# United States Court of Appeals

For the First Circuit

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Nos. 12-2364, 12-2367, 13-2017 UNITED STATES,

Appellee,

v.

WENDELL RIVERA-RUPERTO, a/k/a Arsenio Rivera,

Defendant, Appellant.

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Before

Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Ka yatta, and Barron, Circuit Judges.

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ORDER OF COURT Entered: February 27, 2018

Pending before the court is a petition for rehear ing or rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364, 12-2367 and a petition for re hearing or rehearing en banc in United States v. Rivera-Ruperto, No. 13-2017. The petiti ons for rehearing having been denied by the panel of judges who decided the cases, and the petitions for rehearing en banc having been submitted to the active judges of this court and a ma jority of the judges not having voted that either case be heard en banc, it is ordered that the peti tions for rehearing and th e petitions for rehearing
en banc be denied.

BARRON

, Circuit Judge, concurring in the denial of rehearing en banc, joined by HOWARD, Chief Judge, and TORRUELLA, LYNCH, THOMPSON, and KAYATTA, Circuit Judges . The bulk of the 161-year and ten-month prison sentence that Wendell RiveraRuperto challenges -- 130 years of it to be exact -- was imposed for his six convictions under 18 U.S.C. § 924(c). United Stat es v. Rivera-Ruperto, 852 F.3d 1, 17 (1st Cir. 2017) (RiveraRuperto II). Those convictions stem from a fe deral sting operation that targeted Puerto Rican police officers. Id. at 4. As part of that sti ng, Rivera participated, whil e armed, in a number of supposed "deals" involving large amounts of fake co caine in which agents of the Federal Bureau of Investigation (FBI) posed as bot h buyers and sellers. Id. at 4-5.- 2 - But, § 924(c) did not merely permit this grea ter-than-life-without-parole sentence. It mandated it. It did so by requiring a minimum prison se ntence of five years for the first of Rivera's § 924(c) convictions and consecutive twenty-five y ear prison sentences thereafter for each of his "second or subsequent" § 924(c) convictions. 18 U. S.C. § 924(c). And it did so even though all
but one of those additional convic tions were handed down at the same trial as the initial § 924(c) conviction that Rivera, who had no prior criminal history, re ceived. Id. at 5. 1

Thus, in consequence of Rivera's multiple convi ctions for his involvement in this one sting operation, Rivera was required to receive a punishment that seemingly could have been more severe only if it had required his death. And that is so even though this case is replete with factors that -- under a discretionary sent encing regime -- would surely ha ve been relevant to a judge's
individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also depr ive him (absent a pardon or comm utation) of any hope of ever enjoying freedom again. 2

1 Rivera was indicted for six counts of violat ing 18 U.S.C. § 924(c) along with a variety of other charges also stemming from those fake drug transactions. Rivera-Rupe rto II, 852 F.3d at 5. Those other charges consisted of si x counts each of conspiracy to pos sess with intent to distribute five kilograms or more of a controlled substan ce, 21 U.S.C. §§ 841(a)(1) & (b)(l)(A)(ii)(II), 846; six counts of attempt to possess withintent to distribute five kil ograms or more of a controlled substance, id. §§ 841(a)(1) & (b)(l) (A)(ii)(II), 846; and one count of possession of a firearm with an obliterated serial number, 18 U.S.C. § 922(k). For both the conspiracy and attempt charges, the controlled substance was "5 kilogr ams or more of a mixture or s ubstance containing a detectable amount of . . . cocaine." 21 U.S.C. § 841(b)(l)(A)( ii)(II). The charges were then divided between two separate trials. The first trial concerned the charges arising out of five of the six fake drug transactions, including five of the § 924(c) counts. Id.; United States v. Rivera-Ruperto, 846 F.3d 417, 420-21, 423 (1st Cir. 2017) (Rivera-Ruperto I). The first tria l resulted in Rivera be ing sentenced to a term of imprisonment of 126 years and ten months, of which 105 years were for his convictions under § 924(c). Rivera-Ruperto I, 846 F.3d at 420-21. Th e second trial concerned the charges arising out of the other fake drug transa ction and resulted in Rivera being sentenced to a term of imprisonment of thirty-five years -- of whic h twenty-five years were for his sixth § 924(c)
conviction. Id. at 420. This se ntence was to be served consecuti vely with his first term of
incarceration. Id. Rivera appealed both of his convictions. Id.; Rivera-Ruperto II, 852 F.3d at 5. Because of the order in which this Court decided his two appeal s, "Rivera-Ruperto I" refers to his appeal from his second trial, which resulted in a sentence ofthirty-five years' imprisonment, and "RiveraRuperto II" refers to his appeal from his first trial, which resulte d in a sentence of 126 years and ten months imprisonment.

2 Among the individualized fact ors that the sentencing judge c ould have considered if he had the discretion to do so are the fact that, a lthough Rivera was caught up in a sting designed to catch corrupt police officers, he was himself nota police officer, Rivera-Ruperto II, 852 F.3d at 4 n.3, that Rivera had no prior criminal history, id. at 20 (Torruella, J., dissenting), that he caused no physical harm to any identifiable victim, id. at 35, and that he wa s never involved with any real drugs, id. at 19.- 3 - Despite the force of Rivera's argument that this mandatory sentence is so grossly disproportionate as to be unconstitutional under the Eighth Amendment, I am not permitted to conclude that it is. Other federal judges have e xpressed their dismay that our legal system could countenance extreme mandatory sentences under § 924( c) that are even sh orter than this one. 3 And yet, just as those judges concluded that they were required by precedent to uphold the sentences in their cases, I conclude, like the panel, Rivera-Rup erto II, 852 F.3d at 18, that I am compelled by precedent -- and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) ( opinion of Kennedy, J.) -- to uphold Rivera's greater-than-life sentence. 4

I do think it is important to say something, however, about that precedent and why I believe the Supreme Court should revis it it. And so, in what follo ws, I explain my reasoning.

I.

The body of precedent that controls here conc erns the meaning of the Eighth Amendment, which provides that "[e]xcessive bail shall not be required, nor ex cessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Amendment's text does not expressly state that prison sentences may be unconstitutional solely in consequence of their length. The Supreme Court, however, has long indicated that a sentence may, in rare cases, be so disproportionate to the seriousness of the underlying offense that it violates the Eighth
Amendment. See Weems v. Unite d States, 217 U.S. 349, 368 (1910).

3 United States v. Abbott, 30 F .3d 71, 72 n.1 (7th Cir. 1994) (recognizing the district court's concern that the defendant's sentence of twenty-six years for, in part, a § 924(c) conviction was an
"illustration of the lack of wisdom in manda tory minimum sentences, but I cannot take it upon myself to change the law that Congress has wr itten because I think it is an inappropriate disposition."); see also Unite d States v. Angelos, 345 F. S upp. 2d 1227, 1247 (D. Utah 2004), aff'd, 433 F.3d 738 (10th Cir. 2006) (affirming a sentence of sixty-one years under § 924(c) despite its conclusion that § 924(c)'s sentencing requirements were "irrational").

4 In both Rivera-Ruperto II and Rivera-Ruperto I, Rivera challenged the cumulative length of his sentence -- 161 years and ten months (of which 130 years stem from his § 924(c) convictions) -- as disproportionate under the Eighth Amendment. Rivera-Ruperto I, 846 F.3d at 425; Rivera-Ruperto II, 852 F.3d at 13. During both appeals, the part ies and the panel considered his sentence cumulatively in addressing his Eighth Amendment challenge. See Rivera-Ruperto I, 846 F.3d at 425; Rivera-Ruperto II, 852 F.3d at 13. In his petition for rehearing in each case, Rivera likewise challenges the proportionality of his sentence cumulatively. I note that, even considering only the sentence that Ri vera received in Rivera-Ruperto II , he still faces an inherently greater-than-life sentence -- 105 years -- solely on th e basis of his § 924(c) convictions. RiveraRuperto II, 852 F.3d at 13. More over, because that more-than- 100 year sentence was imposed
before Rivera was sentenced in Rivera I for hi s sixth § 924(c) convictio n, his additional twentyfive year sentence for that si xth § 924(c) conviction wa s necessarily a senten ce that would extend his already-imposed 100-year-plus § 924(c) senten ce another twenty-five y ears. Thus, it makes
sense to consider those two sentences cumulati vely for purposes of addressing his Eighth Amendment challenge.- 4 - In Rummel v. Estelle, 445 U.S. 263 (1980), for ex ample, the Supreme Co urt, in the course of rejecting an Eighth Amendment challenge to a mandatory life sentence with the possibility of parole, explained that "the Eighth Amendment prohi bits imposition of a sentence that is grossly disproportionate to the se verity of the crime." 5 Id. at 271. Th e Court then applie d this principle to invalidate a prison sentence solely in conseq uence of its disproportiona te length in Solem v. Helm, 463 U.S. 277 (1983).

Solem specified the criteria that bear on whether the length of a prison term is impermissibly out of proportion to the seriousness of the offense (or offenses) of conviction. Solem emphasized that "no single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amen dment," Solem, 463 U.S. at 290 n.17, but that "a combination of objective factors can make such anal ysis possible." Id. Sp ecifically, Solem held
that:

[A] court's proportionality analysis under the Eighth Amendment should be guided by objec tive criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminal s in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Id. at 292.

