              Case: 12-14912    Date Filed: 10/01/2013   Page: 1 of 8


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14912
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 1:11-cr-00112-WBH-CCH-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

MARK TWAIN HEATON, III,

                                                             Defendant-Appellant.

                          ________________________

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

                                (October 1, 2013)

Before DUBINA, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Appellant Mark Twain Heaton, III, appeals the district court’s imposition of

his 180-month total sentence for distributing and possessing child pornography, in
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violation of 18 U.S.C. § 2252(a)(2), (4), as cruel and unusual punishment and thus

a violation of the Eighth Amendment as applied to him because the categorical

proscription against considering Heaton’s mitigating circumstances of past abuse

prohibited him from receiving a sentence less than the mandatory minimum.

      At age 38, Heaton was discovered by law enforcement receiving,

downloading, and redistributing thousands of images of child pornography, some

of which depicted very young children and sadistic or masochistic acts. He pled

guilty to one count of possessing and one count of distributing child pornography.

From age 9 to 14, Heaton had been subject to regular, sexual, sadistic, and

masochistic abuse by a male family friend. As an adult, Heaton was diagnosed

with considerable anxiety and partial Post Traumatic Stress Disorder (“PTSD”),

which developed as a result of his childhood abuse. Heaton’s psychological

evaluation indicated that, while he met the criteria for pedophilia, his interest in

viewing child pornography that depicted young children and sadistic and

masochistic acts was likely an effort to understand his own memories of abuse.

Additionally, when Heaton was 26, he was convicted of child molestation. This

prior conviction raised Heaton’s statutory mandatory minimum sentence from 5 to

15 years under 18 U.S.C. § 2252(b)(1). Heaton denies that the molestation ever

occurred.




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      On appeal, Heaton argues that the 15-year mandatory minimum term of

imprisonment violated the Eighth Amendment as applied to his case because the

district court’s adherence to the mandatory minimum required that the court ignore

the extensive sexual abuse and torture that Heaton endured as a child, and the

PTSD that Heaton developed as a result of this trauma. Heaton argues that courts

must graduate and proportion the punishment for a crime to both the offender and

the offense, thus making his personal circumstances a required consideration. He

claims that his sentence was grossly disproportionate to the offense, especially

when taking into account his abuse and reduced mental capacity.

      We review de novo the legality of a sentence under the Eighth Amendment.

United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005).

      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. “In non-capital cases, the Eighth Amendment encompasses, at

most, only a narrow proportionality principle.” United States v. Brant, 62 F.3d

367, 368 (11th Cir. 1995). To determine whether an Eighth Amendment violation

has occurred, we first must make “a threshold determination that the sentence

imposed is grossly disproportionate to the offense.” Id. Only after determining

that the sentence is grossly disproportionate to the offense, do we address the

remaining “Solem factors”—the sentences imposed on other criminals in the same


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jurisdiction, and the sentences imposed for commission of the same crime in other

jurisdictions. Id.; Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3011, (1983).

The burden is on the defendant to make the threshold showing that his sentence is

grossly disproportionate to the offense committed. United States v. Johnson, 451

F.3d 1239, 1243 (11th Cir. 2006).

      “Outside the context of capital punishment, successful challenges to the

proportionality of sentences are exceedingly rare,” largely because we accord

substantial deference to Congress’s broad authority in determining the types and

limits of punishments for crimes. United States v. Raad, 406 F.3d 1322, 1323

(11th Cir. 2005) (alterations and 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.” Johnson, 451 F.3d at 1243 (holding that a

140-year sentence for producing and distributing child pornography was not cruel

and unusual because the sentence was within the statutory limits, and, thus, was

not disproportionate to the offense) (internal quotation marks omitted).

      We have never found a term of imprisonment to violate the Eighth

Amendment, and “outside the special category of juvenile offenders[,] the

Supreme Court has found only one.” United States v. Farley, 607 F.3d 1294, 1343

(11th Cir. 2010). The Supreme Court’s precedent clearly establishes “that the

mandatory nature of a non-capital penalty is irrelevant for proportionality


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purposes.” Id.; see Miller v. Alabama, 567 U.S. __, __, 132 S.Ct. 2455, 2469-70,

183 L.Ed.2d 407 (2012) (holding narrowly that mandatory life sentences without

parole were prohibited for juvenile offenders). In Farley, we explained that the

one case in which the Supreme Court held that a non-capital sentence imposed on

an adult violated the Eighth Amendment involved a sentence of life imprisonment

without parole imposed on a petty criminal who wrote a bad check for $100, and

whose prior crimes were relatively minor and nonviolent. Farley, 607 F.3d at

1337 (citing Solem, 463 U.S. at 280, 103 S.Ct. at 3005). We also noted that, not

only were all of the crimes committed in Solem nonviolent, none were crimes

against a person. Id. at 1338.

