United States of America v. Rex Alvin Payne

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4162
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REX ALVIN PAYNE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00058-NCT-1)
Submitted: November 30, 2010 Decided: December 3, 2010
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Anand P. Ramaswamy, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rex Alvin Payne pled guilty, pursuant to a written
plea agreement, to possession of a firearm by a convicted felon
in violation 18 U.S.C. § 922(g) (2006), and was sentenced under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)
(2006), to the mandatory minimum 180-months of imprisonment. On
appeal, Payne contends that the sentence imposed by the district
court violates the Eighth Amendment’s prohibition on cruel and
unusual punishment in that it is grossly disproportionate to the
offense that he committed.
Because the Government did not move for a downward
departure to reflect substantial assistance, the district court
had no authority to depart below the mandatory minimum. 18
U.S.C. § 3553(e) (2006); Melendez v. United States, 518 U.S.
120, 125-26 (1996). “Proportionality review under the Eighth
Amendment’s cruel and unusual punishment clause is not available
for any sentence less that life imprisonment without the
possibility of parole.” United States v. Malloy, 568 F.3d 166,
180 (4th Cir. 2009) (internal alterations and quotation marks
omitted).∗
∗ The Supreme Court’s recent decision in Graham v. Florida,
__ U.S. __, 130 S. Ct. 2011 (2010), does not affect this
holding, as the Court in that case considered a sentence of life
without parole imposed on a juvenile.
We previously rejected a constitutional challenge to

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the ACCA, and held that the mandatory minimum sentence “is
neither disproportionate to the offense nor cruel and unusual
punishment, and thus does not violate the Eighth Amendment.”
United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995).
Accordingly, we affirm Payne’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED

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