United States v. Hammond

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4231
WILLIAM HAMMOND,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-94-110-V)
Submitted: December 26, 1996
Decided: February 11, 1997
Before HALL, WILKINS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Earle D. Roberts, Jr., Charlotte, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Brian L. Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
William Hammond, Jr., and two others attempted to blow up an
automated teller machine. He was tried on five counts in federal dis-
trict court and found guilty on all of them. Hammond was sentenced
to 120 months imprisonment on the first four counts, to be served
concurrently, followed by a consecutive term of thirty years for vio-
lating 18 U.S.C.A. § 924(c) (West Supp. 1996). On appeal, Hammond
raises two claims, and we affirm.
Hammond argues that his conviction and punishment for both 18
U.S.C. § 844(i) (West Supp. 1996) and 18 U.S.C. § 924(c) violates
the Double Jeopardy Clause. The district court rejected the claim
below, and we review this legal conclusion de novo. United States v.
McManus, 23 F.3d 878, 882 (4th Cir. 1994), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3259 (U.S. Oct. 7, 1996) (No. 95-9231). The Dou-
ble Jeopardy Clause protects a defendant from multiple punishments
for the same offense, North Carolina v. Pearce , 395 U.S. 711, 717
(1969), ensuring that the courts confine themselves to punishments
established by the legislature. Ohio v. Johnson , 467 U.S. 493, 499
(1984). The clause bars a sentencing court from imposing a greater
sentence than the legislature intended. Missouri v. Hunter, 459 U.S.
359, 366 (1983). Where the legislature clearly intends to impose
cumulative punishments, the imposition of such penalties after a sin-
gle trial presents no double jeopardy concern. Id. at 368-69.
We conclude that our reasoning in United States v. Johnson, 32
F.3d 82, 84-85 (4th Cir.), cert. denied, ___ U.S. ___, 63 U.S.L.W.
3437 (U.S. Dec. 5, 1994) (No. 94-6737), controls the decision in this
case. Johnson presented a claim of double jeopardy for multiple pun-
ishment under 18 U.S.C.A. § 2119 (West Supp. 1996), the federal
carjacking statute, and 18 U.S.C. § 924(c). We held that "Congress's
intent was to add . . . additional years of mandatory, consecutive
imprisonment without parole to any crime of violence in which a fire-
arm is used or carried." 32 F.3d at 85. The statutory scheme defines
a firearm to include a destructive device, including an explosive
bomb. 18 U.S.C. § 921(a)(3)(D), (a)(4)(A)(i) (1994). See United
States v. Mathews, 36 F.3d 821, 823 (9th Cir. 1994) (reaching the
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same conclusion). Therefore, Hammond's double jeopardy claim is
without merit.
Hammond also argues that his sentence of 480 months violates the
Eighth Amendment ban against cruel and unusual punishment, and is
out of proportion to the facts of the crime. We must reject this conten-
tion, as well.
The Eighth Amendment does not require proportionality review for
a sentence that is less than life without parole. United States v.
LaRouche, 896 F.2d 815, 831-32 (4th Cir. 1990). Severe, mandatory
penalties may be cruel but they are not unusual. Harmelin v.
Michigan, 501 U.S. 957, 994-95 (1991). Therefore, a sentence within
statutory limits may not be disturbed on appeal unless the district
court grossly abused its discretion. LaRouche , 896 F.2d at 994-95.
And where the sentence is mandatory, as with § 924(c), the district
court has no discretion to deviate. United States v. Hamrick, 43 F.3d
877, 886 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 64 U.S.L.W. 3241(U.S. Oct. 2, 1995) (No. 94-8773).
Accordingly, we affirm Hammond's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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