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 1998-11

Perkins v. Cain ( 1998 )


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  •                    UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 98-30061
No. 98-30069
____________
ALVIN PERKINS,
Petitioner-Appellant,
versus
BURL    CAIN,   Warden,     Louisiana    State
Penitentiary;   RICHARD    IEYOUB,    Attorney
General, State of Louisiana,
Respondents-Appellees.
Appeals from the United States District Court
for the Eastern District of Louisiana
(97-CV-1286-H & 97-CV-1316-H)
November 11, 1998
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alvin Perkins was convicted of armed robbery and sentenced as
a multiple offender to a 99-year term of imprisonment without
benefit of probation, parole, or suspension of sentence.   Perkins
initiated habeas corpus proceedings under 28 U.S.C. § 2254, in
which he challenged his criminal sentence on the grounds that (1)
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
the state court unconstitutionally imposed a harsher sentence
because he exercised his right to a trial by jury, and (2) his
sentence amounts to cruel and unusual punishment in violation of
the Eighth Amendment. The district court dismissed his action, and
Perkins appeals.     We affirm.
Perkins argues that the resentencing judge violated the Due
Process Clause of the Fourteenth Amendment when, after Perkins
chose to stand trial, he imposed the maximum sentence available.
The resentencing judge, in correcting Perkins's “illegally lenient”
sentence, considered the intent of the original judge.          See State
v. Desdunes,
    579 So. 2d 452
    , 452 (La. 1991)(per curiam)(stating
that resentencing judge considers intent of original sentencing
judge), overruled in part, State v. Harris,
    665 So. 2d 1164 
    (La.
1996)(per curiam).      The resentencing judge stated the original
judge intended to be lenient on defendants who pled guilty because
“it was a first step on the road to rehabilitation.”              Such an
intent is illegal, Perkins alleges, because a defendant may not be
punished by a more severe sentence simply because he unsuccessfully
exercises his constitutional right to stand trial rather than plea
guilty. See United States v. Devine,
    934 F.2d 1325
    , 1338 (5th Cir.
1991).     Thus, the resentencing judge's reference to the illegal
intent violated Perkins's due process rights.
Although the resentencing judge referred to the original
judge's intent, he also ordered a new pre-sentence report (“PSR”),
reviewed    the   record,   and   set   forth   independent   reasons   for
sentencing Perkins to the maximum sentence.              Perkins's prior
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criminal history and the use of a gun in the armed robbery
justified the maximum sentence.             The PSR and the court's reasons
support Perkins's sentence, and thus we cannot find that Perkins
received the maximum sentence because he exercised his right to
stand trial.       Consequently, there was no due process violation.
Perkins asserts additionally that, under Solem v. Helm,
    463 U.S. 277
    ,
    103 S. Ct. 3001
    ,
    77 L. Ed. 2d 637 
    (1983), his sentence
constitutes cruel and unusual punishment in violation of the Eighth
Amendment.        See
    Solem, 463 U.S. at 290-91
    , 103 S. Ct. at 3010
(considering gravity of offense and harshness of penalty, sentences
of other criminals in same jurisdiction, and sentences for same
crime in other jurisdictions). We have stated, however, that Solem
did not survive Harmelin v. Michigan,
    501 U.S. 957
    ,
    111 S. Ct. 2680
    ,
    115 L. Ed. 2d 836 
    (1991).          See McGruder v. Puckett,
    954 F.2d 313
    ,   316    (5th      Cir.   1992)(interpreting       Harmelin   to   support   a
continued disproportionality inquiry and to reject Solem factors).
“Accordingly, we will initially make a threshold comparison of the
gravity      of   [Perkins']     offenses     against    the    severity   of   his
sentence.”
    Id. The state 
    court sentenced Perkins under a recidivist statute,
because Perkins was convicted formerly of armed robbery.                        Upon
release from the penitentiary, Perkins repeated the crime of armed
robbery, which “certainly endangers life, limb, and property as
much as any non-capital offense.”
    Id. at 317. 
           We have found
previously that a life sentence without hope of parole is not
grossly disproportionate to such an offense.                   See
    id. (upholding -3- 
    life sentence without possibility of parole for multiple offender
convicted of auto burglary).   We find that Perkins's life sentence
is not “grossly disproportionate” to his offense.        Perkins's
sentence to life imprisonment without parole is, therefore, not
cruel and unusual punishment under the Eighth Amendment.
AFFIRMED.
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