United States v. Halston Smith

Case: 14-30816 Document: 00513028055 Page: 1 Date Filed: 05/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30816 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, May 1, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
HALSTON M. SMITH; MYLES W. ROBINSON,
Defendants - Appellants
Appeals from the United States District Court
for the Western District of Louisiana
USDC 5:13-CR-69-2
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
After a joint jury trial in the United States District Court for the Western
District of Louisiana, defendants Myles W. Robinson and Halston M. Smith
were convicted of multiple federal crimes in connection with a string of armed
robberies in Louisiana and Texas.
We AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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FACTUAL AND PROCEDURAL BACKGROUND
Between June and November 2012, defendants Robinson and Smith
participated in numerous armed robberies and attempted armed robberies of
convenience stores, restaurants, and bars, mostly in the Shreveport area. The
crimes were violent. In addition to the entities robbed, the victims were
usually the employees of the establishments. They were held at gunpoint while
they opened cash registers and safes. More than one was threatened with
being killed. One young woman was told she was going to be shot “if you don't
open the register” while the robber held a gun to her head and counted down
from five. In one of the robberies, a father, mother, and their two children were
ordered to “get on the ground” while a shotgun was pointed at them.
As part of the investigation into the robberies, a search warrant was
obtained by the Shreveport Police Department. The warrant authorized the
installation of a global positioning system (“GPS”) device on Smith’s Dodge
pickup truck, which was suspected to be involved in the robberies. The
defendants were apprehended on November 14, 2012, immediately following
the robbery of an Outback Steakhouse. The GPS was instrumental in the
apprehension. In the early morning of November 15, while both were under
arrest, Robinson and Smith spoke to law enforcement officials. The interviews
were recorded. Robinson confessed to participating and wielding a firearm in
fifteen robberies; Smith confessed to participating in seven. Both defendants
were given their Miranda rights prior to speaking with the officials.
In February 2013, Robinson and Smith were named in a 27-count
indictment charging conspiracy, robbery, and weapons offenses. 1 Prior to trial,
1 Robinson was charged with one count of Conspiracy to Interfere with Commerce by
Robbery, ten counts of Interference with Commerce by Robbery , three counts of Interference
with Commerce by Robbery-Attempt , and thirteen counts of Use of a Firearm During a Crime
of Violence, in violation of 18 U.S.C. §§ 1951, 924(c)(1) and 2. Smith was charged under the
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Smith filed motions to suppress all evidence obtained as a result of the GPS
device being placed on the truck, to suppress his statements made to the law
enforcement officials, and to sever his trial from that of his codefendant. The
district court denied all three motions. 2
Robinson and Smith proceeded to trial in January 2014. At the close of
the government’s case the defendants moved for acquittal, which the district
court denied. Neither defendant put on a case. Robinson was found guilty on
all counts, and Smith was found guilty on all counts but two. 3 Robinson was
sentenced to 3,771 months, which consisted of 87-month concurrent sentences
for the conspiracy and robbery convictions, seven years for the first firearm
charge, and 25 years for each of the subsequent firearm charges, to run
consecutively. Smith was sentenced to 1,659 months. He received 75-month
concurrent sentences for the conspiracy and robbery convictions, seven years
for the first firearm charge, and 25 years for each of the subsequent firearm
charges, to run consecutively. Robinson and Smith timely appealed.
DISCUSSION
Smith appeals the district court’s denial of his motions to suppress and
motion to sever. He also argues there was insufficient evidence to sustain his
convictions for aiding and abetting the use of a firearm in violation of 18 U.S.C.
§ 924(c)(1) and § (2). Smith and Robinson both argue their sentences violate
the Eighth Amendment’s prohibition on cruel and unusual punishment, and
that the Supreme Court’s decision in Deal v. United States, 508 U.S. 129 (1993),
allowing the “stacking” of section 924(c) violations, was wrongly decided.
same statutes with one count of conspiracy, seven counts of robbery and attempted robbery,
and seven counts of use of a firearm.
2 The district court docket reflects that Smith requested the motions to suppress be
decided without a hearing. Case No. 5:13-CR-69-2; ECF No. 112.
3 Smith was found not guilty on one count of aiding and abetting interference with
commerce by robbery, and one count of aiding and abetting the use of a firearm.
