Justice Breyer conceded that successful proportionality challenges to criminal sentences should be rare, but argued that Ewing's sentence could be successfully challenged as disproportional. For Breyer, three characteristics of a sentence bear on whether it is proportional: the length of the sentence in real time, the conduct that triggered the sentence, and the offender's criminal history. Although Ewing was a recidivist, his present crime was not violent, and so he should not have been sentenced as harshly as a recidivist who had committed yet another violent crime. The experience of some federal judges, as described by data aggregated by the United States Sentencing Commission, suggested that Ewing would not have been treated so harshly under federal sentencing law. Finally, the fact that Ewing's sentence would have been the same if he had been convicted of a violent crime, like rape or murder, suggested it was too harsh a sentence for a shoplifter, even a recidivist shoplifter like Ewing. "Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree."