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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13763
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:92-cr-04013-WS-CAS-12



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

MICHAEL W. MORGAN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                              (March 7, 2018)

Before JORDAN, FAY and HULL, Circuit Judges.

PER CURIAM:
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      Michael W. Morgan appeals his sentence for conspiracy to commit

racketeering, racketeering, possession of cocaine base with intent to distribute, and

malicious destruction of property resulting in the death of a Florida Highway

Patrol Trooper. We affirm.

                                I. BACKGROUND

      In 1993, a jury found Morgan guilty of conspiracy to commit racketeering,

in violation of 18 U.S.C. § 1962(c) (Count 1); racketeering, in violation of 18

U.S.C. § 1961(1), (5) (Count 2); three counts of possession of cocaine base with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts 9-11); and

malicious destruction of property resulting in the death of a Florida Highway

Patrol Trooper, in violation of 18 U.S.C. § 844(i) (Count 28). The jury found that

the government had proven seven underlying acts of racketeering, including the

murder of another drug dealer, Alphonso Tillman. The district court originally

sentenced Morgan to life imprisonment as to Counts 1-2 and 9-10, 40 years of

imprisonment as to Count 11, and 288 months of imprisonment as to Count 28, all

terms to run concurrently. His convictions were affirmed on direct appeal. See

United States v. Mothersill, 87 F.3d 1214, 1217 (11th Cir. 1996).

      In 2004, Morgan filed a 28 U.S.C. § 2255 motion to vacate, which the

district court dismissed as untimely. He appealed the dismissal of his motion; this

court affirmed. Morgan v. United States, 195 F. App’x 924 (11th Cir. 2006).


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      In 2016, Morgan sought this court’s leave to file a successive § 2255 motion.

In his application, he argued that he was a juvenile when the relevant conduct

occurred and, in light of the Supreme Court’s decisions in Miller v. Alabama, 567

U.S. 460, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718

(2016), his life sentence was unconstitutional. This court granted Morgan’s

application. Morgan then filed a successive § 2255 motion to vacate, arguing that

he must be resentenced, because his mandatory life sentence without parole

violated Miller. The government agreed that he was entitled to resentencing, and

the district court granted the § 2255 motion to allow resentencing in light of Miller.

      At his resentencing, the district court stated that when it had first sentenced

Morgan in 1993, it was precluded from considering his youth, personal

characteristics, the circumstances of the crime, and other factors. The court then

noted that it was required to consider those factors at his resentencing. It stated

that he reported a lack of adult supervision when he was a child, making him more

susceptible to being influenced by older individuals. He had an IQ of 67 and was

diagnosed with mild intellectual disability. He also suffered from the most severe

form of sickle cell anemia. The court also noted that Morgan had received

numerous disciplinary reports while in prison, but had participated in some

education and self-improvement classes.




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      The court stated that Morgan’s crimes were “abhorrent,” but given “his low

IQ, his lack of youthful guidance, his history of substance abuse, and his status as a

deportable alien,” the court found that a below-Guidelines sentence was

appropriate. The court sentenced Morgan to a term of 420 months of

imprisonment as to Counts 1, 2, and 9-11, and 288 months of imprisonment as to

Count 28, all counts to run concurrently. The court stated that his total sentence

took into account the seriousness of his criminal conduct and his personal

characteristics. It then ordered that he receive credit for time served starting from

the time of his original arrest and his total sentence would run concurrently with

his sentence from his state-court conviction. The court then found that the 420-

month or 35-year total sentence was sufficient, but not greater than necessary to

comply with the purposes of sentencing, and it had fully considered the 18 U.S.C.

§ 3553(a) factors.

      The court then asked the parties if they had any objections to its findings of

fact, conclusions of law, or Morgan’s total sentence. Morgan said he was grateful

for the reduction in his total sentence, but stated that it was still greater than

necessary. The court overruled his objection.

      On appeal, Morgan argues that his 420-month total sentence is substantively

unreasonable, because the court did not adequately consider his age at the time of

the offenses, his intellectual capacity, and his health condition at the time of


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sentencing. He also asserts that his total sentence amounts to cruel and unusual

punishment, in violation of the Eighth Amendment.

                                   II. DISCUSSION

      We generally review de novo the legality of a sentence under the Eighth

Amendment. United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).

