ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX (Crim. No. 97-1972, D.V.I.)
Before Seitz, Chief Judge, Weis and Garth, Circuit Judges.
Appellant, Ishmael LaBeet, now known as Ishmail M. Ali, and four co-defendants, were convicted on eight counts of first degree murder, two counts of robbery and four counts of first degree assault on August 13, 1973, following a jury trial in the District Court of the Virgin Islands. Each defendant was sentenced by the court to eight consecutive terms of life imprisonment on the first degree murder counts; concurrent terms were imposed on the remaining counts. See Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), Cert. denied, 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 323 (1976); Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), Cert. denied, 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975).
On June 14, 1976, a timely motion for reconsideration of the eight consecutive life sentences was filed in the district court on appellant's behalf. That motion, filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure, 5 V.I.C. App. II, R. 35, was comprised of a challenge to the legality of appellant's sentence and a plea for judicial leniency. The motion was denied by the district court in an opinion and order dated February 9, 1978. Ali's appeal from that order presents only one issue for the consideration of this Court: "Whether the imposition of eight life sentences to be served consecutively constitutes cruel and unusual punishment, in violation of the eighth amendment to the Constitution of the United States."
Ali contends that his sentence constitutes cruel and unusual punishment because: (1) it is more excessive than other sentences that have been imposed for murder in the Virgin Islands; (2) it removes any possibility that he will become eligible for parole; (3) it is inherently cruel and severe; (4) it is disproportionate to the offense charged; (5) it is unnecessarily cruel in that the permissible aims of punishment could have been achieved as effectively by a less severe sentence; (6) it has had the effect of "denationalizing" Ali from his indigenous citizenship as a Virgin Islander; and (7) it was imposed arbitrarily and selectively to a member of an unpopular minority group. We do not find any of these contentions meritorious.
Ali was sentenced by the district court in accordance with 14 V.I.C. § 923(a), which then provided: "Whoever commits murder in the first degree shall be imprisoned for life." At that time, appellant's eligibility for parole was defined by 5 V.I.C. § 4601, stating:
"Every prisoner confined . . . for the term of his natural life, whose record of conduct shows that he has observed the rules of the institution in which he is confined, upon recommendation of the Warden, supported by the recommendation of a psychiatrist and/or psychologist, may be released on parole after serving . . . 10 years of a life sentence . . . ; Provided, however, That the Board of Parole, subject to the approval of the Governor, in its discretion by at least a two-thirds affirmative vote of all its members, upon recommendation by the Warden, supported by the recommendation of a psychiatrist and/or psychologist, is authorized to fix an earlier eligibility date for the release of prisoners on parole.
Because the district court determined that each of appellant's sentences on the first degree murder counts was to run consecutively to the others, he will not become eligible for normal parole consideration until August 13, 2053. The district court's decision to impose consecutive, rather than concurrent, terms of imprisonment upon Ali has created the alleged constitutional infirmities in his sentence.
Two of appellant's contentions with respect to the constitutionality of the sentence imposed upon him evoke the equal protection strain inherent in the eighth amendment's prohibition of cruel and unusual punishments. See, e. g., Furman v. Georgia, 408 U.S. 238, 257, 92 S. Ct. 2726, 2735, 33 L. Ed. 2d 346 (1972) (Douglas, J., concurring) ("discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on "cruel and unusual' punishments"). Ali claims that his sentence was imposed in a discriminatory fashion because it is more severe than other sentences that have been imposed for murder in the Virgin Islands and because it was imposed upon a group of young, black, native Virgin Islanders. With respect to these contentions he has called this Court's attention to the favorable treatment afforded by the district court to a white, mainland American's motion for reduction of a sentence imposed for second degree murder. The distinguishing features between appellant's crimes and that of a man convicted of second degree murder for the killing of his wife's lover adequately explains the district court's disparate treatment of the two motions. The record is completely devoid of any proof that could even arguably support an equal protection claim. In the absence of any showing that Ali's sentence was either illegal or unconstitutional, we have no power to review the sentence imposed. Gore v. United States, 357 U.S. 386, 393, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d Cir. 1974).
Ali contends that a sentence of eight consecutive life terms is an inherently cruel and severe punishment, analogous to torture. We do not find this analogy persuasive. He also contends that his punishment was cruel and unusual because it eliminated any possibility of his becoming eligible for parole, thereby eliminating any incentive for rehabilitation. The Supreme Court held in Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974), that a no-parole condition attached by the President to the commutation of a death sentence "is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; it does not offend the Constitution." Id. 267, 95 S. Ct. at 385 (footnote omitted). Recently, the Sixth Circuit has applied Schick v. Reed in rejecting a claim that a Kentucky statute authorizing the imposition of life imprisonment without parole for rape is violative of the eighth amendment. See Moore v. Cowan, 560 F.2d 1298, 1302-03 (6th Cir. 1977), Cert. denied, 435 U.S. 929, 98 S. Ct. 1500, 55 L. Ed. 2d 525, and cert. denied, 436 U.S. 960, 98 S. Ct. 3079, 57 L. Ed. 2d 1127 (1978). The Supreme Court's opinion in Schick v. Reed mandates the conclusion that it is not per se impermissible for the legislature to authorize, and a court to impose, a term of imprisonment that precludes the possibility that the defendant will be paroled.
This Court also rejects Ali's argument that the district court's sentencing decision was inconsistent with the Virgin Islands Legislature's decision to allow persons imprisoned for life to be considered for parole release after serving ten years. The Legislature has granted the district court discretion in specifying whether sentences are to be served concurrently or consecutively, and has not indicated that that discretion is to be limited by considerations of parole eligibility. See 5 V.I.C. § 3672 & Revision note. Moreover, the Legislature has revised the penalties for murder subsequent to Ali's conviction. 14 V.I.C. § 923(a) now provides that: "Whoever commits murder in the first degree shall be imprisoned for the remainder of ...