Memorandum Opinion and Order — No. 2:06-cr-00095 (Dkt. 150, E.D. Ky.)

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A Memorandum Opinion and Order, Doc #: 150, filed July 31, 2008 in United States v. Donald L. Graham, Criminal Action No. 2:06-95-DCR (Case: 2:06-cr-00095-DCR-JGW), in the U.S. District Court for the Eastern District of Kentucky, Northern Division (at Covington). The defendant was convicted on July 18, 2008 of two counts of conspiring to distribute and possess with intent to distribute crack cocaine and one count of distributing crack cocaine, and the order states that 21 U.S.C. § 841(b)(1)(A) sets a mandatory life term for the conspiracy convictions because of two prior felony drug convictions. The court denies his motion [Record No. 130] to disregard the mandatory life sentence, finding no Eighth Amendment violation.

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Case: 2:06-cr-00095-DCR-JGW Doc #: 150 Filed: 07/31/08 Page: 1 of 7 - Page ID#: 769



                               UNITED STATES DISTRICT COURT
                               EASTERN DISTRICT OF KENTUCKY
                                    NORTHERN DIVISION
                                        (at Covington)

     UNITED STATES OF AMERICA,                       )
                                                     )
           Plaintiff,                                )       Criminal Action No. 2: 06-95-DCR
                                                     )
     V.                                              )
                                                     )
     DONALD L. GRAHAM,                               )          MEMORANDUM OPINION
                                                     )              AND ORDER
           Defendant.                                )

                                           *** *** *** ***

          Defendant Donald Graham was convicted on July 18, 2008, of two counts of a conspiring

 to distribute and possessing with intent to distribute crack cocaine (Counts 1 and 7) and of one

 count of distributing crack cocaine (Count 6) in violation of 21 U.S.C. §§ 841(a)(1),

 841(b)(1)(A), and 846, and 18 U.S.C. § 2. Because Graham has two prior felony drug

 convictions, 21 U.S.C. § 841(b)(1)(A) provides that the statutory term of imprisonment for the

 conspiracy convictions shall be life.1

          Notwithstanding the mandatory statutory provisions, Graham has moved the Court to

 impose a sentence that is proportional to the conduct of his co-Defendants, Jermaine Goodwin

 and William Howard. He requests that, under the circumstances of the case, he sentence should




 1
         Because of his prior felony convictions, Graham faces an enhanced statutory penalty of not less than
 ten years imprisonment for his distribution conviction under Count 6 of the Indictment.

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 be no more than double the sentence of Defendant Goodwin, which would be 168 months of

 incarceration, followed by the maximum period of supervised release. [Record No. 130]2

         Having considered the arguments contained in the Defendant’s March 13, 2008, motion,3

 the Court will deny the requested relief for the reasons asserted therein by counsel. Specifically,

 the Court does not find or conclude that imposition of a mandatory life sentence following the

 Defendant’s third felony drug conviction violates the Eighth Amendment to the United States

 Constitution. Likewise, the Court does not believe that the Defendant’s sentence should be no

 more than double the sentence imposed on his co-Defendants as counsel suggests.

         I.      Relevant Facts

         Beginning in September 2006, the Northern Kentucky Drug Task Force engaged in a

 number of drug transactions with co-Defendant Goodwin through the use of a confidential

 informant (“CI”). On October 17, 2006, a drug transaction was arranged whereby the CI would

 purchase approximately three ounces of crack cocaine at Goodwin’s apartment. Upon arriving

 at Goodwin’s apartment, the CI was informed that Goodwin’s supplier was on his way to deliver

 the cocaine. Approximately thirty minutes later, Defendant Graham arrived with co-Defendant

 Howard. Goodwin, acting as the middleman, received $2,500 from the CI and then met in a




 2
          On July 30, 2008, Defendant Graham’s counsel filed a Supplemental Memorandum in Support of
 Motion to Disregard Life Sentence [Record No. 149] The issues raised in this Supplemental Memorandum
 will not be addressed herein, but the parties should be prepared to address them during the sentencing hearing
 scheduled for August 1, 2008.
 3
         This matter was assigned to the undersigned following trial. [Record No. 147] The factual summary
 of the case is taken in large part from Graham’s Presentence Investigation Report and Defendant’s initial
 motion [Record No. 130].

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 bedroom with Defendant Graham. Goodwin returned a short time later and delivered a bag of

 suspected crack cocaine to the CI. Graham and the co-Defendants were subsequently arrested.

        Although Graham proceeded to trial, co-Defendants Howard and Goodwin entered guilty

 pleas and cooperated with the government in the prosecution of Graham. Goodwin was

 sentenced on August 2, 2007, to a term of imprisonment of 84 months, to be followed by five

 years of supervised release. Howard was sentenced on October 26, 2007, to a term of

 imprisonment of 70 months, to be followed by four years of supervised release. Both co-

 Defendants received a reduction in their sentences for cooperation. Following a three day jury

 trial, Graham was found guilty of the conspiracy charges contained in Counts 1 and 7 and the

 distribution charge contained in Count 6. The quantity of crack cocaine (cocaine base) attributed

 to Graham was determined to be between 150 and 500 grams.

