                             PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 14-4413


UNITED STATES OF AMERICA,

               Plaintiff – Appellant,

          v.

MOHAMED ALI SAID, a/k/a Mohammed Said, a/k/a Maxamad Cali
Saciid; MOHAMED ABDI JAMA, a/k/a Mohammed Abdi Jamah;
ABDICASIIS  CABAASE;  ABDI   RAZAQ  ABSHIR  OSMAN,  a/k/a
Abdirasaq Abshir; MOHAMED FARAH, a/k/a Mahamed Farraah
Hassan,

               Defendants – Appellees.



                            No. 14-4420


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

MOHAMED ABDI JAMA, a/k/a Mohammed Abdi Jamah,

               Defendant – Appellant.



                            No. 14-4421


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,
          v.

MOHAMED FARAH, a/k/a Mahamed Farraah Hassan,

               Defendant – Appellant.



                            No. 14-4423


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

ABDI RAZAQ ABSHIR OSMAN, a/k/a Abdirasaq Abshir,

               Defendant – Appellant.



                            No. 14-4424


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

MOHAMED ALI SAID, a/k/a Mohammed Said, a/k/a Maxamad Cali
Saciid,

               Defendant – Appellant.



                            No. 14-4429


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

                                 2
ABDICASIIS CABAASE,

                Defendant – Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge.   (2:10-cr-00057-RAJ-DEM-1; 2:10-cr-00057-RAJ-DEM-2; 2:10-
cr-00057-RAJ-DEM-4; 2:10-cr-00057-RAJ-DEM-5; 2:10-cr-00057-RAJ-
DEM-6)


Argued:   May 13, 2015                       Decided:     August 13, 2015


Before KING and       KEENAN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


No. 14-4413 reversed in part, vacated in part, and remanded;
Nos. 14-4420, 14-4421, 14-4423, 14-4424, and 14-4429 affirmed by
published opinion. Judge King wrote the opinion, in which Judge
Keenan and Senior Judge Davis joined. Senior Judge Davis wrote
a separate concurring opinion.


ARGUED: Benjamin L. Hatch, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellant/Cross-Appellee.      Geremy C.
Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellees/Cross-Appellants.    ON BRIEF: Dana J.
Boente, United States Attorney, Alexandria, Virginia, Joseph E.
DePadilla, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia; Jerome J. Teresinski,
Trial Attorney, National Security Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant/Cross-
Appellee.    Michael S. Nachmanoff, Federal Public Defender,
Frances H. Pratt, Keith Loren Kimball, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellee/Cross-
Appellant Mohamed Ali Said; Robert B. Rigney, PROTOGYROU &
RIGNEY, PLC, Norfolk, Virginia, for Appellee/Cross-Appellant
Mohamed Abdi Jama; David M. Good, DAVID MICHAEL GOOD, PC,
Virginia Beach, Virginia, for Appellee/Cross-Appellant Mohamed
Farah; Trey R. Kelleter, VANDEVENTER BLACK LLP, Norfolk,
Virginia, for Appellee/Cross-Appellant Abdi Razaq Abshir Osman;
Bruce C. Sams, SAMS & GILCHRIST PLLC, Norfolk, Virginia, for
Appellee/Cross-Appellant Abdicasiis Cabaase.

                                    3
KING, Circuit Judge:

        In   early    2010,     a    group       of     seven      Somalis      —    including

defendants Mohamed Ali Said, Mohamed Abdi Jama, and Abdicasiis

Cabaase — boarded a small skiff and entered the Gulf of Aden (in

the Indian Ocean between the Arabian Peninsula and the Horn of

Africa),     intending     to       seize    a       merchant      ship    at     sea.   Their

objective was foiled by the British warship HMS Chatham, which

was conducting a counter-piracy mission in the Gulf.                                Undeterred

by their initial lack of success, Said, Jama, and Cabaase joined

with defendants Abdi Razaq Abshir Osman and Mohamed Farah, plus

two others, and returned from Somalia to the Gulf in the skiff

in April 2010.         During their April escapade, the defendants and

their    accomplices      launched          an       attack   on    the     USS     Ashland,    a

United States Navy warship that they confused for a merchant

vessel.       The     Ashland       responded         by   destroying        the     skiff    and

killing one of the attackers.

      After the defendants were apprehended and transported to

the Eastern District of Virginia, they were tried and convicted

of   multiple       offenses,       including          piracy      as     proscribed     by    18

U.S.C. § 1651.         At sentencing, the district court declined to

impose statutorily mandated life sentences on the defendants,

reasoning      that    such     sentences             would     contravene         the   Eighth

Amendment’s     prohibition          against         cruel    and    unusual       punishment.



                                                 4
See United States v. Said, No. 2:10-cr-00057 (E.D. Va. Feb. 28,

2014), ECF No. 260 (the “Eighth Amendment Order”). 1

     The   government,     in    pursuing     its   appeal    in    No.    14-4413,

seeks relief from the district court’s decision not to impose

the life sentences required by § 1651.               By their cross-appeals

in Nos. 14-4420, 14-4421, 14-4423, 14-4424, and 14-4429, the

defendants challenge the court’s failure to dismiss the § 1651

charge,    the   jury    instructions        with   respect    to    the     piracy

offense, and the sufficiency of the evidence supporting certain

of their convictions.          As explained below, we reject each of the

defendants’ contentions and affirm their convictions.                      We deem

the government’s appeal to be meritorious, however, and reverse

the Eighth Amendment Order, vacate the defendants’ sentences,

and remand for resentencing.



                                       I.

                                       A.

                                       1.

     In approximately February 2010, defendants Said, Jama, and

Cabaase —    along      with   Jama   Idle    Ibrahim   and   three       others   —


     1 The Eighth Amendment Order is published at 3 F. Supp. 3d
515 and also found at J.A. 886-902. (Citations herein to “J.A.
__” refer to the contents of the Joint Appendix filed by the
parties in these appeals.)



                                        5
acquired a small wooden skiff on the coast of Somalia and loaded

it with a hooked ladder and weapons, including AK-47 assault

rifles,     a     rocket-propelled           grenade       launcher       (an    “RPG”),     a

Singapore Assault Rifle 80 (an “SAR-80”), and a Tokarev 9-mm

pistol. 2       They also equipped the skiff with two motors, enabling

it   to    more    swiftly     traverse       the    sea.         The    group   then    left

Somalia and travelled into the Gulf of Aden searching for a

merchant ship to seize.                The Gulf is one of the most heavily

trafficked shipping corridors in the world, making it a prime

location for piracy.

      On    the     afternoon     of    February          27,    2010,    the    skiff     was

intercepted        in   the   Gulf     of    Aden    by    the     HMS    Chatham   of     the

British Royal Navy.             Upon encountering the skiff, the Chatham

actioned a helicopter for a close investigation.                             The Somalis,

recognizing the Chatham as a warship, attempted to flee in the

skiff     and     threw     weapons    and    their       ladder    overboard.          Those

actions were witnessed by the helicopter pilots, who conveyed

information        to   a    boarding       team    that    had    been    dispatched       in

smaller boats from the warship.

