Petition — Hutto v. Davis

RECEIVED

74 Hy s SEP 2 1 1979

OFFICE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the Unite

October Term, 1978

OME ees as

TERRELL DON HUTTO, Director,

Virginia State Department of Corrections,

and

J. D. COX, Superintendent,

Powhatan Correctional Center,

Petitioners,

Vv.

ROGER TRENTON DAVIS,

; Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

J. MARSHALL COLEMAN

Attorney General of Virginia

JAMES E. KuLp

Deputy Attorney General

900 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

TABLE OF CASES

Page

Anthony v. United States, 331 F.2d 687 (9th Cir. 1964) ...... 8

Carmona v. Ward, 576 F.2d 405, 408 (2nd Cir. 1978), cert.

Ou. . i, See... SP ee, BPE CIS)... 2... 5... 7,9, 14

Government of Canal Zone v. O’Calgan, 580 F.2d 161 (Sth Cir.

1978), cert. denied, ... U.S. ... 99 S.Ct. 589 (1979) ..... 7

Powell v. Texas, 392 U.S. 514, 533 (1968) ................. 10

Page v. United States, 462 F.2d 932 (3rd Cir. 1972) ......... 7

Robinson v. California, 370 U.S. 660 (1972) ............... 8

Rummel v. Estelle, 587 F.2d 651 (Sth Cir. 1978) ........... 7,10

Smith v. United States, 273 F.2d 462 (10th Cir. 1959), cert. de-

nt ae 8

United States v. Del Piano, 593 F.2d 539 (3rd Cir. 1979) ..... 6

United States v. Lincoln, 589 F.2d 379 (8th Cir. ae 6

United States v. MacClain, 501 F.2d 1006 (10th Cir. 1974) ... 7

United States ex rel. Sluder v. Brantley, 454 F.2d 1266 (7th Cir.

ES RRS Sa STE Sl a 7

United States v. Sorcey, 151 F.2d 899 (7th Cir. 1945 ), cert.

ns rE Cw ccecacecscccce 8

United States v. Wilson, 506 F.2d 521 (9th-Cir. par 7

United States v. Wiltberger, 18 U.S. (5 Wheat 1976) (1820) .. 6

Weems v. United States, 217 U.S. 349 (1910) ............... 8

OTHER AUTHORITIES

ERT SS EE es a a 11

EE SRE ee 2

§ 18.2-248, Code of Virginia (1950), as amended .......... 2, 13

§ 18.2-250, Code of Virginia (1950), as amended ............ 13

§ 18.2-11, Code of Virginia (1950), as amended ............. 13

2 ey nen natin RE

In The

Supreme Court of the United States

October Term, 1978

UG: hata as.

TERRELL DON HUTTO, Director,

Virginia State Department of Corrections,

and

J. Lb. COX, Superintendent,

Powhatan Correctional Center,

Petitioners,

Vv.

ROGER TRENTON DAVIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

PRELIMINARY STATEMENT

Terrell Don Hutto (in the place of Jack F. Davis), Di-

rector of the Virginia State Department of Corrections and

J. D. Cox (in the place of R. M. Muncy), Superintendent,

Powhatan Correctional Center, pray that a Writ of Cer-

tiorari issue to review a judgment of the United States Court

of Appeals for the Fourth Circuit entered on June 29, 1979,

in the case of Roger Trenton Davis v. Jack F. Davis, Di-

rector, Virginia State Department of Corrections and R. M.

Muncy, Superintendent, Powhatan Correctional Center.

2

OPINIONS BELOW

The opinion of the Court of Appeals en banc has not

been reported, and is included herein as Appendix A. The

panel decision of the Court of Appeals is reported in 585

F.2d 1226, and is included herein as Appendix B. The

opinion of the United States District Court is reported in

432 F.Supp. 444.

JURISDICTION

The jurisdiction of this Court to issue the Writ of Cer-

tiorari is this case is invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

§ 18.2-248. Penalties for manufacture, sale, gift, distribu-

tion or possession of a controlled drug.—Except as author-

ized in The Drug Control Act, chapter 15.1 (§ 54-524.1 et

seq.) of Title 54 of this Code, it shall be unlawful for any

person to manufacture, sell, give, distribute or possess with

intent to manufacture, sell, give or distribute a controlled

substance.

(a) Any person who violates this section with respect to a

controlled substance classified in Schedules I, II or III shall

upon conviction be imprisoned for not less than five nor

more than forty years and fined not more than twenty-five

thousand dollars; any person, upon a second or subsequent

conviction of a violation of this section involving an opiate

or synthetic opiate drug, may in the discretion of the court

or jury imposing the sentence, be sentenced to confinement

in the penitentiary for a term of life imprisonment or for any

period not less than five years; provided, that if such person

prove that he gave, distributed or possessed with intent to

give or distribute a controlled substance classified in Sched-

ule I or II other than marijuana only as an accommodation

3

to another individual and not with intent to profit thereby

nor to induce the recipient or intended recipient of the con-

trolled substance to use or become addicted to or dependent

upon such controlled substance, he shall be guilty of a Class

5 felony; and provided further, that if such person prove

that he gave, distributed or possessed with intent to give or

distribute marijuana or a controlled substance classified in

Schedule III only as an accommodation to another indi-

vidual and not with intent to profit thereby nor to induce

the recipient or intended recipient of the controlled sub-

stance to use or become addicted to or dependent upon such

controlled substance, he shall be guilty of a Class 1 misde-

meanor.

Provided, further, that if the violation of the provisions of

this article consist of the filling by a pharmacist of the pre-

scription of a person authorized under this article to issue

the same, which prescription has not been received in

writing by the pharmacist prior to the filling thereof, and

such written prescription is in fact received by the pharma-

cist within one week of the time of filling the same, or if

such violation consists of a request by such authorized per-

son for the filling by a pharmacist of a prescription which

has not been received in writing by the pharmacist and such

prescription is, in fact, written at the time of such request

and delivered to the pharmacist within one week thereof,

either such offense shall constitute a Class 4 misdemeanor.

(b) Any person who violates this section with respect to

a controlled substance classified in Schedules IV, V or VI

shall be guilty of a Class 1 misdemeanor.

QUESTIONS PRESENTED

I. Should A Federal Court Invalidate A State Prisoner’s

Sentence Of A Term Of Years When The Sentence Is Within

The Statutory Limits Set By State Law?

4

It. If A Federal Court Has The Authority To Invalidate

A State Prisoner’s Sentence Of A Term Of Years, What

Standard Should The Federal Court Apply?

