                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4170


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES ROBERT COBLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.    Michael F. Urbanski,
District Judge. (5:12-cr-00026-MFU-JGW-1)


Argued:   January 29, 2014                 Decided:   April 11, 2014


Before DUNCAN, KEENAN, and WYNN, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wynn joined.      Judge Duncan wrote a separate
opinion concurring in the judgment.


ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.        Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.    ON BRIEF: Larry W. Shelton, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.     Timothy J. Heaphy, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

      In this appeal, we consider the constitutionality and the

reasonableness of a 120-year sentence imposed on a defendant

convicted of production, possession, and transportation of child

pornography,     in   connection       with    his     sexual   molestation      of   a

four-year-old boy.        The defendant argues that his lengthy prison

sentence is disproportionate to his crimes, constituting cruel

and unusual punishment under the Eighth Amendment, and that the

sentence    is   greater     than      necessary        to     achieve   legitimate

sentencing goals.         Upon our review, we reject the defendant’s

constitutional challenge and conclude that the district court

did not abuse its discretion in imposing a sentence designed to

protect    the   public     and   to    address        the   seriousness    of    the

defendant’s crimes.        Accordingly, we affirm.



                                         I.

      In April 2012, undercover police investigators identified a

computer belonging to James Robert Cobler (Cobler) as a source

of child pornography on the Internet.                  After obtaining a warrant

and    searching      Cobler’s         home      in      Winchester,       Virginia,

investigators      found     numerous         images     and    video    recordings

depicting the sexual abuse of children.

      During an interview with police, Cobler admitted that he

had downloaded, possessed, and shared child pornography over the

                                         2
Internet using a “peer-to-peer” file-sharing network.                                    Cobler

also confessed that he had sexually molested a four-year-old boy

on   four    separate      occasions          while   acting        as       the        child’s

babysitter,      and     had     photographed         and        filmed      his         sexual

encounters with the child.               Cobler, a 28-year-old man in poor

health    who   is     afflicted    by    a    serious      communicable            disease,

admitted that at the time he molested the child, he was aware of

the possibility that his disease could be transmitted to the

child by sexual contact.

     Cobler     pleaded     guilty   to       three   counts       of     production         of

child pornography, see 18 U.S.C. § 2251(a) and (e), one count of

transportation of child pornography in interstate commerce, see

18 U.S.C. § 2252(a)(1) and (b)(1), and one count of possession

of child pornography, see 18 U.S.C. § 2252(a)(4)(B) and (b)(2).

The United States Probation Office prepared a Presentence Report

(PSR), in which the probation officer concluded that although

Cobler    lacked     any    prior    convictions,           the     severity        of     his

offenses warranted an initial advisory guidelines term of life

imprisonment.          However,     because       none      of     Cobler’s         criminal

charges provided for a sentence of life imprisonment, Cobler’s

guidelines      sentence       ultimately       was   calculated          to       be     1,440

months, or 120 years, which represented the sum of the statutory

maximum     sentences      available      for     each      count       of     conviction.



                                          3
Cobler did not object to the district court’s adoption of the

PSR calculations.

       At the sentencing hearing, Cobler requested a significant

downward variance from the applicable guidelines, based in part

on his grave medical condition and short life expectancy, as

well as his lack of criminal history.                           The government argued

that    a    guidelines      sentence      was     justified,     and    that     it   would

deter others from committing similar crimes.

       After considering the sentencing factors set forth in 18

U.S.C. § 3553(a), the district court decided that there was “no

reason to vary from the guidelines in this case” and imposed a

sentence      of    120    years’    imprisonment.          Cobler      filed     a    timely

appeal, challenging the constitutionality and the reasonableness

of his sentence.



                                             II.

       Cobler      argues     that     his    120-year      sentence       violates        the

Eighth       Amendment’s       prohibition          against      cruel     and        unusual

punishment         because    the    sentence       is    disproportionate            to   the

severity of his crimes, a question that we review de novo.                                 See

United      States    v.     Meyers,   280    F.3d       407,   416    (4th   Cir.      2002)

(citation omitted).             Cobler asks that we revisit some of our

recent precedent, which he argues improperly suggests that this

Court       need    not    review    his     constitutional           challenge       because

                                              4
proportionality              review        of     any           sentence         less     than        life

imprisonment           without         parole              is      “not          available,”          “not

appropriate,”          or    “not     required.”                See     United     States     v.      Ming

Hong,      242   F.3d       528,     532    (4th          Cir.    2001)      (“[P]roportionality

review      is    not       available           for       any     sentence         less    than       life

imprisonment          without       the     possibility               of    parole.”);      see       also

United      States      v.    Lockhart,          58       F.3d     86,      89    (4th    Cir.     1995)

(stating that proportionality review “is not appropriate” for

any such sentence); United States v. Polk, 905 F.2d 54, 55 (4th

Cir. 1990) (observing that the Supreme Court “does not require”

proportionality             review    of        such      sentences);            United    States       v.

