United States Court of Appeals

For the First Circuit _____________________ 

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

UNITED STATES, 

Appellee, 

v. 

WENDELL RIVERA-RUPERTO, 

a/k/a Arsenio Rivera, 

Defendant, Appellant. 

__________________

Before 

Howard, Chief Judge, 

Torruella, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges. 

__________________ 

ORDER OF COURT 

Entered: February 27, 2018 

 Pending before the court is a petition for rehearing or rehearing en banc in United States v. 

Rivera-Ruperto, No. 12-2364, 12-2367 and a petition for rehearing or rehearing en banc in United 

States v. Rivera-Ruperto, No. 13-2017. The petitions 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 majority of the judges not having voted that either 

case be heard en banc, it is ordered that the petitions for rehearing and the 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 States v. Rivera-Ruperto, 852 F.3d 1, 17 (1st Cir. 2017) (RiveraRuperto II). Those convictions stem from a federal sting operation that targeted Puerto Rican 

police officers. Id. at 4. As part of that sting, Rivera participated, while armed, in a number of 

supposed "deals" involving large amounts of fake cocaine in which agents of the Federal Bureau 

of Investigation (FBI) posed as both buyers and sellers. Id. at 4-5. 
- 2 - 

But, § 924(c) did not merely permit this greater-than-life-without-parole sentence. It 

mandated it. It did so by requiring a minimum prison sentence of five years for the first of Rivera's 

§ 924(c) convictions and consecutive twenty-five year 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 convictions were handed down at the same trial as the initial § 924(c) 

conviction that Rivera, who had no prior criminal history, received. Id. at 5.1

Thus, in consequence of Rivera's multiple convictions 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 sentencing regime -- would surely have been relevant to a judge's 

individualized rather than arithmetical assessment of whether what Rivera did should not only be 

punished severely but also deprive him (absent a pardon or commutation) of any hope of ever 

enjoying freedom again.2

                                                             1

 Rivera was indicted for six counts of violating 18 U.S.C. § 924(c) along with a variety of 

other charges also stemming from those fake drug transactions. Rivera-Ruperto II, 852 F.3d at 5. 

Those other charges consisted of six counts each of conspiracy to possess with intent to distribute 

five kilograms or more of a controlled substance, 21 U.S.C. §§ 841(a)(1) & (b)(l)(A)(ii)(II), 846; 

six counts of attempt to possess with intent to distribute five kilograms 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 kilograms or more of a mixture or substance 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 trial resulted in Rivera being 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. The second trial concerned the charges arising 

out of the other fake drug transaction and resulted in Rivera being sentenced to a term of 

imprisonment of thirty-five years -- of which twenty-five years were for his sixth § 924(c) 

conviction. Id. at 420. This sentence was to be served consecutively 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 appeals, "Rivera-Ruperto I" refers to his appeal from 

his second trial, which resulted in a sentence of thirty-five years' imprisonment, and "RiveraRuperto II" refers to his appeal from his first trial, which resulted in a sentence of 126 years and 

ten months imprisonment. 

2

 Among the individualized factors that the sentencing judge could have considered if he 

had the discretion to do so are the fact that, although Rivera was caught up in a sting designed to 

catch corrupt police officers, he was himself not a 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 was 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 expressed their dismay that our legal system could 

countenance extreme mandatory sentences under § 924(c) that are even shorter 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-Ruperto 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 revisit it. And so, in what follows, I explain my reasoning. 

I. 

The body of precedent that controls here concerns the meaning of the Eighth Amendment, 

which provides that "[e]xcessive bail shall not be required, nor excessive 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. United 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 mandatory minimum sentences, but I cannot take it upon 

myself to change the law that Congress has written because I think it is an inappropriate 

disposition."); see also United States v. Angelos, 345 F. Supp. 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 parties 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 Rivera received in Rivera-Ruperto II, he still faces an inherently 

greater-than-life sentence -- 105 years -- solely on the basis of his § 924(c) convictions. RiveraRuperto II, 852 F.3d at 13. Moreover, because that more-than-100 year sentence was imposed 

before Rivera was sentenced in Rivera I for his sixth § 924(c) conviction, his additional twentyfive year sentence for that sixth § 924(c) conviction was necessarily a sentence that would extend 

his already-imposed 100-year-plus § 924(c) sentence another twenty-five years. Thus, it makes 

sense to consider those two sentences cumulatively for purposes of addressing his Eighth 

