of a constitutionally suspect construction is inapplicable to the plain meaning of §§ 401 and 3559. The Court notes that a potential Eighth Amendment challenge as referenced in the Love concurrence does not lie in the classification of the offense, but in the penalty that is imposed. The Supreme Court has noted that “[t]he Eighth Amendment succinctly prohibits “excessive” sanctions.” Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The guiding principle courts use when determining whether a sanction is excessive is whether the punishment for the crime is graduated and proportioned to the offense. See Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910); see also Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (<HOLDING>); but see Ewing v. California, 538 U.S. 11,
holding that once the statute is found to be divisible the court must look to the charging papers and judgment of conviction to determine if the actual crime of which defendant was convicted was a crime of violence but emphasizing that the court is not to examine the particular facts underlying the conviction holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted holding that a statute imposing a one dollar court cost for law enforcement on every person convicted of a crime was not a violation of the separation of powers doctrine because it is reasonable that one convicted of a crime should be made to share in the improvement of agencies that society has had to employ in defense against the very acts for which he has been convicted holding that before the accessory to a crime can be convicted as such it must be shown that the crime has been committed by the principal holding punishment must be proportional to the crime convicted