USA v. Clay Kirkland

Filing

UNPUBLISHED OPINION FILED. [11-11159 Affirmed ] Judge: CDK , Judge: EBC , Judge: SAH Mandate pull date is 10/19/2012 for Appellant Clay Jarrad Kirkland [11-11159]

Case: 11-11159

Document: 00512003147

Page: 1

Date Filed: 09/28/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-11159
Summary Calendar

September 28, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CLAY JARRAD KIRKLAND, also known as Clay Jarrod Kirkland,
Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-87-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Clay Jarrad Kirkland appeals the within-guidelines 235-month sentence
and the consecutive 60-month sentence imposed following his guilty-plea
convictions for possession with the intent to distribute methamphetamine and
possession of a firearm in furtherance of a drug-trafficking crime. Kirkland
argues that the sentences are cruel and unusual in violation of the Eighth
Amendment because they are grossly disproportionate to the severity of the
offenses committed.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 11-11159

Document: 00512003147

Page: 2

Date Filed: 09/28/2012

No. 11-11159
Because Kirkland failed to object on this ground in the district court,
review is for plain error. See United States v. Howard, 220 F.3d 645, 647 (5th
Cir. 2000). In comparison to the life sentence imposed in Rummel v. Estelle, 445
U.S. 263 (1980), on a non-violent criminal pursuant to a recidivist statute, and
the 30-year sentence imposed in United States v. Gonzales, 121 F.3d 928, 943-44
(5th Cir. 1997), abrogated on other grounds by United States v. O’Brien, 130 S.
Ct. 2169, 2180 (2010), on a non-habitual offender convicted of using or carrying
a firearm during a drug-trafficking offense, the within-guidelines sentences
imposed on Kirkland are not grossly disproportionate to his offenses. See
Gonzales, 121 F.3d at 943; McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.
1992).
Accordingly, the judgment of the district court is AFFIRMED.

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