United States v. Rivera-Ruperto

STATES, Appellee, UNITED RIVERA-RUPERTO,

Wendell a/k/a Defendant, Rivera,

Arsenio

Appellant. 12-2364,

Nos. 12-2367 Appeals, States Court of

United

First Circuit. 13, 2017

January trials, each trial

sеparate presided Thus, judge. over a different district appeal, two cases on we there are today in challenges address the various opinions.2 In this separate present appeal trial, argues from the first Hernández, Maitland, FL, H. Manuel the district committed revers- appellant. (1) when it: ible errors denied his claim Heberle, Attorney, Robert J. Public In- during ineffective assistance of counsel Section, Division, tegrity Criminal U.S. (2) stage; plea-bargaining failed to instruct Justice, Department with whom Fran- jury required it was find Besosa-Martinez, cisco A. Assistant United (3) doubt; beyond a quantity reasonable Pérez-Sosa, Attorney, Assis- States Nelson rejected either declined consider or his Chief, Attorney, Appel- tant United States claim; (4) sentencing manipulation sen- and Rodriguez- Division, late and Rosa Emilia grossly to a disproportionate tenced him Vélez, Attorney, United States were on violation sentence in of the Amend- brief, appellee. for ment. LIPEZ, TORRUELLA, Before and below, For reasons stated we affirm THOMPSON, Judges. Circuit court. the district THOMPSON, Judge. Circuit OVERVIEW now-familiar,

This case arises out of a large-scale FBI investigation known as summary our of the brief keepWe facts Shack,” “Operation in which Guard now, saving specific for details related FBI, police in an effort corrup- to root out challenges various Rico, throughout tion Puerto orchestrated our later discussion. of staged drug a series deals over the years.1 partic- of several For his course Rivera-Ruperto provided security armed in six of ipation Operation these Guard Operation during six Guard Shack sham deals, drug Defendant-Appellant Shack deals, 9, which drug occurred on April Rivera-Ruperto stood two trials Wendell 9, 14, April April June June and guilty and was found federal various September 16 2010.3 Each of the sham drug and crimes. The con- fírearms-related pattern. the same in- They deals followed Rivera-Ruperto resulted in receiv- victions posing volved undercover officers sell- ing 161-years a combined sentence of and buyers cocaine, ers and of fake took and imprisonment. 10-months’ place apartments at FBI-monitored wired Although Rivera-Ruperto raises similar with cameras. and April hidden The 9 challenges appeals his from the two 14 each 12 April kilograms deals involved See, e.g., Navedo-Ramirez, challenges companion United their States we address in our (1st 2015); 781 F.3d 563 Cir. United States v. well. decision as González-Pérez, (1st 2015); Cir. 778 F.3d 3 Diaz-Castro, United States v. 752 F.3d 101 3.Although Rivera-Ruperto police was not a (1st 2014). Cir. officer, participate Opera- was invited he misrepresented Shack after tion Guard he Miguel Santiago-Cordero 2. Co-defendants himself to FBI's confidential informant along and tried Daviel Salinas-Acevedo were trial, Rivera-Ruperto prison with his second corrections officer.

5 cocaine, guilty of all April jury Rivera-Ruperto June found of fake judge kilograms charges of fake and the district sentenced involved 8 deals each cocaine, 126-years imprison- 10-months’ September and the him to June kilograms fake topic It is this trial which each involved ment. first deals rendering top armed securi- As we present appeal. On discuss cocaine. services, along brought below, Rivera-Ruperto Rivera-Ruperto more detail takes ty And at the judge’s jury him additional recruits.4 with the instruc- (cid:127)with issue both deal, Rivera-Ruperto even ultimately did he April tions and with the sentence more; maga- handgun, including sold a he received.

zines, FBI pos- informant to confidential objections, the Over defense counsel’s services, For his ing as a dealer. 21, 2010 September second indictment Rivera-Ruperto payment received (which in- charged Rivera-Ruperto for his deals, $2,000 for the except for each of the April transaction volvement on deal, which received he September only) was several months later tried $3,000. a different district After a judge. before charged Rivera-Ruper- government jury Rivera-Ruperto guilty second found (two indictments separate counts, three to under on all received Septem- one 2010 and on September imprisonment. 35-year sentence of 2010) in 23, illegal participation for his ber Rivera-Ruperto, presently who is serv- For drug sham deals.5 each the six and years of 161 ing his combined sentence transactions, Riv- charged the indictments months, Putting timely appeals. 10 now con- one count each of era-Ruperto with aside, do, to whatever required as we are intent possess to with attempt and spiracy have as the need misgivings might we to substance, well to distribute controlled imposing wisdom in a near two- for or the ato possession of a firearm relation punish to crime that life-term sentence Additionally, Riv- trafficking crime. deals, drugs, staged drug sham involved with era-Ruperto charged possessing was dealers, turn to task of fake we the num- with an obliterated serial a firearm Rivera-Ruperto’s assessing any whether the 27 deal. during April ber As him relief. arguments entitle to legal trial proceeded to Rivera-Ruperto’s noted, case already we address we have govern- negotiations with the plea after first Rivera-Ruperto’s challenges from his that we point failed—a of contention ment trial, saving from the second for those trial, shortly. the purposes to For get separate, opinion. in our related discussion (which 21 indictment September first 14, April for charged Rivera-Ruperto the DISCUSSION deals) 27, 9, 25

April June and June I. Motion Lafler (which September 23 indictment the deal) the dis- Rivera-Ruperto challenges first September him the 16 charged for his of his claim that A court’s denial together. and tried trict consolidated were 9, recruited, Superseding indict- April deal. Rivera-Ruperto the Among those filed, charges the re- police was a officer. were later but least one ments Rivera-Ruperto was then the mained same. 21, 2010, Rivera-Ruperto September 5. On 23, September indicted third time April participation indicted his was September participation in the final for his 27, 25, deals. April and June June deal. separately day, government the same On Rivera-Ruperto participation for his indicted attorney Aguayo, in- provided day, apparently On that same court-appointed first plea-bargaining Rivera-Ruperto’s effective assistance at the by alarmed behavior stage. begin by recounting hap- what We during meetings regarding plea their below. pened negotiations, filed a for a request psychiat- Rivera-Ruperto. ric exam the mo- Background A. tion, Aguayo during stated that their meet- Rivera-Ruperto month About a after ings, Rivera-Ruperto he had witnessed him arraigned, government made was strange “exhibiting behavior which has years initial offer of 14 that cov- plea an worsened,” and progressively that Rivera- charged in all three in- ered offenses to, Ruperto ability “refuses lacks court-ap- dictments. first case, appreciate the seriousness his re- attorney, Aguayo pointed (“Aguayo”), Jose material, discovery ap- fuses review the negotiated successfully that offer down to raves, his rants pears lucidity, lose years. Rivera-Ruperto When refused to vehemently argues imaginary with deal, 12-year Aguayo attempted take attorney-client people visiting sentence, negotiate an even but lower granted room.” the mo- The district prosecution told its 12- Aguayo tion electronic order. offer final. year Shortly after being early examined in Aguayo Rivera-Ruperto then showed sent Rivera-Ruperto Aguayo June email, spelled government’s which out the email, in which he stated he wanted to years, final offer and explained then, (by alreаdy expired) 12-year take the repercussions taking him the Aguayo offer. plea responded by advising rejected deal. plea But 12-year Rivera-Ruperto that the deal had still, Aguayo offer make and directed out, timed and that they should await the Unsurpris- counteroffer of instead. results of mental evaluation before re- ingly, government 8-year refused the suming plea negotiations. If further he counteroffer. request to psy- were withdraw the for the effort, Aguayo joined last-ditch de- they chiatric examination before saw the attorneys Operation fense for five other results, Aguayo explained, Rivera-Ruperto Guard Shack to to ne- attempt defendants argue, later after accepting could even gotiate global plea for deal the six defen- offer, mentally that he had not com- been government group. dants as a re- accept petent to it after all. by to sponded renewing these overtures its psychological When the results of the 12-year Rivera-Ruperto, offer for but this June, exam came back in report late time the expiration offer had an date. Rivera-Ruperto deemed “stable” and con Aguayo showed Rivera-Ruperto When offer, diagnoses no mental tained disorders again, renewed Rivera-Ruperto, once Rivera-Ruperto’s compe that would affect rejected February it. The offer on lapsed 4, tency promised, Accordingly, 7, 2011, Aguayo stand trial.6 As February government government then reached out to the filed an informative mo- tion, attempt reopen it plea plea negotiations. which notified the court that At first, negotiations appeared government had terminated and it would be unwilling engage trial schedule needed to set. plea be further bar report suggested impairment. 6. The also that Rivera-Ru- may perto exaggerating psychiatric have been and Rivera-Ruperto, testimony Rivera-Ruperto whom the from both with gaining had shown himself to Aguayo considering documentary believed government “malingerer.” Aguayo But was insis evidence,7 abe the district court concluded Rivera-Ruperto it was -who tent that there no merit to the ineffective assis- exam as a requested psychological had claim, tance of Rivera- counsel denied tactic, delay Aguayo but himself who had Ruperto’s says motion. Rivera-Ruperto it, duty his compelled pro requested this was error. Rivera-Ruperto with effective assis

vide some back and tance of counsel. After Analysis B. forth, government agreed relented and review a district court’s deter We one, only one more coun to entertain mination ineffective of coun assistance Rivera-Ruperto, from but teroffer any novo and of fact findings sel claims de had to be warned the counteroffer for clear error. Ortiz-Graulau v. United somewhere (specifically, “substantial” States, (1st 2014). 12, 17 756 F.3d Cir. years). ballpark 20-23 Rivera-Ruperto met to re- Aguayo with A defendant’s Sixth Amendment information, making clear that this lay this counsel to the right competent extends last to make counterof- was their chance Cooper, plea-bargaining process. Lafler v. fer, that a of less than 20 proposal 1380-81, 1376, 566 U.S. 132 S.Ct. Despite would not be considered. (2012). claiming, L.Ed.2d A defendant advice, Rivera-Ruperto insisted that here, does that coun make Aguayo a counteroffer plea- was ineffective at the sel’s assistance government Unsurprisingly, years. two-part must bargaining stage, meet the lowball, but neverthe- again rejected this Washington, test laid out Strickland v. years. of 18 Riv- less made one final offer 668, 687, 466 U.S. no, proceeded and then era-Ruperto said Lafler, (1984). L.Ed.2d 132 S.Ct. negotiations Aguayo. plea over to fire With show, first, that 1384. He must counsel’s (this good), the case was slated for time second, deficient, and performance was trial. plea process that “the outcome nine March months after On competent different would have been with evaluation psychological date of the advice.” Iff before trial was to report days and three that he Rivera-Ruperto argues through his second

