US v. Faisal Hashime

Filing

Published Court order filed [999126362] denying Motion for hearing en banc (FRAP 35) [999093962-2] along with separate, published, authored opinion. Copies to all parties.. [12-5039]

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PUBLISHED
Filed:

June 10, 2013

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5039
(1:12-cr-00329-LMB-1)

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FAISAL HASHIME,
Defendant - Appellant.

O R D E R

Appellant filed a petition for hearing en banc which was
circulated to the full Court.

No judge requested a poll under

Rule 35 of the Federal Rules of Appellate Procedure; therefore,
the petition for hearing en banc is denied.

Judge Gregory wrote

an opinion concurring in the denial of hearing en banc, in which
Judge Davis joined.
Entered at the direction of Chief Judge Traxler.
For the Court

/s/ Patricia S. Connor
Clerk

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GREGORY, Circuit Judge, concurring in denial of hearing en banc:
Faisal Hashime was convicted of multiple crimes relating to
the

possession,

pornography.

production,

and

distribution

of

child

He raises two issues on appeal, one of which being

a Miranda violation, and the other an Eighth Amendment challenge
to the sentence imposed.

Before we hear his appeal, however,

Hashime asked the full Court to review and correct our Eighth
Amendment

jurisprudence.

Hashime’s

request

has

merit.

Our

Eighth Amendment precedent is in tension with the jurisprudence
of both the Supreme Court and our sister circuits.
reason enough to grant a hearing en banc.
35(a)(1).

This is

See Fed R. App. P.

But even if it was not, insuring that a defendant is

not sentenced to a term of imprisonment that violates the Eighth
Amendment prohibition against cruel and unusual punishment is
surely an issue of “exceptional importance” warranting en banc
review.

Fed R. App. P. 35(a)(2).

In spite of the momentousness of the issue Hashime asks us
to address, I concur in the Court’s decision to initially deny
hearing

en

banc

for

efficiency

reasons

only

--

if

Hashime’s

appeal is resolved on the Miranda issue, his Eighth Amendment
argument

will

be

moot.

I

write

separately,

however,

to

underscore why Hashime’s Eighth Amendment argument is worthy of
en banc review as soon as prudently possible.

2

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I.
To

be

succinct,

we

have

held

that

Eighth

Amendment

“proportionality review is not available for any sentence less
than

life

imprisonment

without

the

possibility

of

parole.”

United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).
Conflicting with our assertion, other circuits conduct Eighth
Amendment

proportionality

review

for

term-of-years

sentences.

See, e.g., United States v. Nigg, 667 F.3d 929, 938 (7th Cir.
2012); United States v. Thomas, 627 F.3d 146, 159-60 (5th Cir.
2010); United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008);
United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008);
United States v. MacEwan, 445 F.3d 237, 247-48 (3d Cir. 2006);
United States v. Collins, 340 F.3d 672, 680 (8th Cir. 2003);
United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989).
To

my

blanket

knowledge,
rule

sentences.

we

denying

are

the

only

circuit

proportionality

review

that
for

follows

this

term-of-years

Indeed, even our district courts have recognized

that our precedent is in tension with our sister circuits.

See,

e.g., United States v. Wellman, 716 F. Supp. 2d 447, 459 (S.D.
W. Va. 2010).
Our precedent has had the effect of creating an oft-dreaded
circuit split.

Cf. Joyner v. Forsyth Cnty., N.C., 653 F.3d 341,

356 (4th Cir. 2011) (Niemeyer, J., dissenting) (admonishing the
majority in part for creating a circuit split); Holly v. Scott,
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F.3d

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287,

297-98

(4th

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Cir.

2006)

(Motz,

J.,

concurring)

(same); United States v. Terry, 257 F.3d 366, 369 (4th Cir.
2001) (Wilkinson, J.) (rejecting a proposed argument in part
because it would create a circuit split).
troubling
follow

given

the

seemingly

inexplicably

fact

that

from

the

rigid

rule

that

we

from

materialized

morphed

This is especially

thin

air.

Our

precedent

stating

that

Supreme

once

alone

Court

precedent does not require proportionality review for a term-ofyears sentence, which is correct, 1 see, e.g., United States v.
Polk, 905 F.2d 54 (4th Cir. 1990); United States v. Whitehead,
849 F.2d 849, 860 (4th Cir. 1988); United States v. Rhodes, 779
F.2d

1019,

1027-28

proportionality

review

(4th
is

Cir.
not

1985),

available

to
for

holding
a

that

term-of-years

sentence, see, e.g., United States v. Ming Hong, 242 F.3d 528,
532

(4th

Cir.

2001).

As

such,

we

are

now

bound

by

this

unsupported rule that is not followed by any circuit.

1

A court must only conduct proportionality review in “the
rare case in which a threshold comparison of the crime committed
and the sentence imposed leads to an inference of gross
disproportionality.”
Ewing v. California, 538 U.S. 11, 30
(2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)
(Kennedy, J., concurring)).
If this threshold is met, then a
court must perform the Eighth Amendment proportionality test
articulated by the Supreme Court in Solem v. Helm, looking at
the “(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.” 463 U.S.
277, 292 (1983).
4

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II.
More important than the very important circuit split, our
precedent

is

in

jurisprudence.

tension

In

two

with

Supreme

recent

Eighth

Court

Eighth

Amendment

Amendment

decisions

the

Supreme Court reiterated that the “concept of proportionality is
central to the Eighth Amendment.”

Miller v. Alabama, 132 S. Ct.

2455, 2463 (2012); Graham v. Florida, 130 S. Ct. 2011, 2021
(2010).

The Court further noted that its “cases addressing the

proportionality of sentences” include “challenges to the length
of

term-of-years

sentences

particular case.”

given

all

the

circumstances

Graham, 130 S. Ct. at 2021.

in

a

The Court has

never said as a per se matter that a term-of-years sentence will
necessarily survive a proportionality analysis, which we noted
in Sutton v. State of Md., 886 F.2d 708, 712 (4th Cir. 1989) and
Rhodes, 779 F.2d at 1027-28.

In fact, the Supreme Court has

strongly suggested that Eighth Amendment proportionality review
applies equally to both life and term-of-years sentences, as it
has proclaimed “no penalty is per se constitutional,” Solem v.
Helm, 463 U.S. 277, 290 (1983); and “[t]he Eighth Amendment,
which forbids cruel and unusual punishments, contains a ‘narrow
proportionality
sentences,’”
(quoting
(Kennedy,

principle’

Ewing

Harmelin
J.,

v.
v.

that

California,

Michigan,

‘applies

to

noncapital

538

11,

20

(2003)

996—997

(1991)

U.S.

5

U.S.

957,

Even

concurring)).

501

the

most

skilled

legal

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contortionist could not interpret our precedent in a way that
sensibly

comports

with

the

Supreme

Court’s

crystalline

pronouncements.

III.
Given the unexplained deficiencies in our Eighth Amendment
jurisprudence, it is necessary for us to rally the troops, right
our wrongs, and align our Eighth Amendment jurisprudence with
the rest of the nation.

While the time may not be now given the

posture of Hashime’s appeal, the time certainly draws nigh. 2
Judge Davis joins in this concurrence.

2

I take no position on the merits of Hashime’s appeal.
6