Opposition Brief — Rhodes v. United States

No. 85-1605

In the Supreme Court of the Ani

OCTOBER TERM, 1985

JAMES ALVIN RHODES AND GARVEY MARTIN CHEEK,

PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether petitioners were properly convicted of engag-

ing in a continuing criminal enterprise under 21 U.S.C. 848

when the evidence showed that they occupied managerial

positions with respect to five or more people during the

course of the criminal enterprise but not during each of the

underlying felony drug violations.

2. Whether petitioners’ sentences for terms of years were

so disproportionate to their offenses as to violate the Eighth

Amendment.

(I)

TABLE OF CONTENTS

Page

Ee eee eer er eT ere eer re l

cee iweb ek eR Oo eae MOR Kee LS 1

ee Chios wesc bodes aeees l

LEE ee ae ee ee ee 5

a 14

TABLE OF AUTHORITIES

Cases:

Dandridge v. Williams, 397 U.S. 471 ........... 8

Garrett v. United States, No. 83-1842

es kh shed tae 6 EAN ONS w 4-6 0c 8-000 10

New Orleans v. Dukes, 427 U.S. 297 ........... 8

Sanabria v. United States, 437 U.S. 54 ......... 9

Solem v. Helm,

gona Ls oe deo 4s aw e's 10, 12, 13, 14

United States v. Avarello, 592 F.2d 1339,

GE, MO OI, BE ccc cc cccccscvccsees )

United States v. Becton, 751 F.2d 250,

cert. denied, No. 84-1622 (June i7, 1985) ...... 6

United States v. Bolts, 558 F.2d 316,

Se I AE OIL, GOP cw ccvccscceccsscess 6

United States v. Darby, 744 F.2d 1508,

cert. denied, No. 84-1260 |

CEE pciseseeense ends 11, 12, 13, 14

United States v. Greco, 619 F.2d 635 ........... 9

United States v. Gresko, 632 F.2d 1128 ......... y

(111)

IV

Page

Cases—-Continued:

United States v. Jeffers, 532 F.2d 1101,

ee Te NE acne oes sensavessianieuss 11

United States v. Mannino, 635 F.2d 110 ........ 6

United States v. Marrifield, 515 F.2d 877,

cert, Game, GIS 47D. Fee 6 vce cewccccsveweses G

United States v. Ortiz, 742 F.2d 712,

Cet, B., Ge Sie FES bb keke occ se neces 14

United States v. Phillips, 664 F.2d 971,

ee a a See 6

United States v. Smith, 690 F.2d 748,

oust, Gemied BGO U.S. FOG oc ccwcncsscesses 5,6

United States v. Sperling, 506 F.2d 1323,

ee a rr 6

United States v. Sperling,

, Be eR RS ee ee eee a Ea are 11

United States v. Valenzuela,

ee ai icc ak cece acrkparnnsceneees 1]

United States v. Young, 745 F.2d 733,

cert. denied, No. 84-950 (Mar. 25, 1985) ....... 6

Constitution and statutes: a

Um. Comeh, PONE, VERE on cc cccccce 10, 12, 13, 14

See Sa ee Se, ee hv owe be S4 eae uee es 2

gk Eo. a eer ee re rs 8,9

PE TEA SOLU 6.00 cx scasdecoesseuveves 9

Be St EEE Sass a ec baecknnecusanaes 1,2

Be Riis OE 6h ok 020 se eked seer dedoeeaeesess l

Page

Constitution and statutes—Continued:

21 U.S.C. (& Supp. II) 848 ..... hy Oy Os 05 ets Oe

BE 5h rs UD ars oop odd 8 G6 bas 8

Miscellaneous:

H.R. Rep. 91-1444, 91st Cong., 2d Sess.

eh. ee Leuba aaearkexonae pe kowaes 8

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-1605

JAMES ALVIN RHODES AND GARVEY MARTIN CHEEK,

PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-59a) is

reported at 779 F.2d 1019.

