585 F.2d 1226 (4th Cir. 1978), 77-1782, Davis v. Davis

Docket Nº:77-1782.
Citation:585 F.2d 1226
Party Name:Roger Trenton DAVIS, Appellee, v. Jack F. DAVIS, Director, Virginia State Department of Corrections, and R. M. Muncy, Superintendent, Powhatan Correctional Center, Appellants.
Case Date:October 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1226

585 F.2d 1226 (4th Cir. 1978)

Roger Trenton DAVIS, Appellee,

v.

Jack F. DAVIS, Director, Virginia State Department of

Corrections, and R. M. Muncy, Superintendent,

Powhatan Correctional Center, Appellants.

No. 77-1782.

United States Court of Appeals, Fourth Circuit

October 30, 1978

Argued Dec. 15, 1977.

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Robert H. Herring, Jr., Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy, Atty. Gen. of Virginia, and K. Marshall Cook, Asst. Atty. Gen., Richmond, Va., on brief), for appellants.

Edward L. Hogshire, Charlottesville, Va. (Paxson, Smith, Boyd, Gilliam & Gouldman, Charlottesville, Va., Charles G. Evans, Anchorage, Alaska, John C. Lowe, Lowe & Gordon, Ltd., Charlottesville, Va., on brief), for appellee.

Before FIELD, Senior Circuit Judge, WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

This is an appeal from the issuance of a writ of habeas corpus in which case the district court set aside two sentences as being so disproportionately excessive as to constitute cruel and unusual punishment under the Eighth Amendment.

Roger Trenton Davis was convicted in a trial by jury in Wythe County, Virginia, of the offenses of distribution of marijuana and possession of marijuana with intent to distribute. In his petition for a writ of habeas corpus, Davis attacked the severity of the sentences he received, as well as making other constitutional claims. 1 He contends that in this appeal the offense committed was minor; the facts constituting the case against him reveal a relatively insignificant crime for which the Commonwealth's sanction should be correspondingly slight; and, in view of the claimed relative innocuousness of the act of selling marijuana in the amounts proven, the sentences imposed were disproportionate to the offense. While the district court granted the writ, we do not agree and we reverse.

I

Davis was sentenced to two twenty year terms, to be served consecutively, and fined $10,000 for each of the two counts. As is the practice in Virginia, the jury sentenced Davis upon its finding of guilt, and the court entered judgment on that verdict. Va.Code Ann., § 19.2-295. 2

The jury awarded the sentence after hearing evidence which revealed Davis to be a dealer in drugs who sold them to a man who had informed Davis that the drugs were being procured for distribution to inmates in a state penal institution. Davis sold not only marijuana but also two other drugs in pill form, all to be taken to the inmates.

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The evidence against Davis centered principally in the testimony of Danny Ray Eads. Eads, an inmate at Bland prison farm, approached prison officials with a proposition concerning drug traffic in Pulaski and Wythe Counties. Eads was concerned by his wife's use of drugs (she had become a drug user after his confinement) and the consequent effect on the welfare of his two year old child; he told authorities that he desired a furlough from prison in order to assist in the exposure and arrest of those supplying drugs to his wife and any illicit drug distributor in the area, including Davis who Eads identified as an active drug dealer in Wythe County.

The Commonwealth accepted Ead's offer of assistance and allowed him a furlough for the purpose of apprehending drug traffickers in Pulaski and Wythe Counties. During the time of the investigation, Eads was under strict surveillance. As part of the investigation, for example, he wore a transmitter strapped to his body so that the police could hear and record his conversations with drug dealers.

Eads met Davis on the streets of Wytheville in front of a "head shop," a store specializing in the sale of drug paraphernalia. Eads testified that he and Davis had become acquainted in jail while Davis was in jail, having been arrested on a different drug offense. He told Davis that he wished to purchase some drugs for himself and for some mutual friends at Bland prison farm. Davis responded that he thought he could provide Eads with the contraband he needed, left, and returned ten minutes later. Eads then accompanied Davis to the latter's home.

