* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 98-30061

No. 98-30069

____________

ALVIN PERKINS,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana St ate

Penitentiary; RICHARD IEYOUB, Attorney

General, State of Louisiana,

Respondents-Appellees.

Appeals from the United States District Court

for the Eastern District of Louisiana

(97-CV-1286-H & 97-CV-1316-H)

November 11, 1998

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: *

Alvin Perkins was convicted of armed robbery and sentenced as

a mult iple offender to a 99-year term of imprisonment without

benefit of probation, parole, or suspension of sentence. Perkins

initiated habeas corpus proceedings under 28 U.S.C. § 2254, in

which he challenged his criminal sentence on the grounds that (1)-2-

the state court unconst i tutionally imposed a harsher sentence

because he exercised his right to a trial by jury, and (2) his

s entence amounts to cruel and unusual punishment in violation of

the Eighth Amendment. The district court dismissed his action, and

Perkins appeals. We affirm.

Perkins argu es that the resentencing judge violated the Due

Process Clause of the Fourteenth Amendment when, after Perkins

chose to stand trial, he imposed the maximum sentence available.

The resentencing judge, in correcting Perkins's “illegally lenient”

sentence, considered the intent of the original judge. See State

v. Desdunes , 579 So. 2d 452, 452 (La. 1991)(per curiam)(stating

that resentencing judge consider s intent of original sentencing

judge), overruled in part

, State v. Harri s , 665 So. 2d 1164 (La.

1996)(per c uriam). The resentencing judge stated the original

judge intended to be lenient on defendants who pled guilty because

“it was a first step on the road to rehabilitation.” Such an

intent is illegal, Perkins alleges, because a defendant may not be

punished by a more severe sentence simply because he unsuccessfully

exercises his constitutional right to stand trial rather than plea

guilty. S ee United States v. Devine

, 934 F.2d 1325, 1338 (5th Cir.

1991). Thus, the resentencing judge's reference to the illegal

intent violated Perkins's due process rights.

Although the resentencing judge r e ferred to the original

judge's intent, he also ordered a new pre-sentence report (“PSR”),

reviewed the reco rd, and set forth independent reasons for

sentencing Pe rkins to the maximum sentence. Perkins's prior-3-

criminal history and the use of a gun in the armed ro b bery

justified the maximum sentence. The PSR and the court's reasons

s upport Perkins's sentence, and thus we cannot find that Perkins

received the maximum sentence because he exercised his right to

stand trial. Consequently, there was no due process violation.

Perkins asse rts additionally that, under S olem v. Helm

, 463

U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), his sentence

constitutes cruel and unusual punishment in violation of the Eighth

Amendment. S ee Solem

, 463 U.S. at 290-91, 103 S. Ct. at 3010

(considering gravity of offense and harshness of penalty, sentences

of other criminals in same jurisdiction, and sentences for same

crime in other jurisdictions). We have stated, however, that S olem

did not survive Harmelin v. Michiga n , 501 U.S. 957, 111 S. Ct.

2680, 115 L. Ed. 2d 836 (1991). S ee McGruder v. Puckett

, 954 F.2d

313, 316 (5th Cir. 1992)(in terpreting H armelin to support a

continued disproportionality inquiry and to reject Solem factors).

“Accordingly, we will initially make a threshold comparison of the

gravity of [P erkins'] offenses against the severity of his

sentence.” Id

.

The state court sentenced Perkins under a recidivist statute,

because Perkins was convicted formerly of armed robbery. Upon

release from the penitentiary, Perkins repeated the crime of armed

robbery, which “certainly endangers life, limb, and property as

much as any non-capital offense.” I d. at 317. W e have found

previously that a life sentence without hope of parole is not

g rossly disproportionate to such an offense. S ee id. (uphold ing-4-

life sentence without possibility of parole for multiple offender

convicted of auto burglary). We find that Perkins's life sentence

is not “grossly disproportionate” to his offense. Perkins's

sentence to life imprisonment without parole is, th erefore, not

cruel and unusual punishment under the Eighth Amendment.

AFFIRMED.