                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2218
                                   ___________

United States of America,            *
                                     *
             Appellee,               *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Minnesota.
Fredrick Damond Boaz Watts,          *
also known as Woady, also known      *    [PUBLISHED]
as Fredrick Demond Watts,            *
                                     *
             Appellant.              *
                                ___________

                             Submitted: November 10, 2008
                                Filed: January 12, 2009
                                 ___________

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

       Fredrick Damond Watts appeals his sentence after pleading guilty to aiding and
abetting the distribution of thirteen grams of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. The plea agreement noted a potential
Sentencing Guideline range of forty-one to fifty-seven months' imprisonment and a
mandatory minimum sentence of five years. The district court1 sentenced Watts, an

      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
African-American, to the mandatory minimum, with an additional five years of
supervised release and a $100 special assessment. On appeal, Watts challenges the
five-year mandatory minimum as unconstitutional, alleging that the 100 to 1 crack to
cocaine ratio used to set the mandatory minimum is irrational, and disproportionately
affects African-Americans.

       We review constitutional challenges to a statute de novo. United States v.
Garcia, 521 F.3d 898, 901 (8th Cir. 2008). Title 21 U.S.C. § 841(b)(1)(B) establishes
a mandatory minimum sentence of five years for persons possessing or distributing
either five hundred or more grams of powder cocaine or five or more grams of cocaine
base, resulting in a powder-to-base ratio of 100:1. Historically, United States
Sentencing Guidelines Manual § 2D1.1 mirrored § 841's 100:1 ratio for purposes of
establishing a Guideline sentencing range. However, amendment 706 to Guideline
§ 2D1.1 reduced the powder-to-base ratio to 20:1. Watts contends his statutory
mandatory minimum sentence of five years is unconstitutional in light of amendment
706. When the 20:1 ratio is applied to § 841(b)(1)(B) in lieu of the statutorily
mandated 100:1 ratio, a five-year mandatory minimum only applies if twenty-five or
more grams of crack are in issue. Because Watts was convicted of aiding and abetting
the distribution of thirteen grams of crack, he argues that his sentence is
unconstitutional.

       District courts lack the authority to reduce sentences below congressionally-
mandated statutory minimums. Kimbrough v. United States, 128 S. Ct. 558, 571-72
(2007); see also United States v. Leon-Alvarez, 532 F.3d 815, 818-19 (8th Cir. 2008).
Further, district courts may not consider the powder-to-base ratio disparity when
deviating from statutory minimums on consideration of substantial assistance motions
under 18 U.S.C. § 3553(e). United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir.
2008). Thus, the district court in this case was required to sentence Watts to five
years' imprisonment.



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       Watts claims the statutory minimum sentence may be dispensed with when an
equal protection infringement would otherwise result. This court, however, found no
such equal protection violation in United States v. Clary, 34 F.3d 709 (8th Cir. 1994).
The defendant in Clary alleged the mandatory minimum sentence found in § 841(b)(1)
violated his equal protection rights. Id. at 710. The district court agreed, but this
court reversed. Id. Relying on extensive Eighth Circuit precedent, we noted "that
Congress clearly had rational motives for creating the distinction between crack and
powder cocaine." Id. at 712. Further, the Equal Protection Clause was not violated
because there was no evidence of a racially discriminatory motive–even after noting
the percentage of African Americans sentenced under the mandatory minimum. Id.;
see also United States v. Mendoza, 876 F.2d 639, 641 (8th Cir. 1989) (finding §
841(b)(1)'s mandatory minimum does not violate due process, or equal protection
rights, or constitute cruel and unusual punishment).

       The only difference between those cases rejecting Watts's argument and the
facts here are a change in the powder-to-base ratio in the Guidelines and the
introduction of bills in Congress to change or eliminate the ratio, as codified in § 841.
Neither of these facts, however, warrant a different conclusion. The Supreme Court
in Kimbrough held a different powder-to-base ratio in the Guidelines and § 841(b)(1)
was permissible, and that district court's remain bound by the mandatory minimum
sentences. Kimbrough, 128 S. Ct. at 571, 573. The Court also acknowledged that
even the Sentencing Commission in addressing problems generated by the powder-to-
base ratio, stated that "any comprehensive solution requires appropriate legislative
action by Congress." Id. at 569 (emphasis added) (quotation omitted). Finally, while
there is proposed legislation in Congress that may remedy the problems in question,
these actions remain mere proposals, and it is not the province of this court to
anticipate and implement what may or may not occur in Congress.

      It may be true, as Watts suggests, that the 100:1 powder-to-base ratio in the
context of mandatory minimum sentences has brought "irrationality and possibly

                                          -3-
harmful mischief into the criminal justice system." United States v. Smith, 359 F.
Supp. 2d 771, 780 (E.D. Wis. 2005). Nevertheless, the Smith case, which Watts cites
for a discussion on the Sentencing Commission report recommending a change in the
100:1 ratio and to illustrate the ratio's disparate impact, acknowledges that "[o]nly
Congress can correct the statutory problem." Id. at 781. The powder-to-base ratio
undoubtedly affects tens of thousands of people–in 2007 alone, 9,430 people were
sentenced to a statutory minimum sentence for cocaine charges. U.S. Sentencing
Comm'n, 2007 Sourcebook of Federal Sentencing Statistics tbl.43 (2007), available
at http://www.ussc.gov/ANNRPT/2007/table43.pdf. As frustrating as it may be for
Watts to sit in prison and wait for Congress to possibly remedy a sentencing
requirement, there is currently no other option.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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