There, the two men went into Davis' bedroom. Davis removed a portion of marijuana from a large plastic bag, weighed it on a small scale, and gave three ounces of marijuana to Eads in return for $74.00. Also, at that time, Davis gave Eads the drug pills which included L.S.D. and another illicit controlled drug. This conversation between Eads and Davis was transmitted via Ead's hidden transmitter and recorded by the police. That recording, as well as the recording of Ead's initial contact with Davis, was played to the jury. Thus, the jury was intimately familiar with the conversation accompanying the transaction, including the participants' recognition that the purpose of the drug acquisition was for distribution to inmates in one of the Commonwealth's penal institutions, as well as Davis' gratuitous statement that he would like to blow up the state police headquarters in Wytheville.

On October 26, 1973, law enforcement officials raided the Davis residence. In Davis' bedroom they discovered two sets of scales and other drug paraphernalia. A small plastic bag containing 8 grams of marijuana was found in a jacket. About fifteen feet outside of the bedroom window, officers discovered a large plastic bag, similar to the receptacle from which Davis drew the marijuana sold to Eads, containing 168 grams of marijuana. Davis was discovered hiding in a closet and told the officers they could not search anything except his room.

Faced with this evidence, the Wythe County jury was obviously impressed by Davis' complete involvement in the business of selling drugs. While not given all the details, the jury knew from Eads' testimony that this was not Davis' first trouble with the law in a drug related offense. The evidence clearly allowed the jury to see the petitioner as an active drug dealer and not new at the business. He was, instead, an individual fully aware of the nature of his illegal activity, who, aware of the purpose for which the drugs were being procured, was in the business of selling drugs for profit. Accordingly, the jury awarded the petitioner a sentence which it believed was appropriate for such an offender. The trial court, with a more detailed comprehension of Davis' record of prior drug offenses, chose to enter judgment on that verdict, and directed the sentences to be served consecutively. A reasoned decision on whether the sentences were cruel and unusual must do more than to take these facts into account; it must accept the facts as an

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indication of the nature of the crime committed. 3

II

A.

In the petition for a writ of habeas corpus and in argument, Davis has contended that the sentences imposed upon him are so excessive as to be disproportionate to the crime he committed. Although we recognize that the Eighth Amendment "proscribes punishment grossly disproportionate to the severity of the crime," see Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977), Davis' argument would require us to find cruel and unusual a sentence for a term of years and a fine, both of which are within the limits set by statute. Under Virginia law, the distribution of controlled substance, such as marijuana, and the possession of the same for distribution were punishable by a term of imprisonment not less than five nor more than forty years and by a fine of no more than $25,000. Va.Code Ann., 1974 Repl.Vol., § 54-524.101:1; see Va.Code Ann. § 18.2-248. 4 Davis was sentenced to twenty years imprisonment and a $10,000 fine for each count, punishment well within the limits imposed by the statute. Hence, we are faced with the question of what is the proper inquiry into the severity of a jury-awarded and court imposed sentence, when the challenged punishment is a term of years and fine which fall within the limits imposed by statute.

B.DP We begin our inquiry with the observation that the

Supreme Court has never found a sentence for a term of years

within the limits authorized by statute to be, by itself, a

cruel and unusual punishment under the Eighth Amendment.

Downey v. Perini, 518 F.2d 1288, 1290 (6th Cir. 1975),

vacated for reconsideration in the light of an Ohio statute

423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975). 5

The Supreme Court decision upon which Davis places primary reliance clearly is not such a case. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) involved more a question of the method of punishment than the length of the prison term. The defendant, an official of the Phillipine government, was convicted of falsifying public records and sentenced to fifteen years imprisonment, Cardena temporal.

The presence of the sanction Cardena temporal prevents the Weems opinion from stating a holding on a challenge to the mere length of a prison sentence; it indicates that the decision deals with the conditions accompanying the service of the sentence and the disabilities which followed the convict even after release from confinement.

Cardena temporal was an hispanic sanction, carried over into Fillipino law from the jurisdiction's Spanish antecedents. The punishment involved a sentence of from twelve to twenty years imprisonment, at "hard and painful labor" with "a chain at the ankle, hanging from the wrists." Id., at

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p. 364, 30 S.Ct. at p. 548. Moreover, the imposition of Cardena temporal stripped the convict of "the right of parental authority, guardianship of person or propety, participation in the family council, marital authority, the administration of property, and the right to dispose of his own property by acts Inter vivos . . ." (civil interdiction); it placed him under surveillance by the state for...

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