                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-5039


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

FAISAL HASHIME,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cr-00329-LMB-1)


Argued:   September 20, 2013                 Decided:   October 29, 2013


Before WILKINSON, KING, and WYNN, Circuit Judges.


Reversed and remanded by published opinion.     Judge Wilkinson
wrote the opinion, in which Judge King and Judge Wynn joined.
Judge King wrote a separate concurring opinion.


ARGUED: Jonathan Shapiro, Peter D. Greenspun, GREENSPUN SHAPIRO
PC, Fairfax, Virginia, for Appellant.    Maureen Catherine Cain,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.   ON BRIEF:   Mikhail N. Lopez, GREENSPUN SHAPIRO PC,
Fairfax, Virginia, for Appellant.      Alexander T. H. Nguyen,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

       The day after his twentieth birthday, Faisal Hashime was

convicted of multiple counts related to child pornography and

later   sentenced         to    fifteen      years       in   prison.           Hashime   made

numerous self-incriminating statements while being interrogated

by law-enforcement agents during a search of his home.                               Because

the agents did not read Hashime his Miranda rights until well

into what was plainly an extended custodial interrogation, we

reverse Hashime’s conviction and remand for further proceedings

consistent with this decision.



                                                 I.

                                                 A.

       In    November      2010,         while    monitoring       a    website     used    to

exchange      child        pornography,           a     law-enforcement          agent     with

Immigration         and        Customs       Enforcement’s             Homeland     Security

Investigations unit (HSI) discovered a naked picture of a minor

boy with the caption “Email me, t.campbell2011@gmail.com.”                                  In

July        2011,         the        agent        sent        an        email      to       the

t.campbell2011@gmail.com                 address,        asking        to   trade        child-

pornography images.                 The agent eventually received twenty-four

explicit      pictures         of    a    naked       boy.    By       tracing    the     email

account’s associated IP address, HSI concluded that the account

was being used by someone in the Hashime family home.

                                                  2
       Based     on    this       information,         law    enforcement      obtained     and

executed       search    warrants         on    both    the    t.campbell2011@gmail.com

email account and Hashime’s house.                      Shortly after 9:00 AM on May

18,    2012,    a     team    of     15-30     state    and    federal     law-enforcement

agents    equipped       with       a    battering      ram    descended       on    Hashime’s

home.      Hashime,          at    the   time     a    19-year-old       community-college

student, lived with his parents in suburban northern Virginia.

The agents banged on the entrance, yelling “Open the door.”

       After being let in by Hashime’s aunt, the officers streamed

into    the    house     with       their      guns    drawn.      An     officer     entered

Hashime’s bedroom and pointed a gun at him.                            Hashime was in bed,

naked and asleep, having gone to bed at 5 AM that morning.                                  The

officer ordered Hashime to “Get up. . . .                         Get out of bed,” and

instructed Hashime to show his hands.                            After Hashime put on

boxer    shorts,       the        officer      held    Hashime    by    the    arm,    issuing

orders to him, and marched him out to the front lawn, where

officers       were     corralling          the   other       members     of   his    family.

Despite the chilly weather, the Hashime family members were kept

outside, several of them dressed only in their nightclothes.

       When     law    enforcement          eventually        allowed    Hashime      and   his

family back into their house, they were kept in the living room

while the officers completed their sweep of the home.                                 Hashime

was not allowed to go to the bathroom until the officers had

“clear[ed] it out.”                Hashime was given his clothes but was not

                                                  3
provided      with     shoes    or    socks.         Hashime’s       mother,       who    was

recovering from recent brain surgery, and about whose health

Hashime was concerned, asked to lie down for health reasons but

was   not    allowed     to.         The    Hashime       family     members      were    not

permitted to be alone and were instructed that they had to be

accompanied       by   officers       at    all     times.         The    law-enforcement

agents proceeded to interrogate each of them individually.

