                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-2007

USA v. Walker
Precedential or Non-Precedential: Precedential

Docket No. 04-4405




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                          No. 04-4405
                          ___________

               UNITED STATES OF AMERICA

                               v.

                     MICHAEL WALKER,

                                                Appellant



         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                   (D.C. Crim. No. 03-cr-00093)
         District Judge: The Honorable Edwin M. Kosik
                          ___________

           Submitted Under Third Circuit LAR 34.1(a)
                      December 12, 2006

    BEFORE: FUENTES and VAN ANTWERPEN, Circuit Judges,
                          and
                 PADOVA, District Judge.*

                (Opinion filed: January 16, 2007)




*
 Honorable John R. Padova of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
Enid W. Harris
Harris & Van Jura
26 Pierce Street
Kingston, PA 18704

       Counsel for Appellant

Thomas A. Marino
 United States Attorney
John C. Gurganus, Jr.
 Assistant United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18501

       Counsel for Appellee

                          ___________

                  OPINION OF THE COURT
                       ___________

PADOVA, District Judge

        Michael Walker appeals his sentence from a conviction in
the United States District Court for the Middle District of
Pennsylvania for numerous firearms, robbery and drug charges. At
issue is whether the 55-year consecutive mandatory minimum
portion of his sentence on the firearms charges violates the Fifth
and Eighth Amendments to the Constitution. We have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We will
affirm.
                                I.

       Superceding Indictment No. 03-93 charged Walker with
offenses arising from the armed robbery of the Mr. Z’s Food Mart
in Hawley, Pennsylvania on October 26, 2001; the armed robbery
of the Peoples National Bank in Nicholson, Pennsylvania on
November 30, 2001; and the sale of cocaine, cocaine base
(“crack”), and marijuana in Scranton, Pennsylvania between
October 2001 and September 28, 2002. Walker was charged with

                                2
two counts in connection with the Mr. Z’s robbery: interference
with commerce by robbery, in violation of 18 U.S.C. § 1951
(Count I) and using and possessing a short-barreled Harrington and
Richardson 12 gauge shotgun during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (Count II). On October
26, 2001, Walker robbed two employees of Mr. Z’s who were on
their way to make a night deposit at a bank in the same strip mall.
Walker demanded the deposit bag from the employees, told the
employees to run, and fired a shot from his short-barreled shotgun.
He made off with $9,628.21 in cash and $14,698.87 in checks,
receipts and coupons.

       The Superceding Indictment also charged Walker with two
counts in connection with the Peoples National Bank robbery:
armed bank robbery, in violation of 18 U.S.C. § 2113(d) (Count
III) and using, carrying and brandishing a short-barreled
Harrington and Richardson 12 gauge shotgun and a silver Bryco
.380 automatic handgun during and in relation to the crime of
armed bank robbery, in violation of 18 U.S.C. § 924(c) (Count IV).
On November 30, 2001, Walker used both the sawed-off shotgun
and the handgun to rob the Peoples National Bank. He pointed the
shotgun in the faces of employees of the bank, and threw a 92-year-
old man to the ground when the man did not respond to his
commands. He obtained $8,863 from the bank robbery. The
Superceding Indictment also charged Walker with one count of
possession of an unregistered short-barreled Harrington and
Richardson 12 gauge shotgun between October 2001 and February
2002, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count
V).

        In addition to the robbery and firearms charges, the
Superceding Indictment charged Walker with four counts related
to his sales of cocaine, cocaine base (“crack”), and marijuana from
his home in Scranton, Pennsylvania: conspiracy to distribute and
possess with intent to distribute in excess of 50 grams of cocaine
base (“crack”), cocaine, and marijuana between October 2001 and
September 28, 2002, in violation of 21 U.S.C. § 846 (Count VI);
distribution of cocaine base (“crack”) and aiding and abetting the
distribution of cocaine base (“crack”) between October 2001 and
September 27, 2002, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Count VII); possession with intent to distribute in

                                3
excess of five grams of cocaine base (“crack”) and aiding and
abetting the possession with intent to distribute in excess of five
grams of cocaine base (“crack”) on September 28, 2002, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count VIII);
and possession of a Jennings .9mm pistol during and in relation to
a drug trafficking offense on September 28, 2002, in violation of
18 U.S.C. § 924(c) (Count IX). In connection with these drug
trafficking offenses, Walker distributed and possessed with intent
to distribute 100 grams of cocaine base and 1 kilogram of cocaine
and supervised the distribution of these drugs by another
individual.

       The drug trafficking charges (Counts VI - IX) were severed
from the armed robbery and armed bank robbery charges (Counts
I - V) for trial. On March 12, 2004, Walker was convicted by a
jury of Counts VI - IX. On September 29, 2004, Walker was
convicted by a jury of Counts I - V.

