                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                  SEPTEMBER 9, 2010
                                       No. 10-10628                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                          D.C. Docket No. 5:08-cr-00013-WTH-GRJ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

MICHAEL REPLOGLE,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                     (September 9, 2010)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Michael Replogle appeals his 135-month sentence imposed after pleading

guilty to receipt and distribution of child pornography, in violation of 18 U.S.C. §
2252(a)(2)(B) and (b)(1). On appeal, Replogle argues that his sentence, which

was at the bottom of the guideline range, violates the Eighth Amendment to the

United States Constitution; that he received ineffective assistance of counsel at

sentencing; and that the guidelines applicable to his offense are unduly harsh and

his sentence is therefore unreasonable. After review, we hold that Replogle’s

sentence does not plainly violate the Eighth Amendment and that his remaining

claims are barred by his sentence appeal waiver. Accordingly, we affirm.

                                         I.

      In late 2002, Immigrations and Customs Enforcement agents interviewed an

individual in California in connection with a child pornography investigation.

After admitting that he distributed child pornography, he provided agents written

consent to search his email account. This search showed that he had sent a

number images of child pornography to various America Online subscribers, one

of whom turned out to be Michael Replogle.

      For reasons that are unknown, agents did not pursue Replogle at that time.

Nevertheless, some five years later, Replogle was contacted at his home in Florida

by a Lake County Sheriff’s Office detective. During this interview, Replogle

admitted that he had previously traded child pornography on the Internet, but

stated that he had not done so for some time. Replogle gave written consent to


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search his computer. The detective found numerous images of young children

both clothed and naked, and engaged in various sex acts and poses, which

Replogle said he thought had been deleted. In a second interview with detectives,

Replogle again admitted trading child pornography on the Internet and saving the

images to his computer. After being shown some of these images, he admitted that

many of the children were under ten years old and that all were under the age of

eighteen. Agents then conducted a forensic examination of Replogle’s hard drive,

which revealed 228 images and one movie depicting child pornography. Five of

the images portrayed sadistic or masochistic conduct and many portrayed

prepubescent minors. Agents also recovered 111 emails dated between March and

June of 2005 with attached images of child pornography, of which eleven involved

children less than twelve years old and one portrayed sadistic or masochistic

conduct.

      Replogle was indicted in the Middle District of Florida on one count of

knowingly receiving and distributing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2)(B) and (b)(1), and one count of knowingly possessing child

pornography that had been transported in interstate commerce, in violation of 18

U.S.C. § 2252A(a)(5)(B) and (b)(2). He pleaded guilty to the first count pursuant

to a written plea agreement, and the government agreed to dismiss the second


                                         3
count. Under the plea agreement, Replogle expressly waived his right to appeal or

collaterally attack his sentence except in four limited circumstances: his sentence

exceeds either the guideline range determined by the district court or the statutory

maximum, violates the Eighth Amendment, or the government exercises its right

to appeal.

       The presentence report (“PSR”) prepared by the U.S. Probation Office

determined Replogle’s base offense level was 22 under U.S.S.G. § 2G2.2(a)(2).

The PSR then recommended a total increase of fourteen levels because the

material had been distributed, involved prepubescent minors, and portrayed

sadistic or masochistic conduct; a computer had been used to transmit and view

the material over the Internet; and at least 300 but less than 600 images were

involved.1 After a three-level reduction for acceptance of responsibility,

Replogle’s total offense level was 33. With a Criminal History Category of I,

Replogle’s guideline range was 135 to 168 months.

       Replogle did not object to the guideline calculations, but argued that he

should be sentenced to the mandatory minimum of five years based on the 18

U.S.C. § 3553(a) factors. In particular, he argued that the guidelines over-



       1
         Replogle was found to possess a total of 303 images. This included the 228 images
recovered from Replogle’s computer and one movie, which is deemed to equal 75 images under
the guidelines.

                                             4
represented the seriousness of his offense because only a small fraction of the

images involved sadistic or masochistic conduct, and because he exceeded the

300-image threshold by just three images, and then only because the guidelines

arbitrarily assign a 75-image equivalency to a single video. He also pointed to

other factors the district court should consider, including his cooperation with

authorities, prior military service, and lack of a criminal record; that he had

already lost his job and his home as a result of his conduct; and that he had not

sent or received any images in the two years before his arrest. Ultimately, the

district court adopted the PSR as the findings of the court and sentenced Replogle

at the bottom of his guideline range. Replogle now appeals his sentence.2

                                                II.

       Replogle contends that his sentence violates the Eighth Amendment. This

argument was not raised in the district court, therefore we review Replogle’s

sentence only for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th

Cir. 2005). “Plain error occurs where (1) there is an error; (2) that is plain or

obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial



       2
          Although Replogle did not initially appeal his sentence, he filed a motion under 28
U.S.C. § 2255 asserting that his attorney provided ineffective assistance for a number of reasons,
including that he did not timely file an appeal as Replogle instructed. The district court granted
Replogle’s motion to vacate and reimposed the 135-month sentence, thus enabling Replogle to
file a timely notice of appeal.

