                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-13882         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 10, 2012
                                      ________________________        JOHN LEY
                                                                        CLERK
                           D.C. Docket No. 6:11-cr-00026-PCF-DAB-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellee,

                                               versus

ASERIAL JONES,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                           (July 10, 2012)

Before DUBINA, Chief Judge, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
      Appellant Aserial Jones appeals his total sentence of 435 months in prison

after pleading guilty without a written plea agreement to (1) aiding and abetting in

a commercial robbery, in violation of 18 U.S.C. §§ 1951 and 2; (2) using and

carrying a firearm during and in relation to a crime of violence and possessing a

firearm in furtherance of a crime of violence, in violation of 18 U.S.C.

§§ 924(c)(1)(A) and 2; (3) aiding and abetting a credit union robbery, in violation

of 18 U.S.C. §§ 2113(a) and 2; and (4) using and carrying a firearm during and in

relation to a crime of violence and possessing a firearm in furtherance of a crime

of violence, in violation of 18 U.S.C. §§ 924(c)(1)(C) and 2. The district court

sentenced Jones to concurrent terms of 51 months’ imprisonment as to Counts 1

and 3, a consecutive term of 7 years’ imprisonment as to Count 2, and a

consecutive term of 25 years’ imprisonment as to Count 4.

      Jones argues that the part of his sentence consisting of the statutory

mandatory minimum consecutive sentence of 25 years’ imprisonment for

violations of 18 U.S.C. § 924(c)(1)(C) constitutes cruel and unusual punishment

under the Eighth Amendment. He further argues that, even if the statute is not

facially unconstitutional, it was unconstitutional as applied to him because he

received the 25-year consecutive sentence and his codefendant did not. Finally, he

argues for the first time on appeal that, under Apprendi v. New Jersey, 530 U.S.

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466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the mandatory minimum sentence

should only have been imposed by unanimous jury verdict.

      We review de novo challenges to the constitutionality of a statute and to the

constitutionality of a defendant’s sentence. United States v. Rozier, 598 F.3d 768,

770 (11th Cir.), cert. denied, 130 S. Ct. 3399 (2010). Arguments raised for the

first time on appeal are reviewed for plain error only. United States v. Olano, 507

U.S. 725, 732-34, 113 S. Ct. 1770, 1777-78, 123 L. Ed. 2d 508 (1993).

      “The Eighth Amendment, which forbids cruel and unusual punishments,

contains a narrow proportionality principle that applies to noncapital sentences.”

United States v. Lyons, 403 F.3d 1248, 1256 (11th Cir. 2005) (internal quotation

marks and italics omitted). The proportionality principle “forbids only extreme

sentences that are grossly disproportionate to the crime.” United States v. Farley,

607 F.3d 1294, 1343 (11th Cir.) (internal quotation marks omitted), cert. denied,

131 S. Ct. 369 (2010). This court recently observed that it has never found a term

of imprisonment to violate the Eighth Amendment. Id. The Supreme Court has

emphasized that substantial deference is owed to the legislative branch in

reviewing criminal penalties and has insisted on judicial restraint in this area.

Harmelin v. Michigan, 501 U.S. 957, 998-99, 111 S. Ct. 2680, 2703-04, 115 L.

Ed. 2d 836 (1991). “In general, a sentence within the limits imposed by statute is

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neither excessive nor cruel and unusual under the Eighth Amendment.” United

States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (internal quotation marks

omitted).

      In contrast to a facial constitutional challenge, which “asserts that a law

always operates unconstitutionally,” an as-applied challenge “addresses whether a

statute is unconstitutional on the facts of a particular case or to a particular party.”

Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009)

(quoting Black’s Law Dictionary).

      Under 18 U.S.C. § 924(c), any person who brandishes a firearm in

furtherance of a crime of violence is subject to a statutory mandatory minimum

sentence of seven years’ imprisonment, which must run consecutively to any other

term of imprisonment imposed. 18 U.S.C. § 924(c)(1)(A)(ii) and (D)(ii). Further,

an individual who sustains “a second or subsequent conviction under this

subsection . . . shall be sentenced to a term of imprisonment of not less than 25

years,” which also must run consecutively to any other term of imprisonment

imposed. 18 U.S.C. § 924(c)(1)(C)(i) and (D)(ii).

      After reviewing the record and reading the parties’ briefs, we conclude that

the 25-year mandatory minimum consecutive sentence for violating § 924(c)(1)(C)

is not a grossly disproportionate punishment for a “second or subsequent

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conviction” under § 924(c), and therefore is not unconstitutional on its face. We

also conclude that it was not unconstitutional as applied, because Jones’s

codefendant was not convicted of violating § 924(c)(1)(C), and was not similarly

situated to him. Finally, Jones’s argument that the mandatory minimum sentence

should only have been imposed by unanimous jury verdict is both contrary to

binding precedent in this circuit and irreconcilable with his having entered a guilty

plea. See United States v. Woodruff, 296 F.3d 1041, 1050 (11th Cir. 2002)

(holding Apprendi inapplicable to convictions under § 924(c)(1)(C)).

      For the foregoing reasons, we affirm Jones’s total sentence of 435 months.

      AFFIRMED.




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