United States Court of Appeals,

Eleventh Circuit.

No. 94-8984.

UNITED STATES of America, Plaintiff-Appellee,

v.

John D. BRANT, Defendant-Appellant.

Aug. 25, 1995.

Appeal from the United States District Court for the Southern

District of Georgia. (No. 6:94-00007-CR-01), B. Avant Edenfield,

Chief Judge.

Before KRAVITCH, EDMONDSON and BARKETT, Circuit Judges.

PER CURIAM:

 Brant appeals from a 188-month sentence imposed for

manufacturing marijuana. Invoking the Fifth Amendment and the

Eighth Amendment, he challenges the sentence. Because the career

offender provisions of the Sentencing Guidelines, which led to

Brant's sentence, violate neither the Fifth nor the Eighth

Amendments, we affirm.

Brant pled guilty to one count of manufacturing marijuana in

violation of 21 U.S.C. § 841(a)(1). He conceded that he could be

held accountable for 100 plants. His criminal record included

earlier state court convictions for (i) growing marijuana with

intent to distribute; (ii) selling marijuana; (iii) armed

robbery; and (iv) escape. The probation office applied the career

offender provisions set forth at U.S.S.G. § 4B1.1 to determine his

guideline range. Application of section 4B1.1 increased Brant's

total offense level from 23 to 31 and his Criminal History Category

from IV to VI. The low end of his guideline range under section
4B1.1 increased from 70 to 188 months.

Brant says that the application of the career offender

provisions violated the Eighth Amendment prohibition against the

imposition of cruel and unusual punishment. He argues that the

sentence is (i) disproportionate to the offense; and (ii)

excessive when compared to the sentences imposed for other federal

crimes and for drug trafficking crimes under state law.

 In non-capital cases, the Eighth Amendment encompasses, at

most, only a narrow proportionality principle. Harmelin v.

Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)

(upholding mandatory non-parolable life sentence imposed upon

accused convicted of possessing more than 650 grams of cocaine).

Before Harmelin, we considered three elements in analyzing

proportionality arguments: (1) the gravity of the offense and the

harshness of the sentence; (2) the sentences imposed on other

criminals in the same jurisdiction; and (3) the sentences imposed

for commission of the same crime in other jurisdictions.

McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992) (citing

Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637

(1983)), cert. denied, --- U.S. ----, 113 S.Ct. 1423, 122 L.Ed.2d

792 (1993). But, this Court, construing Harmelin, recently

modified the three factor Solem test. Id. The new test directs

the reviewing court to consider the remaining Solem factors only if

the court has first made a threshold determination that the

sentence imposed is grossly disproportionate to the offense. Id.

(approving reasoning of McGruder v. Puckett, 954 F.2d 313 (5th

Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 146, 121 L.Ed.2d 98
(1992)).

 The Supreme Court has squarely rejected an Eighth Amendment

challenge to a 40-year sentence imposed under Virginia law for

possession of nine ounces marijuana. Hutto v. Davis, 454 U.S. 370,

371-375, 102 S.Ct. 703-704-06, 70 L.Ed.2d 556 (1982). More

recently, under the newly modified Solem test, we have rejected an

Eighth Amendment challenge to the mandatory life sentence

provisions of 21 U.S.C. § 841(b)(1). See United States v. Willis,

956 F.2d 248, 251 (11th Cir.1992) (cocaine offense); see also

United States v. Diaz, 26 F.3d 1533, 1545 (11th Cir.1994) (cocaine

offense), cert. denied, --- U.S. ----, 115 S.Ct. 952, 130 L.Ed.2d

895 (1995). In the light of these precedents, the 15.66 year

sentence imposed in this case is not sufficiently disproportionate

to the offense to trigger application of the remainder of the Solem

analysis. The Eighth Amendment has not been violated.

Brant also argues that the career offender provisions violate

the Due Process and Equal Protection Clauses of the Fifth

Amendment. He contends that the provisions are irrational and

arbitrary because a defendant with a more extensive criminal record

could have a lower Criminal History Category, while a "mega-farmer"

convicted of growing 10,000 marijuana plants would have the same

offense level.

Although this Court has not specifically addressed U.S.S.G. §

4B1.1, we have held that a similar provision, section 4B1.4 (armed

career criminal) violates neither due process nor equal protection.

See United States v. Johns, 984 F.2d 1162, 1164 (11th Cir.1993).

"The career offender scheme of using a defendant's criminal record
in considering both his offense level and his criminal history

under the Sentencing Guidelines bears a rational relationship to a

legitimate governmental purpose—"to prevent repeat offenders from

continuing to victimize society.' " Johns, 984 F.2d at 1164

(quoting United States v. John, 936 F.2d 764, 766 n. 2 (3rd

Cir.1991). Brant's due process and equal protection claims are

unpersuasive.

AFFIRMED.