What is the test for overturning a sentence under the Eighth Amendment?

"We review de novo the legality of a district court's sentence under the [E]ighth [A]mendment." United States v. Bland, 961 F.2d 123, 128 (9th Cir.), cert. denied, --- U.S.L.W. --- (U.S. Oct. 5, 1992), (91-8722).

Ordinarily, a sentence that does not exceed the statutory maximum will not be overturned on Eighth Amendment grounds. United States v. McDougherty, 920 F.2d 569, 576 (9th Cir.1990), cert. denied, 111 S.Ct. 1119 (1991). Nevertheless, we consider three factors in determining the constitutionality of a sentence within the statutory penalty: "(1) the gravity of the offense and the harshness of the penalty; (2) the comparison with sentences imposed on other criminals in the same jurisdiction; and (3) where appropriate, the comparison with sentences imposed for commission of the same crime in other jurisdictions." Id. (citing Solem v. Helm, 463 U.S. 277, 290-92 (1983)).