PUBLISHED

Filed: August 26, 2010

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

No. 07-5

v.  (1:06-cr-00001-JPJ)

CARLOS DAVID CARO,

Defendant-Appellant. 

O R D E R

Caro’s petition for rehearing and rehearing en banc is

before the Court. 

A poll of the Court was requested, and failed to garner the

approval of a majority of the qualified active judges. Judges

Gregory, Davis, and Keenan voted in favor of rehearing en

banc. Chief Judge Traxler, and Judges Wilkinson, Niemeyer,

Motz, King, Shedd, Duncan, Agee, and Wynn voted to deny.

Judge Michael did not participate. 

The petition for rehearing and rehearing en banc is therefore denied. Judge Gregory wrote an opinion dissenting from

the denial of rehearing and rehearing en banc.

Entered at the direction of Judge Duncan for the Court. 
For the Court

/s/ Patricia S. Connor

Clerk

GREGORY, Circuit Judge, dissenting from the denial of

rehearing and rehearing en banc:

"[T]he way in which we choose those who will die reveals

the depth of moral commitment among the living." McCleskey

v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J., dissenting).

It reveals our commitment to the Constitution’s bar on cruel

and unusual punishment and to the Founding principle that all

people are endowed with certain rights that are entitled to dignity and respect; a commitment that endures even as we pursue our legitimate interest in exacting retribution for, and

deterring future commission of, the most heinous crimes. Our

commitment is undermined, however, when we distinguish

those who live from those who die on the basis of arbitrary

factors that bear no relation to the goals underlying capital

punishment.

In his appeal, Carlos Caro challenges the constitutionality

of eligibility factors that select those who die on the basis of

prior convictions for relatively minor, nonviolent drug

offenses. See 18 U.S.C. § 3592(c)(10) & (12). These provisions have never before been used as the sole means to establish a defendant’s death eligibility. And no state has ever

attempted to apply analogous eligibility factors to any other,

potential capital defendant.

As I explain at length in my dissent from the panel opinion,

see United States v. Caro, 597 F.3d 608, 636 (4th Cir. 2010)

(Gregory, J., dissenting), these factors fail to distinguish Caro

from other murderers in "an objective, even-handed, and substantively rational way," Zant v. Stephens, 462 U.S. 862, 879

2 UNITED STATES v. CARO
(1983). Fundamentally, eligibility factors that select defendants on the basis of nonviolent conduct are so detached from

the constitutional justifications for capital punishment that

they cannot be reconciled with the Eighth Amendment. Caro,

597 F.3d at 638-39 (Gregory, J., dissenting) (citing and

explaining cases). Likewise, where eligibility factors could

apply to millions of offenders but are applied, in actuality, to

only one, there is an intolerably high risk that the death penalty is being applied arbitrarily and capriciously. Id. at 642.

The majority’s dismissal of these serious constitutional

concerns with little more than "drugs are bad," id. at 624

(majority opinion) ("Moreover, the felony drug offenses

described by § 3592(c)(10) and (12) are serious indeed, however common may be their commission."), is remarkably tone

deaf. The fact that Congress targeted minor, nonviolent drug

offenders for death-eligibility, but not any other class of nonviolent offenders, does not reduce the constitutional problems

in Caro’s death sentence. It amplifies them.

Only two states’ death-penalty statutes can arguably be

read to enhance a sentence from life in prison to death on the

basis of a defendant’s prior, nonviolent drug convictions.1

And outside the death-penalty context, there is mounting and

sustained criticism of laws that "treat[ ] a defendant who has

committed a series of relatively minor and nonviolent drug

crimes more severely than a murderer, and that take[ ] no

account of the seriousness of the predicate crimes." United

States v. Pruitt, 502 F.3d 1154, 1167 (10th Cir. 2007)

(McConnell, J., concurring). Indeed, there is a growing consensus in our society — as reflected in the actions of our

elected representatives and governing institutions — that even

exceedingly harsh prison sentences for nonviolent drug

offenders go beyond what is necessary to achieve the goals of

sentencing and, by extension, create arbitrary disparities

1N.H. Rev. Stat. Ann. § 630:1 (2010); La. Code Crim. Proc. Ann. art.