       Walker was sentenced on June 16, 2005. He objected to the
pre-sentence report on the grounds that the consecutive mandatory
minimum sentences totaling 55 years of imprisonment for the three
violations of 18 U.S.C. § 924(c), Counts II, IV and IX, were
unconstitutional.1 The District Court overruled his objections and
sentenced him to a term of imprisonment of 65 years, consisting of


   1
     Title 18, United States Code, Section 924(c) provides that the
mandatory minimum term of imprisonment for possession of a
firearm during and in relation to a crime of violence or a drug
trafficking offense is five years. 18 U.S.C. § 924(c)(1)(A)(i). If
the firearm is a short-barreled shotgun, the mandatory minimum
term of imprisonment is ten years. 18 U.S.C. § 924(c)(1)(B)(i). If
the defendant is being sentenced for a second or subsequent
conviction of Section 924(c), the mandatory minimum term of
imprisonment is 25 years. 18 U.S.C. § 924(c)(1)(C)(i). Section
924(c)(1)(C)(i) applies even if the second or subsequent conviction
is for a count charged in the same indictment as the initial violation
of Section 924(c). See Deal v. United States, 508 U.S. 129, 131-
134 (1993). Consequently, the pre-sentence report recommended
that Counts II and IV, relating to Walker’s use of the short-
barreled shotgun, be sentenced as second or subsequent offenses.

                                  4
120 months on each of Counts I, III, V, VI, VII, and VIII, to be
served concurrently;2 and to mandatory minimum terms of
imprisonment of five years on Count IX, to be served consecutively
to the term of imprisonment imposed for Counts I, III, V, VI, VII
and VIII; and 25 years on each of Counts II and IV, to be served
consecutively to each other and to the terms imposed for Counts I,
III, V, VI, VII, VIII, and IX. The District Court also sentenced
Walker to a total term of supervised release of five years, a special
assessment of $900, and restitution in the amount of $24,004.72, to
be paid to Mr. Z’s Food Mart and to Peoples National Bank.3

                                 II.

        Walker asks us to find that his consecutive mandatory
minimum sentence of 55 years of imprisonment pursuant to 18
U.S.C. § 924(c)(1) is unconstitutional because it violates the Due
Process Clause of the Fifth Amendment and the doctrine of
separation of powers; constitutes an irrational classification in
violation of the equal protection principles of the Fifth
Amendment; inflicts cruel and unusual punishment in violation of
the Eighth Amendment; and was not appropriate under established
rules of statutory construction. The standard of review for Walker’s
constitutional challenge to his mandatory minimum sentence is
plenary, as is his statutory construction challenge. See United
States v. Randolph, 364 F.3d 118, 121 (3d Cir. 2004) (“We apply
a plenary standard of review to issues of statutory interpretation,


   2
     Walker’s sentence for these offenses is less than the advisory
Guidelines sentencing range. Walker had a total offense level of
34 for Counts I, III, V, VI, VII and VIII and a criminal history
category of I. The advisory Guidelines sentencing range for a total
offense level of 34 and a criminal history category of I is 151-188
months. See U.S.S.G. Part 5A.
      3
        Walker was ordered to pay restitution in the amount of
$18,541.72 to Mr. Z’s Food Mart and $5,463.00 to Peoples
National Bank. Walker had paid James Harris, who drove the get-
away car from the Peoples National Bank robbery, $3,400 from the
proceeds of that robbery. Harris, who was also convicted in the
robbery, was ordered to pay restitution to Peoples National Bank
in the amount of $3,400 as part of his sentence.

                                 5
and to questions regarding a statute’s constitutionality.”) (citations
omitted).

                                 III.

        Walker contends that the mandatory consecutive sentencing
scheme of Section 924(c)(1) violates the Due Process Clause of the
Fifth Amendment and the doctrine of separation of powers because
it limits the court’s discretion at sentencing and turns that
discretion over to the executive branch. See Mistretta v. United
States, 488 U.S. 361, 390-91 (1989) (stating that responsibility for
sentencing has traditionally been shared by the three branches of
government). He notes that, when Section 924(c)(1) was initially
passed into law in 1968, it provided for mandatory terms of
imprisonment of 2 to 25 years for second or subsequent offenders,
thereby giving judges considerable discretion in sentencing second
or subsequent offenders. See Gun Control Act of 1968, Pub. L.
No. 90-618, § 102, 82 Stat. 1223 (1968); Simpson v. United States,
435 U.S. 6, 7-8 (1978). Walker maintains that Congress, in
amending the statute to eliminate that discretion, created an
unconstitutional mandatory sentencing scheme. He also argues that
the mandatory consecutive sentencing scheme of Section 924(c)(1)
violates the Due Process Clause because it prevents the courts from
conducting individualized sentencing. He further asserts that the
55-year increase in his sentence of imprisonment attributable solely
to his Section 924(c)(1) convictions cannot be consistent with due
process without an individualized determination of whether his
conduct and criminal history justify such a sentence.