Whitehead,       849    F.2d        849,    860       (4th       Cir.      1988)    (same);       United

States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (same).

Before     addressing         these        arguments,            we    examine      the    analytical

framework        for    proportionality                challenges           established          by    the

Supreme Court.

      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.

Punishment       is     deemed       cruel       and       unusual         not    only    when    it    is

“inherently barbaric,” but also when it is disproportionate to

the crime for which it is imposed.                              Graham v. Florida, 560 U.S.

48, 59 (2010); see Weems v. United States, 217 U.S. 349, 367



                                                      5
(1910) (referring to the “precept of justice that punishment for

crime should be graduated and proportioned to [the] offense”).

      A defendant may challenge the proportionality of a sentence

under the Eighth Amendment in two different ways.                            Under an “as-

applied” challenge, a defendant contests the length of a certain

term-of-years sentence as being disproportionate “given all the

circumstances in a particular case.”                       Graham, 560 U.S. at 59.

In a “categorical” challenge, a defendant asserts that an entire

class of sentences is disproportionate based on “the nature of

the offense” or “the characteristics of the offender.”                                Id. at

60.     In this appeal, Cobler argues that his prison sentence is

constitutionally infirm under both these approaches.

      The Supreme Court has emphasized the limited scope of both

types of proportionality challenges.                    In the context of an as-

applied    challenge,        the    Court       has   explained       that    the   “narrow

proportionality        principle”         of    the   Eighth    Amendment       “does      not

require strict proportionality between crime and sentence,” but

“forbids        only     extreme               sentences       that      are        grossly

disproportionate        to    the    crime.”          Graham,    560    U.S.     at      59-60

(quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1991)

(Kennedy, J., concurring)) (internal quotation marks omitted).

Before an appellate court concludes that a sentence is grossly

disproportionate        based      on     an    as-applied     challenge,       the      court

first    must    determine         that    a     “threshold     comparison”         of    the

                                                6
gravity of the offense and the severity of the sentence “leads

to   an   inference     of   gross   disproportionality.”                  Id.    (quoting

Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)) (brackets

omitted).     In the “rare case” that a reviewing court concludes

that such an inference may be drawn, the court is required to

compare the defendant’s sentence: (1) to sentences for other

offenses     in   the   same   jurisdiction;          and    (2)   to   sentences       for

similar offenses in other jurisdictions.                     Id.     If this extended

analysis validates the threshold determination that the sentence

is grossly disproportionate, the sentence is deemed “cruel and

unusual” punishment under the Eighth Amendment.                      Id.

      The Supreme Court has identified a term-of-years sentence

as   being   grossly     disproportionate         on    only    one     occasion.        In

Solem v. Helm, 463 U.S. 277 (1983), a recidivist defendant had

been sentenced to life imprisonment without parole for passing a

bad check in the amount of $100.                 In reviewing the defendant’s

Eighth Amendment challenge to his sentence, the Court identified

the following “objective criteria” to be used in conducting a

full proportionality analysis: (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.         Because the bad check crime was

“one of the most passive felonies a person could commit” and the

                                            7
punishment was “the most severe” non-capital sentence available,

the Court inferred that the defendant’s sentence was grossly

disproportionate.            Id.    at    296-97.           Accordingly,     the     Court

conducted     an    extended       proportionality          review,   engaging       in   a

comparative analysis of other penalties and other jurisdictions,

and     concluded           that      the         defendant’s         sentence        was

unconstitutional.         Id. at 296-300.

      Since     the   decision       in    Solem,      no    defendant      before    the

Supreme     Court     has    been     successful        in    establishing     even       a

threshold     inference      of    gross     disproportionality.            See,     e.g.,

Ewing v. California, 538 U.S. 11 (2003); Harmelin, 501 U.S. 957;

Hutto v. Davis, 454 U.S. 370 (1982) (per curiam); Rummel v.

