# Opposition Brief — Rhodes v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1182

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1670%3A2. Public record. Not legal advice.