# Opposition Brief — Berger v. Arizona (No. 06-349)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

2 FILED

No. 06-349 JAN 0 9 2007
— re ert
SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

MORTON ROBERT BERGER,

Petitioner
VS.

STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari
for the Arizona Supreme Court

BRIEF FOR THE STATE OF ARIZONA IN
OPPOSITION

iittala aiainiiitiaataa eatin eT
TERRY GODDARD
Attorney General

MARY R. O’ GRADY
Solicitor General

RANDALL M. HOWE
Chief Counsel
(Attomey of Record)
Criminal Appeals Section

ROBERT A. WALSH
Assistant Attorney General
Cnminal Appeals Section
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: (602) 542-4686

QUESTION PRESENTED

Whether the Eighth Amendment’s Cruel and Unusual
Punishment Clause’s threshold gross-disproportionality
analysis mandates consideration of the aggregate length of a
defendant’s consecutive prison terms, when each component
prison term imposed, standing alone, is constitutional?

i

TABLE OF CONTENTS

PAGE
QUESTIONS PRESENTED FOR REVIEW .................. 1
pS OB A PN Cp yt) 1 sy | lil
a dcpevsuunsoessoucdovesivves ]
STATEMENT OF JURISDICTION ......0.00..0.0.0000ccee. ]
SP IPMMEET EE GPM BBE, CASIL......0..0.ccccccccocccscvvcccccereveveces ]
ss ounss uduseeneueeesescuaevervecisees 12
a ss caueueseveousaenntovedeive 28

ill

TABLE OF AUTHORITIES

CASES PAGE
Badders v. United States, 240 U.S. 391 (1916)............. 18
Bewley v. State, 220 N.E.2d 612 (Ind. 1966)............... 18
Brinkley v. State, 143 S.W. 1120 (Tenn. 1911)............ 17
Cole v. State, 262 So.2d 902 (Fla. App. 1972)............. 17
Deal v. United States, 508 U.S. 129 (1993)................. 21
Ewing v. California,

S56 U.S. TE CAO? occ cece: 5, 6, 7, 9, 10, 13, 14, 21, 24

Harmelin v. Michigan,

501 U.S. 957 (1991)...... 5, 6, 9, 13, 14, 20, 21, 22, 25
Hawkins v. Hargett, 200 F.3d 1279 (10" Cir. 1999)....... 15
Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703,

Fe hee Se CE os eves tctsvereutbaigeenieioiianes 9.13
Kaylor v. State, 400 A.2d 419 (Md. App. 1979)...... 17, 19
Lockyer v. Andrade, 538 U.S. 63 (2003)..... 13, 17, 19, 26
Malee v. State, 809 A.2d 1 (Md. App. 2002)..... 15, 18, 22

New York v. Ferber, 458 U.S. 747 (1982)............... 6, 24
O’Neil v. Vermont, 144 U.S. 323 (1892) .................... 15
Osborne v. Ohio, 495 U.S. 103 (1990) ........... 6, 7, 13, 24
Pearson v. Ramos, 237 F.3d 881 (7" Cir. 2001)....... 15, 22
People v. Elliott, 112 N.E. 300 (Ill. 1916).............. 15,17
People v. Hayes, 923 P.2d 221 (Colo. App. 1995)......... 15
People v. Kennebrew,

560 N.W.2d 354 (Mich. App. 1996) ..................... 15
People v. Miles, 559 N.W.2d 299 (Mich. 1997) ........... 17
People v. Poole (Terry),

555 N.W.2d 485 (Mich. App. 1996) ..................... 21

People v. Preciado,
116 Cal.App.3d 409, 172 Cal. Rptr. 107 (1981).. 19, 25

People v. Warner,

476 N.W.2d 660 (Mich. App. 1991)................ t7, Zz
Perry v. Commonwealth, 780 N.E.2d 53 (Mass. 2002)...25
Rosemond v. State, 756 P.2d 1180 (Nev. 1988)............ 18
Rummel v. Estelle, 445 U.S. 263 (1980) .......... 13, 14, 24
Solem v. Helm, 463 U.S. 277 (1983) .........cccccessecccecees 9
State ex rel. Garvey v. Whitaker,

Pe I ls Bans cod cc an csbennacckecsdovessnesans a2, 22
State v. August, 589 N.W.2d 740 (Iowa 1999) ............. 18
a, Rae 8 ae gy ) 27
State v. Dillard, 320 So.2d 116 (La. 1975).................. 16
OOS V. EAIVEE, TE PF.S. G23 (UBIO onc cvccccvcccsivescsccerys 22
State v. Emond, 786 P.2d 989 (Ariz. App. 1990).......... 24
State v. Jonas, 792 P.2d 705 (Ariz. 1990)......... 18, 24, 26
State v. Laffey, 600 N.W.2d 57 (Iowa 1999) ............... 20
State v. McNally, 211 A.2d 162 (Conn. 1965) ............. 18
State v. Moliga, 747 P.2d 81 (Idaho App. 1987)........... 18
State v. Murray, 563 A.2d 488 (N.J. App. 1990).......... 19
State v. Nunn, 802 P.2d 547 (Kan. 1990) ................... 20
Sseate v. O' Med, 2 A. S06 (Vt. IGBG).......... ccc ccccsccvascees 16
State v. Padilla, 509 P.2d 1335 (N.M. 1973)............... 17
State v. Poole (Robert),

FOND TN. We. OT GAME, BIG) occ vicccccccecccttcveees 17, 25
State v. Repp, 603 S.W.2d 569 (Mo. 1980)................. 17
State v. Taylor, 773 P.2d 974 (Ariz. 1989) ................. 2]
State v. Venman, 564 A.2d 574 (Vt. 1989) .................. 15
MI ED ose yn paw ca dcg onan beg pb cipaauaeiadeuaes 26
Thompson v. State, 658 $.W.2d 350 (Ark. 1983) OE Oe 20
United States v. Aiello,

O64 F208 257 GB Cir. 1968)... io. 5.0 ceccccccvcevecs. 8, 15, 26
United States v. Angelos,

433 F350 TIO IT Ci. BOOB) wo cv ccnecccececccns 14, 19, 20

United States v. Arrington,
159 F.3d 1069 (7" Cir. 1998)............. iauceneu seen 20

United States v. Beverly,

369 F.3d 516 (6" Cir. 2004) ................ 16, 19, 20, 26
United States v. Candia, 454 F.3d 468 (5" Cir. 2006) .... 18
United States v. Hersh, 297 F.3d 1233 (11" Cir. 2002)...24
United States v. Hungerford,

SF Ae FEE i Pink bo kkvokstnaiccanioneateds 20
United States v. Khan, 461 F.3d 477 (4" Cir. 2006)....... 19
United States v. Lustig, 555 F.2d 751 (9" Cir. 1975); ....19
United States v. Ming Hong,

Dee F.3d SIE S52 18" Ce. QOD) nvdncccdvcncecvciens 55; 3s
United States v. Norris, 159 F.3d 926 (5" Cir. 1998)..... 24
United States v. Schell, 692 F.2d 672 (10" Cir. 1982) ....18
United States v. Sherman, 268 F.3d 539 (7" Cir. 2001) ..24
United States v. White, 240 F.3d 127 (2 Cir. 2001) ..... 18
United States v. Woods, 440 F.3d 255 (5" Cir. 2006) ....19
United States v. Yousef, 327 F.3d 56 (2 Cir. 2003) ..... 19
Wahleithner v. Thompson,