Estelle, 445 U.S. 263 (1980).                 Notably, in Harmelin, the Court

upheld a life sentence without parole for a first-time felon

convicted of possession of 672 grams of cocaine.                         See 501 U.S.

at 961, 996.          Justice Kennedy, whose concurrence in Harmelin

later was regarded as the “controlling opinion” in that case,

Graham, 560 U.S. at 59-60, contrasted the “passive” check fraud

in Solem with the “pernicious” drug offenses that “threaten[] to

cause   grave      harm     to    society”       by   contributing     to    “violence,

crime, and social displacement.”                  501 U.S. at 1002-03 (Kennedy,

J., concurring).

      In    another       as-applied         proportionality          challenge,      the

Supreme Court in Ewing reviewed a prison sentence of 25 years to

                                             8
life under California’s “three strikes” statute, 1 imposed for

theft of $1200 in merchandise.                538 U.S. at 19-20.          Employing

its analysis from Solem, the Court observed that the theft crime

was “certainly not ‘one of the most passive felonies a person

could commit’” and could justify a prison sentence of between 25

years and life imprisonment.             Ewing, 538 U.S. at 28 (plurality

opinion) (quoting Solem, 463 U.S. at 296); see also Lockyer v.

Andrade, 538 U.S. 63 (2003) (affirming, upon habeas review, a

sentence         under    California’s       “three      strikes”   law      of   two

consecutive terms of 25 years to life in prison for petty theft

of videotapes worth about $150).

       In comparison to the as-applied challenges described above,

categorical challenges to whole classes of prison sentences also

have       had   very    limited   success    in   the    Supreme   Court.        With

respect to a categorical challenge, the reviewing court first

       1
        California’s three strikes law was designed “to ensure
longer prison sentences and greater punishment for those who
commit a felony and have been previously convicted of serious
and/or violent felony offenses.”      Cal. Penal Code § 667(b).
Under the version of the statute in effect at the time of Ewing,
a defendant who had been convicted of two or more prior
“serious” or “violent” felonies, and who committed any new
felony,    must   receive   “an  indeterminate   term   of    life
imprisonment.” 538 U.S. at 16 (citations and internal quotation
marks omitted).    In 2012, the three strikes law was amended by
Proposition 36, also known as the Three Strikes Reform Act,
which among other things required that a defendant’s new offense
must also be a “serious” or “violent” felony before a defendant
would qualify for a life sentence as a third strike offender.
See Cal. Penal Code § 1170.126 (allowing resentencing of
defendants pursuant to the Three Strikes Reform Act of 2012).


                                         9
determines whether a “national consensus against the sentencing

practice     at     issue”       is    evident        from     “objective        indicia      of

society’s standards, as expressed in legislative enactments and

state practice.”            Graham, 560 U.S. at 61.                        Next, the court

exercises its “independent judgment whether the punishment in

question violates the Constitution.”                         Id.     Thus, a categorical

challenge       “requires        consideration        of     the    culpability         of   the

[class    of]     offenders       at    issue    in    light       of   their      crimes    and

characteristics, along with the severity of the punishment in

question.”       Id. at 67.

       Before     2010,     the    Supreme      Court        had    deemed    only     certain

classes      of          death        sentences         as         being      categorically

disproportionate.           The Court held that capital punishment was

unconstitutional          under       certain     circumstances,            either     because

offenders’        underlying       convictions         fell        outside      the    “narrow

category    of     the    most    serious       crimes,”       see,     e.g.,      Kennedy    v.

Louisiana, 554 U.S. 407, 420 (2008) (rape), Enmund v. Florida,

458 U.S. 782 (1982) (certain types of felony murder), or because

some     populations         of        offenders        had        diminished         personal

responsibility       for     their       crimes,       such        as   persons       who    are

intellectually disabled, see Atkins v. Virginia, 536 U.S. 304

(2002),    and     juveniles,          see   Roper     v.     Simmons,       543      U.S.   551

(2005).