      The HMS Chatham’s boarding team seized and searched the

skiff, where team members discovered the pistol and ammunition

      2We recite the facts in the light most favorable to the
government, as the prevailing party at trial. See United States
v. Singh, 518 F.3d 236, 241 n.2 (4th Cir. 2008).



                                              6
for   that   weapon      and      the    AK-47s.       The    boarding     team      also

apprehended and questioned the Somalis.                      Ibrahim, speaking as

the group’s leader, asserted that the Somalis were smugglers who

had taken human cargo to Yemen and that one of their boats had

broken     down     along      the      way. 3      Personnel      of    the   Chatham

photographed the Somalis, confiscated the pistol and ammunition,

disabled     one    of      the    skiff’s        motors,    spray-painted       a    red

identification number on the skiff, and ordered the Somalis to

return home.

                                             2.

      In April 2010, the five defendants in this case, along with

Ibrahim and another man called the “Engineer,” used the same

skiff to enter the Gulf of Aden from Somalia.                      So that the skiff

“would not be recognizable,” the Somalis had obliterated the

identification       number       spray-painted         on    it    by   Royal       Navy

personnel.     See J.A. 415.            To accomplish their goal of seizing a

ship, the Somalis had obtained a replacement for the disabled

motor and loaded the skiff with a hooked ladder, three AK-47s,

and an RPG.        Ibrahim and Jama led the new mission, and Said was

      3Ibrahim later explained that the Somalis’ cover story had
to involve two boats to seem plausible, given that seven men
claiming to be smugglers were aboard the skiff.        Those who
patrol the high seas and “see people smuggling people almost
every day” would know that only two or three smugglers — and
“not more than that” — generally carry out such missions. See
J.A. 389.



                                             7
next in command.              Farah drove the skiff, and Cabaase and Osman

supplied two of the weapons.

       In the pre-dawn hours of April 10, 2010, the skiff swiftly

approached a large ship believed by the Somalis to be a “cargo

ship.”       See J.A. 444.             Nearing the ship’s aft on its port side,

Said and Cabaase held loaded AK-47s, while Jama attempted to

load       the    RPG    with     explosive       rockets. 4          When    the    skiff    was

approximately twenty-five yards from the “cargo ship,” Cabaase

began shooting at it with his AK-47.                            The Somalis intended to

“scare [the crew], and then after that[,] capture the ship.”

Id.    The encounter took place about forty nautical miles off the

coast of Yemen in international waters.

       The       targeted     ship      was   actually         the   USS     Ashland,    a   dock

landing          ship    of     the     United        States    Navy,        which   was     then

transiting the Gulf of Aden transporting Marines and military

equipment. 5            Several       personnel       aboard    the    Ashland       —   namely,

Marine Lance Corporal John Curtis, Damage Control Fireman James



       4
       Unable to render the RPG operational, Jama sought the
assistance of Ibrahim, who soon realized that the ammunition on
board the skiff did not fit the RPG.
       5
       As one of the Ashland’s personnel later testified, the
vessel “is one of the ships in the U.S. Navy inventory that
actually looks like a merchant ship.”   See J.A. 203-04.   With
military equipment on board, the Ashland “could be misconstrued
as . . . a merchant container vessel that isn’t fully loaded.”
Id. at 204.



                                                  8
Hendershot, Seaman Donald Lane, Lieutenant Junior Grade Benjamin

Towers,      Lieutenant     Brent         Holloway,      and     Gunner’s       Mate    Justin

Myers    —    witnessed        the    Somalis’         attack    from        several   vantage

points, including near the warship’s aft, its mid-ship, and the

bridge.       Several     of    the       witnesses      saw    Cabaase        fire    multiple

rounds at the Ashland and heard bullets striking the ship.                                   See,

e.g., J.A. 153 (Curtis:               “He was deliberately shooting . . . the

weapon    towards     the      front      right     over      the     bridge     of    the    USS

ASHLAND.”); id. at 186 (Hendershot:                      “I saw a man stand up and

bring a weapon up to his shoulder aiming at the ship . . . .”);

id. at 282 (Myers:              “You saw a muzzle flash followed by the

sound of a weapon, and I also heard a couple of clangs that

sounded      like   ricochet         on   the    side    of     the    boat.”).        Indeed,

Corporal Curtis witnessed Cabaase “load a magazine, rack it,

fire like two to three times, bang, bang, bang.                              Bang, bang.       He

dropped the magazine, loads another one, racks it a couple of

times, keeps shooting, bang, bang, bang.”                           Id. at 153-54.            The

multiple shots fired at the Ashland were so startling that the

warship’s helmsman had difficulty with the steering.

      Gunner’s      Mate       Myers       initially       left       his     remote     firing

station inside the USS Ashland to observe the skiff’s assault

from the warship’s deck.                  After watching Cabaase fire multiple

times at the Ashland, Myers ran back to his duty station, where

he   controlled      25-mm      machine         guns    loaded        with    armor-piercing

                                                9
incendiary shells.           The screen of the weapons system operated by

Myers displayed images from an infrared camera mounted outside

the ship.    The camera zoomed in so closely on the skiff that it

seemed “[a]lmost as if you [were] standing next to some of the

people in the skiff.”             See J.A. 213.        Myers’s vantage point

enabled    him    to   see    that   Cabaase   was   aiming   directly      at   the

Ashland.     After Cabaase began firing a second series of shots,

the Ashland’s Captain ordered Myers to return fire with a 25-mm

machine gun, and Myers promptly fired two shots.                 As a result of

those shots from the Ashland, a fire erupted on the skiff, the

Engineer died, and Farah lost a leg. 6

     The defendants jumped off the burning skiff, and Ibrahim

followed    suit    after     throwing   the   RPG   and   two   of   the   AK-47s

overboard.       While treading water, the Somalis agreed to tell the

crew of the USS Ashland a story similar to the one that had been

concocted for the personnel of the HMS Chatham — that the skiff

was returning from smuggling refugees to Yemen.                  To explain why

they were travelling on one small skiff, they would tell the

Ashland’s crew about transporting refugees on a second larger

boat that had broken down before their return trip.                   The Somalis

also agreed to explain that they were stranded without food or


     6 The defendants each suffered burns as a result of trying
to put out the fire on the skiff, but Ibrahim was not injured.



                                         10
fuel, and that the Engineer (who was then deceased) had fired on

the Ashland to alert the crew that they were in need of rescue.

      The      USS        Ashland    and    its     personnel     apprehended      the

defendants and Ibrahim, took pictures of the skiff’s remains,

and seized its contents, including the weapons and the hooked

ladder that were left aboard.                     The Somalis were subsequently

transported to Virginia, where this prosecution was initiated.

                                            B.

                                            1.

