2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-16-2007

USA v. Walker

Precedential or Non-Precedential: Precedential

Docket No. 04-4405

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*

Honorable John R. Padova of the United States District Court for

the Eastern District of Pennsylvania, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 04-4405

___________

UNITED STATES OF AMERICA

v.

MICHAEL WALKER,

Appellant

 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. Crim. No. 03-cr-00093)

District Judge: The Honorable Edwin M. Kosik

___________

Submitted Under Third Circuit LAR 34.1(a)

December 12, 2006

BEFORE: FUENTES and VAN ANTWERPEN, Circuit Judges,

and

PADOVA, District Judge.

*

(Opinion filed: January 16, 2007)
2

Enid W. Harris

Harris & Van Jura

26 Pierce Street

Kingston, PA 18704

Counsel for Appellant

Thomas A. Marino

 United States Attorney

John C. Gurganus, Jr.

 Assistant United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18501

Counsel for Appellee

___________

OPINION OF THE COURT

___________

PADOVA, District Judge

Michael Walker appeals his sentence from a conviction in

the United States District Court for the Middle District of

Pennsylvania for numerous firearms, robbery and drug charges. At

issue is whether the 55-year consecutive mandatory minimum

portion of his sentence on the firearms charges violates the Fifth

and Eighth Amendments to the Constitution. We have jurisdiction

pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We will

affirm.

I.

Superceding Indictment No. 03-93 charged Walker with

offenses arising from the armed robbery of the Mr. Z’s Food Mart

in Hawley, Pennsylvania on October 26, 2001; the armed robbery

of the Peoples National Bank in Nicholson, Pennsylvania on

November 30, 2001; and the sale of cocaine, cocaine base

(“crack”), and marijuana in Scranton, Pennsylvania between

October 2001 and September 28, 2002. Walker was charged with
3

two counts in connection with the Mr. Z’s robbery: interference

with commerce by robbery, in violation of 18 U.S.C. § 1951

(Count I) and using and possessing a short-barreled Harrington and

Richardson 12 gauge shotgun during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c) (Count II). On October

26, 2001, Walker robbed two employees of Mr. Z’s who were on

their way to make a night deposit at a bank in the same strip mall.

Walker demanded the deposit bag from the employees, told the

employees to run, and fired a shot from his short-barreled shotgun.

He made off with $9,628.21 in cash and $14,698.87 in checks,

receipts and coupons. 

The Superceding Indictment also charged Walker with two

counts in connection with the Peoples National Bank robbery:

armed bank robbery, in violation of 18 U.S.C. § 2113(d) (Count

III) and using, carrying and brandishing a short-barreled

Harrington and Richardson 12 gauge shotgun and a silver Bryco

.380 automatic handgun during and in relation to the crime of

armed bank robbery, in violation of 18 U.S.C. § 924(c) (Count IV).

On November 30, 2001, Walker used both the sawed-off shotgun

and the handgun to rob the Peoples National Bank. He pointed the

shotgun in the faces of employees of the bank, and threw a 92-yearold man to the ground when the man did not respond to his

commands. He obtained $8,863 from the bank robbery. The

Superceding Indictment also charged Walker with one count of

possession of an unregistered short-barreled Harrington and

Richardson 12 gauge shotgun between October 2001 and February

2002, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count

V). 

In addition to the robbery and firearms charges, the

Superceding Indictment charged Walker with four counts related

to his sales of cocaine, cocaine base (“crack”), and marijuana from

his home in Scranton, Pennsylvania: conspiracy to distribute and

possess with intent to distribute in excess of 50 grams of cocaine

base (“crack”), cocaine, and marijuana between October 2001 and

September 28, 2002, in violation of 21 U.S.C. § 846 (Count VI);

distribution of cocaine base (“crack”) and aiding and abetting the

distribution of cocaine base (“crack”) between October 2001 and

September 27, 2002, in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2 (Count VII); possession with intent to distribute in
 1

Title 18, United States Code, Section 924(c) provides that the

mandatory minimum term of imprisonment for possession of a

firearm during and in relation to a crime of violence or a drug

trafficking offense is five years. 18 U.S.C. § 924(c)(1)(A)(i). If

the firearm is a short-barreled shotgun, the mandatory minimum

term of imprisonment is ten years. 18 U.S.C. § 924(c)(1)(B)(i). If

the defendant is being sentenced for a second or subsequent

conviction of Section 924(c), the mandatory minimum term of

imprisonment is 25 years. 18 U.S.C. § 924(c)(1)(C)(i). Section

924(c)(1)(C)(i) applies even if the second or subsequent conviction

is for a count charged in the same indictment as the initial violation

of Section 924(c). See Deal v. United States, 508 U.S. 129, 131-

134 (1993). Consequently, the pre-sentence report recommended

that Counts II and IV, relating to Walker’s use of the shortbarreled shotgun, be sentenced as second or subsequent offenses.

