US v. James Cobler

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cr-00026-MFU-JGW-1. [999334733]. [13-4170]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4170

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ROBERT COBLER,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Michael F. Urbanski,
District Judge. (5:12-cr-00026-MFU-JGW-1)

Argued:

January 29, 2014

Decided:

April 11, 2014

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wynn joined.
Judge Duncan wrote a separate
opinion concurring in the judgment.

ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.
Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
ON BRIEF: Larry W. Shelton, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.
Timothy J. Heaphy, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.

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BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the constitutionality and the
reasonableness of a 120-year sentence imposed on a defendant
convicted of production, possession, and transportation of child
pornography,

in

connection

four-year-old boy.

with

his

sexual

molestation

of

a

The defendant argues that his lengthy prison

sentence is disproportionate to his crimes, constituting cruel
and unusual punishment under the Eighth Amendment, and that the
sentence

is

greater

sentencing goals.

than

necessary

to

achieve

legitimate

Upon our review, we reject the defendant’s

constitutional challenge and conclude that the district court
did not abuse its discretion in imposing a sentence designed to
protect

the

public

defendant’s crimes.

and

to

address

the

seriousness

of

the

Accordingly, we affirm.

I.
In April 2012, undercover police investigators identified a
computer belonging to James Robert Cobler (Cobler) as a source
of child pornography on the Internet.
and

searching

investigators

Cobler’s
found

home

numerous

in
images

After obtaining a warrant
Winchester,
and

video

Virginia,
recordings

depicting the sexual abuse of children.
During an interview with police, Cobler admitted that he
had downloaded, possessed, and shared child pornography over the
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Internet using a “peer-to-peer” file-sharing network.

Cobler

also confessed that he had sexually molested a four-year-old boy
on

four

separate

babysitter,

and

occasions
had

photographed

encounters with the child.
health

who

is

while

acting
and

as

the

filmed

child’s

his

sexual

Cobler, a 28-year-old man in poor

afflicted

by

a

serious

communicable

disease,

admitted that at the time he molested the child, he was aware of
the possibility that his disease could be transmitted to the
child by sexual contact.
Cobler

pleaded

guilty

to

three

counts

of

production

of

child pornography, see 18 U.S.C. § 2251(a) and (e), one count of
transportation of child pornography in interstate commerce, see
18 U.S.C. § 2252(a)(1) and (b)(1), and one count of possession
of child pornography, see 18 U.S.C. § 2252(a)(4)(B) and (b)(2).
The United States Probation Office prepared a Presentence Report
(PSR), in which the probation officer concluded that although
Cobler

lacked

any

prior

convictions,

the

severity

of

his

offenses warranted an initial advisory guidelines term of life
imprisonment.

However,

because

none

of

Cobler’s

criminal

charges provided for a sentence of life imprisonment, Cobler’s
guidelines

sentence

ultimately

was

calculated

to

be

1,440

months, or 120 years, which represented the sum of the statutory
maximum

sentences

available

for

3

each

count

of

conviction.

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Cobler did not object to the district court’s adoption of the
PSR calculations.
At the sentencing hearing, Cobler requested a significant
downward variance from the applicable guidelines, based in part
on his grave medical condition and short life expectancy, as
well as his lack of criminal history.
that

a

guidelines

sentence

was

The government argued

justified,

and

that

it

would

deter others from committing similar crimes.
After considering the sentencing factors set forth in 18
U.S.C. § 3553(a), the district court decided that there was “no
reason to vary from the guidelines in this case” and imposed a
sentence

of

120

years’

imprisonment.

Cobler

filed

a

timely

appeal, challenging the constitutionality and the reasonableness
of his sentence.

II.
Cobler
Eighth

argues

that

Amendment’s

punishment

120-year

prohibition

and

(citation omitted).

280

F.3d

disproportionate

unusual

See

Meyers,

is

cruel

the

severity of his crimes, a question that we review de novo.
v.

sentence

against

violates

the

States

the

sentence

to

United

because

his

407,

416

(4th

Cir.

2002)

Cobler asks that we revisit some of our

recent precedent, which he argues improperly suggests that this
Court

need

not

review

his

constitutional
4

challenge

because

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proportionality
imprisonment

or

242

F.3d

is

imprisonment
United

sentence
is

required.”

528,

See

(4th

Cir.

available

for

any

v.

the

58

than

life

available,”

“not

United

2001)

States

F.3d

of
86,

v.

