At page 1243 Determining gross disproportionate sentence under eighth amendment91 citing cases“a sentence within the statutory limits generally does not violate the eighth amendment.”
- Brandon Myles Pate v. Warden, 822 F. App'x 960 (11th Cir. 2020).unpublished (In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” (quotation marks omitted))
- United States v. Mario Lenard Elbert, No. 24-10360 (11th Cir. Oct. 3, 2025).unpublished (In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.)
- United States v. Romeo Langhorne, No. 22-12412 (11th Cir. May 7, 2024).unpublished (Because the district court sentenced [the defendant] within the statutory limits, he has not made a threshold showing USCA11 Case: 22-12412 Document: 38-1 Date Filed: 05/07/2024 Page: 6 of 6 of disproportionality with…)
- Howell v. United States, No. 8:20-cv-00476 (M.D. Fla. July 13, 2020).([A] sentence within the statutory limits generally does not violate the Eighth Amendment . . . .)
- United States v. Donovan E. Whidden, No. 24-12257 (11th Cir. July 7, 2025).unpublishedSee, e.g., United States v. McGarity, 669 F.3d 1218, 1262 (11th Cir. 2012), abrogated on other grounds by Paroline v. United States, 572 U.S. 434 (2014); Miller, 819 F.3d at 1317 ; United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2…
- United States v. Peter John Zayas, No. 24-10258 (11th Cir. Nov. 21, 2024).unpublished USCA11 Case: 24-10258 Document: 30-1 Date Filed: 11/21/2024 Page: 4 of 7 In setting out an Eighth Amendment challenge in a non-cap- ital case, the defendant must first make a threshold showing “that the sentence imposed is grossly dispropo…
- United States v. Michael Shaquille Lee, No. 23-10551 (11th Cir. Feb. 28, 2024).unpublished Id. at 1242-43.
- United States v. Edward Alan Hardin, No. 22-12460 (11th Cir. June 13, 2023).unpublished “The amendment contains a narrow proportionality principle that applies to noncap- ital sentences.” United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (internal quotation marks omitted).
- Leslie v. United States, No. 3:19-cv-01300 (M.D. Fla. Sept. 16, 2022). Under the Eighth Amendment, a noncapital sentence may be excessive if it is “grossly disproportionate to the offense committed.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (internal quotations marks and citation omitted…
- United States v. Jerry Joseph Higdon, Jr., No. 21-12112 (11th Cir. May 12, 2022).unpublishedWe have interpreted § 5G1.2(d) to “require[] that sentences run consecutively to the extent necessary to reach the defendant’s guidelines range.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006); see also United States v. Sar…
Show 79 more citing cases
- United States v. Audra Mabel, No. 19-15060 (11th Cir. Mar. 21, 2022).unpublishedFirst, the defendant must make a threshold showing that the sentence is “grossly disproportionate to the offense committed.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam) (quoting Raad, 406 F.3d at 1324 ).
- Bannister v. Inch, No. 9:20-cv-81384 (S.D. Fla. June 23, 2021).“In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (cleaned up).
- United States v. Aurelio Gomez-Andrade, No. 19-10015 (11th Cir. June 2, 2021).unpublishedThe defendant bears the burden of showing “that the sentence imposed is grossly disproportionate to the offense committed.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (quotation omitted).
- United States v. Curtis Lee Fleming, No. 20-12036 (11th Cir. May 25, 2021).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. Jason Kushmaul, 984 F.3d 1359 (11th Cir. 2021).publishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. David Ming Pon, 963 F.3d 1207 (11th Cir. 2020).publishedThose multiple sentences must, of course, run consecutively “to the extent necessary to reach the defendant’s guidelines range.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. Cody Eugene Mobley, No. 19-12794 (11th Cir. Apr. 6, 2020).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam).