      Hashime was escorted by two officers to the basement for

interrogation.          The    basement       was    finished,       but    the    officers

chose to interrogate Hashime in a room that was being used as a

storage area.          Hashime’s family was not allowed to see Hashime

until the three-hour interrogation was over.                             Hashime’s mother

asked the officers three times for an attorney for Hashime, but

was told that he was being questioned and that she could not see

him   or    otherwise     interrupt         the    interrogation.           According      to

Hashime’s mother, the officers told her that Hashime was under

arrest.

      The    officers     secretly         recorded      the   interrogation.            When

Hashime      asked     them     if    they        were    recording        it,    the    lead

interrogator, who was not carrying the recording device, told

Hashime, “I can tell you I don’t have a recorder on . . . .”

During      the   interrogation,           Hashime       admitted    to     having      child

pornography       on   his     computer      and    told     the    officers      in    great

detail about how he had obtained the photographs.                            Hashime also

                                              4
gave the officers the password to his computer and told them

where    the   child-pornography        images        were   located    on   his   hard

drive.

     At    the    beginning      of    the       interview,    the     officers    told

Hashime that he did not have to answer their questions and could

leave at any time.          However, at one point in the interrogation,

one of the officers told Hashime, “I need to know, and I need

you to be completely honest with me here even if you’re afraid,

I don’t care if you say I don’t want to answer that or I’m

afraid to answer it, but I need to know the truth.”                      JA 585.       In

addition,      when   one   of   the   interrogators          left   Hashime      to   go

upstairs, he told Hashime, “[L]ike I said at the beginning, the

search warrant we got to kind of keep an eye on you . . . .                             I

can’t leave you here with nobody here.”                 JA 617-18.

     The officers did not read Hashime his Miranda rights until

over two hours into the interrogation.

                                                 B.

        Hashime was arrested three days after the interrogation.

In July 2012 he was indicted on seven counts of production,

distribution, receipt, and possession of child pornography in

violation of 18 U.S.C. §§ 2251 and 2252.

        Prior to trial, Hashime moved to suppress the statements he

made to the law-enforcement agents during the interrogation on

the grounds that he was in custody at the time and did not

                                             5
receive the required Miranda warning at the beginning of the

interrogation.         The        district       court     rejected    this    motion,

emphasizing        Hashime’s         demeanor        and      tone      during      his

interrogation,      his    general      familiarity          with     law-enforcement

practices, and his apparent lack of concern with any imminent

arrest.     The court relied in particular on the recording of the

interrogation, stating that “were it not for the tape, I think

you’d [Hashime] win your case.”                    JA 125-26.        The court noted

that “the voice of the defendant . . . expressed no kind of

hesitation, no nervousness” and that the evidence of Hashime’s

“forthcoming-ness” was “powerful.”                 JA 126.     The court concluded

that Hashime “was free to leave and . . . believed himself to be

free to leave.”      JA 129.

     Hashime pled guilty to the receipt and possession charges,

the former of which carried a mandatory minimum of five years in

prison and a maximum sentence of twenty years.                        The government

nevertheless chose to also prosecute Hashime on the production

and distribution charges.

     At the bench trial, multiple minors testified about their

contacts    with    Hashime.          Together       with    Hashime’s    statements

during    the   interrogation,        this       evidence   established       Hashime’s

pattern of behavior: he would pose as an attractive teenage girl

named Tracy and make contact with boys on websites used for

anonymous       chatting     or     through       direct     email     communication.

                                             6
Hashime would offer –- in many cases successfully -- to trade

nude   pictures   of   Tracy    for     nude    pictures        of   the   boys.     On

occasion, he redistributed the pictures he obtained.                        The court

found Hashime guilty of the production and distribution counts.

       Prior to sentencing, Hashime moved to strike the mandatory-

minimum    sentences   applicable       to     him   on   the    ground    that    they

violated the Eighth Amendment.                The district court denied the

motion,    finding     proportionality          review      unavailable       for    a

sentence less than life imprisonment without the possibility of

parole.

