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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12957
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00258-CEH-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN E. MERCHANT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 7, 2013)
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Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Justin Merchant appeals his 210-month sentence imposed after he pled
guilty to one count of distribution of material containing images of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, Merchant
argues that his sentence violates his Eighth Amendment right to be free from cruel
and unusual punishment.
In the district court, Merchant did not object to his sentence on Eighth
Amendment grounds; therefore, we review the sentence for plain error only.
United States v. McGarity, 669 F.3d 1218, 1255 & n.56 (11th Cir.), cert. denied,
133 S. Ct. 374, 378, 381, 459, 551 (2012). To prevail under plain error review, a
defendant must show that (1) an error occurred, and that the error (2) is plain, (3)
affected his substantial rights, and (4) “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Bacon, 598 F.3d 772,
777 (11th Cir. 2010). “Before an error is subject to correction under the plain error
rule, it must be plain under controlling precedent or in view of the unequivocally
clear words of a statute or rule.” United States v. Schmitz, 634 F.3d 1247, 1270–
71 (11th Cir. 2011).
The Eighth Amendment prohibits the infliction of cruel and unusual
punishments. U.S. Const. amend. VIII. Although the amendment “contains a
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narrow proportionality principle that applies to noncapital sentences,” Eighth
Amendment challenges rarely succeed outside the capital punishment context
because courts “accord substantial deference to Congress, as it possesses broad
authority to determine the types and limits of punishments for crimes.” United
States v. Johnson, 451 F.3d 1239, 1242–43 (11th Cir. 2006). To successfully
challenge a non-capital sentence on Eighth Amendment grounds, a defendant must
first establish that the sentence is “grossly disproportionate” to the offense he
committed.1 Id. at 1243. This threshold proportionality inquiry requires a
comparison of “the gravity of the offense and the severity of the sentence.”
Graham v. Florida, — U.S. —, 130 S. Ct. 2011, 2022 (2010). “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.
Merchant argues that his sentence is grossly disproportionate in light of his
personal circumstances, namely his lack of a prior criminal history, his age (25
years old) at the time of the offense, his lack of sophistication and limited life
experience, his family support, and expert testimony at the sentencing hearing that
he is amenable to treatment and bears a low risk of recidivism. Merchant also
1
If a defendant makes a threshold showing of gross disproportionality, then “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.” Johnson, 451 F.3d
at 1243. If this comparison “validates [the] initial judgment that the sentence is grossly
disproportionate, the sentence is cruel and unusual.” Graham v. Florida, — U.S. —, 130 S. Ct.
2011, 2022 (2010) (brackets and quotation marks omitted).
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asserts that the changing mores of society, as reflected in commentator and judicial
criticism of the Sentencing Guidelines for child pornography offenses, require that
his sentence be vacated.
Merchant has not shown the district court plainly erred in imposing his
sentence. Merchant’s 210-month sentence was not grossly disproportionate under
the clear wording of a statute or controlling precedent. To the contrary,
Merchant’s sentence, at 17.5 years, was well within the statutory limits of 5 to 20
years’ imprisonment. See 18 U.S.C. § 2252A(b)(1) (authorizing term of
imprisonment of 5 to 20 years for violations of § 2252A(a)(2)(B)). In fact, the
district court sentenced Merchant at the low end of his advisory guidelines range of
210 to 262 months. And Merchant’s offense was extremely grave, as it involved
nearly 47,000 images of child pornography, many of them depicting violence
against infants, toddlers, and other young children. 2 See McGarity, 669 F.3d at
1256 (rejecting Eighth Amendment challenge to life sentences imposed on
members of child pornography ring and reaffirming that “the sexual abuse of
children, and the use of the internet to facilitate that abuse, are serious problems
affecting the health and welfare of the nation”). Merchant points to no controlling
precedent that plainly shows his sentence to be grossly disproportionate or
2
A search of Merchant’s computer and external hard drive discovered 3,568 still images
and 579 videos depicting the sexual abuse and exploitation of infants, toddlers, and other
prepubescent children. Pursuant to U.S.S.G. § 2G2.2, cmt. n.4(B)(ii), each video is considered to
contain 75 images, yielding a total of 46,993 images.
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otherwise cruel and unusual under the Eighth Amendment. 3 Accordingly,
Merchant has not met his burden of showing the district court plainly erred in
imposing his sentence.
AFFIRMED.
3
In fact, Merchant candidly acknowledges in his brief “the numerous decisions of this
Court rejecting challenges similar to the one [raised] in this brief.” See, e.g., United States v.
Farley, 607 F.3d 1294, 1343–45 (11th Cir. 2010); Johnson, 451 F.3d at 1242–44. Merchant
argues we should “recede[] from” those earlier cases in light of, among other things, the
Supreme Court’s recent decisions in Graham, 130 S. Ct. 2011 (holding Eighth Amendment
prohibits imposition of life-without-parole sentence on juvenile offenders who did not commit
homicide), and Miller v. Alabama, — U.S. —, 132 S. Ct. 2455 (2012) (holding Eighth
Amendment prohibits sentences of mandatory life imprisonment without parole for persons
under 18 years old at the time of their crimes). Even putting aside the fact that our review is for
plain error, the Graham and Miller decisions are clearly inapposite.
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