[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 23, 2012
No. 11-10769
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 1:09-cr-00179-KD-M-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ERIC SEBASTION BARROW,
a.k.a. bad_red_dragon_2004,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(March 23, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Eric Barrow appeals his sentence of fifteen years’ imprisonment, imposed
after Barrow pled guilty to production of child pornography, in violation of 18
U.S.C. § 2251(a); possession of child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), 2256(8)(A); and two counts of distributing child pornography,
in violation of 18 U.S.C. §§ 2252A(a)(2), (b)(1). On appeal, Barrow argues that
his sentence–the mandatory minimum for violations of § 2251(a)–is, as applied to
him,1 cruel and unusual and thus prohibited under the Eighth Amendment.
We review the legality of a sentence under the Eighth Amendment de novo.
United States v. Flores, 572 F.3d 1254, 1268 (11th Cir. 2009). In evaluating an
Eighth Amendment challenge in a non-capital case, we must first make the
threshold determination that the sentence imposed is grossly disproportionate to
the offense committed. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.
2006). The defendant bears the burden of making this showing. Id. “If the
sentence 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.” Id. (quotations omitted).
Under 18 U.S.C. § 2251, any person who “employs, uses, persuades,
induces, entices, or coerces any minor to engage in, . . . with the intent that such
minor engage in, any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct or for the purpose of transmitting a live visual
1
Barrow suffers from spina bifida and is confined to a wheelchair.
2
depiction of such conduct, . . . if that visual depiction was produced or transmitted
using materials that have been mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by computer” is subject to
a minimum sentence of fifteen years’ imprisonment, with a maximum sentence of
thirty years.2 18 U.S.C. § 2251(a), (e).
In general, “a sentence within the limits imposed by statute is neither
excessive nor cruel and unusual under the Eighth Amendment.” Johnson, 451
F.3d at 1243. “Outside the context of capital punishment, successful challenges to
the proportionality of particular sentences have been exceedingly rare.” Rummel
v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 1138 (1980). This Court “has never
found a term of imprisonment to violate the Eighth Amendment, and outside the
special category of juvenile offenders the Supreme Court has found only one to do
so.” United States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010). As we noted,
the one case wherein the Supreme Court held a sentence to violate the Eighth
Amendment “was for a sentence of life imprisonment without parole imposed on a
petty criminal who wrote a bad check for $100, the latest in a string of his
relatively minor, nonviolent offenses.” Id.
2
The minimum and maximum sentences can be increased if the defendant has
certain previous convictions. 18 U.S.C. § 2251(e).
3
Upon review of the record and consideration of the parties’ briefs, we
affirm. We have recognized that sentences within the statutory limits generally do
not violate the Eighth Amendment, and that a defendant whose sentence falls
below the statutory maximum cannot make the threshold showing of gross
disproportionality. Johnson, 451 F.3d at 1243. Barrow was sentenced to the
statutory minimum length. He cannot carry his burden of showing that his
sentence was grossly disproportionate to the offense committed and, therefore, he
cannot show that his sentence is cruel and unusual. See id. Accordingly, we
affirm.
AFFIRMED.
4
MARTIN, Circuit Judge, concurs in result.
5