- United States v. Priscilla Ann Ellis, No. 18-10075 (11th Cir. Oct. 9, 2019).unpublished(stating in evaluating an Eighth Amendment challenge in a non-capital case, we must first make the threshold determination the sentence imposed is grossly disproportionate to the offense committed)
- United States v. Avisys Lee Jackson, No. 18-15154 (11th Cir. June 27, 2019).unpublishedSee, e.g., Farley, 607 F.3d at 1343–46 (thirty-year mandatory minimum for crossing state lines with intent to sexually violate a minor); United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (140-year sentence for production of ch…
- United States v. Patrick Killen, Jr., No. 18-13761 (11th Cir. June 10, 2019).unpublishedIn evaluating an Eighth Amendment challenge to a sentence in a non-capital case, we must first “make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed.” United States v. Johnson, 451 F…
- United States v. Adrian Green, No. 18-11881 (11th Cir. Feb. 22, 2019).unpublishedTo determine whether a sentence constitutes cruel and unusual punishment, the defendant must first show that the sentence “is grossly disproportionate to the offense committed.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006…
- United States v. Todd Erling Becker, No. 17-10902 (11th Cir. Feb. 19, 2019).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. Richard D. Waterson, II, No. 17-15036 (11th Cir. Sept. 12, 2018).unpublished“In general, a sentence within the limits imposed by statute is 5 Case: 17-15036 Date Filed: 09/12/2018 Page: 6 of 7 neither excessive nor cruel and unusual under the Eighth Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th C…
- United States v. Gregory Moore, No. 16-15519 (11th Cir. Apr. 4, 2018).unpublishedAnd “[i]n general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (quotation marks omitted).
- United States v. Michael W. Morgan, No. 17-13763 (11th Cir. Mar. 7, 2018).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. Enrique Jaime Mino, 697 F. App'x 973 (11th Cir. 2017).unpublished To prevail on such a claim, the defendant has the burden of showing (1) “the sentence imposed is grossly disproportionate to the offense committed”; and (2) if that has been shown, “the court must then consider the sentences imposed on oth…
- United States v. David Jacob William Guite, 652 F. App'x 829 (11th Cir. 2016).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. Carey Dowis, 644 F. App'x 882 (11th Cir. 2016).unpublishedThis lenient sentence does not violate the Eighth Amendment; “a sentence within the statutory limits generally does not violate the Eighth Amendment.” See United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006) (per curiam) (emphasis…
- United States v. Michael James Harrell, 635 F. App'x 682 (11th Cir. 2015).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006).
- United States v. Jerry Wayne Guy, III, 622 F. App'x 897 (11th Cir. 2015).unpublishedGuy also argues that the “imposition of a draconian mandatory sentence” under the guideline constitutes cruel and unusual punishment in violation of the Eighth Amendment, but we have held that a defendant, like Guy, who is sentenced within…
- United States v. Alan Gregory Ender, 628 F. App'x 1014 (11th Cir. 2015).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006).
- Carroll v. State, 215 So. 3d 1135 (Ala. Crim. App. 2015).published(explaining that the appellant bears the burden to establish that his sentence in disproportionate)
- United States v. Gregg Germain Williams, 618 F. App'x 541 (11th Cir. 2015).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006).
- United States v. Otto Biltres, 598 F. App'x 740 (11th Cir. 2015).unpublished United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006).
- Wimbley v. State, 191 So. 3d 176 (Ala. Crim. App. 2014).published(explaining that the appellant bears, the burden of establishing that his sentence in disproportionate)
- United States v. Justin Richard Testani, No. 20-13207 (11th Cir. June 15, 2022).unpublished
- United States v. Damaris Cruz, 300 F. App'x 686 (11th Cir. 2008).unpublished
- United States v. Richard Orlando McCray, 345 F. App'x 498 (11th Cir. 2009).unpublished
- United States v. Alejo Cruz-Mejias, 396 F. App'x 593 (11th Cir. 2010).unpublished
- United States v. Harder, 413 F. App'x 123 (11th Cir. 2011).unpublished