Iif. Did The Court Of Appeals Error In Finding That

Responcent’s Sentence Constituted Cruel And Unusual

Punishment?

STATEMENT OF THE CASE

Roger Trenton Davis was indicted for two separate and

distinct violations of the Virginia Drug Control Law. After

trial by jury Davis was found guilty of selling marijuana for

which he was sentenced to a term of imprisonment of

twenty (20) years and fined ten thousand ($10,000.00)

dollars. He was also convicted of possession of marijuana

with intent to distribute for which he was likewise sentenced

to a term of imprisonment of twenty (20) years and fined

ten thousand ($10,000.00) dollars. Davis appealed his con-

victions to the Supreme Court of Virginia which denied his

petition for writ of error.

The principle evidence against Davis came from the testi-

mony of Danny Ray Eads. Eads, an inmate in the Virginia

Correctional system, became concerned with his wife’s usage

of drugs and its effect upon the welfare of his two-year-old

child. Eads approached state officials and offered to assist in

the exposure and arrest of those persons supplying drugs to

his wife and any illicit drug distributors, including Davis

who Eads identified as an active drug dealer in the county

where his wife resided.

The Commonwealth accepted Eads’ offer of assistance

and granted him a furlough from prison for the purpose of

apprehending drug traffickers. He was placed under strict

surveillance during the investigation, and at times wore a

iransmitter strapped to his body so that the police could

hear and record his conversations with drug dealers.

>

Eads met Davis, with whom he had become acquainted in

jail while Davis was charged with a different drug offense,

and told Davis he wished to purchase drugs for himself and

for some mutual friends at the prison. Davis advised that he

could sell Eads a quarter pound of marijuana for one-

hundred “$100.00) dollars. When Eads protested that the

price was too high Davis said he could make up a seventy-

five ($75.00) dollar bag.

Eads accompanied Davis to his home where Davis re-

moved a portion of marijuana from a large plastic bag,

weighed it on a small scale, and gave three (3) ounces of

marijuana to Eads in exchange for seventy-four ($74.00)

dollars. Davis also gave Eads some drug pills, including

L.S.D. and other illicit controlled drugs. During this trans-

action Davis said he would like to blow up the State Police

Headquarters. The conversations between Eads and Davis

were transmitted via Eads’ hidden transmitter and recorded

by the police. These recordings were played for the jury.

The second charge against Davis resulted from a police

raid of his residence. In Davis’ bedroom the police discov-

ered two sets of scales and other drug paraphernalia. A

small plastic bag containing eight grams of marijuana was

found in a jacket, and outside of the bedroom window the

police found a large plastic bag, similar to the receptacle

from which Davis took the marijuana sold to Eads, which

contained one-hundred and sixty-eight grams of marijuana.

Davis was found hiding in a closet.

After exhausting his state remedies Davis filed a petition

for writ of habeas corpus in the United States District Court.

The district court granted the writ upon its belief that the

sentence was grossly out of proportion to the severity of the

crimes as to constitute cruel and unusual punishment in

violation of the Eighth Amendment of the United States

Constitution. A panel of the Court of Appeals reversed the

6

district court concluding that the sentences were neither

cruel nor unusual. The Court of Appeals reconsidered the

issue en banc and by a vote of 4 to 3, adopted the district

court opinion and affirmed the issuance of the writ of habeas

corpus.

THE QUESTIONS ARE SUBSTANTIAL

The questions presented by this petition raise important

issues of federal law which have not previously been settled

by this Court. Until the decision of the Fourth Circuit Court

of Appeals, neither this Court nor any federal appellant

Court has set aside the sentence of a State Court imposing

a sentence for a term of years within the State statutory

limits, as being cruel and unusual, without invalidating the

statute under which the sentence was imposed. This prece-

dent of setting up the federal court as a super State jury is

not only without legal precedent or authority, but is fraught

with danger.

To start down the road of reviewing the severity of State

sentences which fall within the statutory limits, the federal

courts will trespass upon the responsibilities of the Legisla-

tive Branch, whose duty is to define a crime and ordain its

punishment. United States v. Wiltberger, 18 U.S. (5 Wheat. )

(1820). If such a precedent is allowed to stand the federal

courts will have usurped the very function which has tradi-

tionally been left to the sentencing authority.

The issues presented will not be limited to local applica-

tion. They will impact nationally, not only in habeas corpus

proceedings, but in the direct review of criminal cases, both

State and Federal. Heretofore, federal appellant courts have

refused to review the severity of a federal sentence on direct

appeal if the sentence fell within the statutory limits set by

Congress. United States v. Del Piano, 593 F.2d 539 (3rd

Cir. 1979); United States v. Lincoln, 589 F.2d 379 (8th

7

Cir. 1979); Government of Canal Zone v. O’Calgan, 580

F.2d 161 (Sth Cir. 1978), cert. denied, ... U.S. ..., 99

S.Ct. 589 (1979). Surely, if the federal courts are given

authority to examine the severity of sentences of State courts

they will be obliged to apply the same rule to federal sen-

tences.

The decision of the Fourth Circuit Court of Appeals

brings it into direct conflict with the decisions of other cir-

cuits. Other circuit courts of appeals have consistently re-

fused to review the length of a sentence which was within

the limits set by the legislative branch. United States ex rel.

Sluder v. Brantley, 454 F.2d 1266 (7th Cir. 1972); United

States v. Wilson, 506 F.2d 521 (9th Cir. 1974); United

States v. MacClain, 501 F.2d 1006 (10th Cir. 1974); Page

Vv. United States, 462 F.2d 932 (3rd Cir. 1972).

The opinion of the Fourth Circuit Court of Appeals also

conflicts with the opinion of the Fifth Circuit in Rummel v.

Estelle, 587 F.2d 651 (Sth Cir. 1978). The court in Rum-

mel considered whether a prisoner’s life sentence under the

Texas habitual criminal‘statute violated the Eighth Amend-

ment because his sentence was grossly disproportionate to

his crime. In finding the sentence neither cruel nor unusual,

the Fifth Circuit specifically rejected as a part of the ap-

propriate proportionately analysis the test that “seeks to

determine whether a significantly less severe punishment

could achieve the purposes for which the challenged punish-

ment is inflicted.” 587 F.2d at 660, 661. This rejected test

was utilized by the Fourth Circuit Court of Appeals in ar-

riving at its opinion that the sentence in the present case was

cruel and unusual.

This Court has not given any guidance to lower courts in

this sensitive area. Carmona v. Ward, 576 F.2d 405, 408

(2nd Cir. 1978), cert. denied, ... U.S. ..., 99 S.Ct. 874

(1979). Unless this Court promptly provides such guidance,

sentences in criminal cases will be continually in jeopardy,

and the finality of judgments in criminal cases will be under-

mined.

