                                   Illinois Official Reports

                                           Appellate Court



                             People v. Fernandez, 2014 IL App (1st) 120508



Appellate Court               THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                       LUIS FERNANDEZ, Defendant-Appellant.



District & No.                First District, Fourth Division
                              Docket No. 1-12-0508



Filed                         July 17, 2014
Rehearing denied              August 7, 2014



Held                          Defendant’s conviction for unlawful delivery of cocaine and sentence
(Note: This syllabus          to life in prison without parole were upheld on appeal, since, even if
constitutes no part of the    defendant had not forfeited his claim that his prior federal conviction
opinion of the court but      could not serve as a predicate offense for purposes of the Habitual
has been prepared by the      Criminal Act, the claim would have been rejected on the ground that
Reporter of Decisions         his prior conviction clearly qualified as a predicate offense under the
for the convenience of        plain language of the Act, his counsel was not ineffective in failing to
the reader.)                  object to the use of the prior offense as a predicate offense under the
                              Act, and the application of the Act in defendant’s case did not violate
                              the eighth amendment of the United States Constitution or the
                              proportionate penalties clause of the Illinois Constitution.



Decision Under                Appeal from the Circuit Court of Cook County, No. 10-CR-16176
Review                        (02); the Hon. Arthur F. Hill, Jr., Judge, presiding.



Judgment                      Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, David C. Holland, and Patrick
     Appeal                   F. Cassidy, all of State Appellate Defender’s Office, of Chicago, for
                              appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Assistant State’s Attorney, of counsel), for the People.

     Panel                    JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
                              Presiding Justice Howse and Justice Lavin concurred in the judgment
                              and opinion.


                                                OPINION

¶1         Defendant Luis Fernandez sold 1,008.5 grams–approximately two pounds–of cocaine to
       an undercover police officer in 2010. For that amount of cocaine, defendant would have
       ordinarily faced a sentence of between 15 and 60 years’ incarceration. 720 ILCS
       570/401(a)(2)(D) (West 2010). In this case, because defendant had pled guilty to drug
       offenses in 1992 and 1999, the Habitual Criminal Act (Act) required the trial court to
       sentence defendant to spend the rest of his life in prison. 730 ILCS 5/5-4.5-95(a) (West
       2010). The trial court noted, “It gives me no pleasure to do this,” in sentencing defendant to
       the harshest penalty under Illinois law.
¶2         Defendant raises three issues on appeal: (1) his 1999 federal conviction cannot serve as a
       qualifying offense under the Act, because it did not have the same elements as a Class X
       offense; (2) the Act violates the eighth amendment to the United States Constitution; and
       (3) the Act, as applied, violates the proportionate penalties clause of the Illinois Constitution.
       Although defendant’s natural life sentence is harsh, we are compelled to affirm it.

¶3                                        I. BACKGROUND
¶4          On August 3, 2010, undercover Illinois State Police special agent Gutierrez met
       defendant, codefendant Daniel Quispe, and an informant at a restaurant in Chicago, Illinois.
       There, defendant and codefendant agreed to sell three kilograms of cocaine to Gutierrez for
       $31,500 per kilogram. The following day, defendant told Gutierrez via telephone that he
       could obtain only one kilogram. On August 5, 2010, Gutierrez–equipped with a surreptitious
       recording device and $31,500 in prerecorded bills–met codefendant in a restaurant parking
       lot, but moved to the corner of Armitage Avenue and Rockwell Street, because codefendant
       was nervous. Codefendant entered Gutierrez’s truck, made a telephone call, and said that
       defendant would be there shortly. Defendant arrived approximately 15 minutes later, entered
       the truck, and handed Gutierrez a black plastic bag containing 1,008.5 grams of cocaine.
       Gutierrez opened a toolbox containing the money, a signal to his surveillance team that a deal
       had been made. As the surveillance team approached, defendant and codefendant attempted
       to flee, but were soon arrested. That night at the police station, defendant told Gutierrez that
       codefendant paid him $500 to deliver the cocaine. A jury found defendant guilty of delivery
       of a controlled substance.

                                                   -2-
¶5         At sentencing, the State presented a certified copy of defendant’s 1992 conviction for
       delivery of more than 400 grams but less than 900 grams of cocaine. With respect to that
       1992 conviction, a retired Chicago police officer testified that, on October 29, 1991,
       defendant sold him cocaine while the officer was undercover. The State also presented a
       certified copy of defendant’s 1999 federal conviction for possession with intent to deliver.
       With respect to the 1999 conviction, the parties stipulated that a Drug Enforcement
       Administration agent would testify that he arrested defendant as he exited a train traveling
       from New York to Chicago with 10 packets of heroin taped to his stomach. The State argued
       that defendant’s 1999 conviction was equivalent to a Class X felony, directing the trial court
       to defendant’s plea declaration in his federal case. In that document, defendant admitted to
       possessing approximately 800 grams of heroin. Defendant’s attorney did not object to the
       admission of this evidence.
¶6         In mitigation, defense counsel argued that both of defendant’s prior convictions occurred
       several years before the instant case. Defendant had been employed as a construction worker
       and maintenance worker before being convicted in this case. Defense counsel noted that
       defendant had pled guilty to his two prior drug offenses, evincing his willingness to accept
       responsibility for his actions. Finally, defense counsel argued that he should be sentenced to a
       term of years because he was 56 years old at the time of sentencing.
¶7         The trial court sentenced defendant to mandatory natural life imprisonment, stating:
                    “It gives me no pleasure to do this. Mr. Fernandez from all outward appearances
               is a nice man and he’s always been respectful to this Court and as far as the Court can
               tell he’s always been respectful to the court staff and personnel. But based on his
               background and based on this conviction this Court will sentence the defendant to
               natural[ ]life in prison.”
       Defendant appeals.

¶8                                          II. ANALYSIS
¶9         Defendant’s arguments concern the constitutionality and scope of the Act. We first
       address his nonconstitutional arguments. See People v. Brown, 225 Ill. 2d 188, 200 (2007)
       (“If a court can resolve a case on nonconstitutional grounds, it should do so. [Citation.]
       Constitutional issues should be reached only as a last resort.”).

¶ 10                                    A. 1999 Federal Conviction
¶ 11       Defendant contends that his life sentence is void, because his 1999 federal conviction is
       not a qualifying offense under the Act, where it does not have the same elements as a Class X
       felony. Defendant also argues that the trial court’s examination of the facts underlying his
       1999 federal conviction ran afoul of his sixth amendment right to a jury trial as interpreted by
       Apprendi v. New Jersey, 530 U.S. 466 (2000). Finally, defendant claims that his trial attorney
       was ineffective for failing to object to the use of his federal conviction as a qualifying offense
       under the Act. The State argues that defendant forfeited this issue, and even if he had
       preserved it, defendant’s reading of the Act is inaccurate. We first address the State’s
       forfeiture argument and then address defendant’s statutory and constitutional claims.
¶ 12       In support of its forfeiture argument, the State points to the Act, which provides that
       “[a]ny claim that a previous conviction offered by the prosecution is not a former conviction

                                                   -3-
       of an offense set forth in this Section because of the existence of any exceptions described in
       this Section, is waived unless duly raised at the hearing on that conviction, or unless the
       prosecution’s proof shows the existence of the exceptions described in this Section.” 730
       ILCS 5/5-4.5-95(a)(8) (West 2010); see also People v. Brown, 229 Ill. 2d 374, 389 (2008)
       (“if defendant fails to rebut the presumption of his eligibility at his sentencing hearing, he
       will have forfeited the right to do so on direct appeal”).
¶ 13       Defendant acknowledges that he failed to challenge whether his federal conviction
       satisfied the Act, but cites the exception to forfeiture set forth in Brown: “[I]f the State’s
       evidence concerning the defendant’s prior convictions does not support the inference of
       eligibility because the evidence, on its face, demonstrates that defendant’s prior convictions
       do not meet all of the requirements of [the] section *** defendant will not be prohibited from
       challenging his sentence on appeal.” Brown, 229 Ill. 2d at 389-90. The Brown court stated
       that, where the State’s evidence was deficient on its face, the defendant’s sentence would be
       void and subject to challenge at any time. Id. at 391-92.1
¶ 14       Here, the State’s evidence regarding defendant’s federal conviction, on its face, met the
       requirements of the Act. At his sentencing hearing, defendant stipulated to testimony that, in
       1999, he was arrested by federal agents with 10 packets of heroin taped to his stomach. He
       stipulated that he later pled guilty to possession of heroin with intent to distribute for that
       offense. The State presented the trial court with a certified copy of defendant’s federal
       conviction and asked that the plea declaration in that case be incorporated as part of its
       evidence in aggravation. Defendant did not object to the State’s use of his federal plea
       declaration. Defendant’s plea declaration stated that he was in possession of “approximately
       100 pellets of heroin, weighing roughly 800 grams.” This evidence, on its face, shows that
       defendant’s federal conviction would qualify as a Class X offense under Illinois law. Without
       any objection to this evidence, defendant forfeited review of this issue.
¶ 15       Even if defendant had preserved this issue, we would find that his federal conviction
       would qualify as a predicate offense under the plain language of the Act. The Act mandates
       that “[e]very person who has been twice convicted in any state or federal court of an offense
       that contains the same elements as an offense now *** classified in Illinois as a Class X
       felony *** and who is thereafter convicted of a Class X felony *** committed after the 2
       prior convictions, shall be adjudged an habitual criminal.” (Emphasis added.) 730 ILCS
       5/5-4.5-95 (West 2010). Defendant argues that, by the plain language of the statute, an
       offense in another jurisdiction only supports habitual criminal status if that offense included
       the “same elements” as a Class X felony in Illinois.
¶ 16       Under Illinois law, a drug offense is a Class X felony only where the State proves beyond
       a reasonable doubt that the defendant possessed a certain type of substance (e.g., heroin,
       peyote, or amphetamine) and certain amount of that substance (e.g., 15 grams of heroin, 200
       grams of peyote, or 200 grams of amphetamine). 720 ILCS 570/401(a)(1)(A), (a)(4), (a)(6)
       (West 2010). In other words, when a defendant is subject to Class X sentencing for
       possession of a controlled substance with intent to deliver, the drug type and amount are

           1
            Although defendant contends that the exception to forfeiture stated in Brown and voidness are
       separate grounds excusing his forfeiture, the Brown court’s exception to forfeiture was its interpretation
       of the voidness rule in the specific context of the Act. Brown, 229 Ill. 2d at 391-92. Accordingly, we
       will consider the Brown exception and voidness as one.

                                                       -4-
       elements of the offense. People v. Jones, 174 Ill. 2d 427, 428-29 (1996). In Illinois, without
       proving type or quantity, a conviction for possession of a controlled substance with intent to
       deliver is only a Class 3 felony. 720 ILCS 570/401(a) (West 2010). Under federal law, type
       and amount are sentencing factors, not substantive elements of the offense. See United States
       v. Martinez, 301 F.3d 860, 865 (7th Cir. 2002) (“drug type and quantity are not elements of
       the offense” under federal law); United States v. Washington, 558 F.3d 716, 719 (7th Cir.
       2009) (same); United States v. Clark, 538 F.3d 803, 811-12 (7th Cir. 2008); Knox v. United
       States, 400 F.3d 519, 523 (7th Cir. 2005) (same); United States v. Smith, 34 F.3d 514, 519
       (7th Cir. 1994) (same). According to defendant, the fact that the type and quantity of
       narcotics he possessed in 1999 were not elements of his federal offense meant that he pled
       guilty to an offense with the same elements as a Class 3 felony in Illinois, not an offense with
       the same elements as a Class X felony.
¶ 17        Defendant’s observation that drug quantity and type are not elements under federal law is
       correct. However, Illinois courts have rejected a formalistic interpretation of the Act. In
       People v. Cannady, 159 Ill. App. 3d 1086 (1987), the defendant challenged his sentence of
       life imprisonment under the Act, where the State failed to prove beyond a reasonable doubt
       that he had committed three Class X felonies. Specifically, he argued that his 1969 Class 1
       felony rape conviction did not constitute proof beyond a reasonable doubt of an offense that
       contains the same elements as a Class X felony. Id. at 1090. The court rejected that argument
       and observed that “although the 1969 rape conviction was listed as a Class 1 felony, Class 1
       was the top grade felony at that time and no Class X classification existed. *** [W]e agree
       with the trial court that the rape *** constituted an offense equivalent to those felonies
       presently categorized as Class X felonies.” Id.
¶ 18        Similarly, in People v. King, 178 Ill. App. 3d 340, 346-47 (1988), the court upheld the
       defendant’s sentence under the Act even though his prior Wisconsin conviction for
       second-degree criminal sexual assault did not contain precisely the same elements as
       aggravated criminal sexual assault. In King, the defendant was sentenced to natural life under
       the Act based in part on his prior conviction for second-degree criminal sexual assault in
       Wisconsin. Id. at 346. In Wisconsin, the State proved second-degree criminal sexual assault
       if it established two elements: (1) sexual intercourse (2) by the use or threat of force or
       violence. Id. By contrast, the offense of aggravated criminal sexual assault–a Class X offense
       in Illinois–required the proof of three elements: (1) a sexual act of penetration (2) by force or
       use of force (3) during the commission of a felony. Id. The King court, citing Cannady, found
       that the elements of Wisconsin’s second-degree criminal sexual assault were equivalent to
       the elements of aggravated criminal sexual assault in Illinois, as his Wisconsin criminal
       sexual assault was committed during the course of a robbery. Id. at 346-47.
¶ 19        Here, as in Cannady and King, defendant’s federal conviction was equivalent to a Class
       X felony in Illinois. Defendant’s federal drug case, had it been tried under Illinois law, would
       have been a Class X felony. 720 ILCS 570/401(a)(1)(C) (West 1998). The only factor
       distinguishing his 1999 federal conviction from a Class X is that drug type and amount are
       not essential elements of the offense under federal law. 21 U.S.C. § 841(a)(1) (1994). If we
       were to adopt defendant’s position, a federal drug conviction could never serve as a Class X
       equivalent–even if it would qualify as a Class X felony if tried under Illinois law–because
       drug type and amount are never elements under federal law. As shown by Cannady and King,
       however, we have rejected such a formalistic interpretation of the Act.


                                                   -5-
¶ 20       Adopting defendant’s interpretation would also contravene the legislature’s clear intent to
       include certain federal drug offenses as predicate offenses under the Act. The plain language
       of the Act shows that the legislature intended federal offenses to qualify under the Act. 730
       ILCS 5/5-4.5-95(a)(1) (West 2010) (including convictions from “any state or federal court”
       (emphasis added)). At the time the Act was amended to include federal offenses, the
       manufacture or delivery of 30 or more grams of cocaine was a Class X felony. Ill. Rev. Stat.
       1979, ch. 56½, ¶ 1401(a). This shows that the legislature intended to include federal drug
       offenses as qualifying offenses under the Act so long as they would qualify as Class X
       offenses if tried under Illinois law.
¶ 21       The legislative history of the Act bolsters this conclusion. When the legislature amended
       the Act to include offenses from other jurisdictions, the bill’s sponsor expressly stated that
       federal convictions would apply:
               “[W]hen we passed Class X Felony, we once again reinstituted the Habitual Criminal
               Act ***. *** If you are a habitual criminal under our Act, today, of course, you can
               be sentenced for life imprisonment for conviction of the third felony. But under
               present law, those felonies have to be after February 1st, [sic] 1978, and other
               jurisdictions such as Federal and sister states would not apply. What this amendment
               does is ... exactly reversed [sic] that situation. *** [O]ther jurisdictions would qualify,
               providing their elements were *** the same or close to the elements contained in the
               Illinois [s]tatutes.” (Emphases added.) 81st Ill. Gen. Assem., Senate Proceedings,
               June 27, 1980, at 27 (statements of Senator Sangmeister).
       The sponsor also noted that amendment “added a few additional triggering categories, such
       as home invasion, heinous battery, hard drug sales, calculated criminal drug conspiracy and
       armed violence.” (Emphasis added.) Id. at 30. If we adopted defendant’s interpretation of the
       Act, we would contravene the legislature’s intent to include serious federal drug convictions
       as qualifying felonies under the Act. We decline to do so.
¶ 22       In a related argument, defendant contends that Taylor v. United States, 495 U.S. 575
       (1990), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013), mandate that
       we interpret the Act so that courts may only look to the elements of a prior conviction–not
       the defendant’s conduct underlying the conviction–to enhance his sentence under the Act.
       Defendant contends that those cases show that his sixth amendment right to a jury trial was
       violated when the trial court looked beyond the elements of his federal offense in applying
       the Act. In order to analyze defendant’s argument, we must discuss both Taylor and
       Descamps.
¶ 23       In Taylor, the defendant pled guilty to illegally possessing a firearm. Taylor, 495 U.S. at
       578. Under federal law at the time, a defendant who had been convicted of three previous
       “violent felon[ies]” was eligible for a minimum sentence of 15 years’ incarceration. (Internal
       quotation marks omitted.) Id. “Violent felon[ies]” included “burglary, arson, or extortion,
       *** or [offenses] otherwise involv[ing] conduct that present[ed] a serious potential risk of
       physical injury to another.” (Internal quotation marks omitted.) Id. The defendant had two
       prior convictions for second-degree burglary under Missouri law, which, he argued, did not
       qualify as “violent felonies” under the federal statute because the Missouri burglary statute
       did not require the offense to pose a serious potential risk of physical injury to another. Id. at
       578-79.


                                                    -6-
¶ 24       After reviewing the legislative history of the federal statute at issue, the Taylor Court
       rejected the defendant’s argument. Id. at 581-90, 598. The Court held that the enhancement
       applied to anyone convicted of an offense involving the “generic” elements of burglary:
       unlawful entry into a building with intent to commit a crime. Id. at 599. The Court concluded
       that, when assessing whether a burglary conviction constituted the “generic” burglary
       encompassed in the statute, the trial court should “look only to the fact of conviction and the
       statutory definition of the prior offense.” Id. at 602. The Court added, however, that the trial
       court could look beyond the elements of the offense where a state burglary statute permitted
       the state to prove an element of “generic” burglary or an alternative element, such as a statute
       defining burglary as unlawful entry into a car as well as a building. Id. The Court noted that,
       in such a case, “if the indictment or information and jury instructions show that the defendant
       was charged only with a burglary of a building, and that the jury necessarily had to find an
       entry of a building to convict, then the Government should be allowed to use the conviction
       for enhancement.” Id.
¶ 25       In Descamps, the Court reviewed whether a conviction under a California burglary
       statute qualified to meet the definition of “generic” burglary outlined in Taylor. Descamps,
       570 U.S. at ___, 133 S. Ct. at 2281-82. Under that statute, a “person who enter[ed]” certain
       locations with the intent to commit a theft committed burglary. (Internal quotation marks
       omitted.) Id. at ___, 133 S. Ct. at 2282. This statute was thus broader than Taylor’s definition
       of “generic” burglary, as it did not require an unlawful entry into a building. Id. at ___, 133
       S. Ct. at 2285-86.
¶ 26       The Descamps Court held that, because the statute did not require unlawful entry as even
       an alternative element, the defendant’s California burglary conviction could not enhance the
       defendant’s sentence. Id. at ___, ___, 133 S. Ct. at 2285-86, 2293. The Court stressed that
       “[w]hether [the defendant] did break and enter makes no difference,” as the elements of the
       California burglary statute did not require the State to prove breaking and entering in any
       event. (Emphasis in original.) Id. at ___, 133 S. Ct. at 2286. The Court stated that the trial
       court could only look to the plea colloquy or other documents outside the elements of the
       offense if the California burglary statute had included breaking and entering as an alternative
       element, i.e., that there was some possibility that the State had to prove beyond a reasonable
       doubt that the defendant had unlawfully entered a building. Id. at ___, 133 S. Ct. at 2286.
¶ 27       In reaching that conclusion, the Descamps Court highlighted the sixth amendment
       implications of “extending judicial factfinding beyond the recognition of a prior conviction.”
       Id. at ___, 133 S. Ct. at 2288. Specifically, the Court noted that, as interpreted by Apprendi v.
       New Jersey, 530 U.S. 466 (2000), the sixth amendment requires that any fact, other than the
       fact of a prior conviction, that increases the penalty for a crime must be submitted to a jury
       and proved beyond a reasonable doubt. Descamps, 570 U.S. at ___, 133 S. Ct. at 2288 (citing
       Apprendi, 530 U.S. at 490). To permit the “sentencing court to ‘make a disputed’
       determination ‘about what the defendant and state judge must have understood as the factual
       basis of the prior plea,’ ” would thus raise constitutional concerns. Descamps, 570 U.S. at
       ___, 133 S. Ct. at 2288 (quoting Shepard v. United States, 544 U.S. 13, 25 (2005) (plurality
       op.)).
¶ 28       We recognize that Taylor and Descamps carry some persuasive force in this case. Like
       the statute at issue in those cases, the Act requires a sentencing court to determine whether a
       defendant’s foreign-jurisdiction convictions qualify as predicate offenses for natural life

