[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 21, 2005
No. 03-15300 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-10011-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIVAN ALFONSO RAAD,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 21, 2005)
Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Livan Alfonso Raad appeals his sixty-month sentence, imposed following
his guilty plea for three counts of smuggling aliens for financial gain, in violation
of 8 U.S.C. § 1324. The issue presented is whether the mandatory minimum
sentence prescribed under § 1324 violates the Eighth Amendment’s prohibition
against cruel and unusual punishment.1 We hold that it does not.
Raad, indicted for sixty-seven counts relating to alien smuggling, pleaded
guilty to three counts of smuggling aliens for financial gain, in violation of 8
U.S.C. § 1324. Although the district court calculated Raad’s sentencing range
under the U.S. Sentencing Guidelines to be fifty-one to sixty-three months
imprisonment, the court sentenced Raad to the mandatory minimum sentence of
sixty months imprisonment required under the statute.2 Raad did not challenge
this mandatory minimum at sentencing. Raad now appeals, claiming that his
1
Raad also appeals the guidelines calculations. Because we conclude that the district court
correctly imposed the statutory mandatory minimum sentence, any error in the guidelines
calculations is harmless and we need not address these arguments. Additionally, there is no merit to
Raad’s claim that his sentence is unconstitutional in light of United States v. Booker, 543 U.S. –, 125
S.Ct. 738, – L.Ed.2d – (2005). Raad was sentenced to the mandatory minimum sentence based on
the facts to which he pleaded guilty. United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir.
2005).
2
Under 8 U.S.C. § 1324, there is a three-year mandatory minimum sentence for the first or
second violation, and a five-year mandatory minimum sentence for any further violations. 8 U.S.C.
§ 1324(B)(2)(B)(iii). Raad pleaded guilty to smuggling three aliens, and each alien is counted as a
separate violation. See United States v. Ortega-Torres, 174 F.3d 1199, 1201 (11th Cir. 1999). Thus,
Raad faced the minimum five-year term of imprisonment.
2
sentence violates the Eighth Amendment because it is disproportionate, as it falls
at the high end of the guidelines range.3
When a defendant fails to object to an error before the district court, we
review the argument for plain error. United States v. Hall, 314 F.3d 565, 566
(11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct.
1770, 1776, 123 L.Ed.2d 508 (1993). “Plain error occurs where (1) there is an
error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in
that it was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Hall, 314 F.3d at 566;
Olano, 507 U.S. at 732.
As this court has explained, “[i]n non-capital cases, the Eighth Amendment
encompasses, at most, only a narrow proportionality principle.” United States v.
Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (citing United States v. Brant, 62
F.3d 367, 368 (11th Cir.1995) (relying on Harmelin v. Michigan, 501 U.S. 957,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991))). The Supreme Court has made it clear
that, “[o]utside the context of capital punishment, successful challenges to the
proportionality of sentences [are] exceedingly rare.” Solem v. Helm, 463 U.S.
3
We reject the government’s assertion that Raad has waived his right to appeal. The record
does not contain a copy of the written plea agreement or a transcript from the change-of-plea hearing
demonstrating any waiver of appeal.
3
277, 289, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983) (emphasis in original).
This is so because we accord substantial deference to Congress, as it possesses
“broad authority to determine ‘the types and limits of punishments for crimes.’”
Id. at 290.
When addressing an Eighth Amendment challenge,
a reviewing court must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense
committed and, if it 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.
Reynolds, 215 F.3d at 1214 (citing Brant, 62 F.3d at 368).
We have upheld mandatory minimum sentences in other statutes. See
United States v. Reynolds, 215 F.3d 1210 (11th Cir. 2000) (rejecting Eighth
Amendment challenge to the Armed Career Criminal Act and 18 U.S.C. § 924);
United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995) (rejecting challenge to
career offender provisions); United States v. Willis, 956 F.2d 248, 251 (11th Cir.
1992) (rejecting challenge to mandatory life sentence required under 21 U.S.C.
§ 841(b)(1)); United States v. Benefield, 889 F.2d 1061, 1064 (11th Cir. 1989)
(rejecting challenge to mandatory minimum sentence for illegal purchase of food
stamps at less than face value). Thus, Raad cannot show that his five-year
4
mandatory minimum sentence was grossly disproportionate to his offenses of
smuggling three people into the United States simply because the statutory
minimum sentence fell at the high end of the guidelines range.4 Moreover, “a
sentence which is not otherwise cruel and unusual [does not] become[] so simply
because it is ‘mandatory.’” Harmelin, 501 U.S. at 995 (citing Chapman v. United
States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1928-1929, 114 L.Ed.2d 524 (1991).
Accordingly, for the foregoing reasons, we AFFIRM.
4
Because Raad cannot make a threshold showing of disproportionality, we need not consider
the sentences imposed on others. See Reynolds, 215 F.3d at 1214; Brant, 62 F.3d at 368.
5