- United States v. Michael Ryan South, 359 F. App'x 960 (11th Cir. 2010).unpublished
- United States v. Fernando Sanchez, 215 F. App'x 853 (11th Cir. 2007).unpublished
- United States v. Michael Tyler, 256 F. App'x 310 (11th Cir. 2007).unpublished
- United States v. Charles Jonas Green, 259 F. App'x 171 (11th Cir. 2007).unpublished
- United States v. Darren Lavon Smiley, 263 F. App'x 765 (11th Cir. 2008).unpublished
- United States v. Preston Angelo Williams, 264 F. App'x 795 (11th Cir. 2008).unpublished
- United States v. Brandon James Garcia, 272 F. App'x 754 (11th Cir. 2008).unpublished
- United States v. Alexis Mendez, 284 F. App'x 653 (11th Cir. 2008).unpublished
- United States v. Francis Dullea, 296 F. App'x 733 (11th Cir. 2008).unpublished
- United States v. Charles Edward Puckett, 330 F. App'x 817 (11th Cir. 2009).unpublished
- United States v. Pubien, 349 F. App'x 473 (11th Cir. 2009).unpublished
- United States v. Olivar Martinez-Blanco, 351 F. App'x 339 (11th Cir. 2009).unpublished
- United States v. Mercandy Gaetan, 381 F. App'x 972 (11th Cir. 2010).unpublished
- United States v. William Sardinas, 386 F. App'x 927 (11th Cir. 2010).unpublished
- United States v. Fillman, 325 F. App'x 700 (10th Cir. 2009).unpublished
- United States v. Miknevich, 638 F.3d 178 (3d Cir. 2011).published
- United States v. Kenneth Blage, 426 F. App'x 829 (11th Cir. 2011).unpublished
- United States v. Michael Shane Ragland, 434 F. App'x 863 (11th Cir. 2011).unpublished
- United States v. Matthew S. Stearman, 437 F. App'x 763 (11th Cir. 2011).unpublished
- United States v. Robert Clarke, 440 F. App'x 701 (11th Cir. 2011).unpublished
- United States v. Raul Magana-Herrera, 464 F. App'x 835 (11th Cir. 2012).unpublished
- United States v. Eric Sebastion Barrow, 462 F. App'x 943 (11th Cir. 2012).unpublished
- Robert Lee Hong v. Sec'y Dept. of Corr., 478 F. App'x 648 (11th Cir. 2012).unpublished
- United States v. Aserial Jones, 480 F. App'x 969 (11th Cir. 2012).unpublished
- United States v. Allen Mark Levinson, 504 F. App'x 824 (11th Cir. 2013).unpublished
- United States v. Randall Scott Anderson, 509 F. App'x 868 (11th Cir. 2013).unpublished
- United States v. Mark Twain Heaton, III, 549 F. App'x 835 (11th Cir. 2013).unpublished
- United States v. Colt Bryan Lecuyer, 545 F. App'x 874 (11th Cir. 2013).unpublished
- United States v. Francisco Javier Diaz, 554 F. App'x 892 (11th Cir. 2014).unpublished
- United States v. Derrick Harrell, Corwin Dantzle, 751 F.3d 1235 (11th Cir. 2014).published
- United States v. Quartavious Davis, 754 F.3d 1205 (11th Cir. 2014).published
- United States v. Wesley William Brandt, Jr., 585 F. App'x 754 (11th Cir. 2014).unpublished
- United States v. Shawn Alan Marshall, 584 F. App'x 926 (11th Cir. 2014).unpublished
- United States v. Bilal Jamal Woodard, 559 F. App'x 925 (11th Cir. 2014).unpublished
- United States v. Frankie Cuevas, 507 F. App'x 901 (11th Cir. 2013).unpublished
- United States v. King, 433 F. App'x 763 (11th Cir. 2011).unpublished
- United States v. Jacob Paul Marshall, 416 F. App'x 824 (11th Cir. 2011).unpublished
- United States v. Damian Jamil Smith, 385 F. App'x 977 (11th Cir. 2010).unpublished
- United States v. Joaquin Suarez-Flores, 385 F. App'x 881 (11th Cir. 2010).unpublished
- United States v. Esteban Pacheco Pineda, 370 F. App'x 60 (11th Cir. 2010).unpublished
- United States v. Matthew C. Graziotti, 619 F. App'x 980 (11th Cir. 2015).unpublished
- United States v. Shawn P. Caldwell, 655 F. App'x 730 (11th Cir. 2016).unpublished
- United States v. Manuel Perez Gonzalez, No. 17-11018 (11th Cir. Mar. 16, 2018).unpublished
- White v. State, 179 So. 3d 170 (Ala. Crim. App. 2013).published
- Miller v. State, 63 So. 3d 676 (Ala. Crim. App. 2010).published
- United States v. Bradley Dieffenbacher, No. 22-11039 (11th Cir. Apr. 12, 2023).unpublished
- United States v. Dennis Dewayne Jackson, No. 22-12533 (11th Cir. Apr. 14, 2023).unpublished
- United States v. Michael Hill, No. 24-12874 (11th Cir. Aug. 13, 2025).unpublished
- United States v. Melvin Ford, No. 25-11065 (11th Cir. Jan. 13, 2026).unpublished
At page 1242 Reviewing proportionality of noncapital sentences under Eighth Amendment43 citing cases“outside the context of capital punishment, there are few successful challenges to the proportionality of sentences.”
