                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2631
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Brian Atteberry,                         *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 9, 2006
                                  Filed: May 3, 2006
                                   ___________

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       In February 2004, federal and state agents conducted a warrant search of Brian
Atteberry’s residence. They seized a computer and floppy disks containing 300 to 600
images of child pornography and documents containing stories and letters written by
Atteberry about abducting little girls and holding them as sexual hostages. When
questioned after his arrest, Atteberry admitted having sexual contact with a four-year-
old girl two years earlier. He was charged with and pleaded guilty to one count of
distributing child pornography in violation of 18 U.S.C. § 2252(a)(1). Prior to his
May 2005 sentencing, Atteberry was convicted in state court and sentenced to eighty
years in prison for attempted sexual abuse, based upon his post-arrest admission, and
for possession of child pornography, based upon pornographic writings found during
the warrant search. The district court1 sentenced Atteberry to 120 months in prison
to be served consecutively to his undischarged state sentence. Atteberry appeals,
arguing that the district court erred in imposing a consecutive sentence and that his
sentence is unreasonable and violates the Eighth Amendment’s prohibition against
cruel and unusual punishment. We affirm.

       Section 5G1.3 of the Guidelines addresses whether a federal sentence should
be made concurrent with or consecutive to an undischarged prison term. Subsection
(a) prescribes when the federal sentence “shall be imposed to run consecutively.”
Subsection (b) prescribes when the federal sentence must be concurrent. Subsection
(c) provides that “[i]n any other case . . . the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or consecutively.”

       Atteberry first argues that the district court erred in imposing a consecutive
sentence because a concurrent sentence was mandated by U.S.S.G. § 5G1.3(b), which
applies if “a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense . . . and that was the basis for an increase in the offense
level for the instant offense.” This contention was not made in the district court and
therefore we review it for plain error. Atteberry concedes that his state court
conviction for attempted sexual abuse was not relevant conduct to his federal offense.
But he argues that his state court conviction for pornography possession was relevant
conduct because it was based, at least in part, on writings printed out from the
computer and floppy disks seized in the warrant search and essential to his federal
conviction. We need not consider the relevant conduct issue because, even if that part
of his state offense was relevant conduct, it was not the basis for an increase in the
offense level used to determine Atteberry's guidelines range sentence. He received
enhancements for images of prepubescent minors, pornography distribution, images


      1
       The HONORABLE WILLIAM R. WILSON, United States District Judge for
the Eastern District of Arkansas.

                                           -2-
portraying sadistic or masochistic conduct, use of a computer, and 300 or more
images. See U.S.S.G. §§ 2G2.2(b)(1), (2)(E), (3), (5), (6)(C). Thus, his offense level
“was increased because of the defendant's conduct in the commission of the federal
offense and not for his conduct in the state offenses.” United States v. Terry, 305 F.3d
818, 826 (8th Cir. 2002), citing United States v. Tisdale, 248 F.3d 964, 976-77 (10th
Cir. 2001). There was no plain error.

       Atteberry next argues that the district court abused its discretion under
§ 5G1.3(c) by imposing a consecutive rather than a concurrent federal sentence. The
now-advisory Guidelines give only the most general guidance to district courts in
exercising this discretion. See U.S.S.G. § 5G1.3, comment, (n.3). Thus, after Booker,
the principal issue for our review is whether a consecutive sentence was reasonable.
See United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006); United States v.
Meyers, 401 F.3d 959, 962 (8th Cir. 2005).

       When prison terms for multiple offenses are imposed at different times, the
governing statute encourages consecutive sentencing. See 18 U.S.C. § 3584(a);
United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001). The objective is “to
achieve a reasonable incremental punishment for the instant offense and avoid
unwarranted disparity.” U.S.S.G. § 5G1.3, comment, (n.3). Here, the district court
explained that Atteberry’s state and federal convictions were separate, that “he needs
something on the end of the state [sentence] for what he pled guilty to here,” and that
the total combined sentence was appropriate. Given the nature and severity of
Atteberry’s crimes, we agree and therefore conclude that the 120-month consecutive
sentence was not unreasonable.

      Finally, Atteberry argues that his sentence constitutes cruel and unusual
punishment that violates the Eighth Amendment. We disagree. “The Eighth
Amendment forbids only extreme sentences that are grossly disproportionate to the
crime.” United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) (quotations

                                          -3-
omitted). “A sentence within the statutory limits is generally not subject to [Eighth
Amendment] review.” United States v. Boone, 869 F.2d 1089, 1092-93 (8th Cir.),
cert. denied, 493 U.S. 822 (1989). Here, the sentence imposed was well within the
statutory limits and the appropriate guidelines range for Atteberry's federal offense.
The fact that the sentence was imposed to run consecutively to his undischarged
sentence for different state crimes does not make the federal sentence grossly
disproportionate for Eighth Amendment purposes. Cf. Neal v. Grammar, 975 F.2d
463, 464-65 (8th Cir. 1992).

      The judgment of the district court is affirmed.
                            ____________________




                                         -4-
