884 F.3d 25 (1st Cir. 2018), 12-2364, United States v. Rivera-Ruperto

Docket Nº:12-2364, 12-2367, 13-2017
Citation:884 F.3d 25
Party Name:UNITED STATES, Appellee, v. Wendell RIVERA-RUPERTO, a/k/a Arsenio Rivera, Defendant, Appellant.
Judge Panel:Before Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges. BARRON, Circuit Judge, concurring in the denial of rehearing en banc, joined by HOWARD, Chief Judge, and TORRUELLA, LYNCH, THOMPSON, and KAYATTA, Circuit Judges . LIPEZ, Circuit Judge, statement re...
Case Date:February 27, 2018
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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884 F.3d 25 (1st Cir. 2018)



Wendell RIVERA-RUPERTO, a/k/a Arsenio Rivera, Defendant, Appellant.

Nos. 12-2364, 12-2367, 13-2017

United States Court of Appeals, First Circuit

February 27, 2018

Before Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges.


Pending before the court is a petition for rehearing or rehearing en banc in United States v. Rivera-Ruperto and a petition for rehearing or rehearing en banc in United States v. Rivera-Ruperto . The petitions for rehearing having been denied by the panel of judges who decided the cases, and the petitions for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that either case be heard en banc, it is ordered that the petitions for rehearing and the petitions for rehearing en banc be denied.

BARRON, Circuit Judge, concurring in the denial of rehearing en banc, joined by HOWARD, Chief Judge, and TORRUELLA, LYNCH, THOMPSON, and KAYATTA, Circuit Judges .

The bulk of the 161-year and ten-month prison sentence that Wendell Rivera-Ruperto challenges— 130 years of it to be exact— was imposed for his six convictions under 18 U.S.C. § 924(c). United States v. Rivera-Ruperto, 852 F.3d 1, 17 (1st Cir. 2017) (Rivera-Ruperto II ). Those convictions stem from a federal sting operation that targeted Puerto Rican police officers. Id. at 4. As part of that sting, Rivera participated, while armed, in a number of supposed " deals" involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers. Id. at 4-5.

But, § 924(c) did not merely permit this greater-than-life-without-parole sentence. It mandated it. It did so by requiring a minimum prison sentence of five years for the first of Rivera’s § 924(c) convictions and consecutive twenty-five year prison sentences thereafter for each of his " second or subsequent" § 924(c) convictions. 18 U.S.C. § 924(c). And it did so even though all but one of those additional convictions were handed down at the same trial as the initial § 924(c) conviction that Rivera, who had no prior criminal history, received. Id. at 5.1

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Thus, in consequence of Rivera’s multiple convictions for his involvement in this one sting operation, Rivera was required to receive a punishment that seemingly could have been more severe only if it had required his death. And that is so even though this case is replete with factors that— under a discretionary sentencing regime— would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.2

Despite the force of Rivera’s argument that this mandatory sentence is so grossly disproportionate as to be unconstitutional under the Eighth Amendment, I am not permitted to conclude that it is. Other federal judges have expressed their dismay that our legal system could countenance extreme mandatory sentences under § 924(c) that are even shorter than this one.3 And yet, just as those judges concluded that they were required by precedent to uphold the sentences in their cases, I conclude, like the panel, Rivera-Ruperto II, 852 F.3d at 18, that I am compelled by precedent— and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (opinion of Kennedy, J.)— to uphold Rivera’s greater-than-life sentence.[4]

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I do think it is important to say something, however, about that precedent and why I believe the Supreme Court should revisit it. And so, in what follows, I explain my reasoning.


