United States v. Faisal Hashime

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FAISAL HASHIME,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00329-LMB-1)
Argued: September 20, 2013 Decided: October 29, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge King and Judge Wynn joined.
Judge King wrote a separate concurring opinion.
ARGUED: Jonathan Shapiro, Peter D. Greenspun, GREENSPUN SHAPIRO
PC, Fairfax, Virginia, for Appellant. Maureen Catherine Cain,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Mikhail N. Lopez, GREENSPUN SHAPIRO PC,
Fairfax, Virginia, for Appellant. Alexander T. H. Nguyen,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:
The day after his twentieth birthday, Faisal Hashime was
convicted of multiple counts related to child pornography and
later sentenced to fifteen years in prison. Hashime made
numerous self-incriminating statements while being interrogated
by law-enforcement agents during a search of his home. Because
the agents did not read Hashime his Miranda rights until well
into what was plainly an extended custodial interrogation, we
reverse Hashime’s conviction and remand for further proceedings
consistent with this decision.
I.
A.
In November 2010, while monitoring a website used to
exchange child pornography, a law-enforcement agent with
Immigration and Customs Enforcement’s Homeland Security
Investigations unit (HSI) discovered a naked picture of a minor
boy with the caption “Email me, t.campbell2011@gmail.com.” In
July 2011, the agent sent an email to the
t.campbell2011@gmail.com address, asking to trade child-
pornography images. The agent eventually received twenty-four
explicit pictures of a naked boy. By tracing the email
account’s associated IP address, HSI concluded that the account
was being used by someone in the Hashime family home.
2
Based on this information, law enforcement obtained and
executed search warrants on both the t.campbell2011@gmail.com
email account and Hashime’s house. Shortly after 9:00 AM on May
18, 2012, a team of 15-30 state and federal law-enforcement
agents equipped with a battering ram descended on Hashime’s
home. Hashime, at the time a 19-year-old community-college
student, lived with his parents in suburban northern Virginia.
The agents banged on the entrance, yelling “Open the door.”
After being let in by Hashime’s aunt, the officers streamed
into the house with their guns drawn. An officer entered
Hashime’s bedroom and pointed a gun at him. Hashime was in bed,
naked and asleep, having gone to bed at 5 AM that morning. The
officer ordered Hashime to “Get up. . . . Get out of bed,” and
instructed Hashime to show his hands. After Hashime put on
boxer shorts, the officer held Hashime by the arm, issuing
orders to him, and marched him out to the front lawn, where
officers were corralling the other members of his family.
Despite the chilly weather, the Hashime family members were kept
outside, several of them dressed only in their nightclothes.
When law enforcement eventually allowed Hashime and his
family back into their house, they were kept in the living room
while the officers completed their sweep of the home. Hashime
was not allowed to go to the bathroom until the officers had
“clear[ed] it out.” Hashime was given his clothes but was not
3
provided with shoes or socks. Hashime’s mother, who was
recovering from recent brain surgery, and about whose health
Hashime was concerned, asked to lie down for health reasons but
was not allowed to. The Hashime family members were not
permitted to be alone and were instructed that they had to be
accompanied by officers at all times. The law-enforcement
agents proceeded to interrogate each of them individually.
Hashime was escorted by two officers to the basement for
interrogation. The basement was finished, but the officers
chose to interrogate Hashime in a room that was being used as a
storage area. Hashime’s family was not allowed to see Hashime
until the three-hour interrogation was over. Hashime’s mother
asked the officers three times for an attorney for Hashime, but
was told that he was being questioned and that she could not see
him or otherwise interrupt the interrogation. According to
Hashime’s mother, the officers told her that Hashime was under
arrest.
The officers secretly recorded the interrogation. When
Hashime asked them if they were recording it, the lead
interrogator, who was not carrying the recording device, told
Hashime, “I can tell you I don’t have a recorder on . . . .”
During the interrogation, Hashime admitted to having child
pornography on his computer and told the officers in great
detail about how he had obtained the photographs. Hashime also
4
gave the officers the password to his computer and told them
where the child-pornography images were located on his hard
drive.