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I. Smith’s motion to suppress the evidence obtained from the GPS
When reviewing the district court’s denial of a motion to suppress
evidence, we review factual findings for clear error and legal conclusions de
novo. United States v. Allen, 625 F.3d 830, 834 (5th Cir. 2010). The evidence
is viewed in the light most favorable to the party who prevailed. Id.
The district court denied Smith’s motion to suppress, adopting the
magistrate judge’s finding that there was sufficient information in the affidavit
to support probable cause for the search warrant to issue.
The government conducts a search for Fourth Amendment purposes
when it attaches a GPS device to a vehicle and uses it to monitor movement.
United States v. Jones, 132 S. Ct. 945, 949 (2012). In reviewing the denial of a
motion to suppress evidence discovered pursuant to a warrant, we first decide
“whether the good-faith exception to the exclusionary rule applies.” United
States v. Sibley, 448 F.3d 754, 757 (5th Cir. 2006) (citation omitted). That
“exception provides that where probable cause for a search warrant is founded
on incorrect information, but the officer’s reliance upon the information’s truth
was objectively reasonable, the evidence obtained from the search will not be
excluded.” Id. (citation and quotation marks omitted). The exception does not
apply when: (1) the issuing judge was “misled by information in an affidavit
that the affiant knew or should have known was false”; (2) the issuing judge
“abandoned the judicial role”; (3) the warrant affidavit was “so lacking in
indicia of probable cause as to render belief in its existence entirely
unreasonable”; or (4) “the warrant was so facially deficient that the executing
officers could not have reasonably presumed it to be valid.” Id. (citation
omitted). If the good-faith exception applies, the district court’s denial of the
motion to suppress is affirmed without further analysis. See id. If the good-
faith exception does not apply, we proceed to the second step and determine
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whether the issuing judge had a “substantial basis for concluding that probable
cause existed.” Id. at 757-58 (citation omitted).
Smith’s arguments on appeal involve the third and fourth parts of the
good-faith exception. He argues the district court erred in denying his motion
to suppress because the warrant affidavit fell far short of demonstrating
probable cause. He further argues that the search warrant itself was
“constitutionally defective.”
A. The affidavit’s indicia of probable cause and the officials’ reasonable
belief in the existence of probable cause
Smith asserts the affidavit was “bare bones” because it failed to state the
underlying circumstances on which Detective Lane Smith concluded the
informants were credible, and failed to give a meaningful description of the
underlying circumstances on which the informants based their conclusion that
Smith was engaged in criminal activity.
“When a warrant is supported by more than a ‘bare bones’ affidavit,
officers may rely in good faith on the warrant’s validity.” United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). “‘Bare bones’ affidavits contain
wholly conclusory statements, which lack the facts and circumstances from
which a magistrate can independently determine probable cause.” Id.
The magistrate judge held that the affidavit contained sufficient indicia
of probable cause for a warrant to issue. Detective Smith provided detailed
facts based on his observations and the observations of other law enforcement
officers, and information obtained from confidential informants who had been
interviewed in the previous 24 hours. The affidavit detailed that (1) one
informant had firsthand knowledge that Smith, who is a white male, and
another person, were involved in the robbery of the Breaktime Bar, and that a
pistol grip shotgun was used; (2) victims of the Breaktime Bar robbery
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reported it was committed by two robbers, both believed to be white males, one
of whom was armed with a pistol grip shotgun; (3) two of the informants
implicated Smith in a recent robbery of a Waffle House; (4) a Waffle House was
robbed by two masked suspects, one of whom was described as a white male,
and one of whom was armed with a pistol grip shotgun; (5) Detective Smith
was assigned to investigate an attempted armed robbery of a Budget Inn and
observed video surveillance of two masked suspects, one of whom appeared to
be a white male armed with a pistol-grip shotgun; (6) Detective Smith observed
that this robbery was similar to the armed robberies believed to have been
committed by Smith; (7) Detective Smith spoke with Officer Chapel who, just
prior to the time of the Budget Inn robbery attempt, observed a blue Dodge
pickup truck near the Budget Inn; (8) Officer Chapel documented that the
Dodge pickup truck was registered to Smith’s mother; (9) the informants
verified that the Dodge pickup truck observed by Officer Chapel was driven by
Smith on a daily basis; and (10) the informants verified that Smith lived at the
address listed on the Dodge pickup truck’s registration.
These are far from being “wholly conclusory statements,” and they detail
the circumstances from which the magistrate could determine probable cause.
