                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-5035


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JIMMY ELIAB HUNTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:11-cr-00204-D-1)


Argued:   September 19, 2013              Decided:      November 13, 2013


Before SHEDD and      WYNN,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Shedd and Senior Judge Hamilton joined.


ARGUED: Curtis Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham,
North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
WYNN, Circuit Judge:

       In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the

Supreme Court announced that “the Eighth Amendment forbids a

sentencing        scheme        that        mandates      life      in        prison        without

possibility       of     parole       for    juvenile        offenders.”              Relying    on

Miller, Defendant Jimmy Eliab Hunter appeals from his sentence

for being a felon in possession of a firearm, asserting that the

district     court       erred    in     sentencing          him    as     an       armed   career

criminal based on violent felonies he committed as a juvenile.

But unlike the juveniles in Miller, Defendant’s sentence here

punishes him for an offense he committed at the age of thirty-

three,     well    past    an    age     when      “the   distinctive               attributes   of

youth diminish the penological justifications for imposing the

harshest     sentences.”              Id.     at     2465.         Thus,      proportionality

concerns expressed in Miller regarding youthful offenders are

not implicated here.                   Finding Miller, Defendant’s sole basis

for his Eighth Amendment challenge, inapplicable, we affirm.



                                                I.

       In February 2011, at the age of thirty-three, Defendant

sold   a   gun     and    nine    rounds       of    ammunition          to     a    confidential

informant working with the Bureau of Alcohol, Tobacco, Firearms,

and Explosives.           Defendant was indicted and then pled guilty to

violating     18       U.S.C.     §    922(g)(1)       by     knowingly             possessing    a

                                                2
firearm and ammunition in and affecting commerce after having

been convicted of a crime punishable by imprisonment for a term

exceeding one year.

     A violation of Section 922(g) ordinarily carries a maximum

sentence of ten years’ imprisonment.                                18 U.S.C. § 924(a)(2).

However,        in       preparing       the    Presentence              Investigation         Report

(“PSR”),       the       probation      officer         found    Defendant           qualified    for

sentencing       under         the    Armed     Career       Criminal         Act    (“ACCA”),     18

U.S.C.     §    924(e).           The   ACCA     imposes        a    mandatory        fifteen-year

minimum term of imprisonment on a defendant who violates Section

922(g) “and has three previous convictions . . . for a violent

felony     or        a    serious       drug    offense,            or    both,      committed     on

occasions different from one another.”                          18 U.S.C. § 924(e)(1).

     Defendant’s PSR identified five violent felony convictions

in   his       criminal          history       triggering           the       ACCA    enhancement.

Defendant committed four of the five offenses before turning

eighteen, although in each case he was charged and convicted as

an adult.        In 1993, when he was fifteen, Defendant pled guilty

to two charges of felony breaking and entering.                                      And in 1995,

Defendant pled guilty to robbery with a dangerous weapon and

attempted       armed          robbery,      both       of   which       he   committed    at     age

seventeen.               The    fifth       identified        violent         felony,    attempted

malicious        conduct         by     a    prisoner,          occurred        in     2003,     when

Defendant was twenty-five.

                                                    3
      Defendant     objected    to    the    PSR    and    filed     a    motion      for

downward departure, asserting that the use of juvenile conduct

as a basis for an ACCA enhancement violates the Eighth Amendment

for   the    reasons   set    forth   in     Miller. 1      The     district         court

overruled the objection, observing that “no court has extended

Miller to this extent that [Defendant] is requesting in this

case, and I don’t think that it makes sense.”                            J.A. 59–60.

Ultimately, the district court sentenced Defendant to seventeen

years’ imprisonment.         Defendant appeals.



                                      II.

      The    sole   issue    presented      on   appeal    is   whether        the   ACCA

sentencing enhancement Defendant received based on convictions

for violent felonies he committed as a juvenile violates the

Eighth      Amendment’s      prohibition         against    cruel        and    unusual

punishment under Miller.          We review Defendant’s constitutional

challenge de novo.          See United States v. Myers, 280 F.3d 407,

416 (4th Cir. 2002).

