                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-15995                ELEVENTH CIRCUIT
                                                             JULY 8, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                D. C. Docket No. 08-00117-CR-ORL-19GJK

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DAMIAN JAMIL SMITH,

                                                         Defendant-Appellant.


                       ________________________

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

                               (July 8, 2010)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Damian Jamil Smith appeals his sentence of 504 months of imprisonment

for two counts of robbery, 18 U.S.C. §§ 2, 1951, and carrying a firearm during and

in connection with his two robbery crimes, id. § 924(c)(1). Smith raises three

challenges to his sentence: he is entitled to credit for the time he had spent in state

custody; he should have received concurrent instead of consecutive sentences for

his firearm crimes; and his sentences to consecutive terms of imprisonment are

contrary to the goals of the Sentencing Commission and constitute cruel and

unusual punishment in violation of the Eighth Amendment. We affirm.

      Smith and a codefendant were charged in a 29-count indictment for crimes

stemming from two crime sprees involving the carjacking, abduction, and

robberies of five victims. Smith was charged with 26 crimes, and he entered an

agreement to plead guilty to four crimes: two counts of robbery, id. §§ 2, 1951, and

two firearm offenses, id. § 924(c)(1). The plea agreement provided that Smith

waived his right to appeal or challenge collaterally his sentence, subject to three

exceptions: the sentence exceeded the “applicable guidelines range as determined

by the Court”; the sentence exceeded the maximum statutory penalty; or the

sentence violated the Eighth Amendment. The plea agreement stated that Smith

faced a possible sentence of life imprisonment for his firearm offenses and the

sentences imposed for those offenses would be served consecutively.



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      At a change of plea hearing before a magistrate judge, Smith verified that he

had read and signed the plea agreement. Smith acknowledged that he faced

possible sentences of life imprisonment for his firearm convictions and he twice

acknowledged that the sentences imposed for his firearm convictions would be

served consecutively. The magistrate judge explained to Smith the consequences

of waiving the right to appeal his sentence, and Smith stated that he agreed, subject

to the three exceptions, to waive the right to appeal his sentence. The magistrate

judge also explained to Smith that any sentence he received for his federal crimes

could run consecutive to another sentence for robbery that had been imposed by a

state court and could result in Smith “spend[ing] [his] life in prison,” and Smith

stated that he understood his potential sentence. The district court later accepted

Smith’s pleas of guilty.

      A presentence investigation report listed a total offense level of 33. With a

criminal history of I, the report provided a sentencing range between 135 and 168

months of imprisonment for each of Smith’s robbery crimes, a consecutive

sentence of 84 months of imprisonment for one firearm offense, and a second

consecutive sentence of 300 months of imprisonment for Smith’s second firearm

offense. Smith faced a maximum sentence of 20 years of imprisonment for his

robbery crimes, and minimum mandatory sentences of 7 years for one firearm



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offense and 25 years for his second firearm offense.

      Smith requested a sentence of 25 years of imprisonment to run consecutive

to a ten-year sentence for robbery that had been imposed by a state court. Smith

argued that the mandatory minimum sentences for his firearm offenses were

contrary to the goals of the Sentencing Commission and violated the introductory

paragraph of section 924(c). Smith argued that his conviction for robbery in a state

court was related to his federal offenses, and he requested that his federal sentence

run concurrent with his state sentence and he receive credit for the time served on

his state sentence.

      At the sentencing hearing, the district court discussed the facts relevant to

each sentencing factor. 18 U.S.C. § 3553. The district court imposed 120-month

sentences for Smith’s robbery crimes and ordered that those sentences run

concurrent with each other and with Smith’s sentence in state court. The district

court also sentenced Smith to 84 months and 300 months of imprisonment for his

firearms crimes and ordered that those sentences run consecutive to each other and

to Smith’s 120-month sentences. The district court informed Smith of his right to

appeal and reminded Smith that he had “limited [his] right to appeal in [his] plea

agreement.” Smith acknowledged that there were limitations on his right to appeal.

      Smith argues that he is entitled to credit for the time served on his state



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sentence, he should have received concurrent sentences for his firearms offenses,

and the imposition of consecutive sentences is contrary to the goals of the

Sentencing Commission, but these arguments are barred by the appeal waiver in

Smith’s plea agreement. The magistrate judge explained the waiver to Smith

during the change of plea hearing, and Smith acknowledged at that hearing and

after sentencing that he had agreed to waive his right to appeal his sentence. See

United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). Smith

knowingly and voluntarily waived the right to appeal these aspects of his sentence.

      Smith’s appeal waiver does not bar his argument, which he raises for the

first time on appeal, that his sentence violates the Eighth Amendment, but that

argument nevertheless fails. The district court departed downward from the

advisory guideline range and sentenced Smith to 120 months of imprisonment for

his robbery offenses. Smith’s sentences of 84 months and 120 months of

imprisonment for his firearms offenses were mandatory, see United States v.

Castaing-Sosa, 530 F.3d 1358, 1361–62 (11th Cir. 2008), and we previously have

upheld a mandatory minimum sentence against an Eighth Amendment challenge,

United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000). Smith

acknowledged at his change of plea hearing that he had to serve consecutively the

sentences for his firearms offenses and he faced the possibility of “life in prison.”



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

nor cruel and unusual under the Eighth Amendment,’” United States v. Johnson,

451 F.3d 1239, 1243 (11th Cir. 2006) (quoting United States v. Moriarty, 429 F.3d

1012, 1024 (11th Cir. 2005)), and Smith cites no caselaw that his sentence of 504

months of imprisonment is grossly disproportionate to his crimes. The district

court did not plainly err in sentencing Smith.

      Smith’s convictions and sentences are AFFIRMED.




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