       At sentencing, the district court rejected the government’s

request for a thirty-year sentence as “way more than would be

appropriate.”     JA 451.      The district court emphasized Hashime’s

youth and immaturity, and instead sentenced him to a fifteen-

year   sentence   --   the    mandatory-minimum           fifteen-year      sentences

for the production charges, and a combination of mandatory and

non-mandatory five-year sentences on the other charges, all to

run    concurrently    --    followed    by     twenty     years      of   supervised

release.



                                        II.

       Hashime first argues that his conviction should be reversed

because law-enforcement agents failed to read him his Miranda

rights at the beginning of the interrogation.                        “We review the

                                         7
factual findings underlying a motion to suppress for clear error

and the district court's legal determinations de novo.                                When a

suppression      motion     has     been    denied,      this    Court         reviews     the

evidence in the light most favorable to the government.”                               United

States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012) (citations

omitted).

                                            A.

       The Fifth Amendment provides that “No person . . . shall be

compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V.                As a prophylactic safeguard for this

constitutional       guarantee,       the    Supreme     Court      has    required         law

enforcement to inform individuals who are in custody of their

Fifth Amendment rights prior to interrogation.                            See Miranda v.

Arizona, 384 U.S. 436, 444 (1966); United States v. Parker, 262

F.3d   415,   419    (4th     Cir.    2001).       Without      a    Miranda       warning,

evidence      obtained        from     the       interrogation            is      generally

inadmissible.       See id.; see also United States v. Hargrove, 625

F.3d 170, 177 (4th Cir. 2010).

       When deciding whether a defendant not under formal arrest

was in custody -- and thus if the Miranda requirements apply --

a court asks whether, “under the totality of the circumstances,

‘a   suspect’s      freedom    of     action     [was]    curtailed         to    a    degree

associated     with    formal        arrest.’”     Parker,          262    F.3d       at   419

(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).                                   This

                                             8
inquiry is an objective one, and asks whether “‘a reasonable man

in the suspect’s position would have understood his situation’

to be one of custody.”             United States v. Colonna, 511 F.3d 431,

435 (4th Cir. 2007) (quoting Berkemer, 468 U.S. at 422).                                In

other words, the court considers whether “a reasonable person

[would] have felt he or she was not at liberty to terminate the

interrogation and leave.”                United States v. Jamison, 509 F.3d

623,   628     (4th   Cir.       2007)    (alteration     in     original)       (quoting

Thompson       v.   Keohane,       516    U.S.    99,     112    (1995))     (internal

quotation marks omitted).

       Facts relevant to the custodial inquiry include, but are

not limited to, “the time, place and purpose of the encounter,

the words used by the officer, the officer's tone of voice and

general      demeanor,     the      presence      of     multiple     officers,        the

potential display of a weapon by an officer, and whether there

was any physical contact between the officer and the defendant.”

United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010) (quoting

United States v. Weaver, 282 F.3d 302, 312 (4th Cir. 2002))

(internal      quotation     marks       omitted).       Also    pertinent       are   the

suspect’s      isolation     and     separation        from     family,    see     United

States    v.    Griffin,     7    F.3d    1512,   1519    (10th     Cir.   1993),      and

physical restrictions, United States v. Griffin, 922 F.2d 1343,

1347 (8th Cir. 1990).



                                            9
                                                B.

     The district court ruled, and the government argues, that a

Miranda warning         was    not    required        because      Hashime    was   not    in

custody.     There is no question that the officers interrogated

Hashime and the custody question is the only one remaining. 1                             The

government’s      case       rests    on        two    grounds:     law      enforcement’s

conduct toward and statements to Hashime prior to and during the

interrogation,         and    Hashime’s         tone    and     demeanor      during      the

interrogation.         We address each in turn.

     The    government         argues      that       the    law-enforcement        agents’

behavior establishes that the interrogation was non-custodial.

The government notes that, when the Hashime family was gathered

in the living room, an agent said that no one was under arrest.

