                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 14a0234p.06

                 UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


 UNITED STATES OF AMERICA,                            ┐
                                Plaintiff-Appellee,   │
                                                      │
                                                      │       No. 13-5714
       v.                                             │
                                                       >
                                                      │
 EDWARD L. YOUNG,                                     │
                             Defendant-Appellant.     │
                                                      ┘
                       Appeal from the United States District Court
                  for the Eastern District of Tennessee of Chattanooga.
                No. 1:12-cr-00045—Curtis L. Collier, Chief District Judge.
                                 Argued: March 13, 2014
                         Decided and Filed: September 11, 2014

               Before: GRIFFIN, WHITE, and STRANCH, Circuit Judges.

                                   _________________

                                       COUNSEL

ARGUED: Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF
LAW, Columbus, Ohio, for Amicus Curiae. Christopher T. Varner, EVANS HARRISON
HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED
STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee. ON BRIEF:
Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for
Appellant. Christopher D. Poole, UNITED STATES ATTORNEY’S OFFICE, Chattanooga,
Tennessee, for Appellee. Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ
COLLEGE OF LAW, Columbus, Ohio, Candace C. Crouse, PINALES STACHLER YOUNG
BURRELL & CROUSE CO., L.P.A., Cincinnati, Ohio for Amicus Curiae.

       The court delivered a PER CURIAM opinion. STRANCH, J. (pp. 13–19), delivered a
separate concurring opinion.




                                             1
No. 13-5714                          United States v. Young                              Page 2

                                      _________________

                                           OPINION
                                      _________________

       PER CURIAM. Edward Young received a mandatory fifteen-year prison sentence for
the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells
while helping a neighbor sell her late husband’s possessions. When he eventually discovered
them, he did not realize that his legal disability against possessing firearms—resulting from
felonies committed some twenty years earlier—extended to ammunition.               See 18 U.S.C.
§ 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory
fifteen-year sentence.

       Young now asks this court to conclude that the ACCA, as applied to him, is
unconstitutional under the Eighth Amendment because the gravity of his offense is so low as
compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment
because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s
sentence.

                                      I. BACKGROUND

       In 2010 or 2011, Edward Young helped a neighbor sort and sell her late husband’s
possessions. When he discovered a box of seven shotgun shells in the collection, he stored the
shells in a drawer where they would be safe from his four children. Because Young had
previously been convicted of a number of felonies, all burglary-related offenses between
1990 and 1992, it was a crime for him to possess ammunition. 18 U.S.C. § 922(g)(1). He was
unaware of this legal disability.

       Police officers later showed up on Young’s doorstep investigating recent burglaries at an
auto repair shop and a storage building. During the consent search, officers found several items
reported stolen, though it is unclear whether the items were associated with the recent burglaries.
They also found the box of seven shotgun shells in a drawer, which Young readily admitted to
possessing.
No. 13-5714                                 United States v. Young                                       Page 3

        The government charged Young with a single count of being a felon in possession of
ammunition in violation of 18 U.S.C. § 922(g)(1). The statute carries a fifteen-year mandatory
minimum sentence for anyone who, like Young, has at least three prior felony convictions.
18 U.S.C. § 924(e)(1).1

        Young pleaded guilty to being a felon in possession of ammunition and mounted a
constitutional challenge at sentencing.            According to him, a fifteen-year ACCA mandatory
minimum sentence, as applied to him, would violate the Eighth Amendment because it is grossly
disproportionate to the offense he committed, an offense of very low culpability or risk of harm.
For support, he argued that his advisory Guidelines range, absent the ACCA and associated
armed career criminal guideline, would have been only 10-16 months. He also argued that the
ACCA, as applied to him, would violate the Fifth Amendment Due Process Clause because he
did not have fair notice of the prohibition against felons possessing ammunition.

        The district court expressed concern about the fairness of the punishment but determined
that it had no discretion in sentencing. Young received the mandatory fifteen-year sentence, and
now appeals.

                                                II. ANALYSIS

        We review these constitutional challenges to Young’s sentence de novo. United States v.
Moore, 643 F.3d 451, 454 (6th Cir. 2011).

    A. Eighth Amendment

        Young argues that the ACCA, as applied to him, violates the Eighth Amendment because
it imposes on him a harsh sentence—one normally reserved for far more dangerous criminals—

        1
           Tennessee authorities also filed state charges against Young for burglary, theft, vandalism, and
contributing to the delinquency of a minor for events related to the burglary investigation. These charges were
pending in 2013 when Young was sentenced, but the government informs us that the charges were dismissed. The
government asks us to consider facts related to the state charges, including Young’s alleged guilt and an alleged
confession. This information is not in the record, the district court made no findings as to whether Young
committed the offenses or confessed to them, and an unsupported statement by a prosecutor is not a record fact. As
such, we will not consider the allegations. See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (noting
that “[a]ppellate courts generally will not consider facts outside the record developed before the district court”
unless the fact is a proceeding in another court appropriate for judicial notice (internal quotation marks omitted)).
Nor will we consider the government’s contention that state authorities asked it to prosecute Young because this is
also not in the record.
No. 13-5714                           United States v. Young                               Page 4

for possessing seven shotgun shells in a drawer, a crime he describes as a mere technical
violation of the statute.      Comparing his crime to overtime parking, which could not
constitutionally be punishable by life imprisonment, see Rummel v. Estelle, 445 U.S. 263, 288
(1980), he argues that a mandatory fifteen years is grossly disproportionate under the
circumstances.