FEDERAL COURTS SHOULD NOT INVALIDATE A

STATE PRISONER’S SENTENCE OF A TERM OF

YEARS WHEN THE SENTENCE IS WITHIN THE

STATUTORY LIMITS SET BY STATE LAW.

From the time the Eighth Amendment was adopted a ma-

jority of this Court has struck down only two non-capital

punishments as cruel and unusual. In those cases, however,

elements of cruelty were present. In Weems v. United States,

217 U.S. 349 (1910), the defendant was sentenced to fifteen

years imprisonment, cardena temporal, which involved

“hard and painful labor” with “a chain at the ankle, hanging

from the wrist.” Id., at p. 364. In Robinson v. California,

370 U.S. 660 (1972), this Court held that imprisonment

for the status of being a drug addict was cruel and unusual

punishment.

History has shown that this Court has never entered the

thicket of substituting its judgment of what constitutes an

appropriate sentence for the judgment of the sentencing au-

thority. Various circuit courts of appeals have at different

umes held that they had no power to review any prison sen-

tence within the legislatively created maximum. Anthony v.

United States, 331 F.2d 687 (9th Cir. 1964); Smith v.

United States, 273 F.2d 462 (10th Cir. 1959), cert. denied,

363 U.S. 846 (1960); United States v. Sorcey, 151 F.2d

899 (7th Cir. 1945), cert. denied, 327 U.S. 794 (1946).

The reason such drastic interference with sentences has

not been authorized seems to be clear. The power of punish-

ment is vested in the legislative, not the judicial branch of

government. The legislature not only defines what shall con-

AN

9

stitute a crime, ‘ut also selects the range of punishment. To

authorize fedeval courts to supervise the length of sentences

given by state courts will inevitably bring the courts into

conflict with legislative judgments. In our system of govern-

ment it is the legislature, not the judiciary, who is constituted

to respond to the will and moral values of the people.

The difficulties in adopting sentence review are all too

apparent. The Fourth Circuit based much of its opinion on

the fact that only nine ounces of marijuana were involved

in the crimes. Whereas the Second Circuit upheld a sen-

tence of six years to life for the sale of three and three eights

ounces of cocaine as not constituting cruel and unusual

punishment. Carmona v. Ward, supra. If the forty-year sen-

tence for the sale and possession with intent to sell nine

ounces of marijuana is held to be excessive, should not the

sentence for the sale of three and three eights ounces of

cocaine be considerably less then forty years? Of course, the

drugs in «ived were different, but who is to say that cocaine

is more dangerous then marijuana, the legislature or the

courts?

If the sale of drugs in the present case had been sixteen

ounces rather than nine ounces, would the result have been

the same? Would the result have changed if the sale had

been of twenty-four ounces, and if so, who is to draw the

dividing line and where is it to be drawn?

Should the decision « “ the Fourth Circuit be upheld, the

respondent must be resentenced. What instructions are to be

given to the jury other than it cannot sentence the respondent

to forty years. If the jury resentences respondent to thirty

years, is that to be considered excessive? What if the resen-

tence is twenty-five years, or twenty years, are they exces-

sive? Again, the question arises who is to draw the line and

where is it to be drawn.

Assume for purposes of argument, that nine ounces of

10

marijuana are sold to a ten-year-old, and the jury arrives at a

sentence of forty years. Is the sentence to be considered

excessive since oniy nine ounces were involved, or is it

proper to take into account the age of the victim? If it is

permissible to take into account the age of the victim, would

it not also be proper to take into account that in the present

case the drugs were sold by Respondent knowing they were

to be taken into the Virginia prison system.

- An infinite number of variations can arise which must be

taken into account in sentencing, and the courts should not

usurp the function of the sentencing authority. In effect what

the Fourth Circuit has done in this case is to substitute its

judgment not only for the judgment of the Virginia Legisla-

ture, but also in place of the jury which fixed the sentence

and the trial judge who entered judgment. This Court has

not allowed itself to be drawn into the position of becoming,

“under the aegis of the Cruel and Unusual Punishment

Clause, the ultimate arbiter of the standards of criminal

responsibility . . . throughout the country.” Powell v. Texas,

392 U.S. 514, 533 (1968). This Court should not now alter

that sound judgment.

II.

IF FEDERAL COURTS HAVE THE AUTHORITY TO

REVIEW THE SEVERITY OF A SENTENCE OF

YEARS THE STANDARDS USED IN RUMMEL vy.

ESTELLE, 587 F.2d 651 (5th Cir. 1978), SHOULD

BE ADOPTED.

The Fifth Circuit Court of Appeals conc!uded that as a

result of jurisprudental development the Eighth Amend-

ment’s cruel and unusual punishment provision proscribes

some punishments that are so disproportionate as to have no

rational support. 587 F.2d at 655.

The Fifth Circuit adopted three standards for proportion-

11

ality review of sentences. First, the Court must look at the

nature of the offense. In this regard the punishment must

be viewed as it occurs in the real world. Additionally, the

Court must be at all times mindful that it is the legislature

that selects the range of punishments, and it is the Court’s

duty to uphold the legislature if there is any rational basis

for so doing. Second, the Court is to compare the punish-

ment with similar punishment in other jurisdictions, and

third, the Court is to examine the punishment available in

the same jurisdiction for other offenses.

The Fifth Circuit specifically rejected the test used by the

Fourth Circuit that “seeks to determine whether a signifi-

cantly less severe punishment could achieve the purposes for

which the challenged punishment is inflicted.” This “lack of

necessity” test has never commanded a majority in this

Court, even in death cases.

It would be impossible to prove that a less severe sentence

would deter crime or be as effective as a longer sentence. A

state could never show that a sentence of ten years would

deter more effectively than a sentence of five years, or that a

jail term would deter more effectively than a fine. Em-

pirical date to support such a judgment would not be

available. See Wheeler, “Toward a Theory of Limited Pun-

ishment II. The Eighth Amendment after Furman v.

George,” 25 Stanford L.Rev. 62.

The Fifth Circuit concluded its determination not to

adopt the “lack of necessity” test by saying:

“The legislature in our society selects the punish-

ment scheme and we are justified to strike down the

legislature’s choice only when the petitioner demon-

strates that the legislative choice has no rational basis

and is totally and utterly rejected in modern thought.

So long as there is room for debate, the choice of the

legislature will not be overturned.” 587 F.2d at 661.

12

If this Court should decide that federal courts have the

authority to examine the severity of a sentence for a term of

years, it should adopt the standards set forth in Rummel

and reject the “lack of necessity” test which was utilized by

the Fourth Circuit.

