Horner

MEMORANDUM ***

The district court granted a certificate of appealability 1 as to one issue: whether the guidelines system for computing the base offense level for conspiracy to distribute the drug Dilaudid is constitutional. We expanded the certificate to include two additional issues: whether petitioner’s counsel was ineffective for failing to file a notice of appeal, and whether petitioner’s counsel was ineffective for failing to challenge the amount and foreseeability of the drugs attributed to the petitioner at sentencing.

There is no constitutional infirmity in the equivalency system as applied to Horner. The Supreme Court has held in Harmelin v. Michigan 2 that sentencing a defendant to life without parole for possessing more than 650 grams of cocaine does not violate the Eighth Amendment. Horner’s 20-year sentence satisfies the “gross disproportionality” test of Harmelin, applied by us in United States v. Bland. 3 Horner’s argument that sentences for Dilaudid distribution are disproportionate relative to those for heroin distribution is unpersuasive. Congress has broad discretion to set sentences even for drugs that are chemically related. 4 Congress could rationally…