U.S. v. Harris

• Decision Date: 12 January 1998
• Docket Number: Nos. 96-10416,96-10418,s. 96-10416
• Citation: 154 F.3d 1082
• Parties: 98 Cal. Daily Op. Serv. 7050, 98 Daily Journal D.A.R. 9733 UNITED STATES of America, Plaintiff-Appellee, v. Larry Daniel HARRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Eugene STEWARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1082

154 F.3d 1082

98 Cal. Daily Op. Serv. 7050, 98 Daily Journal

D.A.R. 9733

UNITED STATES of America, Plaintiff-Appellee, v. Larry Daniel HARRIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Eugene STEWARD, Defendant-Appellant.

Nos. 96-10416, 96-10418.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 12, 1998. ^*

Decided Sept. 9, 1998.

Margaret A. McKnight, Fresno, CA, for appellant Michael Eugene Steward.

Katherine Hart and Steven Crawford, Fresno, CA, for appellant Larry Harris.

William L. Shipley, Assistant United States Attorney, Fresno, CA, for appellee.

Appeals from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-95-05111-OWW.

Before: SCHROEDER, WIGGINS, and NOONAN, Circuit Judges.

WIGGINS, Circuit Judge:

Larry Harris and Michael Eugene Steward were each convicted of multiple counts of robbery and use of a firearm in a crime of violence. They appeal their convictions and sentences on numerous grounds. We affirm their convictions in a separate, unpublished memorandum disposition. To be discussed here are their sentences. Harris was sentenced to 1141 months (95 years) and Steward to 597 months (49.75 years). Harris and Steward argue that these sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. They also argue that the district court should have reduced their sentences under the Sentencing Guidelines' downward departures for mitigating circumstances. The district court held that it did not possess the discretion to do so.

We reluctantly find that we must affirm Harris' and Steward's sentences given the precedents established by our court and by the Supreme Court. We publish this opinion to urge Congress to reconsider its scheme of mandatory consecutive minimum sentences and to grant district court judges the discretion to set sentences at the level appropriate for the circumstances of a particular defendant and his or her crimes.

I.

A string of armed robberies occurred in 1994 in restaurants and hotels in and around Fresno, California, where Harris and Steward were on football scholarships at Fresno State University for the 1993-1994 school year. After a jury trial, Harris and Steward were each convicted on all charged counts.

Harris was found guilty of five counts of interference with interstate commerce by robbery under 18 U.S.C. § 1951(a). He was also convicted of five counts of use of a firearm when committing a crime of violence under 18 U.S.C. § 924(c)(1). The district court sentenced him on November 5, 1996, to a total of 1141 months in prison.

The district court sentenced Harris to the statutory minimum for each crime: 121 months for each of the five counts of interference by robbery (to be served concurrently), 60 months on the first count of use of a firearm and 240 months for each of the other four counts of use of a firearm (to be served consecutively as required by § 924(c)(1)). The total, 1141 months, means 95 years in prison for Harris without the possibility of parole.

Steward was found guilty of three counts of interference with interstate commerce by robbery under 18 U.S.C. § 1951(a), and three counts of aiding and abetting the use of a firearm during the commission of a crime of violence under 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. He was sentenced to a total of 597 months in prison.

The sentence again represents the mandatory statutory minimum for each crime committed: 57 months for each count of robbery (to be served concurrently), and 60 months on the first count and 250 months on each of the other two counts of aiding and abetting the use of a firearm (to be served consecutively).

Harris and Steward requested the district court to reduce their sentences under the Sentencing Guidelines' downward departures for mitigating circumstances. Noting that all the sentences, including the hefty consecutive terms for use of a firearm, were mandated by Congress, the court concluded that it did not have the discretion to consider the Sentencing Guidelines' downward departures. The district court expressed frustration at its lack of discretion by stating that, if it had had the discretion, it would have sentenced Harris to 437 months (36.4 years) and Steward to 357 months (29.75 years). The court would have departed downward based on the youth of Defendants, their insignificant prior criminal records, and their productive lives as college students. The district court felt that the lower sentences would "constitute fitting punishment," deter others from committing similar crimes, and provide rehabilitation opportunities for Defendants.

II.

Harris and Steward argue that their sentences are in violation of the Eighth Amendment to the Constitution because they are disproportionate to their crimes. We review de novo the legality of a district court's sentence under the Eighth Amendment. See United States v. Bland, 961 F.2d 123, 128 (9th Cir.1992).

Our court follows the narrow proportionality rule established by Justice Kennedy's concurrence in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), a case without a majority position. See Bland, 961 F.2d at 128-29. Under this rule, the "Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. 277, 288, 303, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Comparative analyses of sentences for other crimes is only appropriate "in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 1005, 111 S.Ct. 2680.

We are unable to say that, as a threshold matter, the robberies committed by Harris and Steward and the sentences imposed for each crime are grossly disproportionate. Armed robberies are extremely dangerous crimes. The robberies at issue in this case were undeniably violent; employees and bystanders were threatened and occasionally harmed. We may not, therefore, compare the sentences received by Defendants to sentences received by other defendants for other crimes.

Significantly, Congress mandated each Defendant's sentence. In particular, the major part of each Defendant's total sentence resulted from his conviction of multiple counts of use of a firearm during the commission of a crime. 18 U.S.C. § 924(c)(1) mandates a consecutive twenty year sentence without the possibility of parole for every conviction for use of a firearm after an initial violation of the statute. The judicial branch of our federal government gives substantial deference to the legislative branch to assess appropriate penalties for crimes. See Harmelin, 501 U.S. at 998-99, 111 S.Ct. 2680. " '[A] sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual.' " See United States v. Klein, 860 F.2d 1489, 1495 (9th Cir.1988) (quoting United States v. Washington, 578 F.2d 256, 258 (9th Cir.1978)). We have previously upheld mandatory minimum sentences under § 924(c)(1). See United States v. Wilkins, 911 F.2d 337, 339 (9th Cir.1990) (holding constitutional the mandatory sentence scheme of § 924(c)(1) despite its removal of sentencing discretion from the courts); United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir.1988) (upholding multiple consecutive sentences under § 924(c)(1)). Moreover, the Supreme Court has recognized the legitimacy of a legislature's interest in treating repeat offenses more severely than first offenses. See Rummel v. Estelle, 445 U.S. 263, 276, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (noting the "valid interest" of a state in "dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law").

Thus, we cannot find that Defendants' sentences were grossly disproportionate to their crimes. Their sentences do not violate the Eighth Amendment. See Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring).

III.

Harris and Steward argue that the district court had the discretion to depart downward from their sentences based on the mitigating factors of their youth, lack of criminal history, short period of criminal activity, educational pursuits, and the disproportionality of their sentences compared to those received by co-defendants in the case. Defendants, however, were sentenced to the statutory minimum for each count of conviction. The district court does not have the discretion to consider mitigating factors and cannot apply the downward departures of the Sentencing Guidelines to reduce a sentence below the minimum mandated by Congress. See U.S. Sentencing Guidelines § 5G1.1 (the sentence imposed on a count of...