United States Court of Appeals

For the Eighth Circuit

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No. 14-3437

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Samuel B. Ford

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: November 16, 2015

 Filed: April 5, 2016

[Unpublished] 

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Before SMITH, BYE, and BENTON, Circuit Judges.

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PER CURIAM. 

Pursuant to 21 U.S.C. § 841(b)(1)(A), the district court sentenced Samuel Ford 1

to a mandatory life term for distribution of a controlled substance near a protected

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa. 
location after having been previously convicted of at least two other felony drug

offenses. Ford appeals, arguing that his sentence is (1) unlawful under the plain

language of 21 U.S.C. § 841, and (2) a violation of the Eighth Amendment's

prohibition of cruel and unusual punishments. We affirm.

I. Background

Ford was convicted of distribution of heroin within 1,000 feet of a protected

location, resulting in the death of another ("CountI"), and distribution of cocaine base

and heroin ("Count II"). With respect to both counts, the government timely filed an

information of its intent to seek enhanced penalties because of Ford's prior

convictions. See 21 U.S.C. § 851(a)(1). Initially, the district court sentenced Ford to

a mandatory life term on Count I and a 360-month term on Count II, to run

concurrently. In a prior appeal before this court, Ford ultimately prevailed in having

his sentence vacated. United States v. Ford, 750 F.3d 952 (8th Cir. 2014). In light of

Burrage v. United States, 134 S. Ct. 881 (2014), we reversed Ford's conviction with

respect to Count I but affirmed in all other respects. Id. at 955–56. We remanded

Ford's case to the district court with directions to "enter judgment on the lesser

included offense of distribution of a controlled substance within 1,000 feet of a

protected location." Id. at 956 (citing 21 U.S.C. §§ 841(a)(1), 860(a)). The district

court again sentenced Ford to a mandatory life sentence solely based on his

conviction of distribution of a controlled substance within 1,000 feet of a protected

location, in violation of 21 U.S.C. §§ 841(b)(1)(A), 851, and 860(a).

II. Discussion

At sentencing, Ford objected to his sentence on Eighth Amendment grounds

only. Therefore, we review de novo Ford's Eighth Amendment sentencing challenge.

See United States v. Scott, 610 F.3d 1009, 1017 (8th Cir. 2010). But we review for

plain error his unpreserved challenge to the lawfulness of his sentence. See United

States v. Emly, 747 F.3d 974, 981 (8th Cir. 2014).

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A. 21 U.S.C. § 841(b)(1)(A)

Ford first argues that the sentence that the district court imposed is illegal

because the maximum sentence § 841 authorizes is 60 years. Ford reasons that

because the jury made no findings that the quantity of heroin distributed was greater

than 100 grams, § 841(b)(1)(C) provides the appropriate statutory sentencing range.

Under subsection (b)(1)(C), a life sentence is authorized only "if death or serious

bodily injury results from the use of such substance." Otherwise, a maximum term of

30 years is authorized under subsection (b)(1)(C). In accordance with the doubling

provision of § 860(a), Ford concludes that the maximum sentence the court can

impose is 60 years. 

We dispose of Ford's argument simply by referencing the text of

§ 841(b)(1)(A). Ford is correct that subsection (b)(1)(A)(i)'s penalties apply to

distribution of "1 kilogram or more of a mixture orsubstance containing a detectable

amount of heroin." Ford is, however, incorrect that subsection (b)(1)(A)'s penalties

do not also apply to the conduct for which he was convicted. Section

841(b)(1)(A)(viii) also states:

If any person commits a violation of thissubparagraph or ofsection 849,

859, 860, or 861 of this title after two or more prior convictions for a

felony drug offense have become final, such person shall be sentenced

to a mandatory term of life imprisonment without release and fined in

accordance with the preceding sentence.

(Emphasis added.) Ford overlooks the disjunctive "or," which properly brings his

conduct within the province of subsection (b)(1)(A)'s mandatory life sentence. A

mandatory life sentence applies to any person who distributes certain quantities of

controlled substance or to any person who violates § 849 "after two or more prior

convictions for a felony drug offense." 21 U.S.C. § 841(b)(1)(A)(viii). Ford was

convicted under § 849 after having been convicted of at least two prior felony drug

offenses. The district court did not illegally sentence Ford to a mandatory life term. 