     On April 21, 2010, the grand jury in the Eastern District

of   Virginia        at    Norfolk    returned      an    indictment   against     the

defendants and Ibrahim.              Nearly three months later, on July 7,

2010, the grand jury returned a superseding indictment.                          Those

indictments — which dealt solely with the attack on the USS

Ashland — charged the defendants and Ibrahim with, inter alia,

piracy    in   contravention         of    18    U.S.C.   § 1651.      That   statute

provides in full:

     Whoever, on the high seas, commits the crime of piracy
     as defined by the law of nations, and is afterwards
     brought into or found in the United States, shall be
     imprisoned for life.

18 U.S.C. § 1651.

     On     June     9,     2010,    the   defendants      and   Ibrahim   moved   to

dismiss the piracy charge of the initial indictment, contending

that piracy under § 1651 requires a robbery at sea.                           Because


                                            11
their     effort       to     seize    the         Ashland         was     unsuccessful,         the

defendants      and     Ibrahim       argued       that      the     § 1651       piracy    charge

should     be    dismissed.            The    district             court    agreed     with       the

defendants       and        granted    their           motion       on     August    17,        2010,

dismissing the piracy charge from the superseding indictment.

        On August 21, 2010, Ibrahim entered into a plea agreement

with the United States Attorney, by which he agreed to assist

the government in its prosecution of his cohorts.                                 On August 27,

2010, Ibrahim pleaded guilty to three counts of the superseding

indictment:          attack to plunder a vessel, in contravention of 18

U.S.C.     § 1659;          performing       an        act    of     violence       against       an

individual       on     a      vessel,        in       contravention          of     18     U.S.C.

§ 2291(a)(6);         and    using,     carrying,            and    discharging        a   firearm

during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A)(iii).                         On November 29, 2010, Ibrahim

was sentenced to 360 months in prison.

                                                  2.

      After Ibrahim was sentenced, the government filed an appeal

contesting — as to the five defendants — the district court’s

dismissal       of    the     § 1651     piracy         charge.            Following       an    oral

argument conducted in this Court on March 25, 2011, we placed

the     government’s          appeal     in        abeyance         pending       argument       and

decision    in       United    States        v.    Dire.           The     Dire    appeals       were

brought by a separate group of Somalis who had been convicted of

                                                  12
piracy      for    their   attack    on    the     USS    Nicholas,      another     Navy

warship.      The Dire defendants had intended to seize the Nicholas

in the Indian Ocean, but their plan was foiled by the Nicholas’s

crew.

       Like the defendants here, the Dire defendants argued that

§ 1651 requires a robbery — i.e., seizing or otherwise robbing a

vessel.       That contention is premised primarily on the Supreme

Court’s decision in United States v. Smith, 18 U.S. (5 Wheat.)

153,    162   (1820),      where    the    Court   indicated      that    it   had    “no

hesitation in declaring, that piracy, by the law of nations, is

robbery upon the sea.”             As the argument goes, because “a court

must interpret a statute by its ordinary meaning at the time of

its enactment,” and because the language of § 1651 can be traced

to     an   1819    act    of   Congress,        the     Smith   decision      of    1820

constitutes “the definitive authority on the meaning of piracy.”

See United States v. Dire, 680 F.3d 446, 452 (4th Cir. 2012)

(internal quotation marks omitted).

       By our Dire decision, however, we rejected the theory that

the meaning of piracy for purposes of § 1651 “was fixed in the

early Nineteenth Century.”                See 680 F.3d at 467.            That is, we

excluded a static interpretation of § 1651 that would “render it

incongruous with the modern law of nations and prevent us from

exercising universal jurisdiction in piracy cases.”                       Id. at 468-

69.     Rather, consistent with Congress’s intent “to define piracy

                                            13
as a universal jurisdiction crime,” we concluded that “§ 1651

incorporates    a   definition       of   piracy   that   changes     with

advancements in the law of nations.”        Id. at 469.   We recognized

in Dire that, for decades, piracy has been defined by the law of

nations to include:

     (A)   (1) any illegal act of violence or detention, or
           any act of depredation; (2) committed for private
           ends; (3) on the high seas or a place outside the
           jurisdiction of any state; (4) by the crew or the
           passengers of a private ship; (5) and directed
           against another ship, or against persons or
           property on board such ship; or

     (B)   (1) any act of voluntary participation in the
           operation of a ship; (2) with knowledge of the
           facts making it a pirate ship; or

     (C)   (1) any act of inciting or of intentionally
           facilitating (2) an act described in subparagraph
           (A) or (B).

Id. at 465 (alterations and internal quotation marks omitted)

(drawing   definition   from   the    substantively   identical     Geneva

Convention on the High Seas (the “High Seas Convention”) and

United Nations Convention on the Law of the Sea (the “UNCLOS”)).

     Because the foregoing definition of piracy encompassed the

Dire defendants’ conduct, we affirmed their convictions under

§ 1651.    The very day we decided Dire — that is, May 23, 2012 —

we vacated the district court’s dismissal of the § 1651 piracy

charge in this case and “remand[ed] for such other and further

proceedings as may be appropriate, consistent with our decision



                                     14
in Dire.”       See United States v. Said, 680 F.3d 374, 375 (4th

Cir. 2012). 7

                                      3.

     On August 8, 2012, after our remand to the district court,

the grand jury returned a second superseding indictment against

the defendants (the “operative indictment”), lodging additional

charges    stemming    from   the   February      2010    encounter    with   the

British    warship     HMS    Chatham.       As    a     result   of   Ibrahim’s

cooperation, the government investigators and the grand jury had

obtained    evidence    supporting       those    additional      counts.     The

operative indictment contained the following charges:

     ●      Count One — Conspiracy to commit hostage taking
            (18 U.S.C. § 1203(a));

     ●      Count Two — Conspiracy to commit kidnapping (18
            U.S.C. § 1201(c));

     ●      Count Three — Conspiracy to perform an act of
            violence against an individual on a vessel (18
            U.S.C. § 2291(a)(9));

     ●      Count Four — Conspiracy to use and carry a
            firearm and a destructive device during and in
            relation to, and possessing a firearm and a
            destructive device in furtherance of, a crime of
            violence, specifically the crimes charged in
            Counts One through Three and Five through Eight
            (18 U.S.C. § 924(o));

     7 The Dire defendants and the defendants in this case filed
petitions for writs of certiorari in the Supreme Court, seeking
to have the Court reverse our ruling in Dire concerning the
ambit of § 1651.    Those petitions were denied on January 22,
2013. See 133 S. Ct. 982 (2013).



                                      15
       ●   Count Five — Piracy as defined by the law of
           nations (18 U.S.C. § 1651);

       ●   Count Six — Attack to plunder a vessel (18 U.S.C.
           § 1659);

       ●   Count Seven — Assault with a dangerous weapon on
           a   federal  officer  or  employee   (18  U.S.C.
           § 111(a)(1) and (b));

       ●   Count Eight — Performing an act of violence
           against an individual on a vessel (18 U.S.C.
           § 2291(a)(6));

       ●   Count Nine — Using and carrying a firearm during
           and in relation to, and possessing a firearm in
           furtherance of, a crime of violence, specifically
           the crimes charged in Counts One through Three
           (18 U.S.C. § 924(c)(1)(A)); and

       ●   Count Ten — Using, carrying, and discharging a
           firearm during and in relation to a crime of
           violence, specifically the crimes charged in
           Counts One through Three and Five through Eight
           (18 U.S.C. § 924(c)(1)(A)(iii)).

