[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-14678

Non-Argument Calendar

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D.C. Docket No. 1:19-cv-01381-WMR

BRANDON MYLES PATE, 

 Petitioner-Appellant,

 versus

WARDEN, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

________________________

(July 29, 2020)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

Brandon Pate, a counseled Georgia prisoner, challenges the district court’s 

denial of his 28 U.S.C § 2254 petition on the merits. Pate argues that his twentyCase: 19-14678 Date Filed: 07/29/2020 Page: 1 of 10
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year sentence for the crime of statutory rape, which he committed when he was 

fifteen years old, violates his Eighth Amendment right to be free from cruel and 

unusual punishment. The Georgia Supreme Court concluded that it did not, and that 

decision is entitled to our deference. We affirm. 

I.

After a jury trial in 2010, Pate was convicted of statutory rape, aggravated 

assault, and possession of a knife during the commission of a felony. He was 

acquitted of nine other offenses including forcible rape, terroristic threats, and child 

molestation. According to the Georgia Supreme Court, the evidence presented at 

Pate’s trial showed the following:

On an evening in late December 2006 or early January 2007, 13-yearold M.R. was at her home in Gwinnett County. Although her father 

had forbidden visitors, M.R. invited her best friend, K.E., to visit. Pate 

(who then was 15 years old) and another boy drove K.E. to M.R.’s 

home and dropped her off. K.E. snuck through a window into M.R.’s 

bedroom, where the girls watched television and ate snacks. All the 

while, M.R.’s father was asleep in an adjoining bedroom.

At some point, Pate and the other boy returned to M.R.’s home, 

ostensibly to pick up K.E. Pate entered M.R.’s bedroom through the 

window and asked M.R., “When are you going to give it up to me?” 

M.R. told Pate that she did not want to have sex with him. Pate 

continued to ask for sex, and M.R. continued to refuse him. Pate then 

pulled a knife from his pocket and said, “Well, if you’re not going to 

have sex with me, then I’m going to slit your dad’s throat.” Believing 

the threat to be credible, M.R. gave in to Pate’s demands. He took off 

her clothes and twice had sex with her. After Pate finished, he left with 

K.E. and the other boy. M.R. kept quiet about the incident for nearly 

two years, and in December 2008, she told her father, who reported the 

incident to law enforcement.

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Conley v. Pate, 825 S.E.2d 135, 137 (Ga. 2019). The state also presented testimony 

that Pate engaged in similar behavior with another victim soon after this incident. 

Pate was sentenced to the statutory maximum of twenty years of 

imprisonment for statutory rape, a consecutive term of twenty years of probation for 

aggravated assault, and a consecutive term of five years of probation for the knife 

possession offense. Pate appealed his convictions, and the Georgia Court of Appeals 

affirmed. See Pate v. State, 726 S.E.2d 691, 693 (Ga. Ct. App. 2012). 

In December 2013, Pate filed a pro se state petition for a writ of habeas corpus. 

After obtaining counsel, Pate filed an amended petition raising the claim at issue 

here: that his twenty-year sentence was so disproportionate to the crime of statutory 

rape that it amounted to cruel and unusual punishment in violation of the Eighth 

Amendment. Relatedly, Pate maintained that the statutory rape offense was a 

misdemeanor which could not sustain a felony sentence of twenty years. 

After a hearing, the state habeas court determined that Pate was entitled to 

relief and granted the writ of habeas corpus. In relevant part, the habeas court 

concluded that the twenty-year sentence for statutory rape was “grossly 

disproportionate” to his offense. The court reasoned that Pate was not sufficiently 

culpable to warrant the maximum penalty due to his “youth, immaturity and 

impulsivity” when he committed the offense. In addition, the court described Pate’s

conduct as a “passive felony” merely involving “consensual sex with an individual 

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younger than him,” which the court said was either a misdemeanor or not a crime in 

other jurisdictions. Finally, the court asserted that the offense was, in fact, a 

misdemeanor because it fell within O.C.G.A. § 16-6-3(c), which makes statutory 

rape a misdemeanor “[i]f the victim is at least 14 but less than 16 years of age and 

the person convicted of statutory rape is 18 years of age or younger and is no more 

than four years older than the victim.”

The Georgia Supreme Court unanimously reversed the grant of habeas relief. 

Pate, 825 S.E.2d at 137. First, the court found that Pate had been convicted of a 

felony, not a misdemeanor. Id. at 138. Because § 16-6-3(c) “applies only when the 

victim is ‘at least 14 [years of age],’” the court explained, it did not apply where, as 

in this case, the victim was thirteen years old at the time of the crime. Id. 

