United States v. Payne , 403 F. App'x 823 ( 2010 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4162
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    REX ALVIN PAYNE,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.   N. Carlton Tilley,
    Jr., Senior District Judge. (1:09-cr-00058-NCT-1)
    Submitted:   November 30, 2010            Decided:   December 3, 2010
    Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
    North Carolina, for Appellant.      Anna Mills Wagoner, United
    States Attorney, Anand P. Ramaswamy, Assistant United States
    Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Rex Alvin Payne pled guilty, pursuant to a written
    plea agreement, to possession of a firearm by a convicted felon
    in violation 
    18 U.S.C. § 922
    (g) (2006), and was sentenced under
    the   Armed    Career    Criminal      Act    (“ACCA”),     
    18 U.S.C. § 924
    (e)
    (2006), to the mandatory minimum 180-months of imprisonment.                      On
    appeal, Payne contends that the sentence imposed by the district
    court violates the Eighth Amendment’s prohibition on cruel and
    unusual punishment in that it is grossly disproportionate to the
    offense that he committed.
    Because the Government did not move for a downward
    departure to reflect substantial assistance, the district court
    had   no    authority    to   depart    below       the   mandatory   minimum.    
    18 U.S.C. § 3553
    (e) (2006); Melendez v. United States, 
    518 U.S. 120
    , 125-26 (1996).           “Proportionality review under the Eighth
    Amendment’s cruel and unusual punishment clause is not available
    for   any     sentence    less   that        life    imprisonment     without    the
    possibility of parole.”          United States v. Malloy, 
    568 F.3d 166
    ,
    180 (4th Cir. 2009) (internal alterations and quotation marks
    omitted). ∗    We previously rejected a constitutional challenge to
    ∗
    The Supreme Court’s recent decision in Graham v. Florida,
    __ U.S. __, 
    130 S. Ct. 2011
     (2010), does not affect this
    holding, as the Court in that case considered a sentence of life
    without parole imposed on a juvenile.
    2
    the   ACCA,    and   held   that    the    mandatory    minimum   sentence     “is
    neither disproportionate to the offense nor cruel and unusual
    punishment, and thus does not violate the Eighth Amendment.”
    United States v. Presley, 
    52 F.3d 64
    , 68 (4th Cir. 1995).
    Accordingly, we affirm Payne’s sentence.                We dispense
    with oral argument because the facts and legal contentions are
    adequately     presented    in     the    materials    before   the    court   and
    argument would not aid the decisional process.
    AFFIRMED
    3
    

Document Info

Docket Number: 10-4162

Citation Numbers: 403 F. App'x 823

Judges: Wilkinson, Keenan, Wynn

Filed Date: 12/3/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024