       The government asks that we simply defer to the legislative mandate in the ACCA, which
plainly sweeps Young’s possession of shotgun shells into the same punishment category as the
possession of bombs, missiles, or automatic weapons.            See 18 U.S.C. §§ 921(a)(3)–(4),
922(g)(1), 924(e)(1).    It is true that substantial deference is due to legislative sentencing
schemes.    Ewing v. California, 538 U.S. 11, 30 (2003) (noting that “rational legislative
judgment[s] [are] entitled to deference”); Harmelin v. Michigan, 501 U.S. 957, 998–99, 1001
(1991) (Kennedy, J., concurring in part and concurring in the judgment) (discussing the “primacy
of the legislature” in making penological judgments); Solem v. Helm, 463 U.S. 277, 290 (1983)
(“Reviewing courts . . . should grant substantial deference to the broad authority that legislatures
necessarily possess . . . in sentencing convicted criminals.”). Amicus counsel suggests that
because these cases all involved a review of state sentences, and because the framers originally
intended to limit the actions of Congress and not the states, less deference is due to Congress
than to state legislatures. See generally Michael J. Zydney Mannheimer, Cruel and Unusual
Federal Punishments, 98 Iowa L. Rev. 69, 69–131 (2012) (arguing that federal sentences should
be reviewed by comparing them to state sentences rather than giving them the same deference
given to states out of federalism concerns); John F. Stinneford, Rethinking Proportionality Under
the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899, 943–44 (2011) (explaining that
the Bill of Rights was adopted to require the new federal government to recognize the
fundamental common law rights of citizens, particularly relating to criminal rights).               Cf.
Robinson v. California, 370 U.S. 660, 666 (1962) (applying the Eighth Amendment to the states
for the first time, through the Due Process Clause of the Fourteenth Amendment); Louisiana ex
rel. Francis v. Resweber, 329 U.S. 459, 462 (1947) (assuming without deciding that the Eighth
Amendment is applicable to the states through the Fourteenth Amendment). Whether amicus
counsel is correct as to the amount of deference owed to Congress as compared to the states, it is
correct that Congressional intent is not the end of the analysis of a constitutional claim. See, e.g.,
No. 13-5714                         United States v. Young                             Page 5

Rummel, 445 U.S. at 284 (“Texas is entitled to make its own judgments as to [criminal
sentencing],” subject to the strictures of the Eighth Amendment). A legislative mandate does not
trump the Constitution.

       To determine whether a non-capital sentence falls outside the bounds of the Eighth
Amendment’s “evolving standards of decency,” Graham v. Florida, 560 U.S. 48, 58 (2010)
(internal quotation marks omitted), this court is instructed to use what has become known as the
“narrow proportionality principle,” id. at 59–60 (internal quotation marks omitted). Under this
principle, “‘punishment for crime should be graduated and proportioned to [the] offense,’” id. at
59 (quoting Weems v. United States, 217 U.S. 349, 367 (1910)), but the proportionality required
“‘forbids only extreme sentences that are “grossly disproportionate” to the crime,’” id. at 60
(quoting Harmelin, 501 U.S. at 997, 1000–01 (Kennedy, J., concurring in part and concurring in
the judgment)).

       The test is rarely met. Cf. Ewing, 538 U.S. at 22 (“[S]uccessful challenges to the
proportionality of particular sentences should be exceedingly rare.” (internal quotation marks
omitted)). The Supreme Court has overturned only a small number of non-capital sentences on
Eighth Amendment grounds. In 1910, the Court struck down a sentence of twelve years’
imprisonment, in chains and at hard and painful labor, for falsifying a public document. Weems,
217 U.S. at 357, 365–67, 381. The Court considered the punishment degrading and harsh as
compared to an offense that could be committed “though he gain nothing and injure nobody.”
Id. at 365–66. Not until over seventy years later did the Court hold unconstitutional another
sentence: life without parole for passing a $100 bad check based on the defendant’s multiple
prior convictions. Solem, 463 U.S. at 296–97, 303. The Court observed that the sentence,
generally reserved for far more serious offenses, was grossly disproportionate to the crime, “one
of the most passive felonies a person could commit,” involving no violence or threat of violence.
Id. at 296–99, 303 (internal quotation marks omitted). In reaching this decision, the Court noted
that the defendant’s previous offenses triggering the state recidivism rule, including burglary,
were also non-violent and minor in nature. Id. at 296–97. Finally, the Court has held that life
without parole for juvenile non-homicide offenses is categorically grossly disproportionate.
Graham, 560 U.S. at 74.
No. 13-5714                         United States v. Young                              Page 6

