” Id. at 996, 111 S.Ct. at 2702.
The Supreme Court‘s Harmelin decision, particularly its rejection of the petitioner‘s proportionality challenge to his life sentence, may have cast some doubt upon the Court‘s earlier decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a case on which Kratsas places great reliance. The Supreme Court in Solem, in considering the constitutionality of a mandatory life sentence imposed pursuant to a South Dakota recidivist statute, articulated a three-part test for analyzing proportionality claims under the Eighth Amendment. 463 U.S. at 290, 103 S.Ct. at 3009-10. In holding that the mandatory life sentence in that case did not pass constitutional muster, Justice Powell, writing for the Court, held that “[t]he constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.” Id. at 286, 103 S.Ct. at 3007-08. In so finding, the Court articulated three factors to be considered in conducting such a proportionality review: (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 292, 103 S.Ct. at 3011. Under that three-factor test, the Court found that the mandatory life sentence imposed pursuant to South Dakota‘s recidivist statute ran afoul of the Eighth Amendment‘s prohibition against cruel and unusual punishment because: (1) the crime of uttering a “no account” check for $100 is “one of the most passive felonies a person
It may be somewhat unclear, in light of the Supreme Court‘s decision in Harmelin, whether Solem‘s three-part proportionality test is still relevant in noncapital cases. See United States v. Johnson, 944 F.2d 396, 408 (8th Cir. 1991) (“The effect of Harmelin on the Solem proportionality factors is not entirely clear.“); United States v. Angulo-Lopez, 7 F.3d 1506, 1509 (10th Cir. 1993) (”Harmelin provides no guidance in articulating the proper approach for an Eighth Amendment review.“); United States v. Chandler, 36 F.3d 358, 365 (4th Cir. 1994) (“[T]he holding of Solem has been put into doubt by Harmelin v. Michigan.“). Indeed, as noted above, the Harmelin Court issued three separate, and somewhat conflicting, opinions discussing the scope of the Eighth Amendment‘s proportionality guarantee, which ranged from a virtual repudiation of Solem by Justices Scalia and Rehnquist, to a recognition of a “narrow” proportionality doctrine by Justices Kennedy, O‘Connor, and Souter, to an explicit approval of Solem by Justices White, Blackmun, Stevens, and Marshall. See United States v. Sarbello, 985 F.2d 716, 723 (3d Cir. 1993). Despite the Court‘s conflicting opinions on the issue, however, the continuing applicability of the Solem test is indicated by the fact that a majority of the Harmelin Court either declined expressly to overrule Solem or explicitly approved of Solem. Indeed, the Fourth Circuit has continued to use the Solem test in conducting proportionality reviews under the Eight Amendment for cases involving life sentences or the death penalty.
In United States v. D‘Anjou, 16 F.3d 604 (4th Cir. 1994), cert. denied, 512 U.S. 1242, 114 S.Ct. 2754, 129 L.Ed.2d 871 (1994), for example, a case in which the appellant had been convicted for violating certain narcotics and firearms laws, we recently rejected a constitutional challenge to a sentence of life without parole imposed pursuant to the United States Sentencing Guidelines. In first considering the appellant‘s proportionality challenge to the life sentence, we turned to the three-part test articulated by the Supreme Court in Solem, noting that we have always held that “outside the capital sentencing context, an extensive proportionality analysis is required only in those cases involving life sentences without parole.” 16 F.3d at 612.
Under the Solem test, we found that the sentence of life without parole in that case did not amount to a “disproportionate” punishment, and thus did not run afoul of the Eighth Amendment. Applying Solem‘s first prong, we found that the appellant‘s offense was extremely grave because: (1) drug use is a “pervasive, destructive force in American society“; (2) the appellant was not merely a user or even a single distributor of drugs, but was the “manager” of a ring of dealers who supplied drugs to distributors and converted crack from wholesale to retail quantities; (3) while the appellant was not the “mastermind” of the operation, he nevertheless had “significant responsibility” for the operation; and (4) the appellant had distributed more than five kilograms of crack over a six-month period. Id. at 613. Applying Solem‘s second prong, we found that although “it is difficult to undertake the type of comparative analysis that the pre-guidelines Solem decision advises,” those courts that have done so have found that a “life sentence for a major drug violation is not disproportionate in comparison with other sentences under the Guidelines.” Id. Applying Solem‘s third prong, we noted that a review of the state statutes within the circuit disclosed the existence of “similarly severe sentences for narcotics violations of the magnitude involved here.” Id., citing
[G]iven that drug dealers themselves sentence many individuals to a lifetime of addiction and dependency, a life sentence for repeatedly dealing drugs cannot be considered disproportionately cruel and unusual.
Id. (citations omitted).
