IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 08-30164
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT C. MONTGOMERY, also known as Robert Cecil Montgomery
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:07-CR-50075-3
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Robert C. Montgomery appeals the mandatory 120-month sentence
imposed following his guilty-plea conviction for conspiracy to possess with intent
to distribute crack cocaine. Montgomery argues that the sentence is cruel and
unusual in violation of the Eighth Amendment because it is grossly
disproportionate to the severity of the offense committed. In comparison to the
life sentence imposed in Rummel v. Estelle, 445 U.S. 263, 263 (1980), on a non-
*
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should not be published and is not precedent except under the limited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.
No. 08-30164
violent criminal pursuant to a recidivist statute, and the thirty-year sentence
imposed in United States v. Gonzales, 121 F.3d 928, 943-44 (5th Cir. 1997), on
a non-habitual offender convicted of using or carrying a firearm during a drug-
trafficking offense, the sentence imposed on Montgomery is not grossly
disproportionate to his offense. See Gonzales, 121 F.3d at 943-44; McGruder v.
Puckett, 954 F.2d 313, 316-17 (5th Cir. 1992). Further, although this case
involves a mandatory minimum sentence, rather than a sentence imposed under
the advisory guidelines, we note that the sentence is within the advisory
guidelines range for this offense. See U.S. SENTENCING GUIDELINES MANUAL §
2D1.1 (2007) (amended 2008) (guidelines range would have been 97-121 months
for this offense, given Montgomery’s criminal history). As such, it would be
considered presumptively reasonable, not grossly disproportionate. See Rita v.
United States, 127 S. Ct. 2456, 2462 (2007) (holding that a court of appeals may
apply “a presumption of reasonableness” to a sentence falling within the
guidelines range).
Accordingly, the district court’s judgment is AFFIRMED.
2