PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-5039

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FAISAL HASHIME,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:12-cr-00329-LMB-1)

Argued: September 20, 2013 Decided: October 29, 2013

Before WILKINSON, KING, and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson 

wrote the opinion, in which Judge King and Judge Wynn joined.

Judge King wrote a separate concurring opinion.

ARGUED: Jonathan Shapiro, Peter D. Greenspun, GREENSPUN SHAPIRO 

PC, Fairfax, Virginia, for Appellant. Maureen Catherine Cain, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Appellee. ON BRIEF: Mikhail N. Lopez, GREENSPUN SHAPIRO PC, 

Fairfax, Virginia, for Appellant. Alexander T. H. Nguyen, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Alexandria, Virginia, for Appellee.
2

WILKINSON, Circuit Judge:

The day after his twentieth birthday, Faisal Hashime was 

convicted of multiple counts related to child pornography and 

later sentenced to fifteen years in prison. Hashime made 

numerous self-incriminating statements while being interrogated 

by law-enforcement agents during a search of his home. Because 

the agents did not read Hashime his Miranda rights until well 

into what was plainly an extended custodial interrogation, we 

reverse Hashime’s conviction and remand for further proceedings 

consistent with this decision.

I.

A.

In November 2010, while monitoring a website used to 

exchange child pornography, a law-enforcement agent with 

Immigration and Customs Enforcement’s Homeland Security 

Investigations unit (HSI) discovered a naked picture of a minor 

boy with the caption “Email me, t.campbell2011@gmail.com.” In 

July 2011, the agent sent an email to the 

t.campbell2011@gmail.com address, asking to trade childpornography images. The agent eventually received twenty-four 

explicit pictures of a naked boy. By tracing the email 

account’s associated IP address, HSI concluded that the account 

was being used by someone in the Hashime family home.
3

Based on this information, law enforcement obtained and 

executed search warrants on both the t.campbell2011@gmail.com 

email account and Hashime’s house. Shortly after 9:00 AM on May 

18, 2012, a team of 15-30 state and federal law-enforcement 

agents equipped with a battering ram descended on Hashime’s 

home. Hashime, at the time a 19-year-old community-college 

student, lived with his parents in suburban northern Virginia. 

The agents banged on the entrance, yelling “Open the door.”

After being let in by Hashime’s aunt, the officers streamed 

into the house with their guns drawn. An officer entered 

Hashime’s bedroom and pointed a gun at him. Hashime was in bed, 

naked and asleep, having gone to bed at 5 AM that morning. The 

officer ordered Hashime to “Get up. . . . Get out of bed,” and 

instructed Hashime to show his hands. After Hashime put on 

boxer shorts, the officer held Hashime by the arm, issuing

orders to him, and marched him out to the front lawn, where 

officers were corralling the other members of his family. 

Despite the chilly weather, the Hashime family members were kept 

outside, several of them dressed only in their nightclothes.

When law enforcement eventually allowed Hashime and his 

family back into their house, they were kept in the living room 

while the officers completed their sweep of the home. Hashime 

was not allowed to go to the bathroom until the officers had 

“clear[ed] it out.” Hashime was given his clothes but was not 
4

provided with shoes or socks. Hashime’s mother, who was 

recovering from recent brain surgery, and about whose health 

Hashime was concerned, asked to lie down for health reasons but 

was not allowed to. The Hashime family members were not 

permitted to be alone and were instructed that they had to be 

accompanied by officers at all times. The law-enforcement 

agents proceeded to interrogate each of them individually.

Hashime was escorted by two officers to the basement for 

interrogation. The basement was finished, but the officers 

chose to interrogate Hashime in a room that was being used as a 

storage area. Hashime’s family was not allowed to see Hashime 

until the three-hour interrogation was over. Hashime’s mother 

asked the officers three times for an attorney for Hashime, but 

was told that he was being questioned and that she could not see 

him or otherwise interrupt the interrogation. According to 

Hashime’s mother, the officers told her that Hashime was under 

arrest.

The officers secretly recorded the interrogation. When 

Hashime asked them if they were recording it, the lead 

interrogator, who was not carrying the recording device, told 

Hashime, “I can tell you I don’t have a recorder on . . . .” 

During the interrogation, Hashime admitted to having child 

pornography on his computer and told the officers in great 

detail about how he had obtained the photographs. Hashime also 
5

gave the officers the password to his computer and told them 

where the child-pornography images were located on his hard 

drive.

