601 F.2d 153 (4th Cir. 1979), 77-1782, Davis v. Davis

Docket Nº:77-1782.
Citation:601 F.2d 153
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:June 29, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 153

601 F.2d 153 (4th Cir. 1979)

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

June 29, 1979

Heard En Banc April 2, 1979.

Robert H. Herring, Jr., Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy, Atty.

Page 154

Gen. of Virginia, K. Marshall Cook, Asst. Atty. Gen., Richmond, Va., on brief), for appellants.

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

Before HAYNSWORTH, Chief Judge, WINTER, BUTZNER, RUSSELL, Circuit Judges, FIELD [*], Senior Circuit Judge, and WIDENER, HALL and PHILLIPS, Circuit Judges, sitting en banc.

PER CURIAM:

The petitioner was prosecuted in a court of the Commonwealth of Virginia upon charges of possession of marijuana with the intent to distribute and its distribution. Upon conviction, although less than nine ounces of marijuana were involved in the offenses, the court imposed a fine of $20,000 and a sentence of imprisonment of forty years. The district court concluded that the penalties imposed were so disproportionate to the offenses as to amount to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States. On that basis, a writ of habeas corpus was awarded, and the Commonwealth of Virginia has appealed.

We affirm for reasons sufficiently stated by the district judge in his opinion. 432 F.Supp. 444 (W.D.Va.1977). This action supersedes the panel opinion. 585 F.2d 1226 (4th Cir. 1978).

AFFIRMED.

WIDENER, Circuit Judge, dissenting, in which dissent he is joined by DONALD RUSSELL and K. K. HALL, Circuit Judges.

I respectfully dissent for the reasons expressed in the opinion of the panel. 585 F.2d 1226 (4th Cir. 1978).

In addition, I should note that I think both the district court and this court have usurped not only the function of a State legislature but also that of a State court and a State jury.

This is the first time, to my knowledge, in the history of Article III courts, that a federal court of appeals 1 has, without invalidating a statute, set aside the sentence of a State court imposing punishment for a term of years plus a fine, within State statutory limitations, as being cruel and unusual, and the error is compounded because the sentence itself,...

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