Smith also argues the informants were not credible. “One means of
establishing the reliability of information provided by a confidential informant
is corroboration . . . .” United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994)
(citing Illinois v. Gates, 462 U.S. 213, 244 (1983)). Here, the information
provided by the informants was corroborated by each other, the victims of the
robberies, and Officer Chapel.
Because the affidavit was not “so lacking in indicia of probable cause as
to render belief in its existence entirely unreasonable,” the good-faith exception
applies.
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B. The facial deficiency of the warrant and the reasonableness of the
officials’ presumption of its validity
The entirety of Smith’s argument on this point is that the state judge
signed a “pre-prepared Order” containing “boiler-plate language,” and that this
“rubber-stamp method of obtaining warrants is in direct violation of the Fourth
Amendment and should not be allowed.”
A warrant must “particularly describ[e] the place to be searched, and the
persons or things to be seized.” U.S. CONST. amend. IV. The particularity is
sufficient when it “leave[s] nothing . . . to the discretion of the officer executing
the warrant.” Allen, 625 F.3d at 835 (citation and quotation marks omitted).
The warrant specified that an electronic tracking device was to be placed
on the 2002 Dodge pickup truck being used by Smith; the installation was to
take place while the vehicle was in a public place; the device could be monitored
by live or historical tracking; continuous monitoring was permitted until the
tracking device lead to the location where the offenses were being committed
by Smith; and monitoring was to terminate upon the conclusion of the
investigation or, in any event, 30 days from the date of the warrant, unless
reapplication was made. The warrant particularly described the place to be
searched and left nothing to the discretion of the executing officer. Officers
could reasonably presume it was valid.
Smith asserts for the first time in his reply brief that the affidavit
contained “significant defects and/or omissions.” We do not agree, but
regardless, arguments raised for the first time in a reply brief are waived. See
Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 927 (5th Cir. 2008). 4
4 Smith also asserts for the first time on appeal that “[i]t appears that . . . Detective
Smith presented a six person lineup to the two Waffle House employees, neither of whom
could identify Halston Smith” and that “[t]his exculpatory information was . . . willfully
omitted to buttress the Affidavit.” Smith does not support this contention with any citation
to the record; therefore, we decline to consider it. See Fed. R. App. P. 28(a)(8)(A); see also
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Even if the affidavit contained defects, a “misstatement can vitiate an
affidavit only where the misrepresentations are the product of deliberate
falsehood or of reckless disregard for the truth.” Moreno v. Dretke, 450 F.3d
158, 169 (5th Cir. 2006) (citation and quotation marks omitted). Smith makes
no showing that Detective Smith deliberately lied or recklessly disregarded the
truth. Thus, this argument fails.
The good-faith exception to the warrant requirement applies. The
district court’s denial of the motion to suppress evidence obtained from the
GPS device was proper.
II. Smith’s motion to suppress his statements
Smith argues the evidence obtained pursuant to his interviews with law
enforcement officials should be suppressed as his statements were not
voluntary. In reviewing the admission of a confession over a claim it was
involuntary, we generally will “give credence to the credibility choices and fact
finding by the district court unless they are clearly erroneous; the ultimate
issue of voluntariness, however, is a legal question reviewed de novo.” United
States v. Reynolds, 367 F.3d 294, 298 (5th Cir. 2004) (citation omitted). The
government must prove voluntariness by a preponderance of the evidence. Id.
at 297-98. “The voluntariness of a confession depends on whether, under the
totality of the circumstances, the statement is the product of the accused’s free
and rational choice.” Id. at 298 (citation and quotation marks omitted).
Smith argues that his confession was coerced because authorities told
him that he needed to cooperate to “avoid a life sentence at Angola.” He further
asserts his statements were not voluntary because the questioning began at
United States v. Guerrero, 169 F.3d 933, 943 n.2 (5th Cir. 1999) (“[I]t is the duty of the party
raising an issue on appeal to include the relevant items in the record on appeal.”) (citations
omitted).
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3:00 a.m. and lasted most of the day, and, “at the time of his arrest and
interrogations, [he] was highly intoxicated and under the influence of
prescription medication.” The Government responds that even if Smith had
used drugs or alcohol earlier in the evening, he affirmed during his interviews
that his head was clear and that he understood what was going on. The
recording of the interview with the Shreveport Police Department indicates
Smith listened to the questions and responded appropriately. Finally, a police
detective testified at trial that Smith did not appear to be under the influence
of drugs or alcohol.