Furthermore,      at    the    beginning         of    the    interview,      one   of    the

interrogators told Hashime that “most importantly we want you to

know that you don’t have to talk to us;” that Hashime could

“answer some questions or not answer questions;” and that he

could    “leave    any       time.”        JA    473.        The    interrogators        also

informed Hashime, both before and after reading him his Miranda

rights, that they were not there to arrest anyone but rather to

execute a search warrant, and that the ultimate decision about


     1
       Hashime does not raise any Fourth Amendment challenges to
the execution of the search warrant, and none are at issue here.



                                                10
arrest would be made by the prosecutor.                        The government also

emphasizes      that    the     interrogators       offered      Hashime     multiple

breaks   for    the     bathroom      and    coffee,     all    of   which   Hashime

declined.      The government notes that Hashime was not handcuffed

during the interrogation, that the door to the room in which he

was interrogated was open, and that Hashime was sitting in the

chair closest to the door.

     The government’s argument is fine as far as it goes, but it

wholly ignores the larger setting.                First, other statements made

by law enforcement undercut the government’s claim that Hashime

was consistently told that he could leave at any time and did

not need to answer any questions.                During the interrogation, one

of the officers told Hashime that, with respect to his prior

sexual history with minors, “I need to know, and I need you to

be completely honest with me here even if you’re afraid, I don’t

care if you say I don’t want to answer that or I’m afraid to

answer it, but I need to know the truth.”                       Likewise, when the

interrogator left to go upstairs, he told Hashime, “[L]ike I

said at the beginning, the search warrant we got to kind of keep

an eye on you . . . .         I can’t leave you here with nobody here.”

     Second,     even    to     the    extent     that    law    enforcement    told

Hashime that he did not have to answer questions and was free to

leave,   that    by    itself       does   not   make    the    interrogation   non-

custodial.       Although       a    statement    that    the    individual     being

                                            11
interrogated      is    free    to    leave      may    be     “highly     probative       of

whether,    in    the   totality      of    the    circumstances,          a    reasonable

person would have reason to believe he was ‘in custody,’” such a

statement “is not ‘talismanic’ or sufficient in and of itself to

show a lack of custody.”              United States v. Hargrove, 625 F.3d

170, 180 (4th Cir. 2010).             The broader setting makes clear why a

few isolated statements by law enforcement in the course of a

three-hour       interrogation       cannot       erase      its    custodial      nature.

Before the interrogation, Hashime had awoken at gunpoint to a

harrowing scene: his house was occupied by a flood of armed

officers who proceeded to evict him and his family and restrict

their    movements       once    let       back        inside.         Throughout         the

interrogation,      Hashime     was    isolated         from     his   family     members,

with his mother’s repeated requests to see him denied.                                  It is

little     wonder       that    Hashime          testified         that,       during     the

interrogation, “I didn’t think I had any chance to leave. . . .

I felt that I was . . . trapped and . . . had to stay where I

was and do what I was told.”            JA 64.

     We also cannot accept the argument that the home setting

here rendered the interrogation non-custodial.                         While courts are

generally        less     likely       to         characterize           as      custodial

interrogations in familiar settings like the home, see 2 Wayne

R. LaFave et al., Criminal Procedure § 6.6(e), at 738-40 (3d ed.

2007), the particular facts of Hashime’s interrogation cut in

                                            12
the    other    direction.       A    suspect     “may   not    feel       that   he    can

successfully terminate the interrogation if he knows that he

cannot    empty    his   home    of     his    interrogators     until       they      have

completed their search.”              United States v. Craighead, 539 F.3d

1073, 1083 (9th Cir. 2008).                   As Hashime testified during the

suppression hearing, prior to being interrogated he did not feel

that he could freely move through the house because the officers

“had people everywhere and telling us what to do, telling me

what to do, and telling me where not to go and where to go.”                             JA

64.

       This case is similar to United States v. Colonna, 511 F.3d

431    (4th     Cir.   2007),    where    we     found   that    an    interrogation

arising out of a search of the home was custodial for Miranda

purposes.       In Colonna, twenty-four FBI agents executed a search

warrant on the defendant’s home, looking for child pornography.