       This Court has squarely addressed and rejected the argument
that mandatory sentences violate the doctrine of separation of
powers and the Due Process Clause. See United States v.
MacEwan, 445 F.3d 237 (3d Cir.), cert. denied, 127 S. Ct. 208
(2006); see also United States v. Frank, 864 F.2d 992, 1010 (3d
Cir. 1988). Regarding the separation of powers argument,
MacEwan noted that the Supreme Court “has specifically held that
‘Congress has the power to define criminal punishments without
giving the courts any sentencing discretion.’” Id. at 251 (quoting
Chapman v. United States, 500 U.S. 453, 467 (1991)). The
MacEwan Court explicitly considered whether mandatory
sentencing schemes vest too much power in the prosecutor and

                                  6
concluded that “‘a legislature can exercise its right to limit judicial
discretion in sentencing by bestowing on prosecutors the right to
make decisions that may curtail judicial discretion.’” Id. at 252
(quoting Ehrsam v. Rubenstein, 917 F.2d 764, 767 (3d Cir. 1990)).
McEwan also recognized that this Court has repeatedly rejected
due process challenges to mandatory sentencing schemes on the
ground that there is no due process right to individualized
sentencing. See id. (citing Ehrsam, 917 F.2d at 766); Frank, 864
F.2d at 1010. Accordingly, the 55-year mandatory consecutive
sentence required by Section 924(c)(1) does not violate the
separation of powers doctrine or the Due Process Clause of the
Fifth Amendment.

                                 IV.

       Walker also argues that his 55-year mandatory consecutive
sentence for violations of Section 924(c)(1) is irrational when
compared with the punishment for other, more serious federal
crimes and, therefore, violates the equal protection principles of the
Due Process Clause. See Mathews v. De Castro, 429 U.S. 181, 182
n.1 (1976) (“It is well settled that the Fifth Amendment’s Due
Process Clause encompasses equal protection principles.” (citing
Weinberger v. Salfi, 422 U.S. 749, 768-770 (1975))). The
Supreme Court has explained that “a classification neither
involving fundamental rights nor proceeding along suspect lines is
accorded a strong presumption of validity. Such a classification
cannot run afoul of the Equal Protection Clause if there is a rational
relationship between the disparity of treatment and some legitimate
governmental purpose.” Heller v. Doe, 509 U.S. 312, 319-20
(1993) (internal quotations and citations omitted).

        Under rational basis review, “a classification must be upheld
against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification.” Id. at 320 (internal quotation and citations
omitted). Consequently, the principles of equal protection are
satisfied “so long as there is a plausible policy reason for the
classification, the legislative facts on which the classification is
apparently based rationally may have been considered to be true by
the governmental decisionmaker, and the relationship of the
classification to its goal is not so attenuated as to render the

                                  7
distinction arbitrary or irrational.” Fitzgerald v. Racing Ass’n of
Central Iowa, 539 U.S. 103, 107 , (2003) (internal quotation
omitted).

       Walker argues that Section 924(c)(1) is intended to punish
the potential for violence created by the carrying of a firearm in the
prohibited circumstances and that it is irrational to punish the
potential for violence more harshly than actual violent crime. He
asks us to compare the sentence he received in this case, for three
violations of Section 924(c), with the sentences recommended by
the Sentencing Guidelines for other, actually violent, crimes such
as an aircraft hijacking, a terrorist bombing, and a racially
motivated assault with attempt to kill. Assuming that Walker’s
hypothetical violent criminals had no prior adult criminal
convictions, his airline hijacker would have a total offense level of
38, a criminal history category of I, and an advisory Guidelines
sentencing range of 235-293 months pursuant to U.S.S.G. § 2A5.1
and Part 5A; his terrorist bomber would have a total offense level
of 36 and a criminal history category of VI, and face an advisory
Guidelines sentencing range of 324-405 months pursuant to
U.S.S.G. § 2K1.4(a), § 3A1.4(a) and (b) and Part 5A; and his racist
attempted murderer would have a total offense level of 40, a
criminal history category of I, and an advisory Guidelines
sentencing range of 292-365 months pursuant to U.S.S.G. §
2A2.1(a), § 2A2.1b(a)(A), § 3A1.1(a), and Part 5A. Walker’s
hypotheticals do not take into account the fact that a defendant who
commits three such violent crimes could be subject to a term of
imprisonment at least as long as the one imposed on Walker. Thus,
Section 924(c)(1) did not irrationally punish the potential for
violence posed by Walker’s use of a firearm in connection with two
crimes of violence and one drug trafficking crime more than he
might have been punished for “actual” violent crime.

       Walker also argues that Section 924(c)(1) is irrational
because it fails to differentiate between a first time offender who
commits more than one Section 924(c)(1) offense and a recidivist.
Consequently, he contends that he is being punished as a recidivist
even though he has not “failed to learn his lessons from the initial
punishment” and committed a repeat offense. The Supreme Court
has rejected the contention that the second or consecutive
sentencing provision of Section 924(c)(1)(C)(i) could only

                                  8
rationally apply to “recidivists.” See Deal v. United States, 508
U.S. 129 (1993) (holding that Congress intended that the
mandatory terms of 20 years each for second and subsequent
offenses required by Section 924(c)(1)(C)(i) be imposed even if all
of the offenses were charged in the same indictment). In rejecting
the contention that application of Section 924(c)(1)(C)(i) to an
offender who was charged with two or more violations of Section
924(c) in the same indictment defied common sense, the Supreme
Court stated :

              We choose to follow the language of
              the statute, which gives no indication
              that punishment of those who fail to
              learn the “lesson” of prior conviction
              or of prior punishment is the sole
              purpose of § 924(c)(1), to the
              exclusion of other penal goals such as
              taking repeat offenders off the streets
              for especially long periods, or simply
              visiting society’s retribution upon
              repeat offenders more severely. We
              do not agree with the dissent’s
              suggestion that these goals defy
              “common sense.”        It seems to us
              eminently sensible to punish the
              second murder, for example, with life
              in prison rather than a term of
              years-whether or not conviction of the
              first murder (or completion of the
              sentence for the first murder) has yet
              occurred.