Amendment challenge. 
- 4 - 

In Rummel v. Estelle, 445 U.S. 263 (1980), for example, the Supreme Court, in the course 

of rejecting an Eighth Amendment challenge to a mandatory life sentence with the possibility of 

parole, explained that "the Eighth Amendment prohibits imposition of a sentence that is grossly 

disproportionate to the severity of the crime."5

 Id. at 271. The Court then applied this principle 

to invalidate a prison sentence solely in consequence of its disproportionate 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 Amendment," Solem, 463 U.S. at 290 n.17, but that "a 

combination of objective factors can make such analysis possible." Id. Specifically, Solem held 

that: 

[A] court's proportionality analysis under the Eighth 

Amendment should be guided by objective criteria, including (i) the 

gravity of the offense and the harshness of the penalty; (ii) the 

sentences imposed on other criminals in the same jurisdiction; and 

(iii) the sentences imposed for commission of the same crime in 

other jurisdictions. 

Id. at 292. 

Solem appeared to contemplate a holistic analysis, in which the assessment of each of these 

three criteria would inform the assessment of the others. That approach, notwithstanding its 

inherently (and appropriately) deferential nature, had teeth. In fact, in Solem, the Court concluded 

on the basis of this holistic assessment that "the Eighth Amendment proscribes a life sentence 

without the possibility of parole for a seventh nonviolent felony," id. at 279, in a case in which that 

discretionary sentence was triggered 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-parole 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 had 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 that 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 order for that sentence to be one that necessarily 

constitutes a life sentence. There can be no question, 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 Solem identifies as relevant to the proportionality 

determination. And, based on a consideration of those criteria, as I will next explain, I would find 

that Rivera's mandatory, more-than-century-long sentence was grossly disproportionate 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 offense "in light of the harm caused or threatened 

to the victim or society[] and the culpability of the offender." Id. 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 the task of assessing a crime's severity for 

purposes of applying this first criterion. Of direct 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 case. Section 924(c) sanctions anyone who "uses 

or carries, or who, in furtherance of [a predicate] crime, possesses a firearm," 18 U.S.C. 

§ 924(c)(1)(A), and then defines those predicate crimes to include a wide variety of federal drug 

offenses, id. at § 924(c)(2). The predicate drug offenses 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 substance that contained cocaine (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 triggered the sentence that Solem struck down. 463 

U.S. at 281. 

                                                             7

 Prior to Solem, the Court had arguably adopted 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 Court explained that there were serious concerns 

about judicial line-drawing presented by challenges to the proportionality of sentences based on 

the number of years a defendant had been sentenced to imprisonment for a particular offense. 

Rummel, 445 U.S. at 275. The Court thus expressed the view that successful proportionality 

challenges of that type would be "exceedingly rare," id. at 273, and the dissent 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., dissenting) (quoting Robinson v. California, 370 U.S. 660, 

667 (1962)). The Court then relied on Rummel's seemingly strict test in Hutto v. Davis, 454 U.S. 

370 (1982), to summarily reverse a court of appeals decision that had invalidated on Eighth 

Amendment grounds a forty-year sentence for possessing nine grams of marijuana. Id. at 375. 

But, as Solem post-dates both Rummel and Hutto, 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, such 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 crime) as, in and of itself, 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 purposes 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 an offense does not actually require proof that 

the defendant inflicted any bodily harm against any identifiable victim generally makes that 

offense less serious than an offense that does. 463 U.S. at 292-93. Thus, while Solem does identify 

felony murder with no intent to kill as an example 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 significance 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 completed crimes from inchoate ones. 

463 U.S. at 293. Solem did so on the ground that the 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 predicate 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 contained 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 rather than real drugs. Rivera-Ruperto II, 852 F.3d at 14. That fact 

explains why, in addition to the predicate conspiracy convictions, he was charged for and 

convicted of (as predicate offenses) only attempted rather than actual possession 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, this 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 offender is a recidivist is also potentially relevant 

to the analysis of how serious the conduct being punished is for Eighth Amendment purposes. 

