646 F.2d 123 (4th Cir. 1981), 77-1782, Davis v. Davis

Docket Nº:77-1782.
Citation:646 F.2d 123
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:April 07, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 123

646 F.2d 123 (4th Cir. 1981)

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

April 7, 1981

Argued Oct. 7, 1980.

Page 124

James E. Kulp, Deputy Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellants.

Edward L. Hogshire, Charlottesville, Va. (Paxson, Smith, Boyd, Gilliam & Gouldman, P. C.; John C. Lowe, Lowe & Gordon, Ltd., Charlottesville, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE and ERVIN, Circuit Judges, sitting en banc.

PER CURIAM:

The petitioner, a prisoner of the Commonwealth of Virginia, was convicted on charges of possession with intent to distribute and distribution of marijuana, and received two consecutive sentences of a $10,000 fine and twenty years imprisonment. The district court granted a writ of habeas corpus on the ground that these sentences were so disproportionate to the offenses as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 432 F.Supp. 444 (W.D.Va.1977). A panel of this court reversed. 585 F.2d 1226 (4th Cir. 1978).

Upon rehearing en banc on the motion of the petitioner, this court affirmed the district court's judgment. 601 F.2d 153 (4th Cir. 1979). The Supreme Court granted the respondent's petition for a writ of certiorari, vacated this court's judgment and remanded the case for further consideration in light of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

The judgment of the district court is affirmed on an equal division of the en banc court.

AFFIRMED.

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

I dissent to the refusal of the en banc court to reverse the judgment of the district court appealed from for the reasons set forth in detail in the panel opinion of this court at 585 F.2d 1226 (4th Cir. 1978), 1 and in the dissenting opinion to the opinion of the court in the first en banc consideration of this case found at 601 F.2d 153 (4th Cir. 1979).

Further, because the judgment of this...

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