                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                               MAR 26, 2010
                             No. 09-13369                       JOHN LEY
                         Non-Argument Calendar                    CLERK
                       ________________________

                D. C. Docket No. 08-00228-CR-ORL-28KRS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ALBERTO TORRES GARRASTEQUI,
a.k.a. Tito Pasture,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 26, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Alberto Torres Garrastequi appeals the district court’s imposition of 21

U.S.C. § 841(a)(1)’s 120-month mandatory minimum sentence. He argues that

§ 841(a)(1)’s mandatory minimum sentencing provisions violate the separation of

powers doctrine, his due process rights, and 18 U.S.C. § 3553(a), which prohibits

courts from imposing a sentence that is “greater than necessary” to achieve the

goals of sentencing. For the reasons set forth below, we affirm.

                                          I.

      Garrastequi pled guilty to conspiracy to possess with intent to distribute five

or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

      According to the presentence investigation report (“PSI”), law enforcement

officials determined that, from 2006 through June 2007, a specific drug trafficking

organization mailed up to 40 to 50 kilograms of cocaine almost every week from

Puerto Rico to Orlando. During the course of the conspiracy, Garrastequi worked

directly with Miguel Antonio Montes, who was a leader and organizer of the

cocaine smuggling operation in Orlando, Florida. Authorities intercepted at least

35 telephone calls between Garrastequi and Montes in which Garrastequi and

Montes discussed distribution of the cocaine. Garrastequi also delivered cocaine to

a co-conspirator on one occasion.

      The PSI set Garrastequi’s total offense level at 29. His total offense level of



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29 combined with criminal history category I to yield a guideline imprisonment

range of 87 to 108 months. The PSI noted that, pursuant to 21 U.S.C.

§ 841(b)(1)(A), Garrastequi was subject to a mandatory minimum term of ten

years’ imprisonment.

      At sentencing, Garrastequi objected to the imposition of the statutory

minimum sentence, arguing that the statutory minimum violated the separation of

powers doctrine. The court adopted the factual statements and guideline

calculations set forth in the PSI, determining that Garrastequi’s applicable

guideline imprisonment range was 120 months.

      The government recommended imposition of the statutory minimum

sentence. Garrastequi again noted his objection that the statutory minimum was

unconstitutional because it violated the separation of powers doctrine. The court

sentenced Garrastequi to 120 months’ imprisonment, to be followed by a 5-year

term of supervised release. The court noted that, if Garrastequi had not been

subject to the statutory minimum, it would have imposed a lesser sentence. At the

close of the sentencing proceeding, the court asked if either party had objections to

the sentence or the manner in which the sentence was imposed. Both parties

indicated that they had no objections.




                                          3
                                        II.

      Separation of Powers

      We have rejected claims that mandatory minimum sentences violate the

separation of powers doctrine. United States v. Holmes, 838 F.2d 1175, 1178 (11th

Cir. 1988) (dealing specifically with the statutory penalties set forth in 21 U.S.C.

§ 841(b)(1)). We noted that “[i]t is for Congress to say what shall be a crime and

how that crime shall be punished.”     Id.    The Supreme Court has held that the

Sentencing Guidelines are to be applied in an advisory fashion. United States v.

Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005).

However, we have determined that “[e]ven after Booker, the district court is bound

by the statutory mandatory minimums.”         United States v. Ciszkowski, 492 F.3d

1264, 1270 (11th Cir. 2007); Kimbrough v. United States, 552 U.S. 85, 108, 128

S.Ct. 558, 574, 169 L.Ed.2d 481 (2007