Solem appeared to contemplate a holistic analys is, in which the assessment of each of these
three criteria would inform the assessment of the others. That appr oach, notwithstanding its inherently (and appropriate ly) deferential nature, had teeth. In fact, in Solem, the Court concluded
on the basis of this holistic assessment that "t he Eighth Amendment proscribes a life sentence without the possibility of parole for a seventh nonvi olent felony," id. at 279, in a case in which that discretionary sentence was trigge red by a recidivist defendant's conviction -- after he had been punished for his prior felony convictions -- for uttering a "no account" check for $100. Id. at 303.

Thus, if Solem were the last word, I would have to assess in the following way whether Rivera's mandatory life-without-par ole sentence for multiple felonies -- each of which is seemingly nonviolent, though hardly minor in nature -- comports with the Eighth Amendment. 6 I would have

5 Prior to Rummel, in Weems, "the Court ha d struck down as cruel and unusual punishment a sentence of cadena temporal imposed by a Philippine Court. This bizarre penalty, which was unknown to Anglo-Saxon law, entailed a minimum of 12 years' imprisonment chained day and night at the wrists and ankles , hard and painful labor while so chained, and a number of 'accessories' including lifetime civil disabilities. " Solem v. Helm, 463 U. S. 277, 306-07 (1983). In Solem, as in Rummel, the Court determined th at the holding in Weems could not "be wrenched
from the facts of that case." Id. (quoting Rummel, 445 U.S. at 273).

6 As a result of the length of Rivera's sentence, I do not address how long a sentence imposed on an adult defendant must be in orde r for that sentence to be one that necessarily constitutes a life sentence. There can be no questi on, after all, that a sentence of more than one hundred years is properly considered to be a life sentence for any adult defendant, no matter that defendant's age at sentencing.- 5 - to consider, holistically, the three criteria that So lem identifies as relevant to the proportionality determination. And, based on a consideration of thos e criteria, as I will next explain, I would find that Rivera's mandatory, more-t han-century-long sentence was gr ossly disproporti onate and thus in violation of the Eighth Amendment. 7

A.

The first Solem criterion requires a relatively abstract inquiry. In performing it, a reviewing court must consider the gravity of the o ffense "in light of the harm caused or threatened to the victim or society[] and th e culpability of the offender." I d. at 292. A reviewing court must
then consider the harshness of the sentence in light of the gravity of the offense. Id.

Solem details how a court should go about th e task of assessing a crime's severity for purposes of applying this first criterion. Of dir ect relevance here, Solem makes clear that drug crimes are serious, even though they do not inherently require proof of any harm having been done to any identifiable victim.

That guidance from Solem matters in this cas e. Section 924(c) sanc tions anyone who "uses or carries, or who, in furthera nce of [a predicate] crime, possesses a firearm," 18 U.S.C. § 924(c)(1)(A), and then defines those predicate cr imes to include a wide variety of federal drug offenses, id. at § 924(c)(2). The predicate drug o ffenses that underlie each of Rivera's § 924(c) convictions are attempting to possess with intent to distribute, and conspiring to possess with intent to distribute, at least five kilograms of a subs tance that contained coca ine (though the drug itself need only have been present in a "detectable" amount). 21 U.S.C. §§ 84l(a)(l), (b)(l)(A)(ii)(II); see Rivera-Ruperto II, 852 F.3d at 10.

Thus, we are undoubtedly dealing with the repeated commission of a serious crime under Solem's reasoning. We are also dealing with a type of crime that is certainly more serious than the crime of uttering a "no account" check that trigge red the sentence that Solem struck down. 463

U.S. at 281.

7 Prior to Solem, the Court had arguably a dopted a much stricter test for determining whether a sentence might run afoul of the Eighth Amendment due to its length alone . In upholding the life sentence with parole in Rummel, the C ourt explained that there were serious concerns about judicial line-drawing presented by challeng es to the proportionality of sentences based on the number of years a defendant had been sentencedto imprisonment for a particular offense. Rummel, 445 U.S. at 275. The Co urt thus expressed the view th at successful proportionality challenges of that type would be "exceedingly ra re," id. at 273, and the di ssent identified as an example the extreme case of a sentence of "[e]ven one day in prison . . . for the 'crime' of having a common cold." Id. at 291 (Powell, J., dissen ting) (quoting Robinson v. California, 370 U.S. 660, 667 (1962)). The Court then relied on Rummel's s eemingly strict test in Hutto v. Davis, 454 U.S. 370 (1982), to summarily reverse a court of a ppeals decision that ha d invalidated on Eighth Amendment grounds a forty-year sentence for posse ssing nine grams of marijuana. Id. at 375. But, as Solem post-dates both Rummel and Hutt o, Solem would set forth the controlling test -- especially in a case involving a proportionality challenge to a mandatory life-without-parole sentence -- absent some intervening precedent, su ch as, as I will explain, Harmelin v. Michigan, 501 U.S. 957 (1991), represents.- 6 - Still, Solem did not describe the repeated commission of the crime of drug dealing (let
alone inchoate versions of that cr ime) as, in and of itsel f, violent conduct, even if the drug involved
were heroin. 8 Nor did Solem describe drug dealing as a crime that was just as serious as many violent offenses undoubtedly are, at least for purp oses of making a threshold assessment of whether a sentence's length is so grossly disproportionate to the underlying offense as to violate the Eighth Amendment. Nor, finally, does Solem suggest that possession of a firearm -- even in furtherance of a drug crime -- is itself a crime of violence.

Indeed, Solem emphasized that the fact that anoffense does not actually require proof that the defendant inflicted any bodily harm against any identifiable victim generally makes that
offense less serious than an offe nse that does. 463 U.S. at 292-93. Thus, while Solem does identify felony murder with no intent to kill as an exampl e of the type of grave offense for which a lifewithout-parole sentence would be constitutional, id. at 291-92 & n.15 (citing Enmund v. Florida, 458 U.S. 782, 795-96 (1982)), it is of some signifi cance under Solem that Rivera's crimes did not require the government to prove that he engaged in conduct that foreseeably resulted in the death of, or bodily injury to, any particular victim.

In offering guidance to judges about how they should evaluate an offense's seriousness under the first criterion, Solem also explicitly distinguished complete d crimes from inchoate ones. 463 U.S. at 293. Solem did so on the ground that th e latter type of offenses do not require proof that any actual harm resulted. Id.

Rivera was convicted of completed crimes in one sense, given that § 924(c) requires proof of firearm possession in furtherance of the predi cate crimes. 18 U.S.C. § 924(c). But, given how § 924(c) works, Rivera's unforgiving life sentence results only from the fact that his firearm possession convictions were connected with drug offenses that were themselves inchoate: attempting to possess with intent to distribute, and conspiring to possess with intent to distribute, at least five kilograms of a substance that cont ained a detectable amount of cocaine. RiveraRuperto I, 846 F.3d at 420. Indeed, Rivera's § 924( c) convictions stem from his involvement with transactions concerning fake ratherthan real drugs. Rivera-Rupert o II, 852 F.3d at 14. That fact explains why, in addition to the predicate co nspiracy convictions, he was charged for and convicted of (as predicate offenses) only attempte d rather than actual po ssession with intent to distribute drugs. And, for that reason, Rivera's conduct, in its nature, could not have actually caused harm to any identifiable person. Thus, th is fact, too, suggests that Rivera's § 924(c) offenses, serious though they are, are not , under Solem, of the most serious kind.

Solem did recognize that the fact that an offende r is a recidivist is also potentially relevant to the analysis of how serious the conduct be ing punished is for Eighth Amendment purposes. Solem, 463 U.S. at 296. But Solem did not equa te recidivism with the mere commission of

8 The Court had no occasion to do so, as none of the defendant's offenses were drug related and the statute at issue in Solem imposed a manda tory life sentence on those convicted of multiple felonies -- including drug-related felonies -- if " one or more of the prior felony convictions was
for a crime of violence." S.D. Codified Laws § 22-7-8; Solem, 463 U.S. at 299 n.26. Moreover,
South Dakota's definition of a "crime of violence" did not include heroin dealing, or, for that matter, any drug offenses. S.D. Codified Laws § 22-1-2(9).- 7 - multiple offenses that then result in multiple convictions. Solem instead equated recidivism with being a "habitual offender." Id.

That understanding of recidivism accords w ith the understanding reli ed on in Rummel. There, the Supreme Court rejected an Eighth Am endment challenge to a life sentence with the possibility of parole that had been imposed for a defendant's conviction for committing a third nonviolent felony. Rummel, 445 U.S. at 265. The de fendant challenging that sentence had already
served his sentences for his convi ctions for committing the earlier two offenses. Id. at 265-66. In upholding the defendant's life-with-parole senten ce, the Supreme Court emphasized the special interest that a state has in imposing such a harsh sentence when the offender has already "demonstrate[d] that conviction and actual imprisonment [does] not deter him from returning to
crime once he is released." Id. at 278.

Rivera, by contrast, was sentence d to a prison term of more than 100 years for the § 924(c)
convictions that he received at a single trial, Rivera-Ruperto II, 852 F.3d at 5, despite the fact that he had no prior criminal history, id. at 33 (Torruella, J., dissenti ng). And his additional sentence for his conviction for the other § 924(c) offense, for which he was tried separately, was imposed for conduct he had engaged in befo re he had served any time for his other § 924(c) offenses or even been charged with them. Id. at 5. As a re sult, his "forever" sentence was not premised, as the life sentence with the possibility of parole inRummel was, on a state's determination that "actual imprisonment [would] prove[] ineffective" in dissuading the defendant from future lawbreaking. Rummel, 445 U.S. at 278 n.17.