      The Eighth Amendment protects individuals against excessive

sanctions.     See Roper v. Simmons, 543 U.S. 551, 560 (2005).                        The


      1
        Defendant also argued that his 2004 conviction of
attempted malicious conduct by a prisoner was not a violent
felony.   The district court found no need to reach this issue,
given the four other qualifying convictions.



                                         4
constitutional ban on cruel and unusual punishments embodies the

“‘precept     of     justice       that     punishment            for     crime    should    be

graduated     and     proportioned        to         [the]       offense.’”        Graham    v.

Florida, 130 S. Ct. 2011, 2021 (2010) (quoting Weems v. United

States,      217     U.S.       349,   367           (1910)).           “The      concept     of

proportionality is central to the Eighth Amendment.”                                Id.     “And

we    view   that    concept       less     through          a    historical      prism     than

according to the evolving standards of decency that mark the

progress of a maturing society.”                       Miller, 132 S. Ct. at 2463

(internal quotation marks omitted).

       Miller is the most recent in a series of Supreme Court

decisions     addressing         proportionate           sentencing         for    juveniles.

See    Graham,      130    S.    Ct.   at    2034        (holding         that    the     Eighth

Amendment prohibits life without parole for juveniles convicted

of nonhomicide offenses); Roper, 543 U.S. at 578 (holding that

imposing     the    death       penalty     on       juveniles      violates      the     Eighth

Amendment).         In     these   cases,        the    Court       has     emphasized      that

“children     are         constitutionally            different           from    adults     for

purposes of sentencing” due to their “diminished culpability and

greater prospects for reform.”               Miller, 132 S. Ct. at 2464.

       In Miller, the case on which Defendant relies, the juvenile

petitioners        received      mandatory           sentences       of    life    in     prison

without parole after being tried as adults and convicted for

murders they committed when they were fourteen.                             Id. at 2461-63.

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Reversing         their      sentences,       the   Court    stated     that      automatic

imposition         of     life      without     parole     impermissibly          “precludes

consideration           of    [a     juvenile’s]     chronological          age    and    its

hallmark      features--among             them,     immaturity,       impetuosity,       and

failure to appreciate risks and consequences.”                              Id. at 2468.

Such mandatory punishment also “disregards the possibility of

rehabilitation          even       when   the   circumstances     most      suggest      it.”

Id.

          While    Miller        and   its    predecessors     such    as    Graham      have

focused on the worst crimes and the most extreme punishments,

the Supreme Court noted that “none of what [Graham] said about

children--about their distinctive (and transitory) mental traits

and environmental vulnerabilities--is crime-specific.”                              Miller,

132   S.    Ct.    at     2465.        Further,     Miller’s   statements         regarding

children’s        “diminished          culpability    and    greater      prospects      for

reform” are not punishment-specific.                     Id. at 2464. 2

      None of this helps Defendant, however, because the sentence

he challenges punishes only his adult criminal conduct.                             “When a

defendant is given a higher sentence under a recidivism statute

. . . 100% of the punishment is for the offense of conviction.


      2
       Indeed, the Supreme Court has considered immaturity in the
sentencing context before, and outside the contours of only the
most heinous crimes and harshest sentences. See Gall v. United
States, 552 U.S. 38, 57-59 (2007).



                                                6
None is for the prior convictions or the defendant’s ‘status as

a recidivist.’”            United States v. Rodriquez, 553 U.S. 377, 386

(2008).      Instead, Defendant’s enhanced sentence “‘is a stiffened

penalty      for    the    latest      crime,         which       is   considered        to   be    an

aggravated      offense         because     [it       is]     a    repetitive       one.’”         Id.

(quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)).

       At     least       two    circuits         have        considered          challenges       to

sentencing         enhancements        based      on    juvenile          conduct       brought     by

adult defendants in the wake of Miller.                                   In United States v.