RGD Feo St CRE. FAD. DOGO) oscccecsanvescastccecsiuens 15
Walton v. Scott, 445 S.W.2d 97 (Ark. 1969) ............... 17
Weems v. United States, 217 U.S. 349 (1910).............. 21
Statutes
Ee Ate: B Rea TS), CONT) CH oon oes ssece cp vases, 14
ress ee GPE) vince) rk cao vddederesecdendpcuseeectiaee l
hy Oe WOOD os oop tendascavinceides alee ee 4
Pe, Oe 5 IED oh soso s ktkevvesdint kines 4
Le PDE oss sd eveneecadvivniscsactionelyie Oe
Ee Aa 5, ieee ep mam Ene PEATE Bs ar EASED Y 2. -) 4
Rs a OED 6 eas ksh sda dee ee
Ga. Code Ann. § 16-12-100 (2003) ....................... oy
aes. Code Amn. 6 ST SSS CHO ion osnesscedarccencesovavess 14
Nev. Rev. Stat. Ann. § 200.750 (2005) ..................00. 14

Utah Code Ann. §§ 76-Sa-3, 76-2-203(2) (1953)......... 14

Vi

Other Authorities
1978 Ariz. Sess. Laws 1978, Ch. 200, § 2(A)(5)-(6))..... 24
Cal. Penal Code Ann. § 666 (West. Supp. 2002)........... 17

CONSTITUTIONAL PROVISIONS
res oe Ie eae l

OPINIONS BELOW

The Arizona Supreme Court’s opinion (Pet. App. 1a-41a) is
reported at 134 P.3d 378 (Ariz. 2006). The Anzona Court of
Appeals’ opinion (Pet. App. 42a-85a) is reported at 103 P.3d
298 (Anz. App. 2004).

STATEMENT OF JURISDICTION

The Arizona Supreme Court entered its judgment on May
10, 2006. Pet. App. la. Petitioner did not file a petition for
rehearing. The petition for a writ of certiorari was filed on
September 7, 2006. This Court has jurisdiction pursuant to 28
U.S.C. § 1257(a) and United States Constitution Article III,
Section 2.

STATEMENT OF THE CASE

On June 6, 2002, law enforcement conducted a knock-and-
talk at Petitioner’s residence because a Dallas-based internet
child-pornography website operator had identified him as
someone who had provided his credit card number to purchase
access to their website’s contraband images. (P.I. at 13 [State’s
Response to Petitioner’s Release Motion], page 4; R.T. 1/28/03,
at 6-8; R.T. 1/29/03, at 26, 37-40, 46, 51-53, 55.) Ultimately,
Petitioner admitted that he had downloaded images of child
pornography on his web-site at home, resulting in the seizure of
two computers, 150 floppy disks, 100 compact disks, and three
photo-album binders that contained thousands of pornographic
images of prepubescent children that Petitioner had printed
onto high-quality, glossy paper, and which he carefully
organized by age, sexual activity, and sexual partners. (P.I. at
28 [State’s Response to Petitioner’s Motion to Dismiss
Allegation of A.R.S. § 13-604.01], page 8: R.T. 1/29/03, at 37-
41, 55-66, 72-75, 77, 83-85, 89-100, 104-05, 112-13, 143-45;

Trial Exhibits 1, 2, 5-7.) While scanning the images on
Petitioner’s hard drive and disks, the State’s forensic computer
expert tabulated almost 41,000 “hits” for the words most
commonly used to search child pornography on-line—“‘Lolita,”
“preteen,” “young girls,” and “underage”—a frequency rarely
encountered during his investigations. (R.T. 1/29/03, at 162,
194.) Petitioner created his earliest images on April 23, 1996,
more than 6 years before his arrest. (/d. at 177-80.) Petitioner
admitted his awareness that possession of child pornography
was illegal]. (/d. at 72-75, 85-89, 166-67; Trial Exhibit 3.)

As reflected in the State’s response to Petitioner’s motion
for release, Petitioner’s child-pomography collection was
extensive, graphic, and extremely disturbing:

The images included bondage, torture, and young
girls having intercourse with dogs. Children are
blindfolded, hands tied, being urinated on, and wearing
dog collars. There are numerous video files, most
involving girls as young as 3 years old being forced to
perform oral sex on adult men and being vaginally and
anally raped by adults. There is a particularly disturbing
video of a young (no more than 4 years old) girl
struggling and crying and begging her abuser to stop as
he holds her by the throat and ejaculates on her face and
forces his penis into her mouth. ...

Almost all of his thousands of images were of
children engaged in sexual acts, not just exploitative
exhibition. On a more disturbing note, this defendant
not only stored images of little children with blindfolds
and hands tied, being raped, tortured, forced to have
sexual intercourse with dogs and other animals, wearing
dog collars and being urinated on—but he even printed
them in high quality glossy paper and neatly stored

them in binders so that he could look at them more
easily. He has photos of children engaged in sexual acts
with other young children as well as with adults
sexually abusing them. The children in defendant’s
images are extremely young, including toddlers. Many
of the videos contained on the defendant’s hard drive
and CD-ROMS are absolutely nauseating and too
horrible to even describe. They are quite literally the
worst images of child pornography/torture that the
undersigned has seen in her career, an opinion also
expressed by the State’s very experienced expert
pediatrician who determined the ages of the children
and the experienced detective assigned to this case. One
disturbing video actually has a loud audio file
attached—a young girl no more than 4 years old,
struggling and crying and begging her abuser to stop as
he holds her by the throat and ejaculates on her face and
forces his penis in her mouth.

(P.I. at 13 [State’s Response to Petitioner’s Release Motion],
pages 3, 5.)

After charging Petitioner with thirty-five counts of sexual
exploitation of a minor, the State dismissed fifteen counts
before tna] began because the prosecutor feared deluging the
jury with these graphically disturbing images.’ (R.T. 1/28/03, at
3-5; R.T. 3/7/03, at 4-6.) The jury subsequently convicted
Petitioner of the remaining twenty counts and determined that
the depicted children were less than -fifteen years old. (R.T.
3/3/03, at 11-13.)

' The State did not charge Petitioner with sexual exploitation of a child
for every image in his collection, but selected only thirty-five representative
images from the thousands available, for purposes of “judicial economy.”
(P.I. at 13 [State’s Response to Petitioner's Release Motion], page 4.)

After rejecting Petitioner’s post-conviction Eighth
Amendment challenge, the tnal court imposed twenty mitigated
ten-year prison terms, and ordered them to run consecutive to
each other, as mandated by A.R.S. §§ 13-604(K) and -3553.
(R.T. 3/7/03, at 11-13; M.E. at 94, 97.) Although the trial court
imposed mitigated prison terms, it agreed with the Legislature’s
determination that Petitioner’s crimes were very serious
offenses and did not enter any special order to invoke A.R.S. §
13-603(L)’s executive clemency provisions. (R.T. 3/7/03, at 11-
14; M.E. at 97.)

On direct appeal, Petitioner challenged his convictions on
First Amendment and Equal Protection grounds and also
claimed that the aggregate length of his sentences violated the
Eighth Amendment. The Arizona Court of Appeals rejected all
of these arguments in a published opinion. Pet. App. at 42a-63a.
Abandoning the aforementioned challenges to his convictions,
Petitioner petitioned the Arizona Supreme Court solely to
review the lower courts’ rejection of his argument that the
aggregate length of his twenty consecutive ten-year prison
terms transgressed the Cruel and Unusual Punishment Clause of
the Eighth Amendment. The Arizona Supreme Court granted
review “to again consider the framework for reviewing Eighth
Amendment challenges to lengthy prison sentences.” Pet. App.
at 4a. Writing for himself and all but one of the members of the
Anzona Supreme Court, Justice Bales held that Petitioner’s
sentences did not raise an inference of gross disproportionality,
affirmed his sentences, and vacated that portion of the Anzona
Court of Appeals’ opinion addressing Petitioner’s Eighth
Amendment claim. Pet. App. at 1a, 24a.

The Anzona Supreme Court commenced its analysis by
observing that “[this Court] has noted that non-capital
sentences are subject only to a ‘narrow proportionality

principle’ that prohibits sentences that are ‘grossly
disproportionate’ to the crime.” Pet. App. at 5a (quoting Ewing
v. California, 538 U.S. 11, 20, 23 (2003) (O’Connor, J.,
concurring) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-
97 (1991) (Kennedy, J., concurring)). The majority then
identified its standard as “the framework outlined by Justice
Kennedy in his concurring opinion in Harmelin and later
employed by Justice O’Connor in announcing the judgment of
the Court in Ewing.” Pet. App. at 5a. Recognizing that “courts
must accord substantial deference to the legislature and its
policy judgments as reflected in statutorily mandated
sentences,’ the Arizona Supreme Court enumerated “the
primacy of the legislature in determining sentencing, the variety
of legitimate penological schemes, the nature of the federal
system, and the requirement that objective factors guide
proportionality review” as the “several principles” that guide
the threshold “gross-disproportionality” inquiry and inform
“the broader notion that the Eighth Amendment ‘does not
require strict proportionality between crime and sentence’ but
instead forbids only extreme sentences that are ‘grossly
disproportionate to the crime.’” Pet. App. at 6a-7a (quoting
Ewing, 538 U.S. at 23 (O’Connor, J., concurring) (quoting
Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)).

The Arizona Supreme Court observed that this Court had
most recently rejected a recidivist’s Eighth Amendment
challenge to a prison term of 25 years to life under California’s
“three strikes statute” because: (1) “the State of Califormia had a
‘reasonable basis’ for believing the law would substantially
advance the goals of incapacitating repeat offenders and
deterring crime’; and (2) the statute “reflects a rational
legislative judgment, entitled to deference, that offenders who
have committed serious or violent felonies and who continue to
commit felonies must be incapacitated.” Pet. App. at 7a
(quoting Ewing, 538 U.S. at 28, 30). In similar vein, the

majority observed that this Court previously rejected a
challenge to a mandatory sentence of life imprisonment without
parole for a first-time offender convicted of possessing 672
grams of cocaine in Harmelin, with Justice Kennedy observing
“that the Michigan legislature could with reason conclude that
the threat posed to the individual and society by possession of
this large an amount of cocaine—in terms of violence, crime,
and social displacement—-1s momentous enough to warrant the
deterrence and retribution of a life sentence without parole.”
Pet. App. at 8a (quoting Harmelin, 501 U.S. at 1003-04
(Kennedy, J., concurring)). The Arizona Supreme Court thus
concluded that its analysis of Petitioner’s Eighth Amendment
challenge would be “guided” by the following framework: “{a]
prison sentence is not grossly disproportionate, and a court
need not proceed beyond the threshold inquiry, if it arguably
furthers the State’s penological goals and thus reflects ‘a
rational legislative judgment, entitled to deference.’” Pet. App.
at 9a (quoting Ewing, 538 US. at 30).

The Arizona Supreme Court recognized, “It is evident
beyond the need for elaboration that a State’s interest in
‘safeguarding the physical and psychological well-being of a
minor’ is ‘compelling,’ and that “the use of children as
subjects of pormographic materials is harmful to the
physiological, emotional, and mental health of the child.” Pet.
App. at 9a (quoting Osborne v. Ohio, 495 U.S. 103, 109 (1990)
(quoting New York v. Ferber, 458 U.S. 747, 756-58 (1982)).
The majority likewise acknowledged that the victims of child
pornography continue to suffer substantial harm long after the
material’s production. Pet. App. at 10a. The Arizona Supreme
Court thus concluded that cnminalizing the possession of child
pornography is “tied directly to state efforts to deter its
production and distribution ‘at all levels in the distribution
chain,’” encourages the destruction of these materials, and
furthers the “goal of combating the sexual abuse and

exploitation inherent in child pornography.” Pet. App. at 10a
(quoting Osborne, 495 U.S. at 110).

Recounting the legislative history of Arizona’s current
child-pornography statutes, the Arizona Supreme Court
observed that Arnzona first banned child-pornography
possession in 1983 with legislation that implicitly
acknowledged “the fact that producers of child pornography
exist due to the demand for such materials.” Pet. App. at 11a.
The court further noted that the Arizona Legislature
subsequently included the offense of possession of child
pornography among the “dangerous crimes against children”
targeted in A.R.S. § 13-604.01—a statute which prescribes
“lengthy periods of incarceration . . . intended to punish and
deter” “those predators who pose a direct and continuing threat
to the children of Arizona.” Pet. App. at 11a-12a. The court thus
concluded, “Given this history . . . the legislature had a
‘reasonable basis for believing’ that mandatory and lengthy
prison sentences for the possession of child pornography would
‘advance[] the goals of [Arizona’s] criminal justice system in
[a] substantial way.”” Pet. App. at 12a (quoting Ewing, 538 U.S.
at 28; alterations in orginal).

The Arizona Supreme Court next compared the gravity of
the offense against the severity of Petitioner’s sentences. The
majority observed that Petitioner did not dispute that child
pornography, “a felony under federal and most state laws,”’ is a
“very serious” crime. Pet. App. at 13a. Rejecting Petitioner’s
contention that he had received a “200 year flat-time sentence
upon his conviction of possession of child pornography,” the
Arizona Supreme Court concluded that Petit’ ier, like the
defendant in Ewing, had “incorrectly frame[d] the issue at the
threshold,” observing that Petitioner had actually been
“convicted of twenty separate counts of possession of child
pornography involving minors under fifteen, and he was

sentenced to a ten-year term for each count . . . [to] be served
consecutively.” Pet. App. at 12a. The court reached this
conclusion because each of Petitioner’s twenty counts “was
based on a different video or image, the images involved s-.ne
fifteen different child victims, and [Petitioner] had accumulated
the images over a 6-year period.” Pet. App. at 13a.

The Arizona Supreme Court provided two additional
reasons for focusing its gross-disproportionality analysis “‘on
whether a ten-year sentence is disproportionate for a conviction
of possessing child pornography involving children under
fifteen.” Jd. First, “[a] defendant has no constitutional right to
concurrent sentences for two separate crimes involving separate
acts.” Jd. Second, “Eighth Amendment analysis focuses on the
sentence imposed for each specific crime, not on the cumulative
sentence.” Pet. App. at 14a (quoting United States v. Aiello, 864
F.2d 257, 265 (2° Cir. 1988)). Consequently, the court
concluded:

Thus, if the sentence for a particular offense is not
disproportionately long, it does not become so merely
because it is consecutive to another sentence for a
separate offense or because the consecutive sentences
are lengthy in the aggregate. .. . This proposition holds
true even if a defendant faces a total sentence exceeding
a normal life expectancy as a result of consecutive
sentences.

Pet. App. at 14.

Based upon this Court’s Eighth Amendment jurisprudence
and its own precedent, the Anzona Supreme Court concluded
that Petitioner’s ten-year prison term per count was not grossly
disproportionate to his cnme of child-pormnography possession:

The Supreme Court has affirmed a sentence of
twenty-five years to life for the grand theft of three golf
clubs worth nearly $1200 by a recidivist felon, Ewing,
538 U.S. at 30-32, 123 S.Ct. 1179; upheld a sentence of
life in prison without parole for a first-time offender
possessing 672 grams of cocaine, Harmelin, 501 U.S. at
996, 111 S.Ct. 2680; and found no Eighth Amendment
violation in two consecutive twenty-year prison terms
for possession of nine ounces of marijuana with intent
to distribute, Hutto v. Davis, 454 U.S. 370, 374, 102
S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam).
Similarly, this court has upheld a sentence of twenty-
five years without parole for a twenty-one-year-old
defendant convicted of selling a $1 marijuana cigarette
to a fourteen-year-old, even though this sentence was
consecutive to a twenty-one-year sentence for the
defendant’s trafficking in stolen property with the same
juvenile.

Pet. App. at 1Sa.

The Anzona Supreme Court observed that “only once in the
past quarter century has [this Court] sustained an Eighth
Amendment challenge to the length of a prison sentence.” /d.
(citing Solem v. Helm, 463 U.S. 277 (1983)). The court
distinguished Solem from the instant case on two grounds: (1)
in Solem, the defendant was sentenced to life imprisonment
without parole, “the most severe punishment the State could
have imposed,” for the “quite minor crime” of uttering a no-
account check, “one of the most passive felonies a person could
commit,” Pet. App. at 15a (quoting Solem, 463 U.S. at 296-97);
and (2) Solem “did not involve a mandatory sentence, but
instead concerned a judge’s discretionary decision to impose
the maximum authorized sentence [and} [t]hus . . . did not
implicate the ‘traditional deference’ that courts must afford to

10

legislative policy choices when reviewing statutorily mandated
sentences,” Pet. App. at 16a.

Based upon the overwhelming evidence of Petitioner’s
large-scale, deliberate, and long-term acquisition of child
pornography, the Arizona Supreme Court concluded, “[I]n the
terminology of Ewing, [Petitioner’s] sentences are ‘amply
supported’ by evidence indicating his ‘long, serious’ pursuit of
illegal depictions and are ‘justified by the State’s public-safety
interest’ in deterring the production and possession of child
pomography.” Pet. App. at 17a (quoting Ewing, 538 U.S. at 29-
30). The aforementioned evidence likewise prompted the court
to conclude that Petitioner’s proscribed conduct fell within “the
core, not the periphery, of the prohibitions of A.R.S. § 13-
3553(A)(2)—the knowing possession of visual depi¢tions of
sexual conduct involving minors.” Pet. App. at 20a. The
Arizona Supreme Court therefore declined Petitioner’s
invitation to consider the cumulative effect of consecutive
sentences imposed on him. Pet. App. at 19a.

Thus, given “the legislature’s intent to deter and punish
those who participate in the child pornography industry, and
{Petitioner’s} commission of twenty separate offenses,” the
court affirmed Petitioner’s sentences without conducting inter-
and intra-jurisdictional analyses, based upon its conclusion that
“the twenty consecutive ten-year sentences are not grossly
disproportionate to his crimes.” Pet. App. at 24a.

Concurring “‘fully . . . in the analysis and result reached by
the majority in this case,”’ Justice Hurwitz nonetheless wrote
scparately to respond to Justice Berch’s concurring and
dissenting opinion, which suggested that Eighth Amendment
analysis “would be easier if courts were allowed to conduct an
intra- and inter-jurisdictional analysis at the outset in order to
find an inference of gross disproportionality.”’ Pet. App. at 25a-

11

26a. After acknowledging that Harmelin foreclosed such an
approach, Justice Hurwitz proceeded to consider the penalties
imposed for other crimes in Arizona and for the same offense in
other jurisdictions and nonetheless concluded that such
extended analyses failed to raise an inference of gross
disproportionality. Pet. App. at 26a-27a. Addressing Justice
Berch’s “real concern . . . that Arizona law requires that a court
impose consecutive ten-year sentences for each offense,”
Justice Hurwitz observed that this Court’s Eighth Amendment
jurisprudence: (1) “rejected the notion that mandatory flat
sentences violate the Constitution because they do not allow
consideration of the particular situation of the offender”; and
(2) does not “allow .. . find[ing] consecutive sentences for
separate crimes unconstitutional if the individual sentences for
each «ime are not.” Pet. App. at 28a (emphasis in original).

Disagreeing with the majority’s focus upon the specific
sentence imposed for each count, Justice Berch issued a
concurring and dissenting opinion wherein she maintained,
“{Ijn determining whether a total sentence is grossly
disproportionate to the crime for which it was meted out as
punishment, we must deal with the sentence imposed as a
whole and not shield ourselves from the full impact of the
sentence by analyzing only one charge and sentence.” Pet. App.
at 36a-37a. Despite concurring with the majority’s “statements
of the rules emanating from the Harmelin line of cases,” Justice
Berch “would find that a minimum mandatory sentence of 200
years for possession of twenty pornographic images raises an
inference of gross disproportionality that requires additional
analysis before ultimately the court determines whether the
sentence is unconstitutionally disproportionate.” Pet. App. at
41a.

12

ARGUMENT

Petitioner contends that the Arizona Supreme Court’s
Eighth Amendment analysis was defective because the majority
failed to consider the aggregate length of his twenty statutorily
mandated consecutive ten-year prison terms when comparing
the gravity of his crimes against the severity of his sentences.
Petitioner further argues that had the Anzona Supreme Court
not focused its analysis on the constitutionality of the ten-year
prison terms imposed for each count of possession of child
pomography, the majority would have been compelled to find
an inference of gross disproportionality, conduct both intra- and
inter-jurisdictional comparative analyses, and thus conclude
that his sentences violated the Eighth Amendment. However,
the Arizona Supreme Court properly found each ten-year prison
term constitutional and employed the proper standard to
consider Petitioner’s constitutional attack on the cumulative
length of his consecutive sentences. The Arizona Supreme
Court’s opinion not only is faithful to the decisions of this
Court, but also comports with well-established lower-court
precedent governing Eighth Amendment challenges to the
aggregate length of multiple prison terms, none of which
individually constitute crue] and unusual punishment. Thus,
further review is not warranted.

A. PETITIONER’S TEN-YEAR PRISON TERM PER COUNT IS
CONSTITUTIONAL.

The Arizona Supreme Court correctly held that Petitioner’s
ten-year prison term per count of possession of child
pornography did not raise an inference of gross
disproportionality, for two reasons. First, the ten-year sentence
imposed for this crime is less severe than other prison terms
that this Court upheld as punishment for far less serious
offenses. See Lockyer v. Andrade, 538 U.S. 63, 77 (2003)

13

(upholding two statutorily-mandated consecutive prison terms
of 25 years to life for two counts of petty theft under
California’s recidivist statute); EF .ag, 538 U.S. at 30-31
(upholding mandatory prison term of 25 years to life for
California recidivist convicted of felony grand theft); Harmelin,
501 U.S. at 1005 (upholding mandatory life imprisonment
without parole for a first-time offender who stood convicted of
simple possession of 672 grams of cocaine); Hutto, 454 US. at
375 (upholding two consecutive 20-year prison terms imposed
for selling 3 ounces of marijuana and possessing 6 ounces of
marijuana for distribution); Rummel v. Estelle, 445 U.S. 263,
285 (1980) (upholding life sentence, with parole eligibility,
imposed upon a Texas recidivist whose three theft-related
crimes involved money and property having an aggregate worth
of $229.11).

