                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0286n.06

                                         Case No. 18-5963

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jun 03, 2019
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                         )
                                                   )
          Plaintiff-Appellee,                      )
                                                   )          ON APPEAL FROM THE UNITED
 v.                                                )          STATES DISTRICT COURT FOR
                                                   )          THE WESTERN DISTRICT OF
 DONALD SCOTT,                                     )          TENNESSEE
                                                   )
          Defendant-Appellant.                     )                       OPINION


BEFORE: COOK, NALBANDIAN, and MURPHY, Circuit Judges.

       NALBANDIAN, Circuit Judge. Donald Scott appeals his 15-year sentence for unlawfully

possessing a firearm under 18 U.S.C. § 922(g)(1). He argues that the Armed Career Criminal Act’s

mandatory 15-year minimum violates the Eighth Amendment. We affirm.

       The Memphis Police Department received a call late one night in February 2017 about a

domestic assault. They responded to the scene and spoke to Lashawn Kreighbaum. Kreighbaum

claimed that Scott, the father of her children, assaulted her. She had several injuries on the side of

her face. The officers completed a report and left. Later that evening they received a second call.

Scott apparently returned to the residence, so the officers went back and saw him standing on the

front porch. They arrested him for domestic assault, and during the pat down found an unloaded

firearm. Scott told the officers he returned to collect some of his things, including the gun.
No. 18-5963, United States v. Scott


        But Scott had several prior felony convictions, making his possession of a firearm unlawful

under 18 U.S.C. § 922(g)(1). So the Government charged him with being a felon in possession.

And he pleaded guilty to that charge.

        Scott’s prior convictions (including multiple acts of aggravated robbery) also meant that

he qualified as an armed career criminal under 18 U.S.C. § 924(e). Section 924(e) imposes a

mandatory minimum sentence of 180 months. The Guidelines range went as high as 188 months,

but the United States asked for a sentence in line with the mandatory minimum. The district court

accepted that recommendation and sentenced Scott to 180 months in prison.

        Scott argues that § 924(e), at least applied to him, violates the Eighth Amendment’s ban

on cruel and unusual punishment. While in most cases district courts must consider a range of

factors to decide whether to vary upwards or downwards in selecting sentence, § 924(e) imposes

a minimum sentence the district court cannot bypass. For Scott, that meant the district court could

not consider mitigating evidence that weighed against a 15-year sentence, which (he claims)

resulted in a sentence “so disproportionate to the underlying facts of the case that it constitutes

cruel and unusual punishment.” Appellant Br. at 8.

        Scott did not raise this constitutional objection below, so we are limited to reviewing it for

plain error. United States v. Watkins, 509 F.3d 277, 281–82 (6th Cir. 2007). But that standard

amounts to little here because we stop at the first step. There is no error, plain or otherwise, because

Scott’s sentence does not violate the Eighth Amendment. See United States v. Moore, 643 F.3d

451, 454 (6th Cir. 2011).

        The Eighth Amendment only prohibits “extreme sentences that are grossly

disproportionate to the crime.” United States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010)

(quoting United States v. Hill, 30 F.3d 48, 50 (6th Cir. 1994)) (internal quotation marks and




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No. 18-5963, United States v. Scott


alterations omitted). While many “[s]evere, mandatory penalties may be cruel, [ ] they are not

unusual in the constitutional sense.” Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991). And

when the legislature has enacted a mandatory minimum, the Eighth Amendment “does [not]

require consideration of a defendant’s mitigating factors.” Moore, 643 F.3d at 454 (citing

Harmelin, 501 U.S. at 995). “Rather, only an extreme disparity between crime and sentence” will

run afoul of the constitution. Id. (quoting United States v. Layne, 324 F.3d 464, 474 (6th Cir. 2003))

(internal quotation marks omitted).

       Scott’s only argument that his sentence violates the Eighth Amendment is that the

mandatory minimum prevented the district court from considering mitigating factors to impose a

lower sentence. But we squarely rejected that same argument in Moore. See Moore, 643 F.3d at

454–55. Just as in that case, “the imposition of a mandatory sentence without considering

mitigating factors does not . . . run afoul of the Eighth Amendment.” Id. at 455.

       Moreover, Scott’s 15-year sentence comfortably fits within the Eighth Amendment’s

parameters. He received the sentence because of an extensive criminal history. That history

includes three convictions for aggravated robbery, a conviction for possession of a controlled

substance with the intent to distribute, and a prior conviction for illegally possessing a firearm.

Given his criminal history, we cannot say that Scott’s sentence was grossly disproportionate to his

crime. Id. at 454–55.

       We affirm.




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