       While this court has considered as-applied Eighth Amendment challenges to the ACCA
mandatory minimum a number of times—mostly in cases involving the possession of firearms—
we have never found sufficient disproportionality in these cases. See, e.g., United States v.
Banks, 679 F.3d 505, 506, 507–08 (6th Cir. 2012) (rejecting categorical claim that ACCA
fifteen-year minimum sentence for being a felon in possession of a firearm was unconstitutional
where the defendant committed the prior offenses as a minor); Moore, 643 F.3d at 454–55
(rejecting an Eighth Amendment challenge to the ACCA minimum because the defendant’s prior
offenses were violent crimes and because he was seen with a gun while beating his girlfriend on
the night of the arrest); United States v. Johnson, 22 F.3d 674, 677, 682–83 (6th Cir. 1994)
(rejecting challenge to fifteen-year ACCA sentence for being a felon in possession of a firearm
and ammunition); United States v. Warren, 973 F.2d 1304, 1305–06, 1311 (6th Cir. 1992)
(holding that the fifteen-year sentence was not grossly disproportionate to the offense of being a
felon in possession of a firearm). In an unpublished case, this court has also rejected, without
proportionality review, an as-applied challenge where the defendant was convicted under the
ACCA solely for possessing ammunition. United States v. Walker, 506 F. App’x 482, 489–90
(6th Cir. 2012). There, the defendant had been convicted for possessing thirteen 9 mm rounds of
ammunition, the ammunition was discovered during a drug-related investigation, and he was
simultaneously prosecuted on state drug charges. Id. at 483.

       The government suggests that because this court has never concluded that a particular
application of the ACCA mandatory minimum violated the Eighth Amendment, this court is
bound to reach the same result.       That is not necessarily so.      A defendant’s particular
circumstances are relevant to an as-applied Eighth Amendment claim and could render a
sentence unconstitutional.   Graham, 560 U.S. at 59          (“[T]he Court considers all of the
circumstances of the case to determine whether [a term-of-years] sentence is unconstitutionally
excessive.”); see also Solem, 463 U.S. at 291–94 (discussing the fact-specific, objective factors
to be considered in an Eighth Amendment proportionality analysis); Moore, 643 F.3d at 454–55
(engaging in fact-specific proportionality review despite this court’s prior holding that mental
disability did not categorically render a mandatory sentence unconstitutional). “[N]o penalty is
per se constitutional. . . . [A] single day in prison may be unconstitutional in some
circumstances.” Solem, 463 U.S. at 290 (internal citation omitted).
No. 13-5714                          United States v. Young                              Page 7

       The Supreme Court has identified three “objective criteria” for assessing proportionality:
the gravity of the offense as compared to the harshness of the penalty; the sentences imposed on
others in the same jurisdiction; and the sentences imposed for the same offense in other
jurisdictions. Solem, 463 U.S. at 292. But, in most cases, a gravity-versus-harshness analysis
will answer the question; only if we reach an initial inference of gross disproportionality must we
consider the other criteria. Harmelin, 501 U.S. at 1004–05; Graham, 560 U.S. at 60. The
gravity of an offense depends heavily on the nature and circumstances of a particular case,
including the harm or risk of harm, magnitude of the crime, degree of culpability, motive, and
any other facts specific to the offense. Solem, 463 U.S. at 291, 293–94.

       The harm caused, and even the risk of harm caused, was extremely low in Young’s case.
Indeed, under the facts as they were found by the district court, we cannot say that there was any
risk of harm or violence inherent in Young’s crime. See Begay v. United States, 553 U.S. 137,
146 (2008) (noting that the ACCA was designed to punish the special danger created when those
most likely to pull the trigger possess a gun). Young possessed seven shotgun shells in a drawer,
a crime that involved no violence and was committed “though he gain[ed] nothing and injure[d]
nobody.” See Weems, 217 U.S. at 365. He owned no compatible gun, and there is no evidence
that he intended to use the shells in a crime, had ever used any weapon in any crime, or would
provide the shells to someone who would use them in a crime. Cf. Moore, 643 F.3d at 455
(rejecting Eighth Amendment challenge, in part, because the defendant possessed a gun while
beating his girlfriend). Young says that he intended to return the shells to the widowed neighbor,
and no one has accused the widow of being a violent or dangerous criminal.