                                                   -7-
       sentencing. The Descamps Court highlighted the potential constitutional infirmity that could
       arise if, in enhancing a defendant’s sentence, courts looked to facts that had never been
       proved beyond a reasonable doubt before a jury. Descamps, 570 U.S. at ___, 133 S. Ct. at
       2288. In this case, to establish that defendant’s federal conviction qualified under the Act, the
       State directed the court to look to defendant’s plea declaration in his 1999 federal case, in
       which he admitted to possessing 800 grams of heroin. As the Descamps Court suggested,
       such judicial fact-finding could run afoul of the sixth amendment, as any fact, other than a
       prior conviction, increasing the penalty for an offense must be submitted to a jury and proved
       beyond a reasonable doubt. Id. at ___, 133 S. Ct. at 2288 (citing Apprendi, 530 U.S. at 490).
¶ 29        Despite the persuasive rationale of those cases, defendant has forfeited this issue for
       review. See United States v. Cotton, 535 U.S. 625, 627-29, 631 (2002) (sixth amendment
       claims under Apprendi are subject to forfeiture); People v. Crespo, 203 Ill. 2d 335, 346
       (2001) (finding that the defendant had forfeited his Apprendi claim because he failed to
       object at trial). At his sentencing hearing in this case, defendant stipulated to testimony at
       trial establishing that he possessed 10 packets of heroin taped to his stomach. He raised no
       objection to the State using his federal plea declaration to establish that those packets
       contained approximately 800 grams of heroin. Accordingly, defendant forfeited the issue of
       whether the sentencing court’s finding that he was eligible under the Act violated his sixth
       amendment right to a jury trial. As we explained above, the exception to forfeiture outlined
       in Brown does not apply in this case. We decline to address the question of whether the
       procedure in this case violated defendant’s rights under Apprendi.
¶ 30        Defendant also does not contend that any sixth amendment violation in his sentencing
       constituted plain error exempt from forfeiture. See Ill. S. Ct. R. 615(a); People v. Piatkowski,
       225 Ill. 2d 551, 565 (2007). He has thus forfeited any contention that this error constituted
       plain error. See People v. Hillier, 237 Ill. 2d 539, 545-46 (2010) (“[W]hen a defendant fails
       to present an argument on how either of the two prongs of the plain-error doctrine is
       satisfied, he forfeits plain-error review.”).
¶ 31        Even if defendant had preserved plain error, however, any error in this case would not
       amount to plain error. See United States v. Cotton, 535 U.S. 625, 632-33 (2002) (plain error
       rule applied to an alleged violation of Apprendi); People v. Nitz, 219 Ill. 2d 400, 414 (2006)
       (same). An alleged Apprendi violation does not constitute plain error where the defendant
       was not prejudiced because undisputed evidence indicates that the State could have proved
       the sentence-enhancing facts beyond a reasonable doubt. E.g., People v. Kaczmarek, 207 Ill.
       2d 288, 302-04 (2003); Crespo, 203 Ill. 2d at 348-49; People v. Simmons, 342 Ill. App. 3d
       185, 193-94 (2003).
¶ 32        Here, the undisputed evidence at the sentencing hearing proved that defendant possessed
       approximately 800 grams of heroin when he was arrested by federal authorities in 1999.
       Defendant pled guilty to the 1999 federal charge and stipulated to the type and quantity of
       narcotics involved in his plea declaration. He again stipulated to the facts underlying that
       offense at his sentencing hearing in this case. Those facts indisputably established that
       defendant was arrested in 1999 in possession of approximately 800 grams of heroin. Nothing
       in the record suggests that the State would have failed to prove the type and quantity of
       narcotics beyond a reasonable doubt. Defendant cannot show prejudice resulting from the
       failure to submit those facts to a jury or to apply the burden of proof beyond a reasonable
       doubt.