At the beginning of the interview, the officers told 

Hashime that he did not have to answer their questions and could 

leave at any time. However, at one point in the interrogation, 

one of the officers told Hashime, “I need to know, and I need 

you to be completely honest with me here even if you’re afraid, 

I don’t care if you say I don’t want to answer that or I’m 

afraid to answer it, but I need to know the truth.” JA 585. In 

addition, when one of the interrogators left Hashime to go 

upstairs, he told Hashime, “[L]ike I said at the beginning, the 

search warrant we got to kind of keep an eye on you . . . . I 

can’t leave you here with nobody here.” JA 617-18.

The officers did not read Hashime his Miranda rights until 

over two hours into the interrogation.

B.

Hashime was arrested three days after the interrogation. 

In July 2012 he was indicted on seven counts of production, 

distribution, receipt, and possession of child pornography in 

violation of 18 U.S.C. §§ 2251 and 2252.

Prior to trial, Hashime moved to suppress the statements he 

made to the law-enforcement agents during the interrogation on 

the grounds that he was in custody at the time and did not 
6

receive the required Miranda warning at the beginning of the 

interrogation. The district court rejected this motion, 

emphasizing Hashime’s demeanor and tone during his 

interrogation, his general familiarity with law-enforcement 

practices, and his apparent lack of concern with any imminent 

arrest. The court relied in particular on the recording of the 

interrogation, stating that “were it not for the tape, I think 

you’d [Hashime] win your case.” JA 125-26. The court noted 

that “the voice of the defendant . . . expressed no kind of 

hesitation, no nervousness” and that the evidence of Hashime’s 

“forthcoming-ness” was “powerful.” JA 126. The court concluded 

that Hashime “was free to leave and . . . believed himself to be 

free to leave.” JA 129.

Hashime pled guilty to the receipt and possession charges, 

the former of which carried a mandatory minimum of five years in 

prison and a maximum sentence of twenty years. The government 

nevertheless chose to also prosecute Hashime on the production 

and distribution charges.

At the bench trial, multiple minors testified about their 

contacts with Hashime. Together with Hashime’s statements 

during the interrogation, this evidence established Hashime’s 

pattern of behavior: he would pose as an attractive teenage girl 

named Tracy and make contact with boys on websites used for 

anonymous chatting or through direct email communication. 
7

Hashime would offer –- in many cases successfully -- to trade 

nude pictures of Tracy for nude pictures of the boys. On 

occasion, he redistributed the pictures he obtained. The court 

found Hashime guilty of the production and distribution counts.

Prior to sentencing, Hashime moved to strike the mandatoryminimum sentences applicable to him on the ground that they 

violated the Eighth Amendment. The district court denied the 

motion, finding proportionality review unavailable for a 

sentence less than life imprisonment without the possibility of 

parole.

At sentencing, the district court rejected the government’s 

request for a thirty-year sentence as “way more than would be 

appropriate.” JA 451. The district court emphasized Hashime’s 

youth and immaturity, and instead sentenced him to a fifteenyear sentence -- the mandatory-minimum fifteen-year sentences 

for the production charges, and a combination of mandatory and 

non-mandatory five-year sentences on the other charges, all to 

run concurrently -- followed by twenty years of supervised 

release.

II.

Hashime first argues that his conviction should be reversed 

because law-enforcement agents failed to read him his Miranda

rights at the beginning of the interrogation. “We review the 
8

factual findings underlying a motion to suppress for clear error 

and the district court's legal determinations de novo. When a 

suppression motion has been denied, this Court reviews the 

evidence in the light most favorable to the government.” United 

States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012) (citations 

omitted).

A.

The Fifth Amendment provides that “No person . . . shall be 

compelled in any criminal case to be a witness against himself.” 

U.S. Const. amend. V. As a prophylactic safeguard for this 

constitutional guarantee, the Supreme Court has required law 

enforcement to inform individuals who are in custody of their 

Fifth Amendment rights prior to interrogation. See Miranda v. 

Arizona, 384 U.S. 436, 444 (1966); United States v. Parker, 262 

F.3d 415, 419 (4th Cir. 2001). Without a Miranda warning, 

evidence obtained from the interrogation is generally 

inadmissible. See id.; see also United States v. Hargrove, 625 

F.3d 170, 177 (4th Cir. 2010).