Solem, 463 U.S. at 296. But Solem did not equate 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 mandatory 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 with the understanding relied on in Rummel. 

There, the Supreme Court rejected an Eighth Amendment 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 defendant challenging that sentence had already 

served his sentences for his convictions for committing the earlier two offenses. Id. at 265-66. In 

upholding the defendant's life-with-parole sentence, 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 sentenced 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., dissenting). 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 before he had served any time for his other § 924(c) offenses or 

even been charged with them. Id. at 5. As a result, his "forever" sentence was not premised, as 

the life sentence with the possibility of parole in Rummel 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 criminal conduct is not of the most 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 Court 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 less forgiving than the life-without-parole sentence 

that Solem deemed disproportionate. That sentence was at least discretionary and therefore 

necessarily tailored to the defendant's particular circumstances, see Solem, 463 U.S. at 290, 

including most notably his prior criminal history. 

So, what are we to conclude from a consideration of Solem's first 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 conduct that might reasonably be thought to be serious 

enough to warrant very severe punishment is broad. 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 crime necessarily risk becoming subjective. 
- 8 - 

Solem also appeared to recognize (even if it did not expressly hold) that this concern about 

judicial subjectivity is not properly addressed by simply requiring 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 the actual penal practices of comparable jurisdictions. See Miller 

v. Alabama, 567 U.S. 460, 469-70 (2012) ("[W]e view [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 Estelle 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 appears to have proceeded on the understanding that 

judges need to undertake a real-world comparative inquiry, even if the more abstract threshold 

inquiry does not in and of itself demonstrate the sentence to be grossly disproportionate. For, at 

least in a case involving conduct such as is involved here, I read Solem to require courts to move 

beyond an abstract, threshold assessment of the "gravity 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 jurisdiction and by other jurisdictions. And that 

is because I read Solem to require judges to undertake such a further 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 approach 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 legislative 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 criminals 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 disproportionality between the gravity of Rivera's offenses (serious though 

they are) and the severity of the punishment that he received for them. 

Under federal law, "an aircraft hijacker . . . , a terrorist who detonates a bomb in a public 

place . . . , a racist who attacks a minority with the intent to kill and inflicts permanent or life 

threatening injuries . . . , a second-degree murderer, [and] a rapist," Rivera-Ruperto II, 852 F.3d at 

31 (Torruella, J., dissenting) (citation omitted), would all be subject to less harsh sentences than 

Rivera. Congress has not mandated that any of these offenders receive life-without-parole 

sentences. In fact, the recommended prison terms for each of these offenses under the United 

States Sentencing Guidelines are no more than one-fifth 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 building, seven times as serious as that of a person 
- 9 - 

who inflicts life-threatening injuries on members of a racial minority because of their race, or 

eighteen times as serious as that of a rapist. 

Consideration of the federal government's treatment of seemingly comparable conduct 

under § 924(c) itself further suggests that Rivera's sentence is grossly disproportionate. Rivera 

was involved in a series of putative drug transactions with, among other people, a group of FBI 

agents who were merely pretending to be drug traffickers. That the only person other than Rivera 

who was involved in each of the fake transactions was an FBI agent conducting a sting rather than 

an actual drug trafficker hardly makes Rivera's course of conduct more concerning than if he had 

been dealing with the same actual drug trafficker in each transaction. Yet, due to a quirk of 

conspiracy law and the way that it interacts with § 924(c), his involvement in an FBI-engineered 

sting rather than a true drug trafficking 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 agent. 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 States 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 conduct by charging him with being a participant in six discrete 

conspiracies that corresponded to each of the six fake transactions.10

The decision to charge Rivera for his course 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 Rivera's participation in 

one of the six fake drug transactions 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 the FBI agent who was present for each of the six 

                                                             9

 To be precise, while two of Rivera's co-defendants participated in two transactions with 

Rivera, no defendant, other than Rivera himself, was present at all six transactions in which Rivera 

participated. 

