United States v. Clarence Black , 240 F. App'x 854 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 13, 2007
No. 06-14679
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-00081-CR-FTM-33-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE BLACK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 13, 2007)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Clarence Black appeals his 235-month sentence for possession with intent
to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B)(ii). Based on his status as a career offender and his past criminal
conduct, the PSR calculated his based offense level at 31 (34 with a 3-level
reduction for cooperation) and put him at a criminal history category of VI,
resulting in a sentencing guidelines range from 188 to 235 months. The district
court sentenced Black at the top of the guidelines range, 235 months, because of
“all the aggravating factors” and “the defendant’s criminal history” which, in the
court’s view, demonstrated a “total disregard for the law.”
On appeal, Black contends that his sentence was disproportionate to his
criminal activities such that it violated the proportionality clause of the Eighth
Amendment. He argues that because the primary target of the drug investigation,
Antonio Payne, received a sentence of only 148 months, his own sentence of 235
months is unconstitutionally disproportionate in comparison.
Black did not raise this Eighth Amendment objection at sentencing, so we
review only for plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th
Cir.), cert. denied, 126 S. Ct. 196 (2005). “Plain error occurs where (1) there is an
error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in
that it was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Id.2
In noncapital cases, the Eighth Amendment contains only a narrow
proportionality principle because Congress is entitled to great deference in
determining the types and limits of punishments. Raad, 406 F.3d at 1323.
Typically we consider three elements in analyzing a proportionality argument: (1)
the gravity of the offense and the harshness of the sentence; (2) the sentences
imposed on other criminals in the same jurisdiction; and (3) the sentences imposed
for commission of the same crime in other jurisdictions. United States v. Brant, 62
F.3d 367, 368 (11th Cir. 1995). But in our Brant decision, construing the Supreme
Court’s decision in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991),
we modified the test so that the reviewing court is only to consider the remaining
factors after “the court has first made a threshold determination that the sentence
imposed is grossly disproportionate to the offense.” Id.Here, Black does not even argue that his sentence was disproportionate to
his offense. He only argues that his sentence was disproportionate to that given to
a co-defendant. Therefore, we need not look further. Black’s sentence was
reasonable in proportion to the crime charged. He has a history of extensive
criminal conduct and was convicted of possessing with the intent to sell 500 grams
or more of cocaine. His sentence was less than half the statutory maximum. There
was no violation of the Eighth Amendment.
AFFIRMED.
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