Deal, 508 U.S. at 136-37 (footnote omitted). Moreover, Walker is
not a “recidivist” only because the prosecutor in his case chose to
indict him on all three violations of Section 924(c)(1) in one multi-
count indictment, instead of charging the three separate violations
of Section 924(c)(1) in three separate indictments. Section
924(c)(1) did not, therefore, irrationally fail to differentiate
between a first-time offender and a recidivist in this case.

       The Government urges us to conclude that Congress’s

                                 9
decision to classify and punish repeat violators of Section 924(c)(1)
more harshly than one-time offenders is rationally related to the
legitimate governmental interest in discouraging the use of firearms
in violent crimes and drug trafficking crimes and in punishing more
harshly criminals who repeatedly use deadly weapons. Congress’s
“overriding purpose” in passing Section 924(c) “was to combat the
increasing use of guns to commit federal felonies.” Simpson, 435
U.S. at 10 (emphasis omitted). The chief sponsor of this provision
explained that “the provision seeks ‘to persuade the man who is
tempted to commit a Federal felony to leave his gun at home.’”
Muscarello v. United States, 524 U.S. 125, 132 (1998) (citing 114
Cong. Rec. 22231 (1968) (Rep. Poff)); Busic v. United States, 446
U.S. 398, 405 (1980); Simpson, 435 U.S. at 13-14; 114 Cong. Rec.
22243-22244, 22236).

        Section 924(c) has been amended several times. In the
Comprehensive Crime Control Act of 1984, Congress “eliminat[ed]
the range of permissible penalties, set[] a mandatory prison term of
five years,” for use or carrying of a firearm during or in relation to
a crime of violence, “and specif[ied] that that term was to be added
on top of the prison term related to the underlying ‘crime of
violence,’ including statutory sentences that imposed certain other
weapons-related enhancements.” Castillo v. United States, 530
U.S. 120, 129 (2000) (citation omitted); see also Comprehensive
Crime Control Act, Pub. L. 98-473, § 1005(a), 98 Stat. 2138
(1984). Congress also imposed a mandatory term of ten years of
imprisonment for a second or subsequent offense in the same Act.
Comprehensive Crime Control Act, Pub. L. 98-473, § 1005(a), 98
Stat. 2138 (1984). In 1986, Congress amended Section 924(c)(1)
to require mandatory penalties when a firearm is used or carried in
connection with drug trafficking and to increase the mandatory
penalty for certain types of weapons. Firearms Owner’s Protection
Act, Pub. L. No. 99-308, § 104(a)(2), 100 Stat. 456-57 (1986).
The mandatory penalties of Section 924(c)(1) were extended to the
use of firearms in connection with drug trafficking crimes in order
to “combat the ‘dangerous combination’ of ‘drugs and guns.’”
Muscarello, 524 U.S. at 132 (quoting Smith v. United States, 508
U.S. 223, 240 (1993)). In 1988, Congress increased the mandatory
term of imprisonment for a second or subsequent conviction under
Section 924(c)(1) from ten years to twenty years. Anti-Drug Abuse
Act of 1988, Pub. L. 100-690, § 6460, 102 Stat. 4373 (1988). In

                                 10
1998, Congress again amended Section 924(c)(1) to require the
present mandatory minimum sentence of 25 years for a second or
subsequent conviction. An Act to Throttle Criminal Use of Guns,
Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998).

       This Court has previously recognized that, in imposing the
mandatory consecutive sentences for second or subsequent
offenders in Section 924(c)(1), “[i]t is likely that Congress meant
. . . to protect our communities from violent criminals who
repeatedly demonstrate a willingness to employ deadly weapons by
punishing them more harshly.” United States v. Couch, 291 F.3d
251, 255 (3d Cir. 2002). The United States Court of Appeals for
the Fourth Circuit has similarly noted that the significantly higher
mandatory penalties for second and subsequent offenses are
intended to “deter the use of firearms in the commission of crimes
and to increase the cost of committing a second offense. The
mandatory aspect of the sentences and the enhancement provisions
in connection with a second offense reveal the strong policy of
encouraging would-be criminals to leave their handguns at home.”
United States v. Raynor, 939 F.2d 191, 194 (4th Cir. 1991) (citing
United States v. Rawlings, 821 F.2d 1543, 1546 (11th Cir. 1987)).
We conclude, accordingly, that Congress had a rational basis for
treating second or subsequent offenses under Section 924(c)(1)
more harshly than first offenses and for imposing severe mandatory
punishments for such offenses. See Muscarello, 524 U.S. at 132;
Couch, 291 F.3d at 255; Raynor, 939 F.2d at 194. Walker’s 55-
year mandatory consecutive sentence for his three violations of
Section 924(c)(1) does not, therefore, violate the equal protection
principles of the Fifth Amendment.

