                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       June 14, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-30907
                             Summary Calendar


                       UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,

                                  versus

                           JOHN PAUL STRAHAN,
                                                     Defendant-Appellant.



            Appeal from the United States District Court
                for the Western District of Louisiana
                       USDC No. 5:03-CR-50105-1


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           John Paul Strahan appeals the mandatory minimum fifteen-

year sentence he received pursuant to his guilty-plea conviction of

conspiracy to distribute fifty grams or more of methamphetamine and

possession of a firearm in relation to a drug trafficking offense.

Strahan contends, as he did at sentencing, that his sentence, as

applied to the facts of his case, constitutes cruel and unusual

punishment under the Eighth Amendment.

           Strahan asserts that under the Ninth Circuit’s opinions

in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004) and Rios v.



     *
            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opinion should not be published and is not precedent except under the limited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.
Garcia, 390 F.3d 1082 (9th Cir. 2004), the district court should

have considered the following facts:         (1) he was merely present in

his house when the transaction occurred and he did not profit from

the transaction; (2) the weapons involved in the transaction were

kept outside of his home in a storage shed; and (3) his only past

crime was a misdemeanor assault case, for which he received a

probated sentence.

          However, the Ninth Circuit’s opinions are persuasive

authority at most.    Strahan does not point to any language in Ewing

v. California, 538 U.S. 11 (2003), Lockyer v. Andrade, 538 U.S. 63

(2003), or   any   other   Supreme   Court    or   Fifth   Circuit   opinion

requiring such in-depth analysis.        In this circuit, we look to the

Supreme Court’s decisions in Harmelin v. Michigan, 501 U.S. 957

(1991), and Hutto v. Davis, 454 U.S. 370 (1982), as benchmarks for

making the threshold determination whether a defendant’s drug

offense and sentence were grossly disproportionate.             See United

States v. Cathey, 259 F.3d 365, 368-69 & nn.13-14 (5th Cir. 2001).

          Strahan’s    fifteen-year      sentence    for    conspiring   to

distribute 168 grams of methamphetamine is not grossly dispropor-

tionate to his crime, and thus it does not violate the Eighth

Amendment.   See Harmelin, 501 U.S. at 1001-05; Davis, 454 U.S. at

370, 374-75; Cathey, 259 F.3d at 367-69.

          AFFIRMED.




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