1:12-cr-00329-LMB-1) UNITED STATES OF AMERICA v. Faisal Hashime

PUBLISHED
Filed: June 10, 2013
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5039
(1:12-cr-00329-LMB-1)
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FAISAL HASHIME,
Defendant - Appellant.
O R D E R
Appellant filed a petition for hearing en banc which was
circulated to the full Court. No judge requested a poll under
Rule 35 of the Federal Rules of Appellate Procedure; therefore,
the petition for hearing en banc is denied. Judge Gregory wrote
an opinion concurring in the denial of hearing en banc, in which
Judge Davis joined.
Entered at the direction of Chief Judge Traxler.
For the Court
/s/ Patricia S. Connor
Clerk

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GREGORY, Circuit Judge, concurring in denial of hearing en banc:
Faisal Hashime was convicted of multiple crimes relating to
the possession, production, and distribution of child
pornography. He raises two issues on appeal, one of which being
a Miranda violation, and the other an Eighth Amendment challenge
to the sentence imposed. Before we hear his appeal, however,
Hashime asked the full Court to review and correct our Eighth
Amendment jurisprudence. Hashime’s request has merit. Our
Eighth Amendment precedent is in tension with the jurisprudence
of both the Supreme Court and our sister circuits. This is
reason enough to grant a hearing en banc. See Fed R. App. P.
35(a)(1). But even if it was not, insuring that a defendant is
not sentenced to a term of imprisonment that violates the Eighth
Amendment prohibition against cruel and unusual punishment is
surely an issue of “exceptional importance” warranting en banc
review. Fed R. App. P. 35(a)(2).
In spite of the momentousness of the issue Hashime asks us
to address, I concur in the Court’s decision to initially deny
hearing en banc for efficiency reasons only -- if Hashime’s
appeal is resolved on the Miranda issue, his Eighth Amendment
argument will be moot. I write separately, however, to
underscore why Hashime’s Eighth Amendment argument is worthy of
en banc review as soon as prudently possible.

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I.
To be succinct, we have held that Eighth Amendment
“proportionality review is not available for any sentence less
than life imprisonment without the possibility of parole.”
United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).
Conflicting with our assertion, other circuits conduct Eighth
Amendment proportionality review for term-of-years sentences.
See, e.g., United States v. Nigg, 667 F.3d 929, 938 (7th Cir.
2012); United States v. Thomas, 627 F.3d 146, 159-60 (5th Cir.
2010); United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008);
United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008);
United States v. MacEwan, 445 F.3d 237, 247-48 (3d Cir. 2006);
United States v. Collins, 340 F.3d 672, 680 (8th Cir. 2003);
United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989).
To my knowledge, we are the only circuit that follows this
blanket rule denying proportionality review for term-of-years
sentences. Indeed, even our district courts have recognized
that our precedent is in tension with our sister circuits. See,
e.g., United States v. Wellman, 716 F. Supp. 2d 447, 459 (S.D.
W. Va. 2010).
Our precedent has had the effect of creating an oft-dreaded
circuit split. Cf. Joyner v. Forsyth Cnty., N.C., 653 F.3d 341,
356 (4th Cir. 2011) (Niemeyer, J., dissenting) (admonishing the
majority in part for creating a circuit split); Holly v. Scott,

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434 F.3d 287, 297-98 (4th Cir. 2006) (Motz, J., concurring)
(same); United States v. Terry, 257 F.3d 366, 369 (4th Cir.
2001) (Wilkinson, J.) (rejecting a proposed argument in part
because it would create a circuit split). This is especially
troubling given the fact that the rigid rule that we alone
follow seemingly materialized from thin air. Our precedent
inexplicably morphed from once stating that Supreme Court
precedent does not require proportionality review for a term-of-
years sentence, which is correct,1 see, e.g., United States v.
Polk, 905 F.2d 54 (4th Cir. 1990); United States v. Whitehead,
849 F.2d 849, 860 (4th Cir. 1988); United States v. Rhodes, 779
F.2d 1019, 1027-28 (4th Cir. 1985), to holding that
proportionality review is not available for a term-of-years
sentence, see, e.g., United States v. Ming Hong, 242 F.3d 528,
532 (4th Cir. 2001). As such, we are now bound by this
unsupported rule that is not followed by any circuit.
1 A court must only conduct proportionality review in “the
rare case in which a threshold comparison of the crime committed
and the sentence imposed leads to an inference of gross
disproportionality.” Ewing v. California, 538 U.S. 11, 30
(2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)
(Kennedy, J., concurring)). If this threshold is met, then a
court must perform the Eighth Amendment proportionality test
articulated by the Supreme Court in Solem v. Helm, looking at
the “(i) the gravity of the offense and the harshness of the
penalty; (ii) the sentences imposed on other criminals in the
same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.” 463 U.S.
277, 292 (1983).

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II.
More important than the very important circuit split, our
precedent is in tension with Supreme Court Eighth Amendment
jurisprudence. In two recent Eighth Amendment decisions the
Supreme Court reiterated that the “concept of proportionality is
central to the Eighth Amendment.” Miller v. Alabama, 132 S. Ct.
2455, 2463 (2012); Graham v. Florida, 130 S. Ct. 2011, 2021
(2010). The Court further noted that its “cases addressing the
proportionality of sentences” include “challenges to the length
of term-of-years sentences given all the circumstances in a
particular case.” Graham, 130 S. Ct. at 2021. The Court has
never said as a per se matter that a term-of-years sentence will
necessarily survive a proportionality analysis, which we noted
in Sutton v. State of Md., 886 F.2d 708, 712 (4th Cir. 1989) and
Rhodes, 779 F.2d at 1027-28. In fact, the Supreme Court has
strongly suggested that Eighth Amendment proportionality review
applies equally to both life and term-of-years sentences, as it
has proclaimed “no penalty is per se constitutional,” Solem v.
Helm, 463 U.S. 277, 290 (1983); and “[t]he Eighth Amendment,
which forbids cruel and unusual punishments, contains a ‘narrow
proportionality principle’ that ‘applies to noncapital
sentences,’” Ewing v. California, 538 U.S. 11, 20 (2003)
(quoting Harmelin v. Michigan, 501 U.S. 957, 996—997 (1991)
(Kennedy, J., concurring)). Even the most skilled legal

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contortionist could not interpret our precedent in a way that
sensibly comports with the Supreme Court’s crystalline
pronouncements.
III.
Given the unexplained deficiencies in our Eighth Amendment
jurisprudence, it is necessary for us to rally the troops, right
our wrongs, and align our Eighth Amendment jurisprudence with
the rest of the nation. While the time may not be now given the
posture of Hashime’s appeal, the time certainly draws nigh.2
Judge Davis joins in this concurrence.
2 I take no position on the merits of Hashime’s appeal.

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