Ming

(“[P]roportionality

sentence

possibility

Lockhart,

less

“not

532

without

States

any

parole

“not

not

review

of

without

appropriate,”
Hong,

review

Pg: 5 of 26

less

than

life

see

also

parole.”);
89

(4th

Cir.

1995)

(stating that proportionality review “is not appropriate” for
any such sentence); United States v. Polk, 905 F.2d 54, 55 (4th
Cir. 1990) (observing that the Supreme Court “does not require”
proportionality
Whitehead,

849

review
F.2d

of

849,

such
860

sentences);

(4th

Cir.

United

1988)

States

(same);

v.

United

States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (same).
Before

addressing

framework

for

these

arguments,

proportionality

we

examine

challenges

the

analytical

established

by

the

Supreme Court.
The Eighth Amendment states that “[e]xcessive bail shall
not

be

unusual

required,

nor

punishments

Punishment

is

deemed

excessive

fines

inflicted.”
cruel

and

imposed,

U.S.
unusual

Const.
not

nor

cruel

amend.

only

when

and

VIII.
it

is

“inherently barbaric,” but also when it is disproportionate to
the crime for which it is imposed.

Graham v. Florida, 560 U.S.

48, 59 (2010); see Weems v. United States, 217 U.S. 349, 367

5

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(1910) (referring to the “precept of justice that punishment for
crime should be graduated and proportioned to [the] offense”).
A defendant may challenge the proportionality of a sentence
under the Eighth Amendment in two different ways.

Under an “as-

applied” challenge, a defendant contests the length of a certain
term-of-years sentence as being disproportionate “given all the
circumstances in a particular case.”

Graham, 560 U.S. at 59.

In a “categorical” challenge, a defendant asserts that an entire
class of sentences is disproportionate based on “the nature of
the offense” or “the characteristics of the offender.”
60.

Id. at

In this appeal, Cobler argues that his prison sentence is

constitutionally infirm under both these approaches.
The Supreme Court has emphasized the limited scope of both
types of proportionality challenges.
applied

challenge,

proportionality

the

Court

principle”

In the context of an as-

has
the

of

explained
Eighth

that

the

Amendment

“narrow

“does

not

require strict proportionality between crime and sentence,” but
“forbids

only

disproportionate

extreme
to

the

sentences

crime.”

that

Graham,

560

are

grossly

U.S.

at

59-60

(quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1991)
(Kennedy, J., concurring)) (internal quotation marks omitted).
Before an appellate court concludes that a sentence is grossly
disproportionate
first

must

based

determine

on
that

an
a

as-applied
“threshold
6

challenge,

the

comparison”

of

court
the

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gravity of the offense and the severity of the sentence “leads
to

an

inference

of

gross

disproportionality.”

Id.

(quoting

Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)) (brackets
omitted).

In the “rare case” that a reviewing court concludes

that such an inference may be drawn, the court is required to
compare the defendant’s sentence: (1) to sentences for other
offenses

in

the

same

jurisdiction;

and

similar offenses in other jurisdictions.

(2)

to

Id.

sentences

for

If this extended

analysis validates the threshold determination that the sentence
is grossly disproportionate, the sentence is deemed “cruel and
unusual” punishment under the Eighth Amendment.

Id.

The Supreme Court has identified a term-of-years sentence
as

being

grossly

disproportionate

on

only

one

occasion.

In

Solem v. Helm, 463 U.S. 277 (1983), a recidivist defendant had
been sentenced to life imprisonment without parole for passing a
bad check in the amount of $100.

In reviewing the defendant’s

Eighth Amendment challenge to his sentence, the Court identified
the following “objective criteria” to be used in conducting a
full proportionality analysis: (1) “the gravity of the offense
and the harshness of the penalty;” (2) “the sentences imposed on
other

criminals

sentences

imposed

jurisdictions.”

in
for

the

same

jurisdiction;”

commission

Id. at 292.

of

the

same

and

(3)

“the

crime

in

other

Because the bad check crime was

“one of the most passive felonies a person could commit” and the
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punishment was “the most severe” non-capital sentence available,
the Court inferred that the defendant’s sentence was grossly
disproportionate.
conducted

an

Id.

extended

at

296-97.