The district court denied Smith’s motion to suppress, noting that Smith
was “advised of [his] Miranda rights” and “repeatedly stated (orally and in
writing) that [he] understood those rights.” The district court found no
evidence of coercion or deception by police. The court, after listening to the
recorded interviews, found that Smith did not sound “highly intoxicated.”
In one case, a defendant argued his statements to police should be
suppressed based on his use of methamphetamine shortly before his arrest and
because of a lack of sleep. Reynolds, 367 F.3d at 297. We held the confession
was admissible because the defendant had been given his Miranda warnings,
was willing to talk to police, “listened to questions, and responded
appropriately,” and was able to detail the crimes. Id. at 299. Those who
interviewed him also testified that, based on their experiences, he was not
impaired by drugs or alcohol. Id.
The same is true here. Smith does not dispute that he was advised of his
Miranda rights, and the trial testimony and transcripts of the interviews
reveal that he understood his rights, was cooperative, listened to questions and
responded, and gave detailed accounts of the robberies. In addition, one of the
interviewing officers testified at trial that Smith did not appear to be under
the influence of drugs or alcohol. Also, importantly, the district court found
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that Smith was not “highly intoxicated” – a factual finding we give credence to
unless “clearly erroneous.” Id. at 298.
As to coercion, Smith states that authorities told him that in order to
avoid a life sentence at Angola, he needed to cooperate. A statement by officers
that a defendant will be “sent to prison for the rest of [his] li[fe]” is “insufficient,
standing alone, to establish that [the defendant’s] subsequent cooperation was
involuntary.” United States v. Rico, 51 F.3d 495, 507 (5th Cir. 1995).
We conclude that, under the totality of the circumstances, Smith’s
confession was voluntary as it was the product of his free and rational choice.
The district court’s denial of the motion to suppress is affirmed.
III. Smith’s motion to sever his trial
The denial of a motion to sever is reviewed for abuse of discretion. United
States v. Thomas, 627 F.3d 146, 156 (5th Cir. 2010). To demonstrate the
district court abused its discretion, “the defendant bears the burden of showing
specific and compelling prejudice that resulted in an unfair trial . . . .” Id. at
157 (citation and quotation marks omitted). Reversal is warranted only if the
defendant “identifies specific events during trial and demonstrates that these
events caused him substantial prejudice.” Id. (citation omitted).
Smith argues the district court’s denial of his motion to sever was “legal
error” because he was unfairly prejudiced by the joint trial. The district court
denied the severance motion, noting that Smith made a “generalized,
unsupported assertion that if forced to trial with Robinson, he w[ould] be
unfairly prejudiced” and that Smith alluded to confrontation clause problems
but failed to “explicitly articulate[]” the issues.
On appeal, Smith asserts that “[b]ecause the two defendants were
charged with separate offenses, they should have been tried separately . . . [as]
we do not know if the jury punished Smith for the actions of Robinson.” A risk
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of a “spillover effect,” however, does not, by itself, warrant severance. United
States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012) (citation and quotation marks
omitted). Smith references “problems associated with the confrontation
clause,” but does not state what those problems might be.
Because Smith has failed to identify any “specific events during trial”
that caused him “substantial prejudice,” he has not established that the district
court abused its discretion in denying his motion to sever. See Thomas, 627
F.3d at 157. The district court’s denial of the motion to sever was not error.
IV. Sufficiency of the evidence on Smith’s section 924(c) convictions
Smith was convicted of six counts of aiding and abetting the use of a
firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) and
§ 2. He argues on appeal there was insufficient evidence to support the
convictions because he took no affirmative action related to the firearms.
“To determine whether there was sufficient evidence to sustain a
conviction, we ask whether a rational trier of fact could find proof of the
essential elements of the crime beyond a reasonable doubt when viewing the
evidence and drawing all inferences in favor of the verdict.” Owens, 683 F.3d
at 101. (citation omitted).