                                V.

      Walker further argues that his sentence violates the Eighth
Amendment’s prohibition on cruel and unusual punishment
because (1) it is grossly disproportionate to the offenses that he
committed and (2) it is contrary to the evolving standards of
decency that are the hallmark of our civilized society. The
Supreme Court has long recognized that “[t]he Eighth Amendment,
which forbids cruel and unusual punishments, contains a ‘narrow
proportionality principle’ that ‘applies to noncapital sentences.’”
See Ewing v. California, 538 U.S. 11, 20 (2003) (rejecting the

                                11
argument made by Ewing, who was sentenced to a prison term of
25 years to life under California’s three strikes law after he was
convicted of stealing three golf clubs, that California’s three strikes
law violated the Eighth Amendment) (quoting Harmelin v.
Michigan, 501 U.S. 957, 996-997 (1991) (Kennedy, J., concurring
in part and concurring in judgment)); see also Solem v. Helm, 463
U.S. 277, 286 (1983) (“[T]he constitutional principle of
proportionality has been recognized explicitly in this Court for
almost a century.”). Although the proportionality principle applies
to sentences for terms of years, only an extraordinary case will
result in a constitutional violation. Lockyer v. Andrade, 538 U.S.
63, 72, 77 (2003).4

        In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme
Court held that the mandatory life sentence imposed on Rummel
for his third felony, “obtaining $120.75 by false pretenses,” did not
violate the Eighth Amendment. Id. at 266, 284-285. The Rummel
Court explained that “the Eighth Amendment prohibits imposition
of a sentence that is grossly disproportionate to the severity of the
crime.” Id. at 271 (citations omitted). However, “[o]utside the
context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.”
Id. at 272.     In Hutto v. Davis, 454 U.S. 370 (1982) (per curiam),
the Supreme Court assessed its decision in Rummel and determined
that “Rummel stands for the proposition that federal courts should
be ‘reluctant to review legislatively mandated terms of



   4
    In Lockyer, the Supreme Court found that the decision of the
California Supreme Court, that a three strikes law sentence of two
consecutive terms of 25 years to life imprisonment for a state
prisoner who had been convicted of two petty theft offenses did not
violate the Eighth Amendment’s proportionality principle, was not
an unreasonable application of clearly established precedent.
Lockyer, 538 U.S. at 69-70. Lockyer was convicted of two
offenses of stealing videotapes from a Kmart store. Id. at 66. The
five videotapes stolen in the first offense had a total value of
$84.70, the four videotapes stolen in the second offense had a total
value of $68.84. Id.


                                  12
imprisonment.’”5 Id. at 374 (quoting Rummel, 445 U.S. at 272,
274).

        One of those exceedingly rare successful cases was Solem
v. Helm, 463 U.S. 277 (1983), in which the Supreme Court applied
the proportionality principle in finding that the Eighth Amendment
prohibited a life sentence without the possibility of parole for a
recidivist offender convicted of “uttering a ‘no account’ check for
$100.” Solem, 463 U.S. at 281. Helm, who had six previous
nonviolent felony convictions, none of which was a crime against
a person, and all of which involved alcohol, was convicted of
“uttering a ‘no account’ check for $100” after a night of drinking.
Id. at 279-80, 281. Although the maximum penalty for uttering a
“no account” check was five years imprisonment and a $5000 fine,
Helm was, because of his previous felony convictions, subject to
sentencing under South Dakota’s recidivist statute, which required
enhanced sentencing up to a maximum of life imprisonment
without parole and a $25,000 fine. Id. at 281. He was,
accordingly, sentenced to life imprisonment. Id. at 282. The
Solem Court utilized the following three factors in analyzing
whether his sentence was so disproportionate that it violated the
Eighth Amendment: “(1) the gravity of the offense and the
harshness of the penalty;” (2) “the sentences imposed on other
criminals in the same jurisdiction;” and (3) “the sentences imposed
for commission of the same crime in other jurisdictions.” Id. at
292. The Court determined that Helm “received the penultimate
sentence for relatively minor criminal conduct;” that the sentence
he received was more severe “than other criminals in the State who


      5
        Hutto had challenged his forty-year state sentence for
possession of nine ounces of marijuana and drug paraphernalia and
selling marijuana as cruel and unusual. Hutto, 454 U.S. at 370-71.
The district court granted Hutto’s petition for writ of habeas corpus
on the grounds that his sentence was “so grossly out of proportion
to the severity of the crimes as to constitute cruel and unusual
punishment in violation of the Eighth Amendment of the United
States Constitution.” Id. at 371. The United States Court of
Appeals for the Fourth Circuit affirmed the decision of the district
court. Id. at 372. The Supreme Court reversed because the Fourth
Circuit failed to follow Rummel. Id.

