[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15803 ELEVENTH CIRCUIT
AUGUST 24, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00084-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARREN MOTTOLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 24, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Darren Mottola appeals his 168-month sentence imposed for receiving child
pornography, in violation of 18 U.S.C. § 2252(a)(2). Mottola pled guilty pursuant
to a written plea agreement that waived his right to appeal his sentence with three
exceptions. Under the plea agreement, Mottola could appeal his sentence if the
sentence: (1) exceeded his applicable guideline range as determined by the
sentencing court; (2) exceeded the statutory maximum penalty; or (3) violated the
Eighth Amendment. On appeal, Mottola argues that his sentence is procedurally
unreasonable and that it violates the Eighth Amendment as cruel and unusual
punishment.
I.
First, Mottola argues that his sentence is procedurally unreasonable because
the district court failed to (1) adequately articulate its reasons for rejecting his
request for a downward variance and (2) adequately consider the sentencing factors
in 18 U.S.C. § 3553(a).
We review a sentence appeal waiver provision de novo. United States v.
Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). To enforce an appeal
waiver, the government must demonstrate either that “(1) the district court
specifically questioned the defendant about the waiver during the plea colloquy, or
(2) the record clearly shows that the defendant otherwise understood the full
significance of the waiver.” Id. at 1446.
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Here, the sentence appeal waiver is valid and effective because the district
court specifically questioned Mottola about his appeal waiver at the change-of-plea
hearing and Mottola stated that he understood the provision. See Benitez-Zapata,
131 F.3d at 1446. The appeal waiver bars Mottola from challenging the
reasonableness of his sentence because such a challenge does not fit within any of
the provided exceptions. Therefore, we dismiss this portion of Mottola’s appeal.
II.
Next, Mottola generally argues that the federal Sentencing Guidelines for
child pornography offenses violate the Eighth Amendment because the sentences
constitute excessive punishment and are not proportional to the offense.
We review de novo whether a provision of the Sentencing Guidelines is
constitutional. United States v. Pressley, 345 F.3d 1205, 1209 (11th Cir. 2003).
However, when a defendant, as here, fails to object to an error before the district
court, we review the argument for plain error. United States v. Raad, 406 F.3d
1322, 1323 (11th Cir. 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. (quotation omitted).
The Eighth Amendment provides that “[e]xcessive bail shall not be required,
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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,” but, “[o]utside the context of capital
punishment, there are few successful challenges to the proportionality of
sentences” because we accord “substantial deference to Congress.” United States
v. Johnson, 451 F.3d 1239, 1242-43 (11th Cir. 2006) (quotation and citation
omitted). When challenging a sentence on Eighth Amendment grounds, the burden
is on the defendant to make a threshold showing that his sentence “is grossly
disproportionate to the offense committed.” Id. at 1243. In general, we have held
that “a sentence within the limits imposed by statute is neither excessive nor cruel
and unusual under the Eighth Amendment.” Id. (quotation omitted).
As an initial matter, Mottola’s sentence appeal waiver does not bar his
argument that his sentence violates the Eighth Amendment because this argument
falls within one of the waiver exceptions. Nevertheless, we hold that Mottola’s
sentence does not violate the Eighth Amendment. A sentence imposed within the
statutory limits is generally neither cruel nor unusual punishment. See Johnson,
451 F.3d at 1243. Specifically, the statutory maximum punishment for receiving
child pornography is 240 months. See 18 U.S.C. § 2252(b)(1). Mottola’s
guideline imprisonment range adopted by the district court, based on his total
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offense level and criminal history category, was 168-210 months. Mottola’s
sentence of 168 months is at the very bottom of the guideline range, well below the
statutory maximum sentence of 240 months that he faced. See 18 U.S.C. §
2252(b)(1); U.S.S.G § 5G1.1(c)(1). Because the district court sentenced Mottola
within the statutory limits, Mottola failed to meet his burden of showing that his
sentence was grossly disproportionate to his offense.
DISMISSED IN PART, AFFIRMED IN PART. 1
1
Appellant’s request for oral argument is DENIED.
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