Two months after the defendants’ trial, but several months before the
briefing in this case, the Supreme Court decided Rosemond v. United States,
134 S. Ct. 1240 (2014). The Court held that for a defendant to be found guilty
of aiding and abetting the use of a firearm under section 924(c), the
Government must prove the defendant “actively participated in the underlying
. . . violent crime with advance knowledge that a confederate would use or carry
a gun during the crime’s commission.” Id. at 1243. “Advance knowledge,” the
Court held, means “knowledge at a time the accomplice can do something with
it – most notably, opt to walk away.” Id. at 1249-50. When “a defendant
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continues to participate in a crime after a gun was displayed or used by a
confederate, the jury can permissibly infer from his failure to object or
withdraw that he had such knowledge.” Id. at 1250 n.9. Applying this
reasoning, Smith’s section 924(c) convictions must be supported by evidence,
direct or circumstantial, that Smith (1) actively participated in the robberies
and (2) had advance knowledge that one of his confederates would use or carry
a firearm during the commission of the robberies.
Smith does not argue on appeal that the evidence was insufficient to
show his active participation in the robberies; neither does he argue the
evidence was insufficient to show he had advance knowledge that a gun would
be used. 5 Instead, he argues that reversal of the section 924(c) convictions is
warranted because there was insufficient evidence at trial that he “took some
action to facilitate or encourage the use or carrying of a firearm.” Smith’s
argument reflects the law in this circuit prior to Rosemond. Because “this case
is on direct appeal, newly announced rules apply.” United States v. Knowles,
29 F.3d 947, 951 (5th Cir. 1994) (citing Griffith v. Kentucky, 479 U.S. 314
(1987)). The sufficiency issue must be examined under the Rosemond analysis.
The following evidence was presented to the jury as to the robberies for
which Smith received section 924(c) convictions: Smith told officials he drove
his Dodge pickup truck for the robbery of a Pizza Hut – the first robbery in
which Smith participated – and that a 12-gauge shotgun was used; Smith told
officials he drove his vehicle for a robbery of the Breaktime Bar, Smith went
inside the establishment, and a firearm was used; Smith told officials he drove
to the robbery of an Applebee’s and that a 12-gauge shotgun was used; Smith
5 In fact, Smith concedes on appeal that the evidence at trial established that he and
Robinson drove together to four of the six robberies, and that Robinson was armed for all six.
As to the two robberies that Smith does not admit driving to, he concedes that his own gun
was used for one, and that, “[a]rmed with a weapon, both defendants entered the
establishment and participated” in the other.
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told officials he drove his Dodge pickup truck to the robbery of a Subway in
Louisiana and that a 12-gauge shotgun was used; Smith told officials that he
supplied a .45 caliber pistol and .380 caliber pistol for a robbery of the
Southfield Grill; Smith told officials that he drove his Dodge pickup truck to
the robbery of an Outback Steakhouse and that he brought a .45 and .380. Also
as to the Outback Steakhouse robbery, there was evidence that Smith was
arrested while fleeing the robbery in his Dodge pickup truck, and that, after
his arrest, officials found a .45 on the driver’s seat. Last, there was testimony
at trial that Smith admitted to entering and robbing a Subway in Texas while
armed with a .357 revolver, 6 and that he directed law enforcement officials to
a pond where they found “the sawed-off pump shotgun that was used in
multiple armed robberies.”
We find that a rational jury could have found beyond a reasonable doubt
that Smith actively participated in the robberies and had advance knowledge
a firearm would be used. A defendant “actively participates” in a crime for
aiding and abetting purposes where the “aid relates to . . . one (or some) of a
crime’s phases or elements.” Rosemond, 134 S. Ct. at 1247. The evidence at
trial established that, at the very least, Smith either drove or supplied weapons
for all six robberies. To show ‘advance knowledge,’ there must be sufficient
evidence that Smith knew ahead of time – at a time when he could have walked
away – that his accomplices were going to carry guns during the commission
of the robberies. See id. at 1249-50. The evidence is sufficient as to the second
and subsequent robberies, partly because Smith continued to participate after
the first-in-time armed robbery of the Pizza Hut. See id. at 1250 n.9. The
robbery of the Pizza Hut is a closer question. Still, “the factfinder can draw
6 Smith was convicted of conspiracy to interfere with commerce by robbery in relation
to this robbery.
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inferences about a defendant’s intent based on all the facts and circumstances
of a crime’s commission.” Id. Viewing the evidence, and drawing all inferences,
in favor of the verdict, a rational jury could have concluded that Smith had
advance knowledge a gun would be used in the Pizza Hut robbery. 7
The evidence at trial was sufficient for a rational jury to conclude that
Smith was guilty of aiding and abetting the section 924(c) violations.