But, although Rivera's crimin al conduct is not of the mo st serious kind, his no-hope sentence undoubtedly is. Indeed, his sentence could not have been harsher save for a sentence of death having been imposed. Yet, the Supreme Co urt has made clear that the Constitution does not permit a death sentence to be imposed for offenses that do not result in death. See Coker v. Georgia, 433 U.S. 584, 599 (1977) (reversing on Eighth Amendment grounds a sentence of death for a non-homicide crime).

Nor is the severity of Rivera's sentence solely a function of its length. His sentence is especially unforgiving because the sentencing judge was required to ignore any mitigating circumstances, like Rivera's lack of any criminal history prior to the sting. Rivera-Ruperto I, 846 F.3d at 420. Rivera's sentence in this respect is le ss forgiving than the lif e-without-parole sentence that Solem deemed disproportionate. That sent ence was at least disc retionary and therefore necessarily tailored to the defendant's partic ular circumstances, see Solem, 463 U.S. at 290, including most notably hi s prior criminal history.

So, what are we to conclude from a consid eration of Solem's firs t criterion? Are the offenses that Rivera committed serious enough that the imposition of the most serious of prison
sentences would not be grossly disproportionate?

Notably, Solem recognized the problem with calling upon judges to make this kind of abstract assessment. The range of criminal conduc t that might reasonably be thought to be serious enough to warrant very severe punishment is broa d. But, as one moves from consideration of
crimes that involve core violent conduct to more boundary-pressing cases, judicial judgments about the relative severity of the crim e necessarily risk becoming subjective.- 8 - Solem also appeared to recognize (even if it di d not expressly hold) that this concern about judicial subjectivity is not prop erly addressed by simply requ iring judges to uphold life-withoutparole sentences so long as there is a rational basis to think the sentence is not grossly disproportionate. The cruelty and unusualness of punishment has long been understood to be determined, in part, by "evolving standards of decency," which themselves become knowable in part through a consideration of th e actual penal practices of compar able jurisdictions. See Miller v. Alabama, 567 U.S. 460, 469-70 (2012) ("[W]e vi ew [Eighth Amendment proportionality] less through a historical prism than according to 'the evolving standards of decency that mark the progress of a maturing society.'" (quoting Este lle v. Gamble, 429 U.S. 97, 102 (1976))); see also Gregg v. Georgia, 428 U.S. 153, 175-83 (1976).

It is not surprising, then, that Solem appear s to have proceeded on the understanding that judges need to undertake a real-wor ld comparative inquiry, even if the more abstract threshold inquiry does not in and of itself de monstrate the sentence to be gros sly disproportionate. For, at least in a case involving conduct su ch as is involved here, I read So lem to require courts to move beyond an abstract, threshold assessment of the "g ravity of the offense and the harshness of the penalty," Solem, 463 U.S. at 292, to a more grounded comparative assessment of how comparable crimes are actually treated both by the punishing ju risdiction and by other juri sdictions. And that is because I read Solem to require judges to undertake such a furt her inquiry if the question whether the sentence gives rise to an inference of gross disproportionality -- when viewed abstractly -- is at least fairly debatable.

This more holistic approach accords with the ap proach that is often taken in applying the Eighth Amendment. For, as I have noted, its bounds have long been understood to be drawn, at least in part, by actual legislativ e practices and by the norms of decency that those practices may be understood to reflect. See Graham v. Florida, 560 U.S. 48, 62 (2010). I turn next, then, to an assessment of the proportionality of this mandatory life-without-parole sentence in light of the two comparative criteria that Solem identifies. Those criteria train the focus of the inquiry on "the sentences imposed on other crimin als in the same jurisdiction" and "the sentences imposed for
commission of the same crime in other jurisdictions." Solem, 463 U.S. at 292.

B.

I begin by reviewing the sentences that the federal government imposes for other serious criminal conduct. That review suggests that, however debatable the question might be in the abstract, there is a gross dispropor tionality between the gravity of Ri vera's offenses (serious though they are) and the severity of the puni shment that he received for them.

Under federal law, "an aircraft hijacker . . . , a terrorist who detona tes a bomb in a public place . . . , a racist who attacks a minority with th e intent to kill and inflicts permanent or life threatening injuries . . . , a second-degree murder er, [and] a rapist," Rivera-Ruperto II, 852 F.3d at 31 (Torruella, J., dissenting) (citation omitted), w ould all be subject to less harsh sentences than Rivera. Congress has not manda ted that any of these offende rs receive life-without-parole sentences. In fact, the recommended prison te rms for each of these offenses under the United States Sentencing Guidelines are no more than one-fi fth as long as the one that Rivera received for
his offenses. See id. It is hard to see, though, how Rivera's conduct is five times as serious as that of a terrorist who detonates a bomb in a public build ing, seven times as serious as that of a person- 9 - who inflicts life-threatening injuries on members of a racial minority beca use of their race, or eighteen times as serious as that of a rapist.

Consideration of the federa l government's treatment of seemingly comparable conduct under § 924(c) itself further suggest s that Rivera's sentence is gr ossly disproportionate. Rivera was involved in a series of putative drug transa ctions with, among other people, a group of FBI agents who were merely pretending to be drug tra ffickers. That the only person other than Rivera
who was involved in each of the fake transactions was an FBI agent conduc ting a sting rather than an actual drug trafficker hardly makes Rivera's c ourse of conduct more con cerning than if he had been dealing with the same actua l drug trafficker in each transa ction. Yet, due to a quirk of conspiracy law and the way that it interacts with § 924(c), his i nvolvement in an FBI-engineered sting rather than a true drug tr afficking conspiracy dramatically increased his sentencing exposure under § 924(c).

Specifically, under our precedent, Rivera could not have been charged with participating in a single overarching conspiracy due to the way the FBI staged the sting. We have held that a conspiracy may not be between one individual and a government agen t. United States v. Portela, 167 F.3d 687, 699-700, 700 n.8 (1st Cir. 1999) ("[G] overnment agents do not count as coconspirators." (quoting United Stat es v. Giry, 818 F.2d 120, 125 (1st Cir. 1987)). But, in this sting, the only common participant in each transaction other than Rivera himself was an FBI agent. 9 Thus, due to that quirk, the government could only charge Rivera with participating in the full course of his conspiratorial c onduct by charging him with being a participant in six discrete conspiracies that corre sponded to each of the six fake transactions. 10

The decision to charge Rivera for his c ourse of conduct in that manner was quite consequential. It helped to pave the way for the more-than-century-long mandatory prison sentence that he received under § 924(c). Each of his six § 924(c) convictions was predicated on one of the underlying drug conspiracy convictions that corresponded to Rive ra's participation in one of the six fake drug transa ctions that the FBI staged. 11

Notably, though, if Rivera had participated in the same type of extended conspiracy with a real drug trafficker standing in the stead of th e FBI agent who was present for each of the six

9 To be precise, while two of Rivera's co-defe ndants participated in two transactions with Rivera, no defendant, other than Rive ra himself, was present at all six transactions in which Rivera participated.

10 Rivera was not the only defenda nt caught up in this FBI sting to have been exposed to a much longer sentence due to how this quirk of conspiracy law in teracts with § 924(c). See e.g., United States v. Diaz-Castro, 752 F. 3d 101, 107 (1st Cir. 2014); Unit ed States v. Gonzalez-Perez, 778 F.3d 3, 10 (1st Cir. 2015).

11 I note that, not long after Rivera was arra igned, the government made him a plea offer of fourteen years' imprisonment for all of his charged offenses. After negotiations, the government then agreed to reduce the offer to twelve years. Rivera rejected that o ffer, however, and proposed a counteroffer of eight years instead, which the government declined to accept. Later, the government renewed its twelve-year offer, but Rivera again reject ed it. Rivera-Ruperto II, 852 F.3d at 6. The government then gave Rivera one fi nal offer of eighteen years' imprisonment, which he rejected. Id. at 7.- 10 - transactions, and if Rivera had then been char ged with participating in a single, extended conspiracy for his course of c onduct, he could have been senten ced under § 924(c) to a prison term of only five years for possessing a fi rearm in furtherance of that conspiracy. And that is because a single conspiracy conviction may not serve as the predicate for multiple § 924(c) convictions, United States v. Rodriguez, 525 F.3d 85, 111 (1st Cir. 2008) (holding thatthe Double Jeopardy Clause bars multiple § 924(c) offenses predicat ed on the defendant's conviction for participation in a single conspiracy), no matter how large or extended that pr edicate conspiracy happens to be. 12

In this way, then, § 924(c) itself appears to tr eat the very same cour se of conspiratorial conduct in which Rivera engaged far more leni ently depending on how that course of conduct happens to be charged. After all, Rivera receive d a mandatory sentence that is more than twentyfive times greater than the defendant in Rodrigu ez received. And Rivera r eceived that sentence, even though, just like the defendant in Rodriguez, Rivera was found to have committed multiple acts of gun possession in the course of committing a predicate offens e and even though these acts were as a functional matter part and parcel of a single -- somewhat extended -- criminal conspiracy. Compare Rivera-Ruperto II, 852 F.3d at 4-5, with Rodriguez, 525 F.3d at 93.

