     Case: 11-10421     Document: 00511705596         Page: 1     Date Filed: 12/22/2011




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

                                                                            FILED
                                                                        December 22, 2011
                                     No. 11-10421
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID RAY GRAY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-359-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        David Ray Gray pleaded guilty to receipt and attempted receipt of child
pornography (count one) and possession of child pornography (count two). The
district court departed downward from the advisory sentencing guidelines range
of 97 to 121 months of imprisonment and sentenced Gray to concurrent 60-
month terms of imprisonment, which was the statutory minimum sentence for
the first count of conviction.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10421    Document: 00511705596     Page: 2    Date Filed: 12/22/2011

                                  No. 11-10421

      Gray argues on appeal that his five-year sentence constitutes cruel and
unusual punishment because his health is such that he is unlikely to live to
complete the sentence. He contends that, in light of his tenuous health, his five-
year sentence is effectively a life sentence imposed without the express intent of
the legislature. The Government asserts that the claim is frivolous and moves
to dismiss the appeal or for summary affirmance. In the alternative, the
Government requests an extension of time to file a brief on the merits.
      The parties dispute the applicable standard of review. The Government
contends that plain error review applies because Gray failed to make an Eighth
Amendment argument at sentencing, while Gray asserts that constitutional
claims should be reviewed de novo and argues that his statements at sentencing
were sufficient to preserve the issue. We need not resolve the issue because
Gray’s claim fails even if it was preserved in the district court.
      The Eighth Amendment prohibits             a sentence that is grossly
disproportionate to the severity of the crime for which it is imposed. Solem v.
Helm, 463 U.S. 277, 288 (1983). As a threshold issue, we compare the gravity
of the charged offense and the severity of the sentence. United States v. Thomas,
627 F.3d 146, 160 (5th Cir. 2010), cert. denied, 131 S. Ct. 2470 (2011); McGruder
v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992). Only if the sentence is grossly
disproportionate to the offense do we proceed to compare the challenged sentence
with (1) sentences imposed for similar crimes in the same jurisdiction and (2)
sentences imposed for the same crime in other jurisdictions. McGruder, 954
F.2d at 316. If we conclude that the sentence is not grossly disproportionate, our
inquiry is finished. Id.
      Although Gray argues that his sentence is disproportionate as applied in
his case, he does not attempt to suggest that his five-year, statutory minimum,
sentence is objectively disproportionate to the offense for which he was
convicted. Thomas, 627 F.3d at 160; McGruder, 954 F.2d at 316. The fact that
a sentence based on statutory minimum requirements may be “‘harsh’” or

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   Case: 11-10421    Document: 00511705596       Page: 3   Date Filed: 12/22/2011

                                  No. 11-10421

“‘effectively a life sentence’” for an individual defendant does not violate the
Eighth Amendment. United States v. Looney, 532 F.3d 392, 395-98 (5th Cir.
2008); see also Thomas, 627 F.3d at159-60. The decision whether the application
of statutory minimum sentences results in prison terms that are too harsh must
be left to Congress. Looney, 532 F.3d at 397.
      Gray’s appeal is not frivolous, and although we conclude that the judgment
should be affirmed without further briefing, summary affirmance is not
appropriate. See United States v. Holy Land Found. for Relief & Dev., 445 F.3d
771, 781 (5th Cir. 2006). Thus, we affirm the judgment of the district court and
deny the Government’s motion for dismissal, summary affirmance, or,
alternatively, for an extension of time to file a brief.
      AFFIRMED; MOTION DENIED.




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