          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                 October 21, 2008
                                No. 08-30164
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ROBERT C. MONTGOMERY, also known as Robert Cecil Montgomery

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                         USDC No. 5:07-CR-50075-3


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Robert C. Montgomery appeals the mandatory 120-month sentence
imposed following his guilty-plea conviction for conspiracy to possess with intent
to distribute crack cocaine. Montgomery argues that the sentence is cruel and
unusual in violation of the Eighth Amendment because it is grossly
disproportionate to the severity of the offense committed. In comparison to the
life sentence imposed in Rummel v. Estelle, 445 U.S. 263, 263 (1980), on a non-



      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                 No. 08-30164

violent criminal pursuant to a recidivist statute, and the thirty-year sentence
imposed in United States v. Gonzales, 121 F.3d 928, 943-44 (5th Cir. 1997), on
a non-habitual offender convicted of using or carrying a firearm during a drug-
trafficking offense, the sentence imposed on Montgomery is not grossly
disproportionate to his offense. See Gonzales, 121 F.3d at 943-44; McGruder v.
Puckett, 954 F.2d 313, 316-17 (5th Cir. 1992). Further, although this case
involves a mandatory minimum sentence, rather than a sentence imposed under
the advisory guidelines, we note that the sentence is within the advisory
guidelines range for this offense. See U.S. SENTENCING GUIDELINES MANUAL §
2D1.1 (2007) (amended 2008) (guidelines range would have been 97-121 months
for this offense, given Montgomery’s criminal history). As such, it would be
considered presumptively reasonable, not grossly disproportionate. See Rita v.
United States, 127 S. Ct. 2456, 2462 (2007) (holding that a court of appeals may
apply “a presumption of reasonableness” to a sentence falling within the
guidelines range).
      Accordingly, the district court’s judgment is AFFIRMED.




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