When deciding whether a defendant not under formal arrest 

was in custody -- and thus if the Miranda requirements apply --

a court asks whether, “under the totality of the circumstances, 

‘a suspect’s freedom of action [was] curtailed to a degree 

associated with formal arrest.’” Parker, 262 F.3d at 419 

(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). This 
9

inquiry is an objective one, and asks whether “‘a reasonable man 

in the suspect’s position would have understood his situation’ 

to be one of custody.” United States v. Colonna, 511 F.3d 431, 

435 (4th Cir. 2007) (quoting Berkemer, 468 U.S. at 422). In 

other words, the court considers whether “a reasonable person 

[would] have felt he or she was not at liberty to terminate the 

interrogation and leave.” United States v. Jamison, 509 F.3d 

623, 628 (4th Cir. 2007) (alteration in original) (quoting 

Thompson v. Keohane, 516 U.S. 99, 112 (1995)) (internal 

quotation marks omitted).

Facts relevant to the custodial inquiry include, but are 

not limited to, “the time, place and purpose of the encounter, 

the words used by the officer, the officer's tone of voice and 

general demeanor, the presence of multiple officers, the 

potential display of a weapon by an officer, and whether there 

was any physical contact between the officer and the defendant.” 

United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010) (quoting 

United States v. Weaver, 282 F.3d 302, 312 (4th Cir. 2002)) 

(internal quotation marks omitted). Also pertinent are the 

suspect’s isolation and separation from family, see United 

States v. Griffin, 7 F.3d 1512, 1519 (10th Cir. 1993), and 

physical restrictions, United States v. Griffin, 922 F.2d 1343, 

1347 (8th Cir. 1990).
10

B.

The district court ruled, and the government argues, that a 

Miranda warning was not required because Hashime was not in 

custody. There is no question that the officers interrogated 

Hashime and the custody question is the only one remaining.1 The 

government’s case rests on two grounds: law enforcement’s 

conduct toward and statements to Hashime prior to and during the 

interrogation, and Hashime’s tone and demeanor during the 

interrogation. We address each in turn.

The government argues that the law-enforcement agents’ 

behavior establishes that the interrogation was non-custodial. 

The government notes that, when the Hashime family was gathered 

in the living room, an agent said that no one was under arrest. 

Furthermore, at the beginning of the interview, one of the 

interrogators told Hashime that “most importantly we want you to 

know that you don’t have to talk to us;” that Hashime could 

“answer some questions or not answer questions;” and that he 

could “leave any time.” JA 473. The interrogators also 

informed Hashime, both before and after reading him his Miranda

rights, that they were not there to arrest anyone but rather to 

execute a search warrant, and that the ultimate decision about 

 1 Hashime does not raise any Fourth Amendment challenges to 

the execution of the search warrant, and none are at issue here.
11

arrest would be made by the prosecutor. The government also 

emphasizes that the interrogators offered Hashime multiple 

breaks for the bathroom and coffee, all of which Hashime 

declined. The government notes that Hashime was not handcuffed 

during the interrogation, that the door to the room in which he 

was interrogated was open, and that Hashime was sitting in the 

chair closest to the door.

The government’s argument is fine as far as it goes, but it 

wholly ignores the larger setting. First, other statements made 

by law enforcement undercut the government’s claim that Hashime 

was consistently told that he could leave at any time and did 

not need to answer any questions. During the interrogation, one 

of the officers told Hashime that, with respect to his prior 

sexual history with minors, “I need to know, and I need you to 

be completely honest with me here even if you’re afraid, I don’t 

care if you say I don’t want to answer that or I’m afraid to 

answer it, but I need to know the truth.” Likewise, when the 

interrogator left to go upstairs, he told Hashime, “[L]ike I 

said at the beginning, the search warrant we got to kind of keep 

an eye on you . . . . I can’t leave you here with nobody here.”

Second, even to the extent that law enforcement told 

Hashime that he did not have to answer questions and was free to 

leave, that by itself does not make the interrogation noncustodial. Although a statement that the individual being 
12

interrogated is free to leave may be “highly probative of 

whether, in the totality of the circumstances, a reasonable 

person would have reason to believe he was ‘in custody,’” such a 

statement “is not ‘talismanic’ or sufficient in and of itself to 

show a lack of custody.” United States v. Hargrove, 625 F.3d 

170, 180 (4th Cir. 2010). The broader setting makes clear why a 

few isolated statements by law enforcement in the course of a 

three-hour interrogation cannot erase its custodial nature. 