Id. at 433.        Our analysis in that case focused on many of the

same factors that guide our inquiry here: the large number of

armed law-enforcement agents, the suspect’s isolation during his

interrogation, and the suspect and his family’s loss of control

over    their    home.     See    id.    at     436.     Several      of    our   sister

circuits have found interrogations to be custodial in similar

circumstances.         See United States v. Cavazos, 668 F.3d 190, 194

(5th Cir. 2012); Craighead, 539 F.3d at 1089; United States v.

Mittel-Carey, 493 F.3d 36, 39-40 (1st Cir. 2007).

                                          13
       The government, following the district court, also argues

that     Hashime’s     tone    and    demeanor    during      the    interrogation

demonstrate that it was not custodial.                 It is true that Hashime

was     cooperative     with    his    interrogators.          He     admitted     he

possessed child pornography, explained how he had received it,

provided    passwords     to   his    computer,    and    described     where     the

files were located on his hard drive.                  Hashime told the agents

that “I want to help you,” and that “I love helping cops.                        I’ve

always loved cops.        I always wanted to be a cop.”               JA 540.     It

is also the case that the tone of the interrogation was calm and

in some instances almost chatty, with Hashime asking the agents

whether    the    investigation       would   affect    his   upcoming    vacation

plans and joking with them about the health hazards of smoking

cigarettes.

       Whatever the nature of Hashime’s tone and demeanor, it is

not dispositive here of the custodial inquiry.                      As the Supreme

Court has emphasized, the test for whether an interrogation was

custodial is an objective one: “[T]he subjective views harbored

by     either    the   interrogating      officers      or    the    person   being

questioned are irrelevant.             The test, in other words, involves

no consideration of the actual mindset of the particular suspect

subjected to police questioning.”             J.D.B. v. North Carolina, 131

S. Ct. 2394, 2402 (2011) (internal quotation marks and citations

omitted); see also United States v. Parker, 262 F.3d 415, 419

                                         14
(4th Cir. 2001) (“Custody determinations do not depend on the

subjective      views    of     either     the    interrogating         law    enforcement

officers or of the person being questioned, but depend instead

[on] the objective circumstances of the interrogation.”).

        The district court gave primary emphasis to the mannerisms

of the defendant, remarking that Hashime’s voice expressed “no

kind of hesitation, no nervousness,” and that his attitude was a

cooperative      one.         But     Hashime’s         attitude       -–    his    apparent

“forthcoming-ness” as the district court put it -- is more of a

subjective factor and goes primarily to the voluntariness of

Hashime’s confession.              The voluntariness inquiry and the Miranda

custody    inquiry       are,      however,       not    one    and    the     same.       See

Yarborough v. Alvarado, 541 U.S. 652, 667-78 (2004).

        In contrast to Hashime’s manner, the conduct of government

agents is an objective factor informing the inquiry of whether a

reasonable      person    would      have     felt      free   to     leave.        Thus   the

government properly noted such factors as the agents’ tone of

voice, statements that Hashime was not under arrest, and offer

of   multiple    breaks       to    the    defendant.          While    these      objective

factors the government offers do cut against custody, they are

decidedly        outweighed           by      other,           undisputed          objective

considerations -– among which is the sheer length of what the

government would prefer to characterize as an “interview,” but

which    was    plainly       an    hours-long       interrogation.            As    Hashime

                                             15
notes, his “house was swarming with federal and state agents, he

was rousted from bed at gunpoint, held with family members and

not allowed to move unless guarded, and ultimately separated

from his family and placed in a small storage room with two

agents where he was questioned” by investigators, Appellant’s

Br. at 15, who stated that he must remain under guard and that

they needed “to know the truth.”

     We thus hold that Hashime was in custody for the purposes

of Miranda.     Consequently, law enforcement’s failure to read him

his Miranda rights makes his testimony inadmissible and requires

that his conviction be reversed. 2



                                     III.

