U.S. v. Kaluna

Decision Date03 August 1998
Docket NumberNos. 96-10527,s. 96-10527
Parties98 Daily Journal D.A.R. 8411 UNITED STATES of America, Plaintiff-Appellee, v. Bryan K. KALUNA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Withdrawn by 161 F.3d 1225.

Alexander Silvert (argued), First Assistant Federal Public Defender, Honolulu, Hawaii, for defendant-appellant.

Larry L. Butrick (argued), Assistant United States Attorney, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CR-95-00919-HG.

Before: REINHARDT, LEAVY, and THOMAS, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge THOMAS; Dissent by Judge LEAVY.

REINHARDT, Circuit Judge:

This case raises a number of important constitutional questions regarding the recently-enacted federal "three strikes" law, 18 U.S.C. § 3559(c) (1994).

Bryan K. Kaluna was convicted of bank robbery and conspiracy to commit bank robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 371. 1 Because he had been convicted on one prior occasion of first-degree robbery and on several others of second-degree robbery, the district court sentenced him to life in prison under the three-strikes statute. Kaluna now appeals his sentence, arguing (1) that the statute's recidivist sentencing scheme is facially unconstitutional; and (2) that, even if the sentencing law is constitutional in general, he has only two valid "strikes," either because (a) the statute must be construed in a manner that excludes his other convictions or (b) the statutory burden-shifting provision used to establish his third strike is unconstitutional. We reject both his facial challenge to the three-strikes law generally and his statutory construction argument. We agree, however, that the statutory burden-shifting provision which requires defendants to prove by clear and convincing evidence that in the commission of certain prior offenses (i) a dangerous weapon was not used or threatened to be used and (ii) death or serious bodily injury did not occur, violates due process.

I

We first consider Kaluna's general constitutional challenges to the "three strikes" law. The statute provides in relevant part that "[n]otwithstanding any other provision of law, a person who is convicted ... of a serious violent felony shall be sentenced to [mandatory] life imprisonment" if he has been convicted "on prior occasions ... of ... 2 or more serious violent felonies." 18 U.S.C. § 3559(c)(1).

Kaluna argues that the three-strikes statute violates five constitutional principles: (1) double jeopardy; (2) the separation of powers; (3) the Ex Post Facto Clause; (4) the prohibition against cruel and unusual punishment; and (5) the right to effective assistance of counsel. We have not had occasion to address these arguments with regard to the federal three-strikes statute, but three other circuits have rejected various challenges to the statute's general constitutionality. See United States v. Rasco, 123 F.3d 222 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 868, 139 L.Ed.2d 765 (1998); United States v. Washington, 109 F.3d 335, 337-38 (7th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 134, 139 L.Ed.2d 82 (1997); United States v. Farmer, 73 F.3d 836, 839-41 (8th Cir.), cert. denied, 518 U.S. 1028, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996). We agree with these circuits, and with the district court, that the three-strikes statute's recidivist sentencing scheme, harsh and inflexible as it may be, is facially constitutional in general.

First, Kaluna contends that the three-strikes statute violates the Double Jeopardy Clause because it imposes multiple punishment for the same offenses. Specifically, he argues that he has already served his punishment for his previous two "strikes," and he cannot be punished again for them by counting them against him in the instant sentence. It is true that the "Double Jeopardy Clause protects against ... the actual imposition of two punishments for the same offense." Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351 (1995). But although the three-strikes statute might seem to violate this principle, the Supreme Court has long since determined that recidivist statutes do not violate double jeopardy because "the enhanced punishment imposed for the later offense 'is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,' but instead as 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' " Id. 115 S.Ct. at 2206 (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948)); see also Spencer v. Texas, 385 U.S. 554, 559-60, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895). Thus, Kaluna's argument cannot prevail.

Second, Kaluna contends that the three-strikes statute violates the fundamental constitutional principle of separation of powers because it impermissibly increases the discretionary power of prosecutors while stripping the judiciary of all discretion to craft sentences. Alternately, Kaluna argues that this court should, in order to avoid constitutional difficulties, construe the statute to permit judges to apply the statute at their discretion. Again, we are compelled by precedent to reject both arguments. The Supreme Court has stated unequivocally that "Congress has the 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, 114 L.Ed.2d 524 (1991); see also Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (upholding the constitutionality of the federal sentencing guidelines in part because "the scope of judicial discretion with respect to a sentence is subject to congressional control"). Furthermore, the legislative history of the law leaves no doubt that Congress intended it to require mandatory sentences. See 103 Cong. Rec. S12,525 (daily ed. Aug. 25, 1994) (statement of Sen. Daschle) (stating that the three-strikes law "will require that Federal judges hand down mandatory life sentences"); Id. at S12,12544 (statement of Sen. Lautenberg) (emphasizing that under the three-strikes law, three-time offenders are "put away for life.... And no ifs, ands or buts about it."). The statute itself uses the words "mandatory" and "shall." In any event, we cannot narrowly construe a law to avoid constitutional infirmity in this area because, given the principles previously announced by the Supreme Court, no constitutional question exists.

Third, Kaluna contends that the three-strikes statute violates the Ex Post Facto Clause because it changes the legal consequences of his prior bad acts. This contention also lacks merit. The Supreme Court and this court uniformly have held that recidivist statutes do not violate the Ex Post Facto Clause if they are "on the books at the time the [present] offense was committed." United States v. Ahumada-Avalos, 875 F.2d 681, 683-84 (9th Cir.1989) (per curiam); see also Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). This statute was enacted in 1994 and Kaluna committed the instant offense in 1995.

Fourth, Kaluna argues that the three-strikes statute violates the proportionality guarantee of the Eighth Amendment. See U.S. Const. amend. VIII ("cruel and unusual punishments [shall not be] inflicted"). Supreme Court precedent once again forecloses his claim. In its most recent pronouncement on the subject, the Court held that "the eighth amendment 'forbids only extreme sentences that are grossly disproportionate to the crime.' " United States v. Bland, 961 F.2d 123, 129 (9th Cir.1992) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., joined by O'Connor and Souter, JJ., concurring) (constituting the holding of the Court)). Moreover, while in evaluating the proportionality of a sentence, courts "must focus on the principal felony--the felony that triggers the life sentence," Solem v. Helm, 463 U.S. 277, 290, 296 n. 21, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), they must also recognize that legislatures may punish recidivists more severely than first-time offenders. Id. at 296, 103 S.Ct. 3001. Because the statute restricts its application to instances where both the defendants' primary and past convictions are "serious violent felonies," the Court's precedent makes it clear that Kaluna's punishment for bank robbery is not sufficiently disproportionate to contravene the Eighth Amendment. See, e.g., Harmelin, 501 U.S. at 994-96, 111 S.Ct. 2680 (upholding life imprisonment for first offense of possessing 672 grams of cocaine); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (upholding life sentence imposed after third nonviolent felony conviction).

Finally, Kaluna claims that he was deprived of the right to effective assistance of counsel because he was never advised that his guilty pleas to prior offenses could later constitute "strikes" leading to mandatory life imprisonment. Indeed, the three-strikes statute did not exist at the time of his guilty pleas to prior crimes. Following convention, however, we affirm the district court's determination to dismiss this claim without prejudice because it is properly raised through habeas corpus proceedings, not direct review. See Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 1739, 128 L.Ed.2d 517 (1994) (ineffective assistance claims under recidivist statutes should be brought collaterally, not in sentencing procedures).

II

Having held the three-strikes law generally constitutional, we reach Kaluna's second contention. He argues that, even if the sentencing law is generally constitutional, he has only two valid "strikes" because...

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