JURISDICTION

The judgment of the court of appeals was entered on

December 26, 1985. A petition for rehearing was denied on

January 29, 1986 (Pet. App. 60a). The petition for a writ of

certiorari was filed on March 28, 1986. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of North Carolina, petitioners were

convicted on one count of conspiracy to possess and dis-

tribute cocaine and marijuana, in violation of 21 U.S.C.

841(a)(1) and 846 (Count 1), two counts of possession of

(1)

2

more than 1000 pounds of marijuana with intent to distrib-

ute it, and two counts of distribution of more than !000

pounds of marijuana, all in violation of 21 U.S.C. 841(a)(1)

(Counts 4-7). Petitioner Cheek was also convicted on one

count of possession of cocaine with intent to distribute it,

and one count of distribution of cocaine, in violation of 21

U.S.C. 841(a)(1) (Counts 2 and 3), as well as three Travel

Act violations (18 U.S.C. 1952) (Counts 8, 10, and 11). Both

petitioners were also convicted on separate counts of engag-

ing in a continuing criminal enterprise (CCE), in violation

of 21 U.S.C. (& Supp. II) 848 (Counts 12 and 16). On the

substantive counts, petitioner Cheek received a total sent-

ence of 75 years’ imprisonment, and petitioner Rhodes

received a total sentence of 45 years’ imprisonment. On the

CCE counts, Cheek and Rhodes were sentenced to 75 years’

and 50 years’ imprisonment, respectively. The court of

appeals affirmed in a lengthy opinion (Pet. App. la-59a).

The evidence adduced at trial, which is not in dispute’ is

summarized in the opinion of the court of appeals. The

evidence showed that Cheek and Rhodes were involved ina

series of drug transactions between October 1978 and the

spring of 1980. In late 1978 Cheek unloaded 17,000 pounds

of marijuana at a farm in Alexander County, North Caroli-

na, which Rhodes had previously used for distributing

marijuana. Rhodes and two other men worked together to

sell a portion of the 17,000-pound load. Through one of his

associates, Jeffrey VanMeter, Rhodes also bought a quan-

tity of marijuana from Jorge and Fred Aragon in the fall of

1978. In early 1979, Rhodes met with the Aragon brothers

to discuss the possibility of helping the Aragons purchase

an airplane for future smuggling ventures by air instead of

by sea. Rhodes subsequently received some marijuana from

a successful airdrop the Aragons conducted in the spring of

1979. Pet. App. 13a-15a, 779 F.2d at 1022-1023.

3

In May or June of 1979, Rhodes obtained a load of

marijuana from Fort Lauderdale. He sent several cars from

North Wilkesboro to pick up the marijuana from two of his

associates. Jeffrey VanMeter helped load the cars in Fort

Lauderdale and then traveled to North Wilkesboro, where

Rhodes gave him $600,000 to take back to the suppliers. A

fourth person accompanied VanMeter back to Florida with

the payment. The evidence showed that at least five other

persons picked up carloads of marijuana in Florida for

Rhodes in the summer of 1979. Pet. App. I5a-16a, 18a-19a,

779 F.2d at 1023.

In October 1979 Cheek arranged to purchase four kilo-

grams of cocaine for $200,000. Cheek paid half the purchase

price when he received the cocaine; he agreed to pay the

balance to the supplier after he had sold the drugs. Together

with his assistant, Rocky Townsend, Cheek drove with the

cocaine from Florida to North Carolina, where he delivered

the cocaine to another conspirator. Several weeks later,

Cheek had Townsend deliver the balance of the original

purchase price to the supplier at a motel in Charlotte, North

Carolina. Pet. App. 6a-7a, 779 F.2d at 1021.