To be sure, in addition to his conspiracy c onvictions, Rivera was al so convicted of six counts of attempted drug possession with intent to distribute, and those convictions independently served as predicates for his § 924(c) convictions. But the c onduct underlying those predicate attempt convictions was itself partand parcel of the conduct that could have supported charging Rivera with participating in one extended conspi racy, had an FBI agent not been the only other party to the whole of it. And it is hard to see how those predicate convictions for attempted possession with intent to distribute a substance containing a detectable am ount of cocaine in and
of themselves show that Rivera's course of c onduct was more than twenty-five times worse than that of a § 924(c) offender who, while conspiring with actual drug traffickers in a similarly extended conspiracy to possess coca ine with the intent to distribut e, served as an armed lookout for each drug transaction but (unlike Rivera) never had "the power and intent to exercise control over" the cocaine. Henderson v. United States, 135 S. Ct. 1780, 1784; see United States v. Sliwo, 620 F.3d 630, 638 (6th Cir. 2010) (" The government only showed that Defendant was involved in a scheme, and the evidence of his participating in transporting the empty van and serving as a lookout would not allow a rational jury to find be yond a reasonable doubt th at Defendant conspired to possess with intent to distribute marijuan a."); United States v. Penagos, 823 F.2d 346, 351 (9th Cir. 1987) ("Even if defendant acted as security and lookout . . . these actions do not indicate that he had dominion or control over cocaine."). 13 Yet, under Rodriguez, that latter offender at most

12 The large majority of circu its apply this same rule. Rodriguez, 525 F.3d at 111; United States v. Lindsay, 985 F.2d 666, 674 (2d Cir. 1993); United States v. Diaz, 592 F.3d 467, 471-75 (3d Cir. 2010); United Stat es v. Baptiste, 309 F.3d 274, 279 (5th Cir. 2002); United States v. Taylor, 13 F.3d 986, 994 (6th Cir. 1994); United States v. Cappas, 29 F.3d 1187, 1191 (7th Cir. 1994); United States v. Fontanilla, 849 F.2d 1257, 1258–59 (9th Cir. 1988); United States v. Moore, 958 F.2d 310, 312 (10th Cir. 1992); Unit ed States v. Hamilton, 953 F.2d 1344, 1346 (11th Cir. 1992); United States v. Anderson, 59 F.3d 1323, 1327 (D.C. Cir. 1995) (en banc); but see United States v. Camps, 32 F.3d 102, 108–09 (4th Ci r. 1994); United States v. Lucas, 932 F.2d 1210, 1223 (8th Cir. 1991).

13 In Rivera's case, an FBI agent handed him the bag that held the sham cocaine for him to weigh, thus ensuring that "[i]n ev ery transaction . . . he held th e [sham cocaine] in his hands."- 11 - could be sentenced to a prison te rm of five years under § 924(c) -- rather than the 130-year prison
term that Rivera received -- if the prosecutor chose to treat that offender's course of conduct as evidencing his participation in one overarching conspiracy rather many discrete conspiracies. Rodriguez, 525 F.3d at 85.

This assessment of Rivera's mandatory sentence relative to the way that the federal government treats seemingly worse or at least co mparable conduct does little to allay the concerns about disproportionality -- however debatable those concerns may be in the abstract -- that a consideration of the first Solem criterion raised. This comparison in turn raises the concern that the congressional choice to mandate this level of punishment for an offender like Rivera may not have been a carefully co nsidered one. And that fact necessarily dimini shes (even though it does not negate) the legislative claim to deference th at informs the whole of the Solem framework. Solem, 463 U.S. at 3009 ("Reviewing courts, of cour se, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.").

C.

The final Solem criterion requires a comparis on of this sentence with "the sentences imposed for commission of the same crime in other jurisdictions." So lem, 463 U.S. at 292. A
consideration of this cr iterion would also appear to point in favor of Rivera's challenge.

As the government did not address this pr ong of the Solem inquiry, the government does not address whether there is any state that would impose for comparable conduct the same draconian punishment that § 924(c) required the District Court to im pose in this case. But, my
own unaided review accords with Rivera's contenti on that this sentence is an outlier compared to the sentencing practices elsewhere in the United St ates. That review indi cates that virtually all "drug and weapons crimes amenable to federal mandatory minimums are actually prosecuted in state courts pursuant to state laws carrying much lower sentences." Erik Luna and Paul Cassell, Mandatory Minimalism, 32 Cardozo L. Rev. 1, 16 (2010); see also Rivera-Ruperto II, 852 F.3d at 19 (Torruella, J., dissenting). 14

14 The only present exceptions of which I am aw are appear to be Alabama, see Ala. Code § 13A-12-231(2)(d) (a person convi cted of possession of over ten kilograms of controlled substance shall be imprisoned for life without paro le); see also Alabama Bd. of Pardons & Paroles v. Smith, 25 So. 3d 1198, 1201 (Ala. Crim. App. 2009) (applying Alabama statute to conspiracy convictions), and Mississippi, se e Miss. Code. Ann. § 41-29-139(f) (imposing a punishment of ten to forty years without parole on drug trafficking offenses); Arnold v. State, 225 So. 3d 561, 564 (Miss. Ct. App. 2017) (applying Mississippi statute to conspiracy convictions); McDonald v. State, 921 So. 2d 353, 356 (Miss. Ct. App. 2005) (permitti ng "stacking" of sent ences under Mississippi law). Most states that impose mandatory life sent ences without the possibility of parole do so only for those convicted of violent crimes, or for true recidivists. See Rummel, 445 U.S. at 278 & n.17; American Civil Liberties Union, A Living Death: Life without Parole for Nonviolent Offenses 98 (2013). In fact, even Michigan, which passed the law mandating a life sentence for drug possession offenses that was affirmed by the United States Supreme Court in Harmelin, see 501 U.S. at 1007- 08 (opinion of Kennedy, J.), no longer has such a law. The year after the Suprem e Court decided Harmelin, the Michigan Supreme Court struck down the very sentencing pr ovision that Harmelin- 12 - In addition, it appears that no country subject to the jurisd iction of European Court of Human Rights (ECtHR) may impose this sentence for any offense, let alone for an offense that is not of the most serious kind. Cf. Graham, 56 0 U.S. at 80 ("The Court has looked beyond our Nation's borders for support for its independent c onclusion that a particular punishment is cruel and unusual."). The ECtHR has held that the nations subject to its ju risdiction must en sure that all sentences (even for serial murderers and terroris ts) respect a right to hope under Article 3 of the European Convention on Human Rights. Hutc hinson v. United Kingdom, (No. 57592/08) Eur. Ct. H.R. ¶ 20 (Feb. 3, 2015), http://hudoc.echr.coe. int/eng?i=001-150778; Vinter & Others v. United Kingdom, 2013-III Eur. Ct. H.R. 317, 349-50. 15

In accord with that right, the ECtHR ruled that all people facing "whole life" sentences
must be afforded a "review which allows the domes tic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds." Hutchinson, Eur. Ct. H.R. ¶ 20(a). The court declined to "prescribe the form -- execu tive or judicial -- whic h that review should take , or to determine when that review should take place." Id. ¶ 20(b). Bu t, the court emphasized that "comparative and international law materials provide clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five y ears after the imposition of a life sentence, with further periodic reviews thereafter[. ]" Id. And the court added th at "[a] whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought[.]" Id. ¶ 20(d). Thus, th e court explained that, "where domestic law does not provide any mechanism or possibility for review of a whole life sentence," the unlawf ulness of the sentence
under Article 3 of the Convention "arises at the moment of the impos ition of the whol e life sentence and not at the later stag e of incarceration." Id.

Accordingly, consideration of the last two Solem criteria reinforces the concern about whether Rivera's sentence is gros sly disproportionate that considera tion of the first Solem criterion
raises. The consideration of these last two criteria reveals that Rivera's severe sentence is most unusual when compared to the sentences that have been imposed for crimes that would seem to be
no less serious. And that is so whether one looks to th e sentencing practices of other jurisdictions

had upheld as unconstitutional und er the Michigan Constitution' s Eighth Amendment analog. People v. Bullock, 485 N.W.2d 866, 877 (Mich. 1992 ). The Supreme Court of Michigan concluded "largely for the reasons stated by Jus tice White in his dissen ting opinion in Harmelin that the penalty at issue here is so grossly disproportionate as to be 'cruel or unusual.'" Id. at 875- 76 (quoting Mich. Const. Art. I § 16).

15 Article 3 of the European Convention on Huma n Rights states: "No one shall be subject
to torture or to inhuman or de grading treatment or punishment." We note that, even prior to Vinter's ruling regarding Article 3, nine nations within the jurisdiction of the ECtHR allowed no life sentences at all. Vinter, 201 3-III Eur. Ct. H.R. at 338. Of those that did, the majority had mandatory mechanisms to review such sentences after a fixed number of ye ars, and only five had any provision at all for life sentences without the possibility of release. Id. We note, too, that
Hutchinson and Vinter addressed sentences in the context of de fendants who had been convicted
of the most serious of crimes : murder. Id. at 327, 328, 329; Hutchinson, Eur. Ct. H.R. ¶ 6.- 13 - or even to the sentencing practices of the fe deral government itself, which appears to punish conduct that is quite similar, and even seemingly worse, far less severely.

D.

In the end, the question whether Rivera's se ntence is constitutional under Solem is not without some difficulty. His crimes are more serious than the minor one that triggered the sentence that Solem struck down. But, Rivera received th e harshest of prison se ntences for crimes that Solem does not treat as being of the most seriou s kind. Moreover, comparative analyses reveal
that his sentence is an outlier. I thus conclude that, if Solem were the last word, then Rivera's sentence would be grossly disproportionate. Under the Eighth Amendment, therefore, Rivera would be entitled to have his mandatory life -without-parole sentence vacated and his case remanded for resentencing. 16

II.

