                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3425
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

Paul McCurry, also known as Paul Wesley McCurry, also known as Paul McCurry,
                                     Jr.

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                              Submitted: June 17, 2016
                               Filed: August 9, 2016
                                   ____________

Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.
                           ____________

BRIGHT, Circuit Judge.

      Appellant-defendant Paul McCurry (McCurry) pled guilty in district court1 to
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and
924(e). As a condition of his guilty plea, McCurry reserved the right to contest on

      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
appeal his categorization as an armed career criminal pursuant to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). The district court sentenced McCurry to
the fifteen-year mandatory minimum sentence in accordance with the ACCA.
McCurry argues on appeal that the district court’s sentence constitutes cruel and
unusual punishment in violation of the Eighth Amendment because McCurry has
lower intelligence. We affirm.

                                          I.

      On March 26, 2013, McCurry and his girlfriend, M.R., argued in M.R.’s
apartment. McCurry, a convicted felon, left the apartment carrying a handgun.
M.R.’s sister called the police and reported the incident, noting that McCurry left the
apartment with a handgun.

      After leaving the apartment, McCurry hid from police in a neighbor’s yard
behind a grill. Police used a canine to locate McCurry and removed McCurry from
behind the grill. Police then found a handgun underneath the grill. McCurry admitted
to possession of the handgun and placement of the handgun underneath the grill.
Police arrested McCurry.

       A grand jury indicted McCurry with one count of being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). McCurry moved for a
competency examination. The district court granted the motion and the Metropolitan
Correctional Center (MCC) evaluated McCurry’s competence. MCC concluded
McCurry had “below average” cognitive skills but ultimately determined McCurry
was competent in light of his ability to understand his criminal case. A magistrate
judge2 held a competency hearing where neither side presented testimony. The


      2
        The Honorable Arthur J. Boylan, United States Magistrate Judge for the
District of Minnesota.

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magistrate judge relied on the competency report and found McCurry competent to
stand trial.

       McCurry pled guilty pursuant to a plea agreement, but reserved the right to
contest his categorization as an armed career criminal on appeal. At sentencing, the
district court noted McCurry had three prior convictions for violent felonies which
subjected McCurry to a fifteen-year mandatory minimum sentence under the ACCA.
Despite being found competent to stand trial, McCurry argued a fifteen-year
mandatory minimum sentence would constitute cruel and unusual punishment because
of McCurry’s lower intelligence.3 The district court sentenced McCurry to the fifteen-
year mandatory minimum. McCurry timely appealed.

                                          II.

     “We review Eighth Amendment sentencing challenges de novo.” United States
v. Capps, 716 F.3d 494, 498 (8th Cir. 2013). McCurry argues a fifteen-year
mandatory minimum sentence constitutes cruel and unusual punishment in light of
McCurry’s lower cognitive abilities. We disagree.

      The Eighth Amendment is not a “time-worn adage[]” or a “hollow
shibboleth[].” Trop v. Dulles, 356 U.S. 86, 103, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958).
Instead, the Eighth Amendment protects “vital, living principles” necessary to “limit
governmental powers.” Id. The Supreme Court has recognized certain situations
where a sentence imposed upon a defendant violates the Eighth Amendment.
Unconstitutional sentences usually involve capital punishment or life sentences


      3
      McCurry’s IQ score varied over time. According to the PSR, at age 16
McCurry scored a full-scale IQ of 55 and at age 18 scored a full-scale IQ of 78.
Because McCury scored above a full-scale IQ of 70 when McCurry became an adult,
McCurry did not qualify for disability services.


                                         -3-
without parole imposed upon juveniles or the mentally disabled. See Miller v.
Alabama, – U.S. –, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012) (categorically
prohibiting mandatory life sentences without parole to juveniles); Graham v. Florida,
560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (categorically prohibiting
life sentences without parole for juvenile offenders convicted of non-homicidal
offenses); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005) (categorically prohibiting the death penalty for juvenile offenders); Atkins v.
Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (categorically
prohibiting the death penalty for persons who are mentally disabled).

       But the Eighth Amendment also protects competent adults from cruel and
unusual sentences. For example, in Solem v. Helm, a case originating from a state
habeas petition in South Dakota, the Supreme Court affirmed the Eighth Circuit in
holding a district court violated the Eighth Amendment when it sentenced a competent
adult to a life sentence without parole for committing a seventh non-violent felony.
463 U.S. 277, 303, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), aff’g, 684 F.2d 582 (8th
Cir. 1982).

       In this case, however, the sentence imposed upon McCurry does not fall within
the purview of the Eighth Amendment. McCurry does not face capital punishment or
life imprisonment without the possibility of parole. McCurry is neither a juvenile nor
mentally disabled. McCurry has lower intelligence, but was found competent to stand
trial. Further, McCurry’s sentence reflects prior convictions for violent felonies, as
opposed to non-violent conduct. Under this circumstance, “the mandatory minimum
sentence of fifteen years imprisonment under § 924(e) is not




                                         -4-
cruel and unusual punishment and does not violate the Eighth Amendment.” See
United States v. Yirkovsky, 259 F.3d 704, 707 (8th Cir. 2001).

     Affirmed.
                    ______________________________




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