United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-30907
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN PAUL STRAHAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50105-1
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
John Paul Strahan appeals the mandatory minimum fifteen-
year sentence he received pursuant to his guilty-plea conviction of
conspiracy to distribute fifty grams or more of methamphetamine and
possession of a firearm in relation to a drug trafficking offense.
Strahan contends, as he did at sentencing, that his sentence, as
applied to the facts of his case, constitutes cruel and unusual
punishment under the Eighth Amendment.
Strahan asserts that under the Ninth Circuit’s opinions
in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004) and Rios v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Garcia, 390 F.3d 1082 (9th Cir. 2004), the district court should
have considered the following facts: (1) he was merely present in
his house when the transaction occurred and he did not profit from
the transaction; (2) the weapons involved in the transaction were
kept outside of his home in a storage shed; and (3) his only past
crime was a misdemeanor assault case, for which he received a
probated sentence.
However, the Ninth Circuit’s opinions are persuasive
authority at most. Strahan does not point to any language in Ewing
v. California, 538 U.S. 11 (2003), Lockyer v. Andrade, 538 U.S. 63
(2003), or any other Supreme Court or Fifth Circuit opinion
requiring such in-depth analysis. In this circuit, we look to the
Supreme Court’s decisions in Harmelin v. Michigan, 501 U.S. 957
(1991), and Hutto v. Davis, 454 U.S. 370 (1982), as benchmarks for
making the threshold determination whether a defendant’s drug
offense and sentence were grossly disproportionate. See United
States v. Cathey, 259 F.3d 365, 368-69 & nn.13-14 (5th Cir. 2001).
Strahan’s fifteen-year sentence for conspiring to
distribute 168 grams of methamphetamine is not grossly dispropor-
tionate to his crime, and thus it does not violate the Eighth
Amendment. See Harmelin, 501 U.S. at 1001-05; Davis, 454 U.S. at
370, 374-75; Cathey, 259 F.3d at 367-69.
AFFIRMED.
2