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United States v. Rivera-Ruperto

United States Court of Appeals, First Circuit

February 27, 2018

WENDELL RIVERA-RUPERTO, a/k/a Arsenio Rivera, Defendant, Appellant.

          Before Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges.

          ORDER OF COURT

         Pending 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.

         The 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.

         But, § 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.[1]

         Thus, 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 again.[2]

         Despite 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.[3] 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 sentence.[4]

         I do 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.


         The 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).

         In 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."[5] 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).

         Solem 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.

         Solem 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.

         Thus, 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.[6] 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 Amendment.[7]


         The 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.

         Solem 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 identifiable victim.

         That 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.

         Thus, 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.

         Still, 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.[8] 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 violence.

         Indeed, 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.

         In 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.

         Rivera 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.

         Solem 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.

         That 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.

         Rivera, 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.

         But, 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).

         Nor is 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 history.

         So, 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 disproportionate?

         Notably, 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.

         Solem 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).

         It is 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.

         This 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.


         I begin 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.

         Under 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.

         Consideration 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).

         Specifically, 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.[9]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 transactions.[10]

         The 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.[11]

         Notably, 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 be.[12]

         In this 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 ...

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