                                             10
       In recent years, the Court has extended its use of the

categorical             analysis      to    a    very      narrow    group    of    non-capital

prison      sentences            involving        juvenile     offenders.          Employing     a

categorical analysis, the Court has barred certain sentences of

life imprisonment without parole for juveniles.                               See Graham, 560

U.S.     48    (prohibiting               life     imprisonment        without      parole     for

juveniles convicted of non-homicide crimes); Miller v. Alabama,

132    S.     Ct.       2455     (2012)     (barring        mandatory     life     imprisonment

without parole for juveniles convicted of homicide crimes).                                    The

Court    linked          its     “unprecedented”            willingness      to    reverse    non-

capital sentences to this narrow, special context of juvenile

offenders,          for      whom     a    life       sentence    without     parole     can    be

“likene[d]          .    .   .   to   the       death      penalty   itself,”      particularly

given the reality that a juvenile will spend more of his life in

prison than an adult.                 Miller, 132 S. Ct. at 2466.

       Within this limited framework for proportionality review of

as-applied          and      categorical          challenges,        we   turn     to   consider

Cobler’s       assertion            that        our     Circuit      improperly      imposes    a

wholesale       restriction           against          proportionality       review     for    any

prison sentence of less than life imprisonment without parole.

Cobler bases his assertion on the statements in some of our

decisions       cited          above,      which        suggested     that    proportionality

review is “not available,” “not appropriate,” or “not required”

for a term-of-years sentence.                         See supra at 4.

                                                      11
       Cobler’s argument fails, however, because it discounts the

full import of our holding in United States v. Rhodes, 779 F.2d

1019   (4th      Cir.   1985).       It     is    well-established       law    in   this

Circuit that our first case to decide an issue controls later

consideration of that same issue, unless it is overruled by this

court sitting en banc or by the Supreme Court.                            McMellon v.

United States, 387 F.3d 329, 334 (4th Cir. 2004).                         And, on the

subject     of     judicial        review        available    for      proportionality

challenges        to    term-of-years            sentences     under      the     Eighth

Amendment, the earliest, controlling case in this Circuit is

Rhodes.

       In   Rhodes,     two       defendants       in   a    drug    conspiracy      case

asserted      as-applied          proportionality           challenges     to        their

respective prison sentences of 50 and 75 years, arguing that the

Supreme Court’s decision in Solem entitled them to “extensive

proportionality review” of those sentences.                         Id. at 1026.       The

Supreme Court held in Solem that the Eighth Amendment principle

of proportionality is applicable generally to the review of non-

capital felony prison sentences, and that “no penalty is per se

constitutional.”           463     U.S.     at     288-90.      The    Court    further

emphasized,       however,    that    “a     reviewing       court    rarely    will    be

required    to    engage     in    extended       analysis    to    determine    that    a

sentence is not constitutionally disproportionate.”                       463 U.S. at

290 n.16 (emphasis added).                  Additionally, the Court explained

                                            12
that proportionality challenges to non-capital sentences rarely

will    be   successful,      due    to    the    “substantial          deference”    that

reviewing courts owe to Congress and to trial courts.                              Id. at

289-90; see also Hutto, 454 U.S. at 374 (noting that for felony

crimes,      because      there      is    “no      clear     way        to    make    any

constitutional       distinction       between      one     term    of     years    and   a

shorter or longer term of years,” the “length of the sentence

actually imposed is purely a matter of legislative prerogative”

and “successful challenges to the proportionality of particular

sentences should be exceedingly rare”) (citations and internal

quotation marks omitted).

       In view of this instruction in Solem, we held in Rhodes

that “extensive proportionality analysis” is required “only in

those     cases     involving       life   sentences        without       parole,”     or,

alternatively,       in     cases     involving      “terms        of    years     without

parole”      that   are     functionally         equivalent    to       life     sentences

“because of [the defendants’] ages.”                 779 F.2d at 1028 (emphasis

added).      In considering the term-of-years sentences before us in

Rhodes,      we   further    explained      that     additional         proportionality

analysis generally is not required when “a simple matching of

the facts of a particular case against the Solem principles will

suffice [to establish the constitutionality of a given sentence]

without extended discussion.”               Id. at 1028-29.



                                           13
       This    observation,          that    the         need    for     an    “extended

discussion”       of    proportionality          often    will     be   obviated    by   a

“simple matching” of facts to law, essentially presaged Graham’s

directive that a reviewing court first consider whether there is

a     “threshold . . . inference”           of      “gross       disproportionality.”

560 U.S. at 60 (citation and internal quotation marks omitted).

Our    decision    in    Rhodes      is   also     consistent       with    the   Supreme

Court’s further instruction in Graham that, in the absence of

such a “threshold inference,” extended comparative analysis of a

sentence is unnecessary to justify its constitutionality.                            Id.

