Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson,
Kayatta, and Barron, Circuit Judges.
ORDER OF COURT
before the court is a petition for rehearing or rehearing en
banc in United States v. Rivera-Ruperto, No.
12-2364, 12-2367 and a petition for rehearing or rehearing en
banc in United States v. Rivera-Ruperto, No.
13-2017. The petitions for rehearing having been denied by
the panel of judges who decided the cases, and the petitions
for rehearing en banc having been submitted to the active
judges of this court and a majority of the judges not having
voted that either case be heard en banc, it is ordered that
the petitions for rehearing and the petitions for rehearing
en banc be denied.
BARRON, Circuit Judge, concurring in the denial of rehearing
en banc, joined by HOWARD, Chief Judge, and TORRUELLA, LYNCH,
THOMPSON, and KAYATTA, Circuit Judges.
bulk of the 161-year and ten-month prison sentence that
Wendell Rivera-Ruperto challenges -- 130 years of it to be
exact -- was imposed for his six convictions under 18 U.S.C.
§ 924(c). United States v. Rivera-Ruperto, 852
F.3d 1, 17 (1st Cir. 2017) (Rivera-Ruperto II).
Those convictions stem from a federal sting operation that
targeted Puerto Rican police officers. Id. at 4. 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.
Id. at 4-5.
§ 924(c) did not merely permit this
greater-than-life-without-parole sentence. It mandated it. It
did so by requiring a minimum prison sentence of five years
for the first of Rivera's § 924(c) convictions and
consecutive twenty-five year prison sentences thereafter for
each of his "second or subsequent" § 924(c)
convictions. 18 U.S.C. § 924(c). And it did so even
though all but one of those additional convictions were
handed down at the same trial as the initial § 924(c)
conviction that Rivera, who had no prior criminal history,
received. Id. at 5.
in consequence of Rivera's multiple convictions for his
involvement in this one sting operation, Rivera was required
to receive a punishment that seemingly could have been more
severe only if it had required his death. And that is so 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
the force of Rivera's argument that this mandatory
sentence is so grossly disproportionate as to be
unconstitutional under the Eighth Amendment, I am not
permitted to conclude that it is. Other federal judges have
expressed their dismay that our legal system could
countenance extreme mandatory sentences under § 924(c)
that are even shorter than this one. And yet, just as those
judges concluded that they were required by precedent to
uphold the sentences in their cases, I conclude, like the
panel, Rivera-Ruperto II, 852 F.3d at 18, that 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
think it is important to say something, however, about that
precedent and why I believe the Supreme Court should revisit
it. And so, in what follows, I explain my reasoning.
body of precedent that controls here concerns the meaning of
the Eighth Amendment, which provides that "[e]xcessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." U.S. Const.
amend. VIII. The Amendment's text does not expressly
state that prison sentences may be unconstitutional solely in
consequence of their length. The Supreme Court, however, has
long indicated that a sentence may, in rare cases, be so
disproportionate to the seriousness of the underlying offense
that it violates the Eighth Amendment. See Weems v.
United States, 217 U.S. 349, 368 (1910).
Rummel v. Estelle, 445 U.S. 263 (1980), for example,
the Supreme Court, in the course of rejecting an Eighth
Amendment challenge to a mandatory life sentence
with the possibility of parole, explained that
"the Eighth Amendment prohibits imposition of a sentence
that is grossly disproportionate to the severity of the
crime." Id. at 271. The Court then
applied this principle to invalidate a prison sentence solely
in consequence of its disproportionate length in Solem v.
Helm, 463 U.S. 277 (1983).
specified the criteria that bear on whether the length of a
prison term is impermissibly out of proportion to the
seriousness of the offense (or offenses) of conviction.
Solem emphasized that "no single criterion can
identify when a sentence is so grossly disproportionate that
it violates the Eighth Amendment, " Solem, 463
U.S. at 290 n.17, but that "a combination of objective
factors can make such analysis possible." Id.
Specifically, Solem held that:
[A] court's proportionality analysis under the Eighth
Amendment should be guided by objective criteria, including
(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.
Id. at 292.
appeared to contemplate a holistic analysis, in which the
assessment of each of these three criteria would inform the
assessment of the others. That approach, notwithstanding its
inherently (and appropriately) deferential nature, had teeth.
In fact, in Solem, the Court concluded on the basis
of this holistic assessment that "the Eighth Amendment
proscribes a life sentence without the possibility of parole
for a seventh nonviolent felony, " id. at 279,
in a case in which that discretionary sentence was triggered
by a recidivist defendant's conviction -- after he had
been punished for his prior felony convictions -- for
uttering a "no account" check for $100.
