U.S. v. Farmer

• Citation: 73 F.3d 836
• Decision Date: 27 February 1996
• Docket Number: No. 95-3126,95-3126
• Parties: UNITED STATES of America, Appellee, v. Thomas Lee FARMER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 836

73 F.3d 836

UNITED STATES of America, Appellee, v. Thomas Lee FARMER, Appellant.

No. 95-3126.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 8, 1996.

Decided Jan. 18, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 27, 1996.

Alfredo Parrish, Des Moines, Iowa, argued, for appellant.

Stephen J. Rapp, U.S. Atty., argued, Daniel C. Tvedt, Asst. U.S. Atty., on the brief, Cedar Rapids, Iowa, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES, ^* District Judge.

RICHARD S. ARNOLD, Chief Judge.

On September 13, 1994, the so-called "three strikes and you're out" proposal became a federal law. P.L. 103-322, Title VII, Sec. 70001, 108 Stat. 1796, 1982, codified as 18 U.S.C. Sec. 3559(c). The statute imposes a mandatory sentence of life in prison for persons convicted of three or more specified "serious violent felon[ies]." 18 U.S.C. Sec. 3559(c)(1). This case, the parties tell us, is the first one in the country prosecuted under this new law. It resulted in the imposition of a life term on the appellant, Thomas Lee Farmer. We affirm the convictions and sentences in all respects. We hold, among other things, that the three-strikes law does not violate either the Double Jeopardy Clause of the Fifth Amendment or the Ex Post Facto Clause of the Constitution of the United States.

I.

The defendant Farmer was charged in a four-count indictment. Count I charged him with violating the Hobbs Act, 18 U.S.C. Sec. 1951, by attempting to rob the Hy-Vee convenience store in Waterloo, Iowa, on October 8, 1994. Count II charged him with conspiring to violate the Hobbs Act by planning to rob Hy-Vee stores in Des Moines and Waterloo, Iowa, beginning in September 1994, and continuing through October of that year. Count III charged that Farmer had used a firearm during a crime of violence (the Waterloo robbery) in violation of 18 U.S.C. Sec. 924(c). And Count IV charged Farmer with being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 2, 922(g)(1), and 924(a)(2). There is no doubt that Farmer and others planned and carried out a Hy-Vee robbery in Des Moines on September 11, 1994, and that he and others planned to rob the Hy-Vee store in Waterloo on October 8, a plan that failed when police were called after the robbers had entered the store. For this reason, we will not state at length the evidence presented in the District Court, except as necessary to understand the various legal and evidentiary arguments that Farmer presses on this appeal.

After the jury convicted Farmer on all four counts, the District Court ¹ sentenced him as follows: on Counts I and II, life in prison as a consequence of the three-strikes statute, 18 U.S.C. Sec. 3559(c); on Count IV (being a felon in possession of a firearm), 27 years and three months, to run concurrently with the life terms on the first two counts; and on Count III (use of a firearm during a crime of violence), five years, to run consecutively to the sentences on the other three counts. ² The Court also imposed the mandatory special assessment of $50.00 for each count, and ordered the defendant to make restitution in the amount of $10,000.00. Because of the defendant's inability to pay, no fine was imposed.

II.

We consider first the legal arguments made by defendant with respect to the three-strikes statute. The statute provides that a person "convicted ... of a serious violent felony shall be sentenced to life imprisonment ..." under certain conditions. 18 U.S.C. Sec. 3559(c)(1) (emphasis added). The statute comes into play when a defendant having been convicted of a "serious violent felony," is shown to have been convicted of at least two crimes of a similar nature. In the present case, the government alleged and proved that Farmer had three previous convictions, all of them in the Iowa state courts: murder in the second degree, robbery in the first degree, and conspiracy to commit murder.