Counts One through Four of the operative indictment encompass

the time period in which the encounters with the HMS Chatham and

the USS Ashland occurred.            Counts Five through Eight, plus Ten,

deal   solely   with   the    attack    on   the    Ashland,    and   Count   Nine

relates only to the Chatham.             Counts Five through Ten include

allegations     of   aiding    and     abetting,     pursuant    to   18   U.S.C.

§ 2(a).

       Defendants Said, Jama, and Cabaase were named in all ten

counts of the operative indictment.                Defendants Osman and Farah

were named in all counts except Count Nine.               Prior to trial, the


                                        16
defendants      again   moved      to    dismiss          the   § 1651          piracy    charge

(Count Five of the operative indictment), which the district

court denied on the basis of the Dire decision.

                                              4.

        The   defendants’    trial       began       in    Norfolk         on    February    19,

2013, and concluded on February 27, 2013.                             The trial featured

extensive testimony from personnel aboard the USS Ashland and

the   HMS     Chatham     during    their          encounters         in    2010    with     the

defendants.      Ibrahim was called to the stand by the government,

and   the     prosecutors    used       his    testimony         to    establish         several

details underlying their case.

      Ibrahim     began     by   explaining          how    he    became         involved     in

piracy activities.          For example, after seeing “a lot of people

in [his] neighborhood making a lot of money [and] buying houses

and nice cars” from acts of piracy, he decided to “jump on that,

too.”     J.A. 360.     Thus, in November 2008, Ibrahim joined a group

of Somali pirates — none of whom are involved in this case — on

a mission to seize merchant ships near the coast of Yemen.                                  That

group forcibly seized a Danish ship called the CEC Future, using

assault weapons and a ladder.                 The pirates removed the Future to

Somalia and held it “until [they] got a ransom” in January 2009.

Id. at 363.      Ibrahim was paid $17,000 for that piracy mission.

      In early 2010, Ibrahim sought out another piracy mission in

order to “get more money.”                    J.A. 365.          In February 2010, he

                                              17
joined Said, Jama, Cabaase, and three others on the mission to

“seize a ship” that was thwarted by the HMS Chatham.                           Id. at

383.       Thereafter, in April 2010, Ibrahim and the defendants set

out with another plan to “seize a ship” and “make money.”                          Id.

at 403.          Ibrahim described his and the defendants’ subsequent

attack      on    the   USS   Ashland    and     their    apprehension       by    its

personnel.        After being indicted for the Ashland attack, Ibrahim

explained, he decided to plead guilty and cooperate with the

federal prosecutors, seeking a less severe sentence. 8

       At the close of the prosecution’s case, on February 25,

2013,      the   defendants   moved     for   judgments    of   acquittal.         The

trial court denied the motions.                The defendants rested without

calling      witnesses.       The   defendants     objected      to    the   court’s

proposed instructions on piracy under § 1651, which adopted the

legal      principles    recognized     and    applied    in   Dire.     The      court

overruled the defendants’ objections and instructed the jury in

a manner consistent with Dire.            At the conclusion of the six-day

trial, on February 27, 2013, the jury convicted the defendants

on all counts.          The defendants jointly filed a renewed motion




       8
       After entering his guilty pleas in this case, Ibrahim
pleaded guilty in the District of Columbia to charges relating
to the 2008 seizure of the CEC Future.      He was subsequently
sentenced in that prosecution to twenty-five years in prison, to
run concurrently with his sentence here.



                                         18
for judgments of acquittal on May 13, 2013, which the court

denied on August 1, 2013.

                                        5.

      On October 4, 2013, prior to their sentencing hearings, the

defendants filed a motion to invalidate § 1651’s mandatory life

sentence on Eighth Amendment grounds.              By its Eighth Amendment

Order    of   February   28,    2014,   the    district   court   granted   the

motion.

      The Eighth Amendment Order concluded that life sentences in

the   circumstances      of    this   prosecution    would   contravene     the

defendants’ Eighth Amendment rights.              The district court began

its     analysis   by    recognizing     the    Supreme   Court’s   two-prong

framework for assessing as-applied Eighth Amendment challenges

to non-capital sentences, as spelled out in Graham v. Florida,

560 U.S. 48 (2010).           The district court explained that, under

prong one, a court must “compare the gravity of the offense and

the severity of the sentence,” and determine “if that comparison

yields ‘an inference of gross disproportionality,’ which should

be a ‘rare’ result.”            See Eighth Amendment Order 6 (quoting

Graham, 560 U.S. at 60).              Upon ascertaining an inference of

gross disproportionality, the court moves to prong two, which

requires it to “compare the sentence with sentences received

with other offenders in the same jurisdiction and with sentences

imposed for the same crime in other jurisdictions.”                  Id.    “If

                                        19
that     analysis       confirms       that        the     sentence        is     grossly

disproportionate,” the district court explained, “then to impose

the sentence would violate the Eighth Amendment.”                        Id.

       At prong one of the Eighth Amendment analysis, the district

court assessed whether an inference of gross disproportionality

arose    upon     comparing    the     proposed       life       sentences      with   the

gravity of the defendants’ § 1651 piracy offenses.                              The court

reasoned that, although piracy is generally a serious offense,

“this was not a run-of-the-mill case of modern piracy.”                                See

Eighth Amendment Order 11.            Indeed, the court explained that the

defendants’       offenses     were        more     properly       characterized        as

attempted piracy, in that “[n]o victims were caused any physical

harm, and it is unclear whether there was even any property

damage.”        Id.     The   court    concluded         that    the     defendants    had

satisfied       prong   one    of     the     Eighth       Amendment       analysis     by

establishing the inference that life sentences would be grossly

disproportionate to their piracy offenses.                      Id. at 12.

       The district court then turned to prong two of the Eighth

Amendment analysis, comparing the proposed life sentences with

sentences imposed on other offenders in the same jurisdiction

and with sentences imposed for piracy in other jurisdictions.

The     court    observed     that,     with       the     exception       of    statutes

punishing       recidivist    offenders,          almost    all     of    the    “federal

criminal    statutes     carrying      a    mandatory       minimum      life    sentence

                                            20
. . .    involve    the     death    of     another       person.”      See    Eighth

Amendment Order 13.         The court also perceived that imposing “a

life sentence for the conduct in this case [would be] unique

internationally,”      on    the     premise       that     the   “global     average

sentence   for     piracy    is     just    over   14     years.”       Id.   at    16.

Accordingly, the court concluded that the “statutorily-mandated

sentence violates the Eighth Amendment and cannot be imposed.”

Id.

      By its Eighth Amendment Order, the district court directed

the parties to submit supplemental briefing on the appropriate

sentences for the defendants’ piracy convictions, in view of the

court’s invalidation of the mandatory life sentence.                          In his

supplemental brief, the United States Attorney urged the court

to impose a life sentence on each of the defendants, asserting

that such sentences were legally mandated.                    The defendants, by

contrast, made recommendations of various non-life sentences.