      By contrast, Harmelin v. Michigan, 501 U.S. 957, 961, 111 S.Ct. 2680, 2684

(1991), involved a defendant who was convicted of possessing 672 grams of

cocaine and sentenced to life without parole. The Supreme Court explained that

the crime in Harmelin was far more serious than the relatively minor, nonviolent,

passive crime in Solem. Id. at 1001-02, 111 S.Ct. at 2705-06. The Court explained

that the “[p]ossession, use, and distribution” of illegal drugs threatened grave harm

to society, not only because of the pernicious effects of drug use on the users, but

also because the sale of drugs often leads to additional, violent crimes. Id. at

1002–03, 111 S.Ct. at 2705-06. Because of these ill effects, state legislatures are

permitted to decide that the threat posed to the individual and society by the


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possession of such a large amount of cocaine—“in terms of violence, crime, and

social displacement—is momentous enough to warrant the deterrence and

retribution of a life sentence without parole.” Id. at 1003, 111 S.Ct. at 2706.

Furthermore, the Supreme Court held that imposing a mandatory sentence of such

severity without any consideration of mitigating factors, such as the defendant’s

lack of prior felony convictions, may be cruel, but was not unusual. Id. at 994, 111

S.Ct. at 2701.

      Based on our review of the record, we conclude that the district court did not

err in sentencing Heaton to 15 years’ imprisonment. Heaton’s case “is not one of

those extraordinary cases, one of those exceedingly rare situations, in which the

specified term of imprisonment violates the Eighth Amendment.” See Farley, 607

F.3d at 1344. Like in Harmelin and unlike in Solem, Heaton’s crime was of a

socially destructive nature, not a “relatively minor, nonviolent crime.” See

Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2705-06; Solem, 463 U.S. at 281, 303,

103 S.Ct. at 3005, 3016-17. Like the drug crime in Harmelin, Heaton’s

acquisition, possession, and distribution of thousands of images—depicting adults

conducting lewd and cruel acts on very young children—served to support a

socially destructive industry that is built on torturing and traumatizing young

children. See New York v. Ferber, 458 U.S. 747, 757-58 & 758 n.9, 102 S.Ct.

3348, 3355 & n.9, 73 L.Ed.2d 1113 (1982) (agreeing with a New York legislative


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finding that “the use of children as subjects of pornographic materials is harmful to

the physiological, emotional,and mental health of the child” and to children as a

whole and emphasizing that preventing such harm is “a government objective of

surpassing importance”).

      Moreover, Heaton’s prior offense of child molestation, which was

responsible for increasing his mandatory minimum sentence from 5 to 15 years,

was a crime against a person, specifically, a child, and was violent and predatory in

nature. Unlike in Solem, Harmelin, and Miller, where defendants were sentenced

to life without parole, the harshest sentence apart from the death penalty, Heaton

received only 15 years. See Miller, 567 U.S. at __, 132 S.Ct. at 2469-70;

Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2705-06; Solem, 463 U.S. at 281, 303,

103 S.Ct. at 3005, 3016-17. Further, unlike the defendant in Miller, Heaton was an

adult male. Because Heaton was not a juvenile and received a more lenient

sentence than life, Miller’s narrow holding does not apply here. See Miller, 567

U.S. at __, 132 S.Ct. at 2469-70.

      According to our precedent and that of the Supreme Court, Heaton’s

sentence was not unconstitutional. The receipt of a 15-year sentence for the

offense committed, given Heaton’s past conviction, does not meet the rigorous

standard required to find a term of imprisonment, imposed on an adult, so grossly

disproportionate as to be cruel and unusual. See Farley, 607 F.3d at 1343;


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Johnson, 451 F.3d at 1243. Based on the above analysis, we hold that Heaton has

failed to make a threshold showing that imposing his sentence at the statutory

minimum violated the Eighth Amendment. Accordingly, we affirm his sentence.

      AFFIRMED.




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