At the time of that cocaine transaction, Cheek and

Rhodes had made arrangements to take part in a large

marijuana importation, which was scheduled to take place

around Thanksgiving of 1979. The Aragon brothers had

agreed to obtain 5000 pounds of marijuana in Colombia,

South America, and to transport it to southern Florida,

where they would sell it to Cheek and Rhodes and another

unnamed person. Cheek made arrangements to receive the

marijuana from the offloaders and to transport it to a stash

house for later distribution in North Carolina. He sent

Townsend and two other associates to rent rooms at two

motels in Homestead, Florida, where the marijuana would

be received from the offloaders. As planned, the offloaders

drove the marijuana from the coast to the motel rooms.

4

Rhodes then arranged for other drivers to take the mari-

juana to the stash house for unloading and weighing. Cheek

and two other men weighed and numbered the bales of

marijuana when they arrived at the stash house. Two of

Rhodes’ assistants then loaded a motor home with mari-

juana that the stash housgcrew had processed. After all but

some 1200 pounds of wet marijuana had been removed

from the stash house for distribution, Cheek and two of the

other conspirators traveled to Charlotte, North Carolina,

and then to petitioner Rhodes’ house in North Wilkesboro,

where they met Rocky Townsend, who had driven from

Florida with a load of the wet marijuana. Cheek and Jorge

Aragon spread out the marijuana in Rhodes’ garage to try

to dry it out. Pet. App. 16a-17a, 779 F.2d at 1023. Aragon

was still waiting for payment for the marijuana, so Cheek

directed Townsend to drive to Cheek’s house in Florida and

pay Aragon $500,000 for the marijuana. Pet. App. 8a-10a,

779 F.2d at 1021-1022.

Shortly after the Thanksgiving 1979 venture, Jeffrey

VanMeter also drove a separate load of 600 to 700 pounds

of marijuana, which had been supplied by two of Rhodes’

associates, from Florida to North Carolina. Rhodes paid |

VanMeter $1000 for transporting the load. Pet. App. 17a,

779 F.2d at 1023.

In the spring of 1980, Cheek traveled to Barranquilla,

Colombia, with Jorge Aragon to arrange another mari-

juana transaction. They planned to airdrop 10,000 pounds

of marijuana onto a yacht off the Florida Keys, unload it at

a house in Islamorada in the Keys, and distribute it to

Cheek, Rhodes, and other unnamed “people up north.”

Fred Aragon arranged for the Islamorada house and his

brother Jorge stayed in the Florida Keys to monitor Coast

Guard movement. Before the airdrop, Jorge Aragon con-

tacted Cheek and told him he needed more money for the

Islamorada operation. Cheek in turn contacted one of his

5

assistants and told him to send someone to Florida with

more money. The next day, Cheek’s wife arrived at Isla-

morada and gave Cheek $10,000. Cheek gave the money to

Aragon and directed Rocky Townsend to help Aragon

monitor Coast Guard activity. The marijuana was success-

fully airdropped and unloaded at the Islamorada house,

where Cheek, Aragon, Townsend, and another person

weighed the marijuana, separated the bales that were wet,

and loaded the dry bales into cars. Cheek nired Townsend

and three others to help transport the marijuana to North

Carolina for distribution. in addition, Aragon called

Rhodes when the load arrived and told him to send some-

one to help transport the marijuana. Shortly thereafter,

four drivers arrived in Islamorada, where they picked up

1100 pounds of marijuana. Pet. App. 17a-18a, 779 F.2d at

1023. Aragon subsequently traveled to North Carolina to

collect from Cheek and Rhodes for their respective pur-

chases of 6500 and 1100 pounds of the Islamorada mari-

juana. Pet. App. Ila-13a, 779 F.2d at 1022.

ARGUMENT

1. Petitioners challenge (Pet. 9-21) the sufficiency of the

evidence to support their convictions under 21 U.S.C. (&

Supp. II) 848, arguing that the proper construction of that

statute requires proof that the defendant occupied a super-

visory position with respect to five or more persons during

each of the violations constituting the continuing criminal

enterprise, and not merely during the life of the enterprise as

a whole. The court of appeals correctly rejected this argu-

ment. Such a construction is not required by the language of

the statute, and no other court of appeals has adopted the

construction urged by petitioners. Accordingly, no further

review of this question is warranted.