                                                   -8-
¶ 33       Finally, defendant contends that his trial attorney was ineffective for failing to object to
       the use of his federal conviction as a predicate offense. To prevail on a claim of ineffective
       assistance of counsel, the defendant must show both: (1) that his attorney’s performance fell
       below an objective standard of reasonableness; and (2) that, absent his attorney’s errors, there
       is a reasonable probability that the outcome of the proceeding would have been different.
       Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); People v. Albanese, 104 Ill. 2d
       504, 526-27 (1984). A failure to establish either prong precludes a finding of ineffective
       assistance of counsel. People v. Henderson, 2013 IL 114040, ¶ 11. The defendant must
       overcome the strong presumption that trial counsel’s inaction was the product of sound trial
       strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). Our supreme court has highlighted that,
       when a defendant challenges his attorney’s failure to take some action on direct appeal, “the
       record will frequently be incomplete or inadequate to evaluate that claim because the record
       was not created for that purpose.” Henderson, 2013 IL 114040, ¶ 22 (citing Massaro v.
       United States, 538 U.S. 500, 504-05 (2003)).
¶ 34       In this case, the record is inadequate to evaluate defendant’s assertion that counsel’s
       failure to challenge his sentence prejudiced him. See People v. Bew, 228 Ill. 2d 122, 133-35
       (2008) (rejecting the defendant’s claim that his attorney was ineffective for failing to file a
       motion to suppress where the record was inadequate to evaluate counsel’s performance).
       Nothing in the record shows that, had counsel objected to the use of defendant’s 1999 federal
       conviction, there was a reasonable likelihood that his sentencing hearing would have been
       different. Nothing in the record indicates that the State would have failed to prove that
       defendant possessed approximately 800 grams of heroin in 1999. To the contrary, the
       evidence adduced at defendant’s sentencing hearing shows that he admitted to possessing
       approximately 800 grams of heroin in 1999. Defendant fails to suggest any avenue by which
       his attorney could have undermined or challenged that evidence if the type and amount of
       narcotics were submitted to a jury and subjected to the burden of proof beyond a reasonable
       doubt. In the absence of evidence to the contrary, we must presume that trial counsel elected
       not to challenge those facts because he could not reasonably do so.
¶ 35       We note that our decision does not preclude defendant from bringing a challenge to his
       attorney’s performance in a collateral proceeding should he have evidence that his attorney’s
       failure to object to his sentence prejudiced him. Bew, 228 Ill. 2d at 135. Based on the record
       before us, however, we cannot conclude that counsel rendered ineffective assistance.
¶ 36       In sum, we conclude that defendant forfeited his challenge to his mandatory life without
       parole sentence under the Act. Even if defendant had not forfeited his claim, the plain
       language of the Act shows that the legislature intended to include serious federal drug
       offenses like defendant’s as predicate offenses. We find that defendant has also forfeited his
       contention that his sixth amendment right to a trial by jury was violated by the trial court’s
       examination of the facts underlying his federal conviction to establish his habitual criminal
       status, and that the record does not support his claim that his attorney rendered ineffective
       assistance in failing to object to his sentence.

¶ 37                                     B. Eighth Amendment
¶ 38       Defendant argues that his natural life sentence is grossly disproportionate to the severity
       of his offense and therefore violates the eighth amendment of the United States Constitution.
       Defendant admits that “United States Supreme Court jurisprudence weighs against his

                                                  -9-
       claim,” but urges us find that his sentence is cruel and unusual in light of our evolving
       standards of decency. We reject defendant’s eighth-amendment claim based upon binding
       United States Supreme Court precedent.
¶ 39        The eighth amendment states that “[e]xcessive bail shall not be required, nor excessive
       fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. In
       Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991), the United States Supreme Court held
       that mandatory life imprisonment for a first-time drug offender did not violate the eighth
       amendment. The defendant in Harmelin had been convicted of possessing 672 grams of
       cocaine and was sentenced to mandatory life imprisonment without the possibility of parole.
       Id. at 961. The Court held that this sentence did not constitute cruel and unusual punishment.
       Id. at 994-97.
¶ 40        We are compelled to apply Harmelin to this case. Here, defendant was convicted of
       distributing more than 900 grams of cocaine, which is a greater amount than the Harmelin
       defendant possessed. Defendant had also been convicted of two prior drug offenses involving
       large quantities of drugs. Under Harmelin, we cannot say that defendant’s sentence violated
       the eighth amendment. See also Ewing v. California, 538 U.S. 11, 30-31 (2003) (upholding a
       sentence of life imprisonment under California’s three-strikes statute, despite the third
       offense being the theft of three golf clubs).
¶ 41        Illinois courts have also repeatedly held that the Habitual Criminal Act does not violate
       the eighth amendment. See People v. Dunigan, 165 Ill. 2d 235, 247-48 (1995); People v.
       Bryant, 278 Ill. App. 3d 578, 587 (1996); People v. Robinson, 268 Ill. App. 3d 1019, 1025-26
       (1994); People v. Gaston, 259 Ill. App. 3d 869, 877 (1994); People v. Wilson, 257 Ill. App.
       3d 826, 835 (1994); People v. McCall, 190 Ill. App. 3d 483, 496 (1989); People v. Franzen,
       183 Ill. App. 3d 1051, 1059 (1989); People v. Morissette, 150 Ill. App. 3d 431, 443-44
       (1986); People v. Hartfield, 137 Ill. App. 3d 679, 690-91 (1985). While those decisions
       concern only violent offenses, in light of Harmelin, we cannot find a basis to depart from
       Illinois precedent. Accordingly, we reject defendant’s eighth amendment challenge.

¶ 42                                 C. Proportionate Penalties Clause
¶ 43       Defendant further argues that the Act, as applied in this case, violates Illinois’s
       proportionate penalties clause. The State argues that the nature of defendant’s offense, as
       well as his history of recidivism, justified the imposition of a mandatory natural life sentence.
       We acknowledge that a sentence of mandatory natural life without parole for a nonviolent
       offender with only three felony drug convictions is an extremely harsh punishment. After
       careful consideration, however, we are compelled to uphold defendant’s sentence.
¶ 44       All statutes carry a strong presumption of constitutionality. People v. Sharpe, 216 Ill. 2d
       481, 487 (2005). Defendant has the burden to demonstrate that the statute is unconstitutional.
       People v. Alcozer, 241 Ill. 2d 248, 259 (2011). The legislature has broad discretion in setting
       criminal penalties and may pass statutes that prescribe mandatory sentences, even if those
       statutes restrict the judiciary’s sentencing discretion. People v. Taylor, 102 Ill. 2d 201, 208
       (1984); Sharpe, 216 Ill. 2d at 487. The legislature’s power is not unlimited, however, as the
       sentences it prescribes must satisfy constitutional constraints. People v. Morris, 136 Ill. 2d
       157, 161 (1990). We will not overrule the legislature’s sentencing mandates, unless the
       penalty is clearly in excess of the general constitutional limitations. Alcozer, 241 Ill. 2d at


