     Case: 13-10303      Document: 00512550579         Page: 1    Date Filed: 03/05/2014




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

                                                                                     FILED
                                    No. 13-10303                                 March 5, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VIRGIL SHAWN FORESTER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-206-1


Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Virgil Shawn Forester (“Forester”) pleaded guilty to production and use
of a counterfeit access device. He was sentenced to 81 months in prison which
was above the advisory range of 46 to 57 months. The district court justified
the sentence as a variance under 18 U.S.C. § 3553(a) or a departure from the
sentencing guidelines.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-10303

      Forester argues that his 81-month sentence constitutes a cruel and
unusual punishment in violation of the Eighth Amendment because it is
disproportional to his offense conduct.     We have set forth the following
analytical rubric for considering such claims:
      When adjudicating an Eighth Amendment proportionality
      challenge, we must first make a threshold comparison between the
      gravity of the charged offense and the severity of the sentence.
      Only if we conclude that the sentence is “grossly disproportionate”
      to the offense may we proceed to consider whether it offends the
      Eighth Amendment, under the test announced in Solem. If we
      conclude that the sentence is not “grossly disproportionate,” our
      inquiry is finished, and we must defer to the will of Congress.
United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997) (citing Solem v.
Helm, 463 U.S. 277 (1983)) abrogated on other grounds by United States v.
O’Brien, 560 U.S. 218 (2010). We have stated that Rummel v. Estelle, 445 U.S.
263 (1980), “establishes a benchmark for claims of disproportionate
punishment under the Eighth Amendment.” Gonzalez, 121 F.3d at 943.            We
have explained:
      In Rummel, the defendant had been sentenced to life
      imprisonment following his conviction for obtaining $120.75 by
      false pretenses, pursuant to a “recidivist statute” providing a
      mandatory sentence of life imprisonment for any defendant
      convicted of three felonies. Noting that the line-drawing function
      inherent in the determination of punishment is a matter within
      the discretion of the legislature, the Court held that the life
      sentence was not so grossly disproportionate as to offend the
      Eighth Amendment.
Id. (citing Rummel, 445 U.S. at 284-85). With respect to the assertion that his
sentence was disproportionate to the severity of his crime, Forester’s argument
is conclusional. Furthermore, after considering Rummel as a benchmark, we
are unpersuaded that Forester’s sentence of 81 months for a fraud crime with
a maximum penalty of ten years was “grossly disproportionate.”        Therefore,



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                                       No. 13-10303

we find that Forester’s Eighth Amendment proportionality challenge is
without merit.
       Additionally, Forester argues that his sentence violates the Eighth
Amendment “because it makes no measurable contribution to the acceptable
goals of punishment.” In the present case, the district court explained that
Forester’s sentence would act as a deterrence and protect the public. Both
deterrence and incapacitation are legitimate penological goals. See Graham v.
Florida, 560 U.S. 48, 71 (2010). Here, Forester does not explain how his
sentence fails to meaningfully contribute to these acceptable goals of
punishment. This argument is without merit.
       Finally, it is unclear whether, apart from his Eighth Amendment
challenge, Forester is challenging the reasonableness of his sentence.
Therefore we will briefly address the reasonableness of his sentence. The
district court described its sentence as either a departure or a variance. In this
case, “the specific characterization is irrelevant . . . [if] the sentence imposed
was reasonable under the totality of the relevant statutory factors.” United
States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks
and citation omitted).        Forester does not raise any procedural errors so we
move directly to consideration of the substantive reasonableness of his
sentence. Id. We “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” 1 Gall v. United States, 552
U.S. 38, 51 (2007).
       At sentencing, the district court addressed Forester’s extensive criminal
history and stated that a variance was appropriate based on the 18 U.S.C.
§ 3553(a) factors. We have stated:


       1If an issue is not properly preserved it is reviewed for plain error. Brantley, 537 F.3d
at 349. Because Forester does not prevail under an abuse-of-discretion standard, we need
not consider whether he properly preserved this issue.


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                                 No. 13-10303

      “With respect to considering the § 3553(a) factors, ‘[a] non-
      Guideline sentence unreasonably fails to reflect the statutory
      sentencing factors where it (1) does not account for a factor that
      should have received significant weight, (2) gives significant
      weight to an irrelevant or improper factor, or (3) represents a clear
      error of judgment in balancing the sentencing factors.’”
United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013) (quoting United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). Here, Forester has failed to
demonstrate that the district court’s sentence unreasonably failed to reflect the
statutory sentencing factors. We find that the district court did not abuse its
discretion in sentencing Forester. Gall, 552 U.S. at 51.
      The judgment of the district court is AFFIRMED.




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