10 Rivera was not the only defendant caught up in this FBI sting to have been exposed to a 

much longer sentence due to how this quirk of conspiracy law interacts with § 924(c). See e.g., 

United States v. Diaz-Castro, 752 F.3d 101, 107 (1st Cir. 2014); United States v. Gonzalez-Perez, 

778 F.3d 3, 10 (1st Cir. 2015). 

11 I note that, not long after Rivera was arraigned, 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 offer, 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 rejected it. Rivera-Ruperto II, 852 

F.3d at 6. The government then gave Rivera one final offer of eighteen years' imprisonment, which 

he rejected. Id. at 7. 
- 10 - 

transactions, and if Rivera had then been charged with participating in a single, extended 

conspiracy for his course of conduct, he could have been sentenced under § 924(c) to a prison term 

of only five years for possessing a firearm 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 that the Double Jeopardy 

Clause bars multiple § 924(c) offenses predicated on the defendant's conviction for participation 

in a single conspiracy), no matter how large or extended that predicate conspiracy happens to be.12

In this way, then, § 924(c) itself appears to treat the very same course of conspiratorial 

conduct in which Rivera engaged far more leniently depending on how that course of conduct 

happens to be charged. After all, Rivera received a mandatory sentence that is more than twentyfive times greater than the defendant in Rodriguez received. And Rivera received 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 offense 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 convictions, Rivera was also 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 conduct underlying those predicate 

attempt convictions was itself part and parcel of the conduct that could have supported charging 

Rivera with participating in one extended conspiracy, 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 amount of cocaine in and 

of themselves show that Rivera's course of conduct 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 cocaine with the intent to distribute, 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 beyond a reasonable doubt that Defendant conspired 

to possess with intent to distribute marijuana."); 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 circuits 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 States 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); United 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 Cir. 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 every transaction . . . he held the [sham cocaine] in his hands." 
- 11 - 

could be sentenced to a prison term 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 comparable 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 considered one. And that fact necessarily diminishes (even though it does 

not negate) the legislative claim to deference that informs the whole of the Solem framework. 

Solem, 463 U.S. at 3009 ("Reviewing courts, of course, 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 comparison of this sentence with "the sentences 

imposed for commission of the same crime in other jurisdictions." Solem, 463 U.S. at 292. A 

consideration of this criterion would also appear to point in favor of Rivera's challenge. 

As the government did not address this prong 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 impose in this case. But, my 

own unaided review accords with Rivera's contention that this sentence is an outlier compared to 

the sentencing practices elsewhere in the United States. That review indicates 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 aware appear to be Alabama, see Ala. Code 

§ 13A-12-231(2)(d) (a person convicted of possession of over ten kilograms of controlled 

substance shall be imprisoned for life without parole); 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, see 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) (permitting "stacking" of sentences under Mississippi 

law). Most states that impose mandatory life sentences 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 Supreme Court decided 

Harmelin, the Michigan Supreme Court struck down the very sentencing provision that Harmelin 
- 12 - 

In addition, it appears that no country subject to the jurisdiction 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, 560 U.S. at 80 ("The Court has looked beyond our 

Nation's borders for support for its independent conclusion that a particular punishment is cruel 

and unusual."). The ECtHR has held that the nations subject to its jurisdiction must ensure that all 

sentences (even for serial murderers and terrorists) respect a right to hope under Article 3 of the 

European Convention on Human Rights. Hutchinson 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 domestic 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 -- executive or judicial -- which that review should take, or to determine when 

that review should take place." Id. ¶ 20(b). But, 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 years after the imposition of a life sentence, with 

further periodic reviews thereafter[.]" Id. And the court added that "[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, the court explained that, "where domestic law does not provide any 

mechanism or possibility for review of a whole life sentence," the unlawfulness of the sentence 

under Article 3 of the Convention "arises at the moment of the imposition of the whole life sentence 

and not at the later stage of incarceration." Id. 

Accordingly, consideration of the last two Solem criteria reinforces the concern about 

whether Rivera's sentence is grossly disproportionate that consideration 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 the sentencing practices of other jurisdictions 

                                                            

had upheld as unconstitutional under 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 Justice White in his dissenting 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 Human Rights states: "No one shall be subject 

to torture or to inhuman or degrading 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, 2013-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 years, 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 defendants 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 federal 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 sentence 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 the harshest of prison sentences for crimes that 