                                                  - 10 -
       259. Our review of this question of law is de novo. People v. Masterson, 2011 IL 110072,
       ¶ 23.
¶ 45        The proportionate penalties clause states that “[a]ll penalties shall be determined both
       according to the seriousness of the offense and with the objective of restoring the offender to
       useful citizenship.” Ill. Const. 1970, art. I, § 11. A statute is unconstitutionally
       disproportionate if the punishment for the offense is cruel, degrading, or so wholly
       disproportionate to the offense as to shock the moral sense of the community. Sharpe, 216 Ill.
       2d at 487; People v. Miller, 202 Ill. 2d 328, 339-41 (2002). The Illinois Supreme Court has
       “never defined what kind of punishment constitutes ‘cruel,’ ‘degrading,’ or ‘so wholly
       disproportioned to the offense as to shock the moral sense of the community.’ ” Miller, 202
       Ill. 2d at 339. “This is so because, as our society evolves, so too do our concepts of elemental
       decency and fairness which shape the ‘moral sense’ of the community.” Id.
¶ 46        In People v. Clemons, 2012 IL 107821, ¶¶ 39-40, the Illinois Supreme Court stated that
       the proportionate penalties clause, “which focuses on the objective of rehabilitation,” places
       greater limitations on the legislature’s ability to prescribe harsh sentences than the eighth
       amendment of the United States Constitution. The court noted that the requirement that all
       sentences be determined “with the objective of restoring the offender to useful citizenship,”
       was added to the 1970 Illinois Constitution as “a limitation on penalties beyond those
       afforded by the eighth amendment.” (Internal quotation marks omitted.) Id. ¶ 39. Although
       Clemons simply held that the proportionate penalties clause included a restriction that
       offenses with the same elements carry the same penalties, we find that the constitutional
       principles discussed in Clemons are relevant to this case. Id. ¶¶ 39-40, 53. We review
       defendant’s proportionate-penalties claim with those principles in mind.
¶ 47        Under the Act, a defendant is a habitual criminal, subject to a sentence of mandatory
       natural life without the possibility of parole, if he is convicted of three separate Class X
       offenses in 20 years, excluding time in custody. 730 ILCS 5/5-4.5-95(a) (West 2010). In this
       case, defendant was convicted of Class X delivery of a controlled substance for his delivery
       of more than 900 grams of cocaine to an undercover police officer. 720 ILCS
       570/401(a)(2)(D) (West 2010). In 1992, defendant was convicted of Class X delivery of a
       controlled substance for his delivery of 400 to 900 grams of cocaine to an undercover police
       officer. 720 ILCS 570/401(a)(2)(C) (West 1992). In 1999, defendant was convicted of
       possession of more than 800 grams of heroin in federal court, which, if tried in Illinois,
       would have been a Class X felony. 720 ILCS 570/401(a)(1)(C) (West 1998). As a result of
       defendant’s three drug offenses, the Act required the trial court to sentence defendant to
       natural life imprisonment without the possibility of parole. Defendant contends that, as
       applied to him, the Act violates the proportionate penalties clause.
¶ 48        The parties do not cite–nor were we able to find–Illinois decisions addressing mandatory
       natural life imprisonment under the Act for nonviolent offenses.2 It appears, therefore, that
       this is an issue of first impression in Illinois. In analyzing this issue, we first look to our
       supreme court’s precedent regarding proportionate-penalties challenges to the Act.


          2
           As of 2012, only 10 people in Illinois were serving that sentence for nonviolent offenses.
       American Civil Liberties Union, A Living Death: Life Without Parole for Nonviolent Offenses 22
       (2013), http://www.aclu.org/files/assets/111813-lwop-complete-report.pdf.

                                                  - 11 -
¶ 49        Our supreme court upheld the Act’s constitutionality under the proportionate penalties
       clause in People v. Dunigan, 165 Ill. 2d 235, 244-47 (1995). In Dunigan, the defendant was
       convicted of criminal sexual assault and sentenced to mandatory natural life without parole
       due to his two prior convictions for rape. Id. at 238. The court rejected the defendant’s
       proportionate-penalties clause challenge to his sentence. Id. at 244-47. The court noted that,
       as a general matter, statutes mandating natural life sentences do not violate the proportionate
       penalties clause. Id. at 245-46. The court highlighted that the “legislature obviously
       considered the seriousness of the offense when it enacted the Act, which applies only to ***
       offenses recognized to be particularly violent and dangerous to society.” Id. at 246. The court
       also found that the legislature “weighed the rehabilitative potential of offenders by limiting
       the Act to those offenders who have a third serious felony conviction within a prescribed
       period of time.” Id. Subsequent cases have uniformly upheld the Act in the face of
       proportionate penalties challenges. E.g., People v. Huddleston, 212 Ill. 2d 107, 148 (2004)
       (defendant convicted of three counts of predatory criminal sexual assault); People v. Brown,
       2012 IL App (1st) 091940, ¶¶ 63-80 (defendant convicted of multiple murders); People v.
       Cummings, 351 Ill. App. 3d 343, 348-49 (2004) (defendant convicted of armed robbery who
       had prior convictions for murder and armed robbery); People v. Sanchez, 344 Ill. App. 3d 74,
       77, 84-85 (2003) (defendant convicted of aggravated criminal sexual assault of a 13-year-old
       with a prior sexual assault of a 5-year-old).
¶ 50        While Dunigan and its progeny have uniformly upheld the Act in the face of
       proportionate penalties challenges, none of these cases involved individuals, like defendant,
       whose qualifying offenses are all nonviolent, drug offenses. Like the Dunigan court, we
       recognize that the legislature limited the Act’s application to Class X offenses and to
       defendants who have exhibited recidivist tendencies. Still, while this precedent carries
       considerable weight, it does not directly bear upon the particular question at issue in this
       case: whether the Act, as applied to defendant, violates the proportionate penalties clause.
¶ 51        Defendant cites People v. Miller, 202 Ill. 2d 328 (2002), in support of his contention that
       his mandatory life-without-parole sentence violates the proportionate penalties clause. In
       Miller, our supreme court held that, as applied, a mandatory life imprisonment scheme at
       issue violated the proportionate penalties clause. Miller, 202 Ill. 2d at 341. In that case, the
       15-year-old defendant was convicted, under an accountability theory, of two counts of first
       degree murder, and he was sentenced to mandatory natural life imprisonment under the
       statute requiring such a penalty for defendants convicted of multiple murders. Id. at 330. The
       trial court stated that, even though it did not doubt the defendant’s guilt, mandatory life
       imprisonment without the possibility of parole would be “blatantly unfair and highly
       unconscionable,” where the defendant “never picked up a gun” yet was “in the same situation
       as a serial killer for sentencing purposes.” (Internal quotation marks omitted.) Id. at 331-32.
       The trial judge declined to impose life imprisonment based on the proportionate penalties
       clause. Id. at 332.
¶ 52        The Miller court agreed that imposing a “mandatory sentence of natural life in prison
       with no possibility of parole [on the defendant] grossly distorts the factual realities of the
       case and does not accurately represent defendant’s personal culpability such that it shocks the
       moral sense of the community.” Id. at 341. The court noted that the mandatory sentence
       deprived the trial court of the opportunity to consider the facts of the case in fashioning a
       sentence. Id. at 340. In striking down the defendant’s sentence as shocking to the moral sense


