In United States v. Rivera-Ruperto, No. 12-2364, 2018 WL 1060694 (1st Cit. Feb. 27, 2018), the en banc First Circuit unanimously “urge[d] the Supreme Court to consider whether the Eighth Amendment permits . . .  the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.” Id. at 22.

The decision comes from a concurring opinion by Circuit Judge Barron, joined by all First Circuit Judges, to an order denying a petition for rehearing and rehearing en banc. Defendant Rivera-Ruperto was convicted in the United States District Court for the District of Puerto Rico, of conspiracy and attempted possession with intent to distribute controlled substance, possession of firearm in relation to drug trafficking crime, and possession of firearm with obliterated serial number.  His convictions stemmed from a federal sting operation that targeted Puerto Rican police officers.  “As part of that sting, Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers.”

Rivera-Ruperto was sentenced to a 161-year and ten-month prison term, 130 years of which were for six convictions under 18 U.S.C. 924(c). Section 924(c) mandated that the defendant get 130-years imprisonment for his six 924(c) violations—five years for the first conviction, plus twenty-five years for each of the subsequent convictions—even though all but one of his convictions were imposed at the same trial and the defendant had no prior criminal history.

On appeal, Rivera-Ruperto argued that his sentence was grossly disproportionate as to be unconstitutional under the Eighth Amendment in as much as his 924(c) convictions required a life sentence.  Indeed, as Judge Brannon’s concurrence observes, Rivera-Ruperto received a de facto life “even though this case is replete with factors that—under a discretionary sentencing regime—would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.” Id. at 2.

Judge Barron’s en banc concurrence examines Eighth Amendment proportionality jurisprudence exhaustively.  Applying the Supreme Court’s three-criteria framework for evaluating whether the length of a prison term is impermissibly disproportionate to the seriousness of the offense, see Solem v. Helm , 463 U.S. 277, 292 (1983) (holding sentence of life imprisonment for uttering no acount check for $100 violated the Eighth Amendment), Judge Barron explained, “based on a consideration of those criteria, . . . I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.”

But the opinion recognizes that “Solem . . . is not the last word” from the Supreme Court. Rather, Judge Barron concluded: “I am compelled by precedent—and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) (opinion of Kennedy, J.)—to uphold Rivera’s greater-than-life sentence.”  Hamerlin held the imposition of a mandatory life in prison sentence without possibility of parole, without any consideration of mitigating factors, such as the fact that the petitioner had no prior criminal history, was not cruel and unusual punishment under the Eighth Amendment.  Hamerlin did not produce a majority opinion and the Supreme Court has recognized that Justice Kennedy’s three-judge concurrence in Hamerlin is controlling.  See Graham v. Florida, 650 U.S. 48, 60 (2011).

After explaining why Hamerlin compelled affirmance of Rivera-Ruperto’s sentence, the concurrence addressed several reasons why the Supreme Court should “revisit the logic of the Hamerlin concurrence,” at least as it relates to 924(c) stacking.  The First Circuit decision ends with these concluding paragraphs:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera—who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim—should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state’s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.