4

excess of five grams of cocaine base (“crack”) and aiding and

abetting the possession with intent to distribute in excess of five

grams of cocaine base (“crack”) on September 28, 2002, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count VIII);

and possession of a Jennings .9mm pistol during and in relation to

a drug trafficking offense on September 28, 2002, in violation of

18 U.S.C. § 924(c) (Count IX). In connection with these drug

trafficking offenses, Walker distributed and possessed with intent

to distribute 100 grams of cocaine base and 1 kilogram of cocaine

and supervised the distribution of these drugs by another

individual. 

The drug trafficking charges (Counts VI - IX) were severed

from the armed robbery and armed bank robbery charges (Counts

I - V) for trial. On March 12, 2004, Walker was convicted by a

jury of Counts VI - IX. On September 29, 2004, Walker was

convicted by a jury of Counts I - V.

Walker was sentenced on June 16, 2005. He objected to the

pre-sentence report on the grounds that the consecutive mandatory

minimum sentences totaling 55 years of imprisonment for the three

violations of 18 U.S.C. § 924(c), Counts II, IV and IX, were

unconstitutional.1

 The District Court overruled his objections and

sentenced him to a term of imprisonment of 65 years, consisting of
 2

Walker’s sentence for these offenses is less than the advisory

Guidelines sentencing range. Walker had a total offense level of

34 for Counts I, III, V, VI, VII and VIII and a criminal history

category of I. The advisory Guidelines sentencing range for a total

offense level of 34 and a criminal history category of I is 151-188

months. See U.S.S.G. Part 5A. 

 3

Walker was ordered to pay restitution in the amount of

$18,541.72 to Mr. Z’s Food Mart and $5,463.00 to Peoples

National Bank. Walker had paid James Harris, who drove the getaway car from the Peoples National Bank robbery, $3,400 from the

proceeds of that robbery. Harris, who was also convicted in the

robbery, was ordered to pay restitution to Peoples National Bank

in the amount of $3,400 as part of his sentence.

5

120 months on each of Counts I, III, V, VI, VII, and VIII, to be

served concurrently;2

 and to mandatory minimum terms of

imprisonment of five years on Count IX, to be served consecutively

to the term of imprisonment imposed for Counts I, III, V, VI, VII

and VIII; and 25 years on each of Counts II and IV, to be served

consecutively to each other and to the terms imposed for Counts I,

III, V, VI, VII, VIII, and IX. The District Court also sentenced

Walker to a total term of supervised release of five years, a special

assessment of $900, and restitution in the amount of $24,004.72, to

be paid to Mr. Z’s Food Mart and to Peoples National Bank.3

II.

Walker asks us to find that his consecutive mandatory

minimum sentence of 55 years of imprisonment pursuant to 18

U.S.C. § 924(c)(1) is unconstitutional because it violates the Due

Process Clause of the Fifth Amendment and the doctrine of

separation of powers; constitutes an irrational classification in

violation of the equal protection principles of the Fifth

Amendment; inflicts cruel and unusual punishment in violation of

the Eighth Amendment; and was not appropriate under established

rules of statutory construction. The standard of review for Walker’s

constitutional challenge to his mandatory minimum sentence is

plenary, as is his statutory construction challenge. See United

States v. Randolph, 364 F.3d 118, 121 (3d Cir. 2004) (“We apply

a plenary standard of review to issues of statutory interpretation,
6

and to questions regarding a statute’s constitutionality.”) (citations

omitted).

III.

Walker contends that the mandatory consecutive sentencing

scheme of Section 924(c)(1) violates the Due Process Clause of the

Fifth Amendment and the doctrine of separation of powers because

it limits the court’s discretion at sentencing and turns that

discretion over to the executive branch. See Mistretta v. United

States, 488 U.S. 361, 390-91 (1989) (stating that responsibility for

sentencing has traditionally been shared by the three branches of

government). He notes that, when Section 924(c)(1) was initially

passed into law in 1968, it provided for mandatory terms of

imprisonment of 2 to 25 years for second or subsequent offenders,

thereby giving judges considerable discretion in sentencing second

or subsequent offenders. See Gun Control Act of 1968, Pub. L.

No. 90-618, § 102, 82 Stat. 1223 (1968); Simpson v. United States,

435 U.S. 6, 7-8 (1978). Walker maintains that Congress, in

amending the statute to eliminate that discretion, created an

unconstitutional mandatory sentencing scheme. He also argues that

the mandatory consecutive sentencing scheme of Section 924(c)(1)

violates the Due Process Clause because it prevents the courts from

conducting individualized sentencing. He further asserts that the

55-year increase in his sentence of imprisonment attributable solely

to his Section 924(c)(1) convictions cannot be consistent with due

process without an individualized determination of whether his

conduct and criminal history justify such a sentence.

This Court has squarely addressed and rejected the argument

that mandatory sentences violate the doctrine of separation of

powers and the Due Process Clause. See United States v.

