                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-2652
                                   ___________

United States of America,               *
                                        *
            Appellee,                   * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
Jose M. Strayhorn,                      * [UNPUBLISHED]
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: January 14, 2011
                                 Filed: February 14, 2011
                                 ___________

Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.


PER CURIAM.

       Jose Strayhorn pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and possession of crack cocaine with the intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) and punishable under 21 U.S.C.
§ 841(b)(1)(C). Based on Strayhorn’s prior criminal history, the district court1
sentenced him as an armed career criminal under 18 U.S.C. § 924(e) and imposed the
mandatory minimum sentence of 180 months’ imprisonment. Strayhorn appeals,
claiming that the sentence is unconstitutional because it (1) constitutes cruel and

      1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
unusual punishment in violation of the Eighth Amendment; and (2) rests on the
racially motivated decision to try him as an adult for a second-degree burglary offense
he committed at age fifteen, in violation of the Fifth and Fourteenth Amendments.
We affirm.

       Police officers obtained a search warrant to search Strayhorn’s residence after
a confidential informant purchased cocaine base (also known as crack cocaine) from
him. During the search, officers recovered a .22 caliber rifle and 4.6 grams of cocaine
base. Strayhorn admitted that both items were his and pleaded guilty to one count of
being a felon in possession of a firearm and one count of possession with intent to
distribute crack cocaine. The district court determined that Strayhorn was eligible for
sentencing as a career offender under U.S. Sentencing Guideline § 4B1.1 and as an
armed career criminal under § 924(e) because Strayhorn previously had been
convicted of two felony drug offenses and second-degree burglary. As a result, the
firearms charge carried the mandatory minimum sentence of 180 months’
imprisonment.

       Strayhorn objected to being sentenced as either an armed career criminal under
§ 924(e) or a career offender under U.S.S.G. § 4B1.1. He contended that the second-
degree burglary conviction in Missouri state court did not satisfy the violent crime
predicate of either provision. He noted that the burglary occurred in 1991 when he
was fifteen years old. He and another minor broke into the local high school and
stole cash stored on the premises. The prosecution successfully petitioned to try him
as an adult and he was subsequently convicted. Strayhorn argued that because the
mandatory minimum sentence under § 924(e) would not have been triggered but for
the decision to try him as an adult, its imposition was excessive and unfair, so as to
constitute cruel and unusual punishment under the Eighth Amendment. He also
argued that the second-degree burglary of a non-dwelling should not be classified
categorically as a “crime of violence” pursuant to U.S.S.G. § 4B1.1, especially in
circumstances such as these.

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        The district court expressed misgivings about sentencing Strayhorn as an armed
career criminal and was particularly troubled that imposition of the mandatory
minimum sentence hinged on the decision to try Strayhorn as an adult for second-
degree burglary in 1991. The district court indicated that it would not impose as
severe a sentence if our circuit’s precedent did not compel that result. Concluding
that it had no other choice, the district court sentenced Strayhorn to 180 months’
imprisonment on each count, to run concurrently.

       Strayhorn renews his Eighth Amendment claim on appeal and contends that the
use of the second-degree burglary conviction as a basis for the armed career criminal
provision of § 924(e) violates his right to due process under the Fifth Amendment and
equal protection under the Fourteenth Amendment. He also asserts that not every
conviction for second-degree burglary of a non-dwelling should be treated as a crime
of violence under U.S.S.G. § 4B1.1 and asks that we revisit our prior holdings to the
contrary. We review de novo whether a given sentence violates the Eighth
Amendment, United States v. Weis, 487 F.3d 1148, 1151 (8th Cir. 2007), whether
sentencing Strayhorn as an armed career criminal pursuant to § 924(e) violates his
rights under the Fifth and Fourteenth Amendments, United States v. Buckner, 894
F.2d 975, 978 (8th Cir. 1990), and whether a prior conviction of a particular crime
qualifies as a “crime of violence” under the career offender provision of § 4B1.1,
United States v. Tyler, 580 F.3d 722, 724 (8th Cir. 2009).

       We have repeatedly held that the mandatory minimum sentencing provisions
in § 924(e) do not violate the Eighth Amendment. See, e.g., United States v. Harris,
324 F.3d 602, 607 (8th Cir. 2003); United States v. Yrikovksy, 259 F.3d 704, 707
(8th Cir. 2001). Acknowledging this, Strayhorn urges that this line of cases is called
into question by the Supreme Court’s decision in Graham v. Florida, 130 S. Ct. 2011,
2033-34 (2010) (holding that imposition of a life-without-parole sentence on a
juvenile who had committed a non-homicide offense constituted cruel and unusual
punishment in violation of the Eighth Amendment). Strayhorn’s argument is

                                         -3-
foreclosed by our decision in United States v. Scott, 610 F.3d 1009, 1018 (8th Cir.
2010) (rejecting Eighth Amendment challenge to life sentence for drug offense and
noting that Graham did not involve “the use of prior offenses committed as a juvenile
to enhance an adult conviction” and “did not call into question the constitutionality
of using prior convictions, juvenile or otherwise, to enhance the sentence of a
convicted adult”). Accordingly, we reject the Eighth Amendment challenge to the
sentence.

       Strayhorn next asserts that the decision to try him as an adult in 1991 was
racially motivated and that classifying him as an armed career criminal on the basis
of that tainted conviction violates his right to due process and equal protection. “A
person claiming unequal enforcement of a facially neutral statute must show both that
the enforcement had a discriminatory effect, and that the enforcement was motivated
by a discriminatory purpose.” United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996).
Notwithstanding the district court’s comments at the sentencing hearing regarding the
effect that cultural biases may have had on the decision to try Strayhorn as an adult
in 1991, there is no evidence of discriminatory effect or purpose to substantiate
Strayhorn’s equal protection argument.

      We agree with the district court that our governing precedent requires the
imposition of the mandatory minimum sentence of 180 months’ imprisonment,
pursuant to the armed career criminal provision of 18 U.S.C. § 924(e). Because we
find no error in imposing this sentence, we need not consider Strayhorn’s claim that
second-degree burglary of a non-dwelling does not constitute a “crime of violence”
under the career offender provision of § 4B1.1.

      The judgment is affirmed.
                     ______________________________




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