Ill.

THE COURT OF APPEALS ERRED IN FINDING

RESPONDENT’S SENTENCE TO BE CRUEL

AND UNUSUAL.

In finding Respondent’s sentence cruel and unusual the

Fourth Circuit relied upon the “lack of necessity” test which

Petitioner believes to be improper. For this reason alone the

decision of the Fourth Circuit should be reversed.

Additionally, upon examining Respondent’s sentence in a

rational manner there is nothing to support a finding that it

is cruel and unusual. The Fourth Circuit has made a basic

error in its analysis of Respondent’s sentence. The court has

failed to consider that Respondent was convicted of two

separate and distinct offenses. The court has lumped the two

offenses together to arrive at the sentence of forty years for

possession and sale of less than nine ounces of marijuana.

The first offense for which Respondent was convicted was

the sale of three ounces of marijuana to Danny Rae Eads.

The Respondent knew that Eads was an inmate of the Vir-

ginia penal system who was on a furlough. The Respondent

also knew that Eads intended these drugs to be distributed

to inmates in one of Virginia’s penal institutions, and with

this knowledge also furnished Eads with other drug pills,

including L.S.D. For this offense the jury sentenced Re-

spondent to twenty years and a fine. Any proportionality

review must be of this sentence alone and not in combination

with other sentences.

Under Virginia law applicable at the time of Respondent’s

13

trial the legislature had made it a serious felony to sell for -

profit any drugs classified as a Schedule I, II or III drug. See

§ 18.2-248. The legislature set the range of punishment for

a violation of this law from five te forty years. In fact the

Respondent received exactly one-half of the authorized

punishment. Considering parole, which the Fourth Circuit

declined to do, the Respondent would be eligible for parole

in less than five years. It simply cannot be said that such a

sentence is cruel and unusual when the jury knew the Re-

spondent to be a drug dealer by vocation, that he was willing

to sell drugs to be taken into a penal institution, and had

probably sold drugs to the inmate’s wife who had been left

alone with an infant child. The trial judge who could have

reduced this sentence, in addition to knowing what the jury

knew, also knew that Respondent had previously been con-

- victed of selling L.S.D. and was free on bail pending appeal

when he commited the present offense.

The legislative purpose in enacting § 18.2-248 was to

interdict and punish those persons who would sell controlled

drugs for a profit. The legislature had recognized that if a

person distributed marijuana only as an accommodation to

another individual and not with intent to profit or to induce

the recipient to use or become addicted to or dependant

upon marijuana then his punishment would be a Class I

misdemeanor. The maximum punishment for a Class I mis-

demeanor under Virginia law is twelve months in jail.

§ 18.2-11. Further the legislature made a determination that

persons convicted solely of possession of marijuana the

punishment again would be a Class I misdemeanor.

§ 18.2-250.

The legislative determination that the range of punish-

ment for persons who sell controlled drugs for profit would

be from five to forty years allows the sentencing authority

to allocate an appropriate sentence by taking into considera-

14

tion the background of the defendant, and the nature of the

crime. Selling drugs to be taken into a penal institution is

certainly more serious than selling the same amount of drugs

on the streets.

The Respondent’s second conviction was for possession of

marijuana with intent to sell. When the police went to Re-

spondent’s home they not only found eight grams of mari-

juana in a jacket, but also found one-hundred and sixty-eight

grams of marijuana in a bag outside of the bedroom window.

In addition the police found two sets of scales and other drug

paraphernalia, the tools of the trade of a drug dealer. Again,

this sentence must be viewed alone in any proportionality

review.

The jury knew that Respondent was an active drug

dealer and that the drugs found were not for his own use.

The trial judge knew that Respondent had not been detered

by his previous conviction and was continuing to pursue his

trade while on bond from another drug conviction. See

Carmona Vv. Ward, 576 F.2d at 406. Such conduct by Re-

spondent would of necessity be viewed as constituting a

serious offense by the jury, and they imposed a sentence

which was half of the authorized punishment.

The Respondent did not attack the validity of § 18.2-248

on its face and thereby has accepted the legislature’s classi-

fication of the sale of marijuana for profit as a serious of-

fense. It cannot be said that Respondent’s sentence of twenty

years is without a rational basis or that it is such as would

shock human sensibilities.

CONCLUSION

This case raises serious questions of federal law which go

to the very heart of our democratic society. To venture into

the thicket of proportionality review of sentences for a term

15

of years should not be taken lightly or without guidance

from this Court.

For the foregoing reasons, certiorari should be granted,

and the judgment of the Court below should be reversed.

Respectfully submitted,

J. MARSHALL COLEMAN

BA tionney Ad Ae ee irginia

JAMES AAS KUL

Deputy Attorney General

900 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, James E. Kulp, Deputy Attorney General of Virginia,

of counsel for the petitioner, and a member of the Bar of

the Supreme Court of the United States, do hereby certify

on the 19th day of September, 1979, I mailed a copy of the

foregoing Petition for Writ of Certiorari to Edward L. Hog-

shire, Esquire, 500 Citizens Commonwealth Center, Post

Office Box 1151, Charlottesville, Virginia 22902, and to

John C. Lowe, Esquire, 409 Park Street, Charlottesville,

Virginia 22903, counsel for respondent.

JAMES E. Kutp

Deputy Attorney General

16

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1782

ROGER TRENTON DAVIS,

Appellee,

versus

JACK F. DAVIS, Director,

Virginia State Department of Corrections,

and

R. M. MUNCY, Superintendent,

Powhatan Correctional Center,

Appellants.

Decided June 29, 1979

PER CURIAM:

The petitioner was prosecuted in a court of the Common-

wealth of Virginia upon charges of possession of marijuana

with the intent to distribute and its distribution. Upon con-

viction, although less than nine ounces of marijuana were

involved in the offenses, the court imposed a fine of $20,000

and a sentence of imprisonment of forty years. The district

court concluded that the penalties imposed were so dispro-

portionate to the offenses as to amount to cruel and unusual

punishment in violation of the Eighth Amendment to the

Constitution of the United States. On that basis, a writ of

habeas corpus was awarded, and the Commonwealth of

Virginia has appealed.

We affirm for reasons sufficiently stated by the district

judge in his opinion. 432 F. Supp. 444 (W.D. Va. 1977).

17

This action supersedes the panel opinion. 585 F.2d 1226

(4th Cir. 1978).

AFFIRMED.

WIDENER, Circuit Judge, dissenting, in which dissent he is

joined by Judge Russell and Hall.