MacEwan, 445 F.3d 237 (3d Cir.), cert. denied, 127 S. Ct. 208

(2006); see also United States v. Frank, 864 F.2d 992, 1010 (3d

Cir. 1988). Regarding the separation of powers argument,

MacEwan noted that the Supreme Court “has specifically held that

‘Congress has the power to define criminal punishments without

giving the courts any sentencing discretion.’” Id. at 251 (quoting

Chapman v. United States, 500 U.S. 453, 467 (1991)). The

MacEwan Court explicitly considered whether mandatory

sentencing schemes vest too much power in the prosecutor and
7

concluded that “‘a legislature can exercise its right to limit judicial

discretion in sentencing by bestowing on prosecutors the right to

make decisions that may curtail judicial discretion.’” Id. at 252

(quoting Ehrsam v. Rubenstein, 917 F.2d 764, 767 (3d Cir. 1990)).

McEwan also recognized that this Court has repeatedly rejected

due process challenges to mandatory sentencing schemes on the

ground that there is no due process right to individualized

sentencing. See id. (citing Ehrsam, 917 F.2d at 766); Frank, 864

F.2d at 1010. Accordingly, the 55-year mandatory consecutive

sentence required by Section 924(c)(1) does not violate the

separation of powers doctrine or the Due Process Clause of the

Fifth Amendment.

IV.

Walker also argues that his 55-year mandatory consecutive

sentence for violations of Section 924(c)(1) is irrational when

compared with the punishment for other, more serious federal

crimes and, therefore, violates the equal protection principles of the

Due Process Clause. See Mathews v. De Castro, 429 U.S. 181, 182

n.1 (1976) (“It is well settled that the Fifth Amendment’s Due

Process Clause encompasses equal protection principles.” (citing

Weinberger v. Salfi, 422 U.S. 749, 768-770 (1975))). The

Supreme Court has explained that “a classification neither

involving fundamental rights nor proceeding along suspect lines is

accorded a strong presumption of validity. Such a classification

cannot run afoul of the Equal Protection Clause if there is a rational

relationship between the disparity of treatment and some legitimate

governmental purpose.” Heller v. Doe, 509 U.S. 312, 319-20

(1993) (internal quotations and citations omitted). 

Under rational basis review, “a classification must be upheld

against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for the

classification.” Id. at 320 (internal quotation and citations

omitted). Consequently, the principles of equal protection are

satisfied “so long as there is a plausible policy reason for the

classification, the legislative facts on which the classification is

apparently based rationally may have been considered to be true by

the governmental decisionmaker, and the relationship of the

classification to its goal is not so attenuated as to render the
8

distinction arbitrary or irrational.” Fitzgerald v. Racing Ass’n of

Central Iowa, 539 U.S. 103, 107 , (2003) (internal quotation

omitted). 

Walker argues that Section 924(c)(1) is intended to punish

the potential for violence created by the carrying of a firearm in the

prohibited circumstances and that it is irrational to punish the

potential for violence more harshly than actual violent crime. He

asks us to compare the sentence he received in this case, for three

violations of Section 924(c), with the sentences recommended by

the Sentencing Guidelines for other, actually violent, crimes such

as an aircraft hijacking, a terrorist bombing, and a racially

motivated assault with attempt to kill. Assuming that Walker’s

hypothetical violent criminals had no prior adult criminal

convictions, his airline hijacker would have a total offense level of

38, a criminal history category of I, and an advisory Guidelines

sentencing range of 235-293 months pursuant to U.S.S.G. § 2A5.1

and Part 5A; his terrorist bomber would have a total offense level

of 36 and a criminal history category of VI, and face an advisory

Guidelines sentencing range of 324-405 months pursuant to

U.S.S.G. § 2K1.4(a), § 3A1.4(a) and (b) and Part 5A; and his racist

attempted murderer would have a total offense level of 40, a

criminal history category of I, and an advisory Guidelines

sentencing range of 292-365 months pursuant to U.S.S.G. §

2A2.1(a), § 2A2.1b(a)(A), § 3A1.1(a), and Part 5A. Walker’s

hypotheticals do not take into account the fact that a defendant who

commits three such violent crimes could be subject to a term of

imprisonment at least as long as the one imposed on Walker. Thus,

Section 924(c)(1) did not irrationally punish the potential for

violence posed by Walker’s use of a firearm in connection with two

crimes of violence and one drug trafficking crime more than he

might have been punished for “actual” violent crime.

Walker also argues that Section 924(c)(1) is irrational

because it fails to differentiate between a first time offender who

commits more than one Section 924(c)(1) offense and a recidivist.

Consequently, he contends that he is being punished as a recidivist

even though he has not “failed to learn his lessons from the initial

punishment” and committed a repeat offense. The Supreme Court

has rejected the contention that the second or consecutive

sentencing provision of Section 924(c)(1)(C)(i) could only
9

rationally apply to “recidivists.” See Deal v. United States, 508

U.S. 129 (1993) (holding that Congress intended that the

mandatory terms of 20 years each for second and subsequent

offenses required by Section 924(c)(1)(C)(i) be imposed even if all

of the offenses were charged in the same indictment). In rejecting

the contention that application of Section 924(c)(1)(C)(i) to an

offender who was charged with two or more violations of Section

924(c) in the same indictment defied common sense, the Supreme

Court stated :

We choose to follow the language of

the statute, which gives no indication

that punishment of those who fail to

learn the “lesson” of prior conviction

or of prior punishment is the sole

purpose of § 924(c)(1), to the

exclusion of other penal goals such as

taking repeat offenders off the streets

for especially long periods, or simply

visiting society’s retribution upon

repeat offenders more severely. We

do not agree with the dissent’s

suggestion that these goals defy

“common sense.” It seems to us

eminently sensible to punish the

second murder, for example, with life

in prison rather than a term of

years-whether or not conviction of the

first murder (or completion of the

sentence for the first murder) has yet

occurred.

