Long v. United States, CIV 13-1012
| Decision Date | 11 April 2014 |
| Docket Number | CIV 13-1012 |
| Court | U.S. District Court — District of South Dakota |
| Parties | GARY LONG, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
DENYING MOTION TO VACATE
AND ORDER DENYING
Gary Long, Jr. was convicted of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a)(1) and 2246(2)(A). At the date of the petitioner's offense he was fifteen years old. On October 9, 2001, a three-count charge was filed in the District of South Dakota, Northern Division. The charges were kidnaping, in violation of 18 U.S.C. §§ 5032, 1153 and 1201; second degree larceny, in violation of 18 U.S.C. §§ 5032, 1153, and 661; and burglary, in violation of 18 U.S.C. § 1153 and SDCL 22-32-3. A warrant was subsequently issued for the defendant's arrest. He made his initial appearance on the same day in the District of North Dakota in Bismarck, ND. At that hearing, he waived a removal hearing and was detained pending his initial appearance in the District of South Dakota. On October 12, 2001, the defendant appeared in the District of South Dakota, Northern Division, in Aberdeen, SD, for an initial appearance and was detained pending further hearings. On December 19, 2001, a transfer hearing was held before U.S. District Judge Charles B. Kornmann in Pierre, SD. On December 31, 2001, the Court rendered a decision to transfer the defendant to adult court. The defendant timely appealed the transfer. On July 16, 2002, the United States Court of Appeals for the Eighth Circuit rendered an opinion affirming the district court's decision to transfer the defendant to adult court. On July 24, 2002, a four-count indictment was filed charging the defendant with kidnaping, in violation of 18 U.S.C. §§ 5032, 1153, and 1201; aggravated sexualabuse, in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2)(A); first degree burglary, in violation of 18 U.S.C. § 1153 and SDCL 22-32-3; and larceny, in violation of 18 U.S.C. §§ 1153 and SDCL 22-32-3. The defendant pleaded guilty to Count II of the indictment on December 13, 2002. The indictment charged as follows:
On or about the 4th day of October, 2001, in McLaughlin, in Indian country, in the District of South Dakota, the defendant, an Indian, did knowingly cause and attempt to cause Ivy Archambault, to engage in a sexual act, that is contact between the penis and the vulva, by using force against her person, in violation of 18 U.S.C. §§ 1153, 2241(a)(1), and 2246(2) (A).
The defendant was sentenced on April 14, 2003, to 540 months imprisonment pursuant to a guidelines range for aggravated sexual abuse, found at USSG §2A3.1, which contains a cross-reference to USSG §2A1.1 (first degree murder) if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. The factual basis statement, which the defendant signed, stated that he participated in the murder of the victim shortly after she was raped. Therefore, the cross-reference was applied. The factual basis statement was signed by the defendant as part of his plea agreement with the government. Prior to sentencing the defendant, the Court stated that "the idea is that the defendant is to remain in custody until his 60th birthday." (CR-01-10021 Doc. 97 at 3). Defendant/Petitioner did not appeal from that judgment nor did he file any previous petitions pursuant to 28 U.S.C. § 2255. The petitioner now submits a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He is challenging his sentence, arguing that it was unconstitutional under the Eighth Amendment's Cruel and Unusual Punishments Clause.
OPINIONThe U.S. Sentencing Commission has stated that for federal sentencing purposes 470 months is "functionally equivalent" to life. The Commission revised its statistical methodology to "reflect life expectance of federal criminal defendants more precisely" bycapping the sentences tracked at 470 months. U.S. Sentencing Commission, 2011 Sourcebook of Federal Sentencing, Statistics. Appendix A, at 2. The Commission's determination that 470 months is the "functional equivalent" of a life sentence is also expressed in its Variable Codebook for Individual Offenders with mathematic simplicity: "470 = Life Sentence." U. S. Sentencing Commission, Variable Codebook for Individual Offender, at 36, 40, 41, 45 available at http://www.ussc.gov/Research_and_Statistics/ Datafiles/Variable_Codebook_for_Individual_Offenders.pdf (last visited on March 25, 2014). Accordingly, because the petitioner in the instant case was sentenced to 540 months in prison, his sentence is "functionally equivalent" to a life sentence.