                                                5
and not harmless; and (4) that seriously affects the fairness, integrity, or public

reputation of the judicial proceedings.” Id. (quotations omitted).

       The Eighth Amendment provides that “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. Amend. VIII. “The amendment ‘contains a narrow

proportionality principle that applies to noncapital sentences.’” United States v.

Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (quoting Ewing v. California, 538

U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003)) (internal quotation marks omitted).

“‘In general, a sentence within the limits imposed by statute is neither excessive

nor cruel and unusual under the Eighth Amendment.’” Id. at 1243 (quoting United

States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)). “This is so because we

accord substantial deference to Congress, as it possesses broad authority to

determine the types and limits of punishments for crimes.” Raad, 406 F.3d at

1323 (quotations omitted). For that reason, the Supreme Court has made it clear

that, “‘[o]utside the context of capital punishment, successful challenges to the

proportionality of particular sentences [will be] exceedingly rare.’” Solem v.

Helm, 463 U.S. 277, 289, 103 S. Ct. 3001, 3009 (1983) (quoting Rummel v.

Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 1138 (1980) (alterations and emphasis

in original)).


                                           6
       In evaluating an Eighth Amendment challenge to a noncapital sentence, “a

reviewing court must make a threshold determination that the sentence imposed is

grossly disproportionate to the offense committed.” United States v. Reynolds,

215 F.3d 1210, 1214 (11th Cir. 2000). The defendant bears the burden of making

this showing. Johnson, 451 F.3d at 1243. “If the sentence is grossly

disproportionate, ‘the court must then consider the sentences imposed on others

convicted in the same jurisdiction and the sentences imposed for commission of

the same crime in other jurisdictions.’” Id. (quoting Raad, 406 F.3d at 1324).

       Replogle has not shown that his sentence plainly violates the Eighth

Amendment. Replogle’s 135-month sentence, at the bottom of his guideline

range, is far below the 20-year statutory maximum for the offense. We have

frequently recognized that a sentence within the statutory limits generally does not

violate the Eighth Amendment, and that a defendant whose sentence falls below

the statutory maximum cannot make the threshold showing of disproportionality.

See, e.g., id.; Raad, 406 F.3d at 1324 & n.4. In view of this precedent and having

considered the record in this case, we cannot say that Replogle’s sentence was

“grossly disproportionate to the offense committed,” much less that the district

court committed plain error by imposing the sentence it did.3 Replogle’s Eighth


       3
        Replogle points to a number of factors in this case that might have supported a lesser
sentence, including his cooperation with investigators (for which he already received credit in the

                                                 7
Amendment challenge therefore fails.4

                                              III.

       Replogle argues that he received ineffective assistance of counsel at

sentencing. He also contends that the sentencing guidelines applicable to his

offense are unduly harsh, and thus, his within-guidelines sentence is substantively

unreasonable. As stated above, however, Replogle’s plea agreement contained a

sentence appeal waiver. Therefore we must first determine whether this waiver

forecloses a challenge to his sentence on these grounds.

           The validity of a sentence appeal waiver is a question of law we review de

novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). “A

sentence appeal waiver must be made knowingly and voluntarily.” United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce a sentence

appeal waiver “if the government shows either that: (1) the district court

specifically questioned the defendant about the waiver; or (2) the record makes

clear that the defendant otherwise understood the full significance of the waiver.”


form of a reduction for acceptance of responsibility), that he apparently ceased downloading or
trading child pornography, his military service and stable home life, and that he only marginally
exceeded the 300-image threshold, which led to an additional increase in his offense level. These
factors are properly addressed to the sentencing court’s discretion in crafting a reasonable
sentence. They do not, however, render his sentence a plain violation of the Eighth Amendment.
       4
        Because we conclude that Replogle has not made a threshold showing of
disproportionality, we need not consider the sentences imposed on others. Raad, 406 F.3d at
1324 n.4.

                                               8
Id.; see also Bushert, 997 F.2d at 1351.

      The language of the sentence appeal waiver in Replogle’s plea agreement is

clear and unambiguous. During the plea colloquy, the district court specifically

questioned Replogle about this provision. The district court explained that, with

the exception of the four circumstances set forth in the plea agreement, Replogle

would forever waive any right to appeal or collaterally attack his sentence.

Replogle confirmed his understanding of the sentence appeal waiver and stated

that he had specifically discussed it with his attorney. On this record, we conclude

that Replogle’s sentence appeal waiver is valid and enforceable. See Bushert, 997

F.2d at 1351.

      In his plea agreement, Replogle waived his right to appeal or collaterally

attack his sentence except where his sentence (1) exceeds the guidelines range

calculated by the district court, (2) exceeds the statutory maximum, (3) violates the

Eighth Amendment, or (4) where the government exercises its right to appeal.

Replogle’s ineffective assistance claim and his challenge to the substantive

reasonableness of his sentence do not fall within any of these exceptions.

Replogle is therefore precluded from challenging his sentence on these grounds.

      AFFIRMED.




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