Thus, in contrast to some of our later decisions, Rhodes did not

hold that judicial review of proportionality challenges to term-

of-years      sentences    is    “not     available,”       “not    appropriate,”        or

“not required.”

       Under the first-in-time precedential authority of Rhodes,

any    later    decisions       in   this    Circuit        that    imprecisely     have

characterized Rhodes’s discussion of proportionality review are

not controlling. 2        See McMellon, 387 F.3d at 334.                   Thus, we take


       2
       Some of our colleagues already have observed that Ming
Hong’s statement that proportionality review is available only
in limited circumstances is not “good law,” although they have
expressed different opinions regarding the precise way to
resolve our conflicting cases. For example, some have suggested
that en banc review is necessary to resolve a conflict in our
cases.   See, e.g., United States v. Hashime, 722 F.3d 572, 574
(4th Cir. 2013) (Gregory, J., concurring in denial of reh’g en
banc).   Another colleague has expressed the view that in Polk
(Continued)
                                            14
the opportunity here to reaffirm the vitality of Rhodes and of

the cases that accurately have applied its holding.                    See, e.g.,

United States v. Wellman, 663 F.3d 224, 231 (4th Cir. 2011)

(noting     the        observation       in     Rhodes         that     “extensive

proportionality        analyses    are   only       required    in    those    cases

involving life sentences without the possibility of parole,” and

that “lesser sentences that are clearly within the prerogative

of Congress and subject to imposition by a district court may be

disposed of swiftly”); Sutton v. Maryland, 886 F.2d 708, 712

(4th Cir. 1989) (doubting, based on Rhodes, whether using all of

the Solem factors in a proportionality analysis is necessary

where “[c]learly, the gravity of the [assault] offense and the

circumstances of the crime justify a fifteen year sentence”).

       We further observe that our dictum in cases such as Ming

Hong    stands    in    conflict     with     the    Supreme     Court’s      modern

proportionality jurisprudence.              As the Court stated in Solem,

“no penalty is per se constitutional,” and even “a single day in



and   in  other   cases  since   Rhodes,  we   established  that
proportionality review of prison sentences less than life
imprisonment without parole is “not required” and therefore is
discretionary.   United States v. Hashime, 734 F.3d 278, 286-88
(4th Cir. 2013) (King, J., concurring).    However, because none
of these later cases purported to amplify the holding in Rhodes,
and because Rhodes articulated the law of this Circuit and
anticipated the Supreme Court’s adoption of a clear structure
for proportionality review in Graham, we regard Rhodes as the
touchstone for our analysis and need not consider the above
efforts to reconcile our later cases.


                                         15
prison may be unconstitutional in some circumstances.”                  463 U.S.

at 290.      In Graham, the Court clarified that when a defendant

challenges     the   proportionality    of   a    term-of-years         sentence,

courts “must begin by comparing the gravity of the offense and

the severity of the sentence.”         560 U.S. at 60.        These decisions

afford constitutional protection to every prison sentence, and

compel    us    to   review   challenges         to    such     sentences     for

proportionality under the Eighth Amendment. 3

     We therefore turn to consider the merits of Cobler’s as-

applied   proportionality     challenge.         The    first    step    in   our


     3
       We disagree with our esteemed concurring colleague’s view
that revisiting our dictum in cases such as Ming Hong is
“unnecessary” because “[a] finding that proportionality analysis
is available is scarcely outcome determinative” given the
severity of Cobler’s crimes. Post at 25. Indeed, Ming Hong and
some of our other cases did not merely concern the applicability
of a mode of “analysis,” but wrongly suggested that any judicial
“review”   of   proportionality   challenges  “less   than  life
imprisonment without the possibility of parole” would be
foreclosed.   See Ming Hong, 242 F.3d at 532.    Such a sweeping
prohibition conflicts with our decision in Rhodes and “seems
plainly incorrect in light of the Supreme Court’s observation in
Solem that ‘no penalty is per se constitutional,’” as one of our
sister circuits already has observed. United States v. Kidder,
869 F.2d 1328, 1333 n.5 (9th Cir. 1989) (quoting Solem, 463 U.S.
at 290). Our recognition of this conflict is necessary because
the Supreme Court’s statement in Graham that proportionality
review applies to “a sentence for a term of years,” 560 U.S. at
60, does not independently supersede our dictum in Ming Hong
limiting such review to life sentences, given that the Supreme
Court construes the phrase “term of years” to include a life
sentence. See, e.g., Graham, 560 U.S. at 70 (noting that Solem,
which involved a sentence of life imprisonment without parole,
was “the only previous case striking down a sentence for a term
of years as grossly disproportionate”).