      The defendants’ sentencing hearings were conducted on May

14 and 15, 2014.          Said was sentenced to an aggregate of 500

months (140 months for his § 1651 piracy offense), Jama to 500

months   (140    months     for   piracy),      Cabaase      to   510   months     (150

months for piracy), Osman to 360 months (240 months for piracy),

and Farah to 384 months (264 months for piracy).                     The government

and the defendants timely noted their respective appeals, and we



                                           21
possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(b).



                                        II.

      Although    the      defendants    are    cross-appellants     in    these

proceedings,     we    will   review    their   contentions     in   the   first

instance, as our dispositions of their appeals could render moot

the government’s challenge to the defendants’ non-life sentences

for their 18 U.S.C. § 1651 piracy offenses.               By their appeals,

the defendants contend that the district court erred in denying

their motion to dismiss the piracy charge and in instructing the

jury on the elements of piracy under § 1651.                    The defendants

also maintain that the court erroneously denied their motions

for   judgments       of   acquittal,    arguing   that   the    evidence    was

insufficient to prove piracy and certain other offenses.

                                        A.

      In contending that the district court erred with respect to

the § 1651 piracy offense by declining to dismiss that charge

and by erroneously instructing the jury, the defendants contest

the court’s reliance on United States v. Dire, 680 F.3d 446 (4th

Cir. 2012).      We review de novo a district court’s denial of a

motion to dismiss an indictment where the denial depends solely

on questions of law.           See United States v. Hatcher, 560 F.3d

222, 224 (4th Cir. 2009).         We also review de novo the claim that

                                        22
a jury instruction failed to correctly state the applicable law.

See United States v. Jefferson, 674 F.3d 332, 351 (4th Cir.

2012).

     The defendants again advance the contention — considered

and rejected in Dire — that the definition of piracy under

§ 1651   is    limited      to   robbery      at    sea.       Nevertheless,        the

defendants concede that we are obliged to adhere to Dire, as one

panel of this Court is not entitled to overrule another panel.

See McMellon v. United States, 387 F.3d 329, 333-34 (4th Cir.

2004) (en banc).           Furthermore, the defendants do not dispute

that the district court faithfully applied the Dire principles.

We thus have no trouble concluding that the court did not err in

declining to dismiss the piracy charge or in instructing the

jury on the elements of the § 1651 offense. 9

                                         B.

     Turning        to    the    evidentiary         issues,        each    defendant

challenges    the    sufficiency    of     the     evidence    as    to    the   § 1651

piracy offense.          Additionally, the defendants, except for Said,

challenge     the    sufficiency    of     the     evidence     on    the    offenses


     9 Notably, we are not alone in our interpretation of § 1651.
Other courts, including two courts of appeals, have adopted the
definition of piracy announced in Dire.     See United States v.
Ali, 718 F.3d 929, 936-37 (D.C. Cir. 2013); Inst. of Cetacean
Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 943
(9th Cir. 2013).



                                         23
charged    in     Count       One   (conspiracy       to   commit   hostage    taking),

Count Two (conspiracy to commit kidnapping), and Count Three

(conspiracy to perform an act of violence against an individual

on a vessel).           Because Counts One through Three served as the

predicate offenses for Count Nine (using and carrying a firearm

during     and    in      relation     to,      and    possessing     a   firearm     in

furtherance       of,     a    crime    of   violence),       defendants      Jama   and

Cabaase also seek vacatur of their Count Nine convictions. 10

      We review de novo a trial court’s denial of a motion for

judgment of acquittal.              See United States v. Reed, 780 F.3d 260,

269   (4th       Cir.     2015).        In   reviewing        evidence    sufficiency

contentions, we are obliged to “view the evidence in the light

most favorable to the government and sustain the jury’s verdict

if any rational trier of fact could have found the essential

elements     of    the     crime      charged     beyond     a   reasonable     doubt.”

United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014)

(emphasis and internal quotation marks omitted).                          A defendant



      10
       None of the defendants challenge their convictions of the
offenses charged in Count Four (conspiracy to use and carry a
firearm and a destructive device during and in relation to, and
possessing a firearm and a destructive device in furtherance of,
a crime of violence); Count Six (attack to plunder a vessel);
Count Seven (assault with a dangerous weapon on a federal
officer or employee); Count Eight (performing an act of violence
against an individual on a vessel); and Count Ten (using,
carrying, and discharging a firearm during and in relation to a
crime of violence).



                                             24
challenging   the   sufficiency   of   the   evidence   faces    a    heavy

burden, as “[r]eversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”             United

States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal

quotation marks omitted).

                                  1.

     The   defendants   first   challenge    the   sufficiency       of   the

evidence on the § 1651 offense, which relates solely to their

attack on the USS Ashland.         In support of their sufficiency

contention, the defendants reiterate the argument that piracy

requires a robbery at sea.      As we have explained, however, their

position is foreclosed by Dire.

     Furthermore, the government presented sufficient evidence

to prove that the defendants’ conduct constituted piracy under

the Dire principles.    The evidence established, inter alia, the

following:

     ●     The defendants set out from Somalia in their
           skiff with the intent to seize a merchant ship
           and tools to do so, including a hooked ladder,
           three AK-47s, and an RPG;

     ●     Seeking   to   capture   the  USS   Ashland   in
           international waters, Cabaase fired multiple AK-
           47 rounds at the Ashland from the skiff.     See
           Dire, 680 F.3d at 465 (explaining that piracy
           includes “(A)(1) any illegal act of violence
           . . . ; (2) committed for private ends; (3) on
           the high seas . . . ; (4) by the crew or the
           passengers of a private ship; (5) and directed
           against another ship, or against persons or


                                  25
             property on board such ship” (alterations                            and
             internal quotation marks omitted));

      ●      Farah drove the skiff as the defendants hunted a
             ship to seize and then targeted the Ashland. See
             id. (further defining piracy as “(B)(1) any act
             of voluntary participation in the operation of a
             ship; (2) with knowledge of the facts making it a
             pirate ship” (alterations and internal quotation
             marks omitted); and

      ●      Osman, along with Cabaase, had supplied two of
             the weapons, and Jama and Said, a leader and next
             in command for the mission, carried an RPG and an
             AK-47 during the Ashland attack. See id. (lastly
             defining piracy as “(C)(1) any act of inciting or
             of   intentionally   facilitating  (2)   an   act
             described in subparagraph (A) or (B) (internal
             quotation marks omitted)); see also United States
             v. Shibin, 722 F.3d 233, 240 (4th Cir. 2013)
             (recognizing “that the facilitating conduct of
             [subparagraph (C)] is ‘functionally equivalent’
             to aiding and abetting criminal conduct, as
             proscribed by 18 U.S.C. § 2”).

Accordingly,     we    are     well       satisfied       that,   on   the    evidence

presented, a reasonable jury was entitled to conclude beyond a

reasonable     doubt    that       each    of    the    defendants     committed        the

§ 1651 piracy offense.