- United States v. Michael Shaquille Lee, No. 23-10551 (11th Cir. Feb. 28, 2024).unpublished Id. at 1242-43.
- United States v. Edward Alan Hardin, No. 22-12460 (11th Cir. June 13, 2023).unpublished “The amendment contains a narrow proportionality principle that applies to noncap- ital sentences.” United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (internal quotation marks omitted).
- Leslie v. United States, No. 3:19-cv-01300 (M.D. Fla. Sept. 16, 2022). Under the Eighth Amendment, a noncapital sentence may be excessive if it is “grossly disproportionate to the offense committed.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (internal quotations marks and citation omitted…
- United States v. Jerry Sanchez Carrasquillo, 4 F.4th 1265 (11th Cir. 2021).publishedThe government, on the other hand, contends that the record is “sufficient for meaningful appellate review,” United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006), and would not be further developed in any significant way on reman…
- Nelson v. United States, No. 5:17-cv-08012 (N.D. Ala. Apr. 22, 2021).In U.S. v. Johnson, Mr. Johnson appealed his 140-year sentence for violating 18 U.S.C. §§ 2251 (a) and 2252A(a)(1), arguing that his sentence was excessive and constituted cruel and unusual punishment in violation of the Eight Amendment. 4…
- Mack, Jr. v. Sec'y, Dep't of Corr. (Hillsborough Cnty.), No. 8:20-cv-01507 (M.D. Fla. Nov. 25, 2020).The Eighth Amendment “contains a narrow proportionality principle that applies to noncapital sentences.” United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (quoting Ewing v. California, 538 U.S. 11, 20 (2003)).
- United States v. De Andre Smith, 967 F.3d 1196 (11th Cir. 2020).publishedUnited States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006).
- United States v. Cecil Dante Buckner, 808 F. App'x 755 (11th Cir. 2020).unpublished“Outside the context of capital punishment, there are few successful challenges to the proportionality of sentences. ‘This is so because we accord substantial deference to Congress, as it possesses broad authority to determine the types an…
- Myers v. United States, No. 5:18-cv-00171 (M.D. Fla. Feb. 25, 2020).“The Eighth Amendment’s prohibition of cruel and unusual punishments ‘contains a narrow proportionality principle that applies to noncapital sentences.’” United States v. Carthen, 906 F.3d 1315, 1322 (11th Cir. 2018) (quoting United States…
- United States v. Tremane D. Carthen, 906 F.3d 1315 (11th Cir. 2018).publishedThe Eighth Amendment’s prohibition of cruel and unusual punishments “contains a narrow proportionality principle that applies to noncapital sentences.” United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (quotation marks omitted…
Show 33 more citing cases
- United States v. Derek Coleman Corker, No. 17-13543 (11th Cir. Apr. 19, 2018).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006).
- United States v. Lawrence Dawson, 692 F. App'x 598 (11th Cir. 2017).unpublishedUnited States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006).