I respectfully dissent for the reasons expressed in the

opinion of the panel. 585 F2d 1226 (4th Cir. 1978).

In addition, I should note that I think both the district

court and this court have usurped not only the function of a

State legislature but also that of a State court and a State

jury.

This is the first time, to my knowledge, in the history of

Article III courts, that a federal court of appeals’ has, with-

out invalidating a statute, set aside the sentence of a State

court imposing punishment for a term of years plus a fine,

within State statutory limitations, as being cruel and un-

usual, and the error is compounded because the sentence

itself, while imposed by the court, was fixed by a jury.

The majority opinion emphasizes, apparently as a prin-

cipal reason for its decision, that less than nine ounces of

marijuana were involved in the drug sale in question (for

that is the only reason it gives aside from referring to the

opinion of the district court). But, at the same time, it does

not mention most relevant facts which were before the State

court." Davis was a previously convicted seller of drugs

* Downey Vv. Perini, 518 F2d 1288 (6th Cir. 1975), set aside an

indeterminate sentence for possession and sale of marijuana under

Ohio law. Because the court held the minimum sentence invalid, I

would construe the opinion as invalidating the statute.

It is acknowledged that the Supreme Court has never taken such

action.

*The district court also chose largely to disregard these facts in

its opinion, for it mentioned few of them. Its continued emphasis

was on “less than nine ounces.”

18

(LSD),* and known drug dealer, who, when apprehended,

was in possession of the typical paraphernalia of his voca-

tion. He had sold drugs to the young wife of a prison inmate,

who had a baby at home, which is what brought about the

instant conviction. The marijuana sold here was being sent

with Davis’ knowledge into a State prison camp for use by

the inmates, as was LSD and another illegal drug which

were turned over by Davis for that purpose, at the time of

the marijuana purchase, to the purchaser of the marijuana

involved in this case.

While I would deny the authority of a federal court to

inquire into the amount of Davis’ punishment, rather re-

quiring him to attack the statute involved,‘ on the facts of

the case at hand, I think it cannot be said that Davis did not

merit the punishment awarded, so that as a matter of fact as

well as a matter of law his punishment was neither cruel nor

unusual within the meaning of the Eighth Amendment.

I think the precedent we set here, setting ourselves up as a

super State jury, is not only without legal precedent or au-

thority, in the setting of our “charter of government” I think

it is fraught with danger.

* The district court in its opinion points out yet another conviction

of Davis, prior to Davis’ sentence here, for feloniously distributing

marijuana. 432 F.Supp. at 448, n. 1. This marijuana conviction was

only one day before the search which netted the authorities the 168

grams involved here.

* The en banc court could have taken this view upon respectable

precedent as pointed out in the panel opinion.

19

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1782

ROGER TRENTON DAVIS

Appellee,

V.

JACK F. DAVIS, Director,

Virginia State Department of Corrections,

and

R. M. MUNCY, Superintendent,

Powhatan Correctional Center

Appellants.

Decided October 30, 1978.

WIDENER, Circuit Judge:

This is an appeal from the issuance of a write of habeas

corpus in which case the district court set aside two sen-

tences as being so disproportionately excessive as to consti-

tute cruel and unusual punishment under the Eighth Amend-

ment.

Roger Trenton Davis was convicted in a trial by jury in

Wythe County, Virginia of the offenses of distribution of

marijuana and possession of marijuana with intent to dis-

tribute. In his petition for a writ of habeas corpus, Davis

attacked the severity of the sentences he received, as well as

making other constitutional claims.’ He contends that in this

1 Davis made several additional constitutional claims which were

dismissed by the district court. He does not appeal from their dis-

missal, and the issues are not before this court. The district court’s

opinion is reported at 432 F.Supp. 444 (W.D. Va. 1977).

20

appeal the offense committed was minor; the facts consti-

tuting the case against him reveal a relatively insignificant

crime for which the Commonwealth’s sanction should be

correspondingly slight; and, in view of the claimed relative

innocuousness of the act of selling marijuana in the amounts

proven, the sentences imposed were disproportionate to the

offense. While the district court granted the writ, we do not

agree and we reverse.

I

Davis was sentenced to two twenty year terms, to be

served consecutively, and fined $10,000 for each of the two

counts. As is the practice in Virginia, the jury sentenced

Davis upon its finding of guilt, and the court entered judg-

ment on that verdict. Va. Code Ann., § 19.2-295.?

The jury awarded the sentence after hearing evidence

which revealed Davis to be a dealer in drugs who sold them

to a man who had informed Davis that the drugs were being

procured for distribution to inmates in a state penal institu-

tion. Davis sold not only marijuana but also two other drugs

in pill form, all to be taken to the inmates.

The evidence against Davis centered principally in the

testimony of Danny Ray Eads. Eads, an inmate at Bland

prison farm, approached prison officials with a proposition

concerning drug traffic in Pulaski and Wythe Counties. Eads

was concerned by his wife’s use of drugs (she had become a

drug user after his confinement) and the consequent effect

on the welfare of his two year old child; he told authorities

that he desired a furlough from prison in order to assist in

the exposure and arrest of those supplying drugs to his wife

and any illicit drug distributor in the area, including Davis

who Eads identified as an active drug dealer in Wythe

County.

* See Vines v. Muncy, 553 F2d 342 (4th Cir. 1977).

21

The Commonwealth accepted Ead’s offer of assistance

and allowed him a furlough for the purpose of apprehending

drug traffickers in Pulaski and Wythe Counties. During the

time of the investigation, Eads was under strict surveillance.

As part of the investigation, for example, he wore a trans-

mitter strapped to his body so that the police could hear and

record his conversations with drug dealers.

Eads met Davis on the streets of Wytheville in front of a

“head shop,” a store specializing in the sale of drug para-

phernalia. Eads testified that he and Davis had become ac-

quainted in jail while Davis was in jail, having been ar-

rested on a different drug offense. He told Davis that he

wished to purchase some drugs for himself and for some

mutual friends at Bland prison farm. Davis responded that

he thought he could provide Eads with the contraband he

needed, left, and returned ten minutes later. Eads then ac-

companied Davis to the latter’s home.

There, the two men went into Davis’ bedroom. Davis re-

moved a portion of marijuana from a large plastic bag,

weighed it on a small scale, and gave three ounces of mari-

juana to Eads in return for $74.00. Also, at that time, Davis

gave Eads the drug pills which included L.S.D. and another

illicit controlled drug. This conversation between Eads and

Davis was transmitted via Ead’s hidden transmitter and

recorded by the police. That recording, as well as the re-

cording, of Ead’s initial contact with Davis, was played to

the jury. Thus, the jury was intimately familiar with the

conversation accompanying the transaction, including the

participants’ recognition that the purpose of the drug ac-

quisition was for distribution to inmates in one of the Com-

monwealth’s penal institutions, as well as Davis’ gratuitous

statement that he would like to blow up the state police

headquarters in Wytheville.