        The Presentence Investigation Report indicates that Defendant Graham has several felony

 convictions, including convictions for drug trafficking and trafficking in cocaine from the

 Hamilton County Common Pleas Court (see Presentence Investigation Report, ¶¶ 44, 49).4 As

 a result of the third conviction herein, Graham is subject to a mandatory life term under § 841(b)

 which provides that, “[i]f any person commits a violation of this subparagraph . . . after two or

 more prior convictions for a felony drug offense have become final, such person shall be

 sentenced to a mandatory term of life imprisonment without release and fined in accordance with

 the preceding section.” 21 U.S.C. § 841(b).




 4
        Counsel for Graham concedes that the Defendant has two prior felony drug convictions that have
 become final.

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        II.     Analysis

        Although counsel concedes that Graham has the requisite two prior felony convictions,

 he contends that he was originally charged as a juvenile in connection with the first conviction

 and, as a result, that conviction should be discounted because such convictions “are typically not

 counted as prior felony convictions.” However, as the Presentence Investigation Report

 indicates, while Graham was initially charged as a juvenile, he was prosecuted and sentenced

 as an adult. (See Presentence Investigation Report, ¶ 44.) Such treatment forecloses any

 argument that this conviction should be ignored under § 841(b).

        Next, Graham asserts that, while he received a second felony drug conviction for

 trafficking in cocaine in 1997 and was sentenced to eighteen months incarceration, he was only

 sentenced to six months confinement on each of two counts of his first conviction (with those

 sentences to run concurrently). Thus, he argues that this Court is faced with a Hobson’s choice

 of imposing a life sentence which is required by statute when the Defendant’s two qualifying

 convictions only resulted in two years incarceration and were imposed over ten years ago.

 According to the Defendant, imposition of a life sentence for the current conviction would be

 clearly disproportionate.

        Finally, Graham contends that imposition of a mandatory life sentence under 21 U.S.C.

 § 841(b) would be arbitrary under the analysis set out in a California district court opinion.

 United States v. Grant, 524 F.Supp.2d 1204 (C.D.Ca. 2007). As a result, he asserts that he

 should receive no more than double the sentence of co-Defendant Goodwin, who was sentenced




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 to 84 months of incarceration after receiving credit for his assistance to the government in

 prosecuting Graham.

        Having reviewed the Defendant’s arguments and authorities, the Court concludes that

 imposition of a life sentence under 21 U.S.C. § 841(b) would not violate the Eighth Amendment.

 Both Supreme Court and Sixth Circuit precedent supports this conclusion. In Harmelin v.

 Michigan, 501 U.S. 957 (1991), a plurality of the Supreme Court rejected the argument that a

 statutorily-required life term of imprisonment was disproportionate even though the conviction

 in issue was the defendant’s first felony conviction. As the Court noted, “ the Eighth

 Amendment does not require strict proportionality between the crime and sentence. Rather, it

 forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001.

 Likewise, in United States v. Hill, 30 F.3d 48, 50-51 (6th Cir. 1994), the Sixth Circuit adhered

 to the narrow proportionality principle articulated in Harmelin, supra, and rejected a defendant’s

 argument that a life sentence for conspiracy to distribute 177.8 grams of crack cocaine was

 unconstitutional. The court concluded that imposition of a life sentence resulting from the

 defendant’s third drug conviction was not grossly disproportionate.

        The Sixth Circuit again addressed this issue in United States v. Marks, 209 F.3d 577, 583

 (6th Cir. 2000), recognizing that this circuit has adopted the narrow proportionality principle of

 Harmelin, supra, in concluding that only an extreme disparity between the crime and sentence

 offends the Eighth Amendment. And in United States v. Odeneal, 517 F.3d 406 (6th Cir. 2008),

 the court rejected the contention that the defendant’s sentence was grossly disproportionate to




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 the crime of conviction.5 Citing United States v. Layne, 324 F.3d 464, 474 (6th Cir. 2003), the

 court held that the United States Constitution does not require proportionality between

 defendants. Odeneal, at 414. In reaching this conclusion, the court noted that defendants cannot

 be compared for proportionality purposes where one defendant plays a minor role, pleads guilty,

 and cooperates with the government. Id.

         In summary, while the Defendant has cited one California decision which rejects the

 mandatory minimum sentences set by Congress, other binding authorities recognize that such

 minimums do not violate the Eighth Amendment to the United States Constitution under similar

 factual situations.

         In the present case, Defendant Graham has two qualifying felony drug convictions. His

 current conviction involves a large drug conspiracy in which he supplied substantial quantities

 of crack cocaine for distribution into the Northern Kentucky area. Although Graham is a

 relatively young man, he has been involved in drug distribution and other criminal activities for

 at least ten years. It does not appear that his prior convictions have diminished his desire to

 continue his criminal conduct. And as outlined above and explained more fully in the

 Presentence Investigation Report, Graham’s third felony drug conviction involved at least 150

 grams of crack cocaine. Under these circumstances, it is clear that imposition of a life sentence

 would not violate the Eighth Amendment to the United States Constitution.




 5
         In Odeneal, the Defendant also argued that his life sentence violated the Eighth Amendment because
 he only served 90 days imprisonment for his prior drug-related convictions and that his prior felonies did not
 involve any personal injury or property damage. Id. at 413-414. The Sixth Circuit rejected these arguments.

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        III.   Conclusion

        For the reasons discussed herein, it is hereby

        ORDERED that the Defendant’s motion to disregard the mandatory life sentence

 required by 21 U.S.C. § 841(b) because of claims that such a sentence would be grossly

 disproportionate to the crime or the sentences imposed on the co-Defendants [Record No. 130]

 is DENIED.

        This 31st day of July, 2008.




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