- United States v. Nekyle Chaney, 238 F. App'x 531 (11th Cir. 2007).unpublished
- United States v. Roderick Myron Stevenson, 240 F. App'x 343 (11th Cir. 2007).unpublished
- United States v. Limbano Galindo-Lara, 278 F. App'x 908 (11th Cir. 2008).unpublished
- United States v. Damaris Cruz, 300 F. App'x 686 (11th Cir. 2008).unpublished
- United States v. Andrew Neston, 304 F. App'x 821 (11th Cir. 2008).unpublished
- United States v. Richard Orlando McCray, 345 F. App'x 498 (11th Cir. 2009).unpublished
- United States v. Darren Mottola, 394 F. App'x 567 (11th Cir. 2010).unpublished
- United States v. Alejo Cruz-Mejias, 396 F. App'x 593 (11th Cir. 2010).unpublished
- United States v. Nathan Wine, 408 F. App'x 303 (11th Cir. 2011).unpublished
- United States v. McGarity, 669 F.3d 1218 (11th Cir. 2012).published
- United States v. Timothy Geenen, 458 F. App'x 863 (11th Cir. 2012).unpublished
- United States v. Charles Dennis britton, Jr., 504 F. App'x 843 (11th Cir. 2013).unpublished
- United States v. Natacha Jihad Pizarro-Campos, 506 F. App'x 947 (11th Cir. 2013).unpublished
- United States v. Justin E. Merch., 506 F. App'x 959 (11th Cir. 2013).unpublished
- United States v. Lorenzo Lance Boles, 521 F. App'x 765 (11th Cir. 2013).unpublished
- United States v. Darryl Vaughn, 527 F. App'x 826 (11th Cir. 2013).unpublished
- United States v. Steven Howard, 537 F. App'x 889 (11th Cir. 2013).unpublished
- United States v. Woods, 730 F. Supp. 2d 1354 (S.D. Ga. 2010).published
- United States v. Michael Patrick Wahl, 544 F. App'x 845 (11th Cir. 2013).unpublished
- United States v. Vladimir Louissant, 558 F. App'x 893 (11th Cir. 2014).unpublished
- United States v. Kwamane Lenard Coleman, 563 F. App'x 740 (11th Cir. 2014).unpublished
- United States v. Joseph Dario Kamer, 580 F. App'x 792 (11th Cir. 2014).unpublished
- United States v. John Pierre Valera, 622 F. App'x 876 (11th Cir. 2015).unpublished
- United States v. William Raymond Miller, II, 432 F. App'x 955 (11th Cir. 2011).unpublished
- United States v. Harder, 413 F. App'x 123 (11th Cir. 2011).unpublished
- United States v. McDade, 399 F. App'x 520 (11th Cir. 2010).unpublished
- United States v. Replogle, 395 F. App'x 620 (11th Cir. 2010).unpublished
- United States v. Richard Anthony Siler, 671 F. App'x 739 (11th Cir. 2016).unpublished
- United States v. Kenneth Everette Robinson, Jr., 704 F. App'x 857 (11th Cir. 2017).unpublished
- United States v. Pressler, 644 F. App'x 972 (11th Cir. 2016).unpublished
- United States v. Karijmah Tremaine Mosley, No. 23-13849 (11th Cir. Feb. 11, 2025).unpublished
At page 1244 Reviewing sentence reasonableness under 18 U.S.C. § 3553(a) factors19 citing casesupholding as substantively reasonable a 140-year sentence based on consecutive statutory maximums for producing and distributing child pornography
- United States v. Edward Cordovez, No. 25-10715 (11th Cir. Sept. 2, 2026).unpublished Id. (citing United States v. Johnson, 451 F.3d 1239, 1244 (11th Cir.2006)).
- United States v. Brad Tyler Suddeth, No. 24-13042 (11th Cir. Sept. 30, 2025).unpublished(upholding as substantively reasonable a 140-year sentence based on consecutive statutory maximums for producing and distributing child pornography)
- United States v. Eric Stull, No. 18-1740 (3d Cir. Jan. 22, 2019).unpublishedSee United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010) (affirming ninety-year sentence for fifty year old defendant who helped run a network that allowed for the 7 trading of hundreds of thousands of images of child pornography);…
- United States v. Paul R. Bloom, 661 F. App'x 1001 (11th Cir. 2016).unpublished(affirming as reasonable a 140-year sentence for an offender with few prior offenses who produced, possessed, and distributed child pornography)
- United States v. Lonnie Ray Hodnett, 210 F. App'x 949 (11th Cir. 2006).unpublished
- United States v. MIchael Steven Foster, 209 F. App'x 942 (11th Cir. 2006).unpublished
- United States v. Gary Alexander Matthews, 199 F. App'x 823 (11th Cir. 2006).unpublished
- United States v. Jose Hernandez-Flores, 196 F. App'x 846 (11th Cir. 2006).unpublished
- United States v. Philip Robert Crimi, 237 F. App'x 485 (11th Cir. 2007).unpublished
- United States v. David Johnson, 241 F. App'x 687 (11th Cir. 2007).unpublished
Show 8 more citing cases
- United States v. Kabil Anton Djenasevic, 248 F. App'x 135 (11th Cir. 2007).unpublished