Solem does not treat as being of the most serious 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 last word. I thus must address the post-Solem Supreme Court 

precedent that addresses the constitutionality of imposing mandatory life-without-parole sentences 

under the Eighth Amendment for drug offenses. And that precedent is Harmelin.17

There, a defendant brought an Eighth Amendment proportionality challenge to his 

mandatory life-without-parole sentence under Michigan 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 Supreme 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 raises challenges about how it could be rendered constitutional 

without producing arbitrary results. And these challenges are aggravated 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 (White, J., dissenting); see also Miller, 567 U.S. 

at 489 (reversing and remanding for further proceedings a sentence found unconstitutional); 

Graham, 560 U.S. at 82 (same). In Bullock, moreover, in which the Supreme Court of Michigan 

struck down under the Michigan Constitution the mandatory life-without-parole sentence that was 

at issue in Harmelin, the remedy was simply to remove the prohibition against parole eligibility. 

Bullock, 485 N.W.2d at 877-78. And, of course, the problem of crafting a remedy arises in any 

case in which mandatory consecutive sentencing results 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 disproportionality 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 address 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 opinion. Rather, a fractured Court yielded a 

controlling opinion that took the form of a three-Justice concurrence. Id.; see Graham, 560 U.S. 

at 59-60 (determining that Justice Kennedy's opinion in Harmelin is controlling). But that 

concurrence is still in my view dispositive in this case and in a manner that disfavors Rivera's 

challenge.18

A. 

The first way in which the Harmelin concurrence adversely affects Rivera's proportionality 

challenge has to do with the concurrence's treatment of the second and third Solem criteria. The 

concurrence makes clear that consideration of these two criteria -- which require real-world 

comparative 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."19 

Harmelin, 501 U.S. at 1005 (opinion of Kennedy, J.). The concurrence further indicates that there 

need only be a "rational basis" for a legislature's conclusion that an offense is as serious as one 

that, like felony murder, may constitutionally merit a life-without-parole sentence in order for the 

threshold Solem inquiry to require the conclusion that no such inference 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 demonstrate 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 disproportionate through a comparative analysis of other relevant sentencing 

practices. Those consequences are likely to be especially significant, moreover, in cases in which 

the offense is, per Solem, not of the most serious kind, but the prison sentence is. 

In fact, all four dissenting Justices in Harmelin challenged the concurrence on this point. 

Id. at 1018-19 (White, J., dissenting); id. at 1027 (Marshall, J., dissenting); 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 dissenters 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 had no occasion to do so. Graham invalidated the 

life-without-parole sentence imposed on a juvenile under a special variant of the Eighth 

Amendment's proportionality test that applies when a sentencing practice, rather than a sentence 

in a particular case, is being challenged as disproportionate in all cases. 560 U.S. at 90-91. 

Similarly, Ewing upheld a mandatory twenty-five-years-to-life sentence under California's three 

strikes law. 538 U.S. at 20. Ewing explained that the concurrence in Harmelin "guide[s] our 

application of the Eighth Amendment 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 adopting 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 interjurisdictional analyses raise 

"complexities" and do not, alone, suffice to demonstrate 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 sentence was -- or was not -- 

disproportionate, other than the 'subjective views of individual [judges],' which is the very sort of 

analysis our Eighth Amendment jurisprudence has 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 justify undertaking a real-world 

comparative analysis -- threatened to render 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 with Solem because it reduced Solem to "an empty 

shell." Id. at 1018. 

Nevertheless, the dissenters did not prevail. I thus must, like 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 Rivera'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 the 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 incorporate 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 concurrence adversely affects Rivera's Eighth 

Amendment challenge concerns the way in which the Harmelin concurrence actually performed 

Solem's threshold inquiry with respect to the criminal conduct at issue in that case. Specifically, 

the concurrence determined that the drug possession crime in that case was of a sufficiently 

"serious nature" that no inference of gross disproportionality was warranted by the imposition of 

a mandatory life-without-parole sentence. Harmelin, 501 U.S. at 1004 (opinion of Kennedy, J.). 

Accordingly, the concurrence concluded, the judicial inquiry into the sentence's proportionality 

need not reach the second or third Solem criteria. Id. 

In making this critical judgment, the concurrence 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.'" Id. at 1002 (quoting Treasury Emps. 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 absurdity." Id. The concurrence emphasized that 650 

grams of cocaine contained "between 32,500 and 65,000 doses." Id. 

