                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 8, 2013
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 12-6289
 v.                                            (D.C. No. 5:12-CR-00118-HE-1)
                                                        (W.D. Okla.)
 STEVEN DEWAYNE JENKINS,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges. **


      Defendant-Appellant Steven Jenkins appeals from his sentence after

pleading guilty to unlawful possession of a firearm by a felon. 18 U.S.C.

§ 922(g)(1). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Mr. Jenkins had four prior convictions for serious drug offenses and was

sentenced to 15 years of imprisonment and four years’ supervised release under

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). He argues that

his sentence violates Eighth Amendment protections against cruel and unusual

punishment. In support, he claims the sentence is grossly disproportionate to the

offense because he possessed the firearm only after being robbed at gunpoint

approximately a month earlier. Additionally, he relies on remarks by the district

court that the mandatory 15-year sentence may have been unduly harsh under the

circumstances.

      “The Eighth Amendment contains a narrow proportionality principle that

applies to noncapital sentences.” United States v. Yeley-Davis, 632 F.3d 673, 682

(10th Cir. 2011) cert. denied, 131 S. Ct. 2172 (2011) (internal quotation marks

and citation omitted). It prohibits grossly disproportionate sentences in relation

to the crime, though successful challenges on this basis are rare. Id.; see also

Ewing v. California, 538 U.S. 11, 21 (2003). Usually a sentence within statutory

limits will not be deemed either excessive or cruel and unusual punishment.

United States v. Gillespie, 452 F.3d 1183, 1190 (10th Cir. 2006).

      Mr. Jenkins’ argument is foreclosed; this circuit and every other addressing

the ACCA’s sentencing requirements have upheld them as constitutional under

the proportionality principle of the Eighth Amendment. See, e.g., United States

v. Angelos, 433 F.3d 738, 750-53 (10th Cir. 2006); see also United States v.

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Nigg, 667 F.3d 929, 931, 938-39 (7th Cir. 2012), cert. denied, 132 S. Ct. 2704

(2012); United States v. Whaley, 552 F.3d 904, 907 (8th Cir. 2009); United States

v. Helm, 502 F.3d 366, 368-69 (5th Cir. 2007); United States v. Gamble, 388 F.3d

74, 77 (2nd Cir. 2004); United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir.

2000); United States v. Bonat, 106 F.3d 1472, 1478-79 (9th Cir. 1997); United

States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United States v. Warren, 973

F.2d 1304, 1311 (6th Cir. 1992); United States v. Gilliard, 847 F.2d 21, 27 (1st

Cir. 1988).

      The minimum sentence imposed by § 924(e)(1) does not take into account

the motive for possessing a gun. See Reynolds, 215 F.3d at 1214. This is

understandable: the purpose of the sentencing statute is to curb and incapacitate

armed, career criminals with a minimum of three prior violent felony or serious

drug offense convictions. See United States v. Orona, 724 F.3d 1297, 1309 (10th

Cir. 2013); see also Rummel v. Estelle, 445 U.S. 263, 285 (1980) (noting that

punishment for recidivism is a matter “largely within the discretion of the

punishing jurisdiction”). In this case, Mr. Jenkins does not dispute his four prior

convictions for serious drug offenses that subject him to the 15-year statutory

minimum. Although the district court noted that a lesser sentence may have been




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more appropriate, its remark does not render the sentence unconstitutional.

      AFFIRMED.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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