                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3340
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Arkansas.
Dewayne A. Lucas,                       *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: February 13, 2009
                                Filed: March 2, 2009
                                 ___________

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.

       In this direct criminal appeal, Dewayne Lucas challenges the sentence the
district court1 imposed after he pleaded guilty to drug and firearm charges. At
sentencing, the district court grouped Count 1 (possessing with intent to distribute
more than 50 grams of methamphetamine) with Count 3 (possessing with intent to
distribute more than 50 grams of cocaine base) and calculated an advisory Guidelines
imprisonment range of 97-121 months, elevated to 120-121 months based on the
statutory minimum under 21 U.S.C. § 841(b)(1)(A) for Count 3. The court then

      1
        The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
imposed concurrent sentences of 120 months in prison on Counts 1 and 3, and the
statutorily mandated consecutive sentence of 60 months in prison on Count 4
(possessing a firearm in furtherance of a drug trafficking crime), for a total sentence
of 180 months.

        Lucas first argues on appeal that the mandatory minimum sentence for cocaine
base violates the Due Process and Equal Protection Clauses. This argument is
foreclosed by circuit precedent. See United States v. Watts, No. 08-2218, 2009 WL
57002, at **1-2 (8th Cir. Jan. 12, 2009) (per curiam) (neither Guidelines change in
powder-to-base ratio, nor introduction of bills in Congress to change or eliminate
ratio, change conclusion that mandatory minimums are constitutional); United States
v. Clary, 34 F.3d 709, 712 (8th Cir. 1994) (statute does not violate equal protection);
United States v. Stallings, 301 F.3d 919, 923 (8th Cir. 2002) (statute does not violate
due process).

       Next, Lucas argues for the first time on appeal that the district court improperly
sentenced him on Count 1 based on the 10-year minimum sentence under section
841(b)(1)(A). We review for plain error, see United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2005) (en banc) (errors not properly preserved are reviewed for plain
error), and our review of the record shows no error, plain or otherwise. Both the
presentence report, and the district court at sentencing, stated that the statutory
minimum sentence for Count 1 was 5 years, and the judgment reflects that Count 1
was sentenced under 21 U.S.C. § 841(b)(1)(B), which has a statutory minimum of 5
years and a statutory maximum of 40 years. As required by the Guidelines, however,
Count 1 was grouped with Count 3, and Count 3 carried the minimum 120-month
sentence under section 841(b)(1)(A). See U.S.S.G. § 5G1.1(c)(2) (sentence may be
imposed at any point within Guidelines range, provided it is not less than statutorily
required minimum). Therefore, the same 120-month sentence--to be served
concurrently--was also proper as to Count 1. See United States v. Lee, 359 F.3d 194,
209-10 (3d Cir. 2004) (U.S.S.G. § 5G1.2(b) instructs court to apply same sentence to

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each count in same group, unless statutorily authorized maximum for that count is less
than minimum of Guidelines range or statutory minimum is greater than maximum of
Guidelines range); United States v. McLeod, 251 F.3d 78, 83 (2d Cir. 2001) (when
sentencing on multiple counts, district court imposes total punishment on each count,
unless it would exceed statutory maximum for any count).

      Finally, we reject Lucas’s argument that his sentence is unreasonable under
United States v. Booker, 543 U.S. 220 (2005). See United States v. Gregg, 451 F.3d
930, 937 (8th Cir. 2006) (Booker “does not relate to statutorily-imposed sentences”).

      The judgment is affirmed.
                      ______________________________




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