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B. Eighth Amendment

Ford next attacks his sentence based on the Eighth Amendment's Cruel and

Unusual Punishment Clause. Ford argues that recent changes in the United States

Supreme Court's Eighth Amendment jurisprudence warrant a reversal of his sentence.

Specifically, Ford argues that the Court's analysis in Graham v. Florida, 560 U.S. 48

(2010), "indicate[s] that mandatory life sentences without parole, imposedwithout an

individualized assessment of the offense and the characteristics of the offender,

violate[] the Eighth Amendment's ban on cruel and unusual punishment."

The Eighth Amendment "forbids only extreme sentences that are 'grossly

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disproportionate' to the crime." Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring in part and concurring in judgment) (quoting Solem v. Helm,

463 U.S. 277, 288 (1983)); see also Graham, 560 U.S. at 59–60 (noting that Justice

Kennedy's concurrence in Harmelin isthe controlling opinion).To determinewhether

a sentence for a term of years is grossly disproportionate, a reviewing court

undertakes "a threshold comparison of the crime committed and the sentence

imposed." Harmelin, 501 U.S. at 1005. In the rare case that the threshold comparison

"leads to an inference of gross disproportionality," the court should then perform a

comparative analysis of the defendant's sentence with sentences received by other

offenders in the same jurisdiction and other jurisdictions. Id.

Ford's mandatory life sentence is not grossly disproportionate compared to his

criminal conviction. Statutesthat impose mandatory life sentences "for drug offenses

do not violate the Eighth Amendment's prohibition of cruel and unusual

punishments." United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) (citation

omitted). "It is well settled that a sentence within the range provided by statute is

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel 2

and unusual punishments inflicted." U.S. Const. amend. VIII. 

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generally not reviewable by an appellate court." Id. (citation omitted). Furthermore,

we have never found a sentence that falls within the range prescribed by statute to be

an Eighth Amendment violation. Id. at 680. Ford's sentence falls within the range

provided by § 841(b)(1)(A). Ford's argument and legal authority do not persuade us

to hold that § 841(b)(1)(A)'s mandatory life sentence violatesthe Eighth Amendment.

We have previouslyconsidered and rejected a similar Graham-based argument.

In United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), the defendant relied on

Graham in challenging the sentencing court's use of prior juvenile felony drug

convictions. Id. at 1017. We explained that the Supreme Court's "analysis in Graham

was limited to defendants sentenced to life in prison without parole for crimes

committed as juveniles. The Court in Graham did not call into question the

constitutionality of using prior convictions, juvenile or otherwise, to enhance the

sentence of a convicted adult." Id. at 1018. Likewise, the Court in Graham did not

call into question the use of mandatory life sentences for adult offenders. Indeed,

much of the analysis of Graham centers on the distinction between juvenile and adult

offenders. See Graham, 560 U.S. at 68–72 (finding that "compared to adults,"

juveniles are less culpable, more capable of change, and less susceptible to

deterrence).

Notably, Ford's argument, if adopted, would effectively require holding that

statutesimposingmandatory life terms are categorically unconstitutional. Ford's logic

would permit life sentences only after sentencing courts engage in an additional

analysis similar to the analysis already present under 18 U.S.C. § 3553. Contrary to

Ford's assertion that Graham's rationale supports this argument and "substantially

undercut[s]" "the rationale of Harmelin," the Court in Graham expressly reaffirmed

the two classifications set out by the Court in Harmelin. See id. at 59–62. The

analysis in Graham was limited to the second classification of cases, where

categorical rules define Eighth Amendment standards. Id. at 60. But the Court did not

reject the validity of the first classification, where a sentence is assessed for gross

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disproportionality. Id. at 59. Like Ford, the petitioner in Harmelin "attack[ed] his

sentence because of its mandatory nature," arguing that "any severe penalty scheme

requires individualized sentencing so that a judicial official may consider mitigating

circumstances." 501 U.S. at 1006 (Kennedy, J., concurring in part and concurring in

judgment). The Court held that its "precedents do not support this proposition." Id.

Rather, the Court explained that its precedents demonstrate that there is no

requirement of individualized sentencing in noncapital cases. Id. 

As discussed above, Ford's sentence is not an "extreme sentence[] that [is]

grossly disproportionate to the crime." See id. at 1001 (quotation and citation

omitted).

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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