begin, Rivera-Ruperto, prongs. these He contends meets both of attorney, filed a motion court-appointed accept 12-year plea he to the that “wanted Aguayo provided that had ineffec- alleging offer, original have his and would san§ plea-bar- at the assistance counsel tive an un decision to seek defense counsel’s the court stage asking district gaining evaluation, his re necessary psychological reoffer 12- government the the to Order advice, refusal to lated and his erroneous granted Riv- year deal. district the district government inform the evidentiary for an era-Ruperto’s request 12- and, accept the hearing [to after Court of decision hearing [his] on the issue visits conversations Although tailed notes of his themselves are not 7. documents record, transcript signed Rivera-Ruperto, from the Lafler and a in the with document parties’ hearing submissions indicates that by Rivera-Ruperto memorializing his refusal correspondence between included email original "final” accept government's regarding plea Aguayo government and the 12-year plea offer. containing de- negotiations, Aguayo’s records year argument But this fails on the psychological offer].”8 suits of exam pur- before start, requirements. First, both To suing plea negotiations. Strickland further Rivera-Ruperto moment, has failed to that get establish we to in a the time Rivera- Aguayo’s performance was defective. Aguayo had Ruperto say emailed he offer, to take 12-year plea wished there In meet order to first Strickland was no actual offer Rivera-Ruperto prong, a defendant must show that “coun 12-year take because the last deal had objective representation sel’s fell below an expired some three or four prior. months Strickland, standard of reasonableness.” if But even there had a live been offer on 688, Generally 466 U.S. at 104 S.Ct. 2052. table, by Rivera-Ruperto the time ex- speaking, strongly presumed “counsel is any pressed taking a 12-year interest adequate have rendered assistance and deal, plea already he had been examined all significant made exer decisions awaiting and was Aguayo the results. As professional cise of judgment.” reasonable explained time, at the Rivera-Ruperto Thus, Id. at in order to Aguayo’s professional judgment that performance, establish a defen deficient withdrawing the psychologi- motion for the that, “given dant must show the facts point cal exam at that would threaten the time, known at the counsel’s choice was so durability any agreement plea they patently competent unreasonable no might have reached because Rivera-Ru- attorney have would made it.” Tevlin v. perto could later Spencer, argue he had not (1st 2010) 621 F.3d Cir. mentally competent been to enter into the Knight Spencer, (citing F.3d deal at all. We think (1st given this advice was 2006)). Cir. exercise professional of reasonable Here, none of Aguayo’s actions event, judgment, any and in certainly was meets Aguayo psy this standard. sought deficient objec- so as to fall below “an chological exam after he observed tive standard of reasonableness.” Strick- Rivera-Ruperto arguing imaginary with land, U.S. 104 S.Ct. 2052. Riv- people exhibiting other abnormal be era-Ruperto has therefore failed to show ultimately havior. While of Riv results Aguayo’s performance was deficient. era-Ruperto’s may exam have shown that Rivera-Ruperto did not any have mental Moreover,- even if we were to as issues, health given erratic behavior performance sume the defective prong has Rivera-Ruperto displayed during their met, been Rivera-Ruperto’s claim still fails meetings, Aguayo’s motion “pat was not because he necessary cannot show the Tevlin, ently unreasonable.” F.3d 66at prejudice to meet the second Strickland (citation omitted).9 prong. order prejudice, to establish

Nor do Aguayo’s we think performance claiming defendant ineffective assistance at was deficient on account of plea the fact he bargaining stage must show that advised to await the re- “but advice of ineffective counsel fact, appears 8. Rivera-Ruperto to his defi- limit 9. "where there are substantial indica- bases, cient-performance argument competent that the tions defendant is not to these to trial, stand counsel is not faced with a challenge and strate- does not the district court’s gy obligation choice but has a settled ... finding Aguayo competently that otherwise federal law under ... to raise the issue with get plea made efforts to lesser deals for his judge ordinarily compe- the trial and to seek a adequately explained plea client and the how O'Brien, (cid:127) tency examination.” Robidoux bargaining process worked. (1st 2011). F.3d 338-39 Cir. fective, because, if probability that the and even we were to there is a reasonable defective, performance assume the was presented have to offer would been plea req- has to show court[,] Rivera-Ruperto the court have ac- failed the ... would the terms, we the prejudice, and the conviction or uisite affirm district cepted that its sentence, both, the claim. ruling the offer’s terms court’s Lafler or under less than under been severe would have Jury II. Instructions Lafler, 132 judgment and sentence.” the cannot Rivera-Ruperto do so Rivera-Ruperto appeal only 1385. raises on concerning here. one the trial itself. challenge argues He that the court erred in district argues that he Rivera-Ruperto would failing jury that it to instruct the Was but for 12-year have the deal accepted required quantity make its drug to find- “unnecessary an Aguayo requesting ings beyond begin a reasonable doubt. We exam then psychological unwanted” a hap- once more with discussion of what refusing request the after to withdraw pened below. Aguayo told that he Rivera-Ruperto 12-year offer. But the accept wished to Background A. bear simply Rivera-Ruper- facts do not out made, closing arguments After were Aguayo’s are theory to’s that actions what instructions, gave jury begin- trial judge 12-year plea being from prevented ‍‌​​​‌​​​​​​​‌​‌​‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌‌‌​​‌‍a deal instructions, ning which ex- general with presented to the court. When Rivera-Ru- prosecution had plained that the bur- that he Aguayo to tell want- perto emailed guilt beyond a prove den “to reasonable offer, 12-year plea was ed take judge doubt.” The trial then instructed time, already By that early June jury on the of the crimes with elements nearly passed four months had since charged. Rivera-Ruperto which was It 12-year expired. offer had plea requested psychological reminder, among charges, therefore not As a other Rivera-Ruperto to that caused Rivera-Ruperto examination was indicted each deal, fact plea a 12-year drug “lose” but deals with one count each of five (more rejected already had the offer drug conspiracy attempt- he two crimes: once, add), leaving no might than deal possession we ed with intent distribute accept. they on the table for are the controlled substance. As Furthermore, the results came inquiry today, even after relevant to our instructions Rivera-Ruperto’s psychological judge’s back from on the in- we focus our attention labeled him government drug quantity. exam and the had regarding structions Rivera-Ruperto had final “malingerer,” jury as to the judge The instructed the accept 18-year plea offer opportunity to offenses, drug the two and was elements of Rivera-Ruperto re- from the government. in order to find the defendant explicit that opted offer for trial. jected even this had guilty, jury to be convinced Rivera-Ruperto has thus failed show government proven had each element probability is a reasonable there did beyond judge doubt. reasonable deal, 12-year much any plea plea less the among ele- drug quantity not include these present- specifically, would have been deal ments, explaining the but after elements Aguayo’s purported ed the court but crimes, judge did tell the assistance. ineffective defendant con- jury: you “If find that the attempted with intent spired possess Rivera-Ruperto has failed to Because substance[,] ... a controlled performance was de- distribute Aguayo’s show that you be findings will asked to also make court imposed the concurrent sentences of quantity to the of this substance that the 21-years imprisonment and 10-months’ for conspired attempted defendant either or each of these convictions.12The sentences possess.” 20-year thus statutory exceeded the maxi- mum for involving offenses an indetermi- judge quanti- The trial to drug referred quantity nate drugs, of see U.S.C. ty jury one other time in his instructions. 841(b)(1)(C), § within and instead fell the This when he verdict was described the 10-year minimum to maximum life sen- jury, the explaining: you forms to find “[I]f tencing range involving for offenses 5 kilo- guilty, you then [the] are also [defendant grams substance, or of a more controlled provide drugs asked to amount in- 841(b)(1)(A). §id. ques- volved said count. And there’s you tion for to find that.”10 appeal, On Rivera-Ruperto argues that n Rivera-Ruperto’s attorney trial raised ishe entitled ato new trial because the objections jury no Af- instructions. district court jury failed to instruct deliberations, jury ter returned ver- it required that was drug quan- find the dict in which it Rivera-Ruperto found beyond tities a reasonable doubt. guilty all charges. With respect offenses,

drug-related jury found Riv- Analysis B. era-Ruperto guilty amount five “[i]n typically We jury review instruc counts, or kilograms more” each for of the novo, challenges where, tion de but exception with the the attempted pos- here, a object defendant failed to to the deal, count September session for the jury below, instructions our review is for jury drug which did not return a Delgado-Mar plain error. United States v. quantity finding.11 rero, (1st 2014). 744 F.3d Cir. At sentencing, the district court imposed drug these convictions Reversal under plain error (1) jury’s drug based quantity requires: standard that an error oc (2) curred; findings. Specifically, jury (3) obvious; because the had that the error was found that all of drug that it affected the defendant’s substantial (4) (except September offenses rights; at- that it threatens fair count) tempted possession ness, 5 kilo- integrity public involved reputation or grams Delgado-Marrero, substance, or more of a controlled proceedings. 744 F.3d at (there 10.The verdict grams forms were two because C.Less than 500 originally there were two indictments that trial) jury Although jury were Rivera-Ruperto consolidated for asked the found count, mark whether it found guilty of that corresponding left the "Guilty” Guilty” or "Not for each of the drug quantity question blank on the verdict charged counts. Underneath the related form. counts, the following verdict form asked the question: September attempted posses- 12. For the you guilty, If find the please defendant an- conviction, jury sion for which the had re- following question: swer the additional drug quantity finding, turned no the district you Do find that the amount of fake co- imposed statutory the maximum sen- (circle сaine involved in that offense was involving tence for offenses one): drugs. quantity indeterminate See 21 kilograms 5A. more 841(b)(1)(C). U.S.C. grams At B. least 500 than but less kilograms