Id. at 303.
if Solem were the last word, I would have to assess
in the following way whether Rivera's mandatory
life-without-parole sentence for multiple felonies -- each of
which is seemingly nonviolent, though hardly minor in nature
-- comports with the Eighth Amendment. I would have to
consider, holistically, the three criteria that
Solem identifies as relevant to the proportionality
determination. And, based on a consideration of those
criteria, as I will next explain, I would find that
Rivera's mandatory, more-than-century-long sentence was
grossly disproportionate and thus in violation of the Eighth
first Solem criterion requires a relatively abstract
inquiry. In performing it, a reviewing court must consider
the gravity of the offense "in light of the harm caused
or threatened to the victim or society and the culpability
of the offender." Id. at 292. A reviewing court
must then consider the harshness of the sentence in light of
the gravity of the offense. Id.
details how a court should go about the task of assessing a
crime's severity for purposes of applying this first
criterion. Of direct relevance here, Solem makes
clear that drug crimes are serious, even though they do not
inherently require proof of any harm having been done to any
guidance from Solem matters in this case. Section
924(c) sanctions anyone who "uses or carries, or who, in
furtherance of [a predicate] crime, possesses a firearm,
" 18 U.S.C. § 924(c)(1)(A), and then defines those
predicate crimes to include a wide variety of federal drug
offenses, id. at § 924(c)(2). The predicate
drug offenses that underlie each of Rivera's §
924(c) convictions are attempting to possess with intent to
distribute, and conspiring to possess with intent to
distribute, at least five kilograms of a substance that
contained cocaine (though the drug itself need only have been
present in a "detectable" amount). 21 U.S.C.
§§ 84l(a)(1), (b)(1)(A)(ii)(II); see
Rivera-Ruperto II, 852 F.3d at 10.
we are undoubtedly dealing with the repeated commission of a
serious crime under Solem's reasoning. We are
also dealing with a type of crime that is certainly more
serious than the crime of uttering a "no account"
check that triggered the sentence that Solem struck
down. 463 U.S. at 281.
Solem did not describe the repeated commission of
the crime of drug dealing (let alone inchoate versions of
that crime) as, in and of itself, violent conduct, even if
the drug involved were heroin. Nor did Solem describe
drug dealing as a crime that was just as serious as many
violent offenses undoubtedly are, at least for purposes of
making a threshold assessment of whether a sentence's
length is so grossly disproportionate to the underlying
offense as to violate the Eighth Amendment. Nor, finally,
does Solem suggest that possession of a firearm --
even in furtherance of a drug crime -- is itself a crime of
Solem emphasized that the fact that an offense does
not actually require proof that the defendant inflicted any
bodily harm against any identifiable victim generally makes
that offense less serious than an offense that does. 463 U.S.
at 292-93. Thus, while Solem does identify felony
murder with no intent to kill as an example of the type of
grave offense for which a life-without-parole sentence would
be constitutional, id. at 291-92 & n.15 (citing
Enmund v. Florida, 458 U.S. 782, 795-96 (1982)), it
is of some significance under Solem that
Rivera's crimes did not require the government to prove
that he engaged in conduct that foreseeably resulted in the
death of, or bodily injury to, any particular victim.
offering guidance to judges about how they should evaluate an
offense's seriousness under the first criterion,
Solem also explicitly distinguished completed crimes
from inchoate ones. 463 U.S. at 293. Solem did so on
the ground that the latter type of offenses do not require
proof that any actual harm resulted. Id.
was convicted of completed crimes in one sense, given that
§ 924(c) requires proof of firearm possession in
furtherance of the predicate crimes. 18 U.S.C. § 924(c).
But, given how § 924(c) works, Rivera's unforgiving
life sentence results only from the fact that his firearm
possession convictions were connected with drug offenses that
were themselves inchoate: attempting to possess with intent
to distribute, and conspiring to possess with intent to
distribute, at least five kilograms of a substance that
contained a detectable amount of cocaine. Rivera-Ruperto
I, 846 F.3d at 420. Indeed, Rivera's § 924(c)
convictions stem from his involvement with transactions
concerning fake rather than real drugs. Rivera-Ruperto
II, 852 F.3d at 14. That fact explains why, in addition
to the predicate conspiracy convictions, he was charged for
and convicted of (as predicate offenses) only attempted
rather than actual possession with intent to distribute
drugs. And, for that reason, Rivera's conduct, in its
nature, could not have actually caused harm to any
identifiable person. Thus, this fact, too, suggests that
Rivera's § 924(c) offenses, serious though they are,
are not, under Solem, of the most serious kind.
did recognize that the fact that an offender is a recidivist
is also potentially relevant to the analysis of how serious
the conduct being punished is for Eighth Amendment purposes.
Solem, 463 U.S. at 296. But Solem did not
equate recidivism with the mere commission of multiple
offenses that then result in multiple convictions.
Solem instead equated recidivism with being a
"habitual offender." Id.
understanding of recidivism accords with the understanding
relied on in Rummel. There, the Supreme Court
rejected an Eighth Amendment challenge to a life sentence
with the possibility of parole that had been imposed for a
defendant's conviction for committing a third nonviolent
felony. Rummel, 445 U.S. at 265. The defendant
challenging that sentence had already served his sentences
for his convictions for committing the earlier two offenses.
Id. at 265-66. In upholding the defendant's
life-with-parole sentence, the Supreme Court emphasized the
special interest that a state has in imposing such a harsh
sentence when the offender has already "demonstrate[d]
that conviction and actual imprisonment [does] not deter him
from returning to crime once he is released."
Id. at 278.
by contrast, was sentenced to a prison term of more than 100
years for the § 924(c) convictions that he received at a
single trial, Rivera-Ruperto II, 852 F.3d at 5,
despite the fact that he had no prior criminal history,
id. at 33 (Torruella, J., dissenting). And his
additional sentence for his conviction for the other §
924(c) offense, for which he was tried separately, was
imposed for conduct he had engaged in before he had served
any time for his other § 924(c) offenses or even been
charged with them. Id. at 5. As a result, his
"forever" sentence was not premised, as the life
sentence with the possibility of parole in Rummel
was, on a state's determination that "actual
imprisonment [would] prove ineffective" in dissuading
the defendant from future law-breaking. Rummel, 445
U.S. at 278 n.17.
although Rivera's criminal conduct is not of the most
serious kind, his no-hope sentence undoubtedly is. Indeed,
his sentence could not have been harsher save for a sentence
of death having been imposed. Yet, the Supreme Court has made
clear that the Constitution does not permit a death sentence
to be imposed for offenses that do not result in death.
See Coker v. Georgia, 433 U.S. 584, 599 (1977)
(reversing on Eighth Amendment grounds a sentence of death
for a non-homicide crime).
the severity of Rivera's sentence solely a function of
its length. His sentence is especially unforgiving because
the sentencing judge was required to ignore any mitigating
circumstances, like Rivera's lack of any criminal history
prior to the sting. Rivera-Ruperto I, 846 F.3d at
420. Rivera's sentence in this respect is less forgiving
than the life-without-parole sentence that Solem
deemed disproportionate. That sentence was at least
discretionary and therefore necessarily tailored to the
defendant's particular circumstances, see Solem,
463 U.S. at 290, including most notably his prior criminal
what are we to conclude from a consideration of
Solem's first criterion? Are the offenses that
Rivera committed serious enough that the imposition of the
most serious of prison sentences would not be grossly
Solem recognized the problem with calling upon
judges to make this kind of abstract assessment. The range of
criminal conduct that might reasonably be thought to be
serious enough to warrant very severe punishment is broad.
But, as one moves from consideration of crimes that involve
core violent conduct to more boundary-pressing cases,
judicial judgments about the relative severity of the crime
necessarily risk becoming subjective.
also appeared to recognize (even if it did not expressly
hold) that this concern about judicial subjectivity is not
properly addressed by simply requiring judges to uphold
life-without-parole sentences so long as there is a rational
basis to think the sentence is not grossly
disproportionate. The cruelty and unusualness of punishment
has long been understood to be determined, in part, by
"evolving standards of decency, " which themselves
become knowable in part through a consideration of the actual
penal practices of comparable jurisdictions. See Miller
v. Alabama, 567 U.S. 460, 469-70 (2012) ("[W]e view
[Eighth Amendment proportionality] less through a historical
prism than according to 'the evolving standards of
decency that mark the progress of a maturing
society.'" (quoting Estelle v. Gamble, 429
U.S. 97, 102 (1976))); see also Gregg v. Georgia,
428 U.S. 153, 175-83 (1976).
not surprising, then, that Solem appears to have
proceeded on the understanding that judges need to undertake
a real-world comparative inquiry, even if the more abstract
threshold inquiry does not in and of itself demonstrate the
sentence to be grossly disproportionate. For, at least in a
case involving conduct such as is involved here, I read
Solem to require courts to move beyond an abstract,
threshold assessment of the "gravity of the offense and
the harshness of the penalty, " Solem, 463 U.S.
at 292, to a more grounded comparative assessment of how
comparable crimes are actually treated both by the punishing
jurisdiction and by other jurisdictions. And that is because
I read Solem to require judges to undertake such a
further inquiry if the question whether the sentence gives
rise to an inference of gross disproportionality -- when
viewed abstractly -- is at least fairly debatable.