At the beginning of the interview, the officers told
Hashime that he did not have to answer their questions and could
leave at any time. However, at one point in the interrogation,
one of the officers told Hashime, “I need to know, and I need
you to be completely honest with me here even if you’re afraid,
I don’t care if you say I don’t want to answer that or I’m
afraid to answer it, but I need to know the truth.” JA 585. In
addition, when one of the interrogators left Hashime to go
upstairs, he told Hashime, “[L]ike I said at the beginning, the
search warrant we got to kind of keep an eye on you . . . . I
can’t leave you here with nobody here.” JA 617-18.
The officers did not read Hashime his Miranda rights until
over two hours into the interrogation.
B.
Hashime was arrested three days after the interrogation.
In July 2012 he was indicted on seven counts of production,
distribution, receipt, and possession of child pornography in
violation of 18 U.S.C. §§ 2251 and 2252.
Prior to trial, Hashime moved to suppress the statements he
made to the law-enforcement agents during the interrogation on
the grounds that he was in custody at the time and did not
5
receive the required Miranda warning at the beginning of the
interrogation. The district court rejected this motion,
emphasizing Hashime’s demeanor and tone during his
interrogation, his general familiarity with law-enforcement
practices, and his apparent lack of concern with any imminent
arrest. The court relied in particular on the recording of the
interrogation, stating that “were it not for the tape, I think
you’d [Hashime] win your case.” JA 125-26. The court noted
that “the voice of the defendant . . . expressed no kind of
hesitation, no nervousness” and that the evidence of Hashime’s
“forthcoming-ness” was “powerful.” JA 126. The court concluded
that Hashime “was free to leave and . . . believed himself to be
free to leave.” JA 129.
Hashime pled guilty to the receipt and possession charges,
the former of which carried a mandatory minimum of five years in
prison and a maximum sentence of twenty years. The government
nevertheless chose to also prosecute Hashime on the production
and distribution charges.
At the bench trial, multiple minors testified about their
contacts with Hashime. Together with Hashime’s statements
during the interrogation, this evidence established Hashime’s
pattern of behavior: he would pose as an attractive teenage girl
named Tracy and make contact with boys on websites used for
anonymous chatting or through direct email communication.
6
Hashime would offer –- in many cases successfully -- to trade
nude pictures of Tracy for nude pictures of the boys. On
occasion, he redistributed the pictures he obtained. The court
found Hashime guilty of the production and distribution counts.
Prior to sentencing, Hashime moved to strike the mandatory-
minimum sentences applicable to him on the ground that they
violated the Eighth Amendment. The district court denied the
motion, finding proportionality review unavailable for a
sentence less than life imprisonment without the possibility of
parole.
At sentencing, the district court rejected the government’s
request for a thirty-year sentence as “way more than would be
appropriate.” JA 451. The district court emphasized Hashime’s
youth and immaturity, and instead sentenced him to a fifteen-
year sentence -- the mandatory-minimum fifteen-year sentences
for the production charges, and a combination of mandatory and
non-mandatory five-year sentences on the other charges, all to
run concurrently -- followed by twenty years of supervised
release.
II.
Hashime first argues that his conviction should be reversed
because law-enforcement agents failed to read him his Miranda
rights at the beginning of the interrogation. “We review the
7
factual findings underlying a motion to suppress for clear error
and the district court's legal determinations de novo. When a
suppression motion has been denied, this Court reviews the
evidence in the light most favorable to the government.” United
States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012) (citations
omitted).
A.
The Fifth Amendment provides that “No person . . . shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. As a prophylactic safeguard for this
constitutional guarantee, the Supreme Court has required law
enforcement to inform individuals who are in custody of their
Fifth Amendment rights prior to interrogation. See Miranda v.
Arizona, 384 U.S. 436, 444 (1966); United States v. Parker, 262
F.3d 415, 419 (4th Cir. 2001). Without a Miranda warning,
evidence obtained from the interrogation is generally
inadmissible. See id.; see also United States v. Hargrove, 625
F.3d 170, 177 (4th Cir. 2010).
