     Case: 12-10690       Document: 00512309541         Page: 1     Date Filed: 07/16/2013




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

                                                                            FILED
                                                                            July 16, 2013
                                     No. 12-10690
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MICHELLE JOHNSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CR-7-3


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Pursuant to her guilty-plea conviction for conspiracy to steal Government
property (cashing stolen IRS refund checks totaling approximately $114,000),
Michelle Johnson received an above-Guidelines sentence of 60 months’
imprisonment. She contends her sentence violates the Eighth Amendment
because it is purposeless and grossly disproportionate to the seriousness of her
crime of conviction, in violation of the prohibition against cruel and unusual
punishment. U.S. Const. amend. VIII.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10690     Document: 00512309541      Page: 2   Date Filed: 07/16/2013

                                  No. 12-10690

      Ordinarily, constitutional claims are reviewed de novo. E.g., United States
v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). Because Johnson did not
raise an Eighth Amendment objection in district court to her sentence, however,
review is only for plain error. E.g., United States v. Helm, 502 F.3d 366, 367 (5th
Cir. 2007). For reversible plain error, Johnson must show a forfeited error that
is clear or obvious, and that affected her substantial rights. E.g., Puckett v.
United States, 556 U.S. 129, 135 (2009). She fails to do so.
      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, 288-90 (1983). When evaluating an Eighth Amendment
proportionality challenge, the first step is to make a threshold comparison
between the gravity of the charged offense and the severity of the sentence; if
this comparison does not show the sentence is disproportionate, our analysis
ends. E.g., McGruder v. Puckett, 954 F.2d 313, 316-17 (5th Cir. 1992). Our court
looks to Rummel v. Estelle, 445 U.S. 263 (1980), as a benchmark. See McGruder,
954 F.2d at 317.
      Johnson’s 60-month prison sentence is not grossly disproportionate to the
severity of her conspiracy offense when measured against the benchmark in
Rummel, 445 U.S. at 284-85 (affirming life imprisonment for defendant
convicted of obtaining $120.75 by false pretenses and sentenced under state
“recidivist statute”). Accordingly, Johnson has not demonstrated the requisite
clear or obvious error. See United States v. Helm, 502 F.3d at 368-69.
      AFFIRMED.




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