11 did, that that it and that previously the court therefore did “[t]his We have noted road to not error. analysis makes the commit obvious multi-factor plain standard under the error success Barbour, In United States v. 393 F.3d hence, constitutes a steep; rather reversal (1st 2004), involving 89 a case Cir. remedy that United granted sparingly.” is facts, failed, the similar district court much Gelin, (1st v. 712 F.3d Cir. States case, like the court this to instruct the 2013). jury drug quantity that was an element error. begin question the To We with offense, although the it should have done review, must satisfy plain error we con- concluded, however, that so. We this fail- the not that district erred clude ure did not constitute obvious error be- jury the that was instructing in not “clearly jury cause the had been instructed quantity beyond a drug to find required guilt that must proven the defendant’s be doubt, but that the error was reasonable beyond a reasonable doubt” and subse- obvious. told, that, albeit if quently separately, the jury guilty, found the defendant it would has Supreme held The Court required make drug quantity be a find- are drug quantity facts as to be that such instructions, ing. Id. reasoned that the We of the offense and considered elements sufficiently perfect, while not “connected beyond a doubt must be found reasonable drug proof quantity that burden of to the “increase for a penalty if those facts the addition, determination.” Id. In in the beyond prescribed statutory the crime case, a present the verdict form contained Jersey, Apprendi maximum,” v. New drug question multiple-choice quantity that 466, 490, U.S. S.Ct. L.Ed.2d immediately question regard- followed the (2000), mandatory min or increase the ing guilt. the Id Under those defendant’s Alleyne crime, a imum circumstances, we that dis- concluded the — States, —, U.S. United plain trict court had committed error. (2013). case, 186 L.Ed.2d Id. drug quantity clear that was ele- it is here, Likewise, the although judge never Rivera-Rupérto’s charged drug ment of of- jury it was drug findings required instructed the quantity fenses because the findings drug quantity beyond make a Rivera-Ruperto’s sentence be- its increased stress, he (though, doubt we yond statutory the maximum for undeter- reasonable have), trial, correctly he submitted the drug judge should quantities. mined At jury, in- drug question to drug quantity question quantity submit did jury than once to the jury, jury structed the more and also instructed beyond-a-reasonable-doubt prove government’s government required burden, jury that if it beyond and instructed drug each element of the offenses drug of a of- Rivera-Ruperto guilty But found doubt. he never instruct- a reasonable fense, required also to make drug was an it would be jury quantity ed the Furthermore, crimes, on drug drug quantity finding. nor he did element form, question that after each drug quantity had verdict explicitly ever state jury found Rivera-Ru- beyond a asked whether to be found reasonable doubt. answer, drug- then, perto “guilty” “not-guilty” question we must offense, question directing jury would have related whether the nonetheless finding as jury multiple-choice required apply it was to make understood that immediately beyond-a-reasonable-doubt quantity followed. drug standard to Thus, “link findings quantity. between burden its We conclude the proof jury’s quantity and determina- it affected the defendant’s substantial tion,” at at id. was least as close here rights,13 still reversal would not be war in as it was Barbour. ranted because Rivera-Ruperto cannot show that the sufficiently error was funda arguing In that the district court none- fairness, mental to integrity, threaten the error, plain committed theless Rivera-Ru- public reputation or proceedings. of the Delgado-Marrero, perto relies on case in id. at See 184. The evidence this case review, which, applying error plain we re- each staged that drug deals involved the. resentencing on of an manded the basis than kilograms more of sham cocaine Alleyne F.3d at error. 744 186-90. Del- “ovеrwhelming” “essentially was and un- gado-Marrero, however, the court district controverted,” gives which no us basis for drug quantity jury had submitted to the as judicial concluding that the proceedings special verdict question after the Cotton, were so affected. United States v. jury already had deliberated and returned 625, 633, U.S. guilty its verdict. Id. 186-87. The court (2002) L.Ed.2d 860 (holding that the fourth jury never directed the to apply the be- plain-error-review requirement cannot be yond-a-reasonable-doubt standard to the where met the evidence of an element was special question, verdict nor did it instruct “essentially and “overwhelming” uncontro- that jury drug quantity the element was an trial) verted” at (quoting Johnson v. Unit drug offense. Id. at Under 187. States, ed 520 U.S. 117 S.Ct. circumstances, “given timing those the and 1544, 137 (1997)). L.Ed.2d 718 in which [drug quantity] ques- manner presented,” tion was we that reasoned we trial, government At showed the jury could not find that the was “sufficient- jury footage video from each of the ly put quantity notice of drug [the charged drug deals of a confidential infor- question’s] import critical to this case.” Id. weighing cocaine, mant the bricks of sham jurors Because “had no to un- cause then Rivera-Ruperto and placing each the special derstand verdict question as brick into a suitcase. The same confidential involving offense,” another element of the informant also testified on the stand as to we obviously concluded that the court had kilograms the number of of sham cocaine Id erred. during that were used each deal. No con- contrast, flicting here, emerged evidence

By trial already we have noted, drug might possibly have into quantity question was called submitted to the government’s evidence, jury drug quantity in the jury initial and on instructions form, Rivera-Ruperto does explicitly provide any verdict argument on jury appeal might instructed the as to how we government that, given conclude required prove beyond present- its evidence case ed, any Therefore, error on the district part reasonable doubt. court’s Rivera-Ru- fairness, threatened perto integrity, public has not cleared the obvious-error reputation of his trial. hurdle.

n Moreover, even if we assumed that the Let us be clear: we think the district district court’s error was jury flawed, obvious and that court’s instructions were all but Rivera-Ruperto's drug For one of quantities. con- undetermined Thus Rivera- victions, jury’s drug quantity finding Ruperto’s rights substantial have would been triggered mandatory enhanced jury minimum affected had the been instructions obvi- erroneous, ously sentences and Rivera-Ruperto resulted that ex- would statutory ceeded the plain maximum prong. sentence for have met error third review’s judge spiracy, have instructed which case should just have convicted of one to make its would been required that it was jury count, possession of a firearm in viola- beyond a reasonable quantity findings 924(c), 18 U.S.C. But, suc- tion of offense Rivera-Ruperto has not doubt. mandatory it a carries with minimum sen- climbing steep plain road of ceeded imprisonment, tence id. review, error we cannot reverse. 924(c)(1)(A). Instead, government § the Sentencing Challenges III. charge drug sepa- deal chose each as a transaction, contended, fully rate counsel Rivera-Ruperto’s argu- remaining two or knowing subsequent” that each “second to his He challenges ments are sentence. conviction under the subsection carries argues government engaged the mandatory it a minimum with sentence sentencing manipulation when improper years imprisonment, id. up sting operation, the and also set 924(e)(l)(C)(i), § which must be served resulting sentence between his combined 924(e)(l)(D)(ii). consecutively, § As a id. and 10 months the two trials of result, sentencing expo- Rivera-Ruperto’s prohibi- the Eighth violated Amendment’s 105-years impris- in the first trial was sure punishment. We on cruel and unusual tion the onment for firearms сonvictions alone. by recounting for a final time what begin happened below. government argued there had part. conduct on its improper been no Background A. had in a staged drug Each deal fact been event, separate involving varying amounts beginning At had Rivera-Ruperto raised of sham cocaine. And sentencing hearing, defense counsel manipulation, argu- participate each time to voluntari- sentencing issue of decided regard to the amount involved. arbitrarily ly, that the FBI had chosen without ing (more kilo- than 5 “large” use amounts sides, hearing the dis- After from both pur- for the sole of sham cocaine grams) court, making an rul- explicit trict without sen- enhancing Rivera-Ruperto’s pose manipulation argu- ing sentencing on the argued tencing exposure. Defense counsel ment, following For imposed the sentence. that, staged transac- drug for each of the convictions, the drug one of the all but tions, charged the elements of the offenses Rivera-Ruperto court sentenced district fulfilled lesser have been with would 21-year terms of and 10-month concurrent cocaine, and that amounts of sham remaining at- imprisonment.14 For 12- 8-kilogram, to use the FBI’s decision (for possession conviction which tempted quantities could kilogram, 15-kilogram quantity jury drug had not returned “mere sen- purposes have been for court Riv- finding), the district sentenced tencing enhancement.” (the of 20 years term era-Ruperto statutory maximum where amount argued that Defense counsel also undetermined). The dis- drugs involved is charging practices constitut- government’s sentencing court also sentenced manipulation trict impermissible ed for conviction 5-years’ imprisonment his five could to drug the series of deals because with obliter- of a firearm an drug possession con- charged single have been attempted pos- September 16 (except for the jury convicted Rivera-Ru- Reminder: the count) kilograms perto conspiracy and one more of of one count of session possession attempted for each count involved. sham cocaine were deals, drug and found for each count five during neglected April ated serial number district court address his 5-year sentencing manipulation to run properly-raised deal. This sentence was all, objection 21-year-and-10- with and that this alone consti- concurrently tutes clear error and reversal. 20-year drug warrants month sentences. argument first. We address threshold counts, other As firearms imposed 105-year court district It hearing is true that the sentencing 5-year mandatory on the minimum based transcript reflects that the district term for the first conviction under 18 explicit ruling never made on Rivera- 924(c), § and four consecutive 25- U.S.C. Ruperto’s objec- sentencing manipulation mandatory year minimum for the terms However, transcript plainly tion. also total, subsequent four convictions. hearing, judge indicates that at the 126- Rivera-Ruperto was sentenced to any defense counsel make state- invited imprisonment and 10-months’ from he After counsel ments wished. defense first the trial. argued issue, sentencing manipulation the him, judge acknowledging the thanked Rivera-Ruperto was then also convicted argument, then, that he had heard the trial, of all at his counts second and the allowing Rivera-Ruperto after himself to judge imposed of 35- second a sentence speak, government respond. invited the to years’ imprisonment, to be served consecu- judge gave The the government ample tively brought first his sentence. This argue sentencing manipulation timé to the Rivera-Ruperto’s for combined sentence well, gov- issue as and then thanked the in participation six his deals fake lawyer imposing ernment before the sen- 161-years imprisonment. 10-months’ tence. appeals sen- Rivera-Ruperto now the tencing manipulation issue raises on transcript, Based the we think challenge Amendment to the total it evident that the judge effectively denied

length of his sentence. sentencing objection manipulation the when he not chose to deviate from the Sentencing Manipulation B. statutory mínimums in sentencing Rivera- Sentencing manipulation factor Ruperto for his appears crimes. This occurs im government agents “where have enough have been clear to defense counsel of properly enlarged scope the or scale [a] well, objec as because counsel raised no Lucena-Rivera, crime.” United States v. tion and asked for no clarification as to the (1st 2014) (alteration 750 F.3d Cir. judge’s ruling sentencing manipu the original) in (quoting v. United States issue, lation even the judge when invited Fontes, (1st 2005)). 415 F.3d Cir. speak imposed counsel to after he sent the government engages the such Where in ence.15 the face of such an extraordi manipulation, “recognize[] we the court’s sentence, nary the district court should power impose the sentence below explain why have taken the time to it statutory mandatory equi minimum as an sentencing concluded that the doctrine of Fontes, remedy.” table 415 F.3d at 180. relief, manipulation factor did not warrant Rivera-Ruperto begins his sentencing rather than leave it for this court to draw manipulation inferences, by appeal arguing necessary that the the but we neverthe- asked, (which judge special monetary "That is the sentence of the for assessment else, Anything judge granted), up the Court. bring Counsel?” Defense but did not the manipulation responded requesting sentencing again. counsel abatement issue effectively only structuring judge sting oper- reason less conclude sentencing ma- he way, says, denied ation in this inflate his claim, and we turn to its merits. nipulation eventual sentence. definition, there “[b]y Because has Rivera-Ruperto But not met any sting manipulation an element of

