FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 10, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15439

Non-Argument Calendar

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D. C. Docket No. 08-00536-CR-T-24-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MERCANDY GAETAN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(June 10, 2010)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

Mercandy Gaetan appeals his 435-month sentence, imposed after he pleaded

guilty to one count of conspiracy to commit robbery, in violation of 18 U.S.C.
§ 1951(a) (Count 1); two counts of robbery, in violation of 18 U.S.C. §§ 1951(a)

and 2 (Counts 2 and 4); and two counts of carrying and brandishing a firearm

during and in relation to a crime of violence, in violation of 18 U.S.C.

§§ 924(c)(1)(A)(ii) and 2 (Counts 3 and 5).

Gaetan’s plea agreement included a sentence appeal waiver, in which he

waived the right to appeal his sentence or challenge it collaterally on any ground,

subject to three exceptions: (1) the sentence exceeded the applicable guidelines

range as determined by the district court; (2) the sentence exceeded the statutory

maximum; or (3) the sentence violated the Eighth Amendment to the Constitution.

The district court sentenced Gaetan to a total of 435 months imprisonment—

51 months for Counts 1, 2, and 4; the statutory mandatory minimum of 7 years for

Count 3, to run consecutive to Counts 1, 2, and 4; and the statutory mandatory

minimum of 25 years for Count 5, to run consecutive to Counts 1, 2, 3, and 4.

I.

Four of the five arguments that Gaetan raises on appeal—(1) that the district

court erred in denying him a reduction for acceptance of responsibility; (2) that the

district court erred in imposing consecutive mandatory minimum sentences; (3)

that mandatory minimum sentences are contrary to the Sentencing Commission’s

original goals, and (4) that his total sentence was substantively unreasonable—are

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foreclosed by the sentence appeal waiver in Gaetan’s plea agreement.

“We review the validity of a sentence appeal waiver de novo.” United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver is

effective if it is made knowingly and voluntarily. Id. In this case, the record

shows that the district court reviewed the sentence appeal waiver with Gaetan at

the plea hearing, Gaetan confirmed that he understood the waiver, and Gaetan

stated that he was agreeing to the waiver freely and voluntarily as part of his plea

agreement. We therefore find that Gaetan entered into a valid, enforceable waiver.

See United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). Because none

of the arguments listed above fall within the limited exceptions to the sentence

appeal waiver, we dismiss as to these issues.

II.

Gaetan also challenges his sentence on the ground that it constitutes cruel

and unusual punishment prohibited by the Eighth Amendment, because the

sentence is disproportionate to the offense and also because the mandatory

minimums forced the district court to impose a sentence that failed to account for

his unique circumstances.

“We review challenges to the constitutionality of a sentence de novo.”

United States v. Sanchez, 586 F.3d 918, 932 (11th Cir. 2009). “In non-capital

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cases, the Eighth Amendment encompasses, at most, only a narrow proportionality

principle.” United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995). The

Supreme Court has made it clear that “‘[o]utside the context of capital punishment,

successful challenges to the proportionality of particular sentences [will be]

exceedingly rare.’” Solem v. Helm, 463 U.S. 277, 289–90, 103 S. Ct. 3001, 3009

(1983) (alterations in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100

S. Ct. 1133, 1138 (1980)).

Gaetan has not shown that his sentence is “grossly disproportionate to the

offense committed.” Brant, 62 F.3d at 368. Gaetan committed two armed

robberies, and Congress has determined that such crimes should be punished with

lengthy consecutive sentences. We must accord “substantial deference” to

Congress, which possesses “broad authority . . . in determining the types and limits

of punishments for crimes.” Solem, 463 U.S. at 290, 103 S. Ct. at 3009. “‘In

general, a sentence within the limits imposed by statute is neither excessive nor

cruel and unusual under the Eighth Amendment.’” United States v. Johnson, 451

F.3d 1239, 1243 (11th Cir. 2006) (quoting United States v. Moriarty, 429 F.3d

1012, 1024 (11th Cir. 2005)). Because the district court sentenced Gaetan within

the statutory limits, he has not made a threshold showing of disproportionality with

respect to his sentence. See id.

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The fact that the mandatory minimums prevented the district court from

considering Gaetan’s unique circumstances does not render the sentence

unconstitutional. “‘[A] sentence which is not otherwise cruel and unusual does not

become so simply because it is mandatory.’” United States v. Raad, 406 F.3d

1322, 1324 (11th Cir. 2005) (internal quotation marks and alterations omitted)

(quoting Harmelin v. Michigan, 501 U.S. 957, 995, 111 S. Ct. 2680, 2701 (1991)).

We have previously rejected Eighth Amendment challenges to the imposition of

mandatory minimum sentences under several different statutes. See, e.g., United

States v. Arias-Izquierdo, 449 F.3d 1168, 1187 (11th Cir. 2006) (air piracy); Raad,

406 F.3d at 1324 (smuggling aliens into the United States); United States v.

Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (Armed Career Criminal Act);

United States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (drug trafficking). We

see no reason to differentiate those offenses from the offense for which Gaetan was

convicted, carrying and brandishing a firearm during and in relation to a crime of

violence. For the foregoing reasons, Gaetan’s 435-month sentence does not violate

the Eighth Amendment’s ban on cruel and unusual punishment.

DISMISSED IN PART, AFFIRMED IN PART.

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