Hoffman,      710     F.3d      1228    (11th         Cir.        2013)    (per    curiam),        the

defendant was twice convicted for drug felonies before turning

eighteen,      then    committed        a     third         drug    felony    and       received    a

mandatory      sentence         of     life    imprisonment               under    21    U.S.C.      §

841(b)(1)(A). 3           In determining that the life sentence did not

constitute cruel and unusual punishment, the Eleventh Circuit

distinguished between Miller’s prohibition on imposing mandatory

life       sentences       on    juveniles            and     “‘consideration            of   prior

youthful offenses when sentencing criminals who continue their

illegal activity into adulthood.’”                           Hoffman, 710 F.3d at 1233

(quoting United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir.

       3
       Section 841(b)(1)(A) provides that if a person with “two
or more prior convictions for a felony drug offense” is
convicted for possessing with intent to distribute 50 or more
grams of methamphetamine, he “shall be sentenced to a mandatory
term of life imprisonment.” 21 U.S.C. § 841(b)(1)(A)(viii).



                                                  7
2006)).     Ultimately, the Eleventh Circuit upheld the enhanced

sentence because “[n]othing in Miller suggests that an adult

offender who has committed prior crimes as a juvenile should not

receive a mandatory life sentence as an adult, after committing

a further crime as an adult.”            Id.

     The    Tenth   Circuit      reached        similar    conclusions    in    United

States v. Orona, 724 F.3d 1297 (10th Cir. 2013).                         There, the

defendant    argued    that     use    of       a   juvenile   adjudication      as   a

predicate    offense      for     ACCA      purposes       violated      the    Eighth

Amendment and conflicted with the Supreme Court’s holdings in

Roper,    Graham,   and   Miller.           Id.      at   1307.    Rejecting      that

position, the Tenth Circuit observed that “[t]he problem with

this line of argument is that it assumes Orona is being punished

in part for conduct he committed as a juvenile.”                   Id.     The Tenth

Circuit    characterized        this   assumption         as   “unfounded,”      given

consistent    Supreme      Court       precedent          “‘sustain[ing]       repeat-

offender laws as penalizing only the last offense committed by

the defendant.’”        Id. (quoting Nichols v. United States, 511

U.S. 738, 747 (1994)).

     The Tenth Circuit moreover rejected Orona’s position that

he was less morally culpable.                   Unlike the juveniles in Roper,

Graham, and Miller, Orona was an adult “being punished for his

adult conduct” and therefore could not rely on “[a] juvenile’s

lack of maturity and susceptibility to negative influences” to

                                            8
“explain away [his] decision to illegally possess a firearm when

he was twenty-eight years old.”                   Id. at 1307-08.             The greater

possibility for reformation, identified by the Supreme Court as

a     distinguishing    characteristic            between     juvenile          and    adult

offenders,     only    undermined      Orona,       who,     as    a    recidivist,         had

“been given an opportunity to demonstrate rehabilitation, but

[had] elected to continue a course of illegal conduct.”                               Id. at

1308.      Accordingly,       the    Tenth       Circuit    held       that   the     use    of

Orona’s juvenile adjudication as a predicate offense for ACCA

purposes did not violate the Eighth Amendment’s ban on cruel and

unusual punishment.          Id. at 1309-10.

       In this case, Defendant is not being punished for a crime

he committed as a juvenile, because sentence enhancements do not

themselves     constitute           punishment       for     the        prior       criminal

convictions that trigger them.               See Rodriquez, 553 U.S. at 385-

86.     Instead, Defendant is being punished for the recent offense

he committed at thirty-three, an age unquestionably sufficient

to    render   him     responsible       for       his     actions.           Accordingly,

Miller’s concerns       about       juveniles’       diminished         culpability         and

increased capacity for reform do not apply here.

       In sum, Defendant was no juvenile when he committed the

crime    for   which    he    was     sentenced      here.         Miller,       with       its

concerns particular to juvenile offenders, thus does not apply,



                                             9
and   Defendant’s   Eighth   Amendment   challenge   to   his   sentence,

grounded in Miller, must fail.



                                 III.

      For the reasons discussed above, we affirm the judgment of

the district court.

                                                                 AFFIRMED




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