is by preponderance his burden to show a reserve relief for sentenc operation,” we government’s evidence motiva only for “the ex ing manipulation factor trial, tions At improper. were indeed FBI Lucena-Rivera, ease,” and unusual treme agents government testified used (alteration original) F.3d at 55 large quantities sham cocaine for the Fontes, 180), such (quoting 415 F.3d purpose ensuring staged that the deals “involving outrageous situations or those looked realistic enough warrant [by government] pressure intolerable security. need armed Although illegitimate part motive on the that, certainly feasible Navedo-Ramirez, v. agents,” United States argues, agents could have some used (1st 2015) (alteration 781 F.3d Cir. quantity drugs lesser and still made the original) (quoting United States Rich realistic, they deals look the mere fact that ardson, (1st 2008)). 74, 86 n.8 Cir. 515 F.3d not, more, did without does establish who bears the burden It is defendant agents engaged kind of factor establishing sentencing manipu misconduct,” “extraordinary United States evidence, by a preponderance lation (1st Sánchez-Berríos, 65, v. 424 F.3d 78-79 judge’s as to and a district “determination 2005), that is of a required Cir. successful is improper manipulation whether exists manipulation claim. sentencing ordinarily a factbound determination sub States ject to clear-error review.” United Likewise, sting it was part the Gibbens, 28, (1st 1994). Cir. v. 25 F.3d 30 design that operation’s get-go from the Operation Shack would “hire” cor- Guard Here, argues, as Rivera-Ruperto rupt provide law enforcement officers to below, government that en he did the deals, security staged at drug armed by gaged sentencing manipulation using in turn, then, and that those officers would in quantities of unnecessarily high sham to in deals, participate be asked to recruit others drugs during by requiring Riv deals, thereby as- subsequent unwittingly him era-Ruperto bring firearm with tо in sisting sting ferreting out additional deals, allowing him by each of the and then corrupt pro- has “seemingly in a officers.17 participate endless” that, in tell- government’s suggest vided no evidence to number those deals.16The brief, by improper government mo- Rivera-Ruperto appears his not to was driven below, transactions, reprise argument, charging drug which he raised tives in which prosecution's charging practices (spe- that the separate days and involved dis- occurred on drug cifically, charge the five its decision deals, conspiracies. separate tinct separately opposed single deals to as conspiracy) impermissible constituted sen- noted, Rivera-Ruperto already 17. As we have tencing manipulation. extent To the that (and police was officer turned not himself argument, counsel alluded to this issue at oral officer, prison out to be a corrections not even circumstances, exceptional gener- we absent claimed), among originally as he had' but ally only consider as waived issues raised par- he those co-defendants that recruited Vazquez- argument. oral Rivera, See United States ticipate subsequent Operation Guard Shack in (1st 2005). F.3d Cir. 407 487-88 deals, in Puerto one was an officer at least exception And even if we were make Department. Rico Police here, provided has no evidence that counsel bring him to a firearm ing to the deals or sentence. Rivera-Ruperto argues his that allowing him participate multiple his combined sentence between the two deals, agents “any- the FBI engaged 161-years trials for impris- 10-months’ thing in- beyond manipulation the level onment constitutes cruel pun- and unusual virtually any sting operation” herent in assume, favorably ishment. We to Rivera- appellant[] committing into “lure[d] Ruperto, that this Amendment ar- predis- more than [he crimes heinous was] gument properly preserved, and re- Sánchez-Berríos, posed to commit.” his de challenge view novo.18 F.3d at 79. begin by Let us acknowledging Moreover, arguments these same have 161-year that and 10- already attempted been and lost other extraordinarily month sentence indeed Operation Guard Shack defendants. See long. But in to deem order it constitution Navedo-Ramirez, (denying 781 F.3d at 570 ally infirm the Eighth under Amendment’s argument that government’s defendant’s clause, cruel punishment and unusual high drug quantities use of constituted there are criteria three we must assess: sentencing manipulation); factor Lucena- “(i) the gravity the offense and the Rivera, (rejecting 750 F.3d at defen- (ii) penalty; harshness of the the sentences argument government dant’s had imposed on other criminals in the same prolonged its investigation year for a (iii) jurisdiction; and the sentences im sentence, order to inflate the where the posed for commission of the same crime in government argued had done so to Polk, jurisdictions.” other United States v. identify conspirators, other and the defen- (1st 2008) F.3d Cir. (quoting dant present did otherwise sufficient Helm, 292, 103 Solem v. U.S. motive); of an improper evidence Sánchez- (1983)). L.Ed.2d reach We Berríos, 424 F.3d at 78-79 defen- (denying two if last criteria we can first estab government dant’s argument con- sentence, face, lish is gross its bring nived to make him his to firearm the ly disproportionate to the crime. Id deal in sentencing order to enhance his exposure). The district court quickly therefore did To out sketch the underpinnings clearly denying err in Rivera-Ruper- Rivera-Ruperto’s more, for sentence once sentencing manipulation to’s claim. years of the combined 161 10 and months sentenced, to Rivera-Ruperto which Eighth C. Amendment the lion’s share the sentence—130 Rivera-Ruperto’s argument ap- years final to be exact—was the result mini- peal Eighth an challenge is Amendment to required by mum sentences statute for govеrnment argument challenge. makes no what- Amendment sentencing At the first trial, its appeal soever in brief in this first hearing after first counsel for Riv- applies, argues what standard of review but it era-Ruperto argued prescribed that the statu- Rivera-Ruperto's appeal its brief in second tory punishment mínimums had resulted in a Rivera-Ruperto's Eighth that Amendment over, over, “goes way substantially way that below, preserved properly claim was not necessary punishing what’s for these of- plain applies. that part, error review For his fenses,’’ “horribly, horribly and resulted in a Rivera-Ruperto does not discuss the standard increased sentence which borderlines on dra- opening reply of review in either brief arguments conian.” No similar were made at appeal. either Rivera-Ruperto's sentencing, second but for record, purposes today, apply On our read of our we when it will least defen- sentence, his dant-friendly comes to first de novo standard to Rivera-Ru- probably enough preserve Eighth did perto’s challenge to his combined sentence.

17 (1982) (per 70 L.Ed.2d cu- convictions six firearms riam). (5 924(c)(1)(C) years § U.S.C. under 18 conviction, 25-year § first his ‍‌​​​‌​​​​​​​‌​‌​‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌‌‌​​‌‍here in those argues The dissent five for each of the consecutive Supreme up has cases where Court convictions).19 Rivera- Because

subsequent seemingly sentences for minor held harsh his Amendment Eighth Ruperto bases crimes, justified the Court’s rationale was length sentence challenge on the of his the offenders were recidivists because must he totality, prevail, its order legitimate a on which a recidivism is basis statutorily-mandated can elect to sentence more legislature establish However, why we dispropor- harshly. is see no reason 130-year grossly sentence may legiti such a Thus, our recidivism be deemed face.20 we focus tionate on its basis, involving crimes the combi mate but his sen- portion on the inquiry here drugs and thosе 924(c) weapons nation of § convic- stemming from the tence —like 924(c) stacking regime— § targeted tions. basis. may legitimate not also be deemed a has contrary, Supreme “[t]he Court cases, To Eighth noncapital 924(c) purpose’ that the ‘basic noted precise require “does not Amendment dangerous combination ‘to combat punishment.” of crime and calibration ” and guns’ “has also noted drugs Graciani, 70, 76 F.3d v. United States legislative sponsor chief provision’s ‘the 1995). most, (1st Rather, “[a]t Cir. provision per that the seeks to ... said gives to a ‘narrow Amendment rise tempted man who is to commit suade the forbidding principle,’ proportionality ” felony gun his at home.’ Federal leave significantly that are extreme sentences Angelos, v. F.3d States United underlying to the crime.” disproportionate 2006) (10th Muscarello v. (quoting Cir. Michigan, 501 Harmelin (quoting Id. States, 125, 126, 118 S.Ct. U.S. United 957, 997, 115 L.Ed.2d 111 S.Ct. U.S. (1998)). 1911, 141 L.Ed.2d (1991) J.)). (Kennedy, previ haveWe gross ously remarked “instances particularly Defendants have rare.” will be hen’s-teeth disproportionality propor passing through the time difficult Polk, Supreme at 76. The Court 546 F.3d channel where tionality principle’s narrow chal against upheld disproportionality has statutory is the result of the sentence example, a of 25 lenges, are re This is because courts mandate. “three strikes under California’s life judgments to the give deference quired Ewing clubs, v. golf theft of appropri law” for the in determining legislature of California, 11, 30-31, softly 123 S.Ct. “step 538 U.S. and must punishments, ate (2003), sen 1179, Legislative 108 and a L.Ed.2d a wide berth to the 155 and cede of authority type intent years possession for with to match tence of 40 Branch’s Polk, marijuana, type of crime.” punishment nine ounces of with to distribute Harmelin, Davis, 76; 370-74, see 501 U.S. 370, 102 F.3d at also 454 546 Hutto v. U.S. words, Rivera-Ruperto does not term of 20. In other the rest of Rivera-Rupertp’s 19. As for explained, already we find that the imprisonment, argue have that we could somehow resulting were years and 10 months оf the sentence remaining years 21 31 and 10 months remaining were, convictions of all the result by them- his other convictions from trial, years the sen- and the first 10 from selves, crimes disproportionate to the grossly remaining convictions were from the tence they imposed. were for which trial. the second from 18 (“[T]he 998, fixing upon might departure 111 2680 S.Ct. which we base a holdings from our sister circuits’ here. specific a

prison terms for crimes involves that, a penological judgment substantive At argument, oral counsel Riv general ‘properly matter is within the era-Ruperto argued that we should be ” province legislatures, courts.’ that, case, swayed by the fact in this Estelle, 263, v. 445 (quoting Rummel U.S. drug crime involved fake deals. A near two 275-76, 1133, 100 63 L.Ed.2d 382 punishment drugs life-term where no real (1980))).Accordingly, circuit has “[n]o held involved, drug and no real dealers were he 924(c) § that consecutive sentences under contended, punishment grossly is a that is Eighth violate the Amendment.” United disproportionate coming on its face. But Robinson, (8th 984, v. 617 991 States F.3d sentence, judge guid below 2010) (alteration in original) (quoting Cir. by correctly employed sentencing ed and Wiest, 906, F.3d United States v. 596 912 scheme is written into statute —a stat (8th 2010)): example, For courts Cir. have ute that makes no distinction between upheld against Eighth chal Amendment involving cases real versus sham cocaine. 107-year lenges such as a 1- fact, sentences stings, At each the six Rivera- month sentence for a five defendant’s Ruperto repeatedly voluntarily 924(c) convictions, § up United States v. provided security showed armed and McDonel, (6th 523, Fed.Appx. illegal services for what he believed be denied, 1061, Cir.), cert. transactions between real U.S. 131 S.Ct. cocaine dealers. 636, possessing The crime of (2010); firearm fur 132-year L.Ed.2d sentence, trafficking therance such a 1-day offense of which 125 one, 924(c) grave Congress is a convictions, has made a § were for United legislative requires determination that Ezell, (3d. 70, Fed.Appx. States punishment. weight harsh Given the 2008); 147-year Cir. and 8-month sen law, we no case see Amendment based, large part, tence on a defendant’s second-guessing legislative route for 924(c) convictions, § six United States v. judgment. Watkins, (6th 2007); 509 F.3d Cir. 924(c) 155-year §