                                                  - 12 -
       of the community, the Miller court highlighted the defendant’s age and his diminished
       culpability as an accomplice:
                “This moral sense is particularly true, as in the case before use, where a 15-year-old
                with one minute to contemplate his decision to participate in the incident and stood as
                a lookout during the shooting, but never handled a gun, is subject to life
                imprisonment with no possibility of parole–the same sentence applicable to the actual
                shooter.” Id. at 341.
       That diminished culpability, along with the defendant’s “greater rehabilitative potential” as a
       juvenile, led the court to conclude that a natural life sentence was grossly disproportionate to
       the severity of the defendant’s conduct. Id. at 341-42.
¶ 53        Here, defendant had been convicted of three drug offenses, the only convictions in his
       background. Unlike the defendant in Miller, none of defendant’s convictions in this case
       involved the use or threat of violence. Like the trial court in Miller, the trial court in this case
       was precluded from taking any mitigating evidence into account in fashioning defendant’s
       sentence. In fact, the record shows that, had the trial court not been required to sentence
       defendant to mandatory life without parole, it likely would have imposed a lesser sentence:
                     “It gives me no pleasure to do this. Mr. Fernandez from all outward appearances
                is a nice man and he’s always been respectful to this Court and as far as the Court can
                tell he’s always been respectful to the court staff and personnel. But based on his
                background and based on this conviction this Court will sentence the defendant to
                natural[ ]life in prison.”
       Like Miller, this case shows the distorting effect of mandatory life sentences without the
       possibility of parole. The Act required the court to impose the harshest available penalty in
       Illinois while simultaneously precluding the sentencing court from taking into account any of
       defendant’s mitigating characteristics or circumstances.
¶ 54        Despite these similarities, three critical facts distinguish this case from Miller. First,
       defendant was not a juvenile. He was 55 years old at the time of this offense. His earliest
       conviction resulted from conduct he committed when he was 36 years old. Defendant thus
       lacks the degree of rehabilitative potential inherent in the Miller defendant’s youth. Second,
       defendant was not convicted as an accomplice. Whereas the defendant in Miller was less
       culpable by virtue of the fact that he did not actually perform the acts underlying his
       conviction, defendant was the principal in this case. Unlike the defendant in Miller,
       defendant did not have the twice-diminished culpability of a juvenile convicted under an
       accomplice theory. Third, unlike Miller, defendant’s involvement in this crime was not a
       spontaneous decision. It followed careful planning and the recruitment of an accomplice.
       Given the importance of these facts to the Miller court’s rationale, we find that this case is
       distinct from Miller.
¶ 55        In light of the dearth of Illinois precedent on the precise issue presented in this case, we
       look to the United States Supreme Court’s eighth amendment proportionality jurisprudence
       for further guidance. See People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 280 (1991) (noting
       that Illinois courts may look to federal courts for guidance in interpreting the Illinois
       Constitution). In Solem v. Helm, 463 U.S. 277, 281, 284 (1983), the Court invalidated a
       mandatory natural life sentence for a defendant convicted of his seventh nonviolent felony.
       The defendant in Solem pled guilty to uttering a “no account” check for $100, a felony in
       South Dakota. Id. at 281. At the time of the offense, the defendant had three burglary

                                                    - 13 -
       convictions, a conviction for obtaining money under false pretenses, a conviction for grand
       larceny, and a conviction for driving while intoxicated. Id.at 279-80. South Dakota law
       mandated a natural life sentence without the possibility of parole for any defendant with at
       least three prior felony convictions. Id. at 281-82. Accordingly, the defendant was sentenced
       to mandatory natural life without the possibility of parole. Id. at 282.
¶ 56       In addressing the defendant’s as-applied challenge to South Dakota’s sentencing scheme,
       the Solem Court observed that the defendant’s crime “involved neither violence nor threat of
       violence to any person.” Id. at 295-96. The Court stressed that the defendant’s “prior
       offenses, although classified as felonies, were all relatively minor.” Id. at 296-97. Looking at
       the punishment itself, the Court noted that the defendant’s sentence was “the most severe
       punishment that the State could have imposed on any criminal for any crime,” as South
       Dakota did not authorize the death penalty at the time of the defendant’s sentencing. Id. at
       297. The Court struck down the defendant’s sentence as “significantly disproportionate to his
       crime” because he “received the penultimate sentence for relatively minor criminal conduct.”
       Id. at 303.
¶ 57       By contrast, in Harmelin v. Michigan, 501 U.S. 957 (1991) (plurality op.), the Court held
       that the eighth amendment did not prohibit the imposition of mandatory natural life without
       parole on a defendant convicted of possessing a large quantity of narcotics. In Harmelin,
       Justice Scalia and Chief Justice Rehnquist found that, outside of the context of the death
       penalty, the text of the eighth amendment did not justify any review of the proportionality of
       a sentence to an offense. Id. at 993-94. Justices Kennedy, O’Connor, and Souter, while
       recognizing that the eighth amendment did prohibit some disproportionate sentences, found
       that the defendant’s mandatory natural life sentence for possessing 650 grams of cocaine was
       not so “grossly disproportionate” as to violate the eighth amendment. Harmelin, 501 U.S. at
       1008 (Kennedy, J., concurring in part and concurring in judgment, joined by O’Connor and
       Souter, JJ.). Justice Kennedy’s opinion stressed that, in passing the sentencing statute at
       issue, the legislature could have rationally concluded that “the threat posed to the individual
       and society by possession of this large an amount of cocaine–in terms of violence, crime, and
       social displacement–is momentous enough to warrant the deterrence and retribution of a life
       sentence without parole.” Id. at 1003. After reviewing the societal problems caused by
       narcotics trafficking, Justice Kennedy’s opinion rejected the defendant’s “suggestion that his
       crime was nonviolent and victimless” as being “false to the point of absurdity.” Id. at 1002.
       Since Harmelin, courts have applied the principles outlined in Justice Kennedy’s concurring
       opinion. Henderson v. Norris, 258 F.3d 706, 709 (8th Cir. 2001).
¶ 58       Certain factors present in Solem are also present in this case. Defendant was convicted of
       selling 900 grams of cocaine to an undercover police officer, an offense that did not involve
       violence or a threat of violence. Neither of defendant’s two prior drug convictions involved a
       threat of violence. Whereas the defendant in Solem had six prior felony convictions,
       defendant had only three convictions in his background. Like the sentencing scheme in
       Solem, the mandatory natural life without parole sentence imposed by the Act does not take
       into account the nature of defendant’s offense or his criminal background.
¶ 59       We also acknowledge that, in certain respects, the reasoning of Solem is more persuasive
       than that of Harmelin. Unlike the eighth amendment, Illinois’s proportionate penalties clause
       expressly demands that sentences be proportionate to the offense. Ill. Const. 1970, art. I,
       § 11. In fact, our supreme court has found that the clause was intended “to provide a

