Harris

Larry Harris and Michael Eugene Steward were each convicted of multiple counts of robbery and use of a firearm in a crime of violence. They appeal their convictions and sentences on numerous-grounds. We affirm their convictions in a separate, unpublished memorandum disposition. To be discussed here are them sentences. Harris was sentenced to 1141 months (95 years) and Steward to 597 months (49.75 years). Harris and Steward argue that these sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. They also argue that the district court should have reduced their sentences under the Sentencing Guidelines’ downward departures for mitigating circumstances. The district court held that it did not possess the discretion to do so.

We reluctantly find that we must affirm Harris’ and Steward’s sentences given the precedents established by our court and by the Supreme Court. We publish this opinion to urge Congress to reconsider its scheme of mandatory consecutive minimum sentences and to grant district court judges the discretion to set sentences at the level appropriate for the circumstances of a particular defendant and his…

concurring:

Proportionality between crime and sentence is difficult to lay out abstractly. To achieve it is a matter of judgment — the judgment of the sentencing judge. To eliminate proportionality is to eliminate the virtue of prudence which should guide every act of judgment. To eliminate proportionality is to leave the way wide open to the cruel and unusual punishments that our Constitution proscribes.

In the present climate, Congress’s attempt to control crime by escalating the punish-. ments has gone very far in the direction of eliminating the prudential, proportionate *1086 judgment of the sentencing judge. The effect has been magnified by the deference accorded the legislature by the decisions of the Supreme Court. In the present case, if I were free to do so, I would respect the judgment of the judge who tried the case, learned of the crimes in detail, saw the defendants, and reached a judgment as to what sentence was proportionate to their offenses.