Before the interrogation, Hashime had awoken at gunpoint to a 

harrowing scene: his house was occupied by a flood of armed 

officers who proceeded to evict him and his family and restrict 

their movements once let back inside. Throughout the 

interrogation, Hashime was isolated from his family members, 

with his mother’s repeated requests to see him denied. It is 

little wonder that Hashime testified that, during the 

interrogation, “I didn’t think I had any chance to leave. . . . 

I felt that I was . . . trapped and . . . had to stay where I 

was and do what I was told.” JA 64.

We also cannot accept the argument that the home setting 

here rendered the interrogation non-custodial. While courts are 

generally less likely to characterize as custodial 

interrogations in familiar settings like the home, see 2 Wayne 

R. LaFave et al., Criminal Procedure § 6.6(e), at 738-40 (3d ed. 

2007), the particular facts of Hashime’s interrogation cut in 
13

the other direction. A suspect “may not feel that he can 

successfully terminate the interrogation if he knows that he 

cannot empty his home of his interrogators until they have 

completed their search.” United States v. Craighead, 539 F.3d 

1073, 1083 (9th Cir. 2008). As Hashime testified during the 

suppression hearing, prior to being interrogated he did not feel 

that he could freely move through the house because the officers 

“had people everywhere and telling us what to do, telling me 

what to do, and telling me where not to go and where to go.” JA 

64.

This case is similar to United States v. Colonna, 511 F.3d 

431 (4th Cir. 2007), where we found that an interrogation 

arising out of a search of the home was custodial for Miranda

purposes. In Colonna, twenty-four FBI agents executed a search 

warrant on the defendant’s home, looking for child pornography. 

Id. at 433. Our analysis in that case focused on many of the 

same factors that guide our inquiry here: the large number of 

armed law-enforcement agents, the suspect’s isolation during his 

interrogation, and the suspect and his family’s loss of control 

over their home. See id. at 436. Several of our sister 

circuits have found interrogations to be custodial in similar 

circumstances. See United States v. Cavazos, 668 F.3d 190, 194 

(5th Cir. 2012); Craighead, 539 F.3d at 1089; United States v. 

Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir. 2007).
14

The government, following the district court, also argues 

that Hashime’s tone and demeanor during the interrogation 

demonstrate that it was not custodial. It is true that Hashime 

was cooperative with his interrogators. He admitted he 

possessed child pornography, explained how he had received it, 

provided passwords to his computer, and described where the 

files were located on his hard drive. Hashime told the agents 

that “I want to help you,” and that “I love helping cops. I’ve 

always loved cops. I always wanted to be a cop.” JA 540. It 

is also the case that the tone of the interrogation was calm and 

in some instances almost chatty, with Hashime asking the agents 

whether the investigation would affect his upcoming vacation 

plans and joking with them about the health hazards of smoking 

cigarettes.

Whatever the nature of Hashime’s tone and demeanor, it is 

not dispositive here of the custodial inquiry. As the Supreme 

Court has emphasized, the test for whether an interrogation was 

custodial is an objective one: “[T]he subjective views harbored 

by either the interrogating officers or the person being 

questioned are irrelevant. The test, in other words, involves 

no consideration of the actual mindset of the particular suspect 

subjected to police questioning.” J.D.B. v. North Carolina, 131 

S. Ct. 2394, 2402 (2011) (internal quotation marks and citations 

omitted); see also United States v. Parker, 262 F.3d 415, 419 
15

(4th Cir. 2001) (“Custody determinations do not depend on the 

subjective views of either the interrogating law enforcement 

officers or of the person being questioned, but depend instead 

[on] the objective circumstances of the interrogation.”).

The district court gave primary emphasis to the mannerisms 

of the defendant, remarking that Hashime’s voice expressed “no 

kind of hesitation, no nervousness,” and that his attitude was a 

cooperative one. But Hashime’s attitude -– his apparent 

“forthcoming-ness” as the district court put it -- is more of a 

subjective factor and goes primarily to the voluntariness of 

Hashime’s confession. The voluntariness inquiry and the Miranda

custody inquiry are, however, not one and the same. See

Yarborough v. Alvarado, 541 U.S. 652, 667-78 (2004).