     Hashime    also   raises   an   Eighth    Amendment      proportionality

challenge to his mandatory fifteen-year sentence.                    (Hashime’s

guilty   plea   on   the   receipt   charge   carried   its    own   five-year

mandatory minimum.)        The defense emphasizes Hashime’s youth and

immaturity.     It contends that the offense conduct triggering the

mandatory fifteen-year minimum for production did not remotely

resemble “the typical production of child pornography.                  Rather

     2
       The government argues that, even if the district court
erred in not suppressing Hashime’s statements, the error was
harmless.    Given the seriousness and extent of Hashime’s
incriminating statements during the interrogation and the
important role they played at trial, we disagree.



                                      16
it    was    the    result    of     the   unfortunately           common    use    of   the

internet by sexually curious young people.”                         Appellant’s Br. at

40.    His case, he argues, was “rare”:                     “For the year 2010, the

average      age    of   those     convicted       of   production     was    42.”       Id.

(citing      U.S.    Sentencing       Comm’n,       Report    to    Congress:      Federal

Child Pornography Offenses 257 n.42 (2013)).

       The government argues that Eighth Amendment proportionality

review is not available for mandatory-minimum sentences of less

than life without parole, and that any such review would neither

be required by Supreme Court precedent nor compatible with our

own.    See, e.g., Ewing v. California, 538 U.S. 11, 30-31 (2003);

United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009).                              The

government also contends that, even if proportionality review

were available for Hashime’s sentence, the mandatory minimums

for his child-pornography convictions would pass constitutional

muster.       The government notes that even after Hashime turned

eighteen,      he    had   sexual     contact        with    two    minor    boys.       And

irrespective of what might constitute relevant conduct under the

Sentencing         Guidelines,       the   offense       conduct      itself       included

“impersonating a young girl named ‘Tracy’” in order to solicit

nude photographs from minors.              Appellee’s Br. at 9.

       The    district       court     felt        considerable      unease    with      the

mandatory minimums sought by the government in this case.                                 At

sentencing, the court chafed at the prosecutors’ use of their

                                              17
charging authority to “get into sentencing decisions,” and their

lack    of    respect    for     the    sentencing          discretion       traditionally

accorded      district        courts.      JA        447.       It    stated       that   the

mandatory-minimum sentences the charges required it to impose

were not “fair or just,” arguing further that “[t]his is the

kind of case where the guidelines and mandatory minimums simply

do    not    reflect    the    realities        of    the    specific       case    and   the

specific defendant.”           JA 457.

       Our    reversal    of     the    conviction          makes    it    unnecessary     to

address any sentencing questions.                    It suffices to note that, in

line with our own review of the custody issue and the district

court’s comments at sentencing, this was a case in which both

police and prosecution applied a heavy foot to the accelerator.

We do not doubt for an instant that the defendant’s conduct here

was    reprehensible          and      worthy        of     both     investigation        and

punishment,        as   the    guilty    plea        attests.        But     attention     to

balance      and   degree      often    distinguishes          the    wise    exercise     of

prosecutorial discretion from its opposite.                         For now we leave to

the reflection of the appropriate authorities whether it was

necessary to throw the full force of the law against this 19-

year-old in a manner that would very likely render his life

beyond repair.




                                           18
                               IV.

     For the foregoing reasons, we reverse Hashime’s conviction

on the production and distribution counts.   The case is remanded

for further proceedings consistent with this decision.



                                             REVERSED AND REMANDED




                               19
KING, Circuit Judge, concurring:

       I concur fully in Judge Wilkinson’s excellent opinion for

the panel.         I write separately, however, to draw attention to a

misperception of the law of this Court with respect to whether a

sentence short of life imprisonment may be reviewed to ensure

that   it    is    constitutionally         proportionate        to    the   offense    of

conviction, and not cruel and unusual in contravention of the

Eighth Amendment.              Every other court of appeals permits just

that     sort      of   proportionality          review   under       the    appropriate

circumstances.          So does ours, as I shall demonstrate, though the

conventional wisdom may say otherwise.