905.4(A)(11) (2010). 

UNITED STATES v. CARO 3
between offender classes. Cf. Kimbrough v. United States,

552 U.S. 85, 95-100 (2007) (discussing criticism of crackpowder disparity in federal sentencing guidelines).

Acting in response to heavy criticism of sentencing policy

by judges, academics, and other members of the public, the

Attorney General recently established a commission to

reevaluate the application of harsh, mandatory sentences for

nonviolent drug offenders.2 Of particular concern to the

Department of Justice is data demonstrating that increasing

sentencing disparities are "correlated with the demographics

of offenders," and that those unwarranted disparities arise

from the fact that so many drug offenders are subject to

mandatory-minimum sentences while even the most serious

white-collar offenders are not.3

For its part, the United States Sentencing Commission has

taken several recent steps to address the acknowledged unfairness in the application of the sentencing guidelines to nonviolent drug offenders. The Commission reduced the guideline

range for offenders convicted of crack cocaine offenses based

on its belief "that the 100-to-1 [disparity between crack and

powder cocaine sentences] significantly undermines various

congressional objectives set forth in the Sentencing Reform

Act and elsewhere." U.S. Sentencing Guidelines Manual

Supp. App. C, Amdt. 706. It also recommended that Congress

repeal the 100-to-1, crack-powder disparity. Id. Congress

responded by significantly narrowing the disparity in a bill

signed by President Obama on August 3, 2010. See Fair Sentencing Act of 2010, Pub. L. No. 111-220 (July 28, 2010).

Finally, the Commission introduced several changes to the

guidelines, scheduled to go into effect this November, which

2

See Sally Quillian Yates, United States Attorney for the Northern District of Georgia, Testimony of the United States Department of Justice,

Mandatory Minimum Sentencing Statutes, Before the United States Sentencing Commission 1-3 (May 27, 2010). 

3

See id. at 7. 

4 UNITED STATES v. CARO
would provide district courts with greater leeway to fashion

downward departures and substitute treatment programs for

prison terms for many nonviolent drug offenders. See U.S.

Sentencing Guidelines Manual proposed Amdt. 1.

This same trend towards abolishing disproportionately high

prison sentences for nonviolent drug offenders is taking hold

at the state level. New York, for instance, repealed the socalled "Rockefeller Drug Laws," by eliminating mandatoryminimum sentences for most nonviolent users and distributors

and increasing judges’ discretion to sentence these offenders

to treatment rather than prison.4 Lawmakers explained that

repeal was necessary because the harshest provisions were

being applied to low-level offenders and not kingpins;5

because treatment is often a more effective and efficient way

of combating the drug epidemic that continues to plague society;6

 and because mandatory-minimum sentences disproportionately targeted blacks and Hispanics.7

 New Jersey likewise

repealed its law imposing mandatory-minimum sentences for

nonviolent drug dealers who distribute drugs within "school

zones."8 Legislators noted that a law originally intended to

target drug dealers who preyed on children was not doing so;

instead, it was ensnaring low-level offenders, ninety-six percent of whom were black or Hispanic, who lived in the poorest areas of the state.9

 And Michigan, which once had

4

Jeremy W. Peters, Albany Reaches Deal to Repeal ‘70s Drug Laws,

N.Y. Times, March 26, 2009, at A1; Press Release, Office of the Governor

of New York, Governor Paterson Signs Rockefeller Drug Reforms Into

Law (Apr. 24, 2009), available at http://www.state.ny.us/governor/

printable/press_0424091_printable.html [hereinafter Press Release]. 

5

See Madison Gray, New York’s Rockefeller Drug Laws, Time Magazine, Apr. 02, 2009 (quoting New York Governor David Paterson). 