The petitioner seeks relief because he was sentenced when he was a juvenile. The last few decades of Supreme Court decisions have extended greater Eighth Amendment protection to juvenile offenders than to adult offenders. The trend began with Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988), in which William Thompson challenged a death sentence pronounced for his first-degree murder conviction, which stemmed from active participation in a "brutal murder" at the age of fifteen. Id. at 819. The Court held that, regardless of the underlying crime, the death penalty violated the Eighth Amendment's prohibition on cruel and unusual punishments when applied against an offender under the age of sixteen. Two decades later, relying on similar rationales concerning the developmental differences between children and adults, the Supreme Court expanded the prohibition on death sentences for children to include all juveniles under the age of eighteen. Roper v. Simmons, 543 U.S. 551, 556-60, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L. Ed. 2d 825 (2010), Graham was sixteen when he committed an armed burglary and another crime. Id. at 53. After his conviction, the trial court adjudicated Graham guilty and sentenced him to life in prison for the burglary. Id. Graham subsequently challenged his sentence, arguing that it was unconstitutional under the Eighth Amendment's Cruel and Unusual Punishments Clause. Id. at 58. The Supreme Court agreed with Graham. Id. at 82. The core holdingof Graham is that a juvenile offender cannot constitutionally be sentenced to life in prison without parole for a non-homicide crime. Id. In reaching its decision, the court relied on its own precedent which established that "because juveniles have lessened culpability they are less deserving of the most severe punishments." Id. at 68, quoting Roper v. Simmons, 543 U.S. 551, 569 (2005). The court further noted that, "[a]s compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure." Id. citing Roper, 543 U.S. 569-70, quoting Johnson v. Texas, 509 U.S. 350, 367 (1993) (internal quotations omitted). Finally, the court found significant the fact that "[i]t remains true that '[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.'" Id. at 68 (citation omitted).
Graham outlines various theories behind sentencing practices in the justice system. The core justifications of incarceration are straightforward and an individual convicted and sentenced for violation of the law is placed into custody for four major reasons: 1) retribution, 2) deterrence, 3) incapacitation and 4) rehabilitation. Graham 71-74. The opinion examines penological theory as it is applied to juvenile non-homicide offenders sentenced to life without parole. Id. at 74. The Graham opinion states: Id.
In Miller v. Alabama, 132 S. Ct. 2455 (2012), the petitioners were convicted of murder and sentenced to a mandatory term of life imprisonment without the possibility of parole. Id. at 2461. Both petitioners challenged their sentences, alleging the sentences violated the Eighth Amendment's ban on cruel and unusual punishments. The Supreme Court agreed with the challenge, expanded the rule set forth in Graham, and held that theEighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. Miller at 2475. Mr. Long's sentence in the instant case was administered prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Therefore, his sentence was mandatory in the absence of a legal and factual basis for a downward departure. Booker effectively changed federal sentencing guidelines from mandatory to advisory.
The petitioner's motion under 28 U.S.C. § 2455 warrants a thorough analysis in light of these cases. Supreme Court precedent has widened the scope to include the petitioner's complex sentencing scheme. Although the petitioner pleaded guilty to aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a)(1) and 2246(2)(A), his sentencing range reflected the stipulation that a homicide had occurred. This was part of the petitioner's plea agreement with the government. His guidelines range calculation was augmented by cross-referencing his conviction for aggravated sexual abuse, his "offense of conviction," with homicide crime penalties, his "real offense conduct," in spite of the fact that the petitioner was not convicted of a homicide offense. Petitione...
To continue reading
Request your trial