                                            2.

      Next, defendants Jama, Cabaase, Osman, and Farah challenge

the   sufficiency      of    the    evidence       on    the    conspiracy        offenses

charged   in   Counts       One    through       Three,    encompassing       the       time

period in which the encounters with the HMS Chatham and the USS

Ashland occurred.           As for Counts One and Two, the operative

indictment     alleged      that     the    defendants         conspired     to    commit


                                            26
hostage taking and kidnapping, in that they went to sea with the

intent to hijack a ship and hold the vessel and its crew for

ransom.    See   18   U.S.C.   § 1203(a)    (proscribing    conspiracy   to

commit hostage taking); id. § 1201(c) (same for conspiracy to

commit kidnapping).        These four defendants contend that there

was insufficient evidence to prove that they conspired to kidnap

or hold any person hostage for ransom.              They assert that the

evidence showed merely that they intended to seize a ship to

make money.

    Upon seizing a ship, however, the defendants would have had

to either detain the crew members and personnel on board or

throw them off the vessel.          A reasonable jury could conclude

that the defendants intended to pursue the former option — that

is, detain the crew and other personnel — given that their

shared goal was to “make money,” and that they could do so by

ransoming captives.        See, e.g., J.A. 403 (Ibrahim’s testimony

that the defendants’ mutual objective at the time of the USS

Ashland attack was “[t]o seize a ship so we can make money”).

That evidence, illustrating the defendants’ thirst for funds,

was sufficient to prove that the defendants conspired to profit

by kidnapping and holding crew members and personnel hostage in

exchange   for   ransom.       Tellingly,   there    was   no   commonsense

alternative offered to the jury.         Although these defendants now

contend that they might have intended to make money by, for

                                    27
example, selling the seized ship, they did not argue such a

theory,      or     present       any   evidence            supporting       it,     at      trial.

Indeed,      the    defense       focused    on     convincing         the    jury      that    the

defendants were smugglers rather than pirates.

       Turning to Count Three, the operative indictment alleged

that   the    defendants          conspired    to       perform    an    act       of     violence

against an individual on a vessel, and that such act of violence

was likely to endanger the safety of those on board.                                         See 18

U.S.C.    § 2291(a)(9)         (criminalizing           conspiracy       to    “do        anything

prohibited         under      paragraphs          (1)        through     (8),”          including

performing         act   of   violence      against          individual       on    vessel,      as

proscribed by paragraph (6)).                  Jama, Cabaase, Osman, and Farah

contend that their mere intent to seize a ship does not also

prove an intention to perform an act of violence against the

ship’s    crew      or    other    personnel.           Rather,     according           to    these

defendants,         “[o]ne     might        seize       a     vessel     by        surprise      or

acquiescence.”           See Br. of Cross-Appellants 59.

       The trial evidence, however, was more than sufficient to

prove that, at the time of the encounters with the HMS Chatham

and the USS Ashland, the defendants were equipped and ready to

commit violence against individuals on board in furtherance of

their goal of seizing a ship.                     During the Ashland attack, they

carried an RPG and three AK-47s — two provided by Cabaase and

Osman — in their small, open skiff.                         While Farah drove the skiff

                                              28
into position, Jama attempted to load the RPG, and Cabaase fired

multiple    rounds     from   his     AK-47    at     the    Ashland      in    order    “to

capture    the   ship.”       See     J.A.     444.         From   that    evidence,      a

reasonable jury could conclude that these defendants conspired

to perform an act of violence against an individual on a vessel,

as part of their plan to forcibly seize a ship.

     In these circumstances, the guilty verdicts on Count Three,

as well as Counts One and Two, were adequately supported by the

evidence.     Because we therefore must affirm the convictions of

Jama, Cabaase, Osman, and Farah on Counts One through Three, we

also uphold Jama’s and Cabaase’s convictions on Count Nine.



                                         III.

     Having      resolved     each    defendant’s       appeal      against       him,    we

turn to the government’s appeal from the district court’s Eighth

Amendment     Order.        The      government       contends      that       the   court

erroneously determined that 18 U.S.C. § 1651’s mandatory life

sentence, as applied to the defendants, contravenes the Eighth

Amendment’s      prohibition      against      cruel    and    unusual         punishment.

The defendants, by contrast, maintain that the court properly

imposed non-life sentences for their piracy offenses.                           We review

de novo the question of whether a sentence runs afoul of the

Eighth Amendment.         See United States v. Cobler, 748 F.3d 570,

574 (4th Cir. 2014).

                                          29
                                            A.

       We begin our consideration of the government’s appeal by

identifying         the     controlling     legal       framework.        The     Eighth

Amendment provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments

inflicted.”          U.S. Const. amend. VIII.              In deciding whether a

punishment is cruel and unusual, we must examine the “evolving

standards      of     decency    that     mark    the    progress    of   a     maturing

society.”       Graham v. Florida, 560 U.S. 48, 58 (2010) (internal

quotation marks omitted).               A punishment is cruel and unusual not

only    when    it    is    “inherently     barbaric,”      but    also   when    it    is

“disproportionate to the crime.”                    Id. at 59.        Indeed, “[t]he

concept of proportionality is central to the Eighth Amendment.”

Id.

       Here,    the        defendants     pursued       as-applied    challenges       to

§ 1651’s mandatory life sentence.                   See Cobler, 748 F.3d at 575

(“Under an as-applied challenge, a defendant contests the length

of a certain [non-capital] sentence as being disproportionate

given all the circumstances in a particular case.” (internal

quotation marks omitted)).               As the district court recognized in

its Eighth Amendment Order, the Supreme Court has adopted a two-

prong    test        for    assessing     an     as-applied       challenge      to    the

proportionality of a sentence.                   Under prong one, a court must

determine whether a threshold comparison of “the gravity of the

                                            30
offense and the severity of the sentence” produces “an inference

of    gross    disproportionality.”              See    Graham,      560    U.S.      at   60

(internal quotation marks omitted) (relying on principles set

forth in Solem v. Helm, 463 U.S. 277 (1983)).                         If prong one is

satisfied, the court moves to an analysis of prong two.                                Under

that prong, the court must “compare the defendant’s sentence

with    the    sentences      received     by    other     offenders       in    the    same

jurisdiction and with the sentences imposed for the same crime

in other jurisdictions.”            Id.        If that comparison “validates an

initial judgment that the sentence is grossly disproportionate,

the    sentence       is   cruel   and    unusual.”          Id.     (alterations          and

internal quotation marks omitted).

