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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14431
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00213-MMH-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EROLD MARTIN PANOPIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 15, 2020)
Before JORDAN, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
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Erold Martin Panopio appeals his 235-month sentence for attempted online
enticement of a minor for illegal sexual activity, in violation 18 U.S.C. § 2422(b).
After careful review of the parties’ briefs and the record, we affirm.
I
A
In 2018, a mental health counselor for a 15-year-old girl, L.M., told police
that L.M. had been communicating with older men. L.M.’s mother consented to the
police searching her daughter’s phone, and the police uncovered hundreds of text
messages with Mr. Panopio and Snapchat conversations with him. They also found
a video of L.M., another 15-year-old girl, and Mr. Panopio engaging in sexual
intercourse.
In the text messages, Mr. Panopio had told L.M. he was 19 years old, though
he was actually 24 at the time. L.M. had shared with Mr. Panopio her mental health
struggles and her mother’s cancer diagnosis.
Authorities assumed L.M.’s online identity and began texting with Mr.
Panopio. They arranged a meeting with Mr. Panopio under the pretense that he was
meeting L.M. and a 13-year-old for sexual intercourse. Mr. Panopio drove to the
meeting location, and he was arrested after he exited his vehicle.
In April of 2019, Mr. Panopio pleaded guilty to attempted online enticement
of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2422(b).
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B
Prior to sentencing, a probation officer prepared a presentence investigation
report that recommended a total offense of 36 and a criminal history category at I,
with an advisory sentencing guidelines range of 188 to 235 months (life
imprisonment was the statutory maximum term). That offense level included a five-
level enhancement under U.S.S.G. § 4B1.5(b)(1) for a pattern of activity involving
prohibited sexual conduct. Mr. Panopio objected to this enhancement because it was
discretionary and he had only been charged with one count, but the district court
disagreed and found the enhancement because the underlying offense involvedg a
pattern of conduct with multiple victims.
The district court ultimately adopted the proposed guideline calculations, and
sentenced Mr. Panopio to 235 months of imprisonment and 15 years of supervised
release. This appeal followed.
II
Mr. Panopio challenges his sentence on Eighth Amendment grounds, but
concedes that he did not raise an Eighth Amendment claim in the district court. We
review non-capital Eighth Amendment claims for plain error when a claim is raised
for the first time on appeal. See United States v. Raad, 406 F.3d 1322, 1323 (11th
Cir. 2005). Under this standard of review, a defendant must demonstrate that there
was a plain or obvious error that affected his substantial rights, and that the error
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seriously affected the "fairness, integrity, or public reputation of the judicial
proceedings." Id. (internal quotation marks and citation omitted). Generally, “[a]n
error is not plain unless it is contrary to explicit statutory provisions or to on-point
precedent in this Court or the Supreme Court.” United States v. Hoffman, 710 F.3d
1228, 1232 (11th Cir. 2013) (internal citation and quotation marks omitted).
III
Mr. Panopio argues that his 235-month sentence of imprisonment and 15-year
term of supervised release violate the Eighth Amendment. He primarily relies on
three Supreme Court decisions to argue that Eighth Amendment jurisprudence
mitigating criminal penalties for juveniles should be extended to young adults. See
Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010);
Roper v. Simmons, 543 U.S. 551 (2005). He also cites to scientific research on
neurological development and maturation, as well as recent legislative reforms and
model legislation that extend juvenile protections to adults under the age of 25.
In response, the government contends that Mr. Panopio has not met his burden
or cited any controlling authority to support his Eighth Amendment argument. The
government also argues that the cases cited by Mr. Panopio are distinguishable
because Mr. Panopio is not a juvenile and he was not sentenced to life imprisonment
or death. Additionally, the government notes that Mr. Panopio’s sentence is within
the limits imposed by statute and thus not violative of the Eighth Amendment.
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In evaluating an Eighth Amendment challenge in a noncapital case, we must
first determine whether the sentence imposed is grossly disproportionate to the
offense committed. See United Slates v. Carthen, 906 F .3d 1315, 1322 (11th Cir.
2018). The Eighth Amendment contains a narrow proportionality principle that
applies to noncapital sentences, but it does not require strict proportionality between
the sentence and the crime. See United States v. Smith, 967 F.3d 1196, 1214 (11th
Cir. 2020). In general, a noncapital sentence imposed within statutory limits is not
considered excessive or cruel and unusual under the Eighth Amendment. See United
States v. Flanders, 752 F.3d 1317, 1343 (11th Cir. 2014). Cf. Solem v. Helm, 463
U.S. 277, 297-303 (1983) (holding that a life sentence without the possibility of
parole for a recidivist with seven underlying nonviolent felonies violated the Eighth
Amendment).
Mr. Panopio has made no showing of disproportionality sufficient to establish
plain error. His 235-month prison sentence and 15-year term of supervised release
fall within the statutory and guideline imprisonment and supervised released
guideline ranges. His sentence, given the underlying conduct, is not grossly
disproportionate to his crime.
In addition, Mr. Panopio has not cited to any binding precedent that
demonstrates plain error. Though he cites to three cases, none are dispositive
because Mr. Panopio was not a juvenile when he was sentenced, and he was not
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sentenced to life imprisonment or death. See Miller, 567 U.S. at 489; Graham, 560
U.S. at 82; Roper, 543 U.S. at 551. Mr. Panopio's argument that these cases should
be extended to young adults, without citation to any binding precedent, is insufficient
to show that the district court committed plain error. See, e.g., United States v.
Lange, 862 F.3d 1290, 1296 (11th Cir. 2017). Furthermore, the district court
expressly considered Mr. Panopio’s youthful age when determining his sentence.
Mr. Panopio has failed to meet his burden of demonstrating that the district
court committed plain error under the Eighth Amendment in sentencing him.
Accordingly, his sentence is affirmed.
AFFIRMED.
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