and a sentence seven We thus cannot conclude that Rivera- Hungerford, convictions, States v. United sentence, Ruperto has established his (9th 2006), 465 F.3d 1117-18 Cir. largely which is due to his consecutive denied, 924(c), cert. 550 U.S. 127 S.Ct. § sentences under grossly is dis- (2007). Rivera-Ruperto crime, 167 L.Ed.2d 1097 proportionate trigger so as presented any contrary authority Eighth has not protections.21 Amendment 924(c) year § Because fails establish sentence under for a 24 old case, grossly disproportionate, ultimately that his sentence is first-time offender in that he (and correctly) think we need not reach the last two we ruled that: criteria —a comparison of his sentence with 924(c) evaluating The court's role in juris- received other offenders in the same quite limited. The court can set aside the comparison diction or a his with punishment statute if it is irrational imposed for the same crime in any justification oth- without conceivable or is Nevertheless, jurisdictions. er we note that in so excessive as to constitute cruel and un- sentence, comparing Rivera-Ruperto's punishment the dis- usual in violation the of deliberation, largely Judge sent relies on the of rationale Amendment. careful After the Angelos, reluctantly Cassell United States v. 345 concludes that has no 2004), aff’d, (D. F.Supp.2d impose year 1227 Utah but to the 433 choice 55 sentence. However, (10th 2006). cruel, despite appears F.3d 738 Cir. While sentence to be irrational, Judge misgivings resulting unjust, system sep- Cassell’s about the and in our of transaction, drug partici- In a real all

CONCLUSION pants And, be of a guilty would crime. finished, job now we affirm for Our general, greater their knowledge we statéd above. A second reasons have be, crime wоuld the harsher law would address Rivera-Ru- opinion, which we punish them. In the fictitious transaction challenges as his sec- separate to perto’s today, however, faced with only we are trial, issues herewith. ond duped participants, knowledge who had no truly transpired, of are punished. what TORRUELLA, Judge Circuit other are ex- participants The (Dissenting). cused, job but indeed rewarded for a well a of majority today affirms sentence The done. pos- and month without the years one Rivera-Ruperto knowing- If had instead The sibility parole Rivera-Ruperto. of rapes, committed real ly several second- transgression Rivera-Ruperto for which murders, degree kidnappings, he and/or in such an extreme manner punished

was have a much sen- would received lower security guard as a participation was his tence; if Rivera-Ruperto even taken a had transactions, fake the FBI several while in, brought much more active role a Rivera-Ruperto believing into duped to, deals, two real gun larger drug much composite actually illegal drugs. still a lower he would have received much FBI that more than five kilo- ensured For other many sentence.22 these moved from one grams composite would re- crimes have transac- hands to another each agent’s that would him re- ceived sentences see tion; FBI also made sure prison during from term leased natural script included rigged life. For fictitious transgressions of his pistol at each transaction. possession a authorities, however, Riv- concocted than five kilo- This combination—more will his entire life be- era-Ruperto spend composite, separate grams pistol, given first-degree hind bars —a sentence mandatory triggered transactions — murderers, § or those who U.S.C. consecutive mínimums 18 U.S.C. by wrecking carrying a train 924(c), years Riv- cause death up § make which § high-level nuclear waste. 18 1992. era-Ruperto’s sentence. U.S.C. Cruz, See, e.g., v. powers Congress final United States Carlos arated makes the 2003) penal- (1st appropriate (affirming criminal decisions Cir. F.3d 509-10 law, controlling ties. Under the case years given an actual no court must find either that statute has cocaine, caught with actual dealer —who was grossly is dis- justification conceivable so heroin, base, guns, a cocaine two machine proportionate crime no reason- to the rifle, pistol, large ammuni and a amount of argument made able can be its behalf. [on] possession seven counts related to tion'—on fairly apply prece- the court these If illegal drugs and to with intent distribute case, reject defen- [the dents in it must firearms); possession of United States challenges. dant’s] constitutional Grace, (D. Maine case no. 1-16-cr-0039-001 Angelos, F.Supp.2d at 1230. 13, 2016) (sentence of 15 for con Dec. Similarly, cannot find that the sentence we possess spiracy to or more distribute 924(c) imposed pursuant conceiv- has no prior grams of heroin. Defendant had two dispropor- justification grossly able or is so importing more and admitted to convictions argument can be reasonable tionate no 20,000 cocaine). bags of than may its However unfair we made on behalf. here, say deem the life sentence we cannot it. that the Constitution forbids majority’s of approval (holding From the the dra- 130 S.Ct. 2011 that a sentence of case, in I imposed possibility parole conian sentence this life without the of respectfully by juveniles dissent. sen- non-homicide offenses violates Amendment); grossly disproportionate Eighth tence is to his Miller v. Ala bama, offense, 2455, 2469, Eighth and therefore violates the 567 U.S. 132 S.Ct. (2012) (holding Amendment the Constitution. While 183 L.Ed.2d 407 excessively seemingly some mandatory parole harsh sen- sentence of life without Eighth juvenile tences have withstood Amendment Eighth offenders violates the Amendment). challenges, such harsh sentences have оnly in the been sanctioned context of case, present In the is faced or those recidivists who otherwise dedicat- challenge with a under the falls first ed themselves to a life of crime—a context a challenge classification: to the length of severity of explained the the sen- Rivera-Ruperto’s sentence based on the tences. Rivera-Ruperto But has no crimi- case; words, in circumstances of his other record, nal nor has he dedicated himself to an as-applied constitutional challenge to a life of crime. Not even under the infa- length of Rivera-Ruperto’s sentence. 924(c) § mous has a first-time offender The Supreme jurisprudence Court’s in like ever been condemned this first by classification is animated spend jail.23 his entire life principle proportionality punishment, by legislature’s as well as deference Eighth I. The Amendment judgment as to what punishment is merit- addressing The cases pro- Court’s ed.

portionality of fall sentences within two general The classifications. first involves Proportionality A. challenges length to the of term-of-years principle of proportionality deeply is given all the circumstances very embedded into the legal roots our particular comprises case. The second Helm, system. 277, 284, Solem v. 463 U.S. implements cases in which the Court (1983). 103 S.Ct. L.Ed.2d “In proportionality by standard certain cate- chapters Magna three Carta were gorical death penalty. restrictions on the devoted to the rule that ‘amercements’ [the In the first classification the Court con- most common criminal sanction at siders all of the circumstances of the may not be dispro- time] excessive”—and case to determine whether portionate penalties were invalidated ac- unconstitutionally excessive. 284-85, cordingly royal courts. Id. at Florida, 48, 59, Graham v. 560 U.S. 130 103 S.Ct. 3001. When adopted the Framers (2010). 2011, 176 L.Ed.2d 825 languagе Amendment The second has English Rights classification evolved to from the Bill of —which encompass penalty, provided the death ought but that “excessive Baile not to 61-62, 82, prison also id. at required sentences. See be nor imposed excessive Fines Crime, Terrorism, Although 924(c) § 23. See Section infra II.A. mittee Subcommittee on rightly subject Security, has been the scathing much and Homeland WL criticism, the statute as such is not the focus Rather, 19(5) (2007). Sent’g Rep. Fed. what is See, e.g., Cassell, Judge of this dissent. Paul today proportionality issue is the of Rivera- Statement on Behalf of the Judicial Confer- sentence, Ruperto’s proportionality not the Judge ence of United States from U.S. District 924(c) general. sentences under Judiciary Paul Cassell before the House Com-