The legal questions raised on this appeal are important but not difficult. Most of them are controlled by precedent. First, Farmer argues that imprisoning him for life for what he calls "peripheral participation in a grocery robbery" is cruel and unusual punishment in violation of the Eighth Amendment. We doubt the justice of the characterization "peripheral." Farmer was deeply involved in the planning of the Waterloo robbery and, before the robbery was aborted, told one of his accomplices to "shoot 'em, shoot 'em," referring to Hy-Vee employees. However that may be, Farmer stands convicted of more than three violent felonies. In the main, the level of punishment to be imposed for crimes is the business of Congress, not the courts. Only in very narrow circumstances has a punishment within statutory limits been held to violate the Eighth Amendment. Imposition of a life term under the circumstances of the present case is, in our view, well within congressional power. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), in which the Supreme Court upheld a life term, without parole, for a first offense of possession of crack cocaine. See also Rummel v. Estelle, 445 U.S. 263, 265, 100 S.Ct. 1133, 1134-35, 63 L.Ed.2d 382 (1980), upholding a life sentence under a recidivism statute where the three felonies involved were passing a forged check, fraudulent use of a credit card, and obtaining money by false pretenses, none of them involving violence. We reject Farmer's Eighth Amendment contention.

Next, Farmer argues that the District Court had discretion whether to impose a life term, and that, under the facts of this case, that discretion was abused. The argument flies in the face of the words of the statute. The statute says "shall." It withdraws all discretion from a sentencing court. It is true that the United States Attorney has the discretion whether to bring a charge under the three-strikes law, but there is nothing unconstitutional about that, in the absence of a showing (which, as we shall see, has not been made here) that the charging decision was based on some constitutionally forbidden factor, such as race. Congress has power to make sentences mandatory and to withdraw all sentencing discretion from the courts, except in capital cases. "Congress has power to define criminal punishments without giving the courts any sentencing discretion." Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1928, 114 L.Ed.2d 524 (1991); United States v. Hammer, 3 F.3d 266, 269 (8th Cir.1993) (upholding a mandatory life sentence for involvement in a continuing criminal enterprise).

The defendant argues that the three-strikes statute violates the Double Jeopardy Clause of the Fifth Amendment, because it subjects him to new punishment for the crimes, listed above, of which he has been previously convicted. Having once been convicted and sentenced, for example, for murder in the second degree, and having served that sentence, he cannot now, the argument runs, be punished again by having this crime counted as one of his "three strikes." We disagree. He is not being punished again for previous offenses. Rather, these offenses are being taken into account in fixing his punishment for the instant crime, violation of the Hobbs Act. The precedents on this point are clear and uniform. See, e.g., Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). Farmer seeks to distinguish these cases by arguing, for example, that in Parke the enhancement imposed on account of previous convictions was only five years. We do not think the argument persuasive. The holding of the case is that a recidivism provision does not violate the Double Jeopardy Clause. The reasoning of the opinion does not depend to any degree on the severity of the enhancement.

Similarly, Farmer urges an argument under the Ex Post Facto Clause--that the three-strikes statute increases the punishment for crimes committed before its enactment. Again, precedent forces us to disagree. See, e.g., Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948). As we said in United States v. Allen, 886 F.2d 143, 146 (8th Cir.1989), "[s]o long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation."

In a variation of this argument under the Ex Post Facto clause, Farmer points out that the Des Moines robbery, which was committed two days before the enactment of the three-strikes law, was alleged in the indictment as one of the overt acts in Count II, the conspiracy count. In Farmer's view, this is an impermissible use of pre-Act conduct. Again, the contention is inconsistent with controlling caselaw. A conspiracy begun before the effective date of a relevant statute, but continued after that date, may constitutionally be punished under that statute. Conspiracy is a continuing offense. See, e.g., United States v. Garfinkel, 29 F.3d 1253 (8th Cir.1994); United States v. Tharp, 892 F.2d 691 (8th Cir.1989).

The last of what we may call Farmer's broadside arguments--arguments addressed to the validity of the three-strikes law in general--is his claim that Section 3559(c) violates the Equal Protection component of the Due Process Clause of the Fifth Amendment. The law, Farmer argues, has, or will have, a disparate impact on African-Americans, because a greater proportion of them than of other Americans will be sentenced under its provisions. The argument is supported by citations to articles that, it is said, show that African-Americans have been disparately impacted by federal mandatory-minimum sentencing laws in general. The answer is that disparate impact is not sufficient to show a constitutional violation. The Equal Protection Clause of the Fourteenth Amendment is not violated absent invidious or discriminatory purpose, see Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60...