Solem, however, is not the lastword. I thus must addres s the post-Solem Supreme Court precedent that addresses the constitutionality of imposing mandatory life-w ithout-parole sentences under the Eighth Amendment for drug offens es. And that precedent is Harmelin. 17

There, a defendant brought an Eighth Ame ndment proportionality challenge to his mandatory life-without-parole sentence under Mi chigan law for the possession of what the Supreme Court described as 672.5 grams of cocaine. Harmelin, 501 U.S. at 1008 (opinion of Kennedy, J.). Notwithstanding Solem, the Suprem e Court upheld that sentence. Id. at 996 (opinion of Kennedy, J.).

16 I acknowledge that crafting a remedy in this case would not be without difficulty. Rivera's more-than-a-century- long sentence was imposed pursuant to § 924(c)'s consecutive sentences requirement, which ra ises challenges about how it could be rendered constitutional without producing arbitrary results . And these challenges are aggr avated by the fact that Rivera was sentenced at one trial based on five of the § 924(c) convictions (when he was thirty-nine years old) and sentenced at a separate trial for the sixth conviction. Nevertheless, as Justice White's dissent in Harmelin made clear, post-Solem, in the rare cases in which a sentence violates the Eighth Amendment due to its length, courts can vacate the sentence and remand for resentencing as a remedy. See Harmelin, 501 U.S. at 1016 n.2 (W hite, J., dissenting); see also Miller, 567 U.S. at 489 (reversing and remanding for further pr oceedings a sentence found unconstitutional); Graham, 560 U.S. at 82 (same). In Bullock, mo reover, in which the Supr eme Court of Michigan struck down under the Michigan Constitution the ma ndatory life-without-parole sentence that was at issue in Harmelin, the remedy was simply to re move the prohibition against parole eligibility. Bullock, 485 N.W.2d at 877-78. And, of course, th e problem of crafting a remedy arises in any case in which mandatory consecutive sentencing resu lts in a disproportionate sentence relative to the underlying crime, yet both Solem and Harmelin appear to contemplate that a remedy may be
needed for consecutive sentences if the resulting di sproportionality is severe enough. See Harmelin, 501 U.S. at 1001 (opinion of Kennedy, J.); Solem, 463 U.S. at 297.

17 Other post-Solem Supreme Court cases do addr ess the proportionality of life sentences. However, only Harmelin has ever upheld the mandatory imposition of such a sentence for a comparable crime where there was no possibility of parole.- 14 - Harmelin did not produce a majority opini on. Rather, a fractur ed Court yielded a controlling opinion that took the form of a three-Ju stice concurrence. Id.; see Graham, 560 U.S. at 59-60 (determining that Justi ce Kennedy's opinion in Harmelin is controlling). But that concurrence is still in my view dispositive in th is case and in a manner that disfavors Rivera's challenge. 18

A.

The first way in which the Harmelin concurre nce adversely affects Rivera's proportionality challenge has to do with the conc urrence's treatment of the second and third Solem criteria. The
concurrence makes clear that c onsideration of these two criter ia -- which require real-world comparative analyses -- are "appr opriate 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." 19 Harmelin, 501 U.S. at 1005 (opinion of Kennedy, J.). The concurrence furthe r indicates that there need only be a "rational ba sis" for a legislature's conclusion that an offens e is as serious as one that, like felony murder, may constitutionally merit a life-without-par ole sentence in order for the threshold Solem inquiry to require the conclusion that no such infere nce is warranted and thus that the sentence must be upheld. Id. at 1004.

I agree that a sentence's outlier status does not in and of itself demons trate that a sentence is so grossly disproportionate as to be unconstitutional. But, as the discussion above demonstrates, there are consequences if judges are too quickly barred from gaining insight into whether a sentence is grossly disproportiona te through a comparative analysis of other relevant sentencing practices. Those consequences are likely to be es pecially significant, moreover, in cases in which the offense is, per Solem, not of the mo st serious kind, but the prison sentence is.

In fact, all four dissenting Justices in Harm elin challenged the concurrence on this point. Id. at 1018-19 (White, J., dissenting) ; id. at 1027 (Marshall, J., di ssenting); id. at 1028 (Stevens, J., dissenting). The dissenters explained that a virtue of the second and third criteria is that they help to inform the analysis of the first criterion. Id. at 1020-21 (White, J., dissenting). Under the Harmelin concurrence's approach, the dissenter s worried, courts addressing the first Solem

18 A majority of the Supreme Court has not in any clear way embraced the reasoning of the Harmelin concurrence. Certainly Graham ha d no occasion to do so. Graham invalidated the life-without-parole sentence im posed on a juvenile under a sp ecial variant of the Eighth Amendment's proportionality test th at applies when a sentencing prac tice, rather th an a sentence in a particular case, is being challenged as disproportionate in all cases. 560 U.S. at 90-91. Similarly, Ewing upheld a mandato ry twenty-five-years-to-life sentence under California's three
strikes law. 538 U.S. at 20. Ew ing explained that the concurre nce in Harmelin "guide[s] our application of the Eighth Amendmen t in the new context that we are called upon to consider." Id. at 23-24. Notably, however, Ewing did not hold that the Court was adop ting the concurrence's approach. Id.

19 The Harmelin concurrence read Rummel as helpful to its position. Harmelin, 501 U.S. at 1005 (opinion of Kennedy, J.). Rummel noted that interjur isdictional an alyses raise "complexities" and do not, alone, suffice to demonstr ate that a sentence is disproportionate, given that "some State will always bear the distinction of treating particular offenders more severely than any other State." Rummel, 445 U.S. at 282.- 15 - criterion would have "no basis for [a] determination that a se ntence was -- or was not -- disproportionate, other than the 's ubjective views of individual [judges] ,' which is the very sort of analysis our Eighth Amendment jurisprudence ha s shunned." Id. at 1020 (quoting Coker, 433 U.S. at 592).

The dissenters also expressed the concern that the concurrence's approach to the first criterion -- by making it so difficult to make a showing that would justif y undertaking a real-world comparative analysis -- threatened to rende r any objective Eighth Amendment proportionality analysis "futile." Id. at 1020. Justice White even went so far as to contend that the concurrence's gloss on the first criterion was inconsistent w ith Solem because it reduced Solem to "an empty
shell." Id. at 1018.

Nevertheless, the dissenters did not prevail. I thus must, lik e the panel, Rivera-Ruperto II, 852 F.3d at 18, make the kind of critical threshold determination that the Harmelin concurrence requires. And that means that I must decide whether the severity of Rive ra's § 924(c) sentence is so grossly disproportionate to the gravity of his underlying § 924(c) offenses that, as an abstract matter, it would not be rational for a legislature to conclude that such a sentence is at least as permissible as the same sentence would be for th e offense of felony murder without the intent to kill. For, under the Harmelin concurrence, I am permitted to assess, in real-world terms, whether
Rivera's sentence is an outlier -- and then to inco rporate a determination that it is into the overall assessment of the sentence's proportionality -- only after first finding that this threshold Solem inquiry favors Rivera.

B.

The second way in which the Harmelin conc urrence adversely affects Rivera's Eighth Amendment challenge concerns the way in whic h the Harmelin concurrence actually performed Solem's threshold inquiry with respect to the crim inal conduct at issue in that case. Specifically, the concurrence determined that the drug possessi on crime in that case was of a sufficiently "serious nature" that no inference of gross di sproportionality was warranted by the imposition of a mandatory life-without-parole sentence. Harm elin, 501 U.S. at 1004 (opinion of Kennedy, J.). Accordingly, the concurrence c oncluded, the judicial inquiry into the sentence's proportionality
need not reach the second or third Solem criteria. Id.

In making this critical judgment, the concur rence reasoned that the "[p]ossession, use, and distribution of illegal drugs represents 'one of the greatest problems affecting the health and welfare of our population.'" I d. at 1002 (quoting Treasury Em ps. v. Von Raab, 489 U.S. 656, 668 (1989)). For that reason, the concurrence explained, Harmelin's crime "falls in a different category from the relatively minor, nonviolent crime at issue in Solem." Id.

The concurrence stressed in this regard that the suggestion that the "crime was nonviolent and victimless . . . is false to the point of absu rdity." Id. The concurrence emphasized that 650 grams of cocaine contained "between 32,500 and 65,000 doses." Id.

The concurrence further explai ned that the fact that the offense involved drug possession was important because "quite apart from the pe rnicious effects on the individual who consumes illegal drugs, such drugs relate to crime[.]" Id. For example, the concurrence reasoned, drug users- 16 - may themselves commit crimes because of the effect of drugs on their cognitive state or to "obtain money to buy more drugs." Id. In addition, "a vi olent crime may occur as part of the drug business or culture." Id. Thus, the c oncurrence concluded, there was a ba sis for finding "a direct nexus between illegal drugs and crimes of violence." Id. at 1003. 20

The concurrence then concluded, without the be nefit of any comparative inquiry into the practices of other jurisdictions, th at whether or not Michigan's pena lty scheme was "correct or the most just in the abstract sense," the Michigan legislature "could with re ason conclude that the threat posed to the individual a nd society by possession of this la rge an amount of cocaine -- in terms of violence, crime, a nd social displacement -- is momentous enough to warrant the
deterrence and retrib ution of a life sentence without parole." Id. at 1003 (emphasis added). The Harmelin concurrence justified this conclusion by explaining that "a rational basis exists for Michigan to conclude that peti tioner's crime is as serious and violent as felony murder without specific intent to kill," which, the concurrence noted, is a crime that Solem had stated was one "for which 'no sentence of imprisonment would be disp roportionate.'" Id. at 1004 (quoting Solem, 463 U.S. at 290 n.15) (emphasis added). Thus, the Harm elin concurrence held th at, "[i]n light of the gravity of petitioner's offense, a co mparison of his crime with his se ntence does not give rise to an inference of gross disproportionality, and comparative analysis of his sentence with others in Michigan and across the Nation neednot be performed." Id. at 1005.