The concurrence further explained that the fact that the offense involved drug possession 

was important because "quite apart from the pernicious 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 violent crime may occur as part of the drug business 

or culture." Id. Thus, the concurrence concluded, there was a basis for finding "a direct nexus 

between illegal drugs and crimes of violence." Id. at 1003.20

The concurrence then concluded, without the benefit of any comparative inquiry into the 

practices of other jurisdictions, that whether or not Michigan's penalty scheme was "correct or the 

most just in the abstract sense," the Michigan legislature "could with reason conclude that the 

threat posed to the individual and society by possession of this large an amount of cocaine -- in 

terms of violence, crime, and social displacement -- is momentous enough to warrant the 

deterrence and retribution 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 petitioner'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 disproportionate.'" Id. at 1004 (quoting Solem, 463 

U.S. at 290 n.15) (emphasis added). Thus, the Harmelin concurrence held that, "[i]n light of the 

gravity of petitioner's offense, a comparison of his crime with his sentence does not give rise to an 

inference of gross disproportionality, and comparative analysis of his sentence with others in 

Michigan and across the Nation need not 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 possessing any drugs. 

Still, I do not see how a lower court may say that the Michigan legislature had reason to conclude 

that a conviction for possession of a large quantity of cocaine and no guns warranted a mandatory 

life-without-parole sentence, but that Congress could not have had 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 possess with intent to distribute a "detectable amount" 

of cocaine packaged in five-kilogram-sized substances. 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 contrasted the "minor" offenses for which the 

defendant had been convicted with "very serious offenses," 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 mandatory 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 been 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 Solem's rubric. In referring to "other violent 

criminals," Solem appears to have been merely describing how the sentencing 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 nonviolent one. See S.D. Codified Laws § 22-7-8. 
- 17 - 

our decision in Rummel, the Court of Appeals sanctioned an intrusion into the basic line-drawing 

process that is properly within the province of legislatures, not courts . . . . [and] ignored . . . the 

hierarchy of the federal court system created by the Constitution and Congress." (citation 

omitted)).21

III. 

Although I am convinced that the Harmelin concurrence controls the outcome here, and 

that it does so by limiting our inquiry to a consideration of only Solem's first criterion, I am also 

convinced that the Court should revisit the logic of the Harmelin concurrence, 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 posit that the Congress that enacted § 924(c) made a focused judgment 

that defendants like Rivera should receive a mandatory 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-parole sentence for the 

particular criminal conduct in which 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-related 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 even give rise to an inference that such a sentence was grossly 

disproportionate. See Harmelin, 501 U.S. at 1005 (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 conclusion that there is a rational basis to deem a sentence 

proportionate with the conclusion that 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 ultimately 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 reasonable inference from the evidence that would have 

resulted in an acquittal. See Musacchio 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 possibility of parole under California's three strikes law offer little 

guidance here. Unlike in Ewing or Lockyer, 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 concern that "set[ting] aside [Harmelin's] 

mandatory sentence would require rejection not of the judgment of a single 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 view 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 severe as the punishment that Harmelin 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 graduated penalty scheme in which the Michigan 

legislature specially singled out only a subset of precisely defined 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 recent enactment calibrated 

with care, clarity, and much deliberation to address a most serious contemporary social problem." 

Id. at 1007-08 (emphasis added). Thus, although the concurrence did acknowledge that it was not 

untroubled by the result, or certain "that Michigan's bold experiment [would] succeed," the 

concurrence concluded that it could not "say the law before us has no chance of success and is on 

that account so disproportionate as to be cruel and unusual punishment." Id. at 1008.23

Perhaps, in the face of the exercise of such legislative 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 Harmelin thought proper. And thus, perhaps, in such 

a circumstance, there is less need to check the judicial intuition about the proportionality of a 

mandatory life-without-parole sentence for a large-quantity drug possession offense against actual 

legislative practice than the dissenters 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, uninfluenced by real-world sentencing practices, I 

cannot see what the case would be for applying the same 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) criminalizes 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 focused and deliberative nature of the judgment 

that the California legislature had made in imposing the severe sentence required under that regime 

for recidivist offenders, by determining that "individuals who have repeatedly engaged in serious 

or violent criminal behavior, and whose conduct has not been deterred 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. Ashcroft, 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 constitutes "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 harsh as the one that Rivera received only 

because the statute requires the stacking of various individual § 924(c) sentences. As explained 

above, under § 924(c), a first conviction leads to a mandatory sentence of five years, and each 

