Hungerford

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30500 Plaintiff-Appellee, v.  D.C. No.

CR-03-00074-RFC

MARION HUNGERFORD,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the District of Montana Richard F. Cebull, District Judge, Presiding

Argued and Submitted July 25, 2006—Portland, Oregon

Filed October 13, 2006

Before: Stephen Reinhardt and Susan P. Graber, Circuit Judges, and Ronald S.W. Lew,* District Judge.

Opinion by Judge Graber; Concurrence by Judge Reinhardt

*The Honorable Ronald S.W. Lew, District Judge for the United States District Court for the Central District of California, sitting by designation.

17559 17562 UNITED STATES v. HUNGERFORD

COUNSEL

Palmer Hoovestal, Hoovestal Law Firm, PLLC, Helena, Mon- tana, for the defendant-appellant.

James E. Seykora, Assistant United States Attorney, Billings, Montana; and Anna S. Peckham, Assistant United States Attorney, Great Falls, Montana, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

After a jury trial, Defendant Marion Hungerford was…

After a jury trial, Defendant Marion Hungerford was convicted of conspiracy, seven counts of robbery, and seven counts of using a firearm in relation to a crime of violence, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 1952, and 18 U.S.C. § 924 (c)(1) and (c)(2). She appeals her conviction of four of the counts of robbery and the four related counts of using a firearm. She also appeals her sentence; she received 57 months of imprisonment for the conspiracy and robbery counts, to run concurrently, plus 60 months for the first firearm charge and 300 months for each of the other firearm charges, to run consecutively. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant met Dana Canfield in September 2001. In 2002, Canfield moved into her home. Neither was employed at the time. In order to get money to pay rent, Canfield and Defendant decided to rob a convenience store. At trial, Canfield testified, “Marion said that she was going to have to go on a crime spree. And since she has problems walking and stuff, I decided that I would do it.” The pair drove around together looking at potential places to rob. They decided on a convenience store called 3-G’s. In March 2002,…

concurring in the judgment.

Although precedent forecloses Marion Hungerford’s Eighth Amendment challenge to 18 U.S.C. § 924 (c) (2006), 1 under which she received almost all of her 159-year term of imprisonment, it cannot be left unsaid how irrational, inhumane, and absurd the sentence in this case is, and moreover, how this particular sentence is a predictable by-product of the cruel and unjust mandatory minimum sentencing scheme adopted by Congress. This court, along with many individuals, has previously urged Congress to “reconsider its harsh scheme of mandatory minimum sentences without the possibility of parole;” 2 now, Hungerford’s case serves as yet another forceful reminder that the scheme is severely broken and badly in need of repair. Although we lack the authority either to reform these statutes or to reconsider the Eighth Amendment principles adopted by the Supreme Court, those who have both the power and the responsibility to do so should return our federal sentencing *1119 scheme to a day in which the controlling principles are fairness, proportionality, prudence and informed discretion.

When we urged Congress to reform § 924 and other unnecessarily harsh mandatory…