     Case: 12-41230      Document: 00512413806         Page: 1    Date Filed: 10/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 12-41230
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                October 18, 2013
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk
v.

EDUARDO CARREON-IBARRA, a.k.a. Negro

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:08-CR-244-19


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       In 2008, Eduardo Carreon-Ibarra (“Carreon-Ibarra”) pled guilty to two
counts of a superseding indictment, which charged him with traveling in
foreign commerce and using a facility in interstate and foreign commerce with
the intent to commit a crime of violence to further the distribution of controlled
substances in violation of 18 U.S.C. §§ 1952(a)(2), (a)(3)(B) (count 24), and
possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C.
§ 924 (c)(1)(A)(i), § 924(c)(1)(B)(ii), and §924(c)(1)(C)(i) and (ii) (count 26). The


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-41230
district court sentenced him to 20 years imprisonment on count 24 and a 40-
year consecutive term of imprisonment on count 26. Carreon-Ibarra appealed
on the grounds that his guilty plea to count 26 was not knowing and voluntary.
This court agreed and remanded the case to allow Carreon-Ibarra to plead
anew as to count 26.    United States v. Carreon-Ibarra, 673 F.3d 358, 362-67
(5th Cir. 2012).
      On remand, Carreon-Ibarra entered a cold plea to possession of a generic
firearm as alleged in count 26. According to the oral factual basis for the plea,
Carreon-Ibarra, a member of the Zetas, the enforcement arm of the Gulf Cartel,
a.k.a. “La Compañía,” the Mexican drug-trafficking and money-laundering
organization, traveled to Laredo, Texas, where he and a juvenile co-conspirator
planned to assassinate a member of the Sinaloa Cartel, a.k.a. “Los Chapos,” a
rival Mexican drug cartel, at a restaurant.       Before the intended murder,
officers from the Laredo Police Department arrested Carreon-Ibarra and the
co-conspirator in Room 603 of the El Cortez Motel. The search of Room 603
turned up a .40 caliber Glock under the bed mattress and a 9mm Smith &
Wesson in the water tank of the toilet. The authorities also found a fully
automatic AR-15 .223 caliber machine gun with an obliterated serial number
and a semi-automatic MAK-90 7.62x39mm rifle under the mattress in Room
602. Although Carreon-Ibarra had the keys to both rooms in his possession
when he was arrested, he denied intentionally possessing the machine gun in
Room 602, and the district court did not find that he possessed the machine
gun. Rather, the district court found that Carreon-Ibarra possessed at least
one of the pistols seized from Room 603 in furtherance of a crime of violence.
      At re-sentencing, the district court acknowledged that the offense to
which Carreon-Ibarra had pled guilty carries a five-year consecutive
mandatory minimum sentence, but the court imposed a 25-year consecutive
term. Carreon-Ibarra objected through counsel and now appeals solely on
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                                   No. 12-41230
Eighth   Amendment      grounds,    arguing    that   his   sentence    is   grossly
disproportionate to the offense.
                                        I.
      Because Carreon-Ibarra adequately preserved his Eighth Amendment
challenge, the court reviews this constitutional claim de novo. United States
v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). The Eighth Amendment
prohibits a sentence that is grossly disproportionate to the severity of the crime
for which it is imposed. Solem v. Helm, 463 U.S. 277, 288-90, 103 S. Ct. 3001,
3008-10 (1983); United States v. Gonzalez, 121 F.3d 928, 942 (5th Cir. 1997),
abrogated on other grounds by United States v. O’Brien, 560 U.S. 218, 130 S. Ct.
2169 (2010). When evaluating an Eighth Amendment proportionality
challenge, the court makes a threshold comparison between the gravity of the
charged offense and the severity of the sentence.           McGruder v. Puckett,
954 F.2d 313, 315-16 (5th Cir. 1992). Only if the appellate court infers that
the sentence is grossly disproportionate to the offense will it then compare the
sentence received against the sentences for similar crimes in the same
jurisdiction and sentences for the same crime in other jurisdictions. Id. at 316.
The scope of review for proportionality challenges is narrow, United States v.
Thomas, 627 F.3d 146, 160 (5th Cir. 2010), and the success of such challenges
rare. United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008).
      The Supreme Court has held that a sentence of imprisonment for life
without parole for the defendant’s seventh nonviolent felony—the crime of
passing a worthless check—violated the Eighth Amendment. Solem, 463 U.S.
at 284-303. In other cases, the Court has upheld a sentence under state law to
life without parole for possession of more than 650 grams of cocaine, Harmelin
v. Michigan, 501 U.S. 957, 990-96, 111 S. Ct. 2680, 2699-2702 (1991), a
sentence of 25 years to life for the theft of a few golf clubs under California’s
three-strikes law, Ewing v. California, 538 U.S. 11, 14-30, 123 S. Ct. 1179,
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1182-99 (2003), and a sentence of life with the possibility of parole for a
defendant’s third nonviolent felony—the crime of obtaining money by false
pretenses, Rummel v. Estelle, 445 U.S. 263, 264-85, 100 S. Ct. 1133, 1134-45
(1980). To determine whether a sentence is “grossly disproportionate,” this
court looks to Rummel as a benchmark. Gonzales, 121 F.3d at 943.
        Here, the gravity of Carreon-Ibarra’s offense is substantially greater
than were the crimes punished in Rummel. Carreon-Ibarra operated on behalf
of the infamous Zetas, and planned to execute a member of another Mexican
drug cartel in a public forum in the United States using a firearm that posed
a serious threat of causing collateral damage to innocent bystanders. The
gravity of the convictions for fraud and forgery that formed the basis of
Rummel’s sentence pale in comparison to the violent nature of count 26.
Moreover, the severity of Carreon-Ibarra’s punishment is not excessive, as
evidenced by a comparison to the Rummel benchmark. In Rummel, the Court
affirmed a life sentence against a non-violent offender pursuant to a recidivist
statute that mandated a sentence of life imprisonment for any defendant
convicted of three felonies. Rummel, 445 U.S. at 285; see also McGruder,
954 F.2d at 317 (upholding life sentence without possibility of parole under a
habitual offender statute). By contrast, Carreon-Ibarra’s statutory sentence
imposes a 25-year term for possessing a generic firearm in furtherance of a
crime of violence. His total sentence is 45 years imprisonment. As the gravity
of the firearm offense is far greater, and the penalty less severe, than was the
life sentence upheld against an Eighth Amendment challenge in Rummel, our
inquiry must conclude. See Gonzalez, 121 F.3d at 944; McGruder, 954 F.2d at
317.
                                      II.
        For the foregoing reasons, we AFFIRM the sentence on count 26.


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