                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3968
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Brian Moore

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                    ____________

                             Submitted: March 10, 2014
                               Filed: April 30, 2014
                                  [Unpublished]
                                  ____________

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
                         ____________

PER CURIAM.

      Brian Moore was convicted after a jury trial of conspiracy to distribute and
possess with intent to distribute 50 grams or more of a mixture or substance
containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court,1 after finding that Moore had a qualifying felony drug conviction, sentenced
him to 240 months in accordance with 21 U.S.C. § 841(b)(1)(a). Moore appealed, and
we affirmed the conviction and held the sentence did not violate the Eighth
Amendment. United States v. Moore, 461 F. App’x 517 (8th Cir. 2011) (per curiam).
Moore petitioned the Supreme Court for certiorari. The Supreme Court subsequently
issued its decision in Dorsey v. United States, 132 S. Ct. 2321 (2012), and it granted
Moore’s certiorari petition and remanded the case to this court for further
consideration in light of Dorsey. Moore v. United States, 133 S. Ct. 63 (2012).
Dorsey held that “the new, more lenient mandatory minimum provisions” of the Fair
Sentencing Act “apply to offenders who committed a crack cocaine crime before
August 3, 2010, but were not sentenced until after August 3.” Dorsey, 132 S. Ct. at
2326. On remand, we again affirmed Moore’s conviction but remanded the case for
resentencing because Moore fit the profile described in Dorsey. United States v.
Moore, 484 F. App’x 86 (8th Cir. 2012) (per curiam). The district court resentenced
Moore to 120 months, the mandatory minimum sentence.

      Moore now appeals his sentence, arguing the imposition of the mandatory
minimum sentence violates the Eighth Amendment. We review de novo an Eighth
Amendment challenge to a sentence. United States v. Wiest, 596 F.3d 906, 911 (8th
Cir. 2010). The Eighth Amendment forbids “extreme sentences that are ‘grossly
disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(Kennedy, J., concurring in part and concurring in judgment) (quoting Solem v. Helm,
463 U.S. 277, 288 (1983)). Moore argues the 120-month term of imprisonment is
grossly disproportionate to the crime of which he was convicted and is cruel and
unusual because the district court cannot vary downward based on his diminished
mental capacity.




      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.

                                         -2-
       The constitutionality of a mandatory minimum sentence has been established
by circuit precedent. We have repeatedly held mandatory minimum penalties for drug
offenses do not violate the Eighth Amendment’s prohibition of cruel and unusual
punishments. See, e.g., United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010)
(explaining that circuit precedent effectively foreclosed defendant’s Eighth
Amendment argument that his mandatory minimum life sentence was grossly
disproportionate); United States v. Turner, 583 F.3d 1062, 1068 (8th Cir. 2009)
(holding a 120-month mandatory minimum sentence for conspiracy to manufacture
and aiding and abetting the manufacture of 500 grams or more of methamphetamine
did not violate the Eighth Amendment); United States v. Baker, 415 F.3d 880, 881-82
(8th Cir. 2005) (holding a mandatory minimum sentence of twenty years under 21
U.S.C. § 841(b) did not violate the Eighth Amendment). With the exception of a
capital sentence, the imposition of a mandatory sentence for an adult offender without
consideration of mitigating factors such as mental incapacity does not violate the
Eighth Amendment. United States v. Uphoff, 232 F.3d 624, 626 (8th Cir. 2000)
(citing Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991)). Moore’s case “is not the
rare case in which a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.” Ewing v. California, 538
U.S. 11, 30 (2003) (internal quotation marks omitted). We thus disagree with Moore
that the sentences imposed on his coconspirators are relevant to the Eighth
Amendment analysis. United States v. Prior, 107 F.3d 654, 660 (8th Cir. 1997).

       We conclude that the mandatory minimum sentence of 120 months is not
grossly disproportionate to Moore’s crime of conspiracy to distribute and possess with
intent to distribute cocaine base.

      Accordingly, we affirm.
                     ______________________________




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