US v. Faisal Hashime, No. 12-5039 (4th Cir. 2013)
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The court issued a subsequent related opinion or order on October 29, 2013.
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PUBLISHED Filed: June 10, 2013 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5039 (1:12-cr-00329-LMB-1) UNITED STATES OF AMERICA, Plaintiff Appellee, v. FAISAL HASHIME, Defendant - Appellant. O R D E R Appellant filed a petition for hearing en banc which was circulated to the full Court. No judge requested a poll under Rule 35 of the Federal Rules of Appellate Procedure; therefore, the petition for hearing en banc is denied. Judge Gregory wrote an opinion concurring in the denial of hearing en banc, in which Judge Davis joined. Entered at the direction of Chief Judge Traxler. For the Court /s/ Patricia S. Connor Clerk GREGORY, Circuit Judge, concurring in denial of hearing en banc: Faisal Hashime was convicted of multiple crimes relating to the possession, pornography. production, and distribution of child He raises two issues on appeal, one of which being a Miranda violation, and the other an Eighth Amendment challenge to the sentence imposed. Before we hear his appeal, however, Hashime asked the full Court to review and correct our Eighth Amendment jurisprudence. Hashime s request has merit. Our Eighth Amendment precedent is in tension with the jurisprudence of both the Supreme Court and our sister circuits. reason enough to grant a hearing en banc. 35(a)(1). This is See Fed R. App. P. But even if it was not, insuring that a defendant is not sentenced to a term of imprisonment that violates the Eighth Amendment prohibition against cruel and unusual punishment is surely an issue of exceptional importance warranting en banc review. Fed R. App. P. 35(a)(2). In spite of the momentousness of the issue Hashime asks us to address, I concur in the Court s decision to initially deny hearing en banc for efficiency reasons only -- if Hashime s appeal is resolved on the Miranda issue, his Eighth Amendment argument will be moot. I write separately, however, to underscore why Hashime s Eighth Amendment argument is worthy of en banc review as soon as prudently possible. 2 I. To be succinct, we have held that Eighth Amendment proportionality review is not available for any sentence less than life imprisonment without the possibility of parole. United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001). Conflicting with our assertion, other circuits conduct Eighth Amendment proportionality review for term-of-years sentences. See, e.g., United States v. Nigg, 667 F.3d 929, 938 (7th Cir. 2012); United States v. Thomas, 627 F.3d 146, 159-60 (5th Cir. 2010); United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008); United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008); United States v. MacEwan, 445 F.3d 237, 247-48 (3d Cir. 2006); United States v. Collins, 340 F.3d 672, 680 (8th Cir. 2003); United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989). To my blanket knowledge, rule sentences. we denying are the only circuit proportionality review that for follows this term-of-years Indeed, even our district courts have recognized that our precedent is in tension with our sister circuits. See, e.g., United States v. Wellman, 716 F. Supp. 2d 447, 459 (S.D. W. Va. 2010). Our precedent has had the effect of creating an oft-dreaded circuit split. Cf. Joyner v. Forsyth Cnty., N.C., 653 F.3d 341, 356 (4th Cir. 2011) (Niemeyer, J., dissenting) (admonishing the majority in part for creating a circuit split); Holly v. Scott, 3 434 F.3d 287, 297-98 (4th Cir. 2006) (Motz, J., concurring) (same); United States v. Terry, 257 F.3d 366, 369 (4th Cir. 2001) (Wilkinson, J.) (rejecting a proposed argument in part because it would create a circuit split). troubling follow given the seemingly inexplicably fact that from the rigid rule that we from materialized morphed This is especially thin air. Our precedent stating that Supreme once alone Court precedent does not require proportionality review for a term-ofyears sentence, which is correct, 1 see, e.g., United States v. Polk, 905 F.2d 54 (4th Cir. 1990); United States v. Whitehead, 849 F.2d 849, 860 (4th Cir. 1988); United States v. Rhodes, 779 F.2d 1019, 1027-28 proportionality review (4th is Cir. not 1985), available to for holding a that term-of-years sentence, see, e.g., United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001). As such, we are now bound by this unsupported rule that is not followed by any circuit. 1 A court must only conduct proportionality review in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. Ewing v. California, 538 U.S. 11, 30 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring)). If this threshold is met, then a court must perform the Eighth Amendment proportionality test articulated by the Supreme Court in Solem v. Helm, looking at the (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. 463 U.S. 277, 292 (1983). 4 II. More important than the very important circuit split, our precedent is in jurisprudence. tension In two with Supreme recent Eighth Court Eighth Amendment Amendment decisions the Supreme Court reiterated that the concept of proportionality is central to the Eighth Amendment. Miller v. Alabama, 132 S. Ct. 2455, 2463 (2012); Graham v. Florida, 130 S. Ct. 2011, 2021 (2010). The Court further noted that its cases addressing the proportionality of sentences include challenges to the length of term-of-years sentences particular case. given all the circumstances Graham, 130 S. Ct. at 2021. in a The Court has never said as a per se matter that a term-of-years sentence will necessarily survive a proportionality analysis, which we noted in Sutton v. State of Md., 886 F.2d 708, 712 (4th Cir. 1989) and Rhodes, 779 F.2d at 1027-28. In fact, the Supreme Court has strongly suggested that Eighth Amendment proportionality review applies equally to both life and term-of-years sentences, as it has proclaimed no penalty is per se constitutional, Solem v. Helm, 463 U.S. 277, 290 (1983); and [t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality sentences, (quoting (Kennedy, principle Ewing Harmelin J., v. v. that California, Michigan, applies to noncapital 538 11, 20 (2003) 996 997 (1991) U.S. 5 U.S. 957, Even concurring)). 501 the most skilled legal contortionist could not interpret our precedent in a way that sensibly comports with the Supreme Court s crystalline pronouncements. III. Given the unexplained deficiencies in our Eighth Amendment jurisprudence, it is necessary for us to rally the troops, right our wrongs, and align our Eighth Amendment jurisprudence with the rest of the nation. While the time may not be now given the posture of Hashime s appeal, the time certainly draws nigh. 2 Judge Davis joins in this concurrence. 2 I take no position on the merits of Hashime s appeal. 6
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