                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-4162


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

REX ALVIN PAYNE,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00058-NCT-1)


Submitted:   November 30, 2010            Decided:   December 3, 2010


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      Anna Mills Wagoner, United
States Attorney, Anand P. Ramaswamy, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Rex Alvin Payne pled guilty, pursuant to a written

plea agreement, to possession of a firearm by a convicted felon

in violation 18 U.S.C. § 922(g) (2006), and was sentenced under

the   Armed    Career    Criminal      Act    (“ACCA”),     18   U.S.C.   § 924(e)

(2006), to the mandatory minimum 180-months of imprisonment.                      On

appeal, Payne contends that the sentence imposed by the district

court violates the Eighth Amendment’s prohibition on cruel and

unusual punishment in that it is grossly disproportionate to the

offense that he committed.

              Because the Government did not move for a downward

departure to reflect substantial assistance, the district court

had   no    authority    to   depart    below       the   mandatory   minimum.    18

U.S.C. § 3553(e) (2006); Melendez v. United States, 518 U.S.

120, 125-26 (1996).           “Proportionality review under the Eighth

Amendment’s cruel and unusual punishment clause is not available

for   any     sentence    less   that        life    imprisonment     without    the

possibility of parole.”          United States v. Malloy, 568 F.3d 166,

180 (4th Cir. 2009) (internal alterations and quotation marks

omitted). ∗    We previously rejected a constitutional challenge to


      ∗
       The Supreme Court’s recent decision in Graham v. Florida,
__ U.S. __, 130 S. Ct. 2011 (2010), does not affect this
holding, as the Court in that case considered a sentence of life
without parole imposed on a juvenile.



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the   ACCA,    and   held   that    the    mandatory    minimum   sentence     “is

neither disproportionate to the offense nor cruel and unusual

punishment, and thus does not violate the Eighth Amendment.”

United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995).

              Accordingly, we affirm Payne’s sentence.                We dispense

with oral argument because the facts and legal contentions are

adequately     presented    in     the    materials    before   the    court   and

argument would not aid the decisional process.

                                                                         AFFIRMED




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