However, if a defendant fails to object on these grounds before the district court,

we review only for plain error. Id. To establish plain error, the defendant must

show that “there is (1) error (2) that is plain and (3) that affects substantial rights.”

United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003) (quotation

omitted). Further, “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.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The substantive reasonableness of a sentence is determined in

light of the totality of the circumstances; we will not vacate a sentence as

substantively unreasonable unless we are left with the definite and firm conviction

that the district court clearly erred in weighing the § 3553(a) factors and imposed a

sentence outside the range of reasonable sentences. United States v. Turner, 626

F.3d 566, 573 (11th Cir. 2010).


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        The Eighth Amendment prohibits the infliction of cruel and unusual

punishments. U.S. Const. amend. VIII. In non-capital cases, the defendant must

first show that the sentence was grossly disproportionate to the offense. United

States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006). In general, a sentence

within the statutory limits for an offense is not grossly disproportionate. Id.

        The Eighth Amendment prohibits the execution of individuals who were

under 18 years of age at the time of their capital crimes. Roper v. Simmons, 543

U.S. 551, 568, 125 S. Ct. 1183, 1195 (2005). The Supreme Court has also held

that “the Eighth Amendment prohibits a State from imposing a life without parole

sentence on a juvenile nonhomicide offender.” Graham v. Florida, 560 U.S. 48,

75, 130 S. Ct. 2011, 2030 (2010). The Supreme Court later held that the Eighth

Amendment prohibits a sentencing scheme that mandates a sentence of life without

parole for juveniles convicted of homicide. Miller, 567 U.S. at 489, 132 S. Ct. at

2475.

        “The district court must evaluate all of the § 3553(a) factors, but it may

attach great weight to one factor over others.” United States v. Dougherty, 754

F.3d 1353, 1361 (11th Cir. 2014) (quotation omitted). Ultimately, the sentence

imposed must be sufficient, but not greater than necessary, to satisfy the purposes

for sentencing set out in § 3553(a)(2). 18 U.S.C. § 3553(a). These purposes

include the need for the sentence to: (1) reflect the seriousness of the offense,


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promote respect for the law, and provide just punishment for the offense; (2) afford

adequate deterrence to criminal conduct; and (3) protect the public from further

crimes of the defendant. 18 U.S.C. § 3553(a)(2)(A)-(C). Additionally, although

we have not adopted a presumption that a sentence within the Guidelines range is

reasonable, it has stated that it would ordinarily expect a sentence within the

Guidelines range to be reasonable. United States v. Joseph, 709 F.3d 1082, 1105

(11th Cir. 2013).

      We have rejected the argument that a defendant’s total sentence was

substantively unreasonable because it “effectively amount[ed] to a life sentence.”

Id. In Joseph, the statutory penalty and the Sentencing Guidelines permitted a

“much more severe sentence of imprisonment,” and the district court, therefore,

did not abuse its discretion when it sentenced the defendant at the low end of his

Guidelines range. Id.

      Morgan did not raise his Eighth Amendment arguments before the district

court; accordingly, we review them for plain error. McGarity, 669 F.3d at 1255.

Despite Morgan’s arguments to the contrary, no statute or binding precedent

specifically foreclosed the district court from imposing a 420-month total sentence.

See Lejarde-Rada, 319 F.3d at 1290. Because he did not receive the death penalty,

Roper does not apply. Roper, 543 U.S. at 568, 125 S. Ct. at 1195. Graham does

not apply because his racketeering offense included Tillman’s murder and,


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therefore, was not a non-homicide offense. See Graham, 560 U.S. at 75, 130 S. Ct.

at 2030. Miller does not apply because he did not receive a life sentence and, even

if his total sentence effectively amounts to one, it was not mandatory. See Miller,

567 U.S. at 489, 132 S. Ct. at 2475. Rather, the district court considered a variety

of factors and chose a sentence that was below his Guidelines range. Finally, no

precedent establishes that his total sentence was grossly disproportionate to the

offense. Johnson, 451 F.3d at 1243.

      Morgan also has not shown that the district court abused its discretion by

imposing a substantively unreasonable total sentence. Although he has argued that

his health may not allow him to survive until the expiration of his total sentence,

the court was not required to place determinative weight on that factor. Dougherty,

754 F.3d at 1361. While his Guidelines range of life imprisonment permitted a

much more severe total sentence, the court considered a variety of factors and

varied downward to impose a total sentence of 420 months of imprisonment.

      AFFIRMED.




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