                                 13
have committed more serious crimes,” such as treason, first degree
manslaughter, first degree arson, kidnapping, and attempted
murder; and that he had “been treated more harshly than he would
have been in any other jurisdiction, with the possible exception of
a single State.” Id. at 298, 300. The Court concluded that Helm’s
sentence was “significantly disproportionate to his crime, and [was]
therefore prohibited by the Eighth Amendment.” Id. at 300.

        In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme
Court rejected a proportionality challenge to the mandatory
sentence of life without possibility of parole imposed on a first-
time offender convicted of possession of 672 grams of cocaine. Id.
at 961. Justice Scalia, writing for a majority of the Court, rejected
Harmelin’s argument that severe mandatory penalties were cruel
and unusual in violation of the Eighth Amendment. Id. at 994-95
(noting that “mandatory penalties may be cruel, but they are not
unusual in the constitutional sense, having been employed in
various forms throughout our Nation’s history”). In his concurring
opinion, Justice Kennedy suggested that the following principles
inform the Court’s proportionality analysis: “the primacy of the
legislature, the variety of legitimate penological schemes, the
nature of our federal system, and the requirement that
proportionality review be guided by objective factors.” Id. at
1001. He further suggested that these principles “inform the final”
principle that the “Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only
extreme sentences that are ‘grossly disproportionate’ to the crime.”
Id. (citing Solem, 463 U.S. at 288, 303; Weems, 217 U.S. at 371;
Coker v. Georgia, 433 U.S. 584, 592 (1977); and Rummel, 445
U.S. at 271). Justice Kennedy also explained that the courts need
not always engage in an analysis of the second and third Solem
factors when conducting a proportionality review:
“intrajurisdictional and interjurisdictional analyses are appropriate
only in the rare case in which a threshold comparison of the crime
committed and the sentence imposed leads to an inference of gross
disproportionality.” Id. at 1005. In Ewing, the Supreme Court
adopted the use of these principles in the proportionality analysis.
See Ewing, 454 U.S. at 23-24 (“The proportionality principles in
our cases distilled in Justice Kennedy’s concurrence guide our
application of the Eighth Amendment . . . .”).


                                 14
        Walker argues that his sentence is grossly disproportionate
to his offense in violation of the Eighth Amendment in accordance
with the proportionality factors set forth in Solem. He contends
that the first factor is satisfied because his Guidelines sentence for
the drug and robbery convictions is sufficient to punish all of his
crimes and that the involvement of guns in those crimes does not
warrant increasing his sentence by 55 years of imprisonment. He
further argues that a comparison of his sentence and the sentences
for other serious federal crimes shows that his sentence is extreme
and satisfies the second factor. He also maintains that it is common
knowledge that the 55-year sentence which he received for his
violations of Section 924(c)(1) is far more severe than he would
have received in other jurisdictions, satisfying the third factor.

        This Court recently examined the application of the Solem
factors in light of Harmelin and Ewing. See MacEwan, 445 F.3d
at 247-50 (rejecting MacEwan’s proportionality challenge to his
fifteen-year mandatory minimum sentence for his second
conviction for downloading child pornography over the internet).
The MacEwan Court explained that, in using the Solem factors to
evaluate proportionality challenges to sentences under the Eighth
Amendment, courts “‘should grant substantial deference to the
broad authority that legislatures necessarily possess in determining
the types and limits of punishments for crimes.’” MacEwan, 445
F.3d at 247 (quoting United States v. Rosenberg, 806 F.2d 1169,
1175 (3d Cir. 1986)). The MacEwan Court also noted that the
“principle of substantial deference therefore ‘restrains us from an
extended analysis of proportionality save in rare cases.’” Id. at
247-48 (quoting Rosenberg, 806 F.2d at 1175). Therefore, “the
first proportionality factor acts as a gateway or threshold. If the
defendant fails to show a gross imbalance between the crime and
the sentence, our analysis is at an end.” Id. at 248. Consequently,
this Court must “focus upon whether [Walker’s] is ‘the rare case in
which a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross
disproportionality.’” Id. (quoting Ewing, 538 U.S. at 30). If we
cannot infer gross disproportionality, we are “not bound to conduct
any ‘comparative analysis within and between jurisdictions’ as
required by Solem’s second and third factors.” Id. (quoting Ewing,
538 U.S. at 23). We also note, in considering the first factor, that
“the Eighth Amendment does not demand strict proportionality

                                 15
between the crime and the sentence; rather, it forbids only those
sentences that are ‘grossly disproportionate’ to the crime.” Id.
(quoting Ewing, 538 U.S. at 23).

        The Government argues that Walker’s sentence is not
grossly disproportionate to his crime because, as is confirmed by
the evidence admitted at his trials, Walker is a violent criminal who
repeatedly committed serious crimes and armed himself with
firearms as a tool of his drug trade and to facilitate his robberies.
He used a short-barreled shotgun to commit the Mr. Z’s Food Mart
robbery and discharged the shotgun during that robbery. He used
the same shotgun, as well as a pistol, during the Peoples National
Bank robbery, leveling the shotgun at tellers’ heads and throwing
a 92-year-old man to the ground. He later used a semi-automatic
pistol in connection with drug dealing. The Government maintains
that, in light of Walker’s egregious, repeated conduct, the
consecutive mandatory minimum sentences totaling 55 years
imposed for his three violations of Section 924(c)(1) are not
grossly disproportionate to his crimes.