       The magnitude of Young’s crime was low, as was his culpability and motive. On the
well-accepted scale of criminal culpability, ranging from negligent and reckless acts to malicious
acts, Young’s act of innocently acquiring and knowingly continuing to possess ammunition
entails the lowest level of culpability that could have rendered him guilty of the crime. See
United States v. McCormick, 517 F. App’x 411, 414 (6th Cir. 2013) (“Section 924(a)(2)
. . . requires that any violation of section 922(g)(1) be ‘knowing.’”); see also Solem, 463 U.S. at
No. 13-5714                                United States v. Young                                      Page 8

293. He acquired the shotgun shells passively, he kept them without any criminal motive, and
his knowledge extended only to his possession and not to its illegality.2

        Young’s Achilles heel, however, is his recidivism. As the Supreme Court recognized in
Ewing, legislatures are permitted to impose more severe penalties on those who have not been
deterred from criminal behavior by traditional punishments. 538 U.S. at 24–28. In such cases,
“we must place on the scales not only [the defendant’s] current felony, but also his long history
of felony recidivism.” Id. at 29. In other words, the gravity of the present offense is viewed in
light of the defendant’s previous offenses. Id. For example, in Ewing, the defendant had
previously been convicted of numerous felonies and misdemeanors, including robbery and
residential burglaries; had committed many offenses while on probation for previous ones; and
had served nine terms of imprisonment. Id. at 30. This rendered the present offense of stealing
$1,200 worth of merchandise sufficiently grave to warrant a sentence of 25 years to life under
California’s three-strikes law. Id. at 28, 30; see also Moore, 643 F.3d at 455 (considering
defendant’s prior offenses of aggravated burglary and distribution of crack cocaine in gravity
analysis of firearm possession offense). Of course, recidivism does not render any sentence
constitutional; the offense still must be sufficiently grave in combination with the recidivism.
See Solem, 463 U.S. at 279–80, 296–97, 303 (striking down a life sentence without the
possibility of parole for felony of passing a bad check after committing six previous “relatively
minor” felonies, including burglary).

        Young’s recidivism, resulting from numerous felony convictions roughly twenty years
prior to his present offense, increases the gravity of his offense under Ewing and Solem. These
prior triggering offenses include four counts of burglary and seven counts of aggravated
burglary. See Tenn. Code. Ann. § 39-14-403. At least some of these crimes involved theft of
weapons and ammunition.            These prior felonies were serious enough to qualify as violent
felonies under the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii). On the other hand, these offenses
occurred long ago, with Young’s most recent release from prison in 1996. In the meantime, his
only conviction for any crime was misdemeanor assault in 2005, for which he spent no time in

        2
           Young argues that his lack of knowledge of illegality renders his crime under § 922(g)(1) one of strict
liability. We discuss this characterization in more detail under the Fifth Amendment analysis, but it is beside the
point for the Eighth Amendment analysis because we agree that Young’s culpability was low.
No. 13-5714                           United States v. Young                              Page 9

jail. But the remoteness is offset somewhat by the offense conduct listed in the PSR. We make
no findings as to whether Young actually committed new burglaries in 2011, but it is relevant
that the ammunition was found during a search for stolen tools and that several stolen items were
found in Young’s house.

       Having reviewed the gravity of Young’s offense, the court must now compare it to the
length and other terms of the sentence, generally assuming that a longer sentence is harsher, to
determine whether the sentence is grossly disproportionate. Solem, 463 U.S. at 294–95. There
can be no question that a fifteen-year mandatory minimum sentence is harsh and severe. See
Moore, 643 F.3d at 456 (“Fifteen years is by any measure a considerable amount of time.”).
Courts have found shorter sentences unconstitutional, but only in certain circumstances. For
non-recidivist offenders, a twelve-year sentence in chains and hard labor was too harsh for
falsifying public documents, Weems, 217 U.S. at 365–67, 382, but a mandatory life sentence was
not too harsh for possessing a large amount of cocaine because the crime posed a serious health
risk to society. Harmelin, 501 U.S. at 1002–03 (Kennedy, J., concurring in part and concurring
in the judgment). For recidivist offenders, the line is different. A life sentence is too harsh for a
recidivist felon who passed a bad check. Solem, 463 U.S. at 296, 303. But a twenty-five-year
sentence is not too harsh for a recidivist felon who stole $1,200 worth of merchandise, Ewing,
538 U.S. at 28–31, and a fifteen-year sentence is not too harsh for a recidivist felon who
possessed a firearm while beating his girlfriend, Moore, 643 F.3d at 455–56. While Young’s
fifteen-year sentence may be disproportionate to his offense in the abstract, our understanding of
this precedent compels us to conclude that it is not grossly disproportionate when taking his
recidivism into account.

       Because Young’s sentence is not grossly disproportionate to his crime under Ewing and
Solem, we must ultimately reject his Eighth Amendment claim. See, e.g., United States v. Nagy,
No. 13-4151, ___ F.3d ___, 2014 WL 3632362, at *5 (6th Cir. July 24, 2014) (“The striking and
troublesome harshness [of a fifteen-year sentence for felon in possession of a firearm] . . . is but
a particularly clear example of our sometimes difficult duty to apply the policy choices of
Congress, rather than our own.”).
No. 13-5714                            United States v. Young                         Page 10

    B. Fifth Amendment


        Because he lacked notice of the § 922(g)(1) bar against possession of ammunition by
felons, Young claims that the ACCA is unconstitutional as applied to him under the Fifth
Amendment rule that all citizens are entitled to be informed of what conduct the law prohibits.
See Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).