Second, the Georgia Supreme Court found that Pate had not created an 

inference that the sentence was grossly disproportionate to the offense under the 

Eighth Amendment. Id. The court explained that, when assessing the gravity of the 

offense, courts “consider what actually happened” rather than just the statutory 

elements. Id. at 139. And in the court’s view, the actual facts showed that the state 

habeas court had “grossly mischaracterize[d] what Pate did to M.R.,” which was to

“brandish[] a knife and threaten[] to kill her father” to pressure her to have sex with 

him. Id. The court also addressed § 16-6-3(c), reasoning that, because it expressly 

did not apply to Pate’s offense, there was no indication that the Georgia legislature 

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had determined that his conduct ought to be punished only as a misdemeanor. Id. at 

139–40. Thus, the court stated that, “despite [Pate’s] young age, his sentence for 

statutory rape must stand.” Id. at 140. 

Pate sought habeas relief in federal court under 28 U.S.C. § 2254, raising his 

Eighth Amendment claim, among others. A magistrate judge recommended that the 

§ 2254 petition be denied, and the district court adopted that recommendation over 

Pate’s objections. While the district court recognized that Pate, “as a fifteen-yearold at the time of his crimes, may be less deserving of the most severe punishment,” 

it agreed with the Georgia Supreme Court that his twenty-year sentence, though 

“harsh,” was not “grossly disproportionate” to the conduct of brandishing a knife to 

pressure a resistant thirteen-year-old to have sex. The court granted a certificate of 

appealability on this issue, which Pate advances on appeal. 

Pate maintains that it is cruel and unusual, in violation of the Eighth 

Amendment, to sentence a juvenile first offender to the maximum penalty of twenty 

years in prison for statutory rape when the conviction resulted from consensual sex 

with another teenager. 

II.

In a § 2254 case, we review the district court’s decision de novo, but we 

generally review the state court’s decision with deference. Reed v. Sec’y, Fla. Dep’t 

of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010). When a state court has resolved a 

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petitioner’s claim on the merits, we must defer to the state court’s decision unless it 

was objectively unreasonable in view of clearly established federal law or the 

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). A state 

court’s decision is objectively unreasonable “only if no ‘fairminded jurist’ could 

agree” with the state court’s determination of the facts or its application of clearly 

established law. Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 

(11th Cir. 2012). 

III.

Under the Eighth Amendment, as incorporated by the Fourteenth 

Amendment, the states cannot inflict “cruel and unusual punishments.” U.S. Const. 

amend. VIII; see Estelle v. Gamble, 429 U.S. 97, 101 (1976). This prohibition covers 

not only “inherently barbaric punishments,” such as torture, but also punishments 

that are “disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 59 (2010). 

In non-capital cases, the Eighth Amendment does not “require strict 

proportionality but rather forbids only extreme sentences that are grossly 

disproportionate to the crime.” Id. at 59–60 (quotation marks omitted). To 

determine whether a sentence for a term of years is grossly disproportionate to the 

crime, the court must “begin by comparing the gravity of the offense and the severity 

of the sentence.” Id. at 60. This inquiry is based on “all of the circumstances of the 

case.” Id. at 59. If this “threshold comparison” yields an “inference of gross 

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disproportionality,” which will be “rare,” “the court should then compare the 

defendant’s sentence with the sentences received by other offenders in the same 

jurisdiction and with the sentences imposed for the same crime in other 

jurisdictions.” Id. at 60 (quotation marks omitted). Only if this “comparative 

analysis” validates the initial inference of gross disproportionality is the sentence 

cruel and unusual. Id.; see United States v. Raad, 406 F.3d 1322, 1323–24 (11th 

Cir. 2005) (outlining the same basic approach). 

The Georgia Supreme Court applied this analysis and concluded that Pate 

failed to show at the “threshold” stage that his sentence was constitutionally 

disproportionate. According to the Georgia Supreme Court, the trial evidence and 

the jury verdict established that Pate pressured a resistant thirteen-year-old girl to 

have sex with him by brandishing a knife and threatening to kill her father. This 

conduct was serious enough in the court’s view that, “despite his young age,” his 

twenty-year sentence did not establish an inference of gross disproportionality. 

Pate falls short of showing that the Georgia Supreme Court’s decision is not 

entitled to our deference. See United States v. Farley, 607 F.3d 1294, 1343 (11th 

Cir. 2010) (“Successful challenges to the proportionality of particular sentences are 

exceedingly rare.”). We acknowledge that juveniles, particularly those like Pate who 

were under sixteen years old at the time of the crime, are “less culpable than adults.” 

