                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              February 5, 2008
                               No. 07-12392                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                 D. C. Docket No. 06-00078-CR-ORL-28-JGG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

PRESTON ANGELO WILLIAMS,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (February 5, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Preston A. Williams appeals the 57-month sentence he received after
pleading guilty, with the benefit of a plea agreement, to one count of conspiracy to

commit fraud and other offenses against the United States, in violation of 18

U.S.C. § 371, and four counts of theft of government property, in violation of 18

U.S.C. § 641. Williams argues on appeal that the district court (1) erred in failing

to grant him an acceptance of responsibility reduction, or otherwise erred in

calculating his sentencing range, and (2) violated the Eighth Amendment

prohibition against cruel and unusual punishment and its proportionality clause by

imposing the 57-month sentence. For the reasons set forth below, we affirm.

                                 BACKGROUND

      In the wake of Hurricanes Katrina and Rita, Williams engaged in a

conspiracy to defraud the Federal Emergency Management Agency (“FEMA”).

He ultimately received four checks totaling $16,858, and he obtained or caused to

be obtained an additional $24,358 in FEMA funds for persons other than himself

whom he knew were not entitled to the funds. In May 2006, a federal grand jury

returned a thirteen-count indictment against Williams. He ultimately entered into a

plea agreement, wherein he pled guilty to five of the thirteen counts.

      The plea agreement contained a sentence appeal waiver. According to the

appeal waiver provision, Williams agreed to waive his right to appeal his

sentences, or to challenge his sentences collaterally on any ground, including the



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ground that the district court erred in determining his applicable sentencing range

pursuant to the Guidelines, except on the ground that: (1) his sentences exceeded

his applicable sentencing range as determined by the district court pursuant to the

Guidelines; (2) his sentences exceeded the statutory maximum penalty; or (3) his

sentences violated the Eighth Amendment to the Constitution.

      Prior to sentencing, and while on bond that was later revoked, Williams was

shot in the back while fleeing from carjackers. His attorney later requested a

complete medical examination because puss pockets had allegedly formed around

the bullet wounds and prison officials were allegedly trying to charge Williams for

treatment of those wounds. Defense counsel never asked the district court to take

this into consideration at sentencing.

      The district court ultimately sentenced Williams to 57 months’

imprisonment on each of the five counts, to run concurrently, and it dismissed the

remaining counts of the indictment.

                                   DISCUSSION

A. Acceptance of Responsibility

      As an initial matter, we note that Williams’s appellate brief, which was

prepared with the assistance of counsel, does not argue that: (1) his guilty pleas

were involuntary; (2) the plea agreement is invalid because the government



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breached it in any respect, including by failing to request that he receive an

acceptance of responsibility reduction; or (3) he did not knowingly or voluntarily

agree to the sentence appeal waiver. Williams has thus abandoned any such

arguments on appeal. See Dalrymple v. United States, 460 F.3d 1318, 1327, n.11

(11th Cir. 2006) (deeming abandoned an argument not raised in the appellants’

initial brief). Even so, the transcript of the change of plea hearing reveals that the

magistrate judge satisfied the core concerns of Fed. R. Crim. P. 11, and discussed

the appeal waiver provision with Williams. Accordingly, Williams’s guilty pleas

and the sentence appeal waiver are valid.

      We ordinarily review a district court’s acceptance of responsibility

determination for clear error. United States v. Amedeo, 370 F.3d 1305, 1320 (11th

Cir. 2004). To the extent that an appeal waiver is applicable, however, an

appellant is barred from challenging his sentence on appeal. See United States v.

Frye, 402 F.3d 1123, 1129 (11th Cir. 2005) (per curiam). A sentence appeal

waiver may be enforced, so long as it was knowingly and voluntarily made.

United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993).

      Williams does not argue that the appeal waiver was not knowingly or

voluntarily made. Moreover, because Williams’s sentence did not exceed his

Guidelines range, as determined by the district court, and none of the other limited



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exceptions to his appeal waiver is applicable here, he is precluded from appealing

his sentences based on the district court’s refusal to award him an acceptance of

responsibility reduction, or on the ground that the court otherwise erred in

calculating his guideline range.

B. Eighth Amendment

      We ordinarily review de novo the legality of a sentence. See United States

v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005) (per curiam). An unpreserved

objection, however, will only be reviewed for plain error. United States v. Zinn,

321 F.3d 1084, 1087 (11th Cir. 2003). To prevail under the plain error standard,

an appellant must show that (1) the district court plainly erred, and (2) the error

implicated his substantial rights. Id. at 1087. Regardless of the standard of review

that we apply, however, Williams’s claims fail.

      The Eighth Amendment prohibits the infliction of cruel and unusual

punishment, U.S. Const. amend. VIII, but it only applies to convicted inmates.

Purcell ex rel. Estate of Morgan v. Toombs County, Ga., 400 F.3d 1313, 1318 n.3,

1319 (11th Cir. 2005). By contrast, the Fourteenth Amendment Due Process

Clause governs pretrial detainees. Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3

(11th Cir.), cert. denied, — U.S. —, 128 S. Ct. 385, 169 L. Ed. 2d 271 (2007). As

noted above, Williams’s appeal waiver only permits him to raise an Eighth



                                           5
Amendment claim, not a Fourteenth Amendment claim. Nevertheless, even if the

Eighth Amendment is applicable here, and Williams’s claims are based exclusively

on it, his claims fail.

       1. Deliberate Indifference

       After Williams indicated that he had medical needs that prison officials had

not met, the district court sentenced him within the Guidelines range and

specifically recommended that he be committed to a medical facility so that his

medical needs could be addressed. There is no basis for an argument that such

action constitutes deliberate indifference in violation of the Eighth Amendment.

       2. Proportionality

       The Eighth Amendment “contains a ‘narrow proportionality principle’ that

‘applies to noncapital sentences,’” Ewing v. California, 538 U.S. 11, 20, 123 S. Ct.

1179, 1185, 155 L. Ed. 2d 108 (2003) (quoting Harmelin v. Michigan, 501 U.S.

957, 996–97, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring

in part and concurring in judgment)), and forbids the imposition of a sentence that

is “grossly disproportionate” to the offense committed, United States v. Raad, 406

F.3d 1322, 1324 (11th Cir. 2005) (per curiam). An appellant carries the burden of

making this threshold showing. United States v. Johnson, 451 F.3d 1239, 1243

(11th Cir.) (per curiam), cert. denied, — U.S. —, 127 S. Ct. 462, 166 L. Ed. 2d 329



                                          6
(2006). “Outside the context of capital punishment, there are few successful

challenges to the proportionality of sentences.” Id. at 1242. “In general, a

sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” Moriarty, 429 F.3d at 1024 (internal

quotation marks omitted).

      The 57-month sentences that Williams received were within the statutory

limits and the appropriate Guidelines range for Williams’s offenses. Thus,

Williams has not satisfied his burden of showing that his sentences were grossly

disproportionate to the offenses committed.

                                  CONCLUSION

      For the foregoing reasons, we affirm Williams’s 57-month total sentence.

AFFIRMED.




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