Deal, 508 U.S. at 136-37 (footnote omitted). Moreover, Walker is

not a “recidivist” only because the prosecutor in his case chose to

indict him on all three violations of Section 924(c)(1) in one multicount indictment, instead of charging the three separate violations

of Section 924(c)(1) in three separate indictments. Section

924(c)(1) did not, therefore, irrationally fail to differentiate

between a first-time offender and a recidivist in this case. 

The Government urges us to conclude that Congress’s
10

decision to classify and punish repeat violators of Section 924(c)(1)

more harshly than one-time offenders is rationally related to the

legitimate governmental interest in discouraging the use of firearms

in violent crimes and drug trafficking crimes and in punishing more

harshly criminals who repeatedly use deadly weapons. Congress’s

“overriding purpose” in passing Section 924(c) “was to combat the

increasing use of guns to commit federal felonies.” Simpson, 435

U.S. at 10 (emphasis omitted). The chief sponsor of this provision

explained that “the provision seeks ‘to persuade the man who is

tempted to commit a Federal felony to leave his gun at home.’”

Muscarello v. United States, 524 U.S. 125, 132 (1998) (citing 114

Cong. Rec. 22231 (1968) (Rep. Poff)); Busic v. United States, 446

U.S. 398, 405 (1980); Simpson, 435 U.S. at 13-14; 114 Cong. Rec.

22243-22244, 22236). 

Section 924(c) has been amended several times. In the

Comprehensive Crime Control Act of 1984, Congress “eliminat[ed]

the range of permissible penalties, set[] a mandatory prison term of

five years,” for use or carrying of a firearm during or in relation to

a crime of violence, “and specif[ied] that that term was to be added

on top of the prison term related to the underlying ‘crime of

violence,’ including statutory sentences that imposed certain other

weapons-related enhancements.” Castillo v. United States, 530

U.S. 120, 129 (2000) (citation omitted); see also Comprehensive

Crime Control Act, Pub. L. 98-473, § 1005(a), 98 Stat. 2138

(1984). Congress also imposed a mandatory term of ten years of

imprisonment for a second or subsequent offense in the same Act.

Comprehensive Crime Control Act, Pub. L. 98-473, § 1005(a), 98

Stat. 2138 (1984). In 1986, Congress amended Section 924(c)(1)

to require mandatory penalties when a firearm is used or carried in

connection with drug trafficking and to increase the mandatory

penalty for certain types of weapons. Firearms Owner’s Protection

Act, Pub. L. No. 99-308, § 104(a)(2), 100 Stat. 456-57 (1986).

The mandatory penalties of Section 924(c)(1) were extended to the

use of firearms in connection with drug trafficking crimes in order

to “combat the ‘dangerous combination’ of ‘drugs and guns.’” 

Muscarello, 524 U.S. at 132 (quoting Smith v. United States, 508

U.S. 223, 240 (1993)). In 1988, Congress increased the mandatory

term of imprisonment for a second or subsequent conviction under

Section 924(c)(1) from ten years to twenty years. Anti-Drug Abuse

Act of 1988, Pub. L. 100-690, § 6460, 102 Stat. 4373 (1988). In
11

1998, Congress again amended Section 924(c)(1) to require the

present mandatory minimum sentence of 25 years for a second or

subsequent conviction. An Act to Throttle Criminal Use of Guns,

Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998). 

This Court has previously recognized that, in imposing the

mandatory consecutive sentences for second or subsequent

offenders in Section 924(c)(1), “[i]t is likely that Congress meant

. . . to protect our communities from violent criminals who

repeatedly demonstrate a willingness to employ deadly weapons by

punishing them more harshly.” United States v. Couch, 291 F.3d

251, 255 (3d Cir. 2002). The United States Court of Appeals for

the Fourth Circuit has similarly noted that the significantly higher

mandatory penalties for second and subsequent offenses are

intended to “deter the use of firearms in the commission of crimes

and to increase the cost of committing a second offense. The

mandatory aspect of the sentences and the enhancement provisions

in connection with a second offense reveal the strong policy of

encouraging would-be criminals to leave their handguns at home.”

United States v. Raynor, 939 F.2d 191, 194 (4th Cir. 1991) (citing

United States v. Rawlings, 821 F.2d 1543, 1546 (11th Cir. 1987)).

We conclude, accordingly, that Congress had a rational basis for

treating second or subsequent offenses under Section 924(c)(1)

more harshly than first offenses and for imposing severe mandatory

punishments for such offenses. See Muscarello, 524 U.S. at 132;

Couch, 291 F.3d at 255; Raynor, 939 F.2d at 194. Walker’s 55-

year mandatory consecutive sentence for his three violations of

Section 924(c)(1) does not, therefore, violate the equal protection

principles of the Fifth Amendment.

