          Case: 12-12957   Date Filed: 02/07/2013   Page: 1 of 5

                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-12957
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 6:11-cr-00258-CEH-KRS-1



UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,


                                 versus


JUSTIN E. MERCHANT,


                                                        Defendant-Appellant.

                      ________________________

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

                           (February 7, 2013)
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Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

      Justin Merchant appeals his 210-month sentence imposed after he pled

guilty to one count of distribution of material containing images of child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, Merchant

argues that his sentence violates his Eighth Amendment right to be free from cruel

and unusual punishment.

       In the district court, Merchant did not object to his sentence on Eighth

Amendment grounds; therefore, we review the sentence for plain error only.

United States v. McGarity, 669 F.3d 1218, 1255 & n.56 (11th Cir.), cert. denied,

133 S. Ct. 374, 378, 381, 459, 551 (2012). To prevail under plain error review, a

defendant must show that (1) an error occurred, and that the error (2) is plain, (3)

affected his substantial rights, and (4) “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Bacon, 598 F.3d 772,

777 (11th Cir. 2010). “Before an error is subject to correction under the plain error

rule, it must be plain under controlling precedent or in view of the unequivocally

clear words of a statute or rule.” United States v. Schmitz, 634 F.3d 1247, 1270–

71 (11th Cir. 2011).

      The Eighth Amendment prohibits the infliction of cruel and unusual

punishments. U.S. Const. amend. VIII. Although the amendment “contains a


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narrow proportionality principle that applies to noncapital sentences,” Eighth

Amendment challenges rarely succeed outside the capital punishment context

because courts “accord substantial deference to Congress, as it possesses broad

authority to determine the types and limits of punishments for crimes.” United

States v. Johnson, 451 F.3d 1239, 1242–43 (11th Cir. 2006). To successfully

challenge a non-capital sentence on Eighth Amendment grounds, a defendant must

first establish that the sentence is “grossly disproportionate” to the offense he

committed.1 Id. at 1243. This threshold proportionality inquiry requires a

comparison of “the gravity of the offense and the severity of the sentence.”

Graham v. Florida, — U.S. —, 130 S. Ct. 2011, 2022 (2010). “In general, a

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

unusual under the Eighth Amendment.” Johnson, 451 F.3d at 1243.

       Merchant argues that his sentence is grossly disproportionate in light of his

personal circumstances, namely his lack of a prior criminal history, his age (25

years old) at the time of the offense, his lack of sophistication and limited life

experience, his family support, and expert testimony at the sentencing hearing that

he is amenable to treatment and bears a low risk of recidivism. Merchant also


       1
        If a defendant makes a threshold showing of gross disproportionality, then “the court
must then consider the sentences imposed on others convicted in the same jurisdiction and the
sentences imposed for commission of the same crime in other jurisdictions.” Johnson, 451 F.3d
at 1243. If this comparison “validates [the] initial judgment that the sentence is grossly
disproportionate, the sentence is cruel and unusual.” Graham v. Florida, — U.S. —, 130 S. Ct.
2011, 2022 (2010) (brackets and quotation marks omitted).
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asserts that the changing mores of society, as reflected in commentator and judicial

criticism of the Sentencing Guidelines for child pornography offenses, require that

his sentence be vacated.

       Merchant has not shown the district court plainly erred in imposing his

sentence. Merchant’s 210-month sentence was not grossly disproportionate under

the clear wording of a statute or controlling precedent. To the contrary,

Merchant’s sentence, at 17.5 years, was well within the statutory limits of 5 to 20

years’ imprisonment. See 18 U.S.C. § 2252A(b)(1) (authorizing term of

imprisonment of 5 to 20 years for violations of § 2252A(a)(2)(B)). In fact, the

district court sentenced Merchant at the low end of his advisory guidelines range of

210 to 262 months. And Merchant’s offense was extremely grave, as it involved

nearly 47,000 images of child pornography, many of them depicting violence

against infants, toddlers, and other young children. 2 See McGarity, 669 F.3d at

1256 (rejecting Eighth Amendment challenge to life sentences imposed on

members of child pornography ring and reaffirming that “the sexual abuse of

children, and the use of the internet to facilitate that abuse, are serious problems

affecting the health and welfare of the nation”). Merchant points to no controlling

precedent that plainly shows his sentence to be grossly disproportionate or

       2
        A search of Merchant’s computer and external hard drive discovered 3,568 still images
and 579 videos depicting the sexual abuse and exploitation of infants, toddlers, and other
prepubescent children. Pursuant to U.S.S.G. § 2G2.2, cmt. n.4(B)(ii), each video is considered to
contain 75 images, yielding a total of 46,993 images.
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otherwise cruel and unusual under the Eighth Amendment. 3 Accordingly,

Merchant has not met his burden of showing the district court plainly erred in

imposing his sentence.

       AFFIRMED.




       3
         In fact, Merchant candidly acknowledges in his brief “the numerous decisions of this
Court rejecting challenges similar to the one [raised] in this brief.” See, e.g., United States v.
Farley, 607 F.3d 1294, 1343–45 (11th Cir. 2010); Johnson, 451 F.3d at 1242–44. Merchant
argues we should “recede[] from” those earlier cases in light of, among other things, the
Supreme Court’s recent decisions in Graham, 130 S. Ct. 2011 (holding Eighth Amendment
prohibits imposition of life-without-parole sentence on juvenile offenders who did not commit
homicide), and Miller v. Alabama, — U.S. —, 132 S. Ct. 2455 (2012) (holding Eighth
Amendment prohibits sentences of mandatory life imprisonment without parole for persons
under 18 years old at the time of their crimes). Even putting aside the fact that our review is for
plain error, the Graham and Miller decisions are clearly inapposite.
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