                               PUBLISHED

                                                 Filed:   June 10, 2013

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


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


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

FAISAL HASHIME,

                  Defendant - Appellant.



                               O R D E R


     Appellant filed a petition for hearing en banc which was

circulated to the full Court.      No judge requested a poll under

Rule 35 of the Federal Rules of Appellate Procedure; therefore,

the petition for hearing en banc is denied.       Judge Gregory wrote

an opinion concurring in the denial of hearing en banc, in which

Judge Davis joined.

     Entered at the direction of Chief Judge Traxler.

                                      For the Court


                                      /s/ Patricia S. Connor
                                                Clerk
GREGORY, Circuit Judge, concurring in denial of hearing en banc:

      Faisal Hashime was convicted of multiple crimes relating to

the   possession,            production,       and    distribution         of     child

pornography.       He raises two issues on appeal, one of which being

a Miranda violation, and the other an Eighth Amendment challenge

to the sentence imposed.               Before we hear his appeal, however,

Hashime asked the full Court to review and correct our Eighth

Amendment       jurisprudence.         Hashime’s     request    has   merit.        Our

Eighth Amendment precedent is in tension with the jurisprudence

of both the Supreme Court and our sister circuits.                              This is

reason enough to grant a hearing en banc.                  See Fed R. App. P.

35(a)(1).       But even if it was not, insuring that a defendant is

not sentenced to a term of imprisonment that violates the Eighth

Amendment prohibition against cruel and unusual punishment is

surely an issue of “exceptional importance” warranting en banc

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

      In spite of the momentousness of the issue Hashime asks us

to address, I concur in the Court’s decision to initially deny

hearing    en    banc    for    efficiency     reasons   only   --    if    Hashime’s

appeal is resolved on the Miranda issue, his Eighth Amendment

argument    will        be     moot.   I   write     separately,      however,       to

underscore why Hashime’s Eighth Amendment argument is worthy of

en banc review as soon as prudently possible.



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                                             I.

       To    be     succinct,    we      have     held    that     Eighth     Amendment

“proportionality review is not available for any sentence less

than      life    imprisonment        without     the    possibility     of   parole.”

United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).

Conflicting with our assertion, other circuits conduct Eighth

Amendment        proportionality       review     for    term-of-years      sentences.

See, e.g., United States v. Nigg, 667 F.3d 929, 938 (7th Cir.

2012); United States v. Thomas, 627 F.3d 146, 159-60 (5th Cir.

2010); United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008);

United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008);

United States v. MacEwan, 445 F.3d 237, 247-48 (3d Cir. 2006);

United States v. Collins, 340 F.3d 672, 680 (8th Cir. 2003);

United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989).

To   my     knowledge,   we     are    the   only   circuit       that   follows   this

blanket      rule    denying    proportionality          review   for    term-of-years

sentences.          Indeed, even our district courts have recognized

that our precedent is in tension with our sister circuits.                         See,

e.g., United States v. Wellman, 716 F. Supp. 2d 447, 459 (S.D.

W. Va. 2010).

       Our precedent has had the effect of creating an oft-dreaded

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

356 (4th Cir. 2011) (Niemeyer, J., dissenting) (admonishing the

majority in part for creating a circuit split); Holly v. Scott,

                                             3
434    F.3d   287,    297-98    (4th       Cir.       2006)       (Motz,      J.,       concurring)

(same); United States v. Terry, 257 F.3d 366, 369 (4th Cir.

2001) (Wilkinson, J.) (rejecting a proposed argument in part

because it would create a circuit split).                               This is especially

troubling     given     the    fact    that          the    rigid      rule       that    we    alone

follow      seemingly    materialized            from           thin   air.       Our     precedent

inexplicably       morphed      from       once        stating         that       Supreme       Court

precedent does not require proportionality review for a term-of-

years sentence, which is correct, 1 see, e.g., United States v.

Polk, 905 F.2d 54 (4th Cir. 1990); United States v. Whitehead,

849 F.2d 849, 860 (4th Cir. 1988); United States v. Rhodes, 779

F.2d       1019,     1027-28     (4th        Cir.          1985),        to       holding       that

proportionality        review    is        not       available         for    a    term-of-years

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

532    (4th   Cir.    2001).          As    such,          we    are    now       bound    by   this

unsupported rule that is not followed by any circuit.


       1
       A court must only conduct proportionality review in “the
rare case in which a threshold comparison of the crime committed
and the sentence imposed leads to an inference of gross
disproportionality.”    Ewing v. California, 538 U.S. 11, 30
(2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)
(Kennedy, J., concurring)).    If this threshold is met, then a
court must perform the Eighth Amendment proportionality test
articulated by the Supreme Court in Solem v. Helm, looking at
the “(i) the gravity of the offense and the harshness of the
penalty; (ii) the sentences imposed on other criminals in the
same   jurisdiction;  and   (iii)  the  sentences   imposed  for
commission of the same crime in other jurisdictions.” 463 U.S.
277, 292 (1983).


                                                 4
                                           II.

      More important than the very important circuit split, our

precedent    is    in    tension    with     Supreme     Court       Eighth    Amendment

jurisprudence.      In     two    recent     Eighth     Amendment      decisions      the

Supreme Court reiterated that the “concept of proportionality is

central to the Eighth Amendment.”                 Miller v. Alabama, 132 S. Ct.

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

(2010).     The Court further noted that its “cases addressing the

proportionality of sentences” include “challenges to the length

of   term-of-years       sentences     given      all    the    circumstances       in   a

particular case.”          Graham, 130 S. Ct. at 2021.                  The Court has

never said as a per se matter that a term-of-years sentence will

necessarily survive a proportionality analysis, which we noted

in Sutton v. State of Md., 886 F.2d 708, 712 (4th Cir. 1989) and

Rhodes, 779 F.2d at 1027-28.                 In fact, the Supreme Court has

strongly suggested that Eighth Amendment proportionality review

applies equally to both life and term-of-years sentences, as it

has proclaimed “no penalty is per se constitutional,” Solem v.

Helm, 463 U.S. 277, 290 (1983); and “[t]he Eighth Amendment,

which forbids cruel and unusual punishments, contains a ‘narrow

proportionality          principle’        that        ‘applies       to      noncapital

sentences,’”       Ewing    v.     California,         538    U.S.    11,     20   (2003)

(quoting    Harmelin       v.    Michigan,      501    U.S.    957,    996—997     (1991)

(Kennedy,    J.,     concurring)).              Even    the    most    skilled     legal

                                            5
contortionist could not interpret our precedent in a way that

sensibly     comports   with   the       Supreme   Court’s   crystalline

pronouncements.



                                 III.

     Given the unexplained deficiencies in our Eighth Amendment

jurisprudence, it is necessary for us to rally the troops, right

our wrongs, and align our Eighth Amendment jurisprudence with

the rest of the nation.    While the time may not be now given the

posture of Hashime’s appeal, the time certainly draws nigh. 2

     Judge Davis joins in this concurrence.




     2
         I take no position on the merits of Hashime’s appeal.


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