# Santos L. Reyes v. Jill Brown, Warden > Court of Appeals for the Ninth Circuit · March 4, 2005 · 399 F.3d 964 URL: https://www.frixlaw.com/law-library/cases/9497787 ## Case - **Full name:** Santos L. REYES, Petitioner-Appellant, v. Jill BROWN, Warden, Respondent-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 4, 2005 - **Citations:** 399 F.3d 964; 2005 WL 502862 - **Precedential status:** Published - **Opinion:** Dissent by Tallman - **Judges:** Pregerson, Fisher, Tallman - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497787 ## How later opinions describe it (automated extraction) - holding that plea offers are relevant to determining whether a Three Strikes sentence is grossly disproportionate to the triggering offense ## Opinion text TALLMAN, Circuit Judge, dissenting: In Ewing and Andrade, the United States Supreme Court fotmd that California Three Strikes sentences' at issue did not violate the Eighth Amendment prohibition on cruel and unusual punishment. Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), Ewing v. California, 538 U.S. 11 , 123 S.Ct. 1179 , 155 L.Ed.2d 108 (2003). In its opinions, the Court allowed for the remote possibility of finding a statutory punishment unconstitutional when it is “grossly disproportionate.” Andrade, 538 U.S. at 73 , 123 S.Ct. 1166 ; see also Ewing, 538 U.S. at 23 , 123 S.Ct. 1179 (noting that the Eighth Amendment contains a narrow “proportionality principle that applies to noncapital sentences”) (internal quotations and citations omitted). The Court did not elaborate what types of violations' this exception might encompass, but warned that “it is applicable ‘only in the exceedingly rare and extreme case.’ ” Ramirez v. Castro, 365 F.3d 755, 763 (9th Cir.2004) (discussing Andrade, 538 U.S. at 72-73 , 123 S.Ct. 1166 ). This is not one of them. • After the Court’s decisions in Ewing and Andrade , the Ninth Circuit quickly found such an exceedingly rare case in Ramirez. Although Ramirez is now the law of the circuit for habeas challenges to Three Strikes sentences, its analysis is less than ideal. The Ramirez opinion sets forth what is, at best, a nebulous balancing test for analyzing whether a lengthy Three Strikes sentence violates the proportionality principle: whether the sentence is “justified by the gravity of [the petitioner’s] most recent offense and criminal history.” Ramirez, 365 F.3d at 768 ; see also Ewing, 538 U.S. at 29 , 123 S.Ct. 1179 (noting that, when considering the gravity of the offense, the court “must place on the scales not only his current felony,” but also his criminal history). In determining the gravity of the triggering offense and criminal history, Ramirez instructs courts to examine the “core conduct” of the crimes and consider: (1) whether the crime involved the use of force; (2) whether weapons were present; 1 (3) whether the crime was violent in nature; and (4) the length and type of sentence imposed. See Ramirez, 365 F.3d at 768-69 (discussing the factors of Ramirez’s triggering offense and criminal history *971 that were relevant in determining whether the sentence was justified). 2 The court here declares that Reyes potentially presents another one of these exceptionally rare cases, and that an evi-' dentiary hearing is required in order to determine whether Reyes’ punishment violated the proportionality principle. Based on Supreme Court and Ninth Circuit precedent, I disagree with both of these propositions. However much individual judges chafe at the Supreme Court’s decisions in Ewing and Andrade or the electorate’s continuing and clear expression of support for tough treatment of repeat offenders, our obligation is to apply the law which the Supreme Court upheld in Andrade and Ewing . Reyes does not present an “extraordinary” rare case; he is a career' criminal. Between 1981 and 1997, he' committed six crimes and spent almost seven years be-' hind bars, five of which were passed in state prison. His criminal history reflects the very type and degree of recidivism the Supreme Court recognizes Three Strikes laws were properly intended to address. Rummel v. Estelle, 445 U.S. 263, 284-85 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980) (rejecting an Eighth Amendment challenge to Texas’ recidivist statute). Furthermore, even if a narrow class of cases exist that might constitute an unusual exception, Ramirez’s criminal history pales in comparison to Reyes’ sixteen years of on-again, off-again criminality. I would not characterize the nature of Reyes’ .prior convictions as charitably as does the majority, particularly where Reyes has been convicted of battery, armed robbery, and driving while under the influence, all of which pose a potential of seriously injuring other people. There ■ is no need for an evidentiary hearing. While the Ramirez balancing test is admittedly vague, at least two pf the four factors that the Ramirez court considered relevant weigh heavily in favor of finding Reyes’ sentence justified. First, Reyes was convicted of armed robbery; contrary to the panel majority’s inferences, this strike certainly involves at least the presence of a weapon during the commission of a violent crime. Second, Reyes served five years of a nine-year state prison sentence for his armed robbery conviction. Not only is this a lengthy sentence, but Ramirez explicitly noted that a critical consideration in determining whether a sentence is proportionate is whether the petitioner has ever “been sentenced to [or] served any time in state prison prior to committing” the triggering- offense. Ramirez, 365 F.3d at 769 (emphasis added). These facts strongly distinguish Reyes’ case from Ramirez and justify the Three Strikes sentence imposed. It is unclear what sorts of facts the court here anticipates will be revealed during the evidentiary hearing, or what difference they will make in the proportionality inquiry. It is also unclear what facts the district court on habeas review is permitted to revisit in its “core conduct” inquiry in the face of a final state criminal judgment that Reyes committed. a robbery while armed. Because Ramirez sets forth a balancing test, the district court must simply determine that, in consideration of the four factors, and particularly his pattern of con-, tinuing criminal behavior, Reyes’ prior time spent in state prison and his earlier conviction for armed robbery render .-his Three Strikes sentence for perjury justified under controlling Supreme Court precedent. There is no need for an evi- *972 dentiary hearing to reach that conclusion on the record already before us. I would deny Reyes’ petition for rehearing and petition for rehearing en banc. Accordingly, I DISSENT from this futile remand. . The panel majority attempts to distinguish Reyes from Rios v. Garcia, 390 F.3d 1082 (9th Cir.2004), by focusing on the fact that Rios' cohort used a weapon. This sort of parsing is unpersuasive in distinguishing the two cases and also illustrates the difficulties of following precedent such as Ramirez. First, as unworkable as Ramirez is, it focuses on the presence .of a weapon, not whether, how, or where it was or was not. used. Second, even Rios arguably weighs in favor of finding Reyes' punishment justified; in Rios , the court found his punishment justified simply because Rios' cohort had a weapon. Reyes has no such excuse because he, himself, carried the weapon. Finally, Rios and the majority opinion . here foretell what is to come in .the wake of Ramirez: inconsistent outcomes in cases depending on whether ’individual panels choose to focus on the presence versus the use versus the involvement of a weapon. Surely the Eighth Amendment analysis must rely on more substantive distinctions. All three cases err in ignoring the key point that the Three Strikes Statute punishes recidivism, not subtle differences between the nature of the triggering offense or prior offenses. . Ramirez did not explicitly list a set of factors to consider when making this inquiry, nor did it explicitly state that this was a balancing test, leaving future panels with’ the unfortunate task of gleaning clear guidelines from the opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497787. Public record. Not legal advice.