United States v. Anthony Ousley , 698 F.3d 972 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2760
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY A. O USLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-CR-10044—James E. Shadid, Chief Judge.
A RGUED S EPTEMBER 20, 2012—D ECIDED O CTOBER 22, 2012
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
M ANION, Circuit Judge. Anthony A. Ousley has an
extensive history of peddling illegal drugs. Caught
dealing drugs yet again, Ousley was convicted of four
felonies, including one count of possession of more than
50 grams of crack cocaine with the intent to distribute,
in violation of 21 U.S.C. § 841(a)(1). On that count, the
district court imposed a mandatory life sentence pursu-
2 No. 11-2760
ant to 21 U.S.C. § 841(b)(1)(A). On appeal, Ousley con-
tends that the Eighth Amendment’s prohibition against
cruel and unusual punishments precludes a mandatory
life sentence for dealers who possess a smaller quantity
of crack cocaine than the quantity of powder cocaine
necessary to trigger a similar sentence for powder
cocaine dealers. We affirm.
I. Background
Prior to committing the offense giving rise to this
appeal, Ousley amassed five felony drug convictions.
His most recent encounter with law enforcement
occurred on March 18, 2010, when he sold 13.4 grams
of crack cocaine to a police informant. As Ousley
departed the scene of the transaction, police officers
attempted to stop him. Ousley initially eluded the
officers and then abandoned his vehicle. His evasive
maneuvers proved fruitless, however, as officers
soon apprehended him. Thereafter, officers searched
his apartment and discovered 579 grams of crack
cocaine and a number of firearms.
Ultimately, a grand jury indicted Ousley for one count
of distribution of more than 5 grams of crack cocaine, in
violation of § 841(a)(1); one count of possession of
more than 50 grams of crack cocaine with the intent to
distribute, in violation of § 841(a)(1); one count of pos-
session of a firearm in furtherance of a federal crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i); and one count
of felony possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). Pursuant to 21 U.S.C. § 851, the gov-
ernment filed an information expressing its intent to
No. 11-2760 3
seek an enhanced sentence based on Ousley’s prior
felony drug convictions.
Ousley pleaded not guilty. At trial, a jury found Ousley
guilty on all counts. By special verdict, the jury also
found that Ousley’s possession-with-intent-to-distribute
offense involved 579 grams of crack cocaine. Because
Ousley had at least two prior drug felonies and possessed
more than 50 grams of crack cocaine that he had
intended to distribute, § 841(b)(1)(A) required a sen-
tence of life imprisonment on the possession-with-intent-
to-distribute count.1 At sentencing, Ousley’s counsel
acknowledged that a mandatory life sentence applied,
but argued that incarcerating Ousley for life would
be expensive. Counsel also observed that deterrence
does not appear to be working, that the prisons do not
appear to be rehabilitating, and that Ousley may not
be a threat to society when he is older.
Recognizing that these arguments were futile in light
of § 841(b)(1)(A)’s mandate,2 the district court sentenced
Ousley to life imprisonment on the possession-with-intent-
1
After Ousley committed the offense, but before he was
sentenced, Congress enacted the Fair Sentencing Act of 2010.
That Act raised the amount of crack cocaine needed to trig-
ger a mandatory life sentence to 280 grams. 21 U.S.C.
§ 841(b)(1)(A)(iii) (2010). This change does not help Ousley
because the jury found that he possessed 579 grams of
crack cocaine.
2
Section 841(b)(1)(A) articulates a number of varying manda-
tory sentences. Ousley challenges the mandatory life sen-
tence which applies to him.
4 No. 11-2760
to-distribute count. On the distribution count and felony-
firearm-possession count, the district court imposed
prison sentences of 360 months to run concurrently
with each other and with the life sentence. On the re-
maining count, namely, possession of a firearm in fur-
therance of a drug crime, the district court imposed
a prison sentence of 60 months to run consecutively
to the other sentences.
II. Discussion
On appeal, Ousley challenges only his mandatory
life sentence. 3 He argues that the imposition of a life
sentence pursuant to § 841(b)(1)(A) violates the Eighth
Amendment’s prohibition against cruel and unusual
punishments. Ousley’s argument relies upon the prem-
ise that there is a national consensus against crack and
powder cocaine sentencing disparities and on the fact
that the statute mandates a life sentence in cases like
his. Ousley protests that a mandatory sentence neces-
sarily precludes the sentencing court from performing
a particularized assessment of the character and
record of the offender to determine whether a life
sentence is appropriate. See Woodson v. North Carolina,
428 U.S. 280, 302-05 (1976) (invalidating a statute that
3
Because Congress has abolished parole for federal crimes, see
Skowronek v. Brennan, 896 F.2d 264, 266 (7th Cir. 1990), and
specifically has eliminated parole eligibility in § 841(b)(1)(A),
Ousley limits his Eighth Amendment challenge to his life
sentence for which parole is not available.
No. 11-2760 5
mandated the death penalty and did not allow for par-
ticularized consideration of the character and record
of each offender).
Before discussing Ousley’s argument, we address the
government’s contention that Ousley forfeited his argu-
ment by failing to raise it at sentencing. When a de-
fendant fails to raise an Eighth Amendment claim
before the sentencing court, he forfeits that claim. United
States v. Carraway, 612 F.3d 642, 646 (7th Cir. 2010).
Here, Ousley did not specifically cite the Eighth Amend-
ment or expressly argue that a life sentence would be
cruel and unusual. Ousley contends, however, that his
trial counsel raised the Eighth Amendment by dis-
cussing concerns commonly cited in opposition to manda-
tory life sentences. See Graham v. Florida, 130 S. Ct.
