748 F.3d 570 (4th Cir. 2014), 13-4170, United States v. Cobler

Docket Nº:13-4170
Citation:748 F.3d 570
Opinion Judge:BARBARA MILANO KEENAN, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ROBERT COBLER, Defendant - Appellant
Attorney:Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia...
Judge Panel:Before DUNCAN, KEENAN, and WYNN, Circuit Judges. DUNCAN, Circuit Judge, concurring in the judgment. DUNCAN, Circuit Judge, concurring in the judgment:
Case Date:April 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 570

748 F.3d 570 (4th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JAMES ROBERT COBLER, Defendant - Appellant

No. 13-4170

United States Court of Appeals, Fourth Circuit

April 11, 2014

Argued January 29, 2014.

Petition for certiorari filed at, 07/10/2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:12-cr-00026-MFU-JGW-1).

ARGUED:

Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.

Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

ON BRIEF:

Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.

Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before DUNCAN, KEENAN, and WYNN, Circuit Judges. DUNCAN, Circuit Judge, concurring in the judgment.

OPINION

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BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy. The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate

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sentencing goals. Upon our review, we reject the defendant's constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant's crimes. Accordingly, we affirm.

I.

In April 2012, undercover police investigators identified a computer belonging to James Robert Cobler (Cobler) as a source of child pornography on the Internet. After obtaining a warrant and searching Cobler's home in Winchester, Virginia, investigators found numerous images and video recordings depicting the sexual abuse of children.

During an interview with police, Cobler admitted that he had downloaded, possessed, and shared child pornography over the Internet using a " peer-to-peer" file-sharing network. Cobler also confessed that he had sexually molested a four-year-old boy on four separate occasions while acting as the child's babysitter, and had photographed and filmed his sexual encounters with the child. Cobler, a 28-year-old man in poor health who is afflicted by a serious communicable disease, admitted that at the time he molested the child, he was aware of the possibility that his disease could be transmitted to the child by sexual contact.

Cobler pleaded guilty to three counts of production of child pornography, see 18 U.S.C. § 2251(a) and (e), one count of transportation of child pornography in interstate commerce, see 18 U.S.C. § 2252(a)(1) and (b)(1), and one count of possession of child pornography, see 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The United States Probation Office prepared a Presentence Report (PSR), in which the probation officer concluded that although Cobler lacked any prior convictions, the severity of his offenses warranted an initial advisory guidelines term of life imprisonment. However, because none of Cobler's criminal charges provided for a sentence of life imprisonment, Cobler's guidelines sentence ultimately was calculated to be 1,440 months, or 120 years, which represented the sum of the statutory maximum sentences available for each count of conviction. Cobler did not object to the district court's adoption of the PSR calculations.

At the sentencing hearing, Cobler requested a significant downward variance from the applicable guidelines, based in part on his grave medical condition and short life expectancy, as well as his lack of criminal history. The government argued that a guidelines sentence was justified, and that it would deter others from committing similar crimes.

After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court decided that there was " no reason to vary from the guidelines in this case" and imposed a sentence of 120 years' imprisonment. Cobler filed a timely appeal, challenging the constitutionality and the reasonableness of his sentence.

II.

Cobler argues that his 120-year sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment because the sentence is disproportionate to the severity of his crimes, a question that we review de novo. See United States v. Myers, 280 F.3d 407, 416 (4th Cir. 2002) (citation omitted). Cobler asks that we revisit some of our recent precedent, which he argues improperly suggests that this Court need not review his constitutional challenge because proportionality review of any sentence less than life imprisonment without parole is

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" not available," " not appropriate," or " not required." See United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001) (" [P]roportionality review is not available for any sentence less than life imprisonment without the possibility of parole." ); see also United States v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995) (stating that proportionality review " is not appropriate" for any such sentence); United States v. Polk, 905 F.2d 54, 55 (4th Cir. 1990) (observing that the Supreme Court " does not require" proportionality review of such sentences); United States v. Whitehead, 849 F.2d 849, 860 (4th Cir. 1988) (same); United States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (same). Before addressing these arguments, we examine the analytical framework for proportionality challenges established by the Supreme Court.

The Eighth Amendment states that " [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Punishment is deemed cruel and unusual not only when it is " inherently barbaric," but also when it is disproportionate to the crime for which it is imposed. Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); See Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (referring to the " precept of justice that punishment for crime should be graduated and proportioned to [the] offense" ).

A defendant may challenge the proportionality of a sentence under the Eighth Amendment in two different ways. Under an " as-applied" challenge, a defendant contests the length of a certain term-of-years sentence as being disproportionate " given all the circumstances in a particular case." Graham, 560 U.S. at 59. In a " categorical" challenge, a defendant asserts that an entire class of sentences is disproportionate based on " the nature of the offense" or " the characteristics of the offender." Id. at 60. In this appeal, Cobler argues that his prison sentence is constitutionally infirm under both these approaches.

The Supreme Court has emphasized the limited scope of both types of proportionality challenges. In the context of an as-applied challenge, the Court has explained that the " narrow proportionality principle" of the Eighth Amendment " does not require strict proportionality between crime and sentence," but " forbids only extreme sentences that are grossly disproportionate to the crime." Graham, 560 U.S. at 59-60 (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring)) (internal quotation marks omitted). Before an appellate court concludes that a sentence is grossly disproportionate based on an as-applied challenge, the court first must determine that a " threshold comparison" of the gravity of the offense and the severity of the sentence " leads to an inference of gross disproportionality." Id. (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)) (brackets omitted). In the " rare case" that a reviewing court concludes that such an inference may be drawn, the court is required to compare the defendant's sentence: (1) to sentences for other offenses in the same jurisdiction; and (2) to sentences for similar offenses in other jurisdictions. Id. If this extended analysis validates the threshold determination that the sentence is grossly disproportionate, the sentence is deemed " cruel and unusual" punishment under the Eighth Amendment. Id.

The Supreme Court has identified a term-of-years sentence as being grossly disproportionate on only one occasion. In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a recidivist

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defendant had been sentenced to life imprisonment without parole for passing a bad check in the amount of $100. In reviewing the defendant's Eighth Amendment challenge to his sentence, the Court identified the following " objective criteria" to be used in conducting a full proportionality analysis: (1) " the gravity of the offense and the harshness of the penalty; " (2) " the sentences imposed on other criminals in the same jurisdiction; " and (3) " the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292. Because the bad check crime was " one of the most passive felonies a person could commit" and the punishment was " the most severe" non-capital sentence available, the Court inferred that the defendant's sentence was grossly disproportionate. Id. at 296-97. Accordingly, the Court conducted an extended proportionality review, engaging in a comparative analysis of other penalties and other jurisdictions, and concluded...

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