- United States v. Sarras, 571 F.3d 1111 (11th Cir. 2009).published
- United States v. Metzger, 411 F. App'x 1 (7th Cir. 2010).published
- United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009).published
- United States v. James Cobler, 748 F.3d 570 (4th Cir. 2014).published
- United States v. Tremain Hutchinson, 588 F. App'x 894 (11th Cir. 2014).unpublished
- United States v. Edgar Johan Diaz-Colon, No. 20-13494 (11th Cir. Sept. 13, 2021).unpublished
- United States v. David Jacob Mitchell, No. 23-10231 (11th Cir. Jan. 29, 2024).unpublished
At page 1240 Reviewing excessive sentences for child pornography offenses6 citing casesholding that a 1,680-month sentence was reasonable to reflect the need to protect children from the defendant, who was convicted of producing and distributing child pornography
- United States v. Kenneth Earl Hooks, No. 22-11942 (11th Cir. June 27, 2023).unpublished(upholding as reasonable consecutive sentences totaling 140 years for producing and distributing child pornography)
- Nelson v. United States, No. 5:17-cv-08012 (N.D. Ala. Apr. 22, 2021).In U.S. v. Johnson, Mr. Johnson appealed his 140-year sentence for violating 18 U.S.C. §§ 2251 (a) and 2252A(a)(1), arguing that his sentence was excessive and constituted cruel and unusual punishment in violation of the Eight Amendment. 4…
- United States v. Polk, 508 F. Supp. 2d 89 (D. Me. 2007).published
- United States v. Jeremiah Flores, 562 F. App'x 794 (11th Cir. 2014).unpublished
- United States v. Ronald Brouillard, No. 21-10877 (11th Cir. Jan. 26, 2022).unpublished
- United States v. Justin Richard Testani, No. 20-13207 (11th Cir. June 15, 2022).unpublished
At page 1241 Reviewing criminal charges and factual background for sentencing5 citing caseslight of the factors listed in 18 U.S.C § 3553(a). We affirm. I. On January 12, 2005, Johnson was indicted for two counts of production of child pornography in…
- United States v. Johnny Lewis Lamb, 214 F. App'x 908 (11th Cir. 2007).unpublished
- United States v. Aleo, 681 F.3d 290 (6th Cir. 2012).published
- United States v. Scott Williams, 561 F. App'x 784 (11th Cir. 2013).unpublished
- United States v. Turner, David A., 206 F. App'x 572 (7th Cir. 2006).unpublished
- United States v. Robert Allan Cowan, No. 11-15989 (11th Cir. Nov. 19, 2012).unpublished
v.
Michael JOHNSON, Defendant-Appellant
Michael Johnson appeals his 140-year sentence for producing and distributing child pornography in violation of 18 U.S.C. § 2251(a) and § 2252A(a)(l), respectively. He contends that we should vacate his sentence and remand to the district court for re-sentencing because the sentence: (1) is excessive and constitutes cruel and unusual punishment under the Eighth Amendment; and (2) is unreasonable in[*1241] light of the factors listed in 18 U.S.C § 3553(a). We affirm.
I.
On January 12, 2005, Johnson was indicted for two counts of production of child pornography in violation of § 2251(a) (Counts 1 and 2), one count of possession of child pornography in violation of § 2252A(a)(5)(B) (Count 3), and one count of distribution of child pornography in violation of § 2252A(a)(l) (Count 4). On April 8, 2005, Johnson pleaded guilty to Counts 1, 2, and 4, and the district court dismissed Count 3 upon motion of the government.
During the plea hearing, the government presented facts that it represented it could prove at trial and Johnson agreed to nearly all of those facts. The government stated that between January 2002 and January 2005, Johnson took sexually explicit photographs of two minor males, identified as Victim 1 and Victim 2. The government stated that Johnson produced computer images from the photographs and sent them to a recipient via America Online.
The pre-sentence investigation report (PSI), prepared by a parole officer, elaborated on Johnson’s offenses. According to the PSI, investigators determined that Johnson had produced at least 150 pornographic images and transmitted an unknown number of the images through the Internet. Investigators determined that Johnson had photographed Victim 1 from about the age of 8 until the age of 15, and Victim 2 between the ages of 14 and 16. Johnson had also photographed a third boy, Victim 3, between the ages of 13 and 14. Additionally, investigators concluded that Johnson had either possessed or transmitted at least twenty-four videos of children engaging in sexually explicit conduct.
