           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           June 12, 2008
                                     No. 07-51028
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

DONNA MICHELL FORBES,
Also Known as Donna M. Forbes, Also Known as Donna Michelle Forbes,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 6:06-CR-145-ALL




Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


       Donna Forbes appeals the mandatory life sentence imposed following her


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-51028

guilty plea to a single court of first-degree murder on a government reservation.
She raises constitutional challenges to her sentence. Although we usually re-
view such constitutional claims de novo, United States v. Romero-Cruz, 201 F.3d
374, 377 (5th Cir. 2000), we review them for plain error in this instance because
Forbes did not raise them in the district court, see United States v. Howard, 220
F.3d 645, 647 (5th Cir. 2000).
      Forbes asserts that her confinement to a mandatory life sentence is “cruel
and unusual punishment” in violation of the Eighth Amendment, because the
harshness of the sentence is grossly disproportionate to the gravity of her of-
fense. In determining whether a sentence is “grossly disproportionate,” we look
to Rummel v. Estelle, 445 U.S. 263 (1980), as a benchmark. United States v.
Gonzales, 121 F.3d 928, 943 (5th Cir. 1997). Measured against the Rummel
standard, Forbes’s mandatory life sentence for first-degree murder is not grossly
disproportionate. See Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996).
Moreover, Forbes’s inability to present mitigating evidence does not render her
sentence cruel and unusual. See United States v. Harmelin, 501 U.S. 957, 994-
96 (1991).
      Forbes argues that her mandatory life sentence violates the Equal Protec-
tion Clause because it causes her to be treated differently from defendants not
facing a mandatory life sentence and fails to serve a legitimate governmental
objective. The rational basis test applies to Forbes’s claim, because the statute
under which she was sentenced, 18 U.S.C. § 1111(b), neither classifies persons
by suspect classes nor classifies in such a way as to impair the exercise of a fun-
damental right. See Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998).
Forbes has failed to show that she has been treated differently from a similarly
situated group of defendants or that Congress’s prescription of a mandatory life
sentence for first-degree murder is not rationally related to a legitimate govern-
mental interest. See id.
      Forbes avers that her mandatory life sentence contravenes the Due Pro-

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                                  No. 07-51028

cess Clause because she was precluded from receiving an individualized sentence
that adequately considered her particular circumstances. The Constitution does
not guarantee individualized sentencing or provide for the presentation of miti-
gating evidence in noncapital cases. See Harmelin, 501 U.S. at 995. Thus, there
is no constitutional impediment to the district court’s imposing a mandatory sen-
tence without considering Forbes’s particular circumstances. See, e.g., United
States v. White, 869 F.2d 822, 825 (5th Cir. 1989).
      Forbes urges that her mandatory life sentence violates the Separation of
Powers doctrine because the prosecutor has the sole power to charge an offense
that carries a mandatory minimum sentence. Forbes thus asserts that the pow-
er of the Executive Branch is increased at the expense of the Judiciary. “The
scope of judicial discretion with respect to sentencing is subject to Congressional
control,” and Congress can constitutionally eliminate all discretion in sentencing
judges by establishing mandatory sentences. Mistretta v. United States, 488
U.S. 361, 364 (1989). Thus, to the extent that the decision to charge crimes car-
rying mandatory minimum sentences allows the Executive Branch to exercise
some control over a sentence, that control derives from legislative decisions that
are within Congress’s authority. Id.; Chapman v. United States, 500 U.S. 453,
467 (1991).
      The judgment is AFFIRMED. The government’s motion for summary af-
firmance is GRANTED. The Government’s alternative motion for an extension
of time to file its brief is DENIED as unnecessary.




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