"second or subsequent conviction" mandates an additional 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 sentences may be required under § 924(c) for an 

astoundingly wide array of possible offense combinations, including mixes potentially of both 

state and federal offenses and various combinations of predicate drug offenses, whether or not 

paired with "crime[s] of violence." See id. § 924(c)(1)(A). For this reason, too, 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 issue 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-related conduct singled out for harsh punishment in 

that case. 

Nor is there anything in § 924(c)'s legislative history to indicate that Congress, in enacting 

§ 924(c), gave the kind of focused consideration to potential sentencing implications in a case of 

this sort that the concurrence in Harmelin plainly thought that the Michigan 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" provision 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 punishment will not deter him from future criminal 

conduct.25

                                                             25 In a post-Harmelin case in which the Court has addressed the proportionality of a life 

sentence, albeit one with the possibility of parole, the Court again emphasized that state 

legislatures have "broad discretion" over sentence length. 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 disproportionate. 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 felony does not disclose greater danger warranting substantially 

longer incapacitation." Id. Such sentences, 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 amending the statute to encompass defendants who were 

involved not in committing "crimes of violence" but only in inchoate drug offenses. Anti-Drug 

Abuse Act of 1986, Pub. L. No. 99–570, 100 Stat. 3207 (codified at 21 U.S.C. § 801). In fact, for 

more than a decade after that amendment, due to the oddness of that statute's original text ("second 

or subsequent"), it was a matter of great uncertainty 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 (5th Cir. 1992) (citing cases), aff'd, 508 U.S. 

129 (1993). 

The Supreme Court in Deal did finally reject the view of some lower courts -- and the four 

dissenters in that case, 508 U.S. at 137 (Stevens, J., dissenting) -- that Congress intended 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 "second or subsequent" language to encompass even an offender 

who is charged cumulatively for seemingly-related conduct, 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 crimes of violence -- namely, bank robberies. Id. at 137. And 

there is nothing to indicate that Congress has subsequently ratified that previously sharplycontested conclusion about what "second or subsequent" means in any 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 single, 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. Prosecutorial decisions about whether to treat 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 distinction between a prosecutor'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 punishment 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 discrete drug possession crime. 501 U.S. at 1006 

(opinion of Kennedy, J.). Here, there is a real possibility that, in upholding 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 prosecutorial one to divvy that same 

conduct up into a series of discrete charges that, if proved, will require 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 conspiratorial conduct could 
- 21 - 

I am troubled that the "forever" sentence that results from such charges must be upheld on 

the basis of only the abstract and highly deferential 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 conduct 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 threshold inquiry when that sentence has been 

legislatively "calibrated with care, clarity, and much deliberation 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 does not appear to have been the product of such 

serious and careful legislative thought and may in fact have been the result of an exercise of a 

prosecutor's decision to break one course of conduct into many discrete offenses. For, in that 

event, the judge in rejecting a challenge to the sentence's proportionality is deferring to a 

hypothesized legislative choice, notwithstanding that there in fact may be no legislature -- not even 

the one imposing the sentence -- that has both thoughtfully focused 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 applying the constricted form of the analysis 

that the Harmelin concurrence requires in this case. 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 Constitution's proportionality requirement being 

construed in a manner that would invalidate one state's "bold experiment" 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 extended 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 sentence under § 924(c) that he 

received. See Rodriguez, 525 F.3d 85, 111. That being 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 defendant conspires with real drug traffickers and the 

prosecutor chooses to treat the entire course of conduct 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 judgment was for conduct like 

that at issue in this case diminished by the fact that Rivera's § 924(c) convictions were predicated 

not only on his underlying conspiracy convictions but also on his underlying convictions for 

attempted possession with the intent to distribute a substance containing 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 armed 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 receive 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. The 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 are 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 considered experimentation, undertaken 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 judicial construction of a much debated statutory 

phrase -- "second or subsequent" -- that was the subject 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 years, virtually no other jurisdiction has seen fit to follow suit. 

