                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 25, 2007
                              No. 06-12155                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 05-20507-CR-UUB

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                   versus

FERNANDO SANCHEZ,

                                                        Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (January 25, 2007)

Before ANDERSON, WILSON, and PRYOR, Circuit Judges.

PER CURIAM:

     Fernando Sanchez appeals his 240-month sentence imposed after pleading
guilty to conspiracy to distribute methylenedioxymethamphetamine (“MDMA”)

and 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 841(b)(1), 846, 851. He argues for the first time on appeal that his sentence

violates the Eighth Amendment as well as Booker 1 and due process. Upon review

of the record and consideration of both parties’ briefs, we discern no reversible

error.

                                                   I.

         Sanchez argues for the first time on appeal that his 20-year sentence is

disproportionate, cruel, and unusual in violation of the Eighth Amendment because

(1) it is based on two prior convictions that were too old to be counted toward his

criminal history points, (2) without these old prior convictions, he faced only 108

to 135 months’ imprisonment, and (3) his codefendants received only 24- and 70-

month sentences.

         Generally, we review de novo constitutional challenges to a sentence.

United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005), cert. denied,

126 S.Ct. 1604 (2006). However, Sanchez did not raise his Eighth Amendment

argument below, and so it is reviewed for plain error. See United States v. Raad,

406 F.3d 1322, 1323 (11th Cir. 2005), cert. denied, 126 S.Ct. 196 (2005). Thus,



         1
             United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005).

                                                   2
Sanchez must prove that “(1) there is an error; (2) that is plain or obvious; (3)

affecting [his] substantial rights in that it was prejudicial and not harmless; and (4)

that seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” Id. (quotations and citations omitted).

      We have held that “[i]n non-capital cases, the Eighth Amendment

encompasses, at most, a narrow proportionality principle.” Id. (alteration in

original; citations omitted). Additionally, “[o]utside the context of capital

punishment, successful challenges to the proportionality of sentences [are]

exceedingly rare.” Id. (alterations and emphasis in original; citation omitted).

      When addressing an Eighth Amendment challenge, “a court ‘must make a

threshold determination that the sentence imposed is grossly disproportionate to

the offense committed[,]’” and the defendant bears the burden of making this

showing. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006)

(quoting Raad, 406 F.3d at 1324), cert. denied, 127 S.Ct. 462 (2006). “In general,

a sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” Johnson, 451 F.3d at 1243 (quoting

United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)); see also Raad,

406 F.3d at 1324 (noting that we have upheld mandatory minimum sentences in

various statutes, such as conspiracy and possession with intent to distribute



                                            3
cocaine, 21 U.S.C. § 841(b)(1); the Armed Career Criminal Act, 18 U.S.C. § 924;

the career-offender provisions of the Guidelines, U.S.S.G. § 4B1.1; and a food-

stamp fraud statute).

      Sanchez pled guilty to Counts 1 and 3 of the indictment, and Count 3

charged him with conspiracy to distribute 50 grams or more of methamphetamine,

in violation of 21 U.S.C. §§ 841(b)(1), 846, 851. He also admitted at sentencing

that he had two prior felony drug offenses. According to § 841(b)(1), if a

defendant’s violation of § 841 involves 50 grams or more of methamphetamine

and he “commits such a violation after a prior conviction for a felony drug offense

has become final, [he] . . . shall be sentenced to a term of imprisonment which may

not be less than 20 years and not more than life imprisonment[.]” 21 U.S.C.

§ 841(b)(1)(A)(viii).

      In a case similar to this one, we held that the district court did not plainly err

in imposing mandatory life sentences based on the defendant’s prior criminal

record and instant conspiracy and possession with intent to distribute at least five

kilograms of cocaine, in violation of §§ 841(b)(1), 851. See United States v.