The body of precedent that controls here concerns the meaning of the Eighth Amendment, which provides that " [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Amendment’s text does not expressly state that prison sentences may be unconstitutional solely in consequence of their length. The Supreme Court, however, has long indicated that a sentence may, in rare cases, be so disproportionate to the seriousness of the underlying offense that it violates the Eighth Amendment. See Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), for example, the Supreme Court, in the course of rejecting an Eighth Amendment challenge to a mandatory life sentence with the possibility of parole, explained that " the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." 5 Id. at 271, 100 S.Ct. 1133. The Court then applied this principle to invalidate a prison sentence solely in consequence of its disproportionate length in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

Solem specified the criteria that bear on whether the length of a prison term is impermissibly out of proportion to the seriousness of the offense (or offenses) of conviction. Solem emphasized that " no single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amendment," Solem, 463 U.S. at 290 n.17, 103 S.Ct. 3001, but that " a combination of objective factors can make such analysis possible." Id. Specifically, Solem held that: [A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Id. at 292, 103 S.Ct. 3001.

Solem appeared to contemplate a holistic analysis, in which the assessment of each of these three criteria would inform the assessment of the others. That approach, notwithstanding its inherently (and appropriately) deferential nature, had teeth. In fact, in Solem, the Court concluded on the basis of this holistic assessment that " the Eighth Amendment proscribes a life sentence without the possibility of parole for a seventh nonviolent felony,"

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id. at 279, 103 S.Ct. 3001, in a case in which that discretionary sentence was triggered by a recidivist defendant’s conviction— after he had been punished for his prior felony convictions— for uttering a " no account" check for $100. Id. at 303, 103 S.Ct. 3001.

Thus, if Solem were the last word, I would have to assess in the following way whether Rivera’s mandatory life-without-parole sentence for multiple felonies— each of which is seemingly nonviolent, though hardly minor in nature— comports with the Eighth Amendment.6 I would have to consider, holistically, the three criteria that Solem identifies as relevant to the proportionality determination. And, based on a consideration of those criteria, as I will next explain, I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.[7]


The first Solem criterion requires a relatively abstract inquiry. In performing it, a reviewing court must consider the gravity of the offense " in light of the harm caused or threatened to the victim or society[ ] and the culpability of the offender." Id. at 292, 103 S.Ct. 3001. A reviewing court must then consider the harshness of the sentence in light of the gravity of the offense. Id.

Solem details how a court should go about the task of assessing a crime’s severity for purposes of applying this first criterion. Of direct relevance here, Solem makes clear that drug crimes are serious, even though they do not inherently require proof of any harm having been done to any identifiable victim.

That guidance from Solem matters in this case. Section 924(c) sanctions anyone who " uses or carries, or who, in furtherance of [a predicate] crime, possesses a firearm," 18 U.S.C. § 924(c)(1)(A), and then defines those predicate crimes to include a wide variety of federal drug offenses, id. at § 924(c)(2). The predicate

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drug offenses that underlie each of Rivera’s § 924(c) convictions are attempting to possess with intent to distribute, and conspiring to possess with intent to distribute, at least five kilograms of a substance that contained cocaine (though the drug itself need only have been present in a " detectable" amount). 21 U.S.C. § § 841 (a)(l), (b)(l)(A)(ii)(II); see

Rivera-Ruperto II, 852 F.3d at 10.

Thus, we are undoubtedly dealing with the repeated commission of a serious crime under Solem’s reasoning. We are also dealing with a type of crime that is certainly more serious than the crime of uttering a " no account" check that triggered the sentence that Solem struck down. 463 U.S. at 281, 103 S.Ct. 3001.

Still, Solem did not describe the repeated commission of the crime of drug dealing (let alone inchoate versions of that crime) as, in and of itself, violent conduct, even if the drug involved were heroin.8 Nor did Solem describe drug dealing as a crime that was just as serious as many violent offenses undoubtedly are, at least for purposes of making a threshold assessment of whether a sentence’s length is so grossly disproportionate to the underlying offense as to violate the Eighth Amendment. Nor, finally, does Solem suggest that possession of a firearm— even in furtherance of a drug crime— is itself a crime of violence.


Solem emphasized that the fact that an offense does not actually require...

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