        According to Young, notice cannot properly be imputed to him because felons and the
general public lack knowledge of the ammunition prohibition. As evidence, he argues that
generic judgment forms and plea colloquies notify new felons of the legal prohibition against
possession of firearms but not ammunition. His judgment in the present case, for example,
specifies that he “shall not possess a firearm, destructive device, or any other dangerous weapon”
but makes no mention of ammunition. While sentencing him, the district court below repeated
the same prohibition, as many district courts do, with no mention of the prohibition against
ammunition.

        Young also argues that notice cannot be imputed to him because he did not have specific
intent to commit a criminal act. He refers to § 922(g) as a “strict liability offense” because the
knowledge element extends to possession but not to the illegality of possession. See, e.g., Bryan
v. United States, 524 U.S. 184, 187–88 (1998) (explaining that Congress added a “scienter
requirement” for most unlawful acts under § 922); McCormick, 517 F. App’x at 414 (“Section
924(a)(2) . . . requires that any violation of section 922(g)(1) be ‘knowing’” but the knowledge
requirement does not extend to the illegality of possession); United States v. Davis, 27 F. App’x
592, 599–600 (6th Cir. 2001) (suggesting that the knowledge requirement refers to the element
of possession, not to the legal disability).

        Young’s suggestion that general knowledge and specific criminal intent are necessary to
impute notice to a criminal defendant is based on a misreading of case law. In Papachristou, one
of Young’s primary sources, the Supreme Court held that a vagrancy statute was unconstitutional
as applied to specific individuals because the defendants were not likely to be alerted to the
regulation because they did not have specific intent to commit unlawful acts, and because the
ordinance was written in such an archaic manner that few would understand it. 405 U.S. at 162–
No. 13-5714                           United States v. Young                             Page 11

63. In other words, specific intent to commit a criminal act or actual knowledge can suffice for
notice where the statute is unclear. See, e.g., United States v. Caseer, 399 F.3d 828, 839 (6th Cir.
2005) (“[T]he requirement of specific intent in this case mitigates any constitutional infirmity
resulting from the vagueness of the [statute].”); United States v. Baker, 197 F.3d 211, 219 (6th
Cir. 1999) (holding that even if the § 922(g)(8) firearms prohibition is obscure and vague, there
was no notice violation because the defendant received adequate warning on his domestic
violence protection orders). But unless the statute is so vague, technical, or obscure “that it
threatens to ensnare individuals engaged in apparently innocent conduct,” we apply the
“centuries-old maxim that ‘ignorance of the law is no excuse’” and presume notice despite a
defendant’s ignorance-in-fact. Id. at 218–19; see also Papachristou, 405 U.S. at 162–63; United
States v. Haire, 89 F. App’x 551, 555–56 (6th Cir. 2004) (applying the presumption of notice to
a felon convicted under Colorado’s prohibition against possession of firearms); United States v.
Napier, 233 F.3d 394, 397–99 (6th Cir. 2000) (holding that language in § 922(g)(8) gives
sufficient notice of the prohibition against the possession of firearms by those subject to a
domestic violence order); United States v. Giles, 640 F.2d 621, 627–29 (5th Cir. Unit A March
1981) (rejecting claim that firearms conviction was unconstitutional due to defendant’s
ignorance of the law because § 922(h) is clear on its face).

       Young may have believed that his possession was innocent conduct, but he does not
argue that the ACCA is too technical or obscure to impart legal notice had he read it. Nor could
he, as the language in § 922(g) plainly states that “[i]t shall be unlawful for any person—(1) who
has been convicted in any court of, a crime punishable by imprisonment for a term exceeding
one year . . . [to] possess . . . any firearm or ammunition.” It would be preferable for both state
and federal courts to expressly inform felons of their legal disability; where a statute specifically
targets a subclass of citizens, those citizens may be unlikely to learn of the prohibition from
others. Cf. Caseer, 399 F.3d at 836 (keeping in mind “the common sense judgment that people
do not review copies of every law passed.” (internal quotation marks omitted)). Nonetheless, the
Fifth Amendment notice requirement is satisfied by the statute, and we must reject Young’s Fifth
Amendment claim.
No. 13-5714                       United States v. Young                           Page 12

                                   III. CONCLUSION

      In conclusion, based on our binding precedent, we affirm Young’s fifteen-year sentence.
No. 13-5714                         United States v. Young                           Page 13

                                     _________________

                                      CONCURRENCE
                                     _________________

       STRANCH, Circuit Judge, concurring. Edward Young received a mandatory fifteen-year
prison sentence for the crime of having in a drawer in his home seven shotgun shells belonging
to his widowed neighbor. Young was then caught in the dragnet of the Armed Career Criminal
Act (ACCA) which imposes the same minimum sentence on a person who acquires shotgun
shells passively as it does on a recently-released felon who possesses automatic weapons. See
18 U.S.C. §§ 921(a)(3)(A), 922(g)(1), 924(e)(1).

