[DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10342         ELEVENTH CIRCUIT
                                   Non-Argument Calendar    SEPTEMBER 16, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 5:08-cr-00022-WTH-GRJ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

ALEJO CRUZ-MEJIAS,
a.k.a. Alejo Cruz Mejias,
a.k.a. Alejo Cruz,
lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                                ________________________

                                     (September 16, 2010)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Appellant Alejo Cruz-Mejias appeals his 60-month sentence, which was the
statutory mandatory minimum sentence, imposed for manufacturing and

possessing with intent to distribute 100 or more marijuana plants, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii). On appeal, Cruz-Mejias argues that his

sentence violates the Equal Protection Clause, the Due Process Clause, and the

Eighth Amendment’s prohibition against cruel and unusual punishment.

However, because Cruz-Mejias did not raise these arguments before the district

court, we review them for plain error. United States v. Peters, 

,

1270 (11th Cir. 2005). Under plain-error review, a defendant must prove that

there is: (1) error, (2) that is plain, and (3) that affects substantial rights. 

If all three of these conditions are met, we can “rectify the error only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” 

marks omitted).

                                             I.

       First, Cruz-Mejias argues that § 841(b)(1)’s minimum mandatory sentencing

scheme that allows for a downward departure only for those defendants who are

able to provide substantial assistance violates the Equal Protection Clause of the

U.S. Constitution. Specifically, Cruz-Mejias asserts that limiting a downward

departure to only those defendants who can provide substantial assistance is not

rationally related to the 18 U.S.C. § 3553(a) factors and that it is illogical to say

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that a first time nonviolent offender, such as himself, cannot receive a downward

departure.

      We have acknowledged that the Supreme Court has established “that the

Due Process Clause of the Fifth Amendment impliedly imposes the same

obligations on the federal government as does the Equal Protection Clause on the

states . . . .” United States v. Houston, 

, 1335 n.5 (11th Cir. 2006).

Accordingly, “any alleged violations of those obligations are analyzed in the same

way as an alleged violation of the Equal Protection Clause by a state actor.” 

mandate of the equal protection guarantee is that the sovereign may

not draw distinctions between individuals based solely on differences that are

irrelevant to a legitimate government objective.” Lofton v. Sec’y of Dep’t of

Children and Family Servs., 

, 817 (11th Cir. 2004) (internal

quotation marks and alteration omitted). Thus, the Equal Protection Clause

“simply keeps governmental decisionmakers from treating differently persons who

are in all relevant respects alike.” 

(internal quotation marks omitted).

“Unless the challenged classification burdens a fundamental right or targets a

suspect class, the Equal Protection Clause requires only that the classification be

rationally related to a legitimate state interest.” 

we reviewed the defendants’ equal protection challenge to

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§ 841(b)(1)(B). United States v. Musser, 

(11th Cir. 1988). There,

the defendants argued that § 841’s substantial-assistance provisions violated the

equal protection component of the Fifth Amendment because defendants without

sufficient knowledge could not receive downward departures for substantial

assistance. 

Because § 841 “does not discriminate on the basis of

race or a suspect class,” we reviewed the statute for a rational basis. 

In rejecting the defendants’ challenge, we stated:

               Congress’ desire to ferret out drug kingpins is obviously served
         by encouraging those with information as to the identity of kingpins to
         disclose such information. Hence, there is a rational relationship
         between the statute and Congress’ purpose. Moreover, all “minor”
         figures, are treated similarly by the statute, which belies any claim of
         unequal treatment.

our review of the record, we conclude that Cruz-Mejias has not

demonstrated that the district court plainly erred by failing to find that

§ 841(b)(1)’s mandatory minimum sentencing scheme violates the equal

protection component of the Fifth Amendment. Accordingly, we affirm as to this

issue.

                                           II.

         Second, Cruz-Mejias argues that § 841(b)(1)’s mandatory minimum



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sentencing structure violates the Fifth Amendment’s Due Process Clause.

Specifically, he asserts that the imposition of a mandatory minimum sentence

without the availability to receive a downward departure deprived him of

substantive due process.

      After a person has been convicted of a crime, the sentencing court may

impose whatever penalty is authorized by statute so long as the penalty is not cruel

and unusual punishment “and so long as the penalty is not based on an arbitrary

distinction that would violate the Due Process Clause of the Fifth Amendment.”

Chapman v. United States, 

, 465, 

, 1927, 

524 (1991). Overall, the Supreme Court has noted that arguments based on due

process and equal protection essentially duplicate each other because the only

review is usually whether Congress had a rational basis for choosing an offense’s

penalty. Id.; see also Nebbia v. New York, 

, 537, 

, 516,

(1934) (holding that due process is not violated if the challenged

law has “a reasonable relation to a proper legislative purpose” and is “neither

arbitrary nor discriminatory”). Consequently, when reviewing both due process

and equal protection challenges to a statute, we look to whether the statute has a

rational basis. See United States v. Solomon, 

, 157 (11th Cir. 1988);

United States v. Holmes, 

, 1177-78 (11th Cir. 1988).

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      In Holmes, we rejected the defendant’s due process challenge to

§ 841(b)(1)’s sentencing 

. There, we held that

§ 841(b)(1)’s penalties “were rationally related to the [Anti-Drug Abuse Act of

1986’s] objective of protecting the public health and welfare by implementing stiff

and certain penalties for those who violate federal drug laws.” 

Furthermore, in Solomon, we reiterated that in passing § 841(b)(1), Congress

could have rationally concluded that a defendant’s possession of a large amount of

controlled substances “posed a particularly great risk to the welfare of society

warranting heavy sentences . . . 

. Consequently, we held that,

because of this rationale, § 841(b)(1)’s failure to account for other characteristics,

such as an offender’s particular position within a drug operation, was not

irrational. 

our review of the record, we conclude that Cruz-Mejias has not

demonstrated that the district court plainly erred by failing to find that

§ 841(b)(1)’s mandatory minimum sentencing scheme violates the Due Process

Clause of the Fifth Amendment. Accordingly, we affirm as to this issue.

                                          III.

      Third, Cruz-Mejias argues that his 60-month sentence is disproportionate to

his offense and constitutes cruel and unusual punishment in violation of the Eighth

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Amendment.

      The Eighth Amendment provides that “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. Under our jurisprudence:

      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.

United States v. Reynolds, 

, 1214 (11th Cir. 2000). “Outside the

context of capital punishment, there are few successful challenges to the

proportionality of sentences . . . because we accord substantial deference to

Congress, as it possesses broad authority to determine the types and limits of

punishments for crimes.” United States v. Johnson, 

, 1242-43 (11th

Cir. 2006) (internal quotation marks omitted). Thus, “[i]n general, a sentence

within the limits imposed by statute is neither excessive nor cruel and unusual

under the Eighth Amendment.” 

(quotation omitted); see also Harmelin

v. Michigan, 

, 994-95, 

, 2701, 

(1991) (“Severe, mandatory penalties may be cruel, but they are not unusual in the

constitutional sense, having been employed in various forms throughout our

Nation’s history.”). Finally, we have rejected a defendant’s claim that his

                                         7
mandatory minimum sentence under § 841(b)(1)(B) violated the Eighth

Amendment. See 

; 

.

      Based on our review of the record, we conclude that Cruz-Mejias has failed

to demonstrate that the district court plainly erred by not finding that his 60-month

sentence was cruel and unusual punishment in violation of the Eighth Amendment.

Accordingly, we affirm as to this issue.

                                    Conclusion

      For the aforementioned reasons, we affirm Cruz-Mejias’s sentence.

      AFFIRMED.




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