     Case: 12-10482       Document: 00512160551         Page: 1     Date Filed: 03/01/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 1, 2013
                                     No. 12-10482
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

MARK ANDREW TALAMINI,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-180-8


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Mark Andrew Talamini appeals the 312-month within-guidelines sentence
he received following his guilty plea to conspiracy to distribute and to possess
with intent to distribute 100 grams or more of heroin. Talamini argues that his
sentence violates the Eighth Amendment of the Constitution because his
sentence is purposeless and grossly disproportionate to the seriousness of his
crime of conviction in violation of the prohibition against cruel and unusual
punishment.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-10482     Document: 00512160551      Page: 2    Date Filed: 03/01/2013

                                   No. 12-10482

      Ordinarily, we review constitutional claims de novo. United States v.
Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). However, because Talamini did
not raise any constitutional objections to his sentence in the district court, we
review for plain error only. See United States v. Ebron, 683 F.3d 105, 155 (5th
Cir. 2012), petition for cert. filed (U.S. Oct. 24, 2012) (No. 12-6956).
      Talamini’s assertion that his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment is without merit. The Eighth
Amendment prohibits a sentence that is grossly disproportionate to the severity
of the crime for which it is imposed. Solem v. Helm, 463 U.S. 277, 288 (1983).
When evaluating an Eighth Amendment proportionality challenge, we make a
threshold comparison between the gravity of the charged offense and the
severity of the sentence. McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.
1992). In non-capital cases, successful challenges to the proportionality of
particular sentences are “exceedingly rare.” Rummel v. Estelle, 445 U.S. 263,
272 (1980).
      In the instant case, Talamini’s 312-month prison sentence is not grossly
disproportionate to the severity of his controlled substance offense when
measured against the benchmark in Rummel, 445 U.S. at 284-85. Additionally,
Talamini’s sentence is within the properly calculated guidelines range, which is
a “convincing objective indicator of proportionality.”          United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (internal quotation marks
and citation omitted). Accordingly, Talamini cannot demonstrate plain error.
See Ebron, 683 F.3d at 155.
      The judgment of the district court is AFFIRMED.




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