       We are guided in our analysis of Walker’s proportionality
challenge to his 55-year mandatory consecutive sentence by the
requirement that we “grant substantial deference to the broad
authority that legislatures necessarily possess in determining the
types and limits of punishments for crimes.” See MacEwan, 445
F.3d at 247. Congress’s purpose in amending Section 924(c)(1) to
require mandatory consecutive sentences was “to . . . protect
society by incapacitating those criminals who demonstrate a
willingness to repeatedly engage in serious felonies while in
possession of firearms, . . . to deter criminals from possessing
firearms during the course of certain felonies,” United States v.
Angelos, 433 F.3d 738, 751 (10th Cir. 2006) (citations omitted),
and “to protect our communities from violent criminals who
repeatedly demonstrate a willingness to employ deadly weapons by
punishing them more harshly.” Couch, 291 F.3d at 255. Thus, we
find that “Congress ‘could with reason conclude that the threat
posed to the individual and society’ by possessing firearms in
connection with serious felonies,” such as the armed robberies and
drug-trafficking crimes Walker committed, is “‘momentous enough
to warrant the deterrence and retribution’ of lengthy consecutive
sentences, such as those imposed on [Walker] in this case.”

                                 16
Angelos, 433 F.3d at 751 (quoting Harmelin, 501 U.S. at 1003).
Moreover, Walker’s crimes were at least as serious as those
committed by Lockyer, Rummel, Hutto, and Ewing, whose
proportionality challenges were rejected by the Supreme Court.
Consequently, we find that the harshness of Walker’s 55-year
mandatory consecutive sentence, balanced against the gravity of
his offenses, does not violate the proportionality principle of the
Eighth Amendment. See Solem, 463 U.S. at 290-91. Having
found that Walker’s is not “‘the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality,’” our analysis is at an
end. MacEwan, 445 F.3d at 248 (quoting Ewing, 538 U.S. at 30)
. We conclude, therefore, that Walker’s sentence is not grossly
disproportionate from the gravity of his crimes in violation of the
Eighth Amendment.6


   6
    The other Courts of Appeals that have considered whether the
mandatory consecutive sentencing scheme of Section 924(c)(1)
violates the proportionality principle of the Eighth Amendment
have concluded that it does not. See United States v. Yousef, 327
F.3d 56, 163 (2d Cir. 2003) (rejecting an Eighth Amendment
proportionality challenge to a prison term of 240 years plus a
consecutive term of life imprisonment for offenses related to the
1993 bombing of the World Trade Center, which included two 30-
year consecutive mandatory terms of imprisonment for violations
of 18 U.S.C. § 924(c)(1)(A)(ii))); United States v. Khan, 461 F.3d
477, 494-95 (4th Cir. 2006) (rejecting Eighth Amendment
challenge to sentences of 120 months, 300 months, and life
imprisonment imposed pursuant to the “count-stacking” provisions
of § 924(c)(1) as the Supreme Court has upheld severe mandatory
penalties and has never held that “‘a sentence to a specific term of
years, even if it might turn out to be more than the reasonable life
expectancy of the defendant, constitutes cruel and unusual
punishment.’” (citing Harmelin, 501 U.S. at 994 and quoting
United States v. Beverly, 369 F.3d 516, 537 (6th Cir. 2004)));
United States v. Beverly, 369 F.3d 516, 536-37 (6th Cir. 2004)
(rejecting a proportionality challenge to a sentence of 71½ years,
most of which was mandated by violations of § 924(c)(1), even
though the defendant asserting the challenge had never before been
convicted of a felony); United States v. Arrington, 159 F.3d 1069,

                                17
       Walker also asks us to consider whether our nation’s
evolving standards of decency require us to find that his sentence
constitutes cruel and unusual punishment. Walker relies on the
recommendation of the 2004 ABA Justice Kennedy Commission
that federal and state governments repeal mandatory minimum
sentences.     American Bar Association Justice Kennedy
Commission, Reports with Recommendations to the ABA House
of Delegates, dated August, 2004, at 9, available at
http://www.abanet.org/crimjust/kennedy/Justice
KennedyCommissionReportsFinal.pdf. Walker also suggests that
the imposition of a 55-year prison term on a first-time offender
cannot encompass rehabilitation but, rather, denies both the
offender and the community a second chance.