V.

Walker further argues that his sentence violates the Eighth

Amendment’s prohibition on cruel and unusual punishment

because (1) it is grossly disproportionate to the offenses that he

committed and (2) it is contrary to the evolving standards of

decency that are the hallmark of our civilized society. The

Supreme Court has long recognized that “[t]he Eighth Amendment,

which forbids cruel and unusual punishments, contains a ‘narrow

proportionality principle’ that ‘applies to noncapital sentences.’”

See Ewing v. California, 538 U.S. 11, 20 (2003) (rejecting the
 4

In Lockyer, the Supreme Court found that the decision of the

California Supreme Court, that a three strikes law sentence of two

consecutive terms of 25 years to life imprisonment for a state

prisoner who had been convicted of two petty theft offenses did not

violate the Eighth Amendment’s proportionality principle, was not

an unreasonable application of clearly established precedent.

Lockyer, 538 U.S. at 69-70. Lockyer was convicted of two

offenses of stealing videotapes from a Kmart store. Id. at 66. The

five videotapes stolen in the first offense had a total value of

$84.70, the four videotapes stolen in the second offense had a total

value of $68.84. Id.

12

argument made by Ewing, who was sentenced to a prison term of

25 years to life under California’s three strikes law after he was

convicted of stealing three golf clubs, that California’s three strikes

law violated the Eighth Amendment) (quoting Harmelin v.

Michigan, 501 U.S. 957, 996-997 (1991) (Kennedy, J., concurring

in part and concurring in judgment)); see also Solem v. Helm, 463

U.S. 277, 286 (1983) (“[T]he constitutional principle of

proportionality has been recognized explicitly in this Court for

almost a century.”). Although the proportionality principle applies

to sentences for terms of years, only an extraordinary case will

result in a constitutional violation. Lockyer v. Andrade, 538 U.S.

63, 72, 77 (2003).4

 

In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme

Court held that the mandatory life sentence imposed on Rummel

for his third felony, “obtaining $120.75 by false pretenses,” did not

violate the Eighth Amendment. Id. at 266, 284-285. The Rummel

Court explained that “the Eighth Amendment prohibits imposition

of a sentence that is grossly disproportionate to the severity of the

crime.” Id. at 271 (citations omitted). However, “[o]utside the

context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.”

Id. at 272. In Hutto v. Davis, 454 U.S. 370 (1982) (per curiam),

the Supreme Court assessed its decision in Rummel and determined

that “Rummel stands for the proposition that federal courts should

be ‘reluctant to review legislatively mandated terms of
 5

Hutto had challenged his forty-year state sentence for

possession of nine ounces of marijuana and drug paraphernalia and

selling marijuana as cruel and unusual. Hutto, 454 U.S. at 370-71.

The district court granted Hutto’s petition for writ of habeas corpus

on the grounds that his sentence was “so grossly out of proportion

to the severity of the crimes as to constitute cruel and unusual

punishment in violation of the Eighth Amendment of the United

States Constitution.” Id. at 371. The United States Court of

Appeals for the Fourth Circuit affirmed the decision of the district

court. Id. at 372. The Supreme Court reversed because the Fourth

Circuit failed to follow Rummel. Id.

13

imprisonment.’”5 Id. at 374 (quoting Rummel, 445 U.S. at 272,

274). 

One of those exceedingly rare successful cases was Solem

v. Helm, 463 U.S. 277 (1983), in which the Supreme Court applied

the proportionality principle in finding that the Eighth Amendment

prohibited a life sentence without the possibility of parole for a

recidivist offender convicted of “uttering a ‘no account’ check for

$100.” Solem, 463 U.S. at 281. Helm, who had six previous

nonviolent felony convictions, none of which was a crime against

a person, and all of which involved alcohol, was convicted of

“uttering a ‘no account’ check for $100” after a night of drinking.

Id. at 279-80, 281. Although the maximum penalty for uttering a

“no account” check was five years imprisonment and a $5000 fine,

Helm was, because of his previous felony convictions, subject to

sentencing under South Dakota’s recidivist statute, which required

enhanced sentencing up to a maximum of life imprisonment

without parole and a $25,000 fine. Id. at 281. He was,

accordingly, sentenced to life imprisonment. Id. at 282. The

Solem Court utilized the following three factors in analyzing

whether his sentence was so disproportionate that it violated the

Eighth Amendment: “(1) the gravity of the offense and the

harshness of the penalty;” (2) “the sentences imposed on other

criminals in the same jurisdiction;” and (3) “the sentences imposed

for commission of the same crime in other jurisdictions.” Id. at

292. The Court determined that Helm “received the penultimate

sentence for relatively minor criminal conduct;” that the sentence

he received was more severe “than other criminals in the State who
14

have committed more serious crimes,” such as treason, first degree

manslaughter, first degree arson, kidnapping, and attempted

murder; and that he had “been treated more harshly than he would

have been in any other jurisdiction, with the possible exception of

a single State.” Id. at 298, 300. The Court concluded that Helm’s

sentence was “significantly disproportionate to his crime, and [was]

therefore prohibited by the Eighth Amendment.” Id. at 300.

