IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41230

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO CARREON-IBARRA, a.k.a. Negro

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas 

No. 5:08-CR-244-19 

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

In 2008, Eduardo Carreon-Ibarra (“Carreon-Ibarra”) pled guilty to two 

counts of a superseding indictment, which charged him with traveling in 

foreign commerce and using a facility in interstate and foreign commerce with 

the intent to commit a crime of violence to further the distribution of controlled 

substances in violation of 18 U.S.C. §§ 1952(a)(2), (a)(3)(B) (count 24), and

possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. 

§ 924 (c)(1)(A)(i), § 924(c)(1)(B)(ii), and §924(c)(1)(C)(i) and (ii) (count 26). The 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 18, 2013

Lyle W. Cayce

Clerk

 

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No. 12-41230

district court sentenced him to 20 years imprisonment on count 24 and a 40-

year consecutive term of imprisonment on count 26. Carreon-Ibarra appealed 

on the grounds that his guilty plea to count 26 was not knowing and voluntary. 

This court agreed and remanded the case to allow Carreon-Ibarra to plead 

anew as to count 26. United States v. Carreon-Ibarra, 673 F.3d 358, 362-67

(5th Cir. 2012). 

On remand, Carreon-Ibarra entered a cold plea to possession of a generic 

firearm as alleged in count 26. According to the oral factual basis for the plea, 

Carreon-Ibarra, a member of the Zetas, the enforcement arm of the Gulf Cartel, 

a.k.a. “La Compañía,” the Mexican drug-trafficking and money-laundering 

organization, traveled to Laredo, Texas, where he and a juvenile co-conspirator 

planned to assassinate a member of the Sinaloa Cartel, a.k.a. “Los Chapos,” a 

rival Mexican drug cartel, at a restaurant. Before the intended murder, 

officers from the Laredo Police Department arrested Carreon-Ibarra and the 

co-conspirator in Room 603 of the El Cortez Motel. The search of Room 603

turned up a .40 caliber Glock under the bed mattress and a 9mm Smith & 

Wesson in the water tank of the toilet. The authorities also found a fully 

automatic AR-15 .223 caliber machine gun with an obliterated serial number 

and a semi-automatic MAK-90 7.62x39mm rifle under the mattress in Room 

602. Although Carreon-Ibarra had the keys to both rooms in his possession 

when he was arrested, he denied intentionally possessing the machine gun in 

Room 602, and the district court did not find that he possessed the machine

gun. Rather, the district court found that Carreon-Ibarra possessed at least 

one of the pistols seized from Room 603 in furtherance of a crime of violence. 

At re-sentencing, the district court acknowledged that the offense to 

which Carreon-Ibarra had pled guilty carries a five-year consecutive 

mandatory minimum sentence, but the court imposed a 25-year consecutive 

term. Carreon-Ibarra objected through counsel and now appeals solely on 

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Eighth Amendment grounds, arguing that his sentence is grossly 

disproportionate to the offense. 

I.

Because Carreon-Ibarra adequately preserved his Eighth Amendment 

challenge, the court reviews this constitutional claim de novo. United States 

v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). The Eighth Amendment 

prohibits a sentence that is grossly disproportionate to the severity of the crime 

for which it is imposed. Solem v. Helm, 463 U.S. 277, 288-90, 103 S. Ct. 3001, 

3008-10 (1983); United States v. Gonzalez, 121 F.3d 928, 942 (5th Cir. 1997),

abrogated on other grounds by United States v. O’Brien, 560 U.S. 218, 130 S. Ct. 

2169 (2010). When evaluating an Eighth Amendment proportionality 

challenge, the court makes a threshold comparison between the gravity of the 

charged offense and the severity of the sentence. McGruder v. Puckett, 

954 F.2d 313, 315-16 (5th Cir. 1992). Only if the appellate court infers that 

the sentence is grossly disproportionate to the offense will it then compare the 

sentence received against the sentences for similar crimes in the same 

jurisdiction and sentences for the same crime in other jurisdictions. Id. at 316. 

The scope of review for proportionality challenges is narrow, United States v. 

Thomas, 627 F.3d 146, 160 (5th Cir. 2010), and the success of such challenges 

rare. United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008).

The Supreme Court has held that a sentence of imprisonment for life 

without parole for the defendant’s seventh nonviolent felony—the crime of 

passing a worthless check—violated the Eighth Amendment. Solem, 463 U.S. 

at 284-303. In other cases, the Court has upheld a sentence under state law to 

life without parole for possession of more than 650 grams of cocaine, Harmelin 

v. Michigan, 501 U.S. 957, 990-96, 111 S. Ct. 2680, 2699-2702 (1991), a 

sentence of 25 years to life for the theft of a few golf clubs under California’s 

three-strikes law, Ewing v. California, 538 U.S. 11, 14-30, 123 S. Ct. 1179, 

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1182-99 (2003), and a sentence of life with the possibility of parole for a 

defendant’s third nonviolent felony—the crime of obtaining money by false 

pretenses, Rummel v. Estelle, 445 U.S. 263, 264-85, 100 S. Ct. 1133, 1134-45 

(1980). To determine whether a sentence is “grossly disproportionate,” this 

court looks to Rummel as a benchmark. Gonzales, 121 F.3d at 943. 

Here, the gravity of Carreon-Ibarra’s offense is substantially greater 

than were the crimes punished in Rummel. Carreon-Ibarra operated on behalf 

of the infamous Zetas, and planned to execute a member of another Mexican 

drug cartel in a public forum in the United States using a firearm that posed 

a serious threat of causing collateral damage to innocent bystanders. The 

gravity of the convictions for fraud and forgery that formed the basis of 

Rummel’s sentence pale in comparison to the violent nature of count 26. 

Moreover, the severity of Carreon-Ibarra’s punishment is not excessive, as 

evidenced by a comparison to the Rummel benchmark. In Rummel, the Court 

affirmed a life sentence against a non-violent offender pursuant to a recidivist 

statute that mandated a sentence of life imprisonment for any defendant 

convicted of three felonies. Rummel, 445 U.S. at 285; see also McGruder, 

954 F.2d at 317 (upholding life sentence without possibility of parole under a 

habitual offender statute). By contrast, Carreon-Ibarra’s statutory sentence

imposes a 25-year term for possessing a generic firearm in furtherance of a 

crime of violence. His total sentence is 45 years imprisonment. As the gravity 

of the firearm offense is far greater, and the penalty less severe, than was the 

life sentence upheld against an Eighth Amendment challenge in Rummel, our 

inquiry must conclude. See Gonzalez, 121 F.3d at 944; McGruder, 954 F.2d at 

317. 

II.

For the foregoing reasons, we AFFIRM the sentence on count 26. 

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