Second, the D‘Anjou Court, in light of the Supreme Court‘s decision in Harmelin, rejected the appellant‘s Eighth Amendment challenge to the life sentence on the grounds that the judge had not considered relevant mitigating factors before imposing the sentence. 16 F.3d at 613. Specifically, we noted that Harmelin had found that a sentence of life without parole does not require the consideration of mitigating factors, as is required in the death penalty context, to avoid running afoul of the Eighth Amendment. Id. Accordingly, it was held that “[s]ince a mitigating factors analysis is not required to avoid an Eighth Amendment violation, this necessarily means that the imposition of life without parole is not cruel and unusual.” Id. at 613-14.3
In light of the Supreme Court‘s decisions in Harmelin and Solem, as interpreted by this Court in D‘Anjou, we affirm the district court‘s sentence, finding that a mandatory sentence of life imprisonment without release, as applied to a repeat drug offender, did not run afoul of the Eighth Amendment‘s prohibition against cruel and unusual punishment here. In so holding in Kratsas‘s case, we find that (1) under the Solem test, the sentence is not disproportionate to the offense committed, and (2) as held in Harmelin, the mandatory nature of the sentence does not thereby render the sentence unconstitutional.
First, we reject Kratsas‘s claim that a sentence of life without parole is a “disproportionate” punishment under the Eighth Amendment. Indeed, application of the Solem three-part test to the instant case suggests that the sentence of life imprisonment without release, as applied to Kratsas, passes muster under the Eighth Amendment. In applying Solem‘s first prong, we find that the offense of drug distribution by Kratsas is immensely grave, particularly because: (1) Kratsas is not just a drug user, or a single distributor, but part of a ring of distributors; (2) a large amount of cocaine, specifically 18 kilograms, was directly attributable to Kratsas; and (3) Kratsas was a repeat drug offender. Applying the second prong of Solem, it is clear that a life sentence for a major drug violation is not disproportionate in comparison with other sentences mandated by the Guidelines and other drug statutes. See D‘Anjou, 16 F.3d at 613. Last, applying the third prong of Solem, a survey of drug statutes in states within the Fourth Circuit reveals the existence of harsh sentences for narcotics violations of the magnitude involved in the instant case. See, e.g.,
Second, the fact that the life sentence imposed in the instant case is mandatory, does not render it unconstitutional. Under the Supreme Court‘s holding in Harmelin, and our decision in D‘Anjou, it is clear that a sentence of life without parole does not require the consideration of mitigating factors, as is required in the death penalty context, in order to pass constitutional muster. See D‘Anjou, 16 F.3d at 613. Thus, the mere fact that the life sentence was mandatorily imposed does not render it “cruel and unusual.” See also United States v. Abreu, 962 F.2d 1425, 1428 (10th Cir. 1992), vacated on other grounds, 508 U.S. 935, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993) (mandatory minimum punishment prescribed by the Armed Career Criminal Act is not unconstitutional on the ground that it deprives defendant of individualized sentencing). Kratsas‘s contention that the sentencing judge in the instant case was unconstitutionally precluded from considering mitigating factors in sentencing is unavailing.
Finally, Kratsas, in urging the Court to follow its holding in United States v. Deigert, 916 F.2d 916 (4th Cir. 1990) (per curiam), severely misstates the applicability of that decision to the instant case. In Deigert, we remanded a Sentencing Guidelines case to the district court because the record did not clearly elucidate the reasons underlying the sentencing court‘s decision to depart downward in the exercise of its discretion. 916 F.2d at 919. That holding has no relevance to the instant case, however, because here, the sentencing court was bound by a mandatory statute to impose a life sentence. Because the district court in the instant case could not exercise discretion in sentencing, there is no reason to remand this case to allow the court to articulate the reasons for its decision. Deigert is inapposite.5
Accordingly, the judgment is AFFIRMED.
The opinions of Justice Scalia and Justice Kennedy in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), representing a majority of the Supreme Court, support at most the application of a narrow proportionality principle that would have the Eighth Amendment forbid only “extreme sentences that are ‘grossly disproportionate’ to the crime.” 501 U.S. at 1001, 111 S.Ct. at 2705 (Kennedy, J., concurring). As Justice White‘s dissenting opinion argues, 501 U.S. at 1009, 1020, 111 S.Ct. at 2709, 2715 (White, J., dissenting), the narrow proportionality test articulated by Justice Kennedy for the case before the Court appears to reduce the three-pronged test of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to the single inquiry of whether the punishment was “grossly disproportionate” to the crime, a determination for which intrajurisdictional and interjurisdictional analyses may be relevant, but only in rare cases. See 501 U.S. at 1005, 111 S.Ct. at 2707 (Kennedy, J., concurring). The instant case, however, is assuredly not one of the rare cases to which Justice Kennedy refers. Accordingly, I do not believe that we should revert to applying the three-pronged proportionality test of Solem, as the majority in this case has elected to do. Rather, we should dispose of this case simply on the basis of the Harmelin holding. Harmelin held that a mandatory life sentence without possibility of parole imposed by a state for possession of 672 grams of cocaine did not violate the Eighth Amendment. Because the case before us involves a life sentence for distribution of at least 18 kilograms of cocaine by a defendant who had two prior felony drug convictions, the holding of Harmelin is dispositive. Thus, any discussion by the majority about the appropriate-
For the foregoing reasons, I concur only in the judgment.
Notes
501 U.S. at 985-86, 111 S.Ct. at 2696-97.This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept. But for the same reason these examples are easy to decide, they are certain never to occur.