Roper v. Simmons, 543 U.S. 551, 571 (2005); see Miller v. Alabama, 567 U.S. 460, 

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471 (2012) (because of their “diminished capacity and greater prospects for reform,” 

juveniles are “constitutionally different from adults for purposes of sentencing”). 

For that reason, the Supreme Court over time has either ruled out or limited a state’s 

“harshest penalties”—the death penalty and life without parole—for juvenile 

offenders. See Miller, 567 U.S. at 470–79 (reviewing this precedent). 

Nevertheless, Pate was not subject to Georgia’s “harshest penalties,” and his 

conduct was serious and violent, despite his youth. Although Pate claims that the 

sex was consensual, pointing to his acquittal of forcible rape, he does not identify 

any specific factual dispute with the Georgia Supreme Court’s description of his 

conduct, which we quoted at length above. As that court recounted, when the victim 

refused Pate’s demands to have sex, he pulled a knife from his pocket and told the 

victim, “Well, if you’re not going to have sex with me, then I’m going to slit your 

dad’s throat,” after which she gave in to his demands. Plus, the jury convicted Pate 

of aggravated assault with a knife, so it was certainly reasonable for the Georgia 

Supreme Court to conclude that the sex was not “consensual” in a colloquial sense—

persons under sixteen cannot give legal consent in Georgia—and that his conduct 

was therefore significantly more blameworthy than if a fifteen-year-old had simply 

engaged in “consensual” sex with a thirteen-year-old. 

A twenty-year sentence for a fifteen-year-old first-time offender is without a 

doubt a severe penalty. But it is not comparable to a sentence of life without parole 

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or of death. See Miller, 567 U.S. at 470–79. And based the circumstances of the 

case, which included Pate pressuring a resistant thirteen-year-old girl to have sex by 

brandishing a knife and threatening to kill her father, we cannot say that the Georgia 

Supreme Court was unreasonable in concluding that Pate had not established an 

inference that the twenty-year sentence was “grossly disproportionate” to the crime. 

Pate’s arguments in response are unpersuasive. Highlighting the fact that he 

received the maximum statutory penalty, Pate stresses a comparison between 

himself (“a 15-year[-]old boy who had sex with a 13-year[-]old girl once”) and a 

hypothetical adult male repeat offender (“a 50-year[-]old man who has twice before 

had sex with a 13-year[-]old girl”), arguing that it would be “absurd” and cruel to 

give them both the same sentence. But the Georgia Supreme Court was not required 

to consider the sentences imposed on others, whether real or hypothetical, because

the court did not unreasonably concluded that Pate failed to make a threshold 

showing of disproportionality.1

 See Graham, 560 U.S. at 59–60; United States v. 

Raad, 406 F.3d 1322, 1324 n.4 (11th Cir. 2005) (“Because Raad cannot make a 

1 Moreover, statutory limits play little if any role in the threshold proportionality analysis, 

which compares the gravity of the conduct and the length of the sentence. See Graham, 560 U.S. 

at 60; Farley, 607 F.3d at 1343 (disregarding that the thirty-year sentence at issue was the statutory 

minimum sentence in analyzing whether it was “constitutionally disproportionate”). But see 

United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (“In general, a sentence within the 

limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” 

(quotation marks omitted)). 

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threshold showing of disproportionality, we need not consider the sentences imposed 

on others.”). 

Pate also suggests that we should consider the fact that his counts of 

conviction, had they been charged independently of the counts of acquittal, would 

have been prosecuted in juvenile court. That, of course, is not what happened. And 

even assuming this may be a relevant consideration, there is no “clearly established 

[f]ederal law” that required the Georgia Supreme Court to consider it, see 28 U.S.C. 

§ 2254(d), nor would it undermine that court’s reasoning. Moreover, the court 

considered and rejected Pate’s similar arguments based on § 16-6-3(c) and the 

alleged views of the Georgia legislature regarding whether his conduct was less 

blameworthy than other violations of § 16-6-3(a). 

For these reasons, Pate has not shown that the Georgia Supreme Court’s 

decision was based on either an unreasonable application of clearly established 

federal law or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 

The Georgia Supreme Court applied the correct analytical framework under 

controlling Supreme Court precedent and did not unreasonably conclude, based on 

both the facts and the law, that Pate’s twenty-year sentence, despite his young age, 

was not grossly disproportionate to the crime. We affirm the denial of his § 2254 

petition.

AFFIRMED. 

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