In contrast to Hashime’s manner, the conduct of government 

agents is an objective factor informing the inquiry of whether a 

reasonable person would have felt free to leave. Thus the 

government properly noted such factors as the agents’ tone of 

voice, statements that Hashime was not under arrest, and offer 

of multiple breaks to the defendant. While these objective 

factors the government offers do cut against custody, they are 

decidedly outweighed by other, undisputed objective 

considerations -– among which is the sheer length of what the 

government would prefer to characterize as an “interview,” but 

which was plainly an hours-long interrogation. As Hashime 
16

notes, his “house was swarming with federal and state agents, he 

was rousted from bed at gunpoint, held with family members and 

not allowed to move unless guarded, and ultimately separated 

from his family and placed in a small storage room with two 

agents where he was questioned” by investigators, Appellant’s 

Br. at 15, who stated that he must remain under guard and that 

they needed “to know the truth.”

We thus hold that Hashime was in custody for the purposes 

of Miranda. Consequently, law enforcement’s failure to read him 

his Miranda rights makes his testimony inadmissible and requires 

that his conviction be reversed.2

III.

Hashime also raises an Eighth Amendment proportionality 

challenge to his mandatory fifteen-year sentence. (Hashime’s 

guilty plea on the receipt charge carried its own five-year 

mandatory minimum.) The defense emphasizes Hashime’s youth and 

immaturity. It contends that the offense conduct triggering the 

mandatory fifteen-year minimum for production did not remotely 

resemble “the typical production of child pornography. Rather 

 2 The government argues that, even if the district court 

erred in not suppressing Hashime’s statements, the error was 

harmless. Given the seriousness and extent of Hashime’s 

incriminating statements during the interrogation and the 

important role they played at trial, we disagree.
17

it was the result of the unfortunately common use of the 

internet by sexually curious young people.” Appellant’s Br. at 

40. His case, he argues, was “rare”: “For the year 2010, the 

average age of those convicted of production was 42.” Id.

(citing U.S. Sentencing Comm’n, Report to Congress: Federal 

Child Pornography Offenses 257 n.42 (2013)).

The government argues that Eighth Amendment proportionality 

review is not available for mandatory-minimum sentences of less 

than life without parole, and that any such review would neither 

be required by Supreme Court precedent nor compatible with our 

own. See, e.g., Ewing v. California, 538 U.S. 11, 30-31 (2003); 

United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009). The 

government also contends that, even if proportionality review 

were available for Hashime’s sentence, the mandatory minimums 

for his child-pornography convictions would pass constitutional 

muster. The government notes that even after Hashime turned 

eighteen, he had sexual contact with two minor boys. And 

irrespective of what might constitute relevant conduct under the 

Sentencing Guidelines, the offense conduct itself included 

“impersonating a young girl named ‘Tracy’” in order to solicit 

nude photographs from minors. Appellee’s Br. at 9.

The district court felt considerable unease with the

mandatory minimums sought by the government in this case. At 

sentencing, the court chafed at the prosecutors’ use of their 
18

charging authority to “get into sentencing decisions,” and their 

lack of respect for the sentencing discretion traditionally 

accorded district courts. JA 447. It stated that the 

mandatory-minimum sentences the charges required it to impose 

were not “fair or just,” arguing further that “[t]his is the 

kind of case where the guidelines and mandatory minimums simply 

do not reflect the realities of the specific case and the 

specific defendant.” JA 457.

Our reversal of the conviction makes it unnecessary to 

address any sentencing questions. It suffices to note that, in 

line with our own review of the custody issue and the district 

court’s comments at sentencing, this was a case in which both 

police and prosecution applied a heavy foot to the accelerator. 

We do not doubt for an instant that the defendant’s conduct here 

was reprehensible and worthy of both investigation and 

punishment, as the guilty plea attests. But attention to 

balance and degree often distinguishes the wise exercise of 

prosecutorial discretion from its opposite. For now we leave to 

the reflection of the appropriate authorities whether it was 

necessary to throw the full force of the law against this 19-

year-old in a manner that would very likely render his life 

beyond repair.
19

IV.

For the foregoing reasons, we reverse Hashime’s conviction 

on the production and distribution counts. The case is remanded 

for further proceedings consistent with this decision.

