                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3437
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Samuel B. Ford

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                          Submitted: November 16, 2015
                              Filed: April 28, 2016
                                 [Unpublished]
                                 ____________

Before SMITH, BYE, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

      Pursuant to 21 U.S.C. § 841(b)(1)(A), the district court1 sentenced Samuel Ford
to a mandatory life term for distribution of a controlled substance near a protected

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
location after having been previously convicted of at least two other felony drug
offenses. Ford appeals, arguing that his sentence is (1) unlawful under the plain
language of 21 U.S.C. § 841, and (2) a violation of the Eighth Amendment's
prohibition of cruel and unusual punishments. We affirm.

                                    I. Background
       In a second superseding indictment, Ford was charged with violating "Title 21,
United States Code, Sections 841(a)(1), 841(b)(1)(C), 851 and 860(a)." A jury
convicted Ford of distribution of heroin within 1,000 feet of a protected location,
resulting in the death of another ("Count I"), and distribution of cocaine base and
heroin ("Count II"). With respect to both counts, the government timely filed an
information of its intent to seek enhanced penalties because of Ford's prior
convictions. See 21 U.S.C. § 851(a)(1). Initially, the district court sentenced Ford to
a mandatory life term on Count I and a 360-month term on Count II, to run
concurrently. In a prior appeal before this court, Ford ultimately prevailed in having
his sentence vacated. United States v. Ford, 750 F.3d 952 (8th Cir. 2014). In light of
Burrage v. United States, 134 S. Ct. 881 (2014), we reversed Ford's conviction with
respect to Count I but affirmed in all other respects. Id. at 955–56. We remanded
Ford's case to the district court with directions to "enter judgment on the lesser
included offense of distribution of a controlled substance within 1,000 feet of a
protected location." Id. at 956 (citing 21 U.S.C. §§ 841(a)(1), 860(a)). The district
court again sentenced Ford to a mandatory life sentence solely based on his
conviction of distribution of a controlled substance within 1,000 feet of a protected
location. The amended judgment reflects that Ford was "adjudicated guilty of . . . 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), 851, and 860(a)."

                                   II. Discussion
       At sentencing, Ford objected to his sentence on Eighth Amendment grounds
only. Therefore, we review de novo Ford's Eighth Amendment sentencing challenge.
See United States v. Scott, 610 F.3d 1009, 1017 (8th Cir. 2010). But we review for

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plain error his unpreserved challenge to the lawfulness of his sentence. See United
States v. Emly, 747 F.3d 974, 981 (8th Cir. 2014).

                             A. 21 U.S.C. § 841(b)(1)(A)
      Ford first argues that the sentence that the district court imposed is illegal
because the maximum sentence § 841 authorizes is 60 years. Ford reasons that
because the jury made no findings that the quantity of heroin distributed was greater
than 100 grams, § 841(b)(1)(C) provides the appropriate statutory sentencing range.
Under subsection (b)(1)(C), a life sentence is authorized only "if death or serious
bodily injury results from the use of such substance." Otherwise, a maximum term of
30 years is authorized under subsection (b)(1)(C). In accordance with the doubling
provision of § 860(a), Ford concludes that the maximum sentence the court can
impose is 60 years.

       We dispose of Ford's argument simply by referencing the text of
§ 841(b)(1)(A). Ford is correct that subsection (b)(1)(A)(i)'s penalties apply to
distribution of "1 kilogram or more of a mixture or substance containing a detectable
amount of heroin." Ford is, however, incorrect that subsection (b)(1)(A)'s penalties
do not also apply to the conduct for which he was convicted. Section
841(b)(1)(A)(viii) also states:

      If any person commits a violation of this subparagraph or of section 849,
      859, 860, or 861 of this title after two or more prior convictions for a
      felony drug offense have become final, such person shall be sentenced
      to a mandatory term of life imprisonment without release and fined in
      accordance with the preceding sentence.

(Emphasis added.) Ford overlooks the disjunctive "or," which properly brings his
conduct within the province of subsection (b)(1)(A)'s mandatory life sentence. A
mandatory life sentence applies to any person who distributes certain quantities of
controlled substance or to any person who violates § 860 "after two or more prior

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convictions for a felony drug offense." 21 U.S.C. § 841(b)(1)(A)(viii). Ford was
convicted under § 860 after having been convicted of at least two prior felony drug
offenses. That Ford was not charged under § 841(b)(1)(A) specifically does not make
his sentence illegal. See Almendarez–Torres v. United States, 523 U.S. 224, 228
(1998) (holding that "[a]n indictment . . . need not set forth factors relevant only to
the sentencing of an offender found guilty of the charged crime"). The government
properly notified Ford that it would be seeking an increased punishment based on
Ford's ten prior felony convictions. See 21 U.S.C. 851(a). The district court did not
illegally sentence Ford to a mandatory life term.

