Case: 12-14092   Date Filed: 10/09/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14092
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:96-cr-00061-DHB-WLB-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

STEVEN HOWARD,
a.k.a. Steebo,

                                                         Defendant-Appellant.



                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                            (October 9, 2013)



Before HULL, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Steven Howard appeals his sentence of 32 months’ incarceration for

violating the terms of his supervised release. On appeal, Howard argues that his

underlying sentence of 188 months’ incarceration and subsequent modification to

168 months’ incarceration violated his Due Process rights under the Fifth

Amendment. He argues that we should adopt the Sixth Circuit’s reasoning * that the

Fair Sentencing Act retroactively applies to him and that, under that holding, his

underlying sentence was impermissibly discriminatory in violation of his Due

Process rights. Howard also argues that the sentence imposed upon the revocation

of his supervised release was cruel and unusual, such that it violated the Eighth

Amendment. He concludes that, had he been sentenced constitutionally for the

underlying sentence, he would have not been on supervised release at the time of

his violation.




       *
        See United States v. Blewett, 

 (6th Cir.), reh’g en banc granted, case nos.
12-5226/5582 (6th Cir. July 11, 2013).
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                                           I



      “[A] defendant may not challenge, for the first time on appeal from the

revocation of supervised release, his sentence for the underlying offense.” United

States v. White, 

, 1316 (11th Cir. 2005). Rather, “a sentence is

presumed valid until vacated under 28 U.S.C. § 2255.” Id. (alteration omitted).

Thus, Howard may not attack the validity of his original sentence through this

appeal.



                                           II



      Because Howard raises his Eighth Amendment argument for the first time

on appeal, we review only for plain error. See United States v. McGarity, 

, 1255 (11th Cir. 2012), cert. denied, 

 (2012). To establish plain

error, a defendant “must show that there is (1) error (2) that is plain and (3) that

affects substantial rights.” United States v. Lejarde-Rada, 

, 1290

(11th Cir. 2003) (quotations omitted). In addition, “where the explicit language of

a statute or rule does not specifically resolve an issue, there can be no plain error

where there is no precedent from the Supreme Court or this Court directly

resolving it.” Id. at 1291.


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

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

inflicted.” U.S. Const. amend. VIII. We have written that “[o]ur jurisprudence

recognizes a ‘narrow proportionality principle that applies to noncapital

sentences.’” McGarity, 669 F.3d at 1255-56 (citing United States v Johnson, 

, 1242 (11th Cir. 2006)). When addressing an Eighth Amendment

challenge, we have this compass:

      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. Raad, 

, 1324 (11th Cir. 2005). To succeed on an

Eighth Amendment claim, the defendant must “make a threshold showing that his

sentence is ‘grossly disproportionate to the offense committed.’” McGarity, 669

F.3d at 1256.

      Howard failed to demonstrate that the district court plainly erred when it

sentenced him to 32 months’ incarceration for violating his supervised release.

Neither this Court nor the Supreme Court has held that a sentence within the

properly calculated guideline range is grossly disproportionate to the violation of

supervised release. Furthermore, Howard’s argument that it was cruel and unusual

to sentence him for violating his supervised release when his underlying sentence
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was unconstitutional is unavailing, because he cannot attack the underlying

sentence on this appeal. See White, 416 F.3d at 1316. Howard cannot show that the

district court plainly erred. See Lejarde-Rada, 319 F.3d at 1291.

      AFFIRMED.




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