                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14085                ELEVENTH CIRCUIT
                                                             APRIL 16, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                                CLERK

               D. C. Docket No. 07-00213-CR-ORL-31-KRS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TODD EDGAR WARTHEN,
a.k.a. Trick,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 16, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Todd Edgar Warthen appeals his 120-month sentence for conspiracy to

possess with intent to distribute 50 grams or more of crack cocaine in violation of

21 U.S.C. §§ 841(b)(1)(A)(iii), 846. Warthen argues that while we have previously

ruled that the mandatory minimum penalties in § 841 do not violate the Eighth

Amendment, Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 169

L.Ed.2d 481 (2007) has provided new guidance on this point. He contends that by

applying a mandatory minimum sentence, the district court was forced to impose a

sentence greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a) and

created an unwarranted sentencing disparity. He asserts that his two codefendants

received lower sentences despite being convicted of the same charge.

      We review the constitutionality of statutes de novo. United States v.

Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). “[A] district court is not

authorized to sentence a defendant below the statutory mandatory minimum unless

the government filed a substantial assistance motion pursuant to 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1 or the defendant falls within the safety-valve of 18

U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530 F.3d 1358, 1360-61 (11th

Cir. 2008). “The district court remains bound by statutes designating mandatory

minimum sentences even after the remedial holding of United States v. Booker,

543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).” Id. at 1362. We have



                                          2
rejected an argument that the disproportionality of sentences for crack and powder

cocaine violates the Eighth Amendment. See United States v. Brazel, 102 F.3d

1120, 1158 (11th Cir. 1997) (rejecting Eighth Amendment argument about

disparity without discussion as meritless). Similarly, we have held that a statutory

minimum sentence for possession of crack cocaine does not violate the Eighth

Amendment. United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988). In

Kimbrough, the Supreme Court held that a district court did not abuse its discretion

when it departed below the recommended guidelines range on account of the

§ 3553(a) factors because of the disparity created by the 100-1 ratio between crack

and powder cocaine. 552 U.S. at ____, 128 S.Ct. at 575-76.

      The district court did not err by refusing to sentence Warthen below the

mandatory minimum because neither the disparity between crack and powder

cocaine sentences nor the application of the statutory minimum itself violate the

Eighth Amendment. Furthermore, Kimbrough addressed using the disparity to

sentence below the recommended guideline range and did not call into question our

prior precedent on the constitutionality of the statutory mandatory minimum

sentencing scheme. Accordingly, the district court lacked the authority to sentence

Warthen below the statutory minimum absent a U.S.S.G. § 5K1.1 motion.

AFFIRMED.



                                          3