In an interview with investigators, Victim 1 stated that he met Johnson when he was about 7 years old and that the two began engaging in sexual activity when the victim was 8. The sexual activity continued for about six years and the incidents were “too many to count.” Victim 1 reported that when he was about 9 years old, Johnson introduced him to two other adult men for sexual purposes. Victim 1 said he was given drugs by one or more of the men to induce him into having sex. Investigators determined that Johnson had taken an explicit photograph of Victim 1 with the men.
Because Johnson’s offenses involved separate harms to three victims, the PSI treated the offenses as separate count groups. The PSI recommended that Johnson’s base offense level of 32 be increased to 46 because of the special characteristics of his conduct toward the three victims. The PSI advised that Johnson’s offense level be decreased 3 levels to 43 for acceptance of responsibility and assisting authorities in the investigation pursuant to United States Sentencing Guidelines § 3El.l(a) (Nov.2004).
The PSI also noted that Johnson had prior convictions in state court for two counts of engaging in a lewd act in the presence of a child. Notwithstanding that, the PSI showed that Johnson had no criminal history points, which established a criminal history category of I. The PSI recommended that Johnson’s criminal history category be increased to V pursuant to U.S.S.G. § 4B1.5(a)(2) because he was a repeat and dangerous sex offender against minors. With a total offense level of 43 and a criminal history category of V, the PSI stated that the appropriate guidelines range was life in prison. Pursuant to U.S.S.G. § 5G1.2(d), the PSI recommended that Johnson receive the statutorily authorized maximum sentence for each count and that the sentences run consecutively. That would amount to 50 years as[*1242] to Count 1, 50 years as to Count 2, and 40 years as to Count 4, for a total of 140 years.
At the August 25, 2005 sentencing proceeding, the district court decided that the PSI had correctly calculated Johnson’s offense level and criminal history category and that his guidelines range was life in prison. Alternatively, the court noted that the PSI might have erred in considering as part of Johnson’s relevant conduct his actions toward Victim 3, who was not mentioned in the indictment. The court noted that if the PSI had erred, Johnson’s guidelines range would be 360 months to life. If that were the case, however, the court stated that an upward departure would be warranted pursuant to U.S.S.G. § 2G2.2 due to the seriousness and duration of the exploitation and Victim l’s age when the exploitation began, among other factors.
The district court stated that Johnson “need[ed] to be incarcerated, if for no other reason, to protect young children.” The court stated that it was “mindful and thinking of the victims in this case, and the psychological damage that has been inflicted on them and the turmoil that they will experience as they grow older.” The court considered 18 U.S.C. § 3553(a), including “the need to protect the public, to deter violations of the law, to reflect the seriousness of the offense of conviction, and to provide appropriate punishment.” It sentenced Johnson to the statutorily authorized maximum sentences of 50, 50, and 40 years for each of the three counts with the terms to run consecutively for a total of 140 years.
II.
Johnson contends that we should vacate his sentence because it is excessive and constitutes cruel and unusual punishment under the Eighth Amendment. He characterizes his 140-year sentence as “grossly” disproportionate since he had only been convicted of two prior offenses, for which he successfully completed terms of probation. He argues that he is not the type of recidivist contemplated in Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108 (2003).
Johnson did not raise this issue in the district court. However, we note that the court did not give him an opportunity to object to his sentence or the manner in which it was imposed, which is required by United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds sub nom. United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc). Despite the court’s Jones error, we will not remand on that basis because Johnson has not raised the Jones error on appeal and because the record is sufficient for meaningful appellate review of his Eighth Amendment argument. See United States v. Cruz, 946 F.2d 122, 124 n. 1 (11th Cir.1991). Typically, when a defendant fails to object to an alleged error before the district court, we review the argument only for plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.2005). However, because the court did not give Johnson an opportunity to raise his Eighth Amendment objection, we will review de novo the legality of his sentence. See United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.2005).