       The district court did not make the sentencing decision lightly. Judge Collier compared
Young’s story to a Charles Dickens novel and noted that “[a] lot of people think these laws are
unfair.” In the end, however, Judge Collier determined that binding precedent left him with no
discretion in the case. He sentenced Young to the mandatory fifteen-year sentence, suggested
that “this is an issue the appellate courts and perhaps the Supreme Court will one day address”
and encouraged Young to appeal.

       Precedent compels us to conclude that this sentence does not violate the Constitution.
But holding that a sentence is constitutional does not make the sentence just. As our former
colleague representing the Judicial Conference described it, “[m]andatory minimum sentences
mean one-size-fits-all injustice.” Statement on Behalf of the Judicial Conference of the United
States from U.S. District Judge Paul Cassell before the House Judiciary Committee
Subcommittee on Crime, Terrorism, and Homeland Security, 19 Fed. Sent. R. 344, 344–47
(2007) (declaring widespread and judicial opposition to the use of mandatory minimum
sentencing). This is not a newly minted or passing concern—since the early 1950s, the Judicial
Conference has expressed its consistent and insistent opposition to mandatory minimum
sentences. Id.

       Even if we put aside the well-recognized concerns calling into question the propriety and
effectiveness of mandatory minimums as a whole, problems with the ACCA’s over-inclusive
provisions remain.    The concept behind mandatory minimum sentencing was to identify
No. 13-5714                         United States v. Young                            Page 14

dangerous felons likely to cause public harm and achieve the important goal of removing them
from society. For an individual not posing that level of dangerousness, district court judges most
familiar with that particular defendant were to retain the discretion to impose a more appropriate
sentence. The disproportionately broad sweep of the ACCA betrays that core purpose and in
doing so undercuts public confidence in our national commitment to a fair and equitable criminal
justice system.

       Throughout the ACCA’s long history of enactments and revisions, “Congress focused its
efforts on career offenders—those who commit a large number of fairly serious crimes . . . and
who, because they possess weapons, present at least a potential threat of harm to persons.”
See generally, Taylor v. United States, 495 U.S. 575, 587–88 (1990) (discussing history of
enactment and revisions of the ACCA); accord Begay v. United States, 553 U.S. 137, 146 (2008)
(noting that the purpose of the ACCA is to focus on the “special danger” created when violent
criminals or drug traffickers possess a gun).     It does this, in part, by creating mandatory
sentences of at least fifteen years for those who violate the statute while committing or after
having committed drug crimes or crimes of violence, indicating that Congress sought to remove
the most dangerous individuals from society. See 18 U.S.C. §§ 924 (e)(1). But by including the
mere possession of any ammunition, no matter how or why acquired, and by giving no regard to
the remoteness of the triggering felonies, Congress has imposed an extreme sentence for what
may well be innocent conduct, conduct posing no more risk of harm than possessing an antique
gun. See 18 U.S.C. § 921(a)(3) (excluding antique firearms from prohibited firearms); United
States v. Yirkovsky, 259 F.3d 704, 705, 707 n.4 (8th Cir. 2001) (noting that the fifteen-year
ACCA sentence was “extreme” as applied to a defendant convicted for possessing a single bullet
that he found while removing carpet in payment for his rent). Congress has imposed the same
fifteen-year sentence on a man who acquired shotgun shells while helping a widow as that
imposed on a recent offender who possesses a semi-automatic handgun with a silencer—a
weapon synonymous with criminality. See 18 U.S.C. §§ 921(a)(3)(C), 922(g)(1), 924(e)(1).

       Two objective criteria—sentences imposed on others in the federal jurisdiction and
sentences imposed for the same offense in other jurisdictions—as well as common sense, suggest
that the ACCA dragnet is too broad. See Harmelin, 501 U.S. at 1005. Speaking on behalf of the
No. 13-5714                           United States v. Young                             Page 15

Judicial Conference, Judge Cassell provided a telling example of inequities generated by
mandatory minimum sentences as compared to other sentences:

       Mandatory minimum sentences produce sentences that can only be described as
       bizarre. For example, recently I had to sentence a first-time offender, Mr. Weldon
       Angelos, to more than 55 years in prison for carrying (but not using or displaying)
       a gun at several marijuana deals. The sentence that Angelos received far
       exceeded what he would have received for committing such heinous crimes as
       aircraft hijacking, second degree murder, espionage, kidnapping, aggravated
       assault, and rape. Indeed, the very same day I sentenced Weldon Angelos, I gave
       a second-degree murderer 22 years in prison—the maximum suggested by the
       Sentencing Guidelines. It [is] irrational that Mr. Angelos will be spending 30
       years in prison longer for carrying a gun to several marijuana deals than a
       defendant who murdered an elderly woman by hitting her over the head with a
       log.