Willis, 956 F.2d 248, 250-51 (11th Cir. 1992). In Willis we held that (1) the

district court’s honoring of the government’s exercise of its unfettered discretion in

its decision to invoke § 851 did not violate the Due Process Clause because



                                           4
mandatory minimum sentences set by statute did not violate due process;2 and

(2) the defendant’s claim that the mandatory life sentences constituted cruel and

unusual punishment in violation of the Eighth Amendment was meritless. See id.

        Sanchez’s mandatory minimum sentence of 20 years’ imprisonment does

not violate the Eighth Amendment. As a general rule, a sentence imposed by

statute does violate the constitution. See Johnson, 451 F.3d at 1243. Like the

defendant in Willis, 956 F.2d at 250-51, Sanchez had a prior criminal record,

which triggered the statutory minimum under § 841(b)(1). Although Sanchez’s

prior felony drug convictions were old, nothing in the statute disqualifies prior

convictions based on their remoteness in time from the instant offense. Moreover,

upholding Sanchez’s sentence of 20 years follows a fortiori from the Willis

decision, which affirmed the constitutionality of a life mandatory minimum

sentence under § 841(b)(1). Likewise, Sanchez’s argument that his codefendants

received lower sentences is unpersuasive given that neither of his codefendants had

a prior criminal record similar to his. Sanchez has thus failed to establish plain

error by demonstrating that his sentence violates the Eighth Amendment.



       2
         We also have upheld § 851’s constitutionality under a separation-of-powers challenge. See
United States v. Cespedes, 151 F.3d 1329, 1335 (11th Cir. 1998) (“[T]he power of the prosecutor
under § 851 to increase the mandatory minimum sentence facing the defendant is no greater than
the classic power of the executive to choose between charges carrying different mandatory
penalties.”).

                                                5
                                                 II.

       Sanchez also argues that his 240-month sentence is unreasonable and

violates Booker and due process because it is greater than the 108- to 135-month

guideline range he faced without prior convictions.

       We review post-Booker sentences for reasonableness. Booker, 543 U.S. at

261, 125 S.Ct. at 765; United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005).

However, Sanchez’s argument that his sentence violates Booker and due process

because it is outside the guideline range, an argument not raised below, is reviewed

only for plain error. See Raad, 406 F.3d at 1323 (argument reviewed for plain

error when the defendant did not object below).3

       After Booker, district courts still must correctly calculate the guideline

range, after which they may consider imposing a more or less severe punishment

under the factors set forth in 18 U.S.C. § 3553(a). United States v. McVay, 447

F.3d 1348, 1353 (11th Cir. 2006). According to the Guidelines, “[w]here a

statutorily required minimum sentence is greater than the maximum of the

applicable guideline range, the statutorily required minimum sentence shall be the

guideline sentence.” U.S.S.G. § 5G1.1(b). Furthermore, even after Booker,


       3
         Therefore, Sanchez, with respect to his sentence, must prove that “(1) there is an error; (2)
that is plain or obvious; (3) affecting [his] substantial rights in that it was prejudicial and not
harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” Raad, 406 F.3d at 1323 (quotations and citations omitted).

                                                  6
district courts remain bound by applicable statutory minimums. United States v.

Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005).

      Here, the correct calculation of Sanchez’s guideline range yielded, pursuant

to § 5G1.1(b), a sentence of 240 months’ imprisonment because, as previously

discussed, his statutory minimum sentence was 20 years. See 21 U.S.C.

§ 841(b)(1)(A)(viii); see also U.S.S.G. § 5G1.1(b). Although, as Sanchez points

out, his guideline range momentarily was 108 to 135 months, his ultimate and

correct guideline range was 240 months. Therefore, the district court did not

plainly err in imposing a sentence within the guideline range. See McVay, 447

F.3d at 1353 (district courts first must correctly calculate the guideline range); see

also Shelton, 400 F.3d at 1333 n.10 (district courts remain bound by applicable

statutory minimum sentences). Accordingly, Sanchez’s arguments are without

merit, and we affirm the district court’s sentence.

      AFFIRMED.




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