United States v. Andrew Neston ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12066 ELEVENTH CIRCUIT
DECEMBER 22, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00186-CR-ORL-22-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW NESTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 22, 2008)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Andrew Neston appeals his 240-month sentence imposed for
receipt and distribution of material containing images of child pornography that
had been mailed, shipped, and transported in interstate and foreign commerce, in
violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1). On appeal, Neston argues that
the Sentencing Guidelines violate the Eighth Amendment because they lack a
rational basis and are cruel and unusual.
We review de novo whether a provision of the Sentencing Guidelines is
constitutional. United States v. Pressley, 345 F.3d 1205, 1209 (11th Cir. 2003).
However, when a defendant fails to object to an alleged error before the district
court, we review the argument only for plain error. United States v. Johnson, 451
F.3d 1239, 1242 (11th Cir. 2006). “ We have discretion to correct an error under
the plain error standard where (1) an error occurred, (2) the error was plain, (3) the
error affected substantial rights, and (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States v. Duncan,
400 F.3d 1297, 1301 (11th Cir. 2005).
The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
Const. Amend. VIII. The amendment “contains a narrow proportionality principle
that applies to noncapital sentences.” Johnson, 451 F.3d at 1242 (quotation
omitted). “Outside the context of capital punishment, there are few successful
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challenges to the proportionality of sentences.” Id. “This is so because we accord
substantial deference to Congress, as it possesses broad authority to determine the
types and limits of punishments for crimes.” Id. at 1242-43. (quotation omitted).
The burden is on the defendant to make a threshold showing that his
sentence is “grossly disproportionate to the offense committed.” Id. at 1243.
(quotation omitted). If the sentence is grossly disproportionate, “the court must
then consider the sentences imposed on others convicted in the same jurisdiction
and the sentences imposed for commission of the same crime in other
jurisdictions.” Id. (quotation omitted). In general, a sentence imposed within the
statutory limits is neither cruel nor unusual under the Eighth Amendment. Id.Because Neston failed to meet his burden of making a threshold showing
that his sentence was grossly disproportionate to his offense and because his
sentence was within the statutory limits, we hold that the district court did not
plainly err when it sentenced Neston within the statutory guidelines, which were
neither cruel nor unusual under the Eighth Amendment.
AFFIRMED.
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