      We find that, rather than violate our evolving standards of
decency, Walker’s mandatory consecutive sentences represent


1073 (7th Cir. 1998) ( finding that the Eighth Amendment did not
prohibit a 65-year mandatory consecutive sentence imposed for
four violations of Section 924(c)(1), “[g]iven the limited nature of
Eighth Amendment proportionality review, and precedents
upholding life sentences for persons who have committed lesser
crimes . . . .” (citing United States v. Farmer, 73 F.3d 836 (8th Cir.
1996) and United States v. Dittrich, 100 F.3d 84, 87 (8th Cir.
1996))); United States v. Campbell, No. 04-3082, 128 Fed. App.
558, 560 (8th Cir. Apr. 25, 2005) (non-precedential) (finding that
Campbell’s thirty year mandatory minimum sentence, although
very harsh, did not violate the Eighth Amendment (citing United
States v. Farmer, 73 F.3d 836, 840 (8th Cir. 1996) and Harmelin,
501 U.S. 957)); United States v. Hungerford, 465 F.3d 1113, 1118
(9th Cir. 2006) (rejecting argument that the Eighth Amendment
precluded a 155-year consecutive mandatory minimum sentence
imposed for seven violations of Section 924(c)(1) charged in the
same indictment); United States v. Parker, 241 F.3d 1114, 1117-18
(9th Cir. 2001) (rejecting Eighth Amendment challenge to a 888-
month sentence that included 780 months for four violations of
Section 924(c)(1) charged in the same indictment); and Angelos,
433 F.3d at 751 (denying a proportionality challenge to a 55-year
mandatory consecutive sentence for three violations of Section
924(c)(1) which had been charged in the same indictment).

                                 18
Congress’s attempt to address the serious societal problem of the
use of firearms in connection with violent crimes and in connection
with drug trafficking. See Muscarello, 524 U.S. at 132; Simpson,
435 U.S. at 10; Deal, 508 U.S. at 136-37; Khan, 461 F.3d at 495;
Angelos, 433 F.3d at 751; Couch, 291 F.3d at 255; and Raynor,
939 F.2d at 194. We conclude, accordingly, that Walker’s 55-year
consecutive mandatory minimum sentence for three violations of
Section 924(c)(1) does not violate the Eighth Amendment’s
prohibition on cruel and unusual punishment.

                               VI.

        Walker also argues that his harsh mandatory consecutive
sentence could have been avoided had the District Court utilized
the appropriate principles of statutory construction. He contends
that the minimum term of 25 years of imprisonment for a second or
subsequent felony conviction for use of a firearm in connection
with a crime of violence or a drug trafficking crime mandated by
Section 924(c)(1)(C)(i) directly conflicts with the controlling
mandate of 18 U.S.C. § 3553(a) that a court shall “impose a
sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection.”7 18
U.S.C. § 3553(a).



   7
   Those purposes are:
             (A) to reflect the seriousness of the
             offense, to promote respect for the
             law, and to provide just punishment
             for the offense;
             (B) to afford adequate deterrence to
             criminal conduct;
             (C) to protect the public from further
             crimes of the defendant; and
             (D) to provide the defendant with
             needed educational or vocational
             training, medical care, or other
             correctional treatment in the most
             effective manner.
18 U.S.C. § 3553(a)(2).

                                19
        Walker asserts that the district court could have avoided
imposing his draconian mandatory sentence by imposing a
sentence which met the sentencing goals of 18 U.S.C. § 3553(a),
rather than the severe consecutive mandatory minimum sentences
required by Section 924(c)(1). He maintains that it is an
established rule of statutory construction that criminal laws are to
be strictly construed in favor of the defendant and that the district
court should have chosen “the construction yielding the shorter
sentence by resting on the venerable rule of lenity, rooted in ‘the
instinctive distaste against men languishing in prison unless the
lawmaker has clearly said they should.’” United States v. R.L.C.,
503 U.S. 291, 305 (1992) (quoting United States v. Bass, 404 U.S.
336, 347-48 (1971)). However, the Supreme Court also stated in
R.L.C. that “‘we have always reserved lenity for those situations in
which a reasonable doubt persists about a statute’s intended scope
even after resort to the language and structure, legislative history,
and motivating policies of the statute.’” Id. (quoting Moskal v.
United States, 498 U.S. 103, 108 (1990)) (footnote omitted).

        We perceive no doubt about the intended scope of Section
924(c)(1). The Supreme Court has explained that this statute
requires the imposition of the mandatory consecutive second or
subsequent offense penalties of Section 924(c)(1)(C)(i) to a
defendant, such as Walker, who has been convicted of multiple
counts of violating Section 924(c)(1) which were charged in the
same indictment. See Deal, 508 U.S. at 131-34. Moreover, there
is no conflict between 18 U.S.C. § 3553 and 18 U.S.C. § 924(c)(1).
18 U.S.C. § 3553(a) must be read in conjunction with 18 U.S.C. §
3553(e), which prohibits the courts from sentencing a defendant
below the statutory mandatory minimum sentence unless the
Government files a motion permitting such departure. See 18
U.S.C. § 3553(e). The District Court, therefore, properly imposed
Walker’s consecutive mandatory minimum sentences pursuant to
18 U.S.C. § 3553(e). We hold, accordingly, that principles of
statutory construction did not require the District Court to sentence
Walker to a term of imprisonment that omitted the 55-year
consecutive mandatory minimum sentence required by Section
924(c)(1).

       For the reasons set forth above, we reject Walker’s
constitutional and statutory construction challenges to his 55-year

                                 20
consecutive mandatory minimum sentence and affirm the sentence
imposed by the District Court.




                             21