                                                  - 14 -
       limitation on penalties beyond those afforded by the eighth amendment.” Clemons, 2012 IL
       107821, ¶ 39. Whereas Justice Scalia and Chief Justice Rehnquist centered much of their
       analysis in Harmelin upon the absence of a proportionality requirement in the eighth
       amendment, there can be no doubt in this case that the Act must satisfy Illinois’s express
       proportionality requirement.
¶ 60        Ultimately, the rationale of Solem, even when viewed in the context of Illinois’s greater
       constitutional restrictions on sentencing, does not persuade us that defendant’s sentence is
       unconstitutional. In that case, the defendant was convicted of the very minor offense of
       passing a bad check. Here, defendant has been convicted of distributing large quantities of
       narcotics on three separate occasions. Unlike the defendant in Solem, defendant cannot be
       said to have engaged in “relatively minor criminal conduct.” Solem, 463 U.S. at 303.
¶ 61        We also find the reasoning of Justice Kennedy’s opinion in Harmelin to be persuasive.
       Narcotics trafficking imposes significant damage on society. In each of defendant’s cases, he
       was convicted of distributing or intending to distribute large quantities of either cocaine or
       heroin. Defendant’s offenses cannot be seen as victimless or minor crimes. Rather, they
       exemplify the type of “hard drug sales” the legislature intended to punish under the Act. 81st
       Ill. Gen. Assem., Senate Proceedings, June 27, 1980, at 30 (statements of Senator
       Sangmeister). Our review of the United States Supreme Court’s jurisprudence thus supports
       the conclusion that defendant’s sentence is not wholly disproportionate to his offense.
¶ 62        In other jurisdictions, courts have varied in their review of mandatory natural life
       sentences without parole for drug offenders. Following Harmelin, lower federal courts have
       uniformly upheld mandatory life without parole sentences for drug offenses in the face of
       eighth amendment challenges. E.g., United States v. Speed, 656 F.3d 714, 720 (7th Cir.
       2011); United States v. Prior, 107 F.3d 654, 659-60 (8th Cir. 1997); United States v. Kratsas,
       45 F.3d 63, 68 (4th Cir. 1995); United States v. Hill, 30 F.3d 48, 50 (6th Cir. 1994); United
       States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991); Terrebonne v. Butler, 848 F.2d
       500, 505-07 (5th Cir. 1988). Some state courts have upheld mandatory life without parole
       sentences for defendants convicted of drug offenses in the face of eighth amendment
       challenges. E.g., State v. Lewis, 46344-KA, at 12-14 (La. App. 2 Cir. 5/18/11); 69 So. 3d 604
       (upheld mandatory life without parole sentence for defendant convicted of possession of
       cocaine, with three prior drug convictions and a burglary conviction); State v. Kadonsky, 671
       A.2d 1064, 1066-67 (N.J. Super. Ct. App. Div. 1996) (upheld mandatory life sentence with
       25 years of parole ineligibility for defendant convicted under “drug kingpin” statute); Dodd v.
       State, 879 P.2d 822 (Okla. 1994) (upheld mandatory life sentence for defendant convicted of
       trafficking 50 pounds of marijuana who had two prior convictions for drug offenses); People
       v. Fluker, 498 N.W.2d 431, 431-32 (Mich. 1993) (upheld mandatory life without parole for
       defendant convicted of delivery of 650 or more grams of cocaine, as opposed to mere
       possession). Other state courts have found that such a sentence violates the eighth
       amendment as applied to certain offenders. E.g., Wilson v. State, 830 So. 2d 765, 767-68
       (Ala. Crim. App. 2001) (defendant with no prior convictions sold 97.8 grams of liquid
       morphine to an undercover police officer); People v. Bullock, 485 N.W.2d 866, 867, 875-76
       (Mich. 1992) (struck down Michigan law mandating life without parole for possession of 650
       grams or more of cocaine).
¶ 63        Although we recognize that the Illinois Constitution places greater restrictions on
       criminal sentencing than the eighth amendment’s prohibition of cruel and unusual

                                                 - 15 -
       punishment, these jurisdictions’ eighth amendment decisions still offer some guidance in this
       case. In cases involving recidivist offenders who traffic large quantities of narcotics, courts
       have upheld the imposition of mandatory life without parole sentences. In this case,
       defendant was convicted of distributing more than 900 grams of cocaine, after having been
       previously convicted of distributing 800 grams of heroin and between 400 and 900 grams of
       cocaine. Defendant’s history of convictions depicts a distinctive pattern of recidivism in
       dealing large quantities of narcotics.
¶ 64        In light of all of the above considerations, we cannot conclude that defendant’s
       mandatory natural life sentence violated the proportionate penalties clause. Defendant was
       convicted of distributing more than 900 grams of cocaine, a serious violation of Illinois law.
       In fact, that offense carries the highest sentencing range for distribution of cocaine under
       Illinois law: 15 to 60 years’ incarceration. 720 ILCS 570/401(a)(2)(D) (West 2010).
       Defendant had been twice convicted of dealing in large quantities of narcotics–between 400
       and 900 grams of cocaine and 800 grams of heroin–before this case. In light of the quantities
       of narcotics in each case, defendant has shown that he poses a significant risk to the
       community. Defendant’s continual involvement in selling large quantities of narcotics, even
       following two prior convictions and sentences, diminishes the likelihood that he will
       rehabilitate. In light of these facts, we conclude that defendant’s sentence of mandatory
       natural life without the possibility of parole does not violate the proportionate penalties
       clause.
¶ 65        Mandatory sentencing schemes like the Act deprive courts of the opportunity to exercise
       their discretion in fashioning sentences appropriate to individual defendants. Wasman v.
       United States, 468 U.S. 559, 563-64 (1984) (“ ‘[h]ighly relevant–if not essential–to [the]
       selection of an appropriate sentence is the possession of the fullest information possible
       concerning the defendant’s life and characteristics’ ” (quoting Williams v. New York, 337
       U.S. 241, 247 (1949))). In this case, the court was precluded from sentencing defendant to
       anything other than the most severe penalty in Illinois, even though the trial court’s
       comments indicate that it believed that a lesser sentence was appropriate. While we recognize
       the harshness of that outcome, we are compelled to uphold defendant’s sentence. Within
       constitutional bounds, the legislature has broad discretion to fashion the penalties for the
       criminal offenses it defines. The facts of this case do not indicate that, in imposing a
       mandatory natural life without parole sentence on defendant, the Act exceeds those bounds.
       We therefore are compelled to affirm defendant’s sentence.

¶ 66                                     III. CONCLUSION
¶ 67      For the reasons stated above, we affirm defendant’s conviction and sentence.

¶ 68      Affirmed.




                                                 - 16 -
