United States Court of Appeals

For the Eighth Circuit

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No. 15-3425

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Paul McCurry, also known as Paul Wesley McCurry, also known as Paul McCurry,

Jr.

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: June 17, 2016

 Filed: August 9, 2016 

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Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.

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BRIGHT, Circuit Judge.

Appellant-defendant Paul McCurry (McCurry) pled guilty in district court1

 to

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and

924(e). As a condition of his guilty plea, McCurry reserved the right to contest on

1

The Honorable Donovan W. Frank, United States District Judge for the District

of Minnesota.
appeal his categorization as an armed career criminal pursuant to the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e). The district court sentenced McCurry to

the fifteen-year mandatory minimum sentence in accordance with the ACCA. 

McCurry argues on appeal that the district court’s sentence constitutes cruel and

unusual punishment in violation of the Eighth Amendment because McCurry has

lower intelligence. We affirm.

I.

On March 26, 2013, McCurry and his girlfriend, M.R., argued in M.R.’s

apartment. McCurry, a convicted felon, left the apartment carrying a handgun. 

M.R.’s sister called the police and reported the incident, noting that McCurry left the

apartment with a handgun. 

After leaving the apartment, McCurry hid from police in a neighbor’s yard

behind a grill. Police used a canine to locate McCurry and removed McCurry from

behind the grill. Police then found a handgun underneath the grill. McCurry admitted

to possession of the handgun and placement of the handgun underneath the grill. 

Police arrested McCurry.

A grand jury indicted McCurry with one count of being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). McCurry moved for a

competency examination. The district court granted the motion and the Metropolitan

Correctional Center (MCC) evaluated McCurry’s competence. MCC concluded

McCurry had “below average” cognitive skills but ultimately determined McCurry

was competent in light of his ability to understand his criminal case. A magistrate

judge2

 held a competency hearing where neither side presented testimony. The

2

The Honorable Arthur J. Boylan, United States Magistrate Judge for the

District of Minnesota.

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magistrate judge relied on the competency report and found McCurry competent to

stand trial.

McCurry pled guilty pursuant to a plea agreement, but reserved the right to

contest his categorization as an armed career criminal on appeal. At sentencing, the

district court noted McCurry had three prior convictions for violent felonies which

subjected McCurry to a fifteen-year mandatory minimum sentence under the ACCA. 

Despite being found competent to stand trial, McCurry argued a fifteen-year

mandatory minimum sentence would constitute cruel and unusual punishment because

of McCurry’s lower intelligence.3

 The district court sentenced McCurry to the fifteenyear mandatory minimum. McCurry timely appealed.

II.

“We review Eighth Amendment sentencing challenges de novo.” United States

v. Capps, 716 F.3d 494, 498 (8th Cir. 2013). McCurry argues a fifteen-year

mandatory minimum sentence constitutes cruel and unusual punishment in light of

McCurry’s lower cognitive abilities. We disagree.

The Eighth Amendment is not a “time-worn adage[]” or a “hollow

shibboleth[].” Trop v. Dulles, 356 U.S. 86, 103, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). 

Instead, the Eighth Amendment protects “vital, living principles” necessary to “limit

governmental powers.” Id. The Supreme Court has recognized certain situations

where a sentence imposed upon a defendant violates the Eighth Amendment. 

Unconstitutional sentences usually involve capital punishment or life sentences

3

McCurry’s IQ score varied over time. According to the PSR, at age 16

McCurry scored a full-scale IQ of 55 and at age 18 scored a full-scale IQ of 78. 

Because McCury scored above a full-scale IQ of 70 when McCurry became an adult,

McCurry did not qualify for disability services.

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without parole imposed upon juveniles or the mentally disabled. See Miller v.

Alabama, – U.S. –, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012) (categorically

prohibiting mandatory life sentences without parole to juveniles); Graham v. Florida,

560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (categorically prohibiting

life sentences without parole for juvenile offenders convicted of non-homicidal

offenses); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1

(2005) (categorically prohibiting the death penalty for juvenile offenders); Atkins v.

Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (categorically

prohibiting the death penalty for persons who are mentally disabled). 

But the Eighth Amendment also protects competent adults from cruel and

unusual sentences. For example, in Solem v. Helm, a case originating from a state

habeas petition in South Dakota, the Supreme Court affirmed the Eighth Circuit in

holding a district court violated the Eighth Amendment when it sentenced a competent

adult to a life sentence without parole for committing a seventh non-violent felony. 

463 U.S. 277, 303, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), aff’g, 684 F.2d 582 (8th

Cir. 1982). 

In this case, however, the sentence imposed upon McCurry does not fall within

the purview of the Eighth Amendment. McCurry does not face capital punishment or

life imprisonment without the possibility of parole. McCurry is neither a juvenile nor

mentally disabled. McCurry has lower intelligence, but was found competent to stand

trial. Further, McCurry’s sentence reflects prior convictions for violent felonies, as

opposed to non-violent conduct. Under this circumstance, “the mandatory minimum

sentence of fifteen years imprisonment under § 924(e) is not 

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cruel and unusual punishment and does not violate the Eighth Amendment.” See

United States v. Yirkovsky, 259 F.3d 704, 707 (8th Cir. 2001).

Affirmed.

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