 In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme

Court rejected a proportionality challenge to the mandatory

sentence of life without possibility of parole imposed on a firsttime offender convicted of possession of 672 grams of cocaine. Id.

at 961. Justice Scalia, writing for a majority of the Court, rejected

Harmelin’s argument that severe mandatory penalties were cruel

and unusual in violation of the Eighth Amendment. Id. at 994-95

(noting that “mandatory penalties may be cruel, but they are not

unusual in the constitutional sense, having been employed in

various forms throughout our Nation’s history”). In his concurring

opinion, Justice Kennedy suggested that the following principles

inform the Court’s proportionality analysis: “the primacy of the

legislature, the variety of legitimate penological schemes, the

nature of our federal system, and the requirement that

proportionality review be guided by objective factors.” Id. at

1001. He further suggested that these principles “inform the final”

principle that the “Eighth Amendment does not require strict

proportionality between crime and sentence. Rather, it forbids only

extreme sentences that are ‘grossly disproportionate’ to the crime.”

Id. (citing Solem, 463 U.S. at 288, 303; Weems, 217 U.S. at 371;

Coker v. Georgia, 433 U.S. 584, 592 (1977); and Rummel, 445

U.S. at 271). Justice Kennedy also explained that the courts need

not always engage in an analysis of the second and third Solem

factors when conducting a proportionality review:

“intrajurisdictional and interjurisdictional analyses are appropriate

only in the rare case in which a threshold comparison of the crime

committed and the sentence imposed leads to an inference of gross

disproportionality.” Id. at 1005. In Ewing, the Supreme Court

adopted the use of these principles in the proportionality analysis.

See Ewing, 454 U.S. at 23-24 (“The proportionality principles in

our cases distilled in Justice Kennedy’s concurrence guide our

application of the Eighth Amendment . . . .”).
15

Walker argues that his sentence is grossly disproportionate

to his offense in violation of the Eighth Amendment in accordance

with the proportionality factors set forth in Solem. He contends

that the first factor is satisfied because his Guidelines sentence for

the drug and robbery convictions is sufficient to punish all of his

crimes and that the involvement of guns in those crimes does not

warrant increasing his sentence by 55 years of imprisonment. He

further argues that a comparison of his sentence and the sentences

for other serious federal crimes shows that his sentence is extreme

and satisfies the second factor. He also maintains that it is common

knowledge that the 55-year sentence which he received for his

violations of Section 924(c)(1) is far more severe than he would

have received in other jurisdictions, satisfying the third factor.

This Court recently examined the application of the Solem

factors in light of Harmelin and Ewing. See MacEwan, 445 F.3d

at 247-50 (rejecting MacEwan’s proportionality challenge to his

fifteen-year mandatory minimum sentence for his second

conviction for downloading child pornography over the internet).

The MacEwan Court explained that, in using the Solem factors to

evaluate proportionality challenges to sentences under the Eighth

Amendment, courts “‘should grant substantial deference to the

broad authority that legislatures necessarily possess in determining

the types and limits of punishments for crimes.’” MacEwan, 445

F.3d at 247 (quoting United States v. Rosenberg, 806 F.2d 1169,

1175 (3d Cir. 1986)). The MacEwan Court also noted that the

“principle of substantial deference therefore ‘restrains us from an

extended analysis of proportionality save in rare cases.’” Id. at

247-48 (quoting Rosenberg, 806 F.2d at 1175). Therefore, “the

first proportionality factor acts as a gateway or threshold. If the

defendant fails to show a gross imbalance between the crime and

the sentence, our analysis is at an end.” Id. at 248. Consequently,

this Court must “focus upon whether [Walker’s] is ‘the rare case in

which a threshold comparison of the crime committed and the

sentence imposed leads to an inference of gross

disproportionality.’” Id. (quoting Ewing, 538 U.S. at 30). If we

cannot infer gross disproportionality, we are “not bound to conduct

any ‘comparative analysis within and between jurisdictions’ as

required by Solem’s second and third factors.” Id. (quoting Ewing,

538 U.S. at 23). We also note, in considering the first factor, that

“the Eighth Amendment does not demand strict proportionality
16

between the crime and the sentence; rather, it forbids only those

sentences that are ‘grossly disproportionate’ to the crime.” Id.

(quoting Ewing, 538 U.S. at 23).

The Government argues that Walker’s sentence is not

grossly disproportionate to his crime because, as is confirmed by

the evidence admitted at his trials, Walker is a violent criminal who

repeatedly committed serious crimes and armed himself with

firearms as a tool of his drug trade and to facilitate his robberies.

He used a short-barreled shotgun to commit the Mr. Z’s Food Mart

robbery and discharged the shotgun during that robbery. He used

the same shotgun, as well as a pistol, during the Peoples National

Bank robbery, leveling the shotgun at tellers’ heads and throwing

a 92-year-old man to the ground. He later used a semi-automatic

pistol in connection with drug dealing. The Government maintains

that, in light of Walker’s egregious, repeated conduct, the

consecutive mandatory minimum sentences totaling 55 years

imposed for his three violations of Section 924(c)(1) are not

grossly disproportionate to his crimes. 

