person from the rest of society for an extended period of time.

Rummel, 445 U.S. at 284. The "uses and limits" of proportionality review, as defined in Harmelin, demand that we respect this explanation if it is rational. Harmelin, 501 U.S. at 998. With respect to Appellant's sentence, I believe that it is.

The majority, however, has attempted to apply Harmelin's narrow holding -- the prohibition on grossly disproportionate sentences -- without thoughtful consideration of the principles underlying its holding. The result of this approach is predictable and, in fact, was predicted by two members of the Harmelin majority: "the proportionality principle becomes an invitation to imposition of [the] subjective values" of federal judges. Id. at 986 (Scalia, J.).

In short, for all its reliance on Harmelin, that case does not compel the outcome reached by the majority today. In fact, just the opposite is true. Harmelin counsels that judicial review of legislatively determined sentences should reflect both deference to the elected branches of government and deference to the varied, but rational, determinations of the 50 states. Therefore, we should affirm the sentence in this case.

II

The principles articulated by Justice Kennedy, restated above, and employed in a manner consistent with their purpose, are sufficient to restrain any federal judicial tendency to employ "cruel and unusual punishment" as a justification for expansive constitutionalization of permissible sentencing by the states. This fact is borne out by numerous cases from our sister circuits. In the wake of Harmelin, not a single court has struck down the sentence of an habitual offender on Eighth Amendment grounds.¹

¹In fact, in the decade since Harmelin was decided, only one sentence has been struck down as proscribed by the Eighth Amendment to the U.S.

15300