19 Fed. Sent. R. at 344.

       Regarding the second criterium, Young’s mandatory minimum sentence under the ACCA
finds no comparability to sentences imposed for the same offense in other jurisdictions. Amicus
counsel provided statistics showing that states do not generally prohibit the possession of
shotgun shells by felons or impose lengthy sentences for comparable offenses. I know of no
state that would punish Young’s crime of possession with a fifteen-year sentence.              Only
seventeen states prohibit the possession of ammunition by any particular category of non-
intoxicated persons, and some of these prohibit only handgun ammunition. Law Center to
Prevent Gun Violence, Ammunition Regulation Policy Summary, Summary of State Law at 3
(last updated Dec. 1, 2013), http://smartgunlaws.org/ammunition-regulation-policy-summary/.
In Tennessee, the state of Young’s arrest, his conduct is not even a crime because the
corresponding state offense of being a felon in possession of a firearm, which is punishable
“based on the seriousness of the offense and the potential for harm to others,” does not extend to
ammunition. Tenn. Code Ann. §§ 39-17-1307(b)(1)(A), ed. cmt., 39-11-106(a)(11). Of the
states in the Sixth Circuit, only Michigan bars the possession of ammunition by felons, but this
restriction expires five years after the date a prisoner is released from custody, as long as certain
conditions are met. Mich. Comp. Laws § 750.224f(3)–(4). And there, a person convicted of
being a felon in possession of ammunition is subject to only a five-year maximum sentence.
Mich. Comp. Laws § 750.224f(6).          The remaining Sixth Circuit states bar possession of
No. 13-5714                         United States v. Young                           Page 16

firearms—not ammunition—by felons, but each state either has a maximum sentence of five
years or less or no statutorily mandated sentence for the crime. See Ky. Rev. Stat. Ann.
§§ 527.010, 527.040, 532.060(2)(c); Ohio Rev. Code Ann. §§ 2923.11(B)(1), 2923.13(A)(2) &
(B), 2929.13.

       In a general sense, federal sentences often far exceed state sentences for comparable
conduct, a fact that may itself suggest disproportionality or unfairness. See Michael A. Simons,
Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling
Federalization, 75 N.Y.U. L. Rev. 893, 916–17 (2000). Considering the facts of the crime
charged—that it was: committed with little culpability or risk of harm as compared to other
crimes governed by the ACCA; consisting of behavior that many states do not criminalize and
none would penalize so harshly; punishable by the same mandatory harshness as crimes posing a
real risk to society—the inference of unfairness is unavoidable. Such comparisons have been
held to support Eighth Amendment violations. E.g., Kennedy v. Louisiana, 554 U.S. 407, 426
(2008) (finding it significant in Eighth Amendment analysis of a death penalty case that the
defendant would not have received similar punishment “in 45 jurisdictions”); Solem, 463 U.S. at
303 (finding Eighth Amendment violation in part because the defendant had been treated more
harshly than other criminals in the state who had committed more serious crimes and “more
harshly than he would have been in any other jurisdiction”).

       The practical problems with—and unfairness of—the ACCA and mandatory minimum
sentences in general have long been a concern of legal scholars and many in the judiciary. E.g.,
Paul J. Hofer, Review of the U.S. Sentencing Commission’s Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System, 24 Fed. Sent. R. 193, 193 (2012)
(“Mandatory minimum penalty statutes are particularly wasteful and unfair; they sweep too
broadly and require excessively long sentences for over ten thousand offenders every year.”);
Paul G. Cassell and Erik Luna, Sense and Sensibility in Mandatory Minimum Sentencing, 23 Fed.
Sent. R. 219, 219 (2011) (Mandatory minimums “conflict with the separation of powers
doctrine,” “implicate federalism concerns,” “distort the processes and outcomes of the federal
system,” and “deprive judges of the flexibility to tailor punishment in individual cases . . .
result[ing] in unduly harsh sentences.”); Judge James S. Gwin, Juror Sentiment on Just
No. 13-5714                            United States v. Young                                 Page 17

Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 Harv. L. &
Pol’y Rev. 173, 185-86 (2010) (“Congressional forays into the establishment of mandatory-
minimum sentences . . . have only further diminished the connection between community
sentiment and criminal punishment.”); U.S. Congress, Families Against Mandatory Minimums,
http://famm.org/projects/federal/us-congress/ (last visited Sept. 2, 2014) (highlighting efforts in
Congress to repeal mandatory minimums).1 See also United States v. Young, 960 F. Supp. 2d
881, 905–09 (N.D. Iowa 2013) (criticizing the role of the DOJ in determining which offenders to
prosecute in a manner that would carry a statutory minimum).

        While the means Congress has selected must be accepted, this case once again reveals the
need for, at minimum, a more sensible and targeted ACCA, one that would continue to remove
from society those most likely to cause harm while allowing less severe sentences for those who,
like Young, do not pose that risk. The ACCA would benefit from practical measures such as a
safety valve or graduated sentencing based on the kind of weapon or ammunition possessed, the
indicia of risk, or the remoteness of past crimes. E.g., The Justice Safety Valve Act of 2013, S.
619, 113th Congress (2013) (proposing to allow federal judges to impose sentences below
statutory minimums to prevent injustice). Or Congress could simply give district court judges—
who tend to have better knowledge of whether defendants truly pose a risk to society—the
discretion to impose appropriate sentences. See Statement on Behalf of the Judicial Conference,
19 Fed. Sent. R. at 348–49 (highlighting various policy options for increasing judicial discretion
in a fair and transparent manner); Judge Nancy Gertner, Supporting Advisory Guidelines, 3 Harv.
L. & Pol’y Rev. 261, 262 (2009) (arguing that judicial discretion in sentencing “is not a spigot
[that must] be turned on or off” but something that can be used with proper guidelines for
consistency and transparency); see also Judge Nancy Gertner, A Short History of American
Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J. Crim. L. & Criminology 691,
694–704 (2010) (tracing sentencing trends and showing how, ironically, the Guidelines and
mandatory minimums were originally part of an effort to reduce sentencing disparity). Such
discretion would have made all the difference in this case, as Judge Collier made quite clear that

        1
          It appears that many states have begun enacting sentencing reforms to reduce or remove mandatory
minimum sentences. See Recent State-Level Reforms to Mandatory Minimum Laws, Families Against Mandatory
Minimums, available at http://famm.org/wp-content/uploads/2013/08/FS-List-of-State-Reforms-2.25.pdf (last
visited Sept. 2, 2014).
No. 13-5714                           United States v. Young                                Page 18

his factual findings showed Young not to be the kind of person who should be put away for
fifteen years to protect society.

        Society pays a great price when Congress over-criminalizes conduct. The cycle of
poverty, criminality, and incarceration decimates communities, often “for no truly good law
enforcement reason.” Attorney General Eric Holder, Remarks at the Annual Meeting of the
American     Bar   Association’s     House    of   Delegates     (Aug.   12,   2013),    available    at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.             Prisons     operate
substantially over capacity, and the Department of Justice is forced to cut funding from
other priorities to pay for prison growth.         Rhonda McMillion, Bipartisan push is on for
sentencing      reform,     A.B.A.     J.      (posted    Feb.      1,    2014),        available     at
http://www.abajournal.com/magazine/article/bipartisan_push_is_on_for_sentencing_reform/.
Perhaps one of the greatest harms is that indiscriminate criminalization erodes the faith of our
citizens in the federal criminal justice system. That loss of faith in the system entrusted with
societal justice reverberates through our communities, damaging our families, our schools, and
our workplaces—components that are necessary to an effective social structure in our nation.

        Congress is well aware of the problem of over-criminalization; indeed, it has taken
sufficient notice for the House Judiciary Committee to form a special task force to address the
drastically expanding repertoire of federal crimes, many of which, like the present offense,
include no criminal intent element.         Judiciary Committee, Press Release, House Judiciary
Committee Reauthorizes Bipartisan Over-Criminalization Task Force (posted Feb. 5, 2014),
http://judiciary.house.gov/index.cfm/2014/2/house-judiciary-committee-reauthorizes-bipartisan-
over-criminalization-task-force. The United States Sentencing Commission has set as a priority
for its Sentencing Guidelines amendment cycle for May 1, 2015 the

        [c]ontinuation of its work with Congress and other interested parties on statutory
        mandatory minimum penalties to implement the recommendations set forth in the
        Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in
        the Federal Criminal Justice System, including its recommendations regarding the
        severity and scope of mandatory minimum penalties, consideration of expanding
        the ‘safety valve’ at 18 U.S.C. § 3553(f), and elimination of the mandatory
        ‘stacking’ of penalties under 18 U.S.C. § 924(c), and to develop appropriate
        guideline amendments in response to any related legislation.
No. 13-5714                         United States v. Young                          Page 19

http://www.ussc.gov/sites/default/files/pdf/amendment-process/federal-register-
notices/20140814_FR_Final_Priorities.pdf (last visited Sept. 2, 2014).

       “[W]e judges have a right—a duty even—to express criticism of legislative judgments
that require us to uphold results we think are wrong.” United States v. Ingram, 721 F.3d 35, 43
n.9 (2d Cir. 2013) (Calabresi, J., concurring). I therefore join the continuous flood of voices
expressing concern that the ACCA and other mandatory minimum laws are ineffective in
achieving their purpose and damaging to our federal criminal justice system and our nation. I
commend this case as another example of the need to reconsider the ACCA and mandatory
sentencing in general.
