United States v. Jimmy Hunter , 735 F.3d 172 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY ELIAB HUNTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00204-D-1)
Argued: September 19, 2013 Decided: November 13, 2013
Before SHEDD and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Shedd and Senior Judge Hamilton joined.
ARGUED: Curtis Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham,
North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
WYNN, Circuit Judge:
In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the
Supreme Court announced that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Relying on
Miller, Defendant Jimmy Eliab Hunter appeals from his sentence
for being a felon in possession of a firearm, asserting that the
district court erred in sentencing him as an armed career
criminal based on violent felonies he committed as a juvenile.
But unlike the juveniles in Miller, Defendant’s sentence here
punishes him for an offense he committed at the age of thirty-
three, well past an age when “the distinctive attributes of
youth diminish the penological justifications for imposing the
harshest sentences.” Id. at 2465. Thus, proportionality
concerns expressed in Miller regarding youthful offenders are
not implicated here. Finding Miller, Defendant’s sole basis
for his Eighth Amendment challenge, inapplicable, we affirm.
I.
In February 2011, at the age of thirty-three, Defendant
sold a gun and nine rounds of ammunition to a confidential
informant working with the Bureau of Alcohol, Tobacco, Firearms,
and Explosives. Defendant was indicted and then pled guilty to
violating 18 U.S.C. § 922(g)(1) by knowingly possessing a
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firearm and ammunition in and affecting commerce after having
been convicted of a crime punishable by imprisonment for a term
exceeding one year.
A violation of Section 922(g) ordinarily carries a maximum
sentence of ten years’ imprisonment. 18 U.S.C. § 924(a)(2).
However, in preparing the Presentence Investigation Report
(“PSR”), the probation officer found Defendant qualified for
sentencing under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). The ACCA imposes a mandatory fifteen-year
minimum term of imprisonment on a defendant who violates Section
922(g) “and has three previous convictions . . . for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1).
Defendant’s PSR identified five violent felony convictions
in his criminal history triggering the ACCA enhancement.
Defendant committed four of the five offenses before turning
eighteen, although in each case he was charged and convicted as
an adult. In 1993, when he was fifteen, Defendant pled guilty
to two charges of felony breaking and entering. And in 1995,
Defendant pled guilty to robbery with a dangerous weapon and
attempted armed robbery, both of which he committed at age
seventeen. The fifth identified violent felony, attempted
malicious conduct by a prisoner, occurred in 2003, when
Defendant was twenty-five.
3
Defendant objected to the PSR and filed a motion for
downward departure, asserting that the use of juvenile conduct
as a basis for an ACCA enhancement violates the Eighth Amendment
for the reasons set forth in Miller. 1 The district court
overruled the objection, observing that “no court has extended
Miller to this extent that [Defendant] is requesting in this
case, and I don’t think that it makes sense.” J.A. 59–60.
Ultimately, the district court sentenced Defendant to seventeen
years’ imprisonment. Defendant appeals.
II.
The sole issue presented on appeal is whether the ACCA
sentencing enhancement Defendant received based on convictions
for violent felonies he committed as a juvenile violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment under Miller. We review Defendant’s constitutional
challenge de novo. See United States v. Myers, 280 F.3d 407,
416 (4th Cir. 2002).
The Eighth Amendment protects individuals against excessive
sanctions. See Roper v. Simmons, 543 U.S. 551, 560 (2005). The
1
Defendant also argued that his 2004 conviction of
attempted malicious conduct by a prisoner was not a violent
felony. The district court found no need to reach this issue,
given the four other qualifying convictions.
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constitutional ban on cruel and unusual punishments embodies the
“‘precept of justice that punishment for crime should be
graduated and proportioned to [the] offense.’” Graham v.
Florida, 130 S. Ct. 2011, 2021 (2010) (quoting Weems v. United
States, 217 U.S. 349, 367 (1910)). “The concept of
proportionality is central to the Eighth Amendment.” Id. “And
we view that concept less through a historical prism than
according to the evolving standards of decency that mark the
progress of a maturing society.” Miller, 132 S. Ct. at 2463
(internal quotation marks omitted).
Miller is the most recent in a series of Supreme Court
decisions addressing proportionate sentencing for juveniles.
See Graham, 130 S. Ct. at 2034 (holding that the Eighth
Amendment prohibits life without parole for juveniles convicted
of nonhomicide offenses); Roper, 543 U.S. at 578 (holding that
imposing the death penalty on juveniles violates the Eighth
Amendment). In these cases, the Court has emphasized that
“children are constitutionally different from adults for
purposes of sentencing” due to their “diminished culpability and
greater prospects for reform.” Miller, 132 S. Ct. at 2464.
In Miller, the case on which Defendant relies, the juvenile
petitioners received mandatory sentences of life in prison
without parole after being tried as adults and convicted for
murders they committed when they were fourteen. Id. at 2461-63.
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Reversing their sentences, the Court stated that automatic
imposition of life without parole impermissibly “precludes
consideration of [a juvenile’s] chronological age and its
hallmark features--among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.” Id. at 2468.