Accordingly,

proportionality

review,

the

engaging

Court
in

a

comparative analysis of other penalties and other jurisdictions,
and

concluded

that

unconstitutional.
Since
Supreme
threshold

the

Court

the

defendant’s

sentence

was

Id. at 296-300.
decision

has

in

been

inference

of

Solem,

no

successful

gross

in

defendant

before

establishing

disproportionality.

the

even

See,

a

e.g.,

Ewing v. California, 538 U.S. 11 (2003); Harmelin, 501 U.S. 957;
Hutto v. Davis, 454 U.S. 370 (1982) (per curiam); Rummel v.
Estelle, 445 U.S. 263 (1980).

Notably, in Harmelin, the Court

upheld a life sentence without parole for a first-time felon
convicted of possession of 672 grams of cocaine.
at 961, 996.

See 501 U.S.

Justice Kennedy, whose concurrence in Harmelin

later was regarded as the “controlling opinion” in that case,
Graham, 560 U.S. at 59-60, contrasted the “passive” check fraud
in Solem with the “pernicious” drug offenses that “threaten[] to
cause

grave

harm

to

society”

by

crime, and social displacement.”

contributing

to

“violence,

501 U.S. at 1002-03 (Kennedy,

J., concurring).
In

another

as-applied

proportionality

challenge,

the

Supreme Court in Ewing reviewed a prison sentence of 25 years to
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life under California’s “three strikes” statute, 1 imposed for
theft of $1200 in merchandise.

538 U.S. at 19-20.

Employing

its analysis from Solem, the Court observed that the theft crime
was “certainly not ‘one of the most passive felonies a person
could commit’” and could justify a prison sentence of between 25
years and life imprisonment.

Ewing, 538 U.S. at 28 (plurality

opinion) (quoting Solem, 463 U.S. at 296); see also Lockyer v.
Andrade, 538 U.S. 63 (2003) (affirming, upon habeas review, a
sentence

under

California’s

“three

strikes”

law

of

two

consecutive terms of 25 years to life in prison for petty theft
of videotapes worth about $150).
In comparison to the as-applied challenges described above,
categorical challenges to whole classes of prison sentences also
have

had

very

limited

success

in

the

Supreme

Court.

With

respect to a categorical challenge, the reviewing court first
1

California’s three strikes law was designed “to ensure
longer prison sentences and greater punishment for those who
commit a felony and have been previously convicted of serious
and/or violent felony offenses.”
Cal. Penal Code § 667(b).
Under the version of the statute in effect at the time of Ewing,
a defendant who had been convicted of two or more prior
“serious” or “violent” felonies, and who committed any new
felony,
must
receive
“an
indeterminate
term
of
life
imprisonment.” 538 U.S. at 16 (citations and internal quotation
marks omitted).
In 2012, the three strikes law was amended by
Proposition 36, also known as the Three Strikes Reform Act,
which among other things required that a defendant’s new offense
must also be a “serious” or “violent” felony before a defendant
would qualify for a life sentence as a third strike offender.
See Cal. Penal Code § 1170.126 (allowing resentencing of
defendants pursuant to the Three Strikes Reform Act of 2012).
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determines whether a “national consensus against the sentencing
practice

at

issue”

is

evident

from

“objective

indicia

of

society’s standards, as expressed in legislative enactments and
state practice.”

Graham, 560 U.S. at 61.

Next, the court

exercises its “independent judgment whether the punishment in
question violates the Constitution.”
challenge
[class

“requires

of]

consideration

offenders

at

issue

in

Id.

of

Thus, a categorical

the

light

culpability
of

the

crimes

their

of

and

characteristics, along with the severity of the punishment in
question.”

Id. at 67.

Before
classes

2010,

of

the

death

disproportionate.
unconstitutional
offenders’
category

of

Supreme

sentences

had

as

deemed
being

only

certain

categorically

The Court held that capital punishment was
under

certain

underlying
the

Court

most

circumstances,

convictions
serious

fell

crimes,”

either

outside
see,

the

e.g.,

because
“narrow

Kennedy

v.

Louisiana, 554 U.S. 407, 420 (2008) (rape), Enmund v. Florida,
458 U.S. 782 (1982) (certain types of felony murder), or because
some

populations

responsibility

for

of

offenders

their

crimes,

had

diminished

personal

such

as

who

persons

are

intellectually disabled, see Atkins v. Virginia, 536 U.S. 304
(2002),

and

juveniles,

see

Roper

(2005).

10

v.

Simmons,

543

U.S.

551

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In recent years, the Court has extended its use of the
categorical
prison

analysis

sentences

to

a

very

involving

narrow

juvenile

group

of

non-capital

offenders.

