strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring) (quoting Solem, 463 U.S. at 288, 303). Our circuit and others regard Justice Kennedy's test as"the rule of Harmelin" because it is the "position taken by those Members who concurred in the judgment[ ] on the narrowest grounds . . . ." United States v. Bland, 961 F.2d 123, 128-29 (9th Cir. 1992) (internal citation and quotation marks omitted); see also Henderson v. Norris, 258 F.3d 706, 709 (8th Cir. 2001) ("Since Harmelin, our courts and others have applied the principles outlined in Mr. Justice Kennedy's opinion to[Eighth Amendment] cases . . . ."); United States v. Jones, 213 F.3d 1253, 1261 (10th Cir. 2000) ("We have ruled that Justice Kennedy's plurality opinion . . . sets forth the applicable Eighth Amendment test."); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998) ("Our court follows the narrow proportionality rule established by Justice Kennedy's concurrence in Harmelin . . . .").

A. Review of Supreme Court Case Law

Understanding the test articulated by Justice Kennedy's concurrence requires that we first review the Court's decisions in Rummel and Solem.

In Rummel, the Supreme Court upheld a sentence of life imprisonment with the possibility of parole for a three-time non-violent felony recidivist. Rummel was sentenced under a Texas recidivist statute which provided that "[w]hoever shall have been three times convicted of a felony less than capital shall on the third conviction be imprisoned for life in the penitentiary." Rummel, 445 U.S. at 264 (citing Tex. Penal Code Ann. � 12.42(d) (1974)). Rummel's two prior felonies were (1) a 1964 conviction for fraudulent use of a credit card to obtain $80 worth of goods or services;¹¹ and (2) a 1969 con-

¹¹This was a felony because it involved an amount of more than $50. The offense was punishable by a sentence of two to ten years in prison. Rummel was sentenced to three years. Id. at 265.