21 in- punishment that a of life without and unusuall Punishments hold nor cruell adopted parole disproportionate of of was they principle possibility also flicted” — of account check major issuing theme to the offense a no for was proportionality, (even though of it was had all in the amount $100 of era that Americans offense) 285-86, subjects. seventh that Id. at the defendant’s English of rights —and Eighth therefore violated the this sentence 103 S.Ct. 3001. 303, Id. at 103 S.Ct. 3001. Amendment. is not proportionality of principle The interest, continued to Supreme The Court has merely of historical however. case, prison be recognize on to ob- that sentences must that Court went same principle Eighth of under Amendment proportional constitutional “[t]he serve explic- every in case has dealt with that recognized has been proportionality century.” M. since Solem.25 Harmelin v. question for See itly in this Court almost Michigan, 957, 997, 111 S.Ct. 286, proceed- 3001. The 501 U.S. 103 S.Ct. Court (1991) J., 2680, (Kennedy, its L.Ed.2d 836 no fewer than eleven of 115 ed to cite from (“[t]he 1982, in Amendment concurring)26 Eighth from precedents ranging 1892 principle applies of also principle proportionality proportionаlity which the Ewing sentences”); v. noncapital an Califor was not even recognized24 —and n.ll, 12, 11, 20, 1179, 287-88, nia, 155 538 U.S. 123 S.Ct. list. See id. at exhaustive (“The (2003) Amend- Eighth to L.Ed.2d 108 proceeded 3001. Court 103 S.Ct. Vermont, 323, 601, J., 2861, (Powell, concur id. at 97 S.Ct. wit: O'Neil v. 144 U.S. 24.To 693, (1892) 339-40, judgment dissenting 450 ring part 12 S.Ct. 36 L.Ed. in in J., (the (Field, dissenting) Eighth Amendment (“ordinarily disproportionate part) death is against punishments ... all "is directed raping adult punishment for the of crime severity length are by their excessive Finney, 678, 685, which woman”); v. U.S. Hutto 437 greatly disproportioned to the offenses 2565, (1978); S.Ct. 57 L.Ed.2d 522 98 Ingraham Wright, Dulles, Trop 86, 100, charged”); v. ‍‌​​​‌​​​​​​​‌​‌​‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌‌‌​​‌‍356 U.S. 651, 667, 97 v. 430 U.S. 590, (1958) (plurality 2 L.Ed.2d 630 78 S.Ct. Gregg 1401, (1977); v. 51 L.Ed.2d 711 S.Ct. J., 111, (Brennan, 78 opinion); id. at S.Ct. 590 2909, 153, 171-72, Georgia, S.Ct. 428 U.S. 96 125-26, concurring); 590 id. at 78 S.Ct. Stewart, (1976) (opinion of 49 L.Ed.2d 859 J., (Frankfurter, dissenting). Weems v. United Davis, Stevens, Powell, JJ.); 454 Hutto v. 349, 367, 372-73, States, 30 S.Ct. 217 U.S. 703, 374, 370, n.3, S.Ct. 70 102 U.S. 544, (1910) ("that precept 793 it is 54 L.Ed. curiam) (1982) (per (recognizing L.Ed.2d 556 be justice punishment crime should prison may constitu sentences be that some offense,” proportioned graduated and Estelle, tionally disproportionate); v. Rummel endorsing principle proportionality as a 272, 1133, 263, n.11, 63 100 S.Ct. 445 U.S. standard); Califor Robinson v. constitutional nia, (1980) ("[o]utside context L.Ed.2d 382 660, 1417, 667, 8 S.Ct. 370 U.S. 82 challenges to punishment, capital successful (1962) ("But question [of 758 L.Ed.2d proportionality particular punishment excessive under rare”). exceedingly [willhe] the ab cannot be Amendment] considered day prison be a one would stract. Even non-capi- my here limit consideration 25. I punishment the 'crime' and unusual cruel cases, capital within the because cases fall tal cold.”); v. Flor having a common Enmund Eighth Amendment classification of second ida, 102 73 L.Ed.2d 458 U.S. however, Note, challenges. proportionality (1982) (death penalty excessive for felo cases, propor- capital principle of life, not take ny when defendant did murder See, e.g., tionality certainly applies well. life, a life be attempt take or intend that Graham, 59-61, S.Ct. 2011. U.S. at used); lethal Coker taken or that force be 584, 592, Georgia, 433 U.S. 97 S.Ct. been described ("sen This concurrence has since (1977) (plurality opinion) L.Ed.2d Graham, "controlling.” U.S. at grossly disproрortionate and death is tence of rape”); S.Ct. 2011. punishment for the crime excessive ... proportionali- corollary ment contains a ‘narrow in principle that the Constitu- ty principle’ sen- ‘applies noncapital adoption any tion ‘does not mandate of one ”) (internal omitted); ”). tences.’ citations id. penological theory’ The proportionality 33, (Stevens, Souter, at S.Ct. principle is therefore sometimes described JJ., (“The Ginsburg, Breyer, dissenting) “narrow,” “exceedingly in concurrences this prompt separate writing “gross disproportionali- rare” instances of emphasize proportionality review is ty” should the courts apply Eighth only capable judicial application but See, Amendment to overturn a sentence. required by Eighth also Amend- e.g., 20, 21,123 id. at S.Ct. 1179. Lockyer Andrade, ment.”); 63, U.S. (2003) 72, 123 S.Ct. 155 L.Ed.2d 144 Three-Step Analysis The C. (“Through of Eighth this thicket Amend- proportionality Thus it is clear that is of jurisprudence, governing legal ment one importance law, crucial in our sentencing principle emerges ‘clearly established’ its “precise but contours ... are unclear”. 2254(d)(1): gross disproportion- A under Lockyer, 72, 73, 123 at 538 U.S. S.Ct. 1166. ality principle is applicable sentences for It is also clear that these contours are Graham, years.”); terms at U.S. determined primarily by deference to the (“The propor- 130 S.Ct. 2011 concept of legislature’s judgment as to appropriate tionality Eighth is central to the Amend- punishment. emergence This has led to the Miller, ment.”); (same).27 S.Ct. at three-step analysis of a that assesses both proportionality legislature’s judg Legislature B. Deference performing test, three-part ment. this The same law is case also clear that must severity courts look at the actual of a respect for the judgment legislature of the (as opposed defendant’s offenses to merely as what appropriate punish cоnstitutes looking violated), at the laws he as well as e.g., See, Solem, in ment is order. 463 U.S. at severity penalty look the actual of the (“[w]e at 103 S.Ct. 3001 as a hold (rather merely than at the name of the of principle matter that a criminal sen penalty); give and courts must recidivism tence must be proportionate to the crime great weight assessing gravity when for which the defendant has been convict offense, and thus when justifying a courts, Reviewing course, ed. should sentence. harsh grant substantial deference to the broad authority that legislatures necessarily pos Steps 1. The Three types sess in determining the and limits of Ewing, crimes”); controlling opinion The punishments Harmelin ex- for 538 U.S. 24, 123 plained its approach determining at S.Ct. for (noting “[tjhough for may relatively new, years three strikes be whether sentence a term of laws grossly our tradition deferring legisla disproportionate particu- state in making implementing tures such lar crime. A defendant’s court must be- important policy longstand by gin comparing gravity decisions is ing”, adding severity traditional defer offense and “[o]ur of the sentence. legislative ence to policy choices finds a rare case which ‘[I]n thresh- [this] ler, Although ("The position [Eighth 132 S.Ct. at 2483 Amend- proportionali- Amendment contain does not proportionality ment] does not contain a raised, ty principle occasionally never Scalia, (Thomas, JJ., principle.”) dissenting) Court, a majority Supreme achieved in the (internal omitted). citation See, e.g., rejected. squarely and has been Mil- likely to an Rummel was to have been comparison ... leads inference Estelle. old eligible the court within 12 of his gross disproportionality’ parole compare confinement, then the defendant’s initial should a fact on which the with the sentences received heavily. Court relied jurisdiction same other offenders in the Solem, 297, 103 3001.28 463 U.S. imposed for the and with ap- Court reaffirmed this Supreme If jurisdictions. crime other same proach pronounce- its most recent an ini- comparative analysis Validated] ment on issue: the sentence is judgment [the] tial 14-year-old The in these two offenders disproportionate,’ the sentence is grossly cases convicted of were murder and sen- and unusual. cruel imprisonment tenced to life without the Graham, 560 U.S. at 180 S.Ct. 2011 possibility parole.... of State law man- (internal omitted; citations alterations juvenile prison dated that each die in original). judge jury even if a or would have Severity of the Offense and 2. Actual thought youth his its attendant the Punishment of characteristics, along of with the nature (for three-step crime, performing analysis, the his made lesser sentence example, possibility pa- Court has considered the ac life with the of Supreme the role) severity appropriate. of the acts committed more tual defendants, importance well of as the Miller, (original empha- at 2460 132 S.Ct. e.g., See, Ewing, they laws violated. the sis). (de 18-19, 28, 123 S.Ct. 1179 U.S. at 3. Recidivism nine criminal con tailing past defendant’s dollar of considering the value victions upheld The Court has several Supreme by the defendant in the merchandise stolen relatively harsh for seemingly sentences conviction). his latest Supreme The rea- minor crimes. Court severity soned that the of these Similarly, the Court has been Supreme justified they recidi- was because involved the purposes that for the of three- clear legiti- was a vist offenders recidivism step analysis, courts must look the actu- could legislature mate which a basis on is, the severity penalty al —that harshly. in- elect to more For sentence of a defendant actual amount time will Estelle, stance, Supreme in Rummel v. the his prison penal- not to what serve —and life with the upheld Court sentence of is called. ty parole obtaining possibility of $120.75 is present sentence [The defendant’s] that: pretenses, under but reasoned false possibility of imprisonment life without Moreover, record, Tex- spend given Helm of Rummel’s parole.... will rest in the required to treat him penitentiary. in the This was not his life state him might than as it treat were is far severe the life same manner sentence more “petty property offense.” we in Rummel v. his first sentence considered clemency.’ 'an ad of It is little explicitly rejected hoc exercise 28. The Court Govern- possibility executive argument possibility from the of of execu- different ment’s that the every case in which clemency clemency of life that exists tive made a sentence without challenges his under possibility parole same as a sen- defendant Eighth Recognition of such a parole. possibility with Id. Amendment. tence life ("The possibility judicial possibility would make review bare meaningless.”). Eighth under nothing hope is than a Amendment commutation more Indeed, him Having imprisoned twice for felo- of the seven cases address nies, as-applied proportionality challenges place under upon Texas entitled Amendment, Eighth deal five with re- who is simply Rummel onus one remaining cidivist offenders.29 Of the two bring his conduct within unable to (Harmelin) cases, with a one deals career by the prescribed social norms criminal (another justification important criminal law of the State. for meting appear out sentences that harsh of a purpose recidivist statute such face); on their and in the final case as that involved here not to simplify (Weems) punishment was held to vio- prosecutors, judges, ju- the task late Amendment. goals to deter primary ries. Its are re- and, peat point at some offenders II. Discussion repeatedly life of one who commits Three-Step A. Test enough criminal offenses serious to be difficulty case has no felonies, punished segregate as to clearing step the first of the three-step person society from the rest of for an analysis, in begin by which court must “[a] period of This segrega- extended time. comparing gravity of the offense and tion its are duration based not severity of the sentence. the rare ‘[I]n merely person’s on that most recent of- comparison case in which threshold [this] propensities fense but also on the he has ... an gross leads to inference dispro- of period demonstrated over a of time dur- portionality’ then [pro- should ing which he has been convicted of and step analysis].” ceed to the second sentenced other crimes. Graham, 59, 560 U.S. at 130 S.Ct. 2011 (internal omitted). In forty citations over Rummel, 445 U.S. at 100 S.Ct. 1133. years bench, on federal I have never Ewing, to example, use another disproportionate seen so a penalty handed Supreme Court devoted an entire section down, particularly where the offense is of its to opinion explaining the defen- certainly based on fiction. I am not alone dant’s years sentence to life for in finding vastly this sentence be to dis- golf stealing three clubs under California’s proportionate to the Speaking offense. on three strikes law must be understood in behalf of the Judicial Conference of the recidivism, explained: the context of States, Cassell, Judge United Paul after justification pretext. no “California’s is Re- describing mandatory minimum sen- safety cidivism is a serious public concern 924(c) § tences—in particular under —as and throughout California the Nation.” injustice,” “bizarre,” “one-size-fits-all “irra- Ewing, 538 U.S. at S.Ct. 1179. “In tional,” unusual, “cruel and unwise and weighing gravity Ewing’s offense, unjust,” concluded that mandatory we must on not place only the scales his system sentencing minimum “must be felony, long current but history also his system abandoned in favor of a based on felony Id. recidivism.” 123 S.Ct. principles proportionali- of fairness and ty.” Commission, 1179. too, Sentencing The Rummel, wit, Hutto, Solem, Ewing, Judiciary 29. To House Crime, Terrorism, Committee Subcommittee on Lockyer. Security, and Homeland 19(5) Sent’g Rep. 2007 WL Fed. Cassell, Judge (2007) Paul (quoting Statement Behalf of Judge Senior Vincent L. Bro- derick, York, the Judicial Conference of United States speak- from Southern District of New Judge 19(5) ing U.S. District CommRRep. Paul Cassell before the for the Criminal Law The court has effectively times. district Rivera-Ruperto’s such as views sentences prison. would its condemned him to die in As noted disproportionate —not above, a far lower sen- Guidelines recommend court is consider actual tence, stated that sen- but the spend Commission time a is to defendant incarcerat- 924(c) § stacking “can case, tences a result Rivera-Ruperto’s ed—in means excessively that are se- supra lead If, his whole life. See Section I.C.2. the offense disproportionate vere however, compares one his offense other example, As an the Com- committed.”31 mandatory offenses that would result Angelos, of Weldon mission cited the case law, under then his LWOP federal offense marijuana who received a sen- dealer pales comparison. I have been able to (55 years of which was years tence 61.5 forty-nine prescribe locate statutes under mandatory minimum mandatory penalty of LWOP.33Seventeen 924(c) (but using bringing § are murder.34 degree of these for first marijuana three gun brandishing) general mandatory min- imposing statute however, deals)32 Rivera-Ruperto, murder, — degree imum for first U.S.C. (130 of 160 faced with a sentence 1111, goes Congress § to 1790. back has 924(c)). § stacking under years due to then, since steadily application widened its situations, many specific it now covers also has trou- case no killing president, from U.S.C. step, namely a com- the second passing ble 1751(a), § killing eggs product quali- with “the defendant’s sentence parison of 1041(b). ty inspector, 21 by other U.S.C. Other received offenders Graham, of LWOP for 560 statutes mandate sentence jurisdiction.” in the same killing perhaps genocide “If such crimes as 60,130 at 2011. more serious U.S. — gravest imaginable crime U.S.C. subject penalty, to the same crimes are —18 carrying high § wrecking is a train lev- some indi- penalties, to less serious thereby causing el nuclear material and may at issue be punishment cation that the death, hostage Solem, § tak- 18 U.S.C. 463 U.S. excessive.” death, 18 U.S.C. 1203. received, ing resulting effec- S.Ct. 3001. simply do not Rivera-Ruperto’s offenses tively, mandatory sentence of life without (“LWOP”) the offenses in this rise to level of possibility parole —be- chart follows. complete chart. The is about two human life- cause 160 Commission, Sentencing (2007) Judge 33. See States Vincent L. Bro- United (quoting Senior Mandatory derick, York, in the Federal Minimum Penalties speak- New District of Southern System, (2011). App. A Criminal Justice ing Law Committee Criminal testimony Judicial before Conference permit the death 34. Note that the statutes and Criminal Justice on Crime Subcommittee penalty degree murder. U.S.C. for first July Judiciary, on the House Committee only § 1111. Because the statutes mandate 28, 1993)). penalty death of LWOP and the given rarely, include the statutes in the Commission, I Sentencing 31. United States all, comparison. reflect Con- Congress: Mandatory After the statutes Report Min- murder, degree gress’s judgment first the Federal Criminal Jus- imum Penalties in already a heinous offense far without System (2011). tice more— adequately worse that —is punished LWOP. Id. n.903. committed, one finds that they carry far less severe sentences than Rivera-Ruperto’s. In sentencing to a man- If approaches one the analysis under datory term of 55 a defendant who this second from step angle, another one is, had committed arrives at the if three offenses same conclusion. That under one graver 924(c), looks to offenses far Judge than those compiled Cassell table marijuana law that re a who under federal would dealer shoots three оffenses ([The in a sentence than those people. sult shorter still a defendant] receives clearly graver than years marijuana were longer sentence than a dealer —but Judge com defendant’s offenses. Cassell’s people.) who shoots two parison applies even to at 1246. Id. considerably Examples longer sentence. Similarly comparison a telling is to the hijacker from his include “an aircraft table provision, federal three-strikes 18 