Second, the Arizona Supreme Court properly held that the
legislature “had a ‘reasonable basis for believing’ that
mandatory and lengthy prison sentences for the possession of
child pornography would ‘advance[] the goals of [Arizona’s]
criminal justice system in [a] substantial way.’” Pet. App. at 12a
(quoting Ewing, 538 U.S. at 28; alterations in onginal). Indeed,
this Court previously found it “surely reasonable for the State to
conclude that it will decrease the production of child
pornography if it penalizes those who possess and view the
product, thereby decreasing demand.” Osborne, 495 US. at
109-10. Thus, the Anzona Legislature had a reasonable basis to
believe that mandating severe prison terms for this crime would
reduce the sexual abuse of children by significantly deterring
and incapacitating child-pomography consumers. “Notably,
both of these penological theories [deterrence and
incapacitation] have been held by the Supreme Court to be
valid and subject to deference by the courts.”’ United States v.
Angelos, 433 F.3d 738, 751 (10" Cir. 2006) (citing Ewing, 538
U.S. at 24-28, and Harmelin, 501 U.S. at 998-99).

14

Although Petitioner contends that Arizona’s mandatory
minimum sentence ranks as the Nation’s harshest for his crime,
“the circumstance that a State has the most severe punishment
for a particular crime does not by itself render the punishment
grossly disproportionate.” Harmelin, 501 U.S. at 1000
(Kennedy, J., concurring); see also Rummel, 445 U:S. at 281
(“Even were we to assume that the statute employed against
Rummel was the most stringent found in the 50 states, that
severity would hardly render Rummel’s punishment ‘grossly
disproportionate’ to his offenses.”’).’

Because comparison of the gravity of Petitioner’s crime to
the severity of his ten-year prison term did not give mise to an
inference of gross disproportionality, the Arizona Supreme
Court properly rejected Petitioner’s Eighth Amendment claim
without conducting inter- and intra-jurisdictional analyses. See
Ewing, 538 U.S. at 23-24, 30; Harmelin, 501 U.S. at 1005
(Kennedy, J., concurring).

> As Justice Hurwitz made clear in his concurring opinion, other
jurisdictions prescribe penalties for child pornography possession that are at
least as long as the ten-year prison term that Petitioner received for obtaining
images of children under 15. Pet. App. at 27a (Hurtwitz, J., concurring). See,
eg., 18 U.S.C. § 2252(a)(1), (b)(1) (2000) (sentencing range of 5 to 20
years’ imprisonment); Ga. Code Ann. § 16-12-100 (2003) (5 to 20 years”
impmsonment); Miss. Code Ann. § 97-5-35 (2005) (5 to 40 years’
imprisonment); Nev. Rev. Stat. Ann. § 200.750 (2005) (life imprisonment
with parole eligibility after 10 years); Utah Code Ann. §§ 76- S5a-3, 76-2-
203(2) (1953) (sentencing range of | to 15 years’ imprisonment).

15

B. THE AGGREGATE LENGTH OF PETITIONER’S TWENTY
CONSECUTIVE PRISON TERMS DOES NOT VIOLATE THE EIGHTH
AMENDMENT BECAUSE EACH COMPONENT TEN-YEAR PRISON
TERM IS CONSTITUTIONAL.

Despite the constitutionality of each ten-year prison term
imposed, Petitioner maintains that this Court should issue a writ
of certiorari because the Arizona Supreme Court refused “‘to
consider the full impact of Arizona’s mandatory flat,
consecutive sentencing scheme.” Petition, at 8. Although
Petitioner contends that the correct yardstick for his Eighth
Amendment claim is the aggregate length of his twenty prison
terms, the Arizona Supreme Court correctly concluded, “[I]f the
sentence for a particular offense is not disproportionately long,
it does not become so merely because it is consecutive to
another sentence or because the consecutive sentences are
lengthy in the aggregate.” Pet. App. at 14a. In selecting this
analytical framework for determining the constitutionality of
the aggregate total of Petitioner’s consecutive sentences, the
court honored the well-established principle that “Eighth
Amendment analysis focuses on the sentence imposed for each
specific crime, not on the cumulative sentence.” /d. (quoting
Aiello, 864 F.2d at 265).° This principle’s ultimate source is
O'Neil v. Vermont, 144 U.S. 323 (1892), wherein this Court—
albeit in dicta—approved the Vermont Supreme Court’s
rationale for rejecting a defendant’s “cruel and unusual

* Numerous other federal and state courts follow this approach while
reviewing Eighth Amendment challenges to consecutive prison sentences.
See United States v. Ming Hong, 242 F.3d 528 532 (4" Cir. 2001); Pearson v.
Ramos, 237 F.3d 881, 886 (7™ Cir. 2001); Hawkins v. Hargett. 200 F.3d
1279, 1285 (10" Cir. 1999); People v. Hayes, 923 P.2d 221. 229 (Colo. App.
1995); People v. Elliott, 112 N.E. 300, 304 (Ill. 1916); Malee v. State, 809
A.2d 1, 8-9 (Md. App. 2002); People v. Kennebrew, 560 N.W.2d 354, 358
(Mich. App. 1996); State v. Venman, 564 A.2d 574, 582 (Vt. 1989);
Wahleithner v Thompson, 143 P.3d 321, 323, § 12 (Wash. App. 2006).

16

punishment” challenge to his cumulative sentences for 307
counts of selling intoxicating liquor—19,914 days of
incarceration and fines totaling $6,638.72:

If he has subjected himself to a severe penalty, it is
simply because he has committed a great many such
offenses. It would scarcely be competent for a person to
assail the constitutionality of the statute prescribing a
punishment for burglary on the ground that he had
committed so many burglaries that, if punishment for
each were inflicted on him, he might be kept in prison
for life. The mere fact that cumulative punishments may
be imposed for distinct offenses in the same prosecution
is not material upon this question. If the penalty were
unreasonably severe for a single offense, the
constitutional question might be urged; but here the
unreasonableness is only in the number of offenses
which the respondent has committed.

Id. at 331 (quoting State v. O'Neil, 2 A. 586, 593 (Vt. 1886))
(emphasis in orginal opinion).