Petitioners concede (Pet. 19) that their argument was

previously rejected in United States v. Smith, 690 F.2d 748,

749-750 (9th Cir. 1982), cert. denied, 460 U.S. 1041 (1983).

6

Every other court of appeals that has considered the ques-

tion has also decided that the five persons supervised need

not have worked with the defendant at the same time, and

that it is sufficient that he supervised at least five people

over the life of the enterprise. E.g., United States y. Becton,

751 F.2d 250, 254-255 (8th Cir. 1984), cert. denied, No.

84-1622 (June 17, 1985); United States v. Young, 745 F.2d

733, 747 (2d Cir. 1984), cert. denied, No. 84-950 (Mar. 25,

1985); United States v. Losada, 674 F.2d 167, 173-174 (2d

Cir.), cert. denied, 457 U.S. 1125 (1982); United States v.

Phillips, 664 F.2d 971, 1013 (Sth Cir. 1981), cert. denied, 457

U.S. 1136(1982); United States v. Mannino, 635 F.2d 110,

116 (2d Cir. 1980); United States v. Bolts, 558 F.2d 316,

320-321 (Sth Cir.), cert. denied, 434 U.S. 930 (1977); United

States v. Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974), cert.

denied, 420 U.S. 962 (1975).

Petitioners argue that these cases, other than Smith, hold

only that the five persons need not be supervised at the same

moment during the commission of one violation but may

instead be supervised at different times during the course of

a single violation. Petitioners argue that these cases are

therefore consistent with their interpretation that the

defendant must have supervised five people during each of

the three required violations. Smith, however, explicitly

rejected petitioners’ claim precisely as they have framed it.

See 690 F.2d at 749-750. Moreover, in United States v.

Mannino, 635 F.2d at 116-117, the Second Circuit upheld a

conviction under Section 848 even though, as the court’s

review of the evidence makes clear, the defendant did not

supervise five or more people during each of the substantive

offenses. It was enough that the defendant had at least five

employees during the life of the drug business. And in both

United States v. Becton, 751 F.2d at 255, and United States

v. Losada, 674 F.2d at 174, the courts stated that the evi-

dence showing the defendant’s supervision of at least five

niente

7

people during the course of the continuing criminal enter-

prise was sufficient to support convictions under Section

848.

This uniform interpretation of the statute is consistent

with its language and purpose. Contrary to petitioners’ view

of the statute, there is no explicit language in Section 848

requiring that five or more people be supervised in each of

the series of violations committed in the course of the

criminal enterprise. The relevant portion of Section 848

reads as follows:

[A] person is engaged in a continuing criminal enter-

prise if— * * *

(2) such violation is a part of a continuing series of

violations of this subchapter or subchapter II of this

chapter—

(A) which are undertaken by such person in concert

with five or more other persons with respect to whom

such person occupies a position of organizer, a super-

visory position, or any other position of management

*-**F

Petitioners claim that the language of the statute indi-

cates that Congress intended the supervisory requirement

to apply to the “violations” instead of merely to the “series”

of which each violation is a part (Pet. 11-12). Even accept-

ing that contention, the phraseology used in the statute is a

perfectly natural way for Congress to express a requirement

that the violations, taken together, must be conducted in

concert with five or more persons. If Congress had meant

for the statute to require that each violation be undertaken

in concert with five or more pezsons, it presumably would

have included the word “each” in the statute.

8

The construction of the statute adopted by the court of

appeals in this case is entirely consistent with the stated

intention of Congress to reach drug “kingpins,” i.e., those

persons who operate lucrative businesses manufacturing or

selling illegal drugs. H.R. Rep. 91-1444, 91st Cong., 2d

Sess. Pt. 1, at 10(1970). The construction of the statute by

the court of appeals does not, as petitioners suggest (Pet.

