In this case we believe that it does. The scope of our review of sentences under the Eighth Amendment was defined in Pependrea v. United States, 275 F.2d 325 (9th Cir. 1960). "It is well settled that a sentence within a valid statute cannot amount to `cruel and unusual punishment,' and that when a statute provides for such punishment, the statute only can be attacked * * *."
The Court further noted that "[a]s a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment." Id. at ยถ 21, citing McDougle, 1 Ohio St.2d at 69, citing Martin v. United States (C.A.9, 1963), 317 F.2d 753 (overruled on other grounds, United tates v. Bishop (1973), 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941); Pependrea . United States (C.A.9, 1960), 275 F.2d 325; and United States v. Rosenberg (C.A.2, 1952), 195 F.2d 583. {ยถ 52} The trial court sentenced Stiles to fifteen (15) years to life imprisonment on count one, murder in violation of R.C. 2903.02(B).
It is also suggested that Tateo could have proceeded to verdict and appealed the sentence. The reply to this by his counsel in this Court seems to me unanswerable: "But it would be an audacious trial lawyer indeed who would advise a client in a Federal Court to risk a life in prison without hope of parole on the basis of an appellate review of his sentence, for there is no power to review a sentence within the statutory maximum either in the Supreme Court ( Gore v. United States, 357 U.S. 386, 393) or in the Court of Appeals ( Pependrea v. United States, 275 F.2d 325, 329 (C.A. 9))."Whether counsel is correct in this conclusion, compare United States v. Wiley, 278 F.2d 500; Note, 109 U. of Pa. L. Rev. 422 (1961), is beside the point; the dilemma is real under the authorities.
Davis has not attacked the validity of the statute imposing the sentence for his crime; he has instead claimed that, in his particular case, the sentences imposed upon him were cruel and unusual even though they were within statutory limits. While some circuits rule that an attack on a sentence within statutory limits will be considered an attack on the sentencing statute, see e. g., Pependrea v. United States, 275 F.2d 325 (9th Cir. 1960), cf. Weems, 217 U.S. p. 382, 30 S.Ct. 544, this circuit apparently allows a convict to present a claim in the manner by which Davis has proceeded, i.e. whether the "sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment." (italics in original) Hart v. Coiner, 483 F.2d 136, 139 (4th Cir. 1973), cert. den. 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974).
It is established in this circuit that a sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual. United States v. Rivera-Marquez, 519 F.2d 1227, 1229 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975); Anthony v. United States, 331 F.2d 687, 693-4 (9th Cir.), cert. denied, 368 U.S. 852, 82 S.Ct. 85, 7 L.Ed.2d 49 (1961); Pependrea v. United States, 275 F.2d 325, 329-30 (9th Cir. 1960). Furthermore, a sentence must "at least appear to be cruel and unusual before its authorizing statute can be attacked on Eighth Amendment grounds."
`"If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute." Gurera v. United States, 8 Cir., 1930, 40 F.2d 338, 340.' Pependrea v. United States, 275 F.2d 325, 329, 330 (9th Cir. 1960); see also: Bowman v. United States, 350 F.2d 913, 917 (9th Cir. 1965)."
The question before us for decision is not whether this court or another sentencing judge might have reacted differently to the request for modification of the sentence. Absent an abuse of discretion, Judge Cooper's determination must stand and cannot be disturbed on appeal. E.g., Heath v. United States, 375 F.2d 521 (8 Cir. 1967); United States v. Piccioli, 352 F.2d 856, 859-860 (2 Cir. 1965); Mount v. United States, 333 F.2d 39, 45 (5 Cir.), cert. denied, 379 U.S. 900, 85 S.Ct. 188, 13 L.Ed.2d 175 (1964); Pependrea v. United States, 275 F.2d 325, 329-330 (9 Cir. 1960); Roth v. United States, 255 F.2d 440 (2 Cir.), cert. denied, 358 U.S. 819, 79 S.Ct. 31, 3 L.Ed.2d 61 (1958); United States v. Rosenberg, 195 F.2d 583, 603-609 (2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687 (1952). Moreover, there being no abuse of discretion which would permit appellate reversal of the sentencing judge's decision to adhere to the unreviewable sentence he had originally imposed, it would also be improper to permit review through the use of a collateral method, such as a writ of coram nobis.
ter observation leads into appellant's final contention regarding count 1, that the sentence imposed thereunder (two years imprisonment), considering the relatively minor tax evasions proved by the Government was harsh to the point of constituting cruel and unusual punishment in violation of U.S.Const. amend. VIII. The count 1 conviction was under 26 U.S.C. ยง 7201, which provides for a maximum sentence of five years imprisonment or a $10,000 fine or both. It is well settled that a sentence imposed within the limits of a statute cannot amount to cruel and unusual punishment, and that when a statute provides for punishment thought to be violative of the amendment the constitutionality of the statute itself must be attacked. See, e.g., United States v. Rosenberg, 195 F.2d 583, 607-609 (2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687 rehearing denied with mem. opinion, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 652 (1952); Martin v. United States, 317 F.2d 753, 755 (9 Cir. 1963); Pependrea v. United States, 275 F.2d 325, 329-330 (9 Cir. 1960). No attack is made on the validity of the statute here.
The appellate court has no power to modify or reduce the sentence. Pependrea v. United States, 9 Cir. 1960, 275 F.2d 325, 329. Any motion for reduction of sentence must be addressed to the district court under Rule 35, F.R.Crim.P. The crime of "rape" is included among the offenses over which the federal courts have jurisdiction under section 1153, which provides that the "offense of rape shall be defined in accordance with the laws of the State in which the offense was committed * * *". Section 18-6101 of the Idaho Code provides in pertinent part:
In any event, this court has repeatedly held that it has no authority to review the sentence so long as it falls within the statutory limits. Anthony v. United States, 9 Cir., 1964, 331 F.2d 687; Ellis v. United States, 9 Cir., 1963, 321 F.2d 931; Jones v. United States, 1963, 117 U.S.App.D.C. 169, 327 F.2d 867; Pependrea v. United States, 9 Cir., 1960, 275 F.2d 325; Bryson v. United States, 9 Cir., 1959, 265 F.2d 9; Flores v. United States, 9 Cir., 1956, 238 F.2d 758; Brown v. United States, 9 Cir., 1955, 222 F.2d 293; Berg v. United States, 9 Cir., 1949, 176 F.2d 122; Biren v. United States, 9 Cir., 1953, 202 F.2d 440. Affirmed.