Based upon the rationale set forth in O'Neil, numerous
courts, including the Arizona Supreme Court in the instant case,
have applied the following rule: “Consecutive sentences of
imprisonment for conviction of separate offenses do not render
a punishment cruel and unusual, where the penalty upon
conviction of each offense is itself valid.” State v. Dillard, 320
So.2d 116, 122 (La. 1975).4 Moreover, this Court’s

* See also United States v. Beverly, 369 F.3d 516, 537 (6" Cir. 2004)
(upholding statutonly-mandated consecutive sentences totaling over 71 years
where none of the individual sentences was “intrinsically ‘grossly
disproportionate’ to the crime’’); Walton v. Scott, 445 S.W.2d 97, 99 (Ark.
1969) (“We can find in the constitution no yardstick enabling us to announce
(Continued)

17

jurisprudence since O'Neil continues to reflect the view that a
defendant should not be allowed to escape full punishment for
multiple crimes, based upon the cumulative effect of otherwise
constitutional sentences. See Lockyer, 538 U.S. at 74 nl
(rejecting the dissent’s characterization of Andrade’s sentence
‘as punishment for the total amount he stole’ because
“California law specifically provides that each violation of Cal.
Penal Code Ann. § 666 (West. Supp. 2002) triggers a separate

(Continued).

with confidence that the penalty is valid when one package is involved, that
it 1s valid when 120 packages are involved, but that it is not valid when 894
packages are involved.”’): Cole v. State, 262 So.2d 902, 903 (Fla. App. 1972)
(“The direction by the trial court for the sentences to be served consecutively
did not operate to make the several lawful sentences constitute cruel or
unusual punishment.”): E//iott, 112 N.E. at 304 (“The statute prescribing a
penalty for unlawful sales of liquor is valid, and the validity of the sentences
is not affected by the fact that there were numerous violations and
cumulative penalties.”’); Kaylor v. State, 400 A.2d 419, 422 (Md. App. 1979)
(“However. it 1s settled law that consecutive sentences do not constitute
cruel and unusual punishment where the length of each sentence is within
the limits prescribed by statute.”); People v. Miles, 559 N.W.2d 299, 301-02
(Mich. 1997) (approving the holding in People v. Warner, 476 N.W.2d 660
(Mich. App. 1991). that courts need not consider the cumulative length of
consecutive sentences when each individual sentence is constitutional); State
v. Poole (Robert). 100 N.W. 647, 647-48 (Minn. 1904) (holding that the
cumulative fines and incarceration imposed for multiple violations of game-
protection statute would not constitute cruel and unusual punishment where
each sentence was constitutional); State v. Repp, 603 S.W.2d 569, 571 (Mo.
1980) (holding that “where [a] defendant is convicted of separate offenses
and the sentences imposed are within statutory limits, [the] consecutive
effect of the sentences does not constitute cruel and unusual punishment”),
State v. Padilla. 509 P.2d 1335, 1338 (N.M. 1973) (“[The defendant} also
recognizes thar the imposition of multiple valid sentences to run
consecutively does not, as such, constitute cruel and unusual punishment as
contemplated by the Eighth Amendment to the Constitution of the United
States.”). Brinkley v State, 143 S.W. 1120, 1123 (Tenn. 1911) (upholding
the imposition of additional fines and jail terms per each additional crime
committed where the prescribed sentence for each violation was
constitutional)

18

application of the three strikes law, if the different felony
counts are ‘not arising from the same set of operative facts’”’)
(emphasis in original); Badders v. United States, 240 U.S. 391,
393-94 (1916) (holding that the imposition of seven $1,000
fines against a defendant convicted of seven counts of mail
fraud presented “no ground for declaring the punishment
unconstitutional’’).

Petitioner’s challenge to the cumulative total of his
individually constitutional prison terms is essentially a thinly-
disguised claim that he is constitutionally entitled to concurrent
sentences for multiple crimes—a nght that would absurdly
allow him to evade the full extent of punishment legislatively
prescribed for his crimes. However, there exists “no
constitutional mght to receive concurrent sentences for two
separate offenses.” Rosemond v. State, 756 P.2d 1180, 1181
(Nev. 1988); see also United States v. Candia, 454 F.3d 468,
474 (5" Cir. 2006); United States v. White, 240 F.3d 127, 135
(2" Cir. 2001); State v. Jonas, 792 P.2d 705, 712 (Ariz. 1990);
State v. Moliga, 747 P.2d 81, 85 (Idaho App. 1987); Bewley v.
State, 220 N.E.2d 612, 613 (Ind. 1966). Indeed, as the
Connecticut Supreme Court observed, “It would be
preposterous to hold that a person who commits a crime has a
constitutional right to escape punishment for it.” State v.
McNally, 211 A.2d 162, 164 (Conn. 1965); see also United
States v. Schell, 692 F.2d 672, 675 (10 Cir. 1982) (“The
Eighth Amendment does not prohibit a state from punishing
defendants for the crimes they commit; the amendment
prohibits a sentence nly if it is grossly disproportionate to the
severity of the crime.”’); State v. August, 589 N.W.2d 740, 744
(lowa 1999) (“There is nothing cruel and unusual about
punishing a person committing fwo crimes more severely than a
person committing only one cnme, which is the effect of
consecutive sentencing.”) (emphasis in original); Malee, 809
A.2d at 9 (upholding imposition of multiple consecutive

19

sentences as “preventing duly convicted offenders from
escaping punishment of their criminal acts”’); State v. Murray,
563 A.2d 488, 500 (N.J. App. 1990) (rejecting challenge to
imposition of consecutive sentences because “there can be no
free crimes in a system for which the punishment shall fit the
crime.’’).

“Consecutive sentences are an appropriate mechanism for
imposing a distinct punishment for each of two criminal acts.”
United States v. Woods, 440 F.3d 255, 260 (5" Cir. 2006); see
also United States v. Lustig, 555 F.2d 751 753 (9" Cir. 1975);
Kaylor, 400 A.2d at 423. “Mandating consecutive sentences is
not an unreasonable method of attempting to deter a criminal,
who has committed several offenses . . . from doing so again.”
United States v. Beverly, 369 F.3d 516, 537 (6" Cir. 2004); see
also United States v. Angelos, 433 F.3d 738, 751 (10" Cir.
2006) (upholding mandatory consecutive sentences to deter and
incapacitate those who repeatedly commit serious felonies with
firearms); People v. Preciado, 116 Cal.App.3d 409, 412, 172
Cal. Rptr. 107, 108-09 (1981) (upholding the mandatory
imposition of consecutive sentences for multiple violent rapes
because the defendant’s resulting punishment was “directly
proportionate to the number and violence of his crimes”).

The fact that Petitioner’s twenty consecutive prison terms
cumulatively exceed his life expectancy does not render them
unconstitutional. As the Sixth Circuit correctly observed, “The
Supreme Court has never held that a sentence to a specific term
of years, even if it might tum out to be more than the
reasonable life expectancy of the defendant, constitutes cruel
and unusual punishment.” Beverly, 369 F.3d at 537; see also
United States v. Khan, 461 F.3d 477, 495 (4" Cir. 2006)
(same); Angelos, 433 F.3d at 753 (same); United States v.
Yousef, 327 F.3d 56, 163 (2° Cir. 2003) (“Lengthy prison
sentences, even those that exceed any conceivable life

20

expectancy of a convicted defendant, do not violate the Eighth
Amendment’s prohibition against cruel and unusual} punishment
when based on a proper application of the Sentencing
Guidelines or statutorily mandated prison terms.’’) (collecting
cases); Thompson v. State, 658 S.W.2d 350, 270 (Ark. 1983)
(“We have previously stated that the cumulative effect of
consecutive sentences does not make punishment cruel and
unusual.”); State v. Laffey, 600 N.W.2d 57, 61 (Iowa 1999)
(“The fact that these sentences mean that Laffey spends the
remainder of his life in prison is not a factor in our analysis.”’);
State v. Nunn, 802 P.2d 547, 551 (Kan. 1990) (“The fact that
the minimum sentence imposed by a trial court exceeds the life
expectancy of the defendant has never been grounds, per se, for
a finding that the sentence is oppressive.”).