When deciding whether a defendant not under formal arrest
was in custody -- and thus if the Miranda requirements apply --
a court asks whether, “under the totality of the circumstances,
‘a suspect’s freedom of action [was] curtailed to a degree
associated with formal arrest.’” Parker, 262 F.3d at 419(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). This
8
inquiry is an objective one, and asks whether “‘a reasonable man
in the suspect’s position would have understood his situation’
to be one of custody.” United States v. Colonna, 511 F.3d 431,
435 (4th Cir. 2007) (quoting Berkemer, 468 U.S. at 422). In
other words, the court considers whether “a reasonable person
[would] have felt he or she was not at liberty to terminate the
interrogation and leave.” United States v. Jamison, 509 F.3d
623, 628 (4th Cir. 2007) (alteration in original) (quoting
Thompson v. Keohane, 516 U.S. 99, 112 (1995)) (internal
quotation marks omitted).
Facts relevant to the custodial inquiry include, but are
not limited to, “the time, place and purpose of the encounter,
the words used by the officer, the officer's tone of voice and
general demeanor, the presence of multiple officers, the
potential display of a weapon by an officer, and whether there
was any physical contact between the officer and the defendant.”
United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010) (quoting
United States v. Weaver, 282 F.3d 302, 312 (4th Cir. 2002))
(internal quotation marks omitted). Also pertinent are the
suspect’s isolation and separation from family, see United
States v. Griffin, 7 F.3d 1512, 1519 (10th Cir. 1993), and
physical restrictions, United States v. Griffin, 922 F.2d 1343,
1347 (8th Cir. 1990).
9
B.
The district court ruled, and the government argues, that a
Miranda warning was not required because Hashime was not in
custody. There is no question that the officers interrogated
Hashime and the custody question is the only one remaining. 1 The
government’s case rests on two grounds: law enforcement’s
conduct toward and statements to Hashime prior to and during the
interrogation, and Hashime’s tone and demeanor during the
interrogation. We address each in turn.
The government argues that the law-enforcement agents’
behavior establishes that the interrogation was non-custodial.
The government notes that, when the Hashime family was gathered
in the living room, an agent said that no one was under arrest.
Furthermore, at the beginning of the interview, one of the
interrogators told Hashime that “most importantly we want you to
know that you don’t have to talk to us;” that Hashime could
“answer some questions or not answer questions;” and that he
could “leave any time.” JA 473. The interrogators also
informed Hashime, both before and after reading him his Miranda
rights, that they were not there to arrest anyone but rather to
execute a search warrant, and that the ultimate decision about
1
Hashime does not raise any Fourth Amendment challenges to
the execution of the search warrant, and none are at issue here.
10
arrest would be made by the prosecutor. The government also
emphasizes that the interrogators offered Hashime multiple
breaks for the bathroom and coffee, all of which Hashime
declined. The government notes that Hashime was not handcuffed
during the interrogation, that the door to the room in which he
was interrogated was open, and that Hashime was sitting in the
chair closest to the door.
The government’s argument is fine as far as it goes, but it
wholly ignores the larger setting. First, other statements made
by law enforcement undercut the government’s claim that Hashime
was consistently told that he could leave at any time and did
not need to answer any questions. During the interrogation, one
of the officers told Hashime that, with respect to his prior
sexual history with minors, “I need to know, and I need you to
be completely honest with me here even if you’re afraid, I don’t
care if you say I don’t want to answer that or I’m afraid to
answer it, but I need to know the truth.” Likewise, when the
interrogator left to go upstairs, he told Hashime, “[L]ike I
said at the beginning, the search warrant we got to kind of keep
an eye on you . . . . I can’t leave you here with nobody here.”
Second, even to the extent that law enforcement told
Hashime that he did not have to answer questions and was free to
leave, that by itself does not make the interrogation non-
custodial. Although a statement that the individual being
11
interrogated is free to leave may be “highly probative of
whether, in the totality of the circumstances, a reasonable
person would have reason to believe he was ‘in custody,’” such a
statement “is not ‘talismanic’ or sufficient in and of itself to
show a lack of custody.” United States v. Hargrove, 625 F.3d
170, 180 (4th Cir. 2010). The broader setting makes clear why a
few isolated statements by law enforcement in the course of a
three-hour interrogation cannot erase its custodial nature.
Before the interrogation, Hashime had awoken at gunpoint to a
harrowing scene: his house was occupied by a flood of armed
officers who proceeded to evict him and his family and restrict
their movements once let back inside. Throughout the
interrogation, Hashime was isolated from his family members,
with his mother’s repeated requests to see him denied. It is
little wonder that Hashime testified that, during the
interrogation, “I didn’t think I had any chance to leave. . . .
I felt that I was . . . trapped and . . . had to stay where I
was and do what I was told.” JA 64.
We also cannot accept the argument that the home setting
here rendered the interrogation non-custodial. While courts are
generally less likely to characterize as custodial
interrogations in familiar settings like the home, see 2 Wayne
R. LaFave et al., Criminal Procedure § 6.6(e), at 738-40 (3d ed.
2007), the particular facts of Hashime’s interrogation cut in
12
the other direction. A suspect “may not feel that he can
successfully terminate the interrogation if he knows that he
cannot empty his home of his interrogators until they have
completed their search.” United States v. Craighead, 539 F.3d
1073, 1083 (9th Cir. 2008). As Hashime testified during the
suppression hearing, prior to being interrogated he did not feel
that he could freely move through the house because the officers
“had people everywhere and telling us what to do, telling me
what to do, and telling me where not to go and where to go.” JA
64.
This case is similar to United States v. Colonna, 511 F.3d
431 (4th Cir. 2007), where we found that an interrogation
arising out of a search of the home was custodial for Miranda
purposes. In Colonna, twenty-four FBI agents executed a search
warrant on the defendant’s home, looking for child pornography.
Id. at 433. Our analysis in that case focused on many of the
same factors that guide our inquiry here: the large number of
armed law-enforcement agents, the suspect’s isolation during his
interrogation, and the suspect and his family’s loss of control
over their home. See id. at 436. Several of our sister
circuits have found interrogations to be custodial in similar
circumstances. See United States v. Cavazos, 668 F.3d 190, 194
(5th Cir. 2012); Craighead, 539 F.3d at 1089; United States v.
Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir. 2007).
13
The government, following the district court, also argues
that Hashime’s tone and demeanor during the interrogation
demonstrate that it was not custodial. It is true that Hashime
was cooperative with his interrogators. He admitted he
possessed child pornography, explained how he had received it,
provided passwords to his computer, and described where the
files were located on his hard drive. Hashime told the agents
that “I want to help you,” and that “I love helping cops. I’ve
always loved cops. I always wanted to be a cop.” JA 540. It
is also the case that the tone of the interrogation was calm and
in some instances almost chatty, with Hashime asking the agents
whether the investigation would affect his upcoming vacation
plans and joking with them about the health hazards of smoking
cigarettes.
Whatever the nature of Hashime’s tone and demeanor, it is
not dispositive here of the custodial inquiry. As the Supreme
Court has emphasized, the test for whether an interrogation was
custodial is an objective one: “[T]he subjective views harbored
by either the interrogating officers or the person being
questioned are irrelevant. The test, in other words, involves
no consideration of the actual mindset of the particular suspect
subjected to police questioning.” J.D.B. v. North Carolina, 131
S. Ct. 2394, 2402 (2011) (internal quotation marks and citations
omitted); see also United States v. Parker, 262 F.3d 415, 419
14
(4th Cir. 2001) (“Custody determinations do not depend on the
subjective views of either the interrogating law enforcement
officers or of the person being questioned, but depend instead
[on] the objective circumstances of the interrogation.”).
The district court gave primary emphasis to the mannerisms
of the defendant, remarking that Hashime’s voice expressed “no
kind of hesitation, no nervousness,” and that his attitude was a
cooperative one. But Hashime’s attitude -– his apparent
“forthcoming-ness” as the district court put it -- is more of a
subjective factor and goes primarily to the voluntariness of
Hashime’s confession. The voluntariness inquiry and the Miranda
custody inquiry are, however, not one and the same. See
Yarborough v. Alvarado, 541 U.S. 652, 667-78 (2004).