Employing

a

categorical analysis, the Court has barred certain sentences of
life imprisonment without parole for juveniles.
U.S.

48

(prohibiting

life

imprisonment

See Graham, 560

without

parole

for

juveniles convicted of non-homicide crimes); Miller v. Alabama,
132

S.

Ct.

2455

(2012)

(barring

mandatory

life

imprisonment

without parole for juveniles convicted of homicide crimes).
Court

linked

its

“unprecedented”

willingness

to

reverse

The
non-

capital sentences to this narrow, special context of juvenile
offenders,

for

whom

“likene[d]

.

.

.

a

to

life

the

sentence

death

without

penalty

parole

itself,”

can

be

particularly

given the reality that a juvenile will spend more of his life in
prison than an adult.

Miller, 132 S. Ct. at 2466.

Within this limited framework for proportionality review of
as-applied
Cobler’s
wholesale

and

categorical

assertion

that

restriction

challenges,

our

Circuit

against

we

turn

improperly

proportionality

to

consider

imposes

review

for

a
any

prison sentence of less than life imprisonment without parole.
Cobler bases his assertion on the statements in some of our
decisions

cited

above,

which

suggested

that

proportionality

review is “not available,” “not appropriate,” or “not required”
for a term-of-years sentence.

See supra at 4.
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Cobler’s argument fails, however, because it discounts the
full import of our holding in United States v. Rhodes, 779 F.2d
1019

(4th

Cir.

1985).

It

is

well-established

law

in

this

Circuit that our first case to decide an issue controls later
consideration of that same issue, unless it is overruled by this
court sitting en banc or by the Supreme Court.

McMellon v.

United States, 387 F.3d 329, 334 (4th Cir. 2004).

And, on the

subject

of

challenges

judicial
to

review

available

for

term-of-years

sentences

proportionality

under

the

Eighth

Amendment, the earliest, controlling case in this Circuit is
Rhodes.
In

Rhodes,

asserted

two

defendants

as-applied

in

a

proportionality

drug

conspiracy

challenges

to

case
their

respective prison sentences of 50 and 75 years, arguing that the
Supreme Court’s decision in Solem entitled them to “extensive
proportionality review” of those sentences.

Id. at 1026.

The

Supreme Court held in Solem that the Eighth Amendment principle
of proportionality is applicable generally to the review of noncapital felony prison sentences, and that “no penalty is per se
constitutional.”
emphasized,
required

to

463

however,
engage

U.S.

that
in

“a

at

288-90.

reviewing

extended

analysis

The
court
to

Court
rarely

determine

sentence is not constitutionally disproportionate.”
290 n.16 (emphasis added).

further
will
that

be
a

463 U.S. at

Additionally, the Court explained
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that proportionality challenges to non-capital sentences rarely
will

be

successful,

due

to

the

“substantial

deference”

reviewing courts owe to Congress and to trial courts.

that

Id. at

289-90; see also Hutto, 454 U.S. at 374 (noting that for felony
crimes,

because

constitutional

there

is

distinction

“no

between

clear
one

way
term

to
of

make

years

any

and

a

shorter or longer term of years,” the “length of the sentence
actually imposed is purely a matter of legislative prerogative”
and “successful challenges to the proportionality of particular
sentences should be exceedingly rare”) (citations and internal
quotation marks omitted).
In view of this instruction in Solem, we held in Rhodes
that “extensive proportionality analysis” is required “only in
those

cases

involving

alternatively,
parole”

that

in
are

cases

life

sentences

involving

functionally

without

“terms

equivalent

“because of [the defendants’] ages.”

of
to

parole,”
years
life

or,

without
sentences

779 F.2d at 1028 (emphasis

added).

In considering the term-of-years sentences before us in

Rhodes,

we

further

explained

that

additional

proportionality

analysis generally is not required when “a simple matching of
the facts of a particular case against the Solem principles will
suffice [to establish the constitutionality of a given sentence]
without extended discussion.”

Id. at 1028-29.

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observation,

discussion”

of

that

Pg: 14 of 26

the

proportionality

need

often

for

will

be

an

“extended

obviated

by

a

“simple matching” of facts to law, essentially presaged Graham’s
directive that a reviewing court first consider whether there is
a

“threshold . . . inference”

of

“gross

disproportionality.”