                                   16
analysis requires us to decide whether a threshold comparison of

the   gravity     of       Cobler’s       offenses       and    the     severity      of    his

sentence      leads        us   to    infer      that    his     sentence      is     grossly

disproportionate to his crimes.                   Id.

      Given     the        shocking       and    vile    conduct        underlying         these

criminal      convictions,           we    hold      that      Cobler    has    failed       to

substantiate         the        required        threshold        inference       of        gross

disproportionality.               Even      assuming,        without     deciding,          that

Cobler’s      120-year           term      of     imprisonment          is     functionally

equivalent      to     a    sentence       of     life      imprisonment       without      the

possibility of parole, 4 we conclude that Cobler’s multiple child

pornography crimes are at least as grave as the drug offense in

Harmelin, which the Supreme Court deemed sufficiently egregious

to justify a similar sentence.                  See 501 U.S. at 996.



      4
       The Supreme Court has not yet decided the question whether
a   lengthy   term-of-years  sentence   is,  for   constitutional
purposes, the same as a sentence of life imprisonment without
the possibility of parole.    See, e.g., Lockyer, 538 U.S. at 74
n.1 (noting the argument that it is “‘unrealistic’ to think that
a sentence of 50 years to life for [a 37-year-old defendant] is
not equivalent to life in prison without parole,” but stating
only that “[t]wo different sentences do not become materially
indistinguishable based solely upon the age of the persons
sentenced”); Bunch v. Smith, 685 F.3d 546, 552 (6th Cir. 2012)
(recognizing the controversy amongst state and federal courts
regarding whether Graham’s categorical rule “only applies to
juvenile nonhomicide offenders expressly sentenced to ‘life
without parole’” or also extends to juvenile offenders sentenced
to “consecutive, fixed terms resulting in an aggregate sentence
that exceeds the defendant’s life expectancy”).


                                                17
       As a general matter, the prohibition of child pornography

derives      from    a     legislative        judgment       that   such    materials       are

harmful to the physiological, emotional, and mental health of

children, and that preventing the sexual exploitation of this

uniquely vulnerable group “constitutes a government objective of

surpassing importance.”                 New York v. Ferber, 458 U.S. 747, 757-

58    (1982).        We    further       observe      that    the   usual        severity   of

conduct      of     this    nature       is    far    exceeded      by     the    particular

circumstances of this case.                   Not only did Cobler possess large

quantities of child pornography that he downloaded and shared on

the     Internet,        fueling        the   public        consumption     of     materials

harmful to children, but he also created depictions of his own

sexual exploitation, molestation, and abuse of a four-year-old

child.       To make matters worse, Cobler was aware that his sexual

contact with the child could have caused the child to contract

Cobler’s serious communicable disease.                        Far from being “one of

the most passive felonies a person could commit,” Solem, 463

U.S.    at    296,       Cobler’s       heinous      acts    exploited,      injured,       and

inflicted great harm on a most vulnerable victim.

       Accordingly, we conclude that the relationship between the

gravity of Cobler’s offenses and the severity of his punishment

fails        to      create        the        threshold        inference          of    gross

disproportionality that is required to maintain a successful as-

applied      challenge        to    a    criminal      sentence      under       the   Eighth

                                               18
Amendment.        We    also    observe    that     other   courts     have       reached

similar results in child pornography cases in which sentences of

life imprisonment were imposed.                   See, e.g., United States v.

McGarity, 669 F.3d 1218, 1255-57 (11th Cir. 2012) (holding that

life    sentences       for     seven    defendants       involved     in     a    child

pornography      ring    were    not    grossly    disproportionate         under     the

Eighth Amendment); United States v. Paton, 535 F.3d 829, 837-38

(8th Cir. 2008) (upholding constitutionality of a defendant’s

life sentence for five counts of producing child pornography).