In contrast to Hashime’s manner, the conduct of government
agents is an objective factor informing the inquiry of whether a
reasonable person would have felt free to leave. Thus the
government properly noted such factors as the agents’ tone of
voice, statements that Hashime was not under arrest, and offer
of multiple breaks to the defendant. While these objective
factors the government offers do cut against custody, they are
decidedly outweighed by other, undisputed objective
considerations -– among which is the sheer length of what the
government would prefer to characterize as an “interview,” but
which was plainly an hours-long interrogation. As Hashime
15
notes, his “house was swarming with federal and state agents, he
was rousted from bed at gunpoint, held with family members and
not allowed to move unless guarded, and ultimately separated
from his family and placed in a small storage room with two
agents where he was questioned” by investigators, Appellant’s
Br. at 15, who stated that he must remain under guard and that
they needed “to know the truth.”
We thus hold that Hashime was in custody for the purposes
of Miranda. Consequently, law enforcement’s failure to read him
his Miranda rights makes his testimony inadmissible and requires
that his conviction be reversed. 2
III.
Hashime also raises an Eighth Amendment proportionality
challenge to his mandatory fifteen-year sentence. (Hashime’s
guilty plea on the receipt charge carried its own five-year
mandatory minimum.) The defense emphasizes Hashime’s youth and
immaturity. It contends that the offense conduct triggering the
mandatory fifteen-year minimum for production did not remotely
resemble “the typical production of child pornography. Rather
2
The government argues that, even if the district court
erred in not suppressing Hashime’s statements, the error was
harmless. Given the seriousness and extent of Hashime’s
incriminating statements during the interrogation and the
important role they played at trial, we disagree.
16
it was the result of the unfortunately common use of the
internet by sexually curious young people.” Appellant’s Br. at
40. His case, he argues, was “rare”: “For the year 2010, the
average age of those convicted of production was 42.” Id.(citing U.S. Sentencing Comm’n, Report to Congress: Federal
Child Pornography Offenses 257 n.42 (2013)).
The government argues that Eighth Amendment proportionality
review is not available for mandatory-minimum sentences of less
than life without parole, and that any such review would neither
be required by Supreme Court precedent nor compatible with our
own. See, e.g., Ewing v. California, 538 U.S. 11, 30-31 (2003);
United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009). The
government also contends that, even if proportionality review
were available for Hashime’s sentence, the mandatory minimums
for his child-pornography convictions would pass constitutional
muster. The government notes that even after Hashime turned
eighteen, he had sexual contact with two minor boys. And
irrespective of what might constitute relevant conduct under the
Sentencing Guidelines, the offense conduct itself included
“impersonating a young girl named ‘Tracy’” in order to solicit
nude photographs from minors. Appellee’s Br. at 9.
The district court felt considerable unease with the
mandatory minimums sought by the government in this case. At
sentencing, the court chafed at the prosecutors’ use of their
17
charging authority to “get into sentencing decisions,” and their
lack of respect for the sentencing discretion traditionally
accorded district courts. JA 447. It stated that the
mandatory-minimum sentences the charges required it to impose
were not “fair or just,” arguing further that “[t]his is the
kind of case where the guidelines and mandatory minimums simply
do not reflect the realities of the specific case and the
specific defendant.” JA 457.
Our reversal of the conviction makes it unnecessary to
address any sentencing questions. It suffices to note that, in
line with our own review of the custody issue and the district
court’s comments at sentencing, this was a case in which both
police and prosecution applied a heavy foot to the accelerator.
We do not doubt for an instant that the defendant’s conduct here
was reprehensible and worthy of both investigation and
punishment, as the guilty plea attests. But attention to
balance and degree often distinguishes the wise exercise of
prosecutorial discretion from its opposite. For now we leave to
the reflection of the appropriate authorities whether it was
necessary to throw the full force of the law against this 19-
year-old in a manner that would very likely render his life
beyond repair.
18
IV.
For the foregoing reasons, we reverse Hashime’s conviction
on the production and distribution counts. The case is remanded
for further proceedings consistent with this decision.
