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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14092
Non-Argument Calendar
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D.C. Docket No. 1:96-cr-00061-DHB-WLB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN HOWARD,
a.k.a. Steebo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(October 9, 2013)
Before HULL, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Steven Howard appeals his sentence of 32 months’ incarceration for
violating the terms of his supervised release. On appeal, Howard argues that his
underlying sentence of 188 months’ incarceration and subsequent modification to
168 months’ incarceration violated his Due Process rights under the Fifth
Amendment. He argues that we should adopt the Sixth Circuit’s reasoning * that the
Fair Sentencing Act retroactively applies to him and that, under that holding, his
underlying sentence was impermissibly discriminatory in violation of his Due
Process rights. Howard also argues that the sentence imposed upon the revocation
of his supervised release was cruel and unusual, such that it violated the Eighth
Amendment. He concludes that, had he been sentenced constitutionally for the
underlying sentence, he would have not been on supervised release at the time of
his violation.
*
See United States v. Blewett, 719 F.3d 482 (6th Cir.), reh’g en banc granted, case nos.
12-5226/5582 (6th Cir. July 11, 2013).
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I
“[A] defendant may not challenge, for the first time on appeal from the
revocation of supervised release, his sentence for the underlying offense.” United
States v. White, 416 F.3d 1313, 1316 (11th Cir. 2005). Rather, “a sentence is
presumed valid until vacated under 28 U.S.C. § 2255.” Id. (alteration omitted).
Thus, Howard may not attack the validity of his original sentence through this
appeal.
II
Because Howard raises his Eighth Amendment argument for the first time
on appeal, we review only for plain error. See United States v. McGarity, 669 F.3d
1218, 1255 (11th Cir. 2012), cert. denied, 133 S.Ct. 378 (2012). To establish plain
error, a defendant “must show that there is (1) error (2) that is plain and (3) that
affects substantial rights.” United States v. Lejarde-Rada, 319 F.3d 1288, 1290
(11th Cir. 2003) (quotations omitted). In addition, “where the explicit language of
a statute or rule does not specifically resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” Id. at 1291.
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The Eighth Amendment guarantees that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. We have written that “[o]ur jurisprudence
recognizes a ‘narrow proportionality principle that applies to noncapital
sentences.’” McGarity, 669 F.3d at 1255-56 (citing United States v Johnson, 451
F.3d 1239, 1242 (11th Cir. 2006)). When addressing an Eighth Amendment
challenge, we have this compass:
a reviewing court must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense committed
and, if it 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.
United States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005). To succeed on an
Eighth Amendment claim, the defendant must “make a threshold showing that his
sentence is ‘grossly disproportionate to the offense committed.’” McGarity, 669
F.3d at 1256.
Howard failed to demonstrate that the district court plainly erred when it
sentenced him to 32 months’ incarceration for violating his supervised release.
Neither this Court nor the Supreme Court has held that a sentence within the
properly calculated guideline range is grossly disproportionate to the violation of
supervised release. Furthermore, Howard’s argument that it was cruel and unusual
to sentence him for violating his supervised release when his underlying sentence
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was unconstitutional is unavailing, because he cannot attack the underlying
sentence on this appeal. See White, 416 F.3d at 1316. Howard cannot show that the
district court plainly erred. See Lejarde-Rada, 319 F.3d at 1291.
AFFIRMED.
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