The mandatory consecutive nature of Petitioner’s twenty
prison terms likewise causes no constitutional insult. “Severe,
mandatory renalties may be cruel, but they are not unusual in
the constitutional sense, having been employed in various
forms throughout our Nation’s history.” Harmelin, 501 U.S. at
994-95. The Eighth Amendment does not prohibit the
imposition of one mandatory life sentence as punishment for
one serious crime. /d. at 993-96, 1008-09. Likewise, the Eighth
Amendment does not prohibit the imposition of twenty
mandatory consecutive prison terms as punishment for twenty
serious crimes, notwithstanding the fact that their cumulative
length exceeds Petitioner’s anticipated life expectancy. See,
e.g., Locayer, 538 U.S. at 68, 77 (upholding two statutorily-
mandated consecutive prison terms of 25 years to life); United
States v. Hungerford, 465 F.3d 1113, 1118 (9" Cir. 2006)
(consecutive sentences totaling 159 years); Angelos, 433 F.3d
at 750-53 (consecutive sentences totaling 80 years); Beverly,
369 F.3d at 536-37 (consecutive sentences totaling 71.5 years);
United States v. Arrington, 159 F.3d 1069, 1073 (7"" Cir. 1998)

21

(total of 65 years); State v. Taylor, 773 P.2d 974, 981 (An
1989) (85 consecutive sentences totaling 2,975 years).

Petitioner offers several alternative arguments to
circumvent the effect of the aiviementioned authorities.
Seeking to recast his twenty prison terms as a single 200-year
sentence, Petitioner cites Weems v. Uw 2a States, 217 U.S. 349
(1910), for the proposition that “this Court has held that it is
appropriate for courts to review an entire sentence to determine
if it is grossly disproportionate to the crime.” Petition, at 11.
However, Weems is inapposite, for three reasons. First, whereas
the defendant in Weems challenged the constitutionality of the
one sentence he received for one count of falsification of an
official document, Petitioner attacks twenty separate sentences

* Petitioner complains that his mandatory consecutive sentences violate
the Eighth Amendment because they exceed his life span and fails to offer
him an opportunity to rehabilitate. Petition, at 18. This argument is of no
moment because this Court previously upheld a sentence of life
imprisonment without parole imposed upon a defendant who also had no
prior convictions. See Harmelin, 501 U.S. at 994, 1002-09. Moreover, “the
Eighth Amendment does not mandate adoption of any one penological
theory.” /d. at 999 (Kennedy J., concurring); see also Ewing, $38 US. at 25
(“A sentence can have a variety of justifications, such as mcapacitation,
deterrence, retribution, or rehabilitation. . . . Selecting the sentencing
rationales 1s generally a policy choice to be made by state legislatures. not
federal courts.”); cf Deal v. United States, 508 U.S. 129, 137 (1993)
(refusing to apply ru’e of lenity to defendant who received six prison
sentences totaling 105 years, based upon six armed robbenes, where the
defendant “manz.ged to evade detection, prosecution, and conviction for the
first five offenses and was ultimately tned: for all six in a single
proceeding’). Moreover, Petitioner’s claum that he had no opportunity to
rehabilitate 1s rebutted by the fact that he had amassed a large collection of
child pornography over the 6-year penod preceding his arrest. “He could
have realized he had made a gross mistake and have reformed himself after
commutting his first offense.” People v. Poole (Terry), SSS N.W.2d 485, 492
(Mich. App. 1996).

22

that were imposed for twenty counts of sexual exploitation of a
child. Second, while Petitioner is merely challenging the /ength
of his prison terms, Weems challenged his “entire sentence,”
which included incarceration for fifteen years and non-
severable statutory “accessories,” such as “hard and painful
labor,” permanent shackling of the wrists and ankles, and
lifetime surveillance. 217 U.S. at 357-59, 381-82; see also
Harmelin, 501 U.S. at 990 (describing Weems’ sentence).
Third, the inisplaced nature of Petitioner’s reliance on Weems is
manifested by the refusal of numerous courts to treat as one
sentence the multiple sanctions that a defendant received as
punishment for multiple offenses. See, e.g., Ming Hong, 242
F.3d at 532; Pearson, 237 F.3d at 886; Malee, 809 A.2d at 8-
10; Warner, 476 N.W.2d at 660.

Petitioner further suggests that his prison terms should be
viewed as a single 200-year sentence because his twenty counts
of conviction allegedly arose from the same continuing act.
(Petition, at 11-12.) Petitioner analogizes his case to State ex
rel. Garvey v. Whitaker, 19 So. 457 (La. 1896),° wherein the

° Petitioner claims that Justice Scalia cited the sentence in Garvey as an
example of crue] and unusual punishment in Harmelin. (Petition, at 11,
citing Harmelin, 501 U.S. at 985, n.10.) This assertion is false. Justice Scalia
cited to Garvey in a foomote to his observation, “In the 19" century, judicial
agreement that a ‘cruel and unusual’ (or ‘cruel or unusual’) provision did not
constitute a proportionality requirement appears to have been universal.” 501
U.S. at 984. Justice Scalia’s footnote asserted that neither Garvey nor State
v. Driver, 78 N.C. 423 (1878), “is to the contrary,” because these two cases
were “examples of applying, not a proportionality principle, but rather the
principle . . . that a punishment is ‘cruel and unusual! if it is illegal because
not sanctioned by common law or statute.” /d. at 984 n.10. Justice Scalia’s
“fair reading” of Garvey was “that the sentence was cruel and unusual
because it was illegal.” Jd. In contrast to Garvey, the Anzona Supreme Court
did nor find the imposition of consecutive sentences in Petitioner’s case to be
iliegal because Petitioner had acquired the visual images constituting the
(Continued)

23

Louisiana Supreme Court invalidated multiple sentences of
confinement for 2,160 days, based upon 72 consecutive thirty-
day prison terms imposed for 72 distinct violations of a
trespassing ordinance occurring over a temporally contiguous
period of 1 hour and 40 minutes, with “each offense embracing
only one and one-half minutes and one offense following after
the other immediately and consecutively.” Petition, at 12
(quoting Garvey, 19 So. at 459). Garvey does not apply to this
case because Petitioner’s crimes were not one continuous
offense. The Arizona Supreme Court specifically found that:
(1) Petitioner “had accumulated the images over a six-year
period,” Pet. App. at 13a; (2) Petitioner “had obtained at least
two images in 1996, some six years before his arrest,” Pet. App.
at 17a; and (3) the evidence indicated that “from 1996 to 2002,
[Petitioner] had downloaded computer files containing child
pornography” and “created both computer and hard copy filing
systems to maintain his collection,” Pet. App. at 3a. The
Arizona Supreme Court’s factual findings effectively rendered
moot the question whether a person could be convicted and
sentenced for multiple images acquired simultaneously. Pet.
App. at 13a, 25a n.6.

Finally, Petitioner adopts Justice Berch’s dissenting view
that the Arizona Supreme Court imprudently ignored “the
nature of this offense, that possessors of child pornography
possess more than one image and for more than one day,” when
it resolved his challenge to the cumulative length of his twenty
ten-year prison terms by focusing on the sentence imposed for
each count. Petition, at 12-13, 18. The essence of both Justice
Berch and Petitioner’s complaint is that the Arizona Legislature
unwisely enacted a sentencing scheme that mandates a separate

(Continued).

basis for his twenty counts and consecutive sentences at different times
during the course of six years. Pet. App. at 13a, 17a, 25a n.6.

24

prison term for each individual visual image possessed, and that
“the nature of the offense” should have instead prompted the
legislature to impose a single prison term for possession of
some unspecified number of multiple images. However, fixing
the number of contraband images that may be punished within a
single prison term is a subjective, policy determination that this
Court has found to rest “properly within the province of
legislatures, not courts.” Rummel, 445 U.S. at 275-76 (rejecting
defendant’s challenge to the small amount of stolen money
required to trigger application of Texas’ recidivist statute); see
also Jonas, 792 P.2d at 711 (“However, it is not the function of
this court to engage in determining what minimum amount of
marijuana need be involved in a ‘serious’ offense; that line-
drawing function is properly one for the legislature.’’). As this
Court previously observed, “This criticism is appropriately
directed at the legislature, which has primary responsibility for
making the difficult policy choices that underlie any criminal
sentencing scheme.” Ewing, 538 U.S. at 28.

Petitioner’s criticism of Arizona’s sentencing scheme also
erroneously overlooks the three goals that motivated the
Arizona Legislature to impose a separate penalty for each
visual image: (1) decreasing the number of children sexually
abused during the production of these materials by reducing
demand through deterrence; (2) depriving molesters of a tool of
seduction by encouraging destruction of their child-
pornography collections; and (3) punishing violators for the
separate injury inflicted by each image’s existence. Pet. App. at
lla-12a (citing 1978 Ariz. Sess. Laws 1978, Ch. 200,
§ 2(A)(5)-(6)); see also Osborne, 495 U.S. at 110-11; Ferber,
458 U.S. at 759; United States v. Hersh, 297 F.3d 1233, 1242
(11" Cir. 2002); United States v. Sherman, 268 F.3d 539, 545
(7 Cir. 2001); United States v. Norris, 159 F.3d 926, 931 (5"
Cir. 1998); State v. Emond, 786 P.2d 989, 990-93 (Anz. App.
1990); Perry v. Commonwealth, 780 N.E.2d 53, 57 n.5 (Mass.

25

2002). Moreover, the Arizona Legislature’s policy decision to
mandate a consecutive prison term for each one of a
defendant’s contraband images is constitutional because this
sentencing scheme rationally advances the legitimate objective
of punishing more harshly those persons whose demand for
child pornography most fueled the industry of sexually
exploiting children. See, e.g., Beverly, 369 F.3d at 537
(upholding the mandatory imposition of consecutive prison
terms as serving “the twin goals of retribution and deterrence’’);
Preciado, 116 Cal.App.3d at 412, 172 Cal.Rptr. at 108 (“By
requiring a full, separate, and consecutive term for each rape,
{the penal statute] attempts to provide increased punishment in
cases of greater culpability based upon injury to the victims and
society.”) (citation omitted); August, 740 N.W.2d at 744
(upholding the imposition of consecutive sentences as a proper
method of graduating punishment according to number of
crimes committed); Poole (Robert), 100 N.W. at 648 (“This
method of fitting the punishment to the crime by graduating the
penalty according to the number of animals, birds, or fish
unlawfully killed, taken, or possessed has been adopted by the
statutes of many of our sister states, and sustained as a proper
exercise of legislative discretion.”).’

” Petitioner argues that the Arizona Supreme Court improperly rejected
his request for an evidentiary hearing, at which he intended to present
mitigating evidence to establish the disproportionate nature of his mandatory
consecutive sentences. Pet. App. at 22a-23a. However, this Court has
consistently rejected the notion of “individualized sentencing” in non-capital
cases. See Harmelin, 501 U.S. at 996 (“We have drawn the line of required
individualized sentencing at capital cases, and see no basis for extending it
further.”): id at 1006 (“The Court demonswates that our Eighth Amendment
capital decisions reject any requirement of individualized sentencing in non-
capital cases.) (Kennedy, J., concurring).

26

C. THE ARIZONA SUPREME COURT PROPERLY CONSTRUED
LOCKYER.

Finally, Petitioner contends that this Court should grant
further review because the Arizona Supreme Court allegedly
misconstrued Lockyer “as prohibiting courts from considering
the consecutive nature of a sentence in an Eighth Amendment
challenge.” Petition, at 10. However, Petitioner misreads the
import of the Anzona Supreme Court’s majority opinion’s
citations to Lockyer in the instant case. The challenged passage,
in its entirety, reads as follows:

“Eighth amendment analysis focuses on the
sentence imposed for each specific crime, not on the
cumulative sentence.” United States v. Aiello, 864 F.2d
257, 265 (2° Cir. 1988). Thus, if the sentence for a
particular offense is not disproportionately long, it does
not become so merely because it is consecutive to
another sentence for a separate offense or because the
consecutive sentences are lengthy in aggregate. See
Jonas, 164 Ariz. at 249, 792 P.2d at 712. This
proposition holds true even if a defendant faces a total
sentence exceeding a normal life expectancy as a result
of consecutive sentences. See, e.g., Lockyer, 538 U.S. at
74n. i, 123 S.Ct. 1166 (rejecting, in context of federal
habeas review, dissent’s argument that two consecutive
sentences of twenty-five years to life for separate
offenses were equivalent; for purposes of Eighth
Amendment analysis, to one sentence of life without
parole for thirty-seven-year-old defendant); United
States v. Beverly, 369 F.3d 516, 537 (6" Cir 2004);
Taylor, 160 Ariz. at 422, 773 P.2d at 981.

Pet. App. at 14a.

27

Nowhere in this passage does the majority state its
belief that Lockver absolutely precludes consideration of
the aggregate length of Petitioner’s prison terms. Instead,
the court merely cited Lockyer, Beverly, and Taylor as three
illustrative cases demonstrating that consecutive sentences
do not become unconstitutional “merely because” “a
defendant faces a total sentence exceeding a normal life

expectancy as a result.”’ Pet. App. at 14a.

The paragraph and footnote immediately preceding the
passage quoted above further demonstrate Petitioner’s
misconstruction of the majority’s citation to Lockyer.
Therein, the Anzona Supreme Court explicitly reaffirmed
State v. Davis, 79 P.3d 64 (2003), which held that the
specific facts and circumstances of an extraordinary case
could call for a proportionality analysis that includes
consideration of the cumulative length of a defendant’s
consecutive prison terms. Pet. App. at 13a n.3, 18a-20a.
Simply stated, the Arizona Supreme Court would have been
forced to overrule Davis if—as Petitioner mistakenly
contends—the majority had actually construed Lockyer as
absolutely prohibiting consideration of the aggregate length
of his consecutive sentences in its proportionality analysis.°

Consequently, the Amnzona Supreme Court did not
misconstrue Lockyer when it rejected Petitioner’s Eighth
Amendment challenge to his consecutive prison sentences.

* Indeed, the Arizona Supreme Court repeatedly cited Lockver in Davis.
79 P.3d at 68, 70, 74, 9€ 13, 29-31, 47 n.10. This fact constitutes additional
proof that the majority in the instant case did nor construe Lockver in the
manner Petitioner now contends.

28

CONCLUSION

For these reasons, the State respectfully requests that this
Court deny Petitioner’s petition for writ of certiorari.

Respectfully submitted

TERRY GODDARD
Attorney General

MARY R. O’GRADY
Solicitor General

RANDALL M. HOWE
Chief Counse!
(Attorney of Record)
Criminal Appea!s Section

ROBERT A. WALSH
Assistant Attorney General
Criminal Appeals Section
1275 W. Washington
Phoenix, Anzona 85007-2997
Telephone: (602) 542-4686

126835

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1442%3A2. Public record. Not legal advice.