                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Argued January 23, 2007
                             Decided January 31, 2007

                                       Before

                          Hon. JOEL M. FLAUM, Circuit Judge

                          Hon. MICHAEL S. KANNE, Circuit Judge

                          Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-1913

UNITED STATES OF AMERICA,                       Appeal from the United States
              Plaintiff-Appellee,               District Court for the Southern
                                                District of Indiana, Evansville
      v.                                        Division

JEFFREY L. SCOTT,                               No. 3:04CR00014-003
             Defendant-Appellant.
                                                Richard L. Young,
                                                Judge.

                                     ORDER


       A jury found Jeffrey Scott guilty of conspiring to possess methamphetamine.
See 21 U.S.C. §§ 846, 841(a)(1). The district court sentenced him to the mandatory
minimum sentence of life in prison. See 21 U.S.C. § 841(b)(1)(A)(viii). Scott argues
that his life sentence is grossly disproportionate to his crime and thus violates the
Eighth Amendment. The precedents of both the Supreme Court and this court
foreclose this argument; therefore, we affirm.

      Scott and seven others were part of a conspiracy involving more than 500
No. 06-1913                                                                  Page 2

grams of a mixture containing methamphetamine. The drug ring was discovered
after detectives in Evansville, Indiana, conducted a controlled purchase of
methamphetamine from one of the conspirators, who eventually led officers to the
others. All of his co-defendants pleaded guilty to the conspiracy charge, but Scott
chose to fight it at trial. In March 2006 a jury found him guilty. Life imprisonment
was mandatory because of the drug quantity and Scott’s two prior felony drug
convictions. See 21 U.S.C. § 841(b)(1)(A)(viii) (mandating life imprisonment for
defendant having two prior felony drug convictions who commits violation
of § 841(a)(1) involving at least 500 grams of mixture containing
methamphetamine).

        Scott urges us to adopt the proportionality approach articulated in Justice
Kennedy’s concurring opinion in Harmelin v. Michigan, 501 U.S. 957 (1991), and to
hold that his sentence is unconstitutional. In Harmelin, a majority of the Supreme
Court rejected the petitioner’s claim that his mandatory sentence of life
imprisonment was grossly disproportionate to his crime and thus cruel and
unusual, but the Justices diverged in arriving at this conclusion. Id. at 955-56.
Justice Scalia, writing for himself and Chief Justice Rehnquist, concluded that the
punishment was not cruel and unusual because, in their view, the Eighth
Amendment does not contain a proportionality principle in noncapital cases. See id.
at 994. Justice Kennedy, on the other hand, wrote in a concurring opinion joined by
Justices O’Connor and Souter that the Court’s precedents recognize a “narrow
proportionality principle” having imprecise contours. Id. at 996-98. He went on to
list four principles that aid courts in conducting proportionality review: (1) the
legislature is best suited to determining what punishments should be imposed for
various crimes; (2) the Eighth Amendment does not mandate any particular theory
of sentencing; (3) given the nature of the federal system, a wide range of sentences
can be constitutionally permissible; and (4) objective factors, especially whether a
death sentence was imposed, should be an important factor in proportionality
review. Id. at 998-1001.

       Scott requests that we adopt Justice Kennedy’s approach, but does not
acknowledge that both the Supreme Court and this court already conduct
proportionality review in noncapital cases. See Ewing v. California, 538 U.S. 11,
20-24 (2001); United States v. Gross, 437 F.3d 691, 692-94 (7th Cir. 2006); Henry v.
Page, 223 F.3d 477, 482 (7th Cir. 2000). Moreover, proportionality review would not
show Scott’s sentence to be unconstitutional. Even though Justice Kennedy
accepted limited proportionality review in Harmelin, he rejected the petitioner’s
argument that a mandatory life sentence was disproportionate to the possession of
650 grams of cocaine. 501 U.S. at 1004. After noting the detrimental effects that
addictive drugs have on society, Justice Kennedy held that the gravity of the
petitioner’s offense, compared to his sentence, did not give rise to an inference of
gross disproportionality. Id. at 1004-05.
No. 06-1913                                                                   Page 3

       Although nowhere acknowledged by Scott, we have held after Harmelin that
mandatory minimum sentences of life imprisonment for drug offenses committed in
violation of § 841(a)(1) do not violate the Eighth Amendment. See, e.g., United
States v. Cannon, 429 F.3d 1158, 1161 (7th Cir. 2005); United States v. Kramer, 955
F.2d 479, 488 (7th Cir. 1992); accord United States v. Jensen, 425 F.3d 698, 708 (9th
Cir. 2005). Accordingly, Scott’s argument that his sentence is unconstitutional
cannot be accepted. As an aside, Scott does not dispute the existence of his earlier
convictions, but repeatedly asserts that, because his sentences for the two
convictions ran concurrently, he had “only one opportunity at rehabilitation.”
Because this is so, Scott argues, the statutory purpose of removing unrepentant
repeat offenders from circulation would not be served in this case. We have
effectively rejected this argument. See, e.g., Cannon, 429 F.3d at 1160-61
(explaining that § 841(b) limits the discretion of sentencing courts, which “must
implement the legislative decision whether or not they deem the defendant’s
criminal record serious enough”).

                                                                        AFFIRMED.
