                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                     No. 10-2227
                                     ___________

United States of America,                *
                                         *
             Appellee,                   * Appeals from the United States
                                         * District Court for the
      v.                                 * District of Minnesota.
                                         *
Antoine Raymone Killing,                 * [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 17, 2011
                                 Filed: May 27, 2011
                                  ___________

Before WOLLMAN and BYE, Circuit Judges, and FLEISSIG,1 District Judge.
                           ___________

PER CURIAM.

        Antoine Killing appeals from his concurrent 140-month sentences for
conspiracy to distribute 50 grams or more of cocaine base (crack cocaine) and
possession with intent to distribute cocaine. He contends that the district court2 erred
in failing to consider the disparity in powder cocaine and crack cocaine sentencing and
urges that we vacate his sentence and remand for resentencing in light of the recent

      1
        The Honorable Audrey G. Fleissig, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
enactment of the Fair Sentencing Act of 2010, Pub. L. No. 111-220 (Aug. 3, 2010).
We affirm.

        Because the conspiracy conviction involved 50 or more grams of crack cocaine,
Killing faced a mandatory minimum sentence of 120 months’ imprisonment. He had
a total offense level of 28 and a criminal history of VI, resulting in an advisory range
of 140 to 175 months’ imprisonment under the U.S. Sentencing Guidelines
(Guidelines).

       In his sentencing memorandum and at sentencing, Killing argued that the
district court should vary downward from the advisory range and impose the 120-
month mandatory minimum sentence because the Guidelines’ disparate treatment of
powder cocaine and crack cocaine unfairly elevated the guidelines range. He noted
that Kimbrough v. United States, 552 U.S. 85 (2007) expressly recognized the district
court’s discretion to vary downward on the basis of such disparity and contended that
proposed legislation in Congress would lessen its unfair effects. As stated above, the
district court imposed concurrent sentences of 140 months’ imprisonment on each
count.

      Killing argues that the district court erred in failing to consider his arguments
regarding the disparity between powder and crack cocaine sentences and urges that
we vacate the sentence and remand the case so he may be resentenced in accordance
with the Fairness in Sentencing Act. Though not identified as such, his arguments
essentially allege procedural error and substantive unreasonableness.

       We review appeals from sentencing decisions for abuse of discretion. United
States v. Zastrow, 534 F.3d 854, 855 (8th Cir. 2008). We undertake a two-part
inquiry. First, we ensure that the district court “did not commit significant procedural
error, such as miscalculating the Guidelines range, treating the Guidelines as
mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly

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erroneous facts, or failing to adequately explain why a sentence was chosen.” Id.
(citation omitted). If the decision is procedurally sound, we next consider the
substantive reasonableness of the sentence imposed. Id.

       That the district court did not adopt Killing’s proposed sentence does not mean
that it ignored or was unaware of the arguments Killing made in support of his
proposal. The district court recited and referred to the § 3553(a) factors and stated
that it had read the sentencing memorandum that Killing had submitted on the
unfairness of the powder-crack disparity, as well as the government’s response
thereto. Thereafter it heard arguments from Killing’s counsel regarding the
powder/crack sentencing disparity. After considering this argument, the district court
explained that a sentence at the lower end of the guidelines range was appropriate
under the relevant § 3553(a) factors. In light of this record, we are satisfied that the
district court did not commit significant procedural error in proceeding as it did.

       Killing’s argument that the sentence is substantively unreasonable relies on
retroactive application of the Fairness in Sentencing Act. This argument is foreclosed
by our decision in United States v. Smith, 632 F.3d 1043, 1048-49 (8th Cir. 2011),
which held that the Fairness in Sentencing Act is not retroactive. We conclude that
a sentence of 140 months’ imprisonment, which is at the low end of the applicable
guidelines range, is substantively reasonable and that the district court did not abuse
its discretion imposing it.

      The judgment is affirmed.
                      ______________________________




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