Indeed, if anything, the trend lines are moving in just the opposite direction. 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 this, it seems to me that 

there is good reason for courts to undertake the holistic review that 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 thought to have required as a "bold 

experiment" to address the drug problem. Harmelin, 501 U.S. at 1008 (opinion of Kennedy, J.). 

By doing so, courts may factor the sentence's evident outlier status into the ultimate assessment of 

its gross disproportionality. 

C. 

These two concerns about applying the Harmelin 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, under Alleyne, the minimum sentence that a defendant 

can receive must be based on the minimum conduct criminalized by a statute, that is, the elements 

of that crime. Id. at 116. It would thus seem that, in evaluating the proportionality of a particular 

mandatory sentence, we must likewise look to the least of the conduct criminalized by the elements 

of the offense. Consideration of anything further -- like conduct alleged in the indictment or found 

at sentencing to have occurred -- would impermissibly permit the assessment of the sentence's 

proportionality to be based on conduct that had not been found by a factfinder beyond a reasonable 

doubt, even though under Alleyne the mandatory sentence may not be imposed based on such 

conduct. 
- 23 - 

The concurrence in Harmelin did not have the benefit of Alleyne. But, insofar as Alleyne 

indicates that the focus must be on the least of the conduct criminalized in evaluating a sentence's 

proportionality, the potential consequences of following the Harmelin concurrence's extremely 

deferential approach in the context of § 924(c) become even more concerning. 

Consider in this regard that, seemingly contrary to Alleyne's logic, the Harmelin 

concurrence reasoned that the sentence there at issue was not disproportionate 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 sentencing judgment. See id. 

The offense in that case, however, actually held Harmelin criminally liable merely because 

he "possessed" 650 grams of a "mixture containing" cocaine, Mich. Comp. Laws Ann. 

§ 333.7403(2)(a)(i). But, of course, such a mixture 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 there could not have caused the same harm that the concurrence 

attributed to the defendant's actions. 

Still, there is no doubt that the Michigan legislature did intend to mandate a life-withoutparole sentence for even that "mixture" crime, given 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" sentence under § 924(c). 

As I have explained, § 924(c)'s scope is notoriously 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 prosecutorial choice to divvy up the 

conduct. Thus, in light of how Alleyne suggests proportionality review must now proceed, there 

is additional reason to doubt that Congress, in enacting this sentencing regime, contemplated the 

full implications of its mandate, even if that mandate does encompass a range of cases involving 

more serious conduct that Congress 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 limited 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 sentences 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. Miller, 567 U.S. at 474; Graham, 560 U.S. at 69. And, 

the Court has added, such sentences: 
- 24 - 

[S]hare some characteristics with 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 without giving hope of restoration . . . . [A] life 

without parole sentence . . . means denial of hope; it means that good 

behavior and character improvement are 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 quotations omitted). The Court has also recently 

stressed, in connection with reviewing the proportionality of such sentences, that "defendants who 

do not kill, intend to kill, or foresee that life will 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 statements, the Eighth Amendment is still best 

understood to permit Congress to mandate, even for conduct like Rivera's that resulted in no bodily 

harm, that "whatever the future might hold" for him, he must "remain 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 accord 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 confidence that the legislature has in fact made a 

considered penal judgment to impose such an unforgiving 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 consideration would ensure that judges in deferring to a legislative 

judgment are recognized to be engaged in an understandable, rather than an unforgivable, means 

of carrying out their duty to say what the constitutional prohibition against "cruel and unusual" 

punishment is. 

Thus, in light of the concerns that the Court has recently expressed about the imposition of 

life-without-parole sentences, I do not see how the kind of abstract review that is contemplated 

under the first Solem criterion -- and that the Harmelin concurrence 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, should be required to inform the judge'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 assessment 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 considered all of the aggravating and mitigating 

circumstances and determined that this sentence was appropriate. He does so only because 

Congress has been deemed to have made a blanket 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 punishes nearly the same or seemingly worse conduct more leniently. 

Almost three decades have now passed since the concurring Justices in Harmelin 

concluded, without reference to real-world comparative benchmarks, 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 address a newly concerning crime problem. 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 nearly three-decade old, three-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 sentence of life without parole. 

LIPEZ, Circuit Judge, statement regarding 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