560 U.S. at 60 (citation and internal quotation marks omitted).
Our

decision

in

Rhodes

is

also

consistent

with

the

Supreme

Court’s further instruction in Graham that, in the absence of
such a “threshold inference,” extended comparative analysis of a
sentence is unnecessary to justify its constitutionality.

Id.

Thus, in contrast to some of our later decisions, Rhodes did not
hold that judicial review of proportionality challenges to termof-years

sentences

is

“not

available,”

“not

appropriate,”

or

“not required.”
Under the first-in-time precedential authority of Rhodes,
any

later

decisions

in

this

Circuit

that

imprecisely

have

characterized Rhodes’s discussion of proportionality review are
not controlling. 2

See McMellon, 387 F.3d at 334.

2

Thus, we take

Some of our colleagues already have observed that Ming
Hong’s statement that proportionality review is available only
in limited circumstances is not “good law,” although they have
expressed different opinions regarding the precise way to
resolve our conflicting cases. For example, some have suggested
that en banc review is necessary to resolve a conflict in our
cases.
See, e.g., United States v. Hashime, 722 F.3d 572, 574
(4th Cir. 2013) (Gregory, J., concurring in denial of reh’g en
banc).
Another colleague has expressed the view that in Polk
(Continued)
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the opportunity here to reaffirm the vitality of Rhodes and of
the cases that accurately have applied its holding.

See, e.g.,

United States v. Wellman, 663 F.3d 224, 231 (4th Cir. 2011)
(noting

the

observation

proportionality

in

analyses

only

are

Rhodes

that

required

in

“extensive
those

cases

involving life sentences without the possibility of parole,” and
that “lesser sentences that are clearly within the prerogative
of Congress and subject to imposition by a district court may be
disposed of swiftly”); Sutton v. Maryland, 886 F.2d 708, 712
(4th Cir. 1989) (doubting, based on Rhodes, whether using all of
the Solem factors in a proportionality analysis is necessary
where “[c]learly, the gravity of the [assault] offense and the
circumstances of the crime justify a fifteen year sentence”).
We further observe that our dictum in cases such as Ming
Hong

stands

in

conflict

with

proportionality jurisprudence.

the

Supreme

Court’s

modern

As the Court stated in Solem,

“no penalty is per se constitutional,” and even “a single day in

and
in
other
cases
since
Rhodes,
we
established
that
proportionality review of prison sentences less than life
imprisonment without parole is “not required” and therefore is
discretionary.
United States v. Hashime, 734 F.3d 278, 286-88
(4th Cir. 2013) (King, J., concurring).
However, because none
of these later cases purported to amplify the holding in Rhodes,
and because Rhodes articulated the law of this Circuit and
anticipated the Supreme Court’s adoption of a clear structure
for proportionality review in Graham, we regard Rhodes as the
touchstone for our analysis and need not consider the above
efforts to reconcile our later cases.
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prison may be unconstitutional in some circumstances.”
at 290.

463 U.S.

In Graham, the Court clarified that when a defendant

challenges

the

proportionality

of

a

term-of-years

sentence,

courts “must begin by comparing the gravity of the offense and
the severity of the sentence.”

560 U.S. at 60.

These decisions

afford constitutional protection to every prison sentence, and
compel

us

to

review

challenges

to

such

sentences

for

proportionality under the Eighth Amendment. 3
We therefore turn to consider the merits of Cobler’s asapplied

proportionality

challenge.

3

The

first

step

in

our

We disagree with our esteemed concurring colleague’s view
that revisiting our dictum in cases such as Ming Hong is
“unnecessary” because “[a] finding that proportionality analysis
is available is scarcely outcome determinative” given the
severity of Cobler’s crimes. Post at 25. Indeed, Ming Hong and
some of our other cases did not merely concern the applicability
of a mode of “analysis,” but wrongly suggested that any judicial
“review”
of
proportionality
challenges
“less
than
life
imprisonment without the possibility of parole” would be
foreclosed.
See Ming Hong, 242 F.3d at 532.
Such a sweeping
prohibition conflicts with our decision in Rhodes and “seems
plainly incorrect in light of the Supreme Court’s observation in
Solem that ‘no penalty is per se constitutional,’” as one of our
sister circuits already has observed. United States v. Kidder,
869 F.2d 1328, 1333 n.5 (9th Cir. 1989) (quoting Solem, 463 U.S.
at 290). Our recognition of this conflict is necessary because
the Supreme Court’s statement in Graham that proportionality
review applies to “a sentence for a term of years,” 560 U.S. at
60, does not independently supersede our dictum in Ming Hong
limiting such review to life sentences, given that the Supreme
Court construes the phrase “term of years” to include a life
sentence. See, e.g., Graham, 560 U.S. at 70 (noting that Solem,
which involved a sentence of life imprisonment without parole,
was “the only previous case striking down a sentence for a term
of years as grossly disproportionate”).
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analysis requires us to decide whether a threshold comparison of
the