Such mandatory punishment also “disregards the possibility of
rehabilitation even when the circumstances most suggest it.”
Id.
While Miller and its predecessors such as Graham have
focused on the worst crimes and the most extreme punishments,
the Supreme Court noted that “none of what [Graham] said about
children--about their distinctive (and transitory) mental traits
and environmental vulnerabilities--is crime-specific.” Miller,
132 S. Ct. at 2465. Further, Miller’s statements regarding
children’s “diminished culpability and greater prospects for
reform” are not punishment-specific. Id. at 2464. 2
None of this helps Defendant, however, because the sentence
he challenges punishes only his adult criminal conduct. “When a
defendant is given a higher sentence under a recidivism statute
. . . 100% of the punishment is for the offense of conviction.
2
Indeed, the Supreme Court has considered immaturity in the
sentencing context before, and outside the contours of only the
most heinous crimes and harshest sentences. See Gall v. United
States, 552 U.S. 38, 57-59 (2007).
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None is for the prior convictions or the defendant’s ‘status as
a recidivist.’” United States v. Rodriquez, 553 U.S. 377, 386
(2008). Instead, Defendant’s enhanced sentence “‘is a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because [it is] a repetitive one.’” Id.
(quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)).
At least two circuits have considered challenges to
sentencing enhancements based on juvenile conduct brought by
adult defendants in the wake of Miller. In United States v.
Hoffman, 710 F.3d 1228 (11th Cir. 2013) (per curiam), the
defendant was twice convicted for drug felonies before turning
eighteen, then committed a third drug felony and received a
mandatory sentence of life imprisonment under 21 U.S.C. §
841(b)(1)(A). 3 In determining that the life sentence did not
constitute cruel and unusual punishment, the Eleventh Circuit
distinguished between Miller’s prohibition on imposing mandatory
life sentences on juveniles and “‘consideration of prior
youthful offenses when sentencing criminals who continue their
illegal activity into adulthood.’” Hoffman, 710 F.3d at 1233
(quoting United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir.
3
Section 841(b)(1)(A) provides that if a person with “two
or more prior convictions for a felony drug offense” is
convicted for possessing with intent to distribute 50 or more
grams of methamphetamine, he “shall be sentenced to a mandatory
term of life imprisonment.” 21 U.S.C. § 841(b)(1)(A)(viii).
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2006)). Ultimately, the Eleventh Circuit upheld the enhanced
sentence because “[n]othing in Miller suggests that an adult
offender who has committed prior crimes as a juvenile should not
receive a mandatory life sentence as an adult, after committing
a further crime as an adult.” Id.
The Tenth Circuit reached similar conclusions in United
States v. Orona, 724 F.3d 1297 (10th Cir. 2013). There, the
defendant argued that use of a juvenile adjudication as a
predicate offense for ACCA purposes violated the Eighth
Amendment and conflicted with the Supreme Court’s holdings in
Roper, Graham, and Miller. Id. at 1307. Rejecting that
position, the Tenth Circuit observed that “[t]he problem with
this line of argument is that it assumes Orona is being punished
in part for conduct he committed as a juvenile.” Id. The Tenth
Circuit characterized this assumption as “unfounded,” given
consistent Supreme Court precedent “‘sustain[ing] repeat-
offender laws as penalizing only the last offense committed by
the defendant.’” Id. (quoting Nichols v. United States, 511
U.S. 738, 747 (1994)).
The Tenth Circuit moreover rejected Orona’s position that
he was less morally culpable. Unlike the juveniles in Roper,
Graham, and Miller, Orona was an adult “being punished for his
adult conduct” and therefore could not rely on “[a] juvenile’s
lack of maturity and susceptibility to negative influences” to
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“explain away [his] decision to illegally possess a firearm when
he was twenty-eight years old.” Id. at 1307-08. The greater
possibility for reformation, identified by the Supreme Court as
a distinguishing characteristic between juvenile and adult
offenders, only undermined Orona, who, as a recidivist, had
“been given an opportunity to demonstrate rehabilitation, but
[had] elected to continue a course of illegal conduct.” Id. at
1308. Accordingly, the Tenth Circuit held that the use of
Orona’s juvenile adjudication as a predicate offense for ACCA
purposes did not violate the Eighth Amendment’s ban on cruel and
unusual punishment. Id. at 1309-10.
In this case, Defendant is not being punished for a crime
he committed as a juvenile, because sentence enhancements do not
themselves constitute punishment for the prior criminal
convictions that trigger them. See Rodriquez, 553 U.S. at 385-
86. Instead, Defendant is being punished for the recent offense
he committed at thirty-three, an age unquestionably sufficient
to render him responsible for his actions. Accordingly,
Miller’s concerns about juveniles’ diminished culpability and
increased capacity for reform do not apply here.
In sum, Defendant was no juvenile when he committed the
crime for which he was sentenced here. Miller, with its
concerns particular to juvenile offenders, thus does not apply,
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and Defendant’s Eighth Amendment challenge to his sentence,
grounded in Miller, must fail.
III.
For the reasons discussed above, we affirm the judgment of
the district court.
AFFIRMED
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