6

See Press Release, supra note 3 (statement of Senator Ruth HassellThompson). 

7

See id. (statement of Assemblyman Jeffrion L. Aubry). 

8Lisa Fleisher, School-Zone Law Relaxed, Star-Ledger, Jan. 13, 2010,

at 028. 

9Chris Megerian, Bill Eases Some School Zone Drug Penalties; Action

in Jersey Senate Praised as a Lifesaver and Blasted as Going Soft on

Crime, Star-Ledger, Dec. 11, 2009, at 001. 

UNITED STATES v. CARO 5
arguably the nation’s harshest drug laws, repealed its

mandatory-minimum sentencing scheme several years ago, in

large part out of concern that the laws were predominantly

affecting low-level carriers and drug mules.10

Factors that our political institutions view as deeply troubling when used to dramatically enhance an individual’s

prison term, are constitutionally intolerable when used to justify a death sentence. See California v. Ramos, 463 U.S. 992,

998-99 (1983) (explaining that Supreme Court "has recognized that the qualitative difference of death from all other

punishments requires a correspondingly greater degree of

scrutiny of the capital sentencing determination"); Lockett v.

Ohio, 438 U.S. 586, 604-05 (1978) (explaining that while the

judiciary generally defers to legislative policy choices in noncapital sentencing, the death penalty’s qualitative difference

requires that those choices be subjected to heightened scrutiny

in the capital punishment context). The death penalty may

only be applied to those defendants who can "with reliability

be classified among the worst offenders." Roper v. Simmons,

543 U.S. 551, 569 (2005). It may only be imposed to advance

the state’s interest in retribution and deterrence — interests

that are not sufficiently furthered even when applied to the

average murderer. Id. at 571; Atkins v. Virginia, 536 U.S. 304,

319 (2002). It may not be applied "wantonly" and "freakishly"

to certain offender classes. Furman v. Georgia, 408 U.S. 238,

310 (1972) (Stewart, J., concurring). And it may not be

applied in such a way as to create a "‘constitutionally unacceptable’" risk that racial prejudice enters into the capital sentencing process. McCleskey, 481 U.S. at 309 (majority

opinion) (quoting Turner v. Murray, 476 U.S. 28, 36 n.8

(1986)); see Graham v. Collins, 506 U.S. 461, 479-86 (1993)

(Thomas, J., concurring) (discussing the way in which the

Supreme Court’s capital jurisprudence has been motivated, in

large degree, by the need to eliminate significant racial dispar10Associated Press, Michigan to Drop Minimum Sentence Rules for

Drug Crimes, N.Y. Times, Dec. 26, 2002, at A26. 

6 UNITED STATES v. CARO
ities in the death penalty’s application); Furman, 408 U.S. at

249-50 (Douglas, J., concurring) (finding the death penalty

unconstitutional as applied to the defendants because "[t]he

death sentence is disproportionately imposed and carried out

on the poor, the Negro, and the members of unpopular

groups").

Carlos Caro was a drug addict and a drug mule. His father

and uncles raised him to join the family business, smuggling

marijuana and cocaine across the Mexican border. In many

ways, Carlos Caro never had a chance. Before going to

prison, however, there is no indication that he was ever violent. And though his murder, like all murders, was heinous

and despicable, the only difference between his crime and

"average" murders for which death may not be prescribed,

Atkins, 536 U.S. at 319, is his history with drugs.

How can a factor that society has begun to reject as a basis

for extraordinarily long prison sentences now, for the first

time, be the sole ground to enhance a prison term to a death

sentence? How can a factor that we recognize substantially

over-punishes low-level, nonviolent offenders be compatible

with the requirement that the death penalty only be applied to

the worst of the worst? And how can we accept a factor that

we know risks distinguishing between offenders based on

irrational and pernicious characteristics?

The majority’s refusal to grapple with, let alone answer,

any of these questions is telling. I am disappointed that the

Court allows this silence to control.

UNITED STATES v. CARO 7