REVERSED AND REMANDED
19
KING, Circuit Judge, concurring:
I concur fully in Judge Wilkinson’s excellent opinion for
the panel. I write separately, however, to draw attention to a
misperception of the law of this Court with respect to whether a
sentence short of life imprisonment may be reviewed to ensure
that it is constitutionally proportionate to the offense of
conviction, and not cruel and unusual in contravention of the
Eighth Amendment. Every other court of appeals permits just
that sort of proportionality review under the appropriate
circumstances. So does ours, as I shall demonstrate, though the
conventional wisdom may say otherwise.
After Hashime submitted his principal brief, in which he
argued that his fifteen-year sentence was unconstitutionally
disproportionate, he moved for initial hearing en banc. See
Fed. R. App. P. 35(a). As justification for so doing, Hashime
asserted that we had “held previously, as opposed to every other
Circuit, that a sentence of a term of years (as opposed to a
sentence of life), is not subject to the proportionality
principle under the Eighth Amendment.” Appellant’s Motion for
Hearing En Banc at 1. We denied initial hearing en banc
because, as Judge Gregory (joined by Judge Davis) presaged, “if
Hashime’s appeal is resolved on the [threshold] Miranda issue,
his Eighth Amendment argument will be moot.” United States v.
20
Hashime, 722 F.3d 572, 572 (4th Cir. 2013) (Gregory, J.,
concurring in denial of hearing en banc).
And now that scenario has come to pass. See ante at 18
(“Our reversal of the conviction makes it unnecessary to address
any sentencing questions.”). Still, it bears revisiting Judge
Gregory’s observation that our Eighth Amendment precedent as it
applies to defendants sentenced to a term of years “seemingly
materialized from thin air,” and has “inexplicably morphed” over
the years. Hashime, 722 F.3d at 573. Our most recent published
iteration of the rule occurred in United States v. Malloy, 568
F.3d 166 (4th Cir. 2009), where we recited that because the
defendant in that case had “received less than life without
parole, proportionality review is not available under our
precedent.” Id. at 180 (citing United States v. Ming Hong, 242
F.3d 528, 532 (4th Cir. 2001)). Malloy accurately characterized
Ming Hong, in which we unabashedly asserted that “[t]his court
has held that proportionality review is not available for any
sentence less than life imprisonment without the possibility of
parole.” 242 F.3d at 532 (emphasis added) (citing United States
v. Polk, 905 F.2d 54, 55 (4th Cir. 1990)).
Unfortunately, our opinion in Ming Hong misstated the
precise language of Polk, in which we merely observed that the
Supreme Court’s decision in Solem v. Helm, 436 U.S. 277 (1983),
“does not require a proportionality review of any sentence less
21
than life imprisonment without possibility of parole.” 905 F.2d
at 55 (emphasis added) (citation omitted). Obviously, to
withhold a potential avenue of review entirely by simply
declaring that it is “not available” is hardly the same thing as
exercising the discretion to only infrequently engage in such
review under certain circumstances. Even before Ming Hong, we
neglected to capture the essence of what Solem and Polk actually
instructed, as we confidently maintained that “[i]t is well-
settled that proportionality review is not appropriate for any
sentence less than life imprisonment without the possibility of
parole.” United States v. Lockhart, 58 F.3d 86, 89 (4th Cir.
1995) (emphasis added) (citing Polk). The irrefutable
implication of Solem and Polk, however, is to the contrary, that
is, proportionality review of a term-of-years sentence — though
not required in every case, or even, perhaps, in most cases —
is, contrary to Lockhart and Ming Hong, appropriate and
available in some cases.
Although our recent line of authority addressing the issue
has, understandably, visited ambiguity and confusion upon the
bench and bar, the way going forward is clear. Where, as here,
“there is an irreconcilable conflict between opinions issued by
three-judge panels of this court, the first case to decide the
issue is the one that must be followed, unless and until it is
overruled by this court sitting en banc or by the Supreme
22
Court.” McMellon v. United States, 387 F.3d 329, 334 (4th Cir.
2004) (en banc). The 1990 decision in Polk, authored by our
distinguished predecessor Judge Russell, thus states the law of
our circuit: where a sentence of less than life imprisonment
has been imposed upon a defendant, proportionality review under
the Eighth Amendment is discretionary.
23