Filed: Oct. 08, 2013
Latest Update: Mar. 28, 2017
Summary: Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges.applies to noncapital sentences.United States v. Gillespie, 452 F.3d 1183, 1190 (10th Cir.Mr. Jenkins argument is foreclosed;F.2d 1304, 1311 (6th Cir. See Reynolds, 215 F.3d at 1214.drug offense convictions.
FILED
United States Court of Appeals
Tenth Circuit
October 8, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-6289
v. (D.C. No. 5:12-CR-00118-HE-1)
(W.D. Okla.)
STEVEN DEWAYNE JENKINS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges. **
Defendant-Appellant Steven Jenkins appeals from his sentence after
pleading guilty to unlawful possession of a firearm by a felon. 18 U.S.C.
§ 922(g)(1). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Mr. Jenkins had four prior convictions for serious drug offenses and was
sentenced to 15 years of imprisonment and four years’ supervised release under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). He argues that
his sentence violates Eighth Amendment protections against cruel and unusual
punishment. In support, he claims the sentence is grossly disproportionate to the
offense because he possessed the firearm only after being robbed at gunpoint
approximately a month earlier. Additionally, he relies on remarks by the district
court that the mandatory 15-year sentence may have been unduly harsh under the
circumstances.
“The Eighth Amendment contains a narrow proportionality principle that
applies to noncapital sentences.” United States v. Yeley-Davis, 632 F.3d 673, 682
(10th Cir. 2011) cert. denied,
131 S. Ct. 2172 (2011) (internal quotation marks
and citation omitted). It prohibits grossly disproportionate sentences in relation
to the crime, though successful challenges on this basis are rare. Id.; see also
Ewing v. California,
538 U.S. 11, 21 (2003). Usually a sentence within statutory
limits will not be deemed either excessive or cruel and unusual punishment.
United States v. Gillespie,
452 F.3d 1183, 1190 (10th Cir. 2006).
Mr. Jenkins’ argument is foreclosed; this circuit and every other addressing
the ACCA’s sentencing requirements have upheld them as constitutional under
the proportionality principle of the Eighth Amendment. See, e.g., United States
v. Angelos, 433 F.3d 738, 750-53 (10th Cir. 2006); see also United States v.
-2-
Nigg, 667 F.3d 929, 931, 938-39 (7th Cir. 2012), cert. denied,
132 S. Ct. 2704
(2012); United States v. Whaley,
552 F.3d 904, 907 (8th Cir. 2009); United States
v. Helm,
502 F.3d 366, 368-69 (5th Cir. 2007); United States v. Gamble,
388 F.3d
74, 77 (2nd Cir. 2004); United States v. Reynolds,
215 F.3d 1210, 1214 (11th Cir.
2000); United States v. Bonat,
106 F.3d 1472, 1478-79 (9th Cir. 1997); United
States v. Presley,
52 F.3d 64, 68 (4th Cir. 1995); United States v. Warren,
973
F.2d 1304, 1311 (6th Cir. 1992); United States v. Gilliard,
847 F.2d 21, 27 (1st
Cir. 1988).
The minimum sentence imposed by § 924(e)(1) does not take into account
the motive for possessing a gun. See Reynolds, 215 F.3d at 1214. This is
understandable: the purpose of the sentencing statute is to curb and incapacitate
armed, career criminals with a minimum of three prior violent felony or serious
drug offense convictions. See United States v. Orona, 724 F.3d 1297, 1309 (10th
Cir. 2013); see also Rummel v. Estelle,
445 U.S. 263, 285 (1980) (noting that
punishment for recidivism is a matter “largely within the discretion of the
punishing jurisdiction”). In this case, Mr. Jenkins does not dispute his four prior
convictions for serious drug offenses that subject him to the 15-year statutory
minimum. Although the district court noted that a lesser sentence may have been
-3-
more appropriate, its remark does not render the sentence unconstitutional.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-