gravity

sentence

of

Cobler’s

leads

us

to

offenses

infer

that

disproportionate to his crimes.
Given
criminal

the

shocking

convictions,

substantiate

the

disproportionality.
Cobler’s
equivalent

120-year
to

a

and

we

Even
term
sentence

his

vile

that

assuming,

of

severity

sentence

conduct
Cobler

threshold

of

the

is

of

his

grossly

Id.

hold

required

and

has

inference
without

imprisonment
life

underlying

these

failed
of

gross

deciding,
is

imprisonment

to

that

functionally
without

the

possibility of parole, 4 we conclude that Cobler’s multiple child
pornography crimes are at least as grave as the drug offense in
Harmelin, which the Supreme Court deemed sufficiently egregious
to justify a similar sentence.

See 501 U.S. at 996.

4

The Supreme Court has not yet decided the question whether
a
lengthy
term-of-years
sentence
is,
for
constitutional
purposes, the same as a sentence of life imprisonment without
the possibility of parole.
See, e.g., Lockyer, 538 U.S. at 74
n.1 (noting the argument that it is “‘unrealistic’ to think that
a sentence of 50 years to life for [a 37-year-old defendant] is
not equivalent to life in prison without parole,” but stating
only that “[t]wo different sentences do not become materially
indistinguishable based solely upon the age of the persons
sentenced”); Bunch v. Smith, 685 F.3d 546, 552 (6th Cir. 2012)
(recognizing the controversy amongst state and federal courts
regarding whether Graham’s categorical rule “only applies to
juvenile nonhomicide offenders expressly sentenced to ‘life
without parole’” or also extends to juvenile offenders sentenced
to “consecutive, fixed terms resulting in an aggregate sentence
that exceeds the defendant’s life expectancy”).
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As a general matter, the prohibition of child pornography
derives

from

a

legislative

judgment

that

such

materials

are

harmful to the physiological, emotional, and mental health of
children, and that preventing the sexual exploitation of this
uniquely vulnerable group “constitutes a government objective of
surpassing importance.”
58

(1982).

conduct

of

New York v. Ferber, 458 U.S. 747, 757-

We

further

this

observe

nature

that

is

exceeded

circumstances of this case.

far

the

usual
by

severity

the

of

particular

Not only did Cobler possess large

quantities of child pornography that he downloaded and shared on
the

Internet,

fueling

the

public

consumption

of

materials

harmful to children, but he also created depictions of his own
sexual exploitation, molestation, and abuse of a four-year-old
child.

To make matters worse, Cobler was aware that his sexual

contact with the child could have caused the child to contract
Cobler’s serious communicable disease.

Far from being “one of

the most passive felonies a person could commit,” Solem, 463
U.S.

at

296,

Cobler’s

heinous

acts

exploited,

injured,

and

inflicted great harm on a most vulnerable victim.
Accordingly, we conclude that the relationship between the
gravity of Cobler’s offenses and the severity of his punishment
fails

to

create

the

threshold

inference

of

gross

disproportionality that is required to maintain a successful asapplied

challenge

to

a

criminal
18

sentence

under

the

Eighth

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We

also

observe

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that

other

courts

have

reached

similar results in child pornography cases in which sentences of
life imprisonment were imposed.

See, e.g., United States v.

McGarity, 669 F.3d 1218, 1255-57 (11th Cir. 2012) (holding that
life

sentences

pornography

ring

for

seven

were

not

defendants
grossly

involved

in

disproportionate

a

child

under

the

Eighth Amendment); United States v. Paton, 535 F.3d 829, 837-38
(8th Cir. 2008) (upholding constitutionality of a defendant’s
life sentence for five counts of producing child pornography).
We

conclude

lacks merit.

that

Cobler’s

categorical

challenge

likewise

The present case involves neither a sentence of

death nor a sentence of life imprisonment without parole for a
juvenile offender, the only two contexts in which the Supreme
Court

categorically

disproportionate.

has

deemed

sentences

unconstitutionally

Cf. Graham, 560 U.S. at 60-62.