2011, 2028-30 (2010) (noting that life sentences without
parole are severe and strip juvenile defendants of the
opportunity to demonstrate growth and maturity,
and finding that deterrence and rehabilitation are not
adequate justifications for imposing such sentences
on juveniles).
“To preserve an issue for appellate review, a party
must make a timely and specific objection, in order that
he or she might alert the court and the opposing party
as to the specific grounds for the objection . . . .” United
States v. Harris, 271 F.3d 690, 700 (7th Cir. 2001). Remarks
generally alluding to the expense of imprisonment, the
viability of deterrence and rehabilitation, and the prob-
ability that the defendant may cease to be a menace
to society at some future date are concerns implicated
6 No. 11-2760
by nearly every lengthy prison sentence. Without
more, these generalities do not sufficiently apprise a
sentencing court that the defendant is raising an Eighth
Amendment challenge. Consequently, Ousley forfeited
his Eighth Amendment claim, and our review is for
plain error. Carraway, 612 F.3d at 646.
There is no error, plain or otherwise, because Supreme
Court precedent, as well as our own precedent, fore-
closes Ousley’s Eighth Amendment challenge. In
Harmelin v. Michigan, the Supreme Court held that a
mandatory life sentence for possession of 672 grams of
cocaine does not constitute cruel and unusual punish-
ment within the meaning of the Eighth Amendment.
501 U.S. 957, 994-96 (1991). Harmelin expressly rejected
the contention that the “mandatory” nature of a life
sentence somehow makes it cruel and unusual. Id. 994-95.
Thus, Harmelin declined to adopt an Eighth Amend-
ment requirement that a life sentence be attended
by particularized consideration of the offender’s char-
acter and record. Id. at 995-96. Additionally, the Supreme
Court has rejected Eighth Amendment challenges to
statutorily mandated life sentences for defendants with
prior felony convictions. See Ewing v. California, 538 U.S. 11,
25 (2003) (upholding California’s “three-strikes” law); cf.
Lockyer v. Andrade, 538 U.S. 63 (2003). In line with such
precedent, we have repeatedly upheld mandatory life
sentences imposed pursuant to § 841(b)(1)(A) against
Eighth Amendment challenges. See, e.g., Carraway, 612
F.3d at 644, 646; United States v. Strahan, 565 F.3d
1047, 1052-53 (7th Cir. 2009).
No. 11-2760 7
Ousley questions the continued vitality of these
decisions in light of the Supreme Court’s recent Graham
decision addressing the constitutionality of sentencing
a juvenile to life without parole for a non-homicide
crime. Before Graham, the Supreme Court had adopted
categorical rules prohibiting death sentences for certain
types of crimes or offenders. See, e.g., Kennedy v. Louisiana,
554 U.S. 407, 413 (2008) (rape of a child under twelve
years of age); Roper v. Simmons, 543 U.S. 551, 578 (2005)
(execution of juvenile offenders); Atkins v. Virginia, 536
U.S. 304, 321 (2002) (execution of mentally retarded
criminals); Coker v. Georgia, 433 U.S. 584, 592 (1977) (rape
of an adult woman). In Graham, the Supreme Court
held that sentencing a juvenile to life without parole for
a non-homicide crime constitutes cruel and unusual
punishment. 130 S. Ct. at 2030; see also Miller v. Alabama,
132 S. Ct. 2455, 2475 (2012) (extending Graham to juvenile
murderers). Thus, Graham is the first instance wherein
the Supreme Court endorsed a categorical prohibition
on a non-capital sentence—life without parole—for a
certain type of offender—juveniles.
Ousley argues that Graham relieves us of our obliga-
tion to follow Harmelin, Ewing, and our decisions
rejecting Eighth Amendment challenges to life sen-
tences imposed pursuant to § 841(b)(1)(A). According to
Ousley, Graham empowers us to consider in the first
instance whether to adopt a categorical prohibition on
mandatory life sentences without parole for crack
cocaine dealers who possess an amount of crack cocaine
less than the amount of powder cocaine necessary to
trigger a mandatory life sentence for powder cocaine
8 No. 11-2760
dealers. Ousley urges us to embrace this categorical
rule based on the purported national consensus against
crack and powder cocaine sentencing disparities.
Congress has addressed any national consensus issue
in the Fair Sentencing Act. 4 And this court recently
held that Graham and Miller do not abrogate Harmelin.
United States v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012)
(“Neither opinion overrules Harmelin; both, indeed,
distinguish it explicitly. Our defendants were not
juveniles and their crimes were more serious than
the crime in Harmelin.”). Moreover, “[e]ven if we
thought Harmelin inconsistent with Graham and Miller
and likely to be overruled, the Supreme Court has . . .
told the lower courts in no uncertain terms to leave
the overruling of its precedents to it.” Id.Therefore, we conclude that Harmelin, Ewing, and
our precedent unmistakably foreclose Ousley’s Eighth
Amendment challenge to § 841(b)(1)(A). The district
court did not commit legal error—much less plain error.
4
In enacting the Fair Sentencing Act of 2010, Congress recently
addressed the disparity between crack cocaine and powder
cocaine sentences. See Dorsey v. United States, 132 S. Ct. 2321,
2328-29 (2012). Congress chose to retain—though significantly
decrease—the disparity. Id. Ousley’s possession of 579 grams
of crack cocaine far exceeds the new minimum of 280 grams,
which for now represents the consensus of the citizenry,
expressed through Congress.
No. 11-2760 9
III. Conclusion
For the foregoing reasons, Ousley’s life sentence
is A FFIRMED.
10-22-12