United States v. Hashime, No. 12-5039

Filed:  June 10, 2013

The Fourth Circuit denied Faisal Hashime’s petition for a hearing en banc.  However, Judge Gregory wrote a concurring opinion to voice his support for revision of the Fourth Circuit’s Eighth Amendment jurisprudence.

Hashime was convicted of several crimes involving child pornography.  On appeal, he alleged a violation of his Miranda rights and challenged his sentence under the Eighth Amendment.  Hashime also asked the full Fourth Circuit to “review and correct” its Eighth Amendment jurisprudence before hearing his appeal.  His petition was circulated to the full court; however, none of the judges requested a poll pursuant to Rule 35 of the Federal Rules of Appellate Procedure, resulting in a denial of the petition.

Judge Gregory concurred in the Fourth Circuit’s initial denial of a hearing en banc, but only for purposes of efficiency.  He noted that resolution of the Miranda matter would moot Hashime’s Eighth Amendment argument—an argument Judge Gregory found meritorious.  Unlike other circuit courts, the Fourth Circuit does not provide Eighth Amendment proportionality review for sentences less than life imprisonment without parole.  Judge Gregory asserted that this anomalous stance is also contrary to the Supreme Court’s Eighth Amendment jurisprudence.  He noted that, inter alia, the Supreme Court has never stated that term-of-years sentences will survive the proportionality analysis per se, and that the Court “has strongly suggested that Eighth Amendment proportionality review applies equally to both life and term-of-years sentences.”  Thus, without taking a stance on the merits of Hashime’s appeal, Judge Gregory called on the Fourth Circuit to revise its Eighth Amendment jurisprudence when prudentially appropriate.

Full Opinion

– Stephen Sutherland

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