This reasoning, in my view, is dispositive here. Rivera's convictions are not for offenses
that are identical to Harmelin's . Indeed, he was not convicted of actually possess ing any drugs. Still, I do not see how a lower c ourt may say that the Michigan le gislature had reason to conclude that a conviction for possession of a large quantity of cocaine a nd no guns warranted a mandatory life-without-parole sentence, but that Congress could not have ha d a rational basis for concluding that such a sentence was warranted for multiple convictions for possession of a firearm in furtherance of conspiring or attempting to posse ss with intent to distribute a "detectable amount" of cocaine packaged in five-kilogram-sized s ubstances. See 21 U.S.C. § 841(b)(1)(A)(ii)(I). Accordingly, I agree with the panel that, no matter how much of an outlier Rivera's sentence may be, we must affirm this sentence in light of Harmelin, and we must do so at the threshold of the Solem inquiry. See Rivera-Ruperto II, 852 F.3d at 18; cf. Hutto, 454 U.S. at 374-75 ("By affirming the District Court decision [deeming a sentence to be a violation of the Eighth Amendment] after

20 Harmelin noted that in Solem the Court c ontrasted the "minor" offenses for which the defendant had been convicted with "very serious o ffenses," such as "a third offense of heroin dealing," and stated that "[n]o one suggests that [a statute providing for life imprisonment without parole] may not be applied constitutionally to fourth-time heroin dealers or other violent criminals." Harmelin, 501 U.S. at 1002 (quoting Solem, 463 U.S. at 299 & n.26). But, as I read this passage, Solem was not holding that a mandato ry life-without-parole sentence for such a crime would be proportionate, whether or not the defendant was a true recidivist, as Solem was simply explaining that no argument had be en made on that point. Solem, 463 U.S. at 299 n.26. Nor was Solem, in referencing "other violent criminals," id., impliedly indicating that heroin dealers are themselves properly considered "violent" under Sole m's rubric. In referring to "other violent criminals," Solem appears to have been merely describing how the sentenci ng regime at issue in Solem operated, as under that regime a defendant had to have engaged in some violent conduct that led to a previous conviction, in addition to having been convicted of a fourth felony offense,
even if that fourth offense was a nonviolen t one. See S.D. Codified Laws § 22-7-8.- 17 - our decision in Rummel, the Court of Appeals sa nctioned an intrusion into the basic line-drawing process that is properly within th e province of legislatures, not courts . . . . [and] ignored . . . the hierarchy of the federal court system creat ed by the Constitution a nd Congress." (citation omitted)). 21

III.

Although I am convinced that the Harmelin c oncurrence controls the outcome here, and that it does so by limiting our inquiry to a consider ation of only Solem's firs t criterion, I am also
convinced that the Court should revi sit the logic of the Harmelin conc urrence, at least insofar as it applies to mandatory greater-than -life-without-parole sentences under § 924(c) in cases involving predicate drug offenses. 22 That is so for three reasons.

A.

First, given the range of possible ways that a defendant may commit multiple § 924(c) offenses, it is not realistic to pos it that the Congress that enacte d § 924(c) made a focused judgment
that defendants like Rivera should receive a manda tory life-without-parole sentence for their drugrelated criminal conduct. There was, by contrast, far more reason to believe in Harmelin that the legislature had made a focused penal judgment to mandate a life-without-p arole sentence for the particular criminal conduct in whic h the defendant there had engaged.

21 I note that I read the Harmelin concurrence to equate its conclusion that Michigan had a rational basis for deciding the defendant's drug-rela ted conduct was as serious as the offense of felony murder with no intent to kill with its ultimate conclusion that the sentence that Michigan imposed for that conduct does not ev en give rise to an inference th at such a sentence was grossly disproportionate. See Harmelin, 501 U.S. at 100 5 (Kennedy, J., concurring). The concurrence's equation of those two conclusions compels, in my view, the conclusion, as a matter of precedent, that no such inference can be drawn as to this sentence either and thus that a comparative inquiry under Solem's second and third criteria is prohibited here just as the Harmelin concurrence concluded that it was prohibited there. Nevertheless, it is not clear to me that it is warranted as a general matter to equate the c onclusion that there is a rationa l basis to deem a sentence proportionate with the conclusion th at the sentence does not even give rise to an inference that it is disproportionate. After all, in challenges to the sufficiency of the evidence, courts routinely determine that the challenge ultim ately fails because a jury could rationally find the evidence to have been sufficient to prove the defendant guilty beyond a reasonable doubt, even though a rational jury could also have drawn a reasonabl e inference from the evidence that would have resulted in an acquittal. See Musacchi o v. United States, 136 S. Ct. 709, 715 (2016).

22 The Court's post-Harmelin affirmances in Ewing and Lockyer of mandatory twenty-fiveyear-to-life sentences with the pos sibility of parole under Californi a's three strikes law offer little guidance here. Unlike in Ewing orLockyer, we are dealing in this case with an offender with no prior criminal history. Ewing, 538 U.S. at 20; cf. Lockyer, 538 U.S. at 66. Additionally, the defendants in both Ewing and Lockyer retained the right to parole, and thus did not face sentences of equal severity to the one imposed here or in Harmelin. Ewing, 538 U.S. at 16; Lockyer, 538 U.S. at 74. Thus, in my view, Harmelin alone is our guide here.- 18 - Accordingly, the Harmelin concurrence's co ncern that "set[ting] aside [Harmelin's] mandatory sentence would require re jection not of the judgment of a si ngle jurist . . . but rather the collective wisdom of the . . . Legislature and, as a consequence, the . . . citizenry," Harmelin, 501 U.S. at 1006 (opinion of Kennedy, J.), is in my vi ew less salient here. And, for that reason, it is less clear to me that simply because it might be rational for a legislature to think that Rivera's conduct warranted punishment as seve re as the punishment that Harm elin received, a court should not proceed to assess how much of an outlier such a sentence is before determining whether that sentence violates the Eighth Amendment.

As the Harmelin concurrence noted, the life- without-parole sentence in that case was mandated pursuant to a carefully calibrated and gr aduated penalty scheme in which the Michigan legislature specially singled out only a subset of precisely defi ned large-quantity drug possession crimes for such harsh punishment. Michigan's penalty scheme, the concurrence explained, "is not an ancient one revived in a sudden or surprising way; it is, rather, a re cent enactment calibrated with care, clarity, and much deliberation to addre ss a most serious contempor ary social problem." Id. at 1007-08 (emphasis added). Thus, although th e concurrence did acknowledge that it was not untroubled by the result, or certa in "that Michigan's bold expe riment [would] succeed," the
concurrence concluded thatit could not "say the law before us has no chance of su ccess and is on that account so disproporti onate as to be cruel and unus ual punishment." Id. at 1008. 23

Perhaps, in the face of the exercise of such le gislative care to address a new social problem in a new way, there is a case to be made for according the kind of deference to the penal judgment
at issue in Harmelin that the concurrence in Harm elin thought proper. And thus, perhaps, in such a circumstance, there is less need to check the judicial intuition about th e proportionality of a mandatory life-without-parole sent ence for a large-quantity drug possession offense against actual legislative practice than the dissente rs in Harmelin thought there was.

But even if, in light of the legislative care taken in Michigan, the sentence at issue in Harmelin warranted such deferential review, uni nfluenced by real-world sentencing practices, I cannot see what the case would be for applying the sa me limited form of review here. In contrast to the focused sentencing scheme considered in Harmelin, which targeted only carefully specified large-quantity drug possession crimes, § 924(c) crim inalizes much conduct that -- given that statute's famously ambiguous scope -- is in its nature not similarly precisely knowable to legislators. 24

23 I note that Ewing also emphasized the focuse d and deliberative nature of the judgment that the California legislature had made in impos ing the severe sentence re quired under that regime for recidivist offenders, by determining that "indi viduals who have repeatedly engaged in serious or violent criminal behavior, and whose conduc t has not been deterre d by more conventional approaches to punishment, must be isolated from society in order to protect the public safety." Ewing, 538 U.S. at 24.

24 There is a large body of case law interpreting the uncertainties inherent in § 924(c). For example, even as it relates solely to drug crimes , courts of appeals have grappled with what constitutes a "drug trafficking crime," see Cazarez-Gutierrez v. Ashc roft, 382 F.3d 905, 910-16 (9th Cir. 2004), what counts as "in furtherance of" a crime, United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002), and what conduct constitu tes "possess[ing] a firearm," United States v. Sparrow, 371 F.3d 851, 852-53 (3d Cir. 2004), as amended (Aug. 3, 2004).- 19 - Moreover, § 924(c) imposes a sentence as hars h as the one that Rivera received only because the statute requires the stacking of variou s individual § 924(c) sentences. As explained above, under § 924(c), a first convic tion leads to a mandatory sent ence of five years, and each "second or subsequent conviction" mandates an add itional twenty-five year prison term that must be served consecutively. 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(C)(i).