We are guided in our analysis of Walker’s proportionality

challenge to his 55-year mandatory consecutive sentence by the

requirement that we “grant substantial deference to the broad

authority that legislatures necessarily possess in determining the

types and limits of punishments for crimes.” See MacEwan, 445

F.3d at 247. Congress’s purpose in amending Section 924(c)(1) to

require mandatory consecutive sentences was “to . . . protect

society by incapacitating those criminals who demonstrate a

willingness to repeatedly engage in serious felonies while in

possession of firearms, . . . to deter criminals from possessing

firearms during the course of certain felonies,” United States v.

Angelos, 433 F.3d 738, 751 (10th Cir. 2006) (citations omitted),

and “to protect our communities from violent criminals who

repeatedly demonstrate a willingness to employ deadly weapons by

punishing them more harshly.” Couch, 291 F.3d at 255. Thus, we

find that “Congress ‘could with reason conclude that the threat

posed to the individual and society’ by possessing firearms in

connection with serious felonies,” such as the armed robberies and

drug-trafficking crimes Walker committed, is “‘momentous enough

to warrant the deterrence and retribution’ of lengthy consecutive

sentences, such as those imposed on [Walker] in this case.”
 6

The other Courts of Appeals that have considered whether the

mandatory consecutive sentencing scheme of Section 924(c)(1)

violates the proportionality principle of the Eighth Amendment

have concluded that it does not. See United States v. Yousef, 327

F.3d 56, 163 (2d Cir. 2003) (rejecting an Eighth Amendment

proportionality challenge to a prison term of 240 years plus a

consecutive term of life imprisonment for offenses related to the

1993 bombing of the World Trade Center, which included two 30-

year consecutive mandatory terms of imprisonment for violations

of 18 U.S.C. § 924(c)(1)(A)(ii))); United States v. Khan, 461 F.3d

477, 494-95 (4th Cir. 2006) (rejecting Eighth Amendment

challenge to sentences of 120 months, 300 months, and life

imprisonment imposed pursuant to the “count-stacking” provisions

of § 924(c)(1) as the Supreme Court has upheld severe mandatory

penalties and has never held that “‘a sentence to a specific term of

years, even if it might turn out to be more than the reasonable life

expectancy of the defendant, constitutes cruel and unusual

punishment.’” (citing Harmelin, 501 U.S. at 994 and quoting

United States v. Beverly, 369 F.3d 516, 537 (6th Cir. 2004)));

United States v. Beverly, 369 F.3d 516, 536-37 (6th Cir. 2004)

(rejecting a proportionality challenge to a sentence of 711⁄2 years,

most of which was mandated by violations of § 924(c)(1), even

though the defendant asserting the challenge had never before been

convicted of a felony); United States v. Arrington, 159 F.3d 1069,

17

Angelos, 433 F.3d at 751 (quoting Harmelin, 501 U.S. at 1003).

Moreover, Walker’s crimes were at least as serious as those

committed by Lockyer, Rummel, Hutto, and Ewing, whose

proportionality challenges were rejected by the Supreme Court.

Consequently, we find that the harshness of Walker’s 55-year

mandatory consecutive sentence, balanced against the gravity of

his offenses, does not violate the proportionality principle of the

Eighth Amendment. See Solem, 463 U.S. at 290-91. Having

found that Walker’s is not “‘the rare case in which a threshold

comparison of the crime committed and the sentence imposed leads

to an inference of gross disproportionality,’” our analysis is at an

end. MacEwan, 445 F.3d at 248 (quoting Ewing, 538 U.S. at 30)

. We conclude, therefore, that Walker’s sentence is not grossly

disproportionate from the gravity of his crimes in violation of the

Eighth Amendment.6
1073 (7th Cir. 1998) ( finding that the Eighth Amendment did not

prohibit a 65-year mandatory consecutive sentence imposed for

four violations of Section 924(c)(1), “[g]iven the limited nature of

Eighth Amendment proportionality review, and precedents

upholding life sentences for persons who have committed lesser

crimes . . . .” (citing United States v. Farmer, 73 F.3d 836 (8th Cir.

1996) and United States v. Dittrich, 100 F.3d 84, 87 (8th Cir.

1996))); United States v. Campbell, No. 04-3082, 128 Fed. App.

558, 560 (8th Cir. Apr. 25, 2005) (non-precedential) (finding that

Campbell’s thirty year mandatory minimum sentence, although

very harsh, did not violate the Eighth Amendment (citing United

States v. Farmer, 73 F.3d 836, 840 (8th Cir. 1996) and Harmelin,

501 U.S. 957)); United States v. Hungerford, 465 F.3d 1113, 1118

(9th Cir. 2006) (rejecting argument that the Eighth Amendment

precluded a 155-year consecutive mandatory minimum sentence

imposed for seven violations of Section 924(c)(1) charged in the

same indictment); United States v. Parker, 241 F.3d 1114, 1117-18

(9th Cir. 2001) (rejecting Eighth Amendment challenge to a 888-

month sentence that included 780 months for four violations of

Section 924(c)(1) charged in the same indictment); and Angelos,

433 F.3d at 751 (denying a proportionality challenge to a 55-year

mandatory consecutive sentence for three violations of Section

924(c)(1) which had been charged in the same indictment). 

18

Walker also asks us to consider whether our nation’s

evolving standards of decency require us to find that his sentence

constitutes cruel and unusual punishment. Walker relies on the

recommendation of the 2004 ABA Justice Kennedy Commission

that federal and state governments repeal mandatory minimum

sentences. American Bar Association Justice Kennedy

Commission, Reports with Recommendations to the ABA House

of Delegates, dated August, 2004, at 9, available at

http://www.abanet.org/crimjust/kennedy/Justice

KennedyCommissionReportsFinal.pdf. Walker also suggests that

the imposition of a 55-year prison term on a first-time offender

cannot encompass rehabilitation but, rather, denies both the

offender and the community a second chance. 

We find that, rather than violate our evolving standards of

decency, Walker’s mandatory consecutive sentences represent
 7

Those purposes are:

(A) to reflect the seriousness of the

offense, to promote respect for the

law, and to provide just punishment

for the offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with

needed educational or vocational

training, medical care, or other

correctional treatment in the most

effective manner.

18 U.S.C. § 3553(a)(2).

19

Congress’s attempt to address the serious societal problem of the

use of firearms in connection with violent crimes and in connection

with drug trafficking. See Muscarello, 524 U.S. at 132; Simpson,

435 U.S. at 10; Deal, 508 U.S. at 136-37; Khan, 461 F.3d at 495;

Angelos, 433 F.3d at 751; Couch, 291 F.3d at 255; and Raynor,

939 F.2d at 194. We conclude, accordingly, that Walker’s 55-year

consecutive mandatory minimum sentence for three violations of

Section 924(c)(1) does not violate the Eighth Amendment’s

prohibition on cruel and unusual punishment.

VI.

Walker also argues that his harsh mandatory consecutive

sentence could have been avoided had the District Court utilized

the appropriate principles of statutory construction. He contends

that the minimum term of 25 years of imprisonment for a second or

subsequent felony conviction for use of a firearm in connection

with a crime of violence or a drug trafficking crime mandated by

Section 924(c)(1)(C)(i) directly conflicts with the controlling

mandate of 18 U.S.C. § 3553(a) that a court shall “impose a

sentence sufficient, but not greater than necessary, to comply with

the purposes set forth in paragraph (2) of this subsection.”7

 18

U.S.C. § 3553(a). 
20

Walker asserts that the district court could have avoided

imposing his draconian mandatory sentence by imposing a

sentence which met the sentencing goals of 18 U.S.C. § 3553(a),

rather than the severe consecutive mandatory minimum sentences

required by Section 924(c)(1). He maintains that it is an

established rule of statutory construction that criminal laws are to

be strictly construed in favor of the defendant and that the district

court should have chosen “the construction yielding the shorter

sentence by resting on the venerable rule of lenity, rooted in ‘the

instinctive distaste against men languishing in prison unless the

lawmaker has clearly said they should.’” United States v. R.L.C.,

503 U.S. 291, 305 (1992) (quoting United States v. Bass, 404 U.S.

336, 347-48 (1971)). However, the Supreme Court also stated in

R.L.C. that “‘we have always reserved lenity for those situations in

which a reasonable doubt persists about a statute’s intended scope

even after resort to the language and structure, legislative history,

and motivating policies of the statute.’” Id. (quoting Moskal v.

United States, 498 U.S. 103, 108 (1990)) (footnote omitted). 

We perceive no doubt about the intended scope of Section

924(c)(1). The Supreme Court has explained that this statute

requires the imposition of the mandatory consecutive second or

subsequent offense penalties of Section 924(c)(1)(C)(i) to a

defendant, such as Walker, who has been convicted of multiple

counts of violating Section 924(c)(1) which were charged in the

same indictment. See Deal, 508 U.S. at 131-34. Moreover, there

is no conflict between 18 U.S.C. § 3553 and 18 U.S.C. § 924(c)(1).

18 U.S.C. § 3553(a) must be read in conjunction with 18 U.S.C. §

3553(e), which prohibits the courts from sentencing a defendant

below the statutory mandatory minimum sentence unless the

Government files a motion permitting such departure. See 18

U.S.C. § 3553(e). The District Court, therefore, properly imposed

Walker’s consecutive mandatory minimum sentences pursuant to

18 U.S.C. § 3553(e). We hold, accordingly, that principles of

statutory construction did not require the District Court to sentence

Walker to a term of imprisonment that omitted the 55-year

consecutive mandatory minimum sentence required by Section

924(c)(1). 

For the reasons set forth above, we reject Walker’s

constitutional and statutory construction challenges to his 55-year
21

consecutive mandatory minimum sentence and affirm the sentence

imposed by the District Court.