       The    Supreme      Court   has    on    one    occasion      —     in   its    Solem

decision of 1983 — identified a non-capital sentence as being

grossly       disproportionate.           There,       the   recidivist          defendant

(Helm) was sentenced to life without parole for uttering a $100

bad check.          The Court observed that the matter involved “one of

the most passive felonies a person could commit,” in that the

offense “involved neither violence nor threat of violence to any

person”; Helm’s prior offenses “were all relatively minor”; and

life imprisonment was “the most severe punishment that the State

could have imposed on any criminal for any crime.”                              See Solem,

463    U.S.    at    296-97   (internal        quotation     marks    omitted).            The

Court further determined that “Helm has been treated in the same

                                           31
manner    as,        or     more      severely       than,    criminals         [in       the    same

jurisdiction] who have committed far more serious crimes,” and

that “Helm was treated more severely than he would have been in

any other State” except possibly one.                           See id. at 299-300.                In

those     circumstances,              the     Court       concluded      that       Helm’s       life

sentence was “significantly disproportionate to his crime” and

“therefore prohibited by the Eighth Amendment.”                                     Id. at 303.

The     Solem        decision         emphasized,         however,      that     “outside         the

context    of        capital         punishment,         successful     challenges          to    the

proportionality            of       particular       sentences       will      be     exceedingly

rare.”       Id.          at    289-90       (alteration,       emphasis,           and    internal

quotation marks omitted).

      Since Solem was decided, not a single “defendant before the

Supreme     Court          has       been    successful       in     establishing          even    a

threshold       inference            of     gross    disproportionality”              in    a    non-

capital case.              See Cobler, 748 F.3d at 576.                      For example, in

Harmelin v. Michigan, 501 U.S. 957 (1991), the Court rejected an

as-applied       Eighth             Amendment       challenge      to    a     mandatory         life

sentence        in     a       cocaine       possession      case.           Justice        Kennedy

distinguished the “passive” check fraud crime in Solem from the

“pernicious” drug offense at issue in Harmelin, observing that

the latter crime “threatened to cause grave harm to society.”

See Harmelin, 501 U.S. at 1002 (Kennedy, J., concurring in part

and     concurring             in    the    judgment)       (internal        quotation          marks

                                                    32
omitted). 11        In rejecting Harmelin’s Eighth Amendment challenge,

Justice Kennedy also stressed the proposition that courts should

give “substantial deference” to legislatures in determining the

severity of punishments.             See id. at 998-99 (internal quotation

marks omitted).

       The Supreme Court has more recently rejected an as-applied

Eighth Amendment challenge for lack of an inference of gross

disproportionality in Ewing v. California, 538 U.S. 11 (2003).

Ewing received a sentence of twenty-five years to life under

California’s “three strikes” law for stealing $1,200 worth of

golf clubs.          Distinguishing his crime from that in Solem, the

Court observed that the theft offense “was certainly not one of

the most passive felonies a person could commit.”                      See Ewing,

538 U.S. at 28 (internal quotation marks omitted).                        The Court

then    explained         that,   although    Ewing’s    sentence   was    “a   long

one[,]      . . .    it    reflect[ed]   a    rational   legislative      judgment,



       11Although a majority failed to coalesce in Harmelin
concerning the scope of the Eighth Amendment’s proportionality
guarantee, Justice Kennedy’s opinion, which was joined by two of
his colleagues, has been recognized by the Supreme Court as the
controlling decision on that issue. See Graham, 560 U.S. at 59-
60.    It is thereby established that “the Eighth Amendment
contains a ‘narrow proportionality principle,’ that ‘does not
require strict proportionality between crime and sentence’ but
rather ‘forbids only extreme sentences that are “grossly
disproportionate” to the crime.’”    Id. (quoting Harmelin, 501
U.S. at 997, 1000-01 (Kennedy, J., concurring in part and
concurring in the judgment)).



                                         33
entitled to deference, that offenders who have committed serious

or violent felonies and who continue to commit felonies must be

incapacitated.”     Id. at 30.

     By our subsequent Cobler decision, we upheld a 120-year

sentence imposed on a defendant who not only “possess[ed] large

quantities of child pornography that he downloaded and shared on

the Internet,” but “also created depictions of his own sexual

exploitation, molestation, and abuse of a four-year-old child.”

See 748 F.3d at 580.        Applying the Supreme Court’s two-prong

test for an as-applied Eighth Amendment challenge, Cobler failed

at prong one.     We explained:

     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, 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.

Id. (footnote omitted).      Judge Keenan emphasized the rarity of

cases in which an inference of gross disproportionality may be

drawn,   noting   the   singularity   of    the   Supreme   Court’s   Solem

decision and distinguishing the check fraud offense there from

the crimes perpetrated by Cobler.          See id. (“Far from being ‘one

of the most passive felonies a person could commit,’ Cobler’s



                                  34
heinous acts exploited, injured, and inflicted great harm on a

most vulnerable victim.” (quoting Solem, 463 U.S. at 296)).

     On the issue of gross disproportionality, Cobler is typical

of   this    Court’s      decisions. 12         Significantly,         we   have    not

identified a grossly disproportionate life sentence or putative

life sentence in the wake of Solem.               See, e.g., United States v.

Dowell,     771    F.3d   162,    167-69       (4th    Cir.    2014)    (eighty-year

sentence for child pornography); United States v. Myers, 280

F.3d 407, 415-16 (4th Cir. 2002) (life sentence imposed under

Armed     Career   Criminal      Act   for     being   felon    in     possession   of

firearm); United States v. Kratsas, 45 F.3d 63, 68-69 (4th Cir.

1995) (repeat drug offender’s life sentence for conspiracy to

distribute cocaine); United States v. D’Anjou, 16 F.3d 604, 612-

14 (4th Cir. 1994) (life sentence for conspiracy to distribute

cocaine base).




     12 Our Cobler decision was rendered in April 2014 — nearly
two months after the district court had entered its Eighth
Amendment Order in this case.    The district court, upon being
presented with Cobler, responded at defendant Said’s sentencing
hearing on May 14, 2014, that it

     read [Cobler and] understands that there has not been
     any precedent that would appear favorable to what the
     [Eighth Amendment Order] has ruled, but the precedent
     is usually the precedent until the precedent changes.

J.A. 1104.



                                          35
                                          B.

       With the foregoing legal framework in mind, we assess the

government’s challenge to the defendants’ non-life sentences for

their   § 1651     piracy     offenses.         Prong     one    of    the    applicable

analysis requires that we decide whether a threshold comparison

of the gravity of the defendants’ offenses and the severity of

the    proposed    life     sentences    leads       to   an    inference      of    gross

disproportionality.         See Graham, 560 U.S. at 60.                The defendants

contend that life sentences would be grossly disproportionate to

their conduct, which, echoing the district court, they describe

as mere “attempted robbery on the high seas” that “resulted in

no property damage to the USS Ashland and no physical harm to

any of its occupants.”         Br. of Cross-Appellants 39.

       As discussed above, however, the defendants’ § 1651 piracy

offenses      included      committing    illegal         acts    of    violence       for

private ends (Cabaase), operating a pirate ship (Farah), and

otherwise facilitating the violent acts (Said, Jama, and Osman).