To the extent

that this 28-year-old defendant argues that his developmental
immaturity

categorically

requires

that

he

be

treated

more

leniently as a juvenile, we reject that argument at the outset
given the complete lack of evidence in the record regarding any
national consensus about how immature adults should be sentenced
for child pornography crimes.

See United States v. Reingold,

731 F.3d 204, 215 (2d Cir. 2013) (stating that even if the
defendant was a “developmentally immature young adult” at the
time of the crime, that assessment “hardly supports categorical
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rule analysis” in the absence of any consensus regarding the
sentencing

of

immature

adults).

Moreover,

we

decline

to

substitute a subjective judgment about the relative immaturity
of a particular defendant for the objective age of minority that
the Supreme Court has used as the benchmark for its categorical
analysis

of

young

(stating

that

offenders.

even

though

See

“[t]he

Roper,

543

qualities

U.S.

that

at

574

distinguish

juveniles from adults do not disappear when an individual turns
18,” a line for death eligibility “must be drawn” at the age
“where

society

draws

the

line

for

many

purposes

between

childhood and adulthood”); see also Reingold, 731 F.3d at 215
(observing

that

criterion,

ill

rules”).

“immaturity,
suited

to

unlike

the

age,

is

pronouncement

a
of

subjective
categorical

Because we find no merit in Cobler’s as-applied and

categorical

proportionality

challenges,

we

conclude

that

his

sentence of 120 years’ imprisonment does not constitute cruel
and unusual punishment under the Eighth Amendment.

III.
Cobler also challenges the reasonableness of his sentence,
which

we

McManus,

review
734

for

F.3d

abuse

315,

317

of

discretion.

(4th

Cir.

United States, 552 U.S. 38, 51 (2007)).

2013)

United

States

(citing

Gall

v.
v.

We first assess whether

the district court committed any significant procedural error,
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such as “failing to calculate (or improperly calculating) the
[g]uidelines

range,

treating

the

[g]uidelines

as

mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a

sentence

based

on

clearly

erroneous

facts,

adequately explain the chosen sentence.”

or

failing

to

Gall, 552 U.S. at 51.

Next, we consider the substantive reasonableness of the sentence
based on the totality of the circumstances.

Id.

We do not detect any significant procedural error in this
case.

The district court properly determined the guidelines

range, considered and discussed the Section 3553(a) factors, and
articulated reasons for the sentence imposed.
nevertheless,

that

“statement

reasons”

Cobler

of

recorded

the

his

court
to

erred

the

“rape”

by

allegedly
of

his

Cobler maintains,
referring

erroneous

in

its

fact

that

four-year-old

victim.

However, based on our review of Cobler’s admissions to police
investigators, we reject Cobler’s argument and agree with the
government that the district court did not err in characterizing
Cobler’s sexual contact with the child as “rape.”
Having determined that the sentencing court did not commit
significant procedural error, we next evaluate whether Cobler’s
sentence

is

substantively

reasonable.

In

considering

the

substantive reasonableness of a sentence, we review whether the
district court abused its discretion in determining that the

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contained

in

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Section 3553(a)

supported

the

sentence.

See id. at 56.
A

sentence

that

falls

within

a

properly

guidelines range is presumptively reasonable.
Allen, 491 F.3d 178, 193 (4th Cir. 2007).
presumptive

reasonableness

of

his

calculated

United States v.

Cobler challenges the

within-guidelines

sentence,

arguing that the sentence was greater than necessary to address
the

sentencing

factors

set

forth

in

Section 3553(a).

In

particular, Cobler contends that the district court abused its
discretion by relying upon the factor of deterrence in setting
the sentence, especially given Cobler’s grave medical condition
and diminished life expectancy, and by ultimately fashioning a
sentence unique in its severity for the type of sex crimes at
issue in this case.

