                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                   No. 04-4172
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Nebraska.
Kerry L. Baker                         *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: June 24, 2005
                                 Filed: July 22, 2005
                                  ___________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Kerry L. Baker appeals his sentence following his conviction for conspiring to
distribute over fifty grams of cocaine base. Mr. Baker had a prior felony drug
conviction, and he received the mandatory minimum sentence of twenty years under
21 U.S.C. § 841(b). He argues that, on the facts of his case, a twenty-year mandatory
minimum sentence is disproportionate to the crime and comprises cruel and unusual
punishment in violation of the Eighth Amendment of the United States Constitution.
       We discussed Mr. Baker’s underlying offense and jury trial in United States v.
Kerry Baker, 367 F.3d 790 (8th Cir. 2004). In that appeal, we found the evidence
sufficient to reinstate a jury verdict of guilty on the charge of conspiring to distribute
over fifty grams of crack cocaine. Although the evidence was sufficient, the
government’s case against Mr. Baker was not overwhelming. His conviction rested
on the jury’s acceptance of testimony from witnesses of questionable credibility.
Further, the district court was concerned that the government had manipulated
sentencing by pursuing a crack cocaine conviction although the case involved
primarily powdered cocaine. At sentencing, the district court imposed the mandatory
minimum sentence, but firmly restated its belief that the evidence was insufficient to
support the verdict. Mr. Baker seizes upon these facts to argue that the mandatory
minimum sentence, as applied to his case, violates the Eighth Amendment.

       This argument, in effect, is an attempt by Mr. Baker to reassert his sufficiency
of the evidence argument in the context of sentencing, having failed to succeed with
the same approach before our court during the guilt phase. We find no authority to
support this attempt. It is true that in “an extremely rare case” a sentence may be so
disproportionate to the underlying crime that a sentence runs afoul of the Eighth
Amendment. Ewing v. California, 538 U.S. 11, 20 (2003) (“The Eighth Amendment,
which forbids cruel and unusual punishments, contains a ‘narrow proportionality
principle’ that ‘ applies to noncapital sentences.’” (quoting Harmelin v. Michigan,
501 U.S. 957, 996-97 (1991))). The relevant facts for the purpose of an Eighth
Amendment inquiry, however, are the facts surrounding the offense, not the relative
strength or weakness of the government’s successful proof of those facts. Ewing, 538
U.S. at 29-30 (discussing the facts of the immediate crime of conviction as well as the
defendant’s prior convictions). Here, a review of the facts shows that the probation
office actually recommended a sentence higher than twenty years based on drug
quantity. Further, “[w]e have held that mandatory minimum penalties for drug
offenses do not violate the Eighth Amendment’s prohibition of cruel and unusual
punishments.” United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003).
The judgment of the district court is affirmed.
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