18-19), reach defendants who lead small, shifting groups

that Congress could not have intended to brand as continu-

ing criminal enterprises. Rather, by requiring substantial

profits from the continuing criminal enterprise (21 U.S.C.

848(b)(2)(B)) in addition to the organization, supervision,

or management of five or more other persons, Congress has

ensured that only truly significant operations, such as the

one in this case, will come within the reach of this statute.!

Petitioners’ analogy to another statute, 18 U.S.C. 1955,

does not further their argument. That statute makes it a

federal offense to operate a large-scale gambling business

that is illegal under state or local law, if the business is in

‘it is true, of course, that profitable drug businesses that employ only

four people are excluded from the statute’s coverage, whereas an opera-

tion with changing personnel totaling at least five is included. But it is

not an unreasonable judgment that, once a certain number of people are

involved under the leadership of one or more others, the criminal

activity has become organized enough to require more severe measures

regardless of whether the leader enlists his subordinates all at once or at

different times and for different crimes. It is well settled that Congress is

not compelled to regulate all aspects of an area equally or at one time

(New Orleans v. Dukes, 427 U.S. 297, 305 (1976); Dandridge v.

Williams, 397 U.S. 471, 485 (1970)). If anything, the “absurd results”

that petitioners suggest (Pet. 18-19) show only that the continuing

criminal enterprise statute may be underinclusive by not reaching the

defendant who employs only four persons in repeated drug transac-

tions. There is no reason to believe that, by leaving that person out of

the statute’s coverage, Congress meant also to exempt from coverage

those who employ five, or ten, or 100 people in repeated drug transac-

tions but never employ more than four in connection with any single

violation.

9

continuous operation for at least 30 days. Petitioners point

out (Pet. 15) that Section 1955 has been interpreted to

require the participation of at least five people, albeit not

the same five, at all times during the 30-day period. E.z.,

United States v. Gresko, 632 F.2d 1128, 1132-1133 (4th

Cir. 1980); United States v. Marrifield, 515 F.2d 877, 882

(5th Cir.), cert. denied, 423 U.S. 1021 (1975). The wording

of Section 1955, however, is significantly different from that

of Section 848.

In Section 1955, an “illegal gambling business” is defined

in part as one that “involves five or more persons who

conduct, finance, manage, supervise, direct, or own all or

part of such business” (18 U.S.C. 1955(b)(1)(ii)). Congress,

unconcerned with minor gambling operations of only local

interest, aimed its penalties at systematic enterprises that

are so large that they require the involvement of at least five

people at any one time for their operation. United States v.

Gresko, 632 F.2d at 1132-1133. Everyone involved in the

conduct of such a business, no matter how minor his role or

how occasional his participation, is subject to prosecution

under this provision. Sanabria v. United States, 437 U.S.

54, 70 n.26 (1978); United States v. Greco, 619 F.2d 635,

638-639 (7th Cir. 1980); United States v. Avarello, 592 F.2d

1339, 1349 (Sth Cir.), cert. denied, 444 U.S. 844 (1979). It is

the size and duration of the enterprise, not the individual’s

role, that matters.”

?The operation of Section 1955 illustrates how it is possible to invoke

seemingly anomalous comparisons to attack almost ary interpretation

of a statute that attempts to identify significant criminal activity by

means of numerical tests. Under Section 1955, a person who partici-

pates in a minor way for just a few days in a gambling operation that

lasts for 30 days may be convicted, whereas the leader of a gambling

operation that lasts 29 days may not. That comparison does not suffice

to override the intent of Congress in enacting Section 1955. Nor does

petitioners’ comparison between the leader of a small, changing group

of drug offenders and a cohesive group of four large-scale narcotics

operators suffice to undermine the settled interpretation of the continu-

ing criminal enterprise statute.