In consequence, life-without-parole senten ces may be required under § 924(c) for an astoundingly wide array of possi ble offense combinations, includ ing mixes potentially of both
state and federal offenses and various combinati ons of predicate drug o ffenses, whether or not paired with "crime[s] of violence. " See id. § 924(c)(1)(A ). For this reason, t oo, it is pure fiction to imagine that Congress, in requiring a sentence of imprisonment for more than 100 years with no chance of parole, was focused on the type of drug-related conduct at issu e in this case in the way that the Harmelin concurrence understood the Michigan legislature to have been focused on the much more precisely defined type of drug-rela ted conduct singled out for harsh punishment in
that case.

Nor is there anything in § 924(c) 's legislative history to indi cate that Congre ss, in enacting § 924(c), gave the kind of focused consideration to potential sentencing impli cations in a case of this sort that the concurrence in Harmelin plai nly thought that the Michig an legislature had given to the type of case presented there. Section 924( c) in its original form -- before the statute was amended to add "drug trafficking crime[s]" as predicate offenses -- was introduced as a floor amendment. Simpson v. United States, 435 U. S. 6, 13 (1978); 114 Cong. Rec. 22231 (1968). No mention was made in the ensuing floor "debate" of the feature of this statute that results in the imposition of mandatory life-without -parole sentences for conduct at all like Rivera's -- namely, the "second or subsequent" prov ision at issue here. 114 Cong. Rec. 22231 (1968). Nor was any
mention made of the draconian results that could follow from the "stacking" of § 924(c) sentences, let alone of the Eighth Amendment implications of doing so when multiple § 924(c) convictions are handed down at a single trial or across a pair of trials and thus before the defendant has served time for any of them and demonstrated that punis hment will not deter him from future criminal
conduct. 25

25 In a post-Harmelin case in which the Cour t has addressed the pr oportionality of a life sentence, albeit one with the possibility of parole, the Court again emphasized that state legislatures have "broad discretion" over sentence le ngth. Lockyer, 538 U.S. at 76. But, that case reached the Court on habeas corpus review, and thus the Court did not address the merits of
whether the sentence would violate the Eighth Amendment if reviewed on direct appeal. Id. at 71, 76. As a result, Lockyer did not have occasion to engage directly with Justice Souter's conclusion
in his dissent that the sentence under California's "three strikes" law was " on all fours" with Solem and was therefore unconstitutionally disproportiona te. Id. at 82 (Souter, J., dissenting). The
dissent reasoned that when sentences based on related courses of conduct are "stacked," the incapacitation rationale for such lengthy sentences falls away, because a defendant in such a case
does "not somehow become twice as dangerous to society when he [commits the second crime]; his dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such fe lony does not disclose greater danger warranting substantially longer incapacitation." Id. Such sentence s, the dissent urged, may well be grossly disproportionate. Id. And the one at issue in Lockyer, the dissent determined, was in fact disproportionate. Id. at 83.- 20 - The concern that Congress did not give focused consideration is not allayed by the text of § 924(c). Its use of the curious "second or subsequent" phrase hardly reveals that Congress must
have foreseen a result such as this one in ame nding the statute to encompass defendants who were involved not in committing "crimes of violence" butonly in inchoate drug offenses. Anti-Drug Abuse Act of 1986, Pub. L. No. 99–570, 100 Stat. 3207 (cod ified at 21 U.S.C. § 801). In fact, for more than a decade after that amendment, due to th e oddness of that statute's original text ("second or subsequent"), it was a matter of great uncertain ty in the lower courts as to whether § 924(c) even allowed the stacking of sentences when multiple convictions were handed down at one trial. See, e.g., United States v. Deal, 954 F.2d 262, 263 (5 th Cir. 1992) (citing cases), aff'd, 508 U.S. 129 (1993).

The Supreme Court in Deal did finally reject th e view of some lower courts -- and the four dissenters in that case, 508 U.S. at 137 (Stevens, J., dissenting) -- that Congress in tended only to impose such harsh sentences on true recidivists, such that a "defendant who commits a second § 924(c) offense before trial on the first would not be eligible for sentence enhancement[.]" Id. at 145 (Stevens, J., dissenting). But, Deal hardly reveals that Congress must have had in mind the notion that greater-than-life sentences would be mandatorily imposed for offenses committed in circumstances remotely like those involved here. Deal's only functional explanation for why it
would make sense to read the "s econd or subsequent" language to encompass even an offender who is charged cumulatively for seemingly-related c onduct, rather than only a true recidivist, took the form of the example of an offender who, through stealth, manages to evade detection in repeatedly committing unrelated cr imes of violence -- namely, bank robberies. Id. at 137. And there is nothing to indicate that Congress has s ubsequently ratified thatpreviously sharplycontested conclusion about what "second or subsequent" means in a ny way that would suggest that Congress did so while focused on the type of conduct that is at issue here, given that Rivera's acts were part and parcel of a si ngle, albeit extended, course of conspiratorial conduct.

Moreover, unlike the scheme at issue in Harmelin, § 924(c) subjects offenders to mandatory life-without-parole sentences even for predicate drug offenses that -- like ones for conspiracy -- are inchoate. Prosec utorial decisions about whether to tr eat a series of events as part of one conspiracy or as multiple discrete offenses, however, can lead to wildly different sentencing outcomes under § 924(c), even though comparable conduct has occurred and is being punished. Cf. Deal, 508 U.S. at 134 n.2 (emphasizing the dis tinction between a pros ecutor's "universally available and unavoidable power to charge or not to charge an offense" and the possibility of an "extraordinary new power to determine the punish ment for a charged offense by simply modifying the manner of charging.").

Thus, this sentencing regime is very different from the one at issue in Harmelin, in which the state legislature "mandated the penalty" for a di screte drug possession cr ime. 501 U.S. at 1006 (opinion of Kennedy, J.). Here, there is a real possibility that, in upholdi ng a more-than-centurylong sentence based on multiple related § 924(c) offenses, we uphold not so much a legislative determination to punish the relevant conduct this severely as a prosecu torial one to divvy that same conduct up into a series of discrete charges that, if proved, will requ ire the stacking of a series of stiff sentences that cumulatively will exceed 100 years. 26

26 As discussed above, see infra at 9-10, part of the reason Rivera was exposed to this
"forever" sentence is that , due to a quirk of his case, his course of cons piratorial conduct could- 21 - I am troubled that the "forever" sentence that results from such char ges must be upheld on the basis of only the abstract and highly deferentia l threshold inquiry that Harmelin limits us to undertaking. And yet, under that constricted inquiry, judges have no choice but to approve mandatory "forever" sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal c onduct was as serious as the largequantity drug possession at issue in Harmelin.

Simply put, it is one thing to uphold such a sentence for the drug-related conduct at issue
here on the basis of a limited and abstract th reshold inquiry when that sentence has been legislatively "calibrated with care, clarity, and much delibera tion to address a most serious contemporary social problem." Harmelin, 501 U.S. at 1007-08 (opinion of Kennedy, J.). It seems to me quite another to do so when that sentence doe s not appear to have b een the product of such serious and careful legislative thoug ht and may in fact have been the result of an exercise of a prosecutor's decision to br eak one course of conduct into many discrete o ffenses. For, in that event, the judge in rejecting a challenge to the sentence's pr oportionality is deferring to a hypothesized legislative choice, notw ithstanding that there in fact ma y be no legislature -- not even the one imposing the senten ce -- that has both thoughtfully focuse d on the need for such a sentence for such conduct and then carefully chosen to mandate it as a proportionate response.

B.

There is a second reason for my concern about ap plying the constricted form of the analysis that the Harmelin concurrence requires in this ca se. Harmelin was decided at a time at which, on the concurrence's own account, a state was trying out a new means of responding to a serious crime problem that was causing great concern. Id. In that circumstance, the concurrence expressed its
understandable wariness about the federal C onstitution's proportionality requirement being
construed in a manner that would invalidate one state's "bold expe riment" and thereby stifle the

only be encompassed fully by charging him with many discrete conspiracy offenses rather than by charging him with having been a participant in a single overarching and ex tended conspiracy. See Portela, 167 F.3d at 699-700, 700 n.8. And yet, in consequence of these discrete conspiracy charges, he was exposed to the more-than-century long mandatory se ntence under § 924(c) that he received. See Rodriguez, 525 F.3d 85, 111. That be ing the case, I find it hard to credit that Congress made a considered judgment that such a course of conspiratorial conduct merits a sentence of this extreme length, unless the defend ant conspires with real drug traffickers and the prosecutor chooses to treat the en tire course of conduc t as a single extended conspiracy, in which case a prison sentence of five years will do just fine. Nor is my concern about how considered the congressional judgmentwas for conduct like
that at issue in this case dimini shed by the fact that Rivera's § 924(c) convictions were predicated not only on his underlying conspiracy convictio ns but also on his underlying convictions for attempted possession with the inte nt to distribute a substance c ontaining a detectable amount of cocaine. As I have explained, see infra at 9-11, it is hard to credit the notion that Congress made a considered judgment that an ar med participant in an extended drug conspiracy who touches the cocaine-bearing substance in each transaction must be imprisoned for the rest of his life, while an armed member of the conspiracy who serves as a lookout as to each transaction only warrants a five-year prison sentence under § 924(c), as such a conspirator would receiv e if he were charged and convicted of being a participant in that single, extended conspiracy.- 22 - kind of innovation that our federal system invites. Id. at 1008. Th e concurrence thus declined to permit Michigan's outlier status to be held against it, as doing so hardly seemed consistent with the notion instinct in our system of federalism -- that states ar e laboratories of democracy. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also Harmelin, 501 U.S. at 1009.