Smith argues for the first time in his reply brief that the aiding and
abetting jury instruction given by the district court was erroneous under
Rosemond as it did not require that Smith’s knowledge of firearm use be
“advance knowledge.” 8 Even if Smith had properly raised this argument on
appeal instead of waiting until the reply brief, we would hold any error to be
harmless. An error in a jury instruction “is harmless if this court after a
thorough examination of the record is able to conclude beyond a reasonable
doubt that the jury verdict would have been the same absent the error.” United
States v. Barraza, 655 F.3d 375, 382 (5th Cir. 2011) (citation and quotation
marks omitted). The question before us, then, is: If the jury instruction would
have stated that advance knowledge of the firearm use was required, would
the jury’s verdict have been the same?
We answer in the affirmative. We have already held that the evidence
was sufficient for a rational jury to find all the elements of a section 924(c)
violation. Thus, even had the jury instruction included the requirement that
Smith have advance knowledge of the firearm use, we conclude the jury’s
verdict would have been the same.
7 Smith conceded at oral argument that he owned the shotgun that was used in the
Pizza Hut robbery.
8 The district court’s jury instruction was based largely on the current Fifth Circuit
Pattern Jury Instruction for 18 U.S.C. § 924(c)(1), which may need to be revised in light of
Rosemond.
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V. Cruel and unusual punishment
Robinson and Smith argue their sentences violate the Eighth
Amendment’s prohibition against cruel and unusual punishment because the
sentences are “grossly disproportionate to the offenses that were committed.”
We review constitutional challenges de novo. United States v. Whaley,
577 F.3d 254, 256 (5th Cir. 2009) (citation omitted). “The Eighth Amendment
has been read to preclude a sentence that is greatly disproportionate to the
offense, because such sentences are cruel and unusual.” Thomas, 627 F.3d at
160 (citation and quotation marks omitted). “On review, however, this court
does not substitute its judgment for that of the legislature nor of the sentencing
court as to the appropriateness of a particular sentence; it should decide only
if the sentence is within the constitutional limitations.” Id. (citation and
quotation marks omitted). Thus, our review is narrow, and “successful Eighth
Amendment challenges to prison-term lengths will be rare.” Id. (citation and
quotation marks omitted).
In one case, a defendant was sentenced to 1,435 months, almost 90% of
the sentence being for five section 924(c) violations. Id. at 159. In holding the
sentence did not violate the Eighth Amendment, we stated that its length “was
the result of a Congressional decision to establish mandatory minimum
sentences for certain weapons offenses.” Id. at 160. Although the “‘sentence is
a long one . . . . it reflects a rational legislative judgment, entitled to deference,
that offenders who have committed serious or violent felonies and who
continue to commit felonies must be incapacitated.’” Id. (quoting Ewing v.
California, 538 U.S. 11, 30 (2003)).
While Smith and Robinson’s sentences are lengthy, they are the result
of congressionally established mandatory minimums. “[I]t is for Congress to
ameliorate the result of application of statutory mandatory minimum
sentences if it deems it too harsh.” United States v. Looney, 532 F.3d 392, 397
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(5th Cir. 2008) (citation, quotation marks, and brackets omitted).
These sentences do not constitute cruel and unusual punishment in
violation of the Eighth Amendment. 9
VI. Challenge to Deal v. United States
Both defendants argue that their second and subsequent section 924(c)
convictions should not have been “stacked” to create sentences of over 300
years (Robinson) and 100 years (Smith). They acknowledge the Supreme Court
rejected this argument in Deal v. United States, 508 U.S. 129 (1993). We must
reject it as well.
AFFIRMED.
9 Robinson also asserts that his sentence violates the Eighth Amendment because 18
U.S.C. § 924(c) is applied disparately across the country by United States Attorney’s Offices
and disproportionally to African-American defendants. For support of this argument,
Robinson relies solely on materials from the Sentencing Commission. As the Government
points out, this type of claim is usually raised as an equal protection claim. See McCleskey v.
Kemp, 481 U.S. 279 (1987). To prevail on such a claim, Robinson must “prove that the
decisionmakers in his case acted with discriminatory purpose.” Id. at 292 (emphasis in
original). Robinson does not argue, much less cite to any evidence he presented in district
court, that the decisionmakers in his case acted with a discriminatory purpose. In fact,
Smith, who is white, received the same penalty per offense as Robinson.
16