10

The CCE statute, on the other hand, focuses on the role

of the individual. It is aimed only at those drug “kingpins”

who occupy a supervisory position in an illegal drug enter-

prise. See Garrett v. United States, No. 83-1842 (June 3,

1985), slip op. 8. The five-person requirement is not so

much a way to distinguish one enterprise from another as a

way to identify those individuals who exert the control and

reap the large monetary rewards of the illicit business. The

record in this case shows that petitioners, who enlisted the

aid of numerous people in the multimillion-dollar importa-

tion and distribution of thousands of pounds of illegal

drugs, are precisely the kind of persons the statute was

designed to reach.

2. Petitioners also claim (Pet. 22-30) that the court of

appeals did not engage in sufficiently “extensive” analysis of

their claim that their sentences are so disproportionate to

the CCE offense as to violate the Eighth Amendment. Peti-

tioners offer virtually no argument that the court of appeals

reached the incorrect result. Instead, they attack the way in

which the court came to that result. Their argument is

without merit.

This Court stated in Solem v. Helm, 463 U.S. 277 (1983),

that a reviewing court should be guided by three objective

criteria in determining whether a sentence is unconstitu-

tionally disproportionate to the offense. The court should

compare the gravity of the offense and the harshness of thé

penalty; it should examine the sentence at issue in view of

the sentences imposed on other defendants in the same

jurisdiction; and it should compare the sentence at issue

with sentences imposed for the same crime in other jurisdic-

tions (463 U.S. at 290-292).

The court of appeals made just such an analysis here and

found that the sentences were not so disproportionate to the

offense as to be unconstitutional (Pet. App. 38a-45a).

Although petitioners contend (Pet. 24) that the court in this

11

case dealt only with the gravity of the offense and com-

pletely ignored the remaining factors, the court’s opinion

belies that claim. After noting the seriousness of the

offenses, demonstrated by the repeated importations and

distributions of cocaine and marijuana worth millions of

dollars (Pet. App. 4ia-42a), the court went on to a consid-

eration of other sentences in similar cases. As noted by the

court of appeals, the sentences imposed on petitioners are

comparable to those imposed on many other CCE viola-

tors. The court’s analysis on this point was succinct because

it relied on the collection of similar CCE sentences found in

United States v. Darby, 744 F.2d 1508, 1528-1529 (11th

Cir. 1984), cert. denied, No. 84-1260 (May 13, 1985), rather

than reciting all those sentences itself (Pet. App. 42a-43a).?

Many of the sentences cited by the court in Darby were for

life imprisonment without parole.‘

3The court in Darby recognized, 744 F.2d at 1528 n.15, that it is

difficult to compare Section 848 with other federal crimes for which

severe sentences are authorized, because the nature of the crimes is so

different. For that reason, there is no merit to petitioners’ complaint

(Pet. 26) that the court of appeals in the present case erred by ignoring

allegedly more serious federal offenses, such as assassination of the

President, air piracy, and espionage, for which a life sentence without

parole is not authorized. In addition, it is not necessarily true that a

crime of violence or even espionage is always “more serious” than

operating a continuing criminal enterprise. As suggested by Congress’s

determination that a life sentence without parole should be authorized

for CCE but not for those other crimes (a quintessentially legislative

judgment), a continuing criminal enterprise may have an effect on

society that is at least as harmful as, if not more harmful than, an

isolated act of violence or treachery.

‘United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir. 1980);

United States v. Sperling, 560 F.2d 1050 (2d Cir. 1977); United States

v. Jeffers, 532 F.2d 1101 (7th Cir. 1976), rev’d on other grounds, 432

U.S. 137 (1977). Additional cases involving life sentences under Section

848 are listed in our brief in opposition in Milburn v. United States,

Nos. 85-69 and 85-5232. Both the opinion in Darby and our brief in

opposition in Milburn also list a number of CCE sentences for terms of

years comparable to those given petitioners. We are providing petition-

ers with a copy of our brief in opposition in Milburn.