When    the   defendants      engaged     in     that     conduct,      their       piracy

offenses were complete.           Those offenses were hardly “passive”;

rather, they involved “violence []or threat[s] of violence to

[m]any person[s].”           See Solem, 463 U.S. at 296.                     Indeed, the

defendants’       violent    conduct     was    at    least      as    severe    as    the

cocaine possession in Harmelin.                It is of no moment that no one

aboard the USS Ashland was harmed before the defendants’ attack

                                          36
was thwarted.          Cf. Dowell, 771 F.3d at 169 (“We reject out of

hand    the     notion   that     the    sexual       abuse       of   a   child    can     be

considered       nonviolent       merely       because       it    does    not     lead    to

physical or life-threatening injuries.”).                         That is, “[t]he mere

fact that [the defendants’] acts of [violence] did not inflict

. . .       physical   injury     [to    the       Ashland’s      personnel]       does    not

render [life sentences] disproportionate.”                        See id. 13

       Furthermore, § 1651’s mandatory life sentence “reflects a

rational       legislative      judgment,          entitled       to   deference,”        that

piracy in international waters is a crime deserving of one of

the harshest of penalties.                 See Ewing, 538 U.S. at 30.                      The

government       has   helpfully        and    cogently       detailed      why    such    an

offense is sufficiently grave to merit life imprisonment.                             Above

all, “for centuries, pirates have been universally condemned as

hostis humani generis — enemies of all mankind — because they

attack       vessels   on   the    high       seas,    and     thus     outside     of     any

nation’s      territorial       jurisdiction,         with    devastating         effect    to

global commerce and navigation.”                      United States v. Dire, 680

F.3d     446,    454     (4th     Cir.    2012)       (alterations         and     internal

quotation marks omitted).                Piracy was of such significance to

the Framers that they expressly accorded Congress, in what is

       13
       Of course, the defendants’ attack on the USS Ashland was
not casualty-free.   The Engineer was killed and the defendants
suffered burns when the Ashland returned fire.



                                              37
known as the Define and Punish Clause, the power “[t]o define

and punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations.”         U.S. Const. art. I, § 8,

cl. 10.    In 1790, the First Congress created a series of crimes

related to piracy, many of which were punishable by death.             The

piracy offense proscribed by § 1651 carried a mandatory death

sentence from the offense’s inception in 1819 until 1909, when

Congress reduced the penalty to mandatory life.

     The prevailing definition of piracy, “spelled out in the

UNCLOS, as well as the High Seas Convention before it, has only

been reaffirmed in recent years as nations around the world have

banded together to combat the escalating scourge of piracy.”

Dire, 680 F.3d at 469.          From 2005 to the fall of 2010, for

example, Somali pirates hijacked approximately 170 vessels and

fired upon some 280 more.        See J.A. 952-53 (expert testimony at

November   2010   trial   of   Dire   defendants).   Then,   “[i]n   2011,

armed Somali pirates attacked an estimated 3,863 seafarers and

took some 555 individuals hostage.”         See United States v. Beyle,

782 F.3d 159, 162 (4th Cir. 2015).            As Judge Wilkinson aptly

explained in the Beyle decision,

     [t]he United States and its allies are engaged in a
     multinational battle against piracy in the waters off
     the Horn of Africa. Through the Gulf of Aden and much
     of the Indian Ocean, Somalia-based pirates have
     launched attacks against commercial and recreational
     vessels, from large freighters to personal yachts.
     Piracy poses a threat not only to the free flow of

                                      38
     global commerce, but         also   to    the   individuals     who
     navigate the seas.

Id. (citation omitted).       Victims of piracy are robbed of their

vessels,    kidnapped,     held   hostage,     and    even   tortured      and

murdered, while pirates are often able to find safe refuge in

the territorial waters off Somalia and collect multi-million-

dollar ransom payments.       In these circumstances, we agree with

the government “that Congress could with reason conclude [that

piracy] calls for the strong medicine of a life sentence for

those who are apprehended.”       See Br. of Appellant 39. 14

     We are satisfied that “the relationship between the gravity

of   [the   defendants’]    offenses     and   the   severity   of    [their

proposed] punishment fails to create the threshold inference of

gross disproportionality that is required” to satisfy prong one

of the Eighth Amendment analysis.         See Cobler, 748 F.3d at 580.

     14 The defendants contend on appeal that we should not
afford deference to Congress’s judgment that piracy should be
punished by life imprisonment, because when that penalty was
fixed in 1909, the definition of piracy was limited to robbery
at sea and did not include their violent conduct. For that same
reason, the defendants also assert that imposing life sentences
on them would violate the Define and Punish Clause.      We must
reject the defendants’ theory, however, because Congress clearly
meant to attach the mandatory life sentence to piracy, however
defined by the law of nations at the relevant time.    See Dire,
680 F.3d at 468-69 (recognizing that “§ 1651 incorporates a
definition of piracy that changes with advancements in the law
of nations,” and that, in enacting § 1651, “Congress properly
made an act a crime, affixed a punishment to it, and declared
the court that shall have jurisdiction of the [offense]”
(alterations and internal quotation marks omitted)).



                                    39
Thus, without moving to prong two, we rule that the district

court erred in invalidating § 1651’s mandatory life sentence as

to these defendants and is obliged to impose such sentences on

remand.



                                 IV.

     Pursuant   to   the   foregoing,     we   affirm   the   various

convictions of the defendants.     We, however, reverse the Eighth

Amendment Order, vacate the defendants’ sentences, and remand

for resentencing.

                                       No. 14-4413 REVERSED IN PART,
                                       VACATED IN PART, AND REMANDED


                                      Nos. 14-4420, 14-4421, 14-4423,
                                        14-4424, and 14-4429 AFFIRMED




                                 40
DAVIS, Senior Circuit Judge, concurring:

      I join in full Judge King’s excellent opinion. I write to

express     my    agreement       with      one    thoughtfully-expressed        and

eminently correct observation by the district court: Although

modern piracy is a genuine, life-threatening scourge, not all

piracy offenses are equal in severity, in heinousness, and in

the dire consequences visited on innocent seafarers. Nor are all

those     who   participate     in   such    offenses   deserving    of   life   in

prison     as    the   sole     conceivable       “rational”   punishment. *     The

civilized world knows this. The United States of America knows

this too, but has not yet elected to act on that knowledge.

Accordingly, because we are not legislators, and as Judge King

demonstrates, because the Constitution has remarkably little to

say   about     severe,   but    non-capital,       criminal   punishments,      our

hands are tied.

      Perhaps, in the fullness of time, Congress will act on the

certain knowledge we all share about criminal offenses and their

punishments, and thereby empower federal district judges (and

      *Indeed, in this case, Mr. Ibrahim, who was “the group’s
leader” and who “led the new mission,” ante at 7, would seem to
have earned a life sentence. But he avoided that fate through
the magic of “substantial assistance” and the fiction of
“acceptance of responsibility,” the coins of the federal
prosecutorial realm. The inference is unavoidable that it is not
really those who participate in piracy who receive a life
sentence upon conviction (as we imagine Congress might believe),
but rather those who are convicted after electing to go to
trial.


                                         41
not simply federal prosecutors) with discretion to fashion more

individualized   punishments   in    this   small   corner   of   federal

criminal justice.




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