United States v. Green, 022219 FED11, 18-11881

• Docket Nº: 18-11881
• Opinion Judge: PER CURIAM
• Party Name: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ADRIAN GREEN, Defendant-Appellant.
• Judge Panel: Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
• Case Date: February 22, 2019
• Court: United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ADRIAN GREEN, Defendant-Appellant.

No. 18-11881

United States Court of Appeals, Eleventh Circuit

February 22, 2019

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket Nos. 5:17-cr-00057-MTT-CHW-1; 5:15-cr-00035-MTT-CHW-17

Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.

PER CURIAM

Adrian Green appeals his 230-month total consecutive sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and his prior conviction for conspiring to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846 and § 841(a)(1), (b)(1)(D). He argues that his aggregate sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment because the application of a recidivist sentencing statute, U.S.S.G. § 4B1.1(a), together with consecutive sentences, renders his punishment grossly disproportionate to his offense.

We review the constitutionality of a defendant's sentence de novo. United States v. Whatley, 719 F.3d 1206, 1213 (11th Cir. 2013). The Eighth Amendment prohibits the government from inflicting "cruel and unusual punishment." U.S. Const. amend. VIII. In non-capital cases, "the Eighth Amendment encompasses, at most, only a narrow proportionality principle." United States v. Suarez, 893 F.3d 1330, 1335-36 (11th Cir. 2018), petition for cert. filed, (U.S. Nov. 26, 2018) (No. 18-16808) (citation omitted). To 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). If the defendant satisfies this burden, we then consider "sentences imposed on others convicted in the same jurisdiction and the sentences imposed for commission of the same crime in other jurisdictions." Id. In general, a sentence imposed within the statutory limits does not violate the Eighth Amendment. Id. Possession with intent to distribute methamphetamine has a statutory maximum of 20 years' imprisonment. 21 U.S.C. § 841(a)(1), (b)(1)(C).

Successful Eighth Amendment challenges in non-capital cases are "exceedingly rare;" so rare, in fact, that never have we concluded that an adult's non-capital sentence violates the Eighth Amendment. Suarez,...