1117 (9th Cir. 2001) (citing United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir. 1988) (citing United States v. Washington, 578 F.2d 256, 258 (9th Cir.1978))). This case presents no opportunity to set aside, or qualify, this longestablished and sound precedent.

I

In reversing Appellant's sentence, the majority purports to rely on the opinion of Justice Kennedy in Harmelin v. Michigan, 501 U.S. at 996 (Kennedy, J., concurring in the judgment). That opinion (joined by two other members of the court) held that the Eighth Amendment "forbids extreme sentences that are `grossly disproportionate' to the crime." Id. at 1001. While recognizing that the Eighth Amendment includes a "proportionality principle," Justice Kennedy also acknowledged that "its precise contours are unclear. " Id. at 998. He attempted to "give content to the uses and limits of proportionality review" by identifying four principles that inform the Court's application of the Eighth Amendment to lengthy prison terms. Id.

Each of the four principles underlying Harmelin 's "gross disproportionality" analysis favors the affirmance of Appellant's sentence. The first of these is that "as a general matter [it] is properly within the province of legislatures, not courts" to fix punishments for crimes. Id. Thus,"reviewing courts . . . should grant substantial deference to the broad authority that legislatures possess in determining the types and limits of punishments for crimes." Id.

The sentencing scheme in the instant case was the result of both popular vote (Proposition 184 was approved by 71.84 percent of the electorate) and legislative action. Our deference should be at its apex. We have before us the clearest indication possible that severe, mandatory sentences for recidivist offenders is the expressed penal philosophy of the citizens of

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