12

The court of appeals did not explicitly address the third

Solem factor, a comparison of the sentences with those

imposed in other jurisdictions for similar crimes. But

Darby, on which the court relied, noted that the unique

nature of Section 848 and the special function it was

intended to play in the comprehensive federal drug

enforcement scheme make it difficult to compare with other

state crimes, even those appearing to be equivalent (744

F.2d at 1529). The court in Darby held that, in view of

Florida statutes authorizing severe sentences for narcotics

offenses, there was “no serious disparity indicating that

appellants’ [60-year CCE] sentences are excessive” (744

F.2d at 1529).5 The court below had no reason to reach a

different conclusion or to elaborate on the Darby analysis.

It correctly resolved petitioners’ Eighth Amendment claim.

Petitioners ask this Court to grant certiorari because of

certain language in the opinion of the court of appeals

suggesting that an “extensive” analysis of this issue was not

necessary. The court of appeals noted, as an alternative

basis for its ruling on the Eighth Amendment issue, that

“Solem requires an extensive proportionality analysis only

in those cases involving life sentences without parole” (Pet.

App. 37a) and that, “[u]nlike the court in Darby, we do not

think that the sentences imposed in this case require an

extended proportionality analysis” (id. at 40a). Whatever

‘Petitioners note (Pet. 26) that a North Carolina CCE statute autho-

rizes life imprisonment. The severe sentence authorized in North Caroli-

na tends to demonstrate the conformity of the federal CCE statute with

the norms in other jurisdictions. And even if, as petitioners urge, the

provision for parole in the North Carolina statute makes the federal

statute materially more harsh, that is hardly dispositive. Neither Solem

nor any other decision of this Court suggests that a sentence is unconsti-

tutional because another jurisdiction punishes the same conduct less

severely. Petitioners have no constitutional right to better treatment

than other violators of federal law just because they live in North

Carolina.

Leet

13

the merits of these observations, it is clear from the rest of

the court’s opinion that the court conducted an analysis that

is fully consistent with Solem. Immediately after the lan-

guage cited by petitioners, the court of appeals elaborated

on the point in a way that makes clear its compliance with

Solem (Pet. App. 40a-41a):

[O]Jur duty is to decide whether the sentences under

review are within the constitutional lim its. * * * Such

a review, as one court has noted, often requires at least

a perfunctory Solem analysis. See Moreno v. Estelle,

717 F.2d 171, 180 & n. 10 (Sth Cir. 1983). While we

would not use the same adjective to describe the analy-

sis because of its overtones, we think that court meant

less than extended and are of opinion that in cases

where an Eighth Amendment claim is made concern-

ing the length of a sentence which may not be disposed

of as so obviously within the prerogative of Congress

and the district court to require no comment, that a

simple matching of the facts of a particular case against

the Solem principles will suffice without extended dis-

cussion. That is what we do here.

Moreover, as noted above, the court of appeals engaged

in a fully adequate Solem analysis in the course of resolving

the Eighth Amendment claim. The court either discussed

itself, or relied explicitly or implicitly on the Darby court’s

discussion of, each Solem factor. Other than their incorrect

assertion that the court ignored two of the Solem factors,

petitioners do not suggest what the court should have done

to make its analysis more “extensive.” Any difference

between the analysis in Darby and the analysis in this case,

which relied on Darby, has more to do with how the courts

of appeals labeled their own actions than with the substance

of the decisions. In any case, Solem itself declares that

“extended analysis” of “proportionality” claims will rarely

be required (463 U.S. at 290 & n.16).

14

Thus, contrary to petitioners’ assertion, the decision in

the instant case does not conflict with Darby or with United

States v. Ortiz, 742 F.2d 712 (2d Cir.), cert. denied, 469

U.S. 1075 (1984). Any disagreement as to the extent of the

analysis required in each case is more semantic than sub-

stantive. In each case the court conducted an Eighth

Amendment inquiry just as mandated by Solem v. Helm,

supra, and in each case the court reached the same result.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

May 1986

DOJ-1986-05