     Case: 09-60779     Document: 00511129146          Page: 1    Date Filed: 06/02/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 2, 2010
                                     No. 09-60779
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SAFARRA KIMMONS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:08-CR-112-1


Before GARZA, CLEMENT and OWEN, Circuit Judges.
PER CURIAM:*
        Safarra Kimmons pleaded guilty to count one of the indictment charging
him with conspiracy to possess with intent to distribute cocaine base. He was
sentenced to a term of imprisonment of 240 months and 10 years of supervised
release. Under 21 U.S.C. § 841(b)(1)(A), Kimmons was subject to an enhanced
penalty of 20 years to life based on his prior conviction in 2002 for distribution
of cocaine base.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-60779

      Kimmons argues that his 20-year sentence is unreasonably harsh. He
recognizes that the district court was within its authority to impose a 20-year
sentence, but he urges this court to set new precedent and remand the case to
the district court for resentencing. He notes the disparity in sentencing due to
the crack/powder ratio and that further amendments to the crack cocaine
sentencing structure are under consideration in Congress. He argues that as a
result of this disparity, his sentence was unreasonable.
      No authority is cited by Kimmons by which this court could “set new
precedent.” See United States v. Conroy, 567 F.3d 174, 181-82 (5th Cir. 2009).
The most recent Supreme Court authority supports the district court’s
imposition of the mandatory minimum sentence despite the recent amendments
to the Guidelines which reduced the crack/powder disparity. In United States
v. Kimbrough, 552 U.S. 85, 107 (2007), the Supreme Court stated that
“sentencing courts remain bound by the mandatory minimum sentences
prescribed in the 1986 Act.” If a district court is bound by the mandatory
minimum and cannot vary below it, then imposing the mandatory minimum is
not unreasonable or an abuse of discretion. See Gall v. U.S., 552 U.S. 38, 51
(2007).
      In a related argument, Kimmons argues that the imposition of a 20-year
sentence violated the Eighth Amendment guarantee against cruel and unusual
punishment. He argues that his 20-year sentence was objectively unreasonable
and arbitrary. He notes that the district court judge was sympathetic to his
argument for a lower sentence if he had not been constrained by the mandatory
minimum. He contends that this is the best objective indication that a 20-year
sentence in this case constitutes cruel and unusual punishment and should be
declared unconstitutional as applied. He acknowledges that he did not raise this
argument in the district court.
      To the extent that Kimmons’s argument is based on the crack/powder
disparity, it is foreclosed. See United States v. Fisher, 22 F.3d 574, 579 (5th Cir.

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                                 No. 09-60779

1994).    To the extent that Kimmons argues that the 240-month sentence
mandated by § 841(b)(1)(A) constitutes cruel and unusual punishment as applied
to him, this argument fails. See Harmelin v. Michigan, 501 U.S. 957, 994-95
(1991) (mandatory life sentence for one drug conviction with no prior felony
convictions not cruel and unusual punishment).         The district court did not
plainly err in imposing a sentence of 240 months. See Puckett v. United States,
129 S. Ct. 1423, 1428-29 (2009).
        Also argued by Kimmons is that imposition of the 20-year mandatory
minimum sentence was a violation of the due process guarantee of the Fifth
Amendment. He contends that in light of the arbitrary distinction between
crack and powder cocaine sentences, the mandatory 20-year sentence in his case
was without due process of law. He also argues that the statutory minimum
sentencing scheme violated due process because it deprived the district court
judge of the ability to determine a just sentence under the particular facts of this
case.
        These due process arguments have been rejected by this court and the
Supreme Court on both bases, sentencing disparity and lack of individualized
sentencing determination. See Chapman v. United States, 500 U.S. 453, 467
(1991) (“Congress has the power to define criminal punishments without giving
the courts any sentencing discretion.”); United States v. Rojas-Martinez, 968
F.2d 415, 420 (5th Cir. 1992) (“Imposition of mandatory minimum sentences for
offenses involving large quantities of illegal drugs bears a rational relationship
to the legitimate purpose of enforcing federal drug laws and is not arbitrary.”);
United States v. Thomas, 932 F.2d 1085, 1089-90 (5th Cir. 1992) (rejecting claim
that the sentencing disparity between powder cocaine and crack cocaine violates
the Due Process Clause); United States v. Wilson, 77 F.3d 105, 112 (5th Cir.
1996) (same). The district court did not err in sentencing Kimmons to the
mandatory minimum penalty of 240 months under § 841(b)(1)(A). See United
States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
        AFFIRMED.

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