       We    conclude   that     Cobler’s       categorical      challenge    likewise

lacks merit.        The present case involves neither a sentence of

death nor a sentence of life imprisonment without parole for a

juvenile offender, the only two contexts in which the Supreme

Court       categorically      has     deemed     sentences      unconstitutionally

disproportionate.        Cf. Graham, 560 U.S. at 60-62.                To the extent

that this 28-year-old defendant argues that his developmental

immaturity      categorically          requires    that     he    be   treated       more

leniently as a juvenile, we reject that argument at the outset

given the complete lack of evidence in the record regarding any

national consensus about how immature adults should be sentenced

for child pornography crimes.               See United States v. Reingold,

731 F.3d 204, 215 (2d Cir. 2013) (stating that even if the

defendant was a “developmentally immature young adult” at the

time of the crime, that assessment “hardly supports categorical

                                           19
rule analysis” in the absence of any consensus regarding the

sentencing         of    immature       adults).              Moreover,       we    decline      to

substitute a subjective judgment about the relative immaturity

of a particular defendant for the objective age of minority that

the Supreme Court has used as the benchmark for its categorical

analysis      of    young        offenders.             See    Roper,    543       U.S.   at     574

(stating      that       even     though      “[t]he      qualities       that      distinguish

juveniles from adults do not disappear when an individual turns

18,” a line for death eligibility “must be drawn” at the age

“where     society         draws       the    line       for     many     purposes        between

childhood and adulthood”); see also Reingold, 731 F.3d at 215

(observing         that        “immaturity,         unlike      age,     is    a     subjective

criterion,         ill    suited       to     the       pronouncement         of    categorical

rules”).       Because we find no merit in Cobler’s as-applied and

categorical         proportionality           challenges,         we    conclude      that       his

sentence of 120 years’ imprisonment does not constitute cruel

and unusual punishment under the Eighth Amendment.



                                               III.

     Cobler also challenges the reasonableness of his sentence,

which    we   review       for     abuse      of    discretion.          United       States      v.

McManus,      734       F.3d    315,    317    (4th      Cir.    2013)    (citing         Gall    v.

United States, 552 U.S. 38, 51 (2007)).                          We first assess whether

the district court committed any significant procedural error,

                                                   20
such as “failing to calculate (or improperly calculating) the

[g]uidelines        range,      treating    the      [g]uidelines       as   mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a   sentence      based   on     clearly    erroneous      facts,      or    failing    to

adequately explain the chosen sentence.”                     Gall, 552 U.S. at 51.

Next, we consider the substantive reasonableness of the sentence

based on the totality of the circumstances.                     Id.

      We do not detect any significant procedural error in this

case.      The district court properly determined the guidelines

range, considered and discussed the Section 3553(a) factors, and

articulated reasons for the sentence imposed.                        Cobler maintains,

nevertheless,        that      the    court      erred     by    referring      in     its

“statement     of    reasons”        to   the    allegedly      erroneous     fact   that

Cobler     recorded       his     “rape”        of   his   four-year-old        victim.

However, based on our review of Cobler’s admissions to police

investigators, we reject Cobler’s argument and agree with the

government that the district court did not err in characterizing

Cobler’s sexual contact with the child as “rape.”

      Having determined that the sentencing court did not commit

significant procedural error, we next evaluate whether Cobler’s

sentence     is     substantively         reasonable.           In    considering      the

substantive reasonableness of a sentence, we review whether the

district court abused its discretion in determining that the



                                            21
factors   contained       in   Section 3553(a)           supported       the   sentence.

See id. at 56.

      A   sentence    that       falls       within       a    properly        calculated

guidelines range is presumptively reasonable.                      United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007).                      Cobler challenges the

presumptive    reasonableness          of    his    within-guidelines          sentence,

arguing that the sentence was greater than necessary to address

the   sentencing     factors         set    forth    in       Section 3553(a).        In

particular, Cobler contends that the district court abused its

discretion by relying upon the factor of deterrence in setting

the sentence, especially given Cobler’s grave medical condition

and diminished life expectancy, and by ultimately fashioning a

sentence unique in its severity for the type of sex crimes at

issue in this case.            See 18 U.S.C. § 3553(a)(2) (referring to

the need “to afford adequate deterrence to criminal conduct” and

“to protect the public from further crimes of the defendant”);

18 U.S.C. § 3553(a)(6) (noting the “need to avoid unwarranted

sentence disparities among defendants with similar records who

have been found guilty of similar conduct”).

