                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 06-5095



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


AVERY SHANDEL JAMES,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Glen E. Conrad, District
Judge. (3:05-cr-00227)


Submitted:   April 16, 2008                   Decided:   May 6, 2008


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Keith M. Stroud, Sr., Charlotte, North Carolina, for Appellant.
Kevin Zolot, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Avery Shandel James was convicted by a jury of conspiracy

to commit bank robbery, aiding and abetting bank robbery, aiding

and abetting armed bank robbery, aiding and abetting the possession

and use of a firearm in connection with a crime of violence, aiding

and abetting the possession of a firearm by a felon, possession of

a firearm with an obliterated serial number, conspiracy to obstruct

justice   and    suborn    perjury,    and     obstruction   of    justice,   in

violation of 18 U.S.C. §§ 2; 371; 922(g)(1), (k); 924(c)(1)(a);

1503; 1622; 2113(a), (d) (2000).              The district court determined

that the statutory conditions set forth in 18 U.S.C. § 3559(c)

(2000) were satisfied, and sentenced James to a mandatory term of

life imprisonment.        Finding no error, we affirm.

           On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting there are no meritorious

grounds for appeal, but questioning whether James’s sentence of

life imprisonment under 18 U.S.C. § 3559(c) violates the Eighth

Amendment’s     prohibition    against   cruel     and   unusual   punishment.

James was notified of his right to file a pro se supplemental

brief, but did not do so, and the Government elected not to file a

responding brief.

           James contends the imposition of a life sentence pursuant

to § 3559(c) violates the Eighth Amendment in this case because it

does not take into account the circumstances of his childhood. The

Eighth Amendment “forbids . . . extreme sentences that are grossly

                                      - 2 -
disproportionate to the crime [committed].”                     Ewing v. California,

538 U.S. 11, 24 (2003) (plurality opinion) (internal quotation

marks omitted).       Three factors in determining proportionality are:

“‘(i) the gravity of the offense and the harshness of the penalty;

(ii)   the   sentences        imposed    on   other    criminals       in    the    same

jurisdiction; and (iii) the sentences imposed for commission of the

same crime in other jurisdictions.’”               Id. at 22 (quoting Solem v.

Helm, 463 U.S. 277, 292 (1983)).

             Under the first factor, it is clear that the gravity of

James’s    offenses    are     great.     The   jury       determined       that    James

conspired    with     three    other    individuals        to    commit     armed    bank

robbery.      Furthermore,       James    sought      to   impede     the    robbery’s

investigation by procuring witnesses to provide him a false alibi.

As to the second and third factors, James’s sentence is not

disproportionate in comparison with other sentences under the

Guidelines    or    sentences     imposed     by    states       within     the    Fourth

Circuit.     See, e.g., W. Va. Code Ann. § 61-11-18(c) (West 2008)

(mandating     life    imprisonment       for      defendant       with     two     prior

convictions    punishable       by     confinement).            Recidivism    statutes

“reflect[] a rational legislative judgment, entitled to deference,

that offenders who have committed serious or violent felonies and

who continue to commit felonies must be incapacitated.” Ewing, 538

U.S. at 30. Before his current offenses, James was twice convicted

of felonious breaking and entering as well as robbery with a



                                        - 3 -
dangerous weapon.      Therefore, considering all of these factors, we

conclude James’s sentence is not constitutionally disproportionate.

          In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Accordingly, we affirm the convictions and sentence. This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further review.     If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel   may   move     this   court   for   leave   to   withdraw   from

representation.     Counsel’s motion must state that a copy thereof

was served on the client.       We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid in the

decisional process.



                                                                 AFFIRMED




                                   - 4 -
