                                                                 [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                        U.S. COURT OF APPEALS
                                     No. 10-11541         ELEVENTH CIRCUIT
                                 Non-Argument Calendar         FEB 8, 2011
                               ________________________        JOHN LEY
                                                                 CLERK
                            D.C. Docket No. 0:09-cr-60303-UU-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                              Plaintiff-Appellee,

                                        versus

HAYWARD COLEMAN,

lllllllllllllllllllll                                            Defendant-Appellant.

                               ________________________

                                     No. 10-11658
                                 Non-Argument Calendar
                               ________________________

                            D.C. Docket No. 0:09-cr-60303-UU-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                              Plaintiff-Appellee,

                                         versus
PIERRE COLEMAN,

lllllllllllllllllllll                                            Defendant-Appellant.

                               ________________________

                        Appeals from the United States District Court
                            for the Southern District of Florida
                               ________________________

                                    (February 8, 2011)



Before DUBINA, Chief Judge, HULL, and ANDERSON, Circuit Judges.

PER CURIAM:

         Appellant Hayward Coleman (“Hayward”) 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. § 846. Appellant Pierre Coleman (“Pierre”) also

appeals his 120-month sentence for conspiracy to possess with intent to distribute

50 grams or more of crack cocaine, in violation of § 846. On appeal, both

Hayward and Pierre argue that 21 U.S.C. § 841(b) is unconstitutional under the

Equal Protection Clause because it makes arbitrary classifications, punishes

defendants at a level disproportionate to the seriousness of their offenses, is

irrational, and causes unjust punishment. Hayward and Pierre further contend that

the sentence required by § 841(b) is a cruel and unusual punishment, in violation

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of the Eighth Amendment. In addition, Pierre argues that the enactment of the

Fair Sentencing Act (“FSA”) on August 3, 2010, requires the district court to

resentence him under the amended penalty provisions of § 841(b). Finally, Pierre

contends that the Equal Protection Clause requires the district court to resentence

him under the less severe provisions of the FSA.

                                       I.

      Pierre and Hayward argue that § 841(b) violates the Equal Protection Clause

because it makes arbitrary classifications and punishes defendants at a level

disproportionate to the seriousness of their offenses. Hayward and Pierre further

contend that the sentence required by § 841 is irrational and is a cruel and unusual

punishment, in violation of the Eighth Amendment. Finally, they argue that

because the Sentencing Commission’s views are entitled to “great weight,” we

must reconcile the 120-month sentence required by § 841(b) with the range

recommended by the Guidelines.

      We review de novo constitutional issues related to sentencing. United

States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008).

      We have upheld the constitutionality of the former crack-to-powder ratio for

sentencing purposes on numerous occasions. See, e.g., United States v. Hanna,

153 F.3d 1286, 1288-89 (11th Cir. 1998) (the sentencing disparity between crack

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and powder cocaine does not violate a defendant’s substantive due process or

equal protection rights); United States v. Byse, 28 F.3d 1165, 1168-70 (11th Cir.

1994) (sentencing disparity does not violate the Equal Protection Clause); United

States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988) (mandatory minimum

provisions for crack cocaine do not violate the Eighth Amendment).

      Although the FSA amended the statute under which Hayward and Pierre

were sentenced, binding precedent holds that the previous version of § 841(b)

does not violate the Constitution.

                                       II.

      Pierre argues that the district court should resentence him under the

amended penalty provisions of § 841(b). According to Pierre, the pre-FSA version

of § 841(b) lost any justification on the day that the new statute took effect. Pierre

contends that Congress passed the FSA to address constitutional infirmities in the

now-repealed crack cocaine sentencing laws. In addition, Pierre argues that

1 U.S.C. § 109 does not preserve his harsher sentence under the repealed version

of § 841(b) because preservation would serve no legislative purpose.

      As noted above, we review de novo constitutional issues related to

sentencing. Steed, 548 F.3d at 978. De novo review also applies to the application




                                             4
of law to sentencing issues. United States v. Alexander, 609 F.3d 1250, 1253

(11th Cir. 2010), petition for cert. filed (U.S. Nov. 22, 2010) (No. 10-7680).

      On August 3, 2010, Congress enacted the FSA to “restore fairness to

Federal cocaine sentencing.” Pub. L. No. 111-120, 124 Stat. 2372, 2372 (2010).

The FSA increased the amounts of crack cocaine required to trigger both the

10-year and 5-year mandatory minimum sentences in 21 U.S.C. § 841(b). Id. §

2(a)(1). Under the FSA, the 10-year minimum sentence only applies to offenses

involving 280 grams or more of crack cocaine, and the 5-year minimum only

applies to offenses involving 28 grams or more of crack cocaine. Id. § 2(a)(2).

Prior to enactment of the FSA, offenses involving 50 grams or more of crack

cocaine triggered the 10-year minimum. 21 U.S.C. § 841(b)(1)(A) (2009). The

FSA did not amend the requirement that, once triggered, statutory

mandatory-minimum sentences apply unless the government files a motion for

substantial assistance under 18 U.S.C. § 3553(e) or the defendant qualifies for

safety-valve relief under 18 U.S.C. § 3553(f). See United States v. Gomes, 621

F.3d 1343, 1346 (11th Cir. 2010).

      The general savings statute provides, in relevant part, that “[t]he repeal of

any statute shall not have the effect to release or extinguish any penalty . . .

incurred under such statute, unless the repealing Act shall so expressly provide . .

                                           5
. .” 1 U.S.C. § 109. Moreover, the savings statute dictates that the repealed statute

“shall be treated as still remaining in force for the purpose of sustaining any proper

action or prosecution for the enforcement of such penalty . . . .” Id. In Gomes, we

noted that § 109 barred the FSA from applying retroactively because the defendant

in that case committed his crimes before the FSA took effect. 621 F.3d at 1346.

Under the prior precedent rule, we are bound to follow prior precedent “unless and

until it is overruled by this court en banc or by the Supreme Court.” United States

v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v.

Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)).

      Because the FSA is silent on the issue of retroactivity, § 109 dictates that

Pierre is not entitled to be resentenced under the FSA’s less severe penalty

provisions. The district court was correct in imposing a sentence of 120 months.

                                       III.

      Finally, Pierre contends that the Equal Protection Clause requires changes in

the criminal law to be applied to cases on appeal at the time of the change.

According to Pierre, we must also interpret § 109 consistently with the directives

of the Equal Protection Clause. Pierre contends that, in spite of § 109, the FSA

should apply to him even though he committed his offense when the prior version

of § 841(b) was in effect.

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      When interpreting a statute, the “starting point . . . is the language of the

statute itself.” United States v. Rush, 874 F.2d 1513, 1514 (1989). When the

statutory language is clear, it is unnecessary to consider legislative history. Id.

We have also held that “the plain language of the statute [is] conclusive as clearly

expressing legislative intent, unless the resulting application would be ‘absurd’ or

‘internal inconsistencies’ must be resolved.” United States v. Veal, 153 F.3d 1233,

1245 (11th Cir. 1998).

      Pierre’s citations of legislative history fail to establish either that the former

crack-to-powder ratio violates the Equal Protection Clause or that Congress

intended for the FSA to apply retroactively to defendants who committed their

offenses under the repealed penalty scheme.

      For the aforementioned reasons, we affirm Hayward and Pierre’s sentences.

      AFFIRMED.




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