                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                               No. 10-14879            APR 21, 2011
                                                                        JOHN LEY
                                           Non-Argument Calendar          CLERK
                                         ________________________

                          D.C. Docket No. 8:10-cr-00228-VMC-AEP-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllll                                Plaintiff - Appellee,

    versus

JEFFREY CARPENTER,

llllllllllllllllllllllllllllllllllllllll                            Defendant - Appellant.

                                     ________________________

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

                                              (April 21, 2011)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

         Jeffrey Carpenter appeals his 108-month sentence for conspiracy to

manufacture and distribute 5 grams or more of methamphetamine on a premises in
which minor children were present and resided, in violation of 21 U.S.C. §§ 846

and 860a. The district court imposed a 60-month statutory mandatory minimum

sentence for the drug offense, pursuant to 21 U.S.C. § 841(b)(1)(B), and a

consecutive 48-month sentence for the § 860a penalty. Carpenter argues that the

60-month mandatory minimum sentence violates his Fifth Amendment substantive

due process rights and is therefore arbitrary in violation of the Eighth Amendment

prohibition on cruel and unusual punishment. Specifically, Carpenter argues that

he has a fundamental right to receive a sentence below the statutory minimum and

that a narrowly tailored sentencing scheme would allow, for instance,

consideration of the 18 U.S.C. § 3553(a) factors.

      A constitutional challenge to a sentence is typically reviewed de novo.

United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005). The Fifth

Amendment guarantee of due process of law includes a “substantive” component,

which protects certain rights that are “implicit in the concept of ordered liberty.”

Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010) (quotation

omitted). Any infringement on a fundamental right must be narrowly tailored to

serve a compelling government interest. Reno v. Flores, 507 U.S. 292, 302, 113

S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993). If a fundamental right is not implicated,




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substantive due process requires only that the challenged government action

rationally advance a legitimate government purpose. Id. at 306, 113 S.Ct. at 1449.

      There is no fundamental right to receive a term of imprisonment below a

mandatory minimum sentence. Chapman v. United States, 500 U.S. 453, 467, 111

S.Ct. 1919, 1928, 114 L.E.2d 524 (1991); United States v. Castaing-Sosa, 530

F.3d 1358, 1362 (11th Cir. 2008). Further, we have specifically held that the 60-

month mandatory minimum sentence imposed pursuant to § 841(b)(1)(B)

rationally advances the government’s legitimate purpose in protecting public

health and welfare. United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988);

United States v. Holmes, 838 F.2d 1175, 1177-78 (11th Cir. 1988).

      In non-capital cases, the Eighth Amendment prohibition on cruel and

unusual punishment encompasses “only a narrow proportionality principle.”

United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995). We have previously

held that the § 841(b)(1)(B) mandatory minimum sentence is not disproportionate

to the offense of drug trafficking. Holmes, 838 F.2d at 1178-79.

      Carpenter’s 60-month statutory mandatory minimum sentence under

§ 841(b)(1)(B) does not violate his substantive due process rights because

Congress could rationally find that the manufacture and distribution of

methamphetamine “posed a particularly great risk to the welfare of society.”

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Solomon, 848 F.2d at 157. The sentence is therefore not arbitrary, nor is it

disproportionate to the offense of drug trafficking. Holmes, 838 F.2d at 1178-79.

Accordingly, upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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