But, here, we are considering a federal statutory sentencing mandate. And that mandate
bears none of the hallmarks of c onsidered experimentation, undertak en as a means of fashioning a bold, if untried, response to a new and vexing problem . In fact, this mandate's dramatic sentencing consequences result in significant part from a j udicial construction of a much debated statutory phrase -- "second or subsequent" -- that was the su bject of seemingly little discussion in Congress.

Moreover, we are reviewing that mandate's proportionality at a time when decades have passed since the Supreme Court first considered Michigan's arguably similar approach to combating the drug scourge through the imposition of mandatory life-without -parole sentences. Yet, during those intervening year s, virtually no other jurisdiction has seen fit to follow suit. Indeed, if anything, the trend lines are moving in just the opposite dire ction. See Bullock, 485 N.W.2d at 877; cf. Graham, 560 U.S. at 109 (looking to "legislative trends" in determining whether a sentencing practice violated the Eighth Amendment).

Thus, for this reason, too, the concerns that appear to have animated the Harmelin
concurrence's conclusion that a real-world comparative inquiry was not properly undertaken in that case do not appear to me to be present here . Rather, in a case like th is, it seems to me that there is good reason for courts to undertake the holistic review th at the dissenters in Harmelin understood Solem to require but that the Harmelin concurrence determined was not needed to review a mandatory life sentence that a state's legislature was t hought to have requi red as a "bold experiment" to address the drug problem. Harm elin, 501 U.S. at 1008 (opinion of Kennedy, J.). By doing so, courts may factor the sentence's eviden t outlier status into the ultimate assessment of its gross disproportionality.

C.

These two concerns about applying the Harme lin concurrence's gloss on the Solem inquiry to this context are reinforced, in my view, by two lines of Supreme Court precedent that have developed since Harmelin was decided. I briefly describe each in turn.

First, in Alleyne v. United States, 570 U.S. 99 (2013), the Court held that the Sixth Amendment requires that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." Id. at 103. Thus, unde r Alleyne, the minimum sentence that a defendant
can receive must be based on the minimum conduct cr iminalized by a statute, that is, the elements
of that crime. Id. at 116. It w ould thus seem that, in evaluating th e proportionality of a particular mandatory sentence, we must likewise look to the least of the conduct crimin alized by the elements of the offense. Consideration of anything further -- like conduct alleged in the indictment or found at sentencing to have occurred -- would impe rmissibly permit the assessment of the sentence's proportionality to be based on c onduct that had not been found by a factfinder beyond a reasonable doubt, even though under Alleyne the mandatory se ntence may not be imposed based on such
conduct.- 23 - The concurrence in Harmelin did not have the benefit of Alleyne. Bu t, insofar as Alleyne
indicates that the focus must be on the least of the conduct crimin alized in evaluating a sentence's proportionality, the poten tial consequences of fo llowing the Harmelin concurrence's extremely deferential approach in the context of § 924(c) become even more concerning.

Consider in this regard that, seemingly co ntrary to Alleyne's logic, the Harmelin
concurrence reasoned that the se ntence there at issue was not di sproportionate because Harmelin "possessed" 672.5 grams of "undiluted cocaine" as well as assorted drug paraphernalia, 501 U.S. at 1008 (opinion of Kennedy, J.). The concurrence emphasized that fact in spinning out how many "doses" of the drug could have been dispensed by the defendant. See id. And, the concurrence
did so in order to describe the seriousness of the tangible harm caused by the defendant's conduct
and thus the reasonableness of the legislative sentenci ng judgment. See id.

The offense in that case, however, actually heldHarmelin criminally liable merely because he "possessed" 650 grams of a "mixture co ntaining" cocaine, Mi ch. Comp. Laws Ann. § 333.7403(2)(a)(i). But, of course, such a mixtur e could contain a much smaller amount of the actual drug. Id.; People v. Puertas, 332 N.W.2d 399, 400 (Mich. App. 1983). And thus the least
of the conduct criminalized ther e could not have caused the same harm that the concurrence
attributed to the defendant's actions.

Still, there is no doubt that the Michigan le gislature did intend to mandate a life-withoutparole sentence for even that "mixture" crime, give n how clearly the statute at issue set forth that penalty scheme. By contrast, it is less clear to me that Congress would have been fully aware of just how minimal the conduct could be that would result in a "forever" se ntence under § 924(c). As I have explained, § 924(c)'s scope is notori ously ambiguous, the statute encompasses even inchoate crimes, and it requires the "stacking" of mandatory sentences even for related conduct that results in multiple convictions at a single trial due to a prosecutori al choice to divvy up the conduct. Thus, in light of how Alleyne suggest s proportionality review must now proceed, there
is additional reason to doubt th at Congress, in enacting this se ntencing regime, contemplated the full implications of its mandate, even if that mandat e does encompass a range of cases involving
more serious conduct that C ongress no doubt had in view.

The second line of post-Harmelin cases that I have in mind further gives me pause about applying the Harmelin concurrence's more limite d form of Solem review here. This line of precedent has resulted in the invalidation under the Eighth Amendment of life-without-parole sentences for juveniles. Miller, 567 U.S. at 474; Graham, 560 U.S. at 69.

Those cases, of course, are by no means controlling here. But, in them, the Court has emphasized in a way that it had not previously -- and thus in a way that it had not when Congress enacted § 924(c) -- that life sent ences without the possibility of parole raise special constitutional

concerns.

In particular, the Court has explained that such sentences constitute some of the "most severe punishments" that society imposes. Mille r, 567 U.S. at 474; Graham, 560 U.S. at 69. And, the Court has added, such sentences:- 24 - [S]hare some characteristics wi th death sentences that are shared by no other sentences . . . . [T]he sentence alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the
most basic liberties with out giving hope of restoration . . . . [A] life without parole sentence . . . means denial of hope; it means that good behavior and character improvementare immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.

Graham, 560 U.S. at 69–70 (citations and quotat ions omitted). The Cour t has also recently stressed, in connection with reviewing the proporti onality of such sentences, that "defendants who do not kill, intend to kill, or foresee that life w ill be taken are categorically less deserving of the most serious forms of punishment than are murderers." Id. at 69.

It may be that, even despite these strong st atements, the Eighth Amendment is still best understood to permit Congress to mandate, even for c onduct like Rivera's that resulted in no bodily harm, that "whatever the future mi ght hold" for him, he must "remai n in prison for the rest of his days." Id. at 70. He was, after all, an adult, not a child, when he committed his crimes. And judges are not entitled to second- guess the wisdom of the penal judgments of legislatures. Instead, judges are supposed to a ccord them deference.

But, at least in a case involving a sentence this harsh for crimes of this type, one would
think that such deference would stem from conf idence that the legislature has in fact made a considered penal judgment to impose such an unfor giving sentence and from careful consideration of the way in which offenders more generally are punished for comparable or even worse conduct.
For such confidence and consider ation would ensure that judges in deferring to a legislative judgment are recognized to be e ngaged in an understandable, rath er than an unforgivable, means of carrying out their duty to say what the constit utional prohibition against "cruel and unusual" punishment is.

Thus, in light of the concerns that the Cour t has recently expressed about the imposition of life-without-parole senten ces, I do not see how the kind of abstra ct review that is contemplated
under the first Solem criterion -- and that the Harmelin concu rrence requires us to treat as dispositive here -- can suffice to permit us to determine whether Rivera's sentence is grossly disproportionate under the Eighth Amendment. In my view, a comparative assessment, grounded in actual legislative practice, s hould be required to inform the j udge's assessment of proportionality
in such a case.

Such a requirement would prevent judges from simply substituting their own preferences for legislative ones in evaluating whether a mandatory life-without-parole sentence is cruel and unusual. Such a requirement would also ensure that the judicial assessm ent of a mandatory lifewithout-parole sentence for drug-related offenses of the sort at issue here does not unduly discount the defendant's Eighth Amendment right to be protected from grossly disproportionate punishment.- 25 - IV.

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then co nsidered all of the aggravating and mitigating
circumstances and determined that this senten ce was appropriate. He does so only because Congress has been deemed to have made a blanke t judgment that even an offender like Rivera -- who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim -- should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself puni shes nearly the same or seemi ngly worse conduct more leniently.

Almost three decades have now passed sinc e the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmar ks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to addr ess a newly concerning crime pr oblem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state's experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin
concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a ne arly three-decade old, thr ee-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that -- due to their cumulative length -- necessarily results in the imposition of a mandatory sent ence of life without parole.

LIPEZ, Circuit Judge, statement re garding the denial of rehearing . In voting to deny panel rehearing, I express my agreement with the concurring statement issued by my colleagues in denying appellant's petition for en banc review.

By the Court:

/s/ Margaret Carter, Clerk

cc: Hermes Manuel Hernandez Wendell Rivera-Ruperto Jacqueline D. Novas Debien Myriam Yvette Fernandez-Gonzalez
Peter M. Koski
Francisco A. Besosa-Martinez Monique T. Abrishami
Robert James Heberle