U.S.C. (298 months), a a terrorist who detonates ‍‌​​​‌​​​​​​​‌​‌​‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌‌‌​​‌‍3559(c). § This statute that a mandates (285 months), in a a public place bomb a impose court sentence of a LWOP on minority racist who attacks a with prior criminal with two serious violent felo- permanent intent to kill inflicts or life- ny convictions when this criminal commits (210 months), threatening a sec injuries such a third offense—but such an offender murderer, ond-degree or a rapist.” United age can then be released at 70 if he has Angelos, F.Supp.2d States (D. years prison served at least 30 2004), aff'd, under 18 1244-45 433 F.3d 738 Utah 3582(c)(1), § (10th 2006). the so-called “compas- U.S.C. Judge went on to Cir. Cassell is, release That triple him sionate clause.” if Rivera- compare the sentence before offenders, committed felony, at had a Ruperto arrived the conclusion violent convicted, that, committed been then a second felony, again, violent then been convicted [ajmazingly, [the Defendant’s] third 924(c) felony, and then committed a violent § far severe under is still more yet again, and been convicted he—even committed, for exam- than criminals who though seemingly incorrigible a recidi- three three sec- ple, hijackings, aircraft eligible murders, vist—would have been for release ond-degree kidnappings, three 70. As age re- at a first-time offender sen- rapes.... or three will [Defendant] 924(c), however, § under Rivera- any a sentence than three- tenced longer ceive criminal, excеption Ruperto eligible with the will never be for release.37 time sole Angelos, mandatory mandatory imposed F.Supp.2d also at 1250- than time 37. See less ("The 924(c). irrationality § when increases on the first-time offender under 924(c) compared § section is to the federal Again, rationality arrangement of this provision. with two 'three strikes' Criminals dubious. felony a prior who commit violent convictions too, possibility, hypotheti- is no mere This subject 'mandatory' third such are offense morning, had it for cal. This before court imprisonment under 18 U.S.C. life sentencing Ray Thomas Gurule. Mr. Gurule is 3559(c) § law. But federal ‘three-strikes’ —the lifelong 54-years-old history of crimi- with 3582(c)(1) § then under U.S.C. —common- activity spent abuse. He has nal pro- ly 'compassionate known release’ of his life incarcerated than has in more he age can be at vision—these criminals released community. has sixteen adult criminal He they prison. But 70 if have served record, including on his two rob- convictions compassionate provision release because this involving dangerous weap- bery convictions applies imposed under car- most recent conviction was for ons. His 3559(c) 924(c) § [the like —not —offenders August pay jacking. failing after Thus, eligible. while the Defendant] are not station, gas Mr. at service Gurule 24-year-old must serve time until [Defendant] manager. escape, 70’s, by pursued station To 40-year-old well his recidi- he is into young home Mr. Gurule broke into the of a degree vist criminal who commits second murder, woman, aircraft, point, her held her at knife stole hijacks rapes a child is away jewelry, and her to drive him age forced potentially eligible 70. In for release words, During his crimes. mandatory from the scene of imprisonment life other drive, both woman persons Mr. Gurule threatened three-strikes law for under the federal family. felony guilty of violent convictions is and her three third, final, step of anal- support independent At thе its conclusion ... ysis, compare [Riv- “the should particular punishment is cruel and ... with the sen- era-Ruperto’s sentence] Today unusual.... we long- continue that imposed for the same crime in tences standing practice in noting global the If jurisdictions. comparative other this against sentencing practice consensus analysis judgment an initial ‘validate^] Graham, question.” in 560 at U.S. 130 grossly dispropor- sentence is [the] 2011. It in S.Ct. is unclear whether tionate,’ the sentence is cruel unusu- first classification of Amendment Graham, al.” 560 at U.S. 130 challenges as-applied chal- —such (internal omitted). 2011 citations Rivera- lenge today before us should also —courts case also clears Ruperto’s step this final I foreign look law. note therefore difficulty. without for Sentences offenses foreign supports law further proposi- like are much un- lower that Rivera-Ruperto’s tion sentence is out (This brings der state law.38 with it a crime, proportion of to his for “LWOP issues, prose- of number serious such as scarcely ... in exists elsewhere choosing bring cutors in federal cases today, world. Yet number defen- merely of the higher because sen- dants sentenced to LWOP American tences—but such are not issues the focus 50,000.... approaches fact, courts In dissent.).39 sug- of this There is also some separates what the American criminal may gestion courts need look to justice system world, from the rest of the step in foreign analysis. this of the law harsh, and brands it distinctively is involving cases the second classification number dispatched of inmates to pris- Eighth Amendment challenges applying — lives, on for the duration their without on categorical pen- restrictions the death alty offering legal a for Supreme or LWOP—the “has mechanism free- Court 40 beyond Indeed, France, looked our Nation’s for Germany, borders dom.” court, long For this serious particularly prosecution offense—the latest in where the is string of crimes for which pursued, he has been con- implicates not because the case interest, apparently victed—the court must sentence special jacks national but because it prison Mr. Gurule to "life” in under 18 U.S.C. potential punishment.”). up the See also 3559(c). Angelos, § compassionate But because F.Supp.2d ("Indeed, provision, eligible release Gurule Mr. is government conceded that [the Defendant’s] serving 30-years after release of his sentence. years prison] federal sentence [of after Gurule, criminal, Why Mr. be career should 924(c) § application of the counts is more eligible compassionate for this while release any he fifty than would have received of the [the Defendant is is not not] obvious states.”); ("[Defendant's] Id. at 1259 court.”). 924(c) years longer [of under is than ] he any fifty would receive in states. The Mandatory Cassell, 38. Erik Luna and Paul government commendably concedes this Minimalism, (2010) 32 Cardozo L. Rev. brief, point pointing in its out that Wash- ("Most drug weapons crimes amenable to ington State would [the Defendant] serve mandatory actually federal mínimums are about nine and in would Utah serve pursuant prosecuted in state courts to state years.”). about five to seven carrying sentences.”) (em- laws much lower added). phasis Lerner, Really 40.Craig S. Who's Sentenced Searching "Ugly (“It however, Life hardly disputed, Without Parole?: Id. is Disproportionalities" possibility punishment in the severe can influ- American Crimi- System, pursue ence the choice of nal Justice whether to a federal Wis. L. Rev. Throwing Away some, (2015). Nellis, prosecution. Ashley prospect or state For See Key: Expansion questions propriety raises serious about the The of Life without Parole States, charges bringing in federal rather state United Sent’g. than Sentences in the Fed. criminal, important uncon- another factor to be career have declared LWOP Italy stitutional, Eurоpean other countries determining the appropriate sentence. very rarely41 apply However, nei- See id. nor a He ther a recidivist career criminal. Observations B. Additional offender led a is a first-time who has not But be- could here. analysis stop I therefore on place life of crime. his crime case, a few addi- is such rare cause this adding one side of the scales—without are in order. tional observations or a weight of recidivism career of crime— And the and his sentence the other. Comparison Cases Direct to Other 1. weight the sentence weight of dwarfs the Rivera-Ruperto’s comparison A direct of his offense. and its sentence to offenses offense comparison if Such a direct also holds Supreme that the Court their sentences compared from present case is to cases There enlightening. constitutional held Government, 28j in other circuits. The its supra, such cases. Section are five See letter, this eleven provided has court with of these involve recidi- Four cases I.C.3. years from 55 to 186 eases sentences Supreme weighed the Court vists—and 924(c).42 § given under The Government in heavily proportionality its recidivism a these were lengthy The case involved notes that sentences analysis. See id. fifth Beverly, 2006); 23(1) (2010), States 369 F.3d at *30 Cir. United v. Rep. 2010 WL 6681093 Marks, nations, (6th 2004); (“In many seri- Cir. United States v. other industrialized 516 (6th 2000); a v. typically are released after 577 Cir. United States offenders 209 F.3d ous Arrington, 1998). thirty (7th prison term than 159 F.3d 1069 Cir. of no more maximum Canada, instance, Spain in v. Her years. For also cites United States Government nández-Soto, (1st longest Aug. an can receive is sentence offender No. Cir. 12-2210 Germany, thirty 2015); twenty-five years. although In involve Hernández-Soto did France, sentence, Italy, declared Eighth LWOP has been lengthy there was no a Kingdom, case, In it is challenge the United unconstitutional. and I Amendment in allowable, according quite sparingly; used Finally, but do nоt consider it here. therefore estimate, Polk, only twenty-three in- a recent cites United v. 546 Government States Sweden, serving 2008), In (1st mates were this sentence. Cir. a case in which F.3d 74 permissi- are parole-ineligible life sentences Eighth rejected chal an Amendment ble, Eu- mandatory. The Council of but never fifteen-year imposed un lenge a sentence rope 2251(e). in 1977 'it is inhuman to stated § in The defendant der 18 U.S.C. hope of imprison person a without the life engaged with in online conversation Polk had release,’ compatible girl, and that would ‘be thought 13-year-old person he was principles with the on sexually explicit neither modern pressured her to he take idea prisoners nor with the treatment of ... photographs of herself and to send them reintegration addition, into soci- presentence investiga of offenders "The In him. ”) (footnotes omitted). ety.’ seamy story: report told a it revealed tion as aggravated sexual earlier conviction toddler, with sexual involvement sault on 41. Id. occasions, and teenage girls at least on two sexually charged com yet series of Wiest, another 596 F.3d 42. wit: United States v. To con with a defendant puter chats minor. The 2010); (8th v. McDo Cir. States 906 United Polk, at 75. I facts....” 546 F.3d nel, 2010); ceded these (6th Fed.Appx. Unit Cir. difficulty reconciling proposi Walker, (3d see no Cir. v. 473 F.3d ed States years did not Watkins, sentence of 15 tion that Polk's 2007); F.3d 277 United States v. Khan, prop Eighth with the 2007); Amendment (6th 46 violate v. Cir. United States of, Rivera-Ruperto’s ef (4th 2006); osition Cir. United States F.3d 477 LWOP, Eighth Angelos, 2006); (10th fectively, does violate the Cir. Unit 433 F.3d Hungerford, (9th 465 F.3d 1113 Amendment. ed States v. recidivist, largely minor, “based on recidivist violations of case of but of- 924(c).” fenses, fact, only punishment may three of these cases violate the Eighth offenders; See Amendment. Ramírez v. concerned recidivist six Cas- involved (9th tro, 2004) (holding 365 F.3d 755 Cir. criminals; career the final one involved that a sentence of alia, life for in, terrorists who were involved inter third shoрlifting offense violated the planning telling the attacks It is 9/11. Amendment). Eighth providing indeed that this court with cases in which of comparable Penological Goals length weathered suggestion There is also a in the case challenges, Amendment the Gov- may law that courts consider penological ernment presented has this court with goals analysis, specifically: their deter grave such as: offenses rence, retribution, rehabilitation, and inca (cid:127) (in Seven bank robberies four of Ewing, pacitation. 24, 123 538 U.S. at brandished) by which a firearm deterrence, 1179. As for punishment harsh repeat “a robber bank whose criminal effect, can have a deterrent but deterrence record a life of reflects violent crime justify alone disproportionate cannot pun only by interrupted imprison- terms of whether, ishment: inquiry “The focuses on Arrington, ment.” 159 F.3d at 1073. person a such punishment, deserves not (cid:127) A defendant who “was convicted of six simply punishment on whether would robberies, separate each of which in- a goal. serve utilitarian A statute that lev brandishing volved the of a firearm.” ied a mandatory life sentence for overtime Watkins, F.3d at Although 283. a parking might deter well vehicular lawless offender, first-time the defendant ness, but it would offend our of felt sense accomplices his entered the “and/or Rummel, justice”. 445 U.S. at by homes of victims force and threat- (Powell, J., dissenting). As for seriously ened to harm or kill only not retribution, it is not clear how Rivera- victims, but, cases, the in multiple Ruperto any injury has caused the—for their small spouses and children.” Id. transaction was a sham—but even if one (cid:127) were Defendants who involved in the obstacle, ignores that planning of the terrorist attack on clearly injury caused of an less than those and who were convicted on “vari- 9/11 or, who law, receive under LWOP federal ous counts related to a conspiracy to matter, for that than those who a receive wage against armed conflict the Unit- punishment lesser under federal law. See ed a conspiracy States and wage supra, Indeed, Section II.A. had Rivera- against armed conflict a country with Ruperto drug himself, been a dealer whom the States is at peace.” United quantity transacted a vast of real drugs in Khan, at 461 F.3d single a to which a brought transaction he Thus, the Government confirms that gun, undoubtedly he would have a received when long are applied to serious much lower sentence. Id. Rehabilitation is recidivists, criminals, offenses career here, clearly not served because the cur terrorists, Amendment does rent sentence means that the law has offenders, protect not for the severe judged Rivera-Ruperto beyond to be reha grossly is not punishment disproportionate something may that be under bilitation — grave But Rivera-Ruperto crimes. standable in case of recidivists who offender; a first-time he is no career crimi- have that punishment demonstrated does nal; and he is no terrorist. change ways Note that even not troubling their it is —but analysis. a say passes first-time offender will case that indeed Because the given judgment a chance to learn from his legislature great not be deserves deference, however, Finally, incapacitation, Riv- mistakes. it is pointing worth era-Ruperto that, not such a dan- present does on particular out facts of this society ger society case, needs to be I am questioning judgment him Rather, from forever. protected 924(c), legislature. as the Rehnquist out, pointed late Chief Justice goals high- analysis penological This presents good example a of “unintended lights present another facet of the case consequences” legislative action.43 In- pause. Rivera-Ruperto’s that deserves of- 924(c) deed, § result of a floor transaction, drug fenses involved a sham (so amendment there is legislative no his- at were drugs which sham transacted. tory) passed by legislature that wanted “Proportionality pun- notion —the appear gun tough crime soon after inherently fit the ishment should crime—is Kennedy the assassinations of Robert concept penological goal tied to the King, Martin Luther Jr.44 Not were Ewing, retribution.” 538 U.S. in that law mínimums much lower than (Scalia, J., concurring). Riv- S.Ct. 1179 But since, have they become crucially— era-Ruperto injury, no did retribution but— law was understood as a recidivist is therefore not order. This affects the years. for a good statute It was not analysis. For the proportionality purposes States, until Deal 508 U.S. United sham proportionality, participation (1993), 113 S.Ct. L.Ed.2d weigh drug deal and real deal applied way the statute became it is differently, applies because retribution statute, today as a recidivist but latter, not in the former. That is but —not requires rather as stacking one given that when a sentence say not is mandatory on mínimums first-time re- drug as if out a sham deal it were deal, alike. is then neces- cidivist offenders Not this real that sentence sarily Eighth generally anything court cautious to infer violates the Amendment. For inaction, Congressional from but in might dispropor- while such a sentence be this tionate, case, necessarily “gross- try. it would not even make sense to it would be Congress’s ways: inaction both ly disproportionate” so as to violate For cuts 924(c) § first Eighth length years But as the of a for the after was Amendment. enacted, applied for a sham is so statute recidivists multiplied, deal Deal, only; changed This after Con- disproportionality. simply is its —but understanding did on gress arithmetic and sense. not act either common Furthermore, has of the statute. as been Judgment Legislature’s The 3. times, applications out pointed countless 924(c) already in the three-step analysis incorpo- § The such as case before us Congress in resрect judgment today rates due for the of the contravene the intent of 924(c) legislature severity many ways: importantly, to the most has penalties, and, above, significant sentencing disparity, Rivera-Ruperto’s shown led to di- Cassell, Judge Rehnquist, H. Address 44. Statement on Behalf of William Luncheon Paul Comm'n., (June 18, 1993), the Judicial Conference United States from Sentencing in U.S. Judge Paul U.S. District Cassell before Symposium Proceedings Inaugural of the Judiciary Committee Subcommittee on House Crime, Terrorism, States, Crime and Punishment in United Security, and Homeland (1993). 19(5) Sent’g. Rep. WL Fed. (2007) at *347. don the moral commitment embodied in contradicting the intent behind the

rectly See, Amendment, proportionality sentencing reform of the 1980s. major Sentencing e.g., effectively review must never become ob- Stephen Breyer, Federal Graham, Revisited, solete.” 560 U.S. Guidelines WL (Stevens, JJ., 11(4)(1999). Sotomayor, Ginsburg, Rep. yet This is Sent’g. Fed. concurring). case that dis- present another facet of the in, tinguishes it from this court’s decision supra, instance, Polk. See n.20.

case, faced a harsh this with clearly so

sentence —but that sentence was by Congress, Congress

intended had clear-

ly question resolved that the offense But in penalty.

deserved that harsh case, present this court is faced not with ORTIZ-ESPINOSA; Maritza Luis Soto- gravity Congressional assessment Garcia; Conjugal Partnership Ortiz- offense, but rather with an unintended Soto; Ortiz-Espinosa, Luis as Trustee consequence hastily imple- of a Dermatológico statute of Centro Pablo San judicially altered. Plaintiffs, mented and Plan, Ap Retirement PSC

pellants, III. Conclusion present case is “hen’s-teeth rare”. BBVA SECURITIES OF PUERTO Polk, may very It 546 F.3d at 76. well be RICO, INC.; Rodríguez- Rafael I hold that even rarer than that. would Abella, Defendants, Appellees. sentence violates No. 16-1122 Indeed, present Eighth Amendment. distinguishable case is so rare that it is Appeals, United States Court of Supreme from the cases in which the First Circuit. rejected Eighth Court Amendment chal- for a lenges term January cases), (already rare and it is also distin- cited

guishable from cases Government rejected Eighth circuits which other challenges

Amendment to sentences under 924(c) ‍‌​​​‌​​​​​​​‌​‌​‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​​​‌‌‌​‌‌‌​​‌‍(also cases). rare Never before

has a first-time offender who has not dedi-

cated his life to crime been condemned to prison for a trans-

spend his entire life

gression Rivera-Ruperto’s, such as transgression

even in cases in which the Rivera’s-Ruperto’s

was real —and trans-

gression is fictitious. effectively

The Government has asked pronounce

this court to Amend-

ment dead for sentences for a term of join I

years. respectfully refuse to

pronouncement. we are to aban- “Unless

Case Details

Case Name: United States v. Rivera-Ruperto

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 13, 2017

Citation: 852 F.3d 1

Docket Number: 12-2364P

Court Abbreviation: 1st Cir.