See 18 U.S.C. § 3553(a)(2) (referring to

the need “to afford adequate deterrence to criminal conduct” and
“to protect the public from further crimes of the defendant”);
18 U.S.C. § 3553(a)(6) (noting the “need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct”).
After
arguments

reviewing
fail

to

the
defeat

record,
the

we

conclude

presumption

that

that

guidelines sentence is substantively reasonable.

his

Cobler’s
within-

The district

court explicitly considered the need for Cobler’s sentence to
deter others from engaging in what the court considered “the
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imposing

a

and

term

egregious
of

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conduct.”

imprisonment

Cognizant

that

effectively

that

it

would

was
be

a

“life sentence,” the court reasoned that it could not “imagine a
situation where [the court] can allow the defendant back into
the

public”

given

that

the

case

involved

not

only

child

pornography, but actual sexual abuse of a four-year-old victim
that was aggravated by the defendant’s knowledge that the victim
could have become infected with a serious communicable disease.
We

cannot

conclude

that

the

district

discretion in reaching this decision.

court

abused

its

Furthermore, we observe

that other courts have upheld similar sentences.

See, e.g.,

United States v. Demeyer, 665 F.3d 1374, 1375 (8th Cir. 2012)
(affirming the reasonableness of a 120-year, within-guidelines
sentence composed of consecutive 30-year prison terms for sexual
exploitation of a minor, and noting that the district court did
not abuse its “discretion to impose concurrent or consecutive
sentences
ensure

for

that

the

multiple

[the

counts

defendant]

of

would

conviction
in

fact

in

order

serve

a

to

life

sentence”); United States v. Noel, 581 F.3d 490, 500-01 (7th
Cir.

2009)

(affirming

an

80-year,

below-guidelines

prison

sentence for production and possession of child pornography as
reasonable); United States v. Sarras, 575 F.3d 1191, 1219-21
(11th Cir. 2009) (affirming a within-guidelines sentence of 100
years’

imprisonment

as

substantively
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“[c]hild sex crimes are among the most egregious and despicable
of societal and criminal offenses”); United States v. Betcher,
534

F.3d

820,

reasonableness

of

827-28
a

(8th

750-year

Cir.

prison

2008)
sentence

(upholding
for

the

production,

receipt, and possession of child pornography); United States v.
Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006) (upholding the
reasonableness of a 140-year, within-guidelines prison sentence
for production and distribution of child pornography).
Accordingly, we conclude that the district court imposed a
sentence that reflects the nature and the circumstances of the
offense, as well as the other considerations of Section 3553(a).
We therefore hold that the sentence is substantively reasonable.

IV.
For these reasons, we affirm the district court’s judgment.

AFFIRMED

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DUNCAN, Circuit Judge, concurring in the judgment:
With great respect for the majority’s thoughtful opinion, I
am of the view that this appeal can (and therefore should) be
decided

more

simply

and

without

finding

conflict between two of our prior opinions.

an

irreconcilable

I therefore concur

in the judgment.
First, as the majority correctly acknowledges, its analysis
is

ultimately

unnecessary.

A

finding

that

proportionality

analysis is available is scarcely outcome determinative here,
because
justified

Cobler’s

parole.

even

a

conduct
life

was

sentence

sufficiently
without

grave

the

to

possibility

have
of

See supra p. 17.

Further, I remain unpersuaded that United States v. Rhodes,
779 F.2d 1019 (4th Cir. 1985), is so inconsistent with United
States v. Ming Hong, 242 F.3d 528 (4th Cir. 2001), as to meet
the

high

standard

of

“irreconcilable

conflict”

required

by

McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004).
Rhodes merely held that Solem v. Helm, 463 U.S. 277 (1983),
“requires an extensive proportionality analysis only in those
cases involving life sentences without parole.”
1028.

Strictly

speaking,

our

holding

in

Ming

779 F.2d at
Hong

that

“proportionality review is not available” for a term-of-years
sentence, 242 F.3d at 532, is not inconsistent with our holding

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that

extensive

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proportionality

analysis

is

not

required in such a case.
The majority points out that the panel in Rhodes went on to
apply a limited form of proportionality review to the sentences
at issue.
sentences

But it did so having assumed, arguendo, that the
were

equivalent

possibility of parole.
While
prior

I

cannot

precedent,

inconsistent

with,

life

sentences

without

the

See Rhodes, 779 F.2d at 1028.
agree

I

to

that

Ming

nevertheless

and

therefore

Hong

find

conflicts

with

our

it

to

be

clearly

superseded

by,

the

Supreme

Court’s holding in Graham v. Florida, 560 U.S. 48, 59-60 (2010)
(“[In] determining whether a sentence for a term of years is
grossly

disproportionate

.

.

.

.

[a]

court

must

begin

by

comparing the gravity of the offense and the severity of the
sentence.”)
I therefore respectfully concur in the judgment.

26