Appeal from the Superior Court of the District of Columbia (F-2839-02) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Pryor, Senior Judge
Before WASHINGTON, Chief Judge, and PRYOR and SCHWELB, Senior Judges.
Concurring opinion by Senior Judge SCHWELB, at p. 4.
Following a jury trial, appellant was convicted of unlawful possession of heroin with intent to distribute, in violation of D.C. Code § 48-904.01 (a)(1) (2001), and sentenced to 144 months (twelve years) in prison followed by five years of supervised release. On direct appeal, this court affirmed his conviction by unpublished Memorandum Opinion and Judgment on April 21, 2005. Appellant subsequently filed a motion to reduce sentence pursuant to Super. Ct. Crim. R. 35, which the trial court denied. On appeal, he argues that the trial court abused its discretion in denying his motion and, for the first time on appeal, contends that his sentence violated the Eighth Amendment in that it was disproportionate to the crime committed. We affirm.
We review the denial of a motion for the reduction in sentence for an abuse of discretion. See Walden v. United States, 366 A.2d 1075, 1076-77 (D.C. 1976). In so doing, "[t]his court has long refused, in considering . . . an appeal of a post-trial decision on sentence reduction, to review . . . sentences which are within statutory limits, on the ground that such sentences are too severe." Crawford v. United States, 628 A.2d, 1002, 1003-1004 (D.C. 1993) (citations and internal quotation marks omitted). Indeed, "[g]enerally, sentences within statutory limits are unreviewable aside from constitutional considerations." Id. at 1003-04 (citation and internal quotation marks omitted).
Here, appellant's sentence fell well within the thirty-year statutory maximum for the offense of which he was convicted. D.C. Code § 48-904.01 (a)(2)(A) (2001). In his motion to reduce sentence appellant's primary argument was that "[h]ad Mr. Cook received a 'guideline sentence' under the current sentencing guidelines for the same offense, his sentence would have been significantly less than his current sentence." However, the Superior Court Voluntary Sentencing Guidelines were not in effect at the time of sentencing and, regardless, being voluntary would not have compelled the trial court to impose a lesser sentence. Given our "very limited" standard of review on these issues, we are not persuaded that the trial court abused its discretion in denying the motion. See Walden, supra, 366 A.2d at 1077.
Turning to appellant's constitutional argument, we note that "[w]here a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure."*fn1 See Head v United States, 489 A.2d 450, 451 (D.C. 1985) (citations omitted). Here, appellant failed to raise his Eighth Amendment claim on direct appeal, instead raising it for the first time as part of this appeal. In so doing he proffers no cause for this failure. Thus, we "need not decide whether he suffered prejudice or even if the trial court was in error." See id. at 451 n.5 (citation omitted). Accordingly, because appellant has failed to demonstrate the requisite cause for his failure to have raised the issue on direct appeal, "his contention here is foreclosed." See id. at 451.
Even if we were to consider appellant's claim on the merits, we are not convinced that appellant's sentence was so disproportionate as to contravene the Cruel and Unusual Punishment Clause of the Eighth Amendment.*fn2 We are mindful that following the Supreme Court's decisions in Harmelin v. Michigan, 501 U.S. 957 (1991), and Ewing v. California, 538 U.S. 11 (2003), the standard for claims of disproportionate sentences has been narrowed*fn3 and, at a minimum, now appears to require a showing that a sentence is "grossly disproportionate" to the crime. See Crawford, supra, 628 A.2d at 1003; Moore, supra note 2, 608 A.2d at 145 n.3. Under this standard, we are not convinced that appellant's sentence was "grossly disproportionate" to the crime. It was well within the statutory maximum and, as the government notes in its brief, there were a number of aggravating circumstances affecting the length of sentence imposed by the trial court. See Hutto v. Davis, 454 U.S. 370 (1982) (upholding a sentence of forty years imprisonment for possession with intent to distribute nine ounces of marijuana). Accordingly, the judgment on appeal herein is hereby affirmed.
SCHWELB, Senior Judge, concurring
With a measure of reluctance, I concur in the judgment affirming the denial of Cook's motion to reduce his sentence. Even assuming arguendo, that his Eighth Amendment claim has not been waived*fn4 -- and my colleagues in the majority hold that it has been -- I, like the court, do not believe, in the light of recent Supreme Court precedent, that Cook's sentence, which imposed imprisonment for only forty percent of the statutory thirty-year maximum, was "so disproportionate as to contravene the Cruel and Unusual Punishment Clause." See Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (plurality opinion); Ewing v. California, 538 U.S. 11, 20 (2003) (plurality opinion); Hutto v. Davis, 454 U.S. 370, 370-75 (1982) (per curiam).*fn5 Moreover, in the absence of an error of law or of some extraordinary circumstance not here present, we, as an appellate court, lack the authority to review a sentence that is within statutory limits. In re L.J., 546 A.2d 429, 434-36 (D.C. 1988); Walden v. United States, 366 A.2d 1075, 1076-77 (D.C. 1977).
Nevertheless, in my judgment the sentence in this case is so severe that it warrants brief comment, albeit obiter dictum, at the appellate level. Cook contends, without contradiction by the government, that the twelve-year term of imprisonment imposed by the judge for unarmed possession of heroin with intent to distribute it (PWID) was:
1. approximately four times as long as a sentence which would probably have been imposed pursuant to the Superior Court's ...