more holistic approach accords with the approach that is
often taken in applying the Eighth Amendment. For, as I have
noted, its bounds have long been understood to be drawn, at
least in part, by actual legislative practices and by the
norms of decency that those practices may be understood to
reflect. See Graham v. Florida, 560 U.S. 48, 62
(2010). I turn next, then, to an assessment of the
proportionality of this mandatory life-without-parole
sentence in light of the two comparative criteria that
Solem identifies. Those criteria train the focus of
the inquiry on "the sentences imposed on other criminals
in the same jurisdiction" and "the sentences
imposed for commission of the same crime in other
jurisdictions." Solem, 463 U.S. at 292.
by reviewing the sentences that the federal government
imposes for other serious criminal conduct. That review
suggests that, however debatable the question might be in the
abstract, there is a gross disproportionality between the
gravity of Rivera's offenses (serious though they are)
and the severity of the punishment that he received for them.
federal law, "an aircraft hijacker . . ., a terrorist
who detonates a bomb in a public place . . ., a racist who
attacks a minority with the intent to kill and inflicts
permanent or life threatening injuries . . ., a second-degree
murderer, [and] a rapist, " Rivera-Ruperto II,
852 F.3d at 31 (Torruella, J., dissenting) (citation
omitted), would all be subject to less harsh sentences than
Rivera. Congress has not mandated that any of these
offenders receive life-without-parole sentences. In fact, the
recommended prison terms for each of these offenses under the
United States Sentencing Guidelines are no more than
one-fifth as long as the one that Rivera received for his
offenses. See id. It is hard to see, though, how
Rivera's conduct is five times as serious as that of a
terrorist who detonates a bomb in a public building, seven
times as serious as that of a person who inflicts
life-threatening injuries on members of a racial minority
because of their race, or eighteen times as serious as that
of a rapist.
of the federal government's treatment of seemingly
comparable conduct under § 924(c) itself further
suggests that Rivera's sentence is grossly
disproportionate. Rivera was involved in a series of putative
drug transactions with, among other people, a group of FBI
agents who were merely pretending to be drug traffickers.
That the only person other than Rivera who was involved in
each of the fake transactions was an FBI agent conducting a
sting rather than an actual drug trafficker hardly makes
Rivera's course of conduct more concerning than
if he had been dealing with the same actual drug trafficker
in each transaction. Yet, due to a quirk of conspiracy law
and the way that it interacts with § 924(c), his
involvement in an FBI-engineered sting rather than a true
drug trafficking conspiracy dramatically increased his
sentencing exposure under § 924(c).
under our precedent, Rivera could not have been charged with
participating in a single overarching conspiracy due to the
way the FBI staged the sting. We have held that a conspiracy
may not be between one individual and a government agent.
United States v. Portela, 167 F.3d 687, 699-700, 700
n.8 (1st Cir. 1999) ("[G]overnment agents do not count
as co-conspirators." (quoting United States v.
Giry, 818 F.2d 120, 125 (1st Cir. 1987)). But, in this
sting, the only common participant in each transaction other
than Rivera himself was an FBI agent.Thus, due to that quirk, the
government could only charge Rivera with participating in the
full course of his conspiratorial conduct by charging him
with being a participant in six discrete conspiracies that
corresponded to each of the six fake
decision to charge Rivera for his course of conduct in that
manner was quite consequential. It helped to pave the way for
the more-than-century-long mandatory prison sentence that he
received under § 924(c). Each of his six § 924(c)
convictions was predicated on one of the underlying drug
conspiracy convictions that corresponded to Rivera's
participation in one of the six fake drug transactions that
the FBI staged.
though, if Rivera had participated in the same type of
extended conspiracy with a real drug trafficker standing in
the stead of the FBI agent who was present for each of the
six transactions, and if Rivera had then been charged with
participating in a single, extended conspiracy for his course
of conduct, he could have been sentenced under § 924(c)
to a prison term of only five years for possessing a firearm
in furtherance of that conspiracy. And that is because a
single conspiracy conviction may not serve as the predicate
for multiple § 924(c) convictions, United States v.
Rodriguez, 525 F.3d 85, 111 (1st Cir. 2008) (holding
that the Double Jeopardy Clause bars multiple § 924(c)
offenses predicated on the defendant's conviction for
participation in a single conspiracy), no matter how large or
extended that predicate conspiracy happens to
way, then, § 924(c) itself appears to treat the very
same course of conspiratorial conduct in which Rivera engaged
far more leniently depending on how that course of conduct
happens to be charged. After all, Rivera received a mandatory
sentence that is more than twenty-five times greater than the
defendant in Rodriguez received. And Rivera received
that sentence, even though, just like the defendant in
Rodriguez, Rivera was found to have committed
multiple acts of gun possession in the course of committing a
predicate offense and even though these acts were as a