                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-12066                ELEVENTH CIRCUIT
                                                           DECEMBER 22, 2008
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                D. C. Docket No. 07-00186-CR-ORL-22-DAB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ANDREW NESTON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (December 22, 2008)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Andrew Neston appeals his 240-month sentence imposed for
receipt and distribution of material containing images of child pornography that

had been mailed, shipped, and transported in interstate and foreign commerce, in

violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1). On appeal, Neston argues that

the Sentencing Guidelines violate the Eighth Amendment because they lack a

rational basis and are cruel and unusual.

      We review de novo whether a provision of the Sentencing Guidelines is

constitutional. United States v. Pressley, 345 F.3d 1205, 1209 (11th Cir. 2003).

However, when a defendant fails to object to an alleged error before the district

court, we review the argument only for plain error. United States v. Johnson, 451

F.3d 1239, 1242 (11th Cir. 2006). “ We have discretion to correct an error under

the plain error standard where (1) an error occurred, (2) the error was plain, (3) the

error affected substantial rights, and (4) the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.” United States v. Duncan,

400 F.3d 1297, 1301 (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. The amendment “contains a narrow proportionality principle

that applies to noncapital sentences.” Johnson, 451 F.3d at 1242 (quotation

omitted). “Outside the context of capital punishment, there are few successful



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challenges to the proportionality of sentences.” Id. “This is so because we accord

substantial deference to Congress, as it possesses broad authority to determine the

types and limits of punishments for crimes.” Id. at 1242-43. (quotation omitted).

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

sentence is “grossly disproportionate to the offense committed.” Id. at 1243.

(quotation omitted). If the sentence is grossly disproportionate, “the court must

then consider the sentences imposed on others convicted in the same jurisdiction

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

jurisdictions.” Id. (quotation omitted). In general, a sentence imposed within the

statutory limits is neither cruel nor unusual under the Eighth Amendment. Id.

      Because Neston failed to meet his burden of making a threshold showing

that his sentence was grossly disproportionate to his offense and because his

sentence was within the statutory limits, we hold that the district court did not

plainly err when it sentenced Neston within the statutory guidelines, which were

neither cruel nor unusual under the Eighth Amendment.

      AFFIRMED.




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