                                B. Eighth Amendment
       Ford next attacks his sentence based on the Eighth Amendment's Cruel and
Unusual Punishment Clause. Ford argues that recent changes in the United States
Supreme Court's Eighth Amendment jurisprudence warrant a reversal of his sentence.
Specifically, Ford argues that the Court's analysis in Graham v. Florida, 560 U.S. 48
(2010), "indicate[s] that mandatory life sentences without parole, imposed without an
individualized assessment of the offense and the characteristics of the offender,
violate[] the Eighth Amendment's ban on cruel and unusual punishment."

      The Eighth Amendment2 "forbids only 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)); see also Graham, 560 U.S. at 59–60 (noting that Justice
Kennedy's concurrence in Harmelin is the controlling opinion). To determine whether
a sentence for a term of years is grossly disproportionate, a reviewing court
undertakes "a threshold comparison of the crime committed and the sentence
imposed." Harmelin, 501 U.S. at 1005. In the rare case that the threshold comparison


      2
      "Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted." U.S. Const. amend. VIII.

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"leads to an inference of gross disproportionality," the court should then perform a
comparative analysis of the defendant's sentence with sentences received by other
offenders in the same jurisdiction and other jurisdictions. Id.

       Ford's mandatory life sentence is not grossly disproportionate compared to his
criminal conviction. Statutes that impose mandatory life sentences "for drug offenses
do not violate the Eighth Amendment's prohibition of cruel and unusual
punishments." United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) (citation
omitted). "It is well settled that a sentence within the range provided by statute is
generally not reviewable by an appellate court." Id. (citation omitted). Furthermore,
we have never found a sentence that falls within the range prescribed by statute to be
an Eighth Amendment violation. Id. at 680. Ford's sentence falls within the range
provided by § 841(b)(1)(A). Ford's argument and legal authority do not persuade us
to hold that § 841(b)(1)(A)'s mandatory life sentence violates the Eighth Amendment.

       We have previously considered and rejected a similar Graham-based argument.
In United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), the defendant relied on
Graham in challenging the sentencing court's use of prior juvenile felony drug
convictions. Id. at 1017. We explained that the Supreme Court's "analysis in Graham
was limited to defendants sentenced to life in prison without parole for crimes
committed as juveniles. The Court in Graham did not call into question the
constitutionality of using prior convictions, juvenile or otherwise, to enhance the
sentence of a convicted adult." Id. at 1018. Likewise, the Court in Graham did not
call into question the use of mandatory life sentences for adult offenders. Indeed,
much of the analysis of Graham centers on the distinction between juvenile and adult
offenders. See Graham, 560 U.S. at 68–72 (finding that "compared to adults,"
juveniles are less culpable, more capable of change, and less susceptible to
deterrence).




                                         -5-
       Notably, Ford's argument, if adopted, would effectively require holding that
statutes imposing mandatory life terms are categorically unconstitutional. Ford's logic
would permit life sentences only after sentencing courts engage in an additional
analysis similar to the analysis already present under 18 U.S.C. § 3553. Contrary to
Ford's assertion that Graham's rationale supports this argument and "substantially
undercut[s]" "the rationale of Harmelin," the Court in Graham expressly reaffirmed
the two classifications set out by the Court in Harmelin. See id. at 59–62. The
analysis in Graham was limited to the second classification of cases, where
categorical rules define Eighth Amendment standards. Id. at 60. But the Court did not
reject the validity of the first classification, where a sentence is assessed for gross
disproportionality. Id. at 59. Like Ford, the petitioner in Harmelin "attack[ed] his
sentence because of its mandatory nature," arguing that "any severe penalty scheme
requires individualized sentencing so that a judicial official may consider mitigating
circumstances." 501 U.S. at 1006 (Kennedy, J., concurring in part and concurring in
judgment). The Court held that its "precedents do not support this proposition." Id.
Rather, the Court explained that its precedents demonstrate that there is no
requirement of individualized sentencing in noncapital cases. Id.

      As discussed above, Ford's sentence is not an "extreme sentence[] that [is]
grossly disproportionate to the crime." See id. at 1001 (quotation and citation
omitted).

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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