       After Hashime submitted his principal brief, in which he

argued      that    his   fifteen-year       sentence      was    unconstitutionally

disproportionate, he moved for initial hearing en banc.                                See

Fed. R. App. P. 35(a).               As justification for so doing, Hashime

asserted that we had “held previously, as opposed to every other

Circuit, that a sentence of a term of years (as opposed to a

sentence      of    life),      is   not    subject       to   the     proportionality

principle under the Eighth Amendment.”                     Appellant’s Motion for

Hearing     En     Banc   at    1.     We   denied    initial         hearing   en   banc

because, as Judge Gregory (joined by Judge Davis) presaged, “if

Hashime’s appeal is resolved on the [threshold] Miranda issue,

his Eighth Amendment argument will be moot.”                          United States v.



                                            20
Hashime,    722    F.3d    572,    572    (4th       Cir.   2013)     (Gregory,   J.,

concurring in denial of hearing en banc).

     And now that scenario has come to pass.                        See ante at 18

(“Our reversal of the conviction makes it unnecessary to address

any sentencing questions.”).              Still, it bears revisiting Judge

Gregory’s observation that our Eighth Amendment precedent as it

applies to defendants sentenced to a term of years “seemingly

materialized from thin air,” and has “inexplicably morphed” over

the years.     Hashime, 722 F.3d at 573.              Our most recent published

iteration of the rule occurred in United States v. Malloy, 568

F.3d 166 (4th Cir. 2009), where we recited that because the

defendant    in   that    case    had    “received      less   than    life   without

parole,     proportionality       review       is    not    available    under    our

precedent.”       Id. at 180 (citing United States v. Ming Hong, 242

F.3d 528, 532 (4th Cir. 2001)).                Malloy accurately characterized

Ming Hong, in which we unabashedly asserted that “[t]his court

has held that proportionality review is not available for any

sentence less than life imprisonment without the possibility of

parole.”     242 F.3d at 532 (emphasis added) (citing United States

v. Polk, 905 F.2d 54, 55 (4th Cir. 1990)).

     Unfortunately,       our     opinion       in   Ming    Hong     misstated   the

precise language of Polk, in which we merely observed that the

Supreme Court’s decision in Solem v. Helm, 436 U.S. 277 (1983),

“does not require a proportionality review of any sentence less

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than life imprisonment without possibility of parole.”                        905 F.2d

at    55   (emphasis       added)   (citation    omitted).          Obviously,      to

withhold     a     potential    avenue   of     review       entirely    by     simply

declaring that it is “not available” is hardly the same thing as

exercising the discretion to only infrequently engage in such

review under certain circumstances.                  Even before Ming Hong, we

neglected to capture the essence of what Solem and Polk actually

instructed, as we confidently maintained that “[i]t is well-

settled that proportionality review is not appropriate for any

sentence less than life imprisonment without the possibility of

parole.”      United States v. Lockhart, 58 F.3d 86, 89 (4th Cir.

1995)      (emphasis       added)   (citing      Polk).           The   irrefutable

implication of Solem and Polk, however, is to the contrary, that

is, proportionality review of a term-of-years sentence — though

not required in every case, or even, perhaps, in most cases —

is,     contrary     to    Lockhart    and    Ming     Hong,      appropriate      and

available in some cases.

      Although our recent line of authority addressing the issue

has, understandably, visited ambiguity and confusion upon the

bench and bar, the way going forward is clear.                     Where, as here,

“there is an irreconcilable conflict between opinions issued by

three-judge panels of this court, the first case to decide the

issue is the one that must be followed, unless and until it is

overruled     by    this    court   sitting     en    banc   or   by    the    Supreme

                                         22
Court.”   McMellon v. United States, 387 F.3d 329, 334 (4th Cir.

2004) (en banc).    The 1990 decision in Polk, authored by our

distinguished predecessor Judge Russell, thus states the law of

our circuit:   where a sentence of less than life imprisonment

has been imposed upon a defendant, proportionality review under

the Eighth Amendment is discretionary.




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