REVERSED AND REMANDED
20

KING, Circuit Judge, concurring:

I concur fully in Judge Wilkinson’s excellent opinion for 

the panel. I write separately, however, to draw attention to a 

misperception of the law of this Court with respect to whether a 

sentence short of life imprisonment may be reviewed to ensure 

that it is constitutionally proportionate to the offense of 

conviction, and not cruel and unusual in contravention of the 

Eighth Amendment. Every other court of appeals permits just 

that sort of proportionality review under the appropriate 

circumstances. So does ours, as I shall demonstrate, though the 

conventional wisdom may say otherwise.

After Hashime submitted his principal brief, in which he 

argued that his fifteen-year sentence was unconstitutionally 

disproportionate, he moved for initial hearing en banc. See

Fed. R. App. P. 35(a). As justification for so doing, Hashime 

asserted that we had “held previously, as opposed to every other 

Circuit, that a sentence of a term of years (as opposed to a 

sentence of life), is not subject to the proportionality 

principle under the Eighth Amendment.” Appellant’s Motion for 

Hearing En Banc at 1. We denied initial hearing en banc 

because, as Judge Gregory (joined by Judge Davis) presaged, “if 

Hashime’s appeal is resolved on the [threshold] Miranda issue, 

his Eighth Amendment argument will be moot.” United States v. 
21

Hashime, 722 F.3d 572, 572 (4th Cir. 2013) (Gregory, J., 

concurring in denial of hearing en banc).

And now that scenario has come to pass. See ante at 18 

(“Our reversal of the conviction makes it unnecessary to address 

any sentencing questions.”). Still, it bears revisiting Judge 

Gregory’s observation that our Eighth Amendment precedent as it 

applies to defendants sentenced to a term of years “seemingly 

materialized from thin air,” and has “inexplicably morphed” over 

the years. Hashime, 722 F.3d at 573. Our most recent published 

iteration of the rule occurred in United States v. Malloy, 568 

F.3d 166 (4th Cir. 2009), where we recited that because the 

defendant in that case had “received less than life without 

parole, proportionality review is not available under our 

precedent.” Id. at 180 (citing United States v. Ming Hong, 242 

F.3d 528, 532 (4th Cir. 2001)). Malloy accurately characterized 

Ming Hong, in which we unabashedly asserted that “[t]his court 

has held that proportionality review is not available for any 

sentence less than life imprisonment without the possibility of 

parole.” 242 F.3d at 532 (emphasis added) (citing United States 

v. Polk, 905 F.2d 54, 55 (4th Cir. 1990)).

Unfortunately, our opinion in Ming Hong misstated the 

precise language of Polk, in which we merely observed that the 

Supreme Court’s decision in Solem v. Helm, 436 U.S. 277 (1983), 

“does not require a proportionality review of any sentence less 
22

than life imprisonment without possibility of parole.” 905 F.2d 

at 55 (emphasis added) (citation omitted). Obviously, to 

withhold a potential avenue of review entirely by simply 

declaring that it is “not available” is hardly the same thing as 

exercising the discretion to only infrequently engage in such 

review under certain circumstances. Even before Ming Hong, we 

neglected to capture the essence of what Solem and Polk actually 

instructed, as we confidently maintained that “[i]t is wellsettled that proportionality review is not appropriate for any 

sentence less than life imprisonment without the possibility of 

parole.” United States v. Lockhart, 58 F.3d 86, 89 (4th Cir. 

1995) (emphasis added) (citing Polk). The irrefutable 

implication of Solem and Polk, however, is to the contrary, that 

is, proportionality review of a term-of-years sentence — though 

not required in every case, or even, perhaps, in most cases —

is, contrary to Lockhart and Ming Hong, appropriate and 

available in some cases.

Although our recent line of authority addressing the issue 

has, understandably, visited ambiguity and confusion upon the 

bench and bar, the way going forward is clear. Where, as here, 

“there is an irreconcilable conflict between opinions issued by 

three-judge panels of this court, the first case to decide the 

issue is the one that must be followed, unless and until it is 

overruled by this court sitting en banc or by the Supreme 
23

Court.” McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 

2004) (en banc). The 1990 decision in Polk, authored by our 

distinguished predecessor Judge Russell, thus states the law of 

our circuit: where a sentence of less than life imprisonment 

has been imposed upon a defendant, proportionality review under 

the Eighth Amendment is discretionary.