                       PUBLISHED
                               Filed: September 7, 2010


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,
                v.                            No. 07-5
                                          (1:06-cr-00001-JPJ)
CARLOS DAVID CARO,
            Defendant-Appellant.
                                      

                 CORRECTED ORDER

  Caro’s petition for rehearing and rehearing en banc is
before the Court.

  A poll of the Court was requested, and failed to garner the
approval of a majority of the qualified active judges. Judges
Gregory, Davis, and Keenan voted in favor of rehearing en
banc. Chief Judge Traxler, and Judges Wilkinson, Niemeyer,
Motz, King, Shedd, Duncan, Agee, and Wynn voted to deny.
Judge Michael did not participate.

   The petition for rehearing and rehearing en banc is there-
fore denied. Judge Duncan wrote an opinion concurring in the
denial of rehearing and rehearing en banc. Judge Gregory
wrote an opinion dissenting from the denial of rehearing and
rehearing en banc.

  Entered at the direction of Judge Duncan for the Court.
2                    UNITED STATES v. CARO
                             For the Court



                             /s/ Patricia S. Connor
                                  Clerk

DUNCAN, Circuit Judge, concurring:

   The dissent challenges, as unconstitutional on its face, a
federal statute designed for the very purpose of eliminating
arbitrariness in capital sentencing. Although the dissent sug-
gests that the imposition of the death penalty under the act can
turn solely on whether the defendant committed non-violent
crimes, that is simply not the case. The Federal Death Penalty
Act contains numerous safeguards to foster its goal. Among
others, as a threshold matter, the FDPA authorizes the death
penalty only for certain crimes—here, a premeditated murder
of a particularly heinous nature. And at no point is the jury
required to impose a sentence of death. In order to impose the
death penalty even for premeditated murder, the jury would
have to find at least one statutory aggravating factor. The jury
is also required, as it did here, to consider mitigating factors.
Finally, the statute calls for reconsideration of the death pen-
alty when its imposition appears to have resulted from the
influence of arbitrary factors.

   We are not the only circuit to have concluded that this
structure passes constitutional muster. The only other circuit
to have addressed this issue found similarly. See United States
v. Bolden, 545 F.3d 609, 616-17 (8th Cir. 2008). With respect,
the extraordinary step of finding a federal statute facially
unconstitutional is not warranted here.

GREGORY, Circuit Judge, dissenting from the denial of
rehearing and rehearing en banc:

   "[T]he way in which we choose those who will die reveals
the depth of moral commitment among the living." McCleskey
                     UNITED STATES v. CARO                     3
v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J., dissenting).
It reveals our commitment to the Constitution’s bar on cruel
and unusual punishment and to the Founding principle that all
people are endowed with certain rights that are entitled to dig-
nity and respect; a commitment that endures even as we pur-
sue our legitimate interest in exacting retribution for, and
deterring future commission of, the most heinous crimes. Our
commitment is undermined, however, when we distinguish
those who live from those who die on the basis of arbitrary
factors that bear no relation to the goals underlying capital
punishment.

   In his appeal, Carlos Caro challenges the constitutionality
of eligibility factors that select those who die on the basis of
prior convictions for relatively minor, nonviolent drug
offenses. See 18 U.S.C. § 3592(c)(10) & (12). These provi-
sions have never before been used as the sole means to estab-
lish a defendant’s death eligibility. And no state has ever
attempted to apply analogous eligibility factors to any other,
potential capital defendant.

   As I explain at length in my dissent from the panel opinion,
see United States v. Caro, 597 F.3d 608, 636 (4th Cir. 2010)
(Gregory, J., dissenting), these factors fail to distinguish Caro
from other murderers in "an objective, even-handed, and sub-
stantively rational way," Zant v. Stephens, 462 U.S. 862, 879
(1983). Fundamentally, eligibility factors that select defen-
dants on the basis of nonviolent conduct are so detached from
the constitutional justifications for capital punishment that
they cannot be reconciled with the Eighth Amendment. Caro,
597 F.3d at 638-39 (Gregory, J., dissenting) (citing and
explaining cases). Likewise, where eligibility factors could
apply to millions of offenders but are applied, in actuality, to
only one, there is an intolerably high risk that the death pen-
alty is being applied arbitrarily and capriciously. Id. at 642.

  The majority’s dismissal of these serious constitutional
concerns with little more than "drugs are bad," id. at 624
4                       UNITED STATES v. CARO
(majority opinion) ("Moreover, the felony drug offenses
described by § 3592(c)(10) and (12) are serious indeed, how-
ever common may be their commission."), is remarkably tone
deaf. The fact that Congress targeted minor, nonviolent drug
offenders for death-eligibility, but not any other class of non-
violent offenders, does not reduce the constitutional problems
in Caro’s death sentence. It amplifies them.

   Only two states’ death-penalty statutes can arguably be
read to enhance a sentence from life in prison to death on the
basis of a defendant’s prior, nonviolent drug convictions.1
And outside the death-penalty context, there is mounting and
sustained criticism of laws that "treat[ ] a defendant who has
committed a series of relatively minor and nonviolent drug
crimes more severely than a murderer, and that take[ ] no
account of the seriousness of the predicate crimes." United
States v. Pruitt, 502 F.3d 1154, 1167 (10th Cir. 2007)
(McConnell, J., concurring). Indeed, there is a growing con-
sensus in our society — as reflected in the actions of our
elected representatives and governing institutions — that even
exceedingly harsh prison sentences for nonviolent drug
offenders go beyond what is necessary to achieve the goals of
sentencing and, by extension, create arbitrary disparities
between offender classes. Cf. Kimbrough v. United States,
552 U.S. 85, 95-100 (2007) (discussing criticism of crack-
powder disparity in federal sentencing guidelines).

   Acting in response to heavy criticism of sentencing policy
by judges, academics, and other members of the public, the
Attorney General recently established a commission to
reevaluate the application of harsh, mandatory sentences for
nonviolent drug offenders.2 Of particular concern to the
    1
     N.H. Rev. Stat. Ann. § 630:1 (2010); La. Code Crim. Proc. Ann. art.
905.4(A)(11) (2010).
   2
     See Sally Quillian Yates, United States Attorney for the Northern Dis-
trict of Georgia, Testimony of the United States Department of Justice,
Mandatory Minimum Sentencing Statutes, Before the United States Sen-
tencing Commission 1-3 (May 27, 2010).
                       UNITED STATES v. CARO                          5
Department of Justice is data demonstrating that increasing
sentencing disparities are "correlated with the demographics
of offenders," and that those unwarranted disparities arise
from the fact that so many drug offenders are subject to
mandatory-minimum sentences while even the most serious
white-collar offenders are not.3

   For its part, the United States Sentencing Commission has
taken several recent steps to address the acknowledged unfair-
ness in the application of the sentencing guidelines to nonvio-
lent drug offenders. The Commission reduced the guideline
range for offenders convicted of crack cocaine offenses based
on its belief "that the 100-to-1 [disparity between crack and
powder cocaine sentences] significantly undermines various
congressional objectives set forth in the Sentencing Reform
Act and elsewhere." U.S. Sentencing Guidelines Manual
Supp. App. C, Amdt. 706. It also recommended that Congress
repeal the 100-to-1, crack-powder disparity. Id. Congress
responded by significantly narrowing the disparity in a bill
signed by President Obama on August 3, 2010. See Fair Sen-
tencing Act of 2010, Pub. L. No. 111-220 (July 28, 2010).
Finally, the Commission introduced several changes to the
guidelines, scheduled to go into effect this November, which
would provide district courts with greater leeway to fashion
downward departures and substitute treatment programs for
prison terms for many nonviolent drug offenders. See U.S.
Sentencing Guidelines Manual proposed Amdt. 1.

   This same trend towards abolishing disproportionately high
prison sentences for nonviolent drug offenders is taking hold
at the state level. New York, for instance, repealed the so-
called "Rockefeller Drug Laws," by eliminating mandatory-
minimum sentences for most nonviolent users and distributors
and increasing judges’ discretion to sentence these offenders
to treatment rather than prison.4 Lawmakers explained that
  3
   See id. at 7.
  4
   Jeremy W. Peters, Albany Reaches Deal to Repeal ‘70s Drug Laws,
N.Y. Times, March 26, 2009, at A1; Press Release, Office of the Governor
6                      UNITED STATES v. CARO
repeal was necessary because the harshest provisions were
being applied to low-level offenders and not kingpins;5
because treatment is often a more effective and efficient way
of combating the drug epidemic that continues to plague soci-
ety;6 and because mandatory-minimum sentences dispropor-
tionately targeted blacks and Hispanics.7 New Jersey likewise
repealed its law imposing mandatory-minimum sentences for
nonviolent drug dealers who distribute drugs within "school
zones."8 Legislators noted that a law originally intended to
target drug dealers who preyed on children was not doing so;
instead, it was ensnaring low-level offenders, ninety-six per-
cent of whom were black or Hispanic, who lived in the poor-
est areas of the state.9 And Michigan, which once had
arguably the nation’s harshest drug laws, repealed its
mandatory-minimum sentencing scheme several years ago, in
large part out of concern that the laws were predominantly
affecting low-level carriers and drug mules.10

   Factors that our political institutions view as deeply trou-
bling when used to dramatically enhance an individual’s
prison term, are constitutionally intolerable when used to jus-
tify a death sentence. See California v. Ramos, 463 U.S. 992,

of New York, Governor Paterson Signs Rockefeller Drug Reforms Into
Law (Apr. 24, 2009), available at http://www.state.ny.us/governor/
printable/press_0424091_printable.html [hereinafter Press Release].
   5
     See Madison Gray, New York’s Rockefeller Drug Laws, Time Maga-
zine, Apr. 02, 2009 (quoting New York Governor David Paterson).
   6
     See Press Release, supra note 4 (statement of Senator Ruth Hassell-
Thompson).
   7
     See id. (statement of Assemblyman Jeffrion L. Aubry).
   8
     Lisa Fleisher, School-Zone Law Relaxed, Star-Ledger, Jan. 13, 2010,
at 028.
   9
     Chris Megerian, Bill Eases Some School Zone Drug Penalties; Action
in Jersey Senate Praised as a Lifesaver and Blasted as Going Soft on
Crime, Star-Ledger, Dec. 11, 2009, at 001.
   10
      Associated Press, Michigan to Drop Minimum Sentence Rules for
Drug Crimes, N.Y. Times, Dec. 26, 2002, at A26.
                     UNITED STATES v. CARO                      7
998-99 (1983) (explaining that Supreme Court "has recog-
nized that the qualitative difference of death from all other
punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination"); Lockett v.
Ohio, 438 U.S. 586, 604-05 (1978) (explaining that while the
judiciary generally defers to legislative policy choices in non-
capital sentencing, the death penalty’s qualitative difference
requires that those choices be subjected to heightened scrutiny
in the capital punishment context). The death penalty may
only be applied to those defendants who can "with reliability
be classified among the worst offenders." Roper v. Simmons,
543 U.S. 551, 569 (2005). It may only be imposed to advance
the state’s interest in retribution and deterrence — interests
that are not sufficiently furthered even when applied to the
average murderer. Id. at 571; Atkins v. Virginia, 536 U.S. 304,
319 (2002). It may not be applied "wantonly" and "freakishly"
to certain offender classes. Furman v. Georgia, 408 U.S. 238,
310 (1972) (Stewart, J., concurring). And it may not be
applied in such a way as to create a "‘constitutionally unac-
ceptable’" risk that racial prejudice enters into the capital sen-
tencing process. McCleskey, 481 U.S. at 309 (majority
opinion) (quoting Turner v. Murray, 476 U.S. 28, 36 n.8
(1986)); see Graham v. Collins, 506 U.S. 461, 479-86 (1993)
(Thomas, J., concurring) (discussing the way in which the
Supreme Court’s capital jurisprudence has been motivated, in
large degree, by the need to eliminate significant racial dispar-
ities in the death penalty’s application); Furman, 408 U.S. at
249-50 (Douglas, J., concurring) (finding the death penalty
unconstitutional as applied to the defendants because "[t]he
death sentence is disproportionately imposed and carried out
on the poor, the Negro, and the members of unpopular
groups").

   Carlos Caro was a drug addict and a drug mule. His father
and uncles raised him to join the family business, smuggling
marijuana and cocaine across the Mexican border. In many
ways, Carlos Caro never had a chance. Before going to
prison, however, there is no indication that he was ever vio-
8                   UNITED STATES v. CARO
lent. And though his murder, like all murders, was heinous
and despicable, the only difference between his crime and
"average" murders for which death may not be prescribed,
Atkins, 536 U.S. at 319, is his history with drugs.

   How can a factor that society has begun to reject as a basis
for extraordinarily long prison sentences now, for the first
time, be the sole ground to enhance a prison term to a death
sentence? How can a factor that we recognize substantially
over-punishes low-level, nonviolent offenders be compatible
with the requirement that the death penalty only be applied to
the worst of the worst? And how can we accept a factor that
we know risks distinguishing between offenders based on
irrational and pernicious characteristics?

  The majority’s refusal to grapple with, let alone answer,
any of these questions is telling. I am disappointed that the
Court allows this silence to control.