The Eighth Amendment provides that “[ejxcessive 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.” Ewing, 538 U.S. at 20, 123 S.Ct. at 1185 (internal quotation marks omitted). Outside the context of capital punishment, there are few successful challenges to the proportionality of sentences. Raad, 406 F.3d at 1323. “This is so because we accord sub[*1243] stantial deference to Congress, as it possesses broad authority to determine the types and limits of punishments for crimes.” Id. (internal quotation marks omitted).
Consequently, a court “must make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed.” Raad, 406 F.3d at 1324. The defendant has the burden of making that showing. See id. at 1324 n. 4. 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. at 1324. “In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” Moriarty, 429 F.3d at 1024 (internal quotation marks omitted).
Because a sentence within the statutory limits generally does not violate the Eighth Amendment, we consider what those limits are for Johnson’s convictions. Johnson was convicted of two counts of producing child pornography in violation of § 2251(a). Each count carries a statutory maximum punishment of fifty years imprisonment if Johnson has a prior conviction “under the laws of any State relating to the sexual exploitation of children.” See 18 U.S.C. § 2251(e). Johnson was also convicted of one count of distributing child pornography in violation of § 2252A(a)(l). That count carries a statutory maximum penalty of forty years imprisonment if Johnson had a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” 18 U.S.C. § 2252A(b)(l).
Johnson was previously convicted in state court of two counts of performing a lewd act in front of a minor and therefore has prior state convictions related to the “sexual exploitation of children,” see § 2251(e), and “abusive sexual conduct involving a minor,” see § 2252A(b)(l). That means Johnson is subject to the statutory maximum penalty for each count for which he was convicted: 50 years as to the first count, 50 years as to the second count, and 40 years as to the final count.
Pursuant to U.S.S.G. § 5G1.2(d), “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.” We have held that § 5G1.2(d) requires that sentences run consecutively to the extent necessary to reach the defendant’s guidelines range. United States v. Davis, 329 F.3d 1250, 1253-54 (11th Cir.2003) (per curiam). Johnson does not dispute the life-in-prison guidelines range determined by the district court. Thus, under § 5G1.2(d) and Davis, Johnson’s sentences must run consecutively to the extent necessary to reach a sentence of life in prison. Id.; U.S.S.G. § 5G1.2(d). The court sentenced Johnson within the limits imposed by the relevant statutes and guidelines when it sentenced Johnson to a 140-year sentence.
Because the district court sentenced Johnson within the statutory limits, he has not made a threshold showing of dispro-portionality with respect to his sentence. See Moriarty, 429 F.3d at 1024; see also Raad, 406 F.3d at 1324. We need not consider the sentences imposed on others convicted in the same jurisdiction and the sentences imposed for commission of the same crimes in other jurisdictions. Johnson’s sentence is severe, but not more severe than the life long psychological injury he inflicted upon his three young victims. His sentence is neither excessive[*1244] nor cruel and unusual. See Moriarty, 429 F.3d at 1024. It does not violate the Eighth Amendment.
III.
Alternatively, Johnson contends that we should vacate his sentence because it is greater than necessary to serve the purposes listed in 18 U.S.C. § 3553(a) and is therefore unreasonable. He argues that “a thirty-year sentence would have reflected the seriousness of the offense, promoted respect for the law, provided just punishment, ... and protected the public.”
We review sentences imposed after United States v. Booker for reasonableness in light of the § 3553(a) factors. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005); United States v. Talley, 431 F.3d 784, 785 (11th Cir.2005). We must determine whether the sentence imposed by the district court “fails to achieve the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. “[W]e recognize that there is a range of reasonable sentences from which the district court may choose, and when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Id. In imposing the sentence, a district court need not mention each of the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005).
At sentencing, the district court looked to § 3553(a) in determining Johnson’s sentence. It considered § 3553(a)(2)(C) when explaining why Johnson needed to be imprisoned to protect young children. 18 U.S.C. § 3553(a)(2)(C) (court shall consider the need for the sentence “to protect the public from further crimes of the defendant”). The court also considered § 3553(a)(2)(A) when it noted the psychological damage Johnson had inflicted on his victims and emotional turmoil they will be faced with in the years to come. Id. § 3553(a)(2)(A) (court shall consider the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”). Furthermore, the court sentenced Johnson to a term that was within his guidelines range. It is a reasonable sentence.
AFFIRMED.