      After   reviewing        the    record,       we    conclude    that      Cobler’s

arguments     fail   to    defeat      the       presumption      that    his    within-

guidelines sentence is substantively reasonable.                          The district

court explicitly considered the need for Cobler’s sentence to

deter others from engaging in what the court considered “the

                                            22
most   serious      and     egregious       conduct.”       Cognizant        that    it    was

imposing     a     term    of    imprisonment      that    effectively        would       be    a

“life sentence,” the court reasoned that it could not “imagine a

situation where [the court] can allow the defendant back into

the    public”      given       that    the    case     involved       not    only      child

pornography, but actual sexual abuse of a four-year-old victim

that was aggravated by the defendant’s knowledge that the victim

could have become infected with a serious communicable disease.

       We   cannot        conclude     that   the     district     court      abused       its

discretion in reaching this decision.                       Furthermore, we observe

that other courts have upheld similar sentences.                              See, e.g.,

United States v. Demeyer, 665 F.3d 1374, 1375 (8th Cir. 2012)

(affirming the reasonableness of a 120-year, within-guidelines

sentence composed of consecutive 30-year prison terms for sexual

exploitation of a minor, and noting that the district court did

not abuse its “discretion to impose concurrent or consecutive

sentences     for    the     multiple       counts    of   conviction        in   order        to

ensure      that     [the       defendant]     would       in   fact    serve       a     life

sentence”); United States v. Noel, 581 F.3d 490, 500-01 (7th

Cir.     2009)      (affirming         an   80-year,       below-guidelines             prison

sentence for production and possession of child pornography as

reasonable); United States v. Sarras, 575 F.3d 1191, 1219-21

(11th Cir. 2009) (affirming a within-guidelines sentence of 100

years’      imprisonment         as    substantively        reasonable        given       that

                                              23
“[c]hild sex crimes are among the most egregious and despicable

of societal and criminal offenses”); United States v. Betcher,

534   F.3d   820,     827-28   (8th        Cir.    2008)     (upholding   the

reasonableness   of   a   750-year   prison       sentence   for   production,

receipt, and possession of child pornography); United States v.

Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006) (upholding the

reasonableness of a 140-year, within-guidelines prison sentence

for production and distribution of child pornography).

      Accordingly, we conclude that the district court imposed a

sentence that reflects the nature and the circumstances of the

offense, as well as the other considerations of Section 3553(a).

We therefore hold that the sentence is substantively reasonable.



                                     IV.

      For these reasons, we affirm the district court’s judgment.



                                                                     AFFIRMED




                                     24
DUNCAN, Circuit Judge, concurring in the judgment:

        With great respect for the majority’s thoughtful opinion, I

am of the view that this appeal can (and therefore should) be

decided       more    simply     and   without    finding       an    irreconcilable

conflict between two of our prior opinions.                  I therefore concur

in the judgment.

      First, as the majority correctly acknowledges, its analysis

is    ultimately      unnecessary.        A   finding      that      proportionality

analysis is available is scarcely outcome determinative here,

because       Cobler’s     conduct     was    sufficiently           grave    to    have

justified      even    a   life    sentence      without    the      possibility     of

parole.    See supra p. 17.

      Further, I remain unpersuaded that United States v. Rhodes,

779 F.2d 1019 (4th Cir. 1985), is so inconsistent with United

States v. Ming Hong, 242 F.3d 528 (4th Cir. 2001), as to meet

the    high    standard     of    “irreconcilable       conflict”        required    by

McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004).

Rhodes merely held that Solem v. Helm, 463 U.S. 277 (1983),

“requires an extensive proportionality analysis only in those

cases involving life sentences without parole.”                          779 F.2d at

1028.         Strictly     speaking,    our   holding      in     Ming       Hong   that

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

sentence, 242 F.3d at 532, is not inconsistent with our holding



                                         25
in   Rhodes    that    extensive        proportionality              analysis     is    not

required in such a case.

     The majority points out that the panel in Rhodes went on to

apply a limited form of proportionality review to the sentences

at issue.      But it did so having assumed, arguendo, that the

sentences     were     equivalent       to       life     sentences        without      the

possibility of parole.           See Rhodes, 779 F.2d at 1028.

     While    I   cannot      agree    that      Ming    Hong    conflicts       with   our

prior     precedent,      I    nevertheless           find      it    to   be     clearly

inconsistent      with,    and    therefore        superseded        by,   the    Supreme

Court’s holding in Graham v. Florida, 560 U.S. 48, 59-60 (2010)

(“[In] determining whether a sentence for a term of years is

grossly    disproportionate        .    .    .    .     [a]   court    must     begin    by

comparing the gravity of the offense and the severity of the

sentence.”)

     I therefore respectfully concur in the judgment.




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