crime but that Harmelin did not meet this standard. Id. at 996- 1009. Justices White, Blackmun, Stevens, and Marshall dissented, arguing that the Court should not depart from the three-factor test articulated in Solem and that a life sentence without parole was unconstitutionally disproportionate to Harmelin's crime. Id. at 1009-29.

Although the Court did not produce a majority opinion, seven justices favored some manner of proportionality review. As noted earlier, we and other circuits treat the test articulated by Justice Kennedy as "the rule of Harmelin ." Bland, 961 F.2d at 129 (internal citation and quotation marks omitted); see also Henderson, 258 F.3d at 709; Jones , 213 F.3d at 1261; Harris, 154 F.3d at 1084.

Justice Kennedy's concurrence did not challenge the central holding of Solem that a grossly disproportionate sentence of imprisonment violates the Eighth Amendment. Harmelin, 501 U.S. at 1001 (citing Solem, 463 U.S. at 288, 303). Nor did Justice Kennedy question the Solem majority's conclusion that Solem's sentence of life imprisonment without the possibility of parole for uttering a no account check was grossly disproportionate, given the " `relatively minor' " nature of Solem's offenses. Id. at 1002 (quoting Solem, 463 U.S. at 296-97). Rather, Justice Kennedy emphasized several points also made by the Solem majority. Id. at 998 (stating that "close analysis of our decisions [in Rummel and Solem] yields some common principles that give content to the uses and limits of proportionality review"). These principles include the following: (1) courts should accord "substantial deference" to legislative determinations of appropriate punishments, id. at 998-99 (citing Solem, 463 U.S. at 290); (2) the Eighth Amendment does not require that legislatures adopt any particular penological theory, id. at 999, a point implicit in the Solem Court's conclusion that legislatures are entitled to "substantial deference;" (3) divergences in theories of sentencing and the length of prison terms are "inevitable" in our federalist system, id. at 999 (citing Solem, 463 U.S. at 291

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