[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-15803         ELEVENTH CIRCUIT
                                                     AUGUST 24, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                  D. C. Docket No. 09-00084-CR-T-30-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DARREN MOTTOLA,

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 24, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Darren Mottola appeals his 168-month sentence imposed for receiving child
pornography, in violation of 18 U.S.C. § 2252(a)(2). Mottola pled guilty pursuant

to a written plea agreement that waived his right to appeal his sentence with three

exceptions. Under the plea agreement, Mottola could appeal his sentence if the

sentence: (1) exceeded his applicable guideline range as determined by the

sentencing court; (2) exceeded the statutory maximum penalty; or (3) violated the

Eighth Amendment. On appeal, Mottola argues that his sentence is procedurally

unreasonable and that it violates the Eighth Amendment as cruel and unusual

punishment.

                                            I.

       First, Mottola argues that his sentence is procedurally unreasonable because

the district court failed to (1) adequately articulate its reasons for rejecting his

request for a downward variance and (2) adequately consider the sentencing factors

in 18 U.S.C. § 3553(a).

       We review a sentence appeal waiver provision de novo. United States v.

Benitez-Zapata, 

, 1446 (11th Cir. 1997). To enforce an appeal

waiver, the government must demonstrate either that “(1) the district court

specifically questioned the defendant about the waiver during the plea colloquy, or

(2) the record clearly shows that the defendant otherwise understood the full

significance of the waiver.” 

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      Here, the sentence appeal waiver is valid and effective because the district

court specifically questioned Mottola about his appeal waiver at the change-of-plea

hearing and Mottola stated that he understood the provision. See 

. The appeal waiver bars Mottola from challenging the

reasonableness of his sentence because such a challenge does not fit within any of

the provided exceptions. Therefore, we dismiss this portion of Mottola’s appeal.

                                            II.

      Next, Mottola generally argues that the federal Sentencing Guidelines for

child pornography offenses violate the Eighth Amendment because the sentences

constitute excessive punishment and are not proportional to the offense.

      We review de novo whether a provision of the Sentencing Guidelines is

constitutional. United States v. Pressley, 

, 1209 (11th Cir. 2003).

However, when a defendant, as here, fails to object to an error before the district

court, we review the argument for plain error. United States v. Raad, 

, 1323 (11th Cir. 2005). “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.” 

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



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nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. Amend. VIII. The amendment “contains a narrow proportionality principle

that applies to noncapital sentences,” but, “[o]utside the context of capital

punishment, there are few successful challenges to the proportionality of

sentences” because we accord “substantial deference to Congress.” United States

v. Johnson, 

, 1242-43 (11th Cir. 2006) (quotation and citation

omitted). When challenging a sentence on Eighth Amendment grounds, the burden

is on the defendant to make a threshold showing that his sentence “is grossly

disproportionate to the offense committed.” 

In general, we have held

that “a sentence within the limits imposed by statute is neither excessive nor cruel

and unusual under the Eighth Amendment.” 

      As an initial matter, Mottola’s sentence appeal waiver does not bar his

argument that his sentence violates the Eighth Amendment because this argument

falls within one of the waiver exceptions. Nevertheless, we hold that Mottola’s

sentence does not violate the Eighth Amendment. A sentence imposed within the

statutory limits is generally neither cruel nor unusual punishment. See 

. Specifically, the statutory maximum punishment for receiving

child pornography is 240 months. See 18 U.S.C. § 2252(b)(1). Mottola’s

guideline imprisonment range adopted by the district court, based on his total



                                           4
offense level and criminal history category, was 168-210 months. Mottola’s

sentence of 168 months is at the very bottom of the guideline range, well below the

statutory maximum sentence of 240 months that he faced. See 18 U.S.C. §

2252(b)(1); U.S.S.G § 5G1.1(c)(1). Because the district court sentenced Mottola

within the statutory limits, Mottola failed to meet his burden of showing that his

sentence was grossly disproportionate to his offense.

      DISMISSED IN PART, AFFIRMED IN PART.                   1




      1
          Appellant’s request for oral argument is DENIED.

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