On October 26, 1973, law enforcement officials raided

22

the Davis residence. In Davis’ bedroom they discovered two

sets of scales and other drug paraphernalia. A small plastic

bag containing 8 grams of marijuana was found in a jacket.

About fifteen feet outside of the bedroom window, officers

discovered a large plastic bag, similar to the receptacle from

which Davis drew the marijuana sold to Eads, containing

168 grams of marijuana. Davis was discovered hiding in a

closet and told the officers they could not search anything

except his room.

Faced with this evidence, the Wythe County jury was

obviously impressed by Davis’ complete involvement in the

business of selling drugs. While not given all the details, the

jury knew from Eads’ testimony that this was not Davis’ first

trouble with the law in a drug related offense. The evidence

clearly allowed the jury to see the petitioner as an active

drug dealer and not new at the business. He was, instead,

an individual fully aware of the nature of his illegal activity,

who, aware of the purpose for which the drugs were being

procured, was in the business of selling drugs for profit. Ac-

cordingly, the jury awarded the petitioner a sentence which

it believed was appropriate for such an offender. The trial

court, with a more detailed comprehension of Davis’ record

of prior drug offenses, chose to enter judgment on that ver-

dict, and directed the sentences to be served consecutively.

A reasoned decision on whether the sentences were cruel

and unusual must do more than to take these facts into ac-

count; it must accept the facts as an indication of the nature

of the crime committed.*

* Davis does not contend that the sentences authorized by the

Virginia statute are on their face cruel and unusual. Rather, he points

to the excessiveness, in his particular case, of the sentence awarded

by the jury and imposed by the court, relying on Hart v. Coiner, 483

F2d 136 (4th Cir. 1973), cert. den., 415 U.S. 938 (1974). Hence,

we should examine the nature of the factual case against Davis, and,

as in any other criminal case, draw all inferences in favor of the

a a it

23

II

A.

In the petition for a writ of habeas corpus and in argu-

ment, Davis has contended that the sentences intposed upon

him are so excessive as to be disproportionate to the crime

he commited. Although we recognize that the Eighth Amend-

ment “proscribes punishment grossly disproportionate to the

severity of the crime,” see Ingraham v. Wright, 430 US 651,

667 (1977), Davis’ argument would require us to find cruel

and unusual a sentence for a term of years and a fine, both

of which are within the limits set by statute. Under Virginia

law, the distribution of controlled substance, such as mari-

juana, and the possession of the same for distribution were

punishable by a term of imprisonment not less than five nor

more than forty years and by a fine of no more than $25,000.

Va. Code Ann., 1974 Repl. Vol., § 54-524.101:1; see Va.

Code Ann. § 18.2-248. Davis was sentenced to twenty years

imprisonment and a $10,000 fine for each count, punish-

ment well within the limits imposed by the statute. Hence,

we are faced with the question of what is the proper inquiry

into the severity of a jury-awarded and court imposed sen-

tence, when the challenged punishment is a term of years

and fine which fall within the limits imposed by statute?

B.

We begin our inquiry with the observation that the Su-

Commonwealth, for we inquire, in a habeas corpus proceeding, only

as to whether there was any evidence at all to support the Judgment

of the State court. Williams v. Peyton, 414 F2d 776 (4th Cir. 1969).

‘If the distribution, or the possession for distribution, of the mari-

juana had not been for profit, or to induce the use thereof or addic-

tion thereto, but merely as an accomodation to another individual,

Davis would only have been guilty of a Class 1 misdemeanor. § 54-

524.101:1. A Class 1 misdemeanor is punishable by confinement in

jail not to exceed twelve months, or a one thousand dollar fine, or

both. Va. Code Ann. § 18.2-11.

24

preme Court has never found a sentence for a term of years

within the limits authorized by statute to be, by itself, a

cruel and unusual punishment under the Eighth Amend-

ment. Downey v. Perini, 518 F2d 1288, 1290 (6th Cir.

1975), vacated for reconsideration in the light of an Ohio

statute 423 US 993 (1975).°

The Supreme Court decisions upon which Davis places

primary reliance clearly is not such a case. Weems v. United

States, 217 US 349 (1910) involved more a question of the

method of punishment than the length of the prison term.

The defendant, an official of the Phillipine government, was

convicted of falsifying public records and sentenced to

fifteen years imprisonment, cardena temporal.

The presence of the sanction cardena temporal prevents

the Weems opinion from stating a holding on a challenge to

the mere length of a prison sentence; it indicates that the

decision deals with the conditions accompanying the service

of the sentence and the disabilities which followed the con-

vict even after release from confinement.

Cardena temporal was an hispanic sanction, carried over

into Fillipino law from the jurisdiction’s Spanish antece-

dents. The punishment involved a sentence of from twelve

to twenty years imprisonment, at “hard and painful labor”

with “a chain at the ankle, hanging from the wrists.” Id., at

p. 364. Moreover, the imposition of cardena temporal

stripped the convict of “the right of parental authority,

guardianship of person or property, participation in the

family council, marital authority, the administration of prop-

erty, and the right to dispose of his own property by acts

inter vivos . . .” (civil interdiction); it placed him under sur-

°In Howard v. Fleming, 191 US 126 (1903), the Court, consider-

ing only the length of the sentence, held that a ten year sentence for

swindling by means of a pretended gold brick was not cruel and

unusual.

25

veillance by the state for the remainder of his life, including

getting permission even to change residence, and it stripped

him of the right to hold public office, to vote, or to receive

honors or retirement pay. Jd., 364-365.

Thus, the sentence imposed upon Weems constituted more

than a prison sentence and a fine. Rather, as the Court ob-

served, after the “prison bar and chains [were] removed,”

Weems would go, not to freedom, but to “a perpetual limita-

tion of his liberty.” Id., at p. 366. The deprivations inci-

dental to the imposition of cardena temporal colored the

sanction and required the invalidation of the sentence im-

posed on Weems. The loss of political rights, the subjection

of the convict to perpetual state surveillance, and the ter-

rible incidents of the prison term, including the painful labor

in chains and shackles, shocked the Court into the decision

it made. Clearly, the incidents of cardena temporal, and not

the mere length of a fifteen year prison term for an unfaithful

public servant, prompted the Court to the decision it

reached.

This conclusion is buttressed by the later portion of the

Court’s opinion in Weems wherein the Court confronts a

plea by the United States to sever the prison term from the

incidents of cardena temporal, leaving the former in force

while voiding the latter. The Court’s response was plain and

to the point: the incarceration was inseparable, under Philli-

pine law, from the incidents of cardena temporal, Id., at p.

382, the imposition of cardena temporal was required by

that law, Id., at p. 381; and cardena temporal was in viola-

tion of the Eighth Amendment, /d., at p. 382. Therefore,

the decision rests, not on the length of the prison sentence,

but on the incidents of its service and consequential and life-

long restrictions on liberty which followed the prisoner's

release from prison.

Davis has also placed reliance on Robinson v. California,

26

370 US 660 (1962) in arguing that the Supreme Court has

spoken on the issue of whether a sentence, by its length

alone, may be cruel and unusual. That reliance is misplaced.

Robinson involved the application of the Eighth Amend-

ment to “impose substantive limits on what can be made

criminal and punished as such.” Ingraham v. Wright, 430

US 651, 667 (1977). The Court merely held that the Con-

stitution forbade the incarceration of a narcotics addict as a

criminal. Thus, the decision related to the criminality of

the status of an offender, forbidding the use of criminal

sanctions against such individuals, regardless of the severity

or leniency of the sentenec. “Even one day in prison would

be a cruel and unusual punishment for the ‘crime’ of having

a common cold.” Robinson, supra, 370 US at p. 667.

C.

Even though the court has never held an otherwise law-

ful sentence for a term of years to be cruel and unusual,

Davis correctly indicates that there is discussion in some of

the cases which sets out a doctrine under which a sentence

may be set aside as cruel and unusual if it is “grossly dis-

proportionate to the severity of the crime.” See Ingraham

Vv. Wright, 430 US 651, 667 (1977).

Davis has not attacked the validity of the statute im-

posing the sentence for his crime; he has instead claimed

that, in his particular case, the sentences imposed upon him

were cruel and unusual even though they were within statu-

tory limits. While some circuits rule that an attack on a

sentence with statutory limits will be considered an attack

on the sentencing statute, see e.g., Pependrea v. United

States, 275 F2d 325 (9th Cir. 1960), cf. Weems, p. 382,

this circuit apparently allows a convict to present a claim

in the manner by which Davis has proceeded, i.e. whether

the “sentence in this case is so excessive and disproportionate

Bi hl ah a NUE att th ike

27

to the underlying offenses as to constitute cruel and unusual

punishment.” (italics in original) Hart v. Coiner, 483 F2d

136, 139 (4th Cir. 1973), cert. den. 415 US 938 (1974).

Davis’ contentions as well as the district court’s opinion

are based upon an implementation of the analysis followed

in Hart v. Coiner. However, the circumstances here, espe-

cially the imposition of sentences consisting of terms of years

within the periods authorized by statute, make reliance on

the Hart analysis misplaced.

The district court borrowed from Hart tke guidelines

which were used in that decision to determine the constitu-

tionality of the sentence imposed. The guidelines included

the nature of the offense committed, the legislative purpose

behind the punishment, the punishment imposed in other

jurisdictions for the same offense, and the punishment im-

posed in the same jurisdiction for other offenses. While

these factors may be proper to consider in certain cases

under the Eighth Amendment, we do not believe that Hart

meant them to be mandatory or all inclusive in each such

case. Cases contemporaneous with, before, and after Hart

make that apparent.

To begin with, we should note that, like the Supreme

Court, we have never set aside a sentence for a term of years,

as in violation of the Eighth Amendment, because of exces-

sive length. In Ralph v. Warden, 438 F2d 786 (4th Cir.

1970) we set aside a death sentence for rape in which the

victim’s life was neither taken nor endangered because the

sentence was “so disproportionate,” p. 793; in Hart v.

Coiner we disapproved imprisonment for life for recidivism

for conviction of three felonies® because the sentence was

“so excessive and disproportionate to the underlying

e Passing a $50.00 check with insufficient funds, transporting forged

checks in the amount of $140.00 across the state lines, and perjury.

See Hart, p. 138.

28

offenses,” p. 139; and in Roberts v. Collins, 544 F2d 168

(4th Cir. 1976) we set aside five years of a twenty year

sentence for assault, because assault (with no maximum

sentence) was a lesser included offense of assault with intent

to murder. Following a guilty plea to assault as a lesser in-

Cluded offense of one crime charged,” we held “...the

Constitution does not sanction the imposition of a greater

punishment for a lesser included offense than lawfully may

be imposed for the greater offense,” p. 170. Other than

these three cases, no case is called to our attention in which

we have awarded relief to a prisoner under the Eighth

Amendment for relief from a sentence within the bounds

of a statute. None of them nullify a sentence of a term of

years because of length, and none modify or limit the cases

we analyze below which were decided under the Eighth

Amendment.

In United States v. Martell, 335 F2d 764 (4th Cir. 1964)

we held, in denying relief from a forty year sentence for kid-

napping, that “[w]Jhere the sentence is within the limit set

by the statute, we are barred, except in the most exceptional

circumstances, from any inquiry we might otherwise be in-

clined to make,” p. 766. In Stevens v. Warden, etc., 382 F2d

429 (4th Cir. 1967), although we termed a twenty year

sentence for armed robbery “shocking” because of the cir-

cumstances of the case, we held “. . . the federal courts have

no right to review any sentence of a state court which does

not exceed the statutory maximum sentence which may be

imposed under the laws of the state,” p. 433. In Robinson v.

Warden, etc., 455 F2d 1172 (4th Cir. 1972) we held that a

fifteen year sentence for assault with intent to commit

murder was not cruel and unusual because “[t]he 15-year

7 Roberts was charged both with assault and assault with intent to

_— The maximum sentence for assault with intent to murder was

years.

29

sentence was within the range of punishment allowed by

Maryland law, and the sentence was not disproportionate to

the crime,” p. 1177.

Hart previously mentioned, followed in 1973, accom-

panied by its companion case decided the same day, Wood v.

South Carolina, 483 F2d 149 (4th Cir. 1973), which de-

nied relief from concurrent five year sentences for making

obscene telephone calls. While we discribed the statutory

maximum of ten years as “startling,” having been increased

from six months, we held the sentences were not “so exces-

sive and disproportionate as to constitute cruel and unusual

punishment,” p. 150. We noted that there were no objective

factors establishing disproportionately, and referred to Hart,

but did not follow the analysis of that case.

After Hart and Wood, in other Eighth Amendment cases

we have followed the pattern of Martell, Stevens, and Rob-

inson.

In United States v. Wooten, 503 F2d 65 (4th Cir. 1974),

citing Martell, but not Ralph or Hart, we affirmed a two year

maximum sentence for a gun law conviction because “i]t

has been decided by this court that interference with a sen-

tence which is within the’ limitation provided by statute is

not, in the absence of extraordinary and special circum-

stances, within the appellate court’s province,” p. 67. In

United States v. Atkinson, 513 F2d 38 (4th Cir. 1975) we

affirmed sentences of twelve and four years for young adult

offenders without the Hart analysis.

Yet other cases have distinguished Hart. In Griffin v.

Warden, etc. 517 F2d 756 (4th Cir. 1975) we denied relief

following conviction unde rthe same West Virginia recidivist

statute at issue in Hart. Our only distinction was that the

convictions of felony by Griffin (burglary, breaking and

entering, and grand larceny) “are not at all like those of

Hart,” p. 757, but “involve the potentiality of violence and

30

danger to life as well as property,” p. 757. We then said:

“Whether or not Griffin may be actually deserving of such

extreme punishment is not within our province to decide;

we hold only that the imposition of a life sentence predicated

upon these particular three offenses does not offend the

eighth amendment,” p. 757. The court did not engage in any

further distinction of Hart except its comparison of the

offenses upon which the convictions were based. In Hall v.

McKenzie, 537 F2d 1232 (4th Cir. 1976) we denied ha-

beas corpus relief on account of a 10-20 year sentence for

non-forcible rape of a minor. We held that Hart had no

application because of a “number of factors.” ® p. 1235.

The first factor listed was the severity of the sentence, refer-

ring to the difference between life and 10-20 years. The

case also pointed out that its measuring up to one of the

Hart guidelines was questionable (the sentence allowable

in other states), and that this crime was against the person.

We held Hart not determinative and said “[a] more apt

precedent is Wood,” p. 1236, which was decided without the

Hart analysis as we have noted.

In view of circuit precedent, we are of opinion that the

scope of inquiry into the constitutionality of a legal sentence

for a term of years need not be as broad as the inquiry used

in Hart when a life sentence was imposed. In an attack for

excessiveness on a sentence for a number of years, any au-

thorized inquiry of the court should extend only to the con-

sideration of the seriousness of the offense committed and

the application of the sanction imposed for that offense.

We can give no relief unless the sentence imposed is “grossly

disproportionate to the severity of the crime.” Ingraham v.

Wright, 430 US 651, 667 (1977). And in those cases where

* Ralph was held to have no application because it involved the

death penalty “which occupies a special place in eighth amendment

jurisprudence.”

os

31

the challenged sentence is fixed by a jury within the limits

imposed by statute, we afford special deference to the legis-

lative and jury determination of the seriousness of the of-

fense, and whether the punishment is cruel and unusual.

See Gregg v. Georgia, 428 US 153, 174-184 (1976). Thus,

the sentence will not be considered grossly disproportionate

to the severity of the offense unless there are “extraordinary

and special circumstances” which make an otherwise valid

sentence cruel and unusual. United States v. Wooten, 503

F2d 65, 67 (4th Cir. 1974).

This rule antedates the Hart opinion and, as we have

shown is unaffected by Hart. Nor is the rule peculiar to this

circuit, it seems to be generally accepted by various courts

of appeal. See United States vy. Dawson, 400 F2d 194 (2d

Cir. 1968) cert. den. 393 US 1023 (1969); Page v. United

States, 462 F2d 932 (3d Cir. 1972); Yeager v. Estelle, 489

F2d 276 (Sth Cir. 1973), cert. den. 416 US 908 (1974);

United States ex rel. Sluder v. Brantley, 454 F2d 1266 (7th.

Cir. 1972); United States v. Wilson, 506 F2d 521 (9th Cir.

1974); United States v. MacClain, 501 F2d 1006 (10th

Cir. 1974). Contra: Downey v. Perini, supra. In fact, as we

have noted, some circuits are more strict than are we, refus-

ing to allow the convict to argue that the sentence imposed

was cruel and unusual in his particular case, considering

such a claim an attack the sentencing statute itself. See

also Dawson, p. 200.

Therefore, assuming we have any power to review the

sentence, cf. Stevens, p. 433, we arrive at the same conclu-

sion reached by the Fifth Circuit that a sentence for a term

which is within the limits set out by statute will not be con-

sidered cruel and unusual unless it is so disproportionate as

to “shock [. . .] human sensibilities.” Yeager v. Estelle, 489

F2d 276 (Sth Cir. 1973), cert. den. 416 US 908 (1974).

And, even in such cases, judicial inquiry also may only

32

inquire whether there are extraordinary and special circum-

stances which taint what would otherwise be a perfectly legal

sentence.

Examining this case for extraordinary and special circum-

Stances which would indicate that the sentences given Davis

were constitutionally disproportionate to the offenses he

committed, we find no indication of such disparity as to

Shock human sensibilities, if any disparity at all. The evi-

dence shows the defendant to be a drug dealer by vocation

who was willing to sell illegal narcotics to inmates of a

penal institution, and probably as well to the wife of an

inmate left alone with an infant child. The jury therefore

had the right to consider the offense a very serious crime. By

not attacking the sentencing statute on its face, Davis has

accepted the legislature’s classification of the sale of mari-

juana as a serious offense; he must prove that, in his par-

ticular case, the offense was not serious or was mitigated

in some way which necessarily precluded the imposition of

the sentence awarded. But recordings of the transaction be-

tween Eads and Davis were played to the jury, as well as

other damning evidence admitted. The jury was familiar

with the nature of the transaction as well as the defendant’s

drug selling business. We cannot say that the jury could

not have been impressed by what it heard, and it has a right

to consider all the evidence in fixing the sentences.

Finally, the trial judge, who could have sentenced concur-

rently, sentenced consecutively. Not only had he heard the

witnesses testify, which we have not; he knew, for example,

which the jury did not, that Davis previously had been con-

victed of selling LSD and that the two offenses for which

Davis had just been found guilty were committed while on

bail pending appeal from the previous conviction for selling

LSD.

Thus, we are unable to say that there is no evidence at all,

33

Williams v. Peyton, 414 F2d 776 (4th Cir. 1969), to sup-

port the conclusion by the jury and trial court that Davis

committed serious crimes which might deserve the punish-

ment awarded. Finding no extraordinary and special circum-

stances, and being of opinion that the sentences do not

shock human sensibilities, we conclude that the sentences

imposed on Davis were neither cruel nor unusual.

Accordingly, the judgment of the district court is

REVERSED.