United States v. Hunter, No. 12-5035 (4th Cir. 2013)
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Defendant appealed from his sentence for being a felon in possession of a firearm, arguing that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed. Defendant relied on Miller v. Alabama, which held that the Eighth Amendment forbids a sentencing scheme that mandated life in prison without possibility of parole for juvenile offenders. The court found Miller inapplicable in this instance where defendant's sentence punished him for an offense he committed at the age of thirty-three. Accordingly, the court affirmed the sentence.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5035 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JIMMY ELIAB HUNTER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:11-cr-00204-D-1) Argued: September 19, 2013 Before SHEDD and Circuit Judge. WYNN, Circuit Decided: Judges, and November 13, 2013 HAMILTON, Senior Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Shedd and Senior Judge Hamilton joined. ARGUED: Curtis Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. WYNN, Circuit Judge: In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court announced that the Eighth Amendment forbids a sentencing scheme possibility of that parole mandates for life juvenile in prison offenders. without Relying on Miller, Defendant Jimmy Eliab Hunter appeals from his sentence for being a felon in possession of a firearm, asserting that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed as a juvenile. But unlike the juveniles in Miller, Defendant s sentence here punishes him for an offense he committed at the age of thirtythree, well past an age when the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences. Id. at 2465. Thus, proportionality concerns expressed in Miller regarding youthful offenders are not implicated here. Finding Miller, Defendant s sole basis for his Eighth Amendment challenge, inapplicable, we affirm. I. In February 2011, at the age of thirty-three, Defendant sold a gun and nine rounds of ammunition to a confidential informant working with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. violating 18 Defendant was indicted and then pled guilty to U.S.C. § 922(g)(1) 2 by knowingly possessing a firearm and ammunition in and affecting commerce after having been convicted of a crime punishable by imprisonment for a term exceeding one year. A violation of Section 922(g) ordinarily carries a maximum sentence of ten years imprisonment. However, in preparing the ( PSR ), the probation officer sentencing U.S.C. § under the 924(e). Presentence Armed The 18 U.S.C. § 924(a)(2). found Career ACCA Investigation Defendant Criminal imposes a Report qualified Act mandatory for ( ACCA ), 18 fifteen-year minimum term of imprisonment on a defendant who violates Section 922(g) and has three previous convictions . . . for a violent felony or a serious drug offense, occasions different from one another. or both, committed on 18 U.S.C. § 924(e)(1). Defendant s PSR identified five violent felony convictions in his criminal history triggering the ACCA enhancement. Defendant committed four of the five offenses before turning eighteen, although in each case he was charged and convicted as an adult. In 1993, when he was fifteen, Defendant pled guilty to two charges of felony breaking and entering. And in 1995, Defendant pled guilty to robbery with a dangerous weapon and attempted seventeen. malicious armed robbery, The conduct fifth by both of which identified a prisoner, Defendant was twenty-five. 3 he violent committed felony, occurred in at age attempted 2003, when Defendant objected to the PSR and filed a motion for downward departure, asserting that the use of juvenile conduct as a basis for an ACCA enhancement violates the Eighth Amendment for the reasons set forth Miller. 1 in The district court overruled the objection, observing that no court has extended Miller to this extent that [Defendant] is requesting in this case, and I don t think that it makes sense. J.A. 59 60. Ultimately, the district court sentenced Defendant to seventeen years imprisonment. Defendant appeals. II. The sole issue presented on appeal is whether the ACCA sentencing enhancement Defendant received based on convictions for violent felonies he committed as a juvenile violates the Eighth Amendment s prohibition punishment under Miller. challenge de novo. against cruel and unusual We review Defendant s constitutional See United States v. Myers, 280 F.3d 407, 416 (4th Cir. 2002). The Eighth Amendment protects individuals against excessive sanctions. See Roper v. Simmons, 543 U.S. 551, 560 (2005). 1 The Defendant also argued that his 2004 conviction of attempted malicious conduct by a prisoner was not a violent felony. The district court found no need to reach this issue, given the four other qualifying convictions. 4 constitutional ban on cruel and unusual punishments embodies the precept of justice graduated and that proportioned punishment to [the] for crime offense. should be Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). The proportionality is central to the Eighth Amendment. we view that concept less through a historical concept of Id. And prism than according to the evolving standards of decency that mark the progress of a maturing society. Miller, 132 S. Ct. at 2463 (internal quotation marks omitted). Miller is the most recent in a series of Supreme Court decisions See addressing Graham, 130 S. proportionate sentencing Ct. (holding at 2034 for that juveniles. the Eighth Amendment prohibits life without parole for juveniles convicted of nonhomicide offenses); Roper, 543 U.S. at 578 (holding that imposing the death Amendment). children In are penalty these on cases, juveniles the constitutionally Court violates has different the Eighth emphasized from adults that for purposes of sentencing due to their diminished culpability and greater prospects for reform. Miller, 132 S. Ct. at 2464. In Miller, the case on which Defendant relies, the juvenile petitioners received mandatory sentences of life in prison without parole after being tried as adults and convicted for murders they committed when they were fourteen. 5 Id. at 2461-63. Reversing their imposition of consideration hallmark sentences, life of the without [a Court parole juvenile s] features--among them, stated that impermissibly chronological automatic precludes and its impetuosity, immaturity, age and failure to appreciate risks and consequences. Id. at 2468. Such mandatory punishment also disregards the possibility of rehabilitation even when the circumstances most suggest it. Graham have Id. While Miller and its predecessors such as focused on the worst crimes and the most extreme punishments, the Supreme Court noted that none of what [Graham] said about children--about their distinctive (and transitory) mental traits and environmental vulnerabilities--is crime-specific. 132 S. Ct. children s at 2465. diminished Further, Miller s culpability reform are not punishment-specific. and statements greater Miller, regarding prospects for Id. at 2464. 2 None of this helps Defendant, however, because the sentence he challenges punishes only his adult criminal conduct. When a defendant is given a higher sentence under a recidivism statute . . . 100% of the punishment is for the offense of conviction. 2 Indeed, the Supreme Court has considered immaturity in the sentencing context before, and outside the contours of only the most heinous crimes and harshest sentences. See Gall v. United States, 552 U.S. 38, 57-59 (2007). 6 None is for the prior convictions or the defendant s status as a recidivist. United States v. Rodriquez, 553 U.S. 377, 386 (2008). Instead, Defendant s enhanced sentence is a stiffened penalty for aggravated the latest offense crime, because which [it is] is a considered repetitive to be an one. Id. challenges to (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). At least sentencing two circuits enhancements have based on considered juvenile adult defendants in the wake of Miller. Hoffman, 710 F.3d 1228 (11th Cir. conduct brought by In United States v. 2013) (per curiam), the defendant was twice convicted for drug felonies before turning eighteen, then mandatory sentence 841(b)(1)(A). 3 committed of a third life drug felony imprisonment and under 21 received a U.S.C. § In determining that the life sentence did not constitute cruel and unusual punishment, the Eleventh Circuit distinguished between Miller s prohibition on imposing mandatory life sentences on juveniles and consideration of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood. Hoffman, 710 F.3d at 1233 (quoting United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 3 Section 841(b)(1)(A) provides that if a person with two or more prior convictions for a felony drug offense is convicted for possessing with intent to distribute 50 or more grams of methamphetamine, he shall be sentenced to a mandatory term of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). 7 2006)). Ultimately, the Eleventh Circuit upheld the enhanced sentence because [n]othing in Miller suggests that an adult offender who has committed prior crimes as a juvenile should not receive a mandatory life sentence as an adult, after committing a further crime as an adult. The Tenth Circuit Id. reached similar conclusions in States v. Orona, 724 F.3d 1297 (10th Cir. 2013). defendant argued predicate that offense for use of ACCA a juvenile purposes United There, the adjudication violated the as a Eighth Amendment and conflicted with the Supreme Court s holdings in Roper, Graham, and Miller. Id. at 1307. Rejecting that position, the Tenth Circuit observed that [t]he problem with this line of argument is that it assumes Orona is being punished in part for conduct he committed as a juvenile. Circuit characterized consistent Supreme this Court assumption precedent as Id. The Tenth unfounded, sustain[ing] given repeat- offender laws as penalizing only the last offense committed by the defendant. Id. (quoting Nichols v. United States, 511 U.S. 738, 747 (1994)). The Tenth Circuit moreover rejected Orona s position that he was less morally culpable. Unlike the juveniles in Roper, Graham, and Miller, Orona was an adult being punished for his adult conduct and therefore could not rely on [a] juvenile s lack of maturity and susceptibility to negative influences to 8 explain away [his] decision to illegally possess a firearm when he was twenty-eight years old. Id. at 1307-08. The greater possibility for reformation, identified by the Supreme Court as a distinguishing offenders, only characteristic undermined between Orona, who, juvenile as a and adult recidivist, had been given an opportunity to demonstrate rehabilitation, but [had] elected to continue a course of illegal conduct. Id. at 1308. use Accordingly, the Tenth Circuit held that the of Orona s juvenile adjudication as a predicate offense for ACCA purposes did not violate the Eighth Amendment s ban on cruel and unusual punishment. Id. at 1309-10. In this case, Defendant is not being punished for a crime he committed as a juvenile, because sentence enhancements do not themselves constitute punishment convictions that trigger them. 86. for the prior criminal See Rodriquez, 553 U.S. at 385- Instead, Defendant is being punished for the recent offense he committed at thirty-three, an age unquestionably sufficient to render him responsible Miller s concerns about for his juveniles actions. diminished Accordingly, culpability and increased capacity for reform do not apply here. In sum, Defendant was no juvenile when he committed the crime for which he was sentenced here. Miller, with its concerns particular to juvenile offenders, thus does not apply, 9 and Defendant s Eighth Amendment challenge to his sentence, grounded in Miller, must fail. III. For the reasons discussed above, we affirm the judgment of the district court. AFFIRMED 10
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