IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10303

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VIRGIL SHAWN FORESTER,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-206-1

Before DeMOSS, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Virgil Shawn Forester (“Forester”) pleaded guilty to production and use 

of a counterfeit access device. He was sentenced to 81 months in prison which 

was above the advisory range of 46 to 57 months. The district court justified 

the sentence as a variance under 18 U.S.C. § 3553(a) or a departure from the 

sentencing guidelines.

* 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

March 5, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10303

Forester argues that his 81-month sentence constitutes a cruel and 

unusual punishment in violation of the Eighth Amendment because it is 

disproportional to his offense conduct. We have set forth the following 

analytical rubric for considering such claims:

When adjudicating an Eighth Amendment proportionality 

challenge, we must first make a threshold comparison between the 

gravity of the charged offense and the severity of the sentence. 

Only if we conclude that the sentence is “grossly disproportionate” 

to the offense may we proceed to consider whether it offends the 

Eighth Amendment, under the test announced in Solem. If we 

conclude that the sentence is not “grossly disproportionate,” our 

inquiry is finished, and we must defer to the will of Congress. 

United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997) (citing Solem v. 

Helm, 463 U.S. 277 (1983)) abrogated on other grounds by United States v. 

O’Brien, 560 U.S. 218 (2010). We have stated that Rummel v. Estelle, 445 U.S. 

263 (1980), “establishes a benchmark for claims of disproportionate 

punishment under the Eighth Amendment.” Gonzalez, 121 F.3d at 943. We 

have explained:

In Rummel, the defendant had been sentenced to life 

imprisonment following his conviction for obtaining $120.75 by 

false pretenses, pursuant to a “recidivist statute” providing a 

mandatory sentence of life imprisonment for any defendant 

convicted of three felonies. Noting that the line-drawing function 

inherent in the determination of punishment is a matter within 

the discretion of the legislature, the Court held that the life 

sentence was not so grossly disproportionate as to offend the 

Eighth Amendment. 

Id. (citing Rummel, 445 U.S. at 284-85). With respect to the assertion that his 

sentence was disproportionate to the severity of his crime, Forester’s argument 

is conclusional. Furthermore, after considering Rummel as a benchmark, we 

are unpersuaded that Forester’s sentence of 81 months for a fraud crime with 

a maximum penalty of ten years was “grossly disproportionate.” Therefore, 

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we find that Forester’s Eighth Amendment proportionality challenge is 

without merit.

Additionally, Forester argues that his sentence violates the Eighth 

Amendment “because it makes no measurable contribution to the acceptable 

goals of punishment.” In the present case, the district court explained that 

Forester’s sentence would act as a deterrence and protect the public. Both 

deterrence and incapacitation are legitimate penological goals. See Graham v. 

Florida, 560 U.S. 48, 71 (2010). Here, Forester does not explain how his 

sentence fails to meaningfully contribute to these acceptable goals of 

punishment. This argument is without merit.

Finally, it is unclear whether, apart from his Eighth Amendment 

challenge, Forester is challenging the reasonableness of his sentence. 

Therefore we will briefly address the reasonableness of his sentence. The 

district court described its sentence as either a departure or a variance. In this 

case, “the specific characterization is irrelevant . . . [if] the sentence imposed 

was reasonable under the totality of the relevant statutory factors.” United 

States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks 

and citation omitted). Forester does not raise any procedural errors so we 

move directly to consideration of the substantive reasonableness of his 

sentence. Id. We “consider the substantive reasonableness of the sentence 

imposed under an abuse-of-discretion standard.”1 Gall v. United States, 552 

U.S. 38, 51 (2007). 

At sentencing, the district court addressed Forester’s extensive criminal 

history and stated that a variance was appropriate based on the 18 U.S.C. 

§ 3553(a) factors. We have stated:

1 If an issue is not properly preserved it is reviewed for plain error. Brantley, 537 F.3d 

at 349. Because Forester does not prevail under an abuse-of-discretion standard, we need 

not consider whether he properly preserved this issue. 

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No. 13-10303

“With respect to considering the § 3553(a) factors, ‘[a] nonGuideline sentence unreasonably fails to reflect the statutory 

sentencing factors where it (1) does not account for a factor that 

should have received significant weight, (2) gives significant 

weight to an irrelevant or improper factor, or (3) represents a clear 

error of judgment in balancing the sentencing factors.’” 

United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013) (quoting United States 

v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). Here, Forester has failed to 

demonstrate that the district court’s sentence unreasonably failed to reflect the 

statutory sentencing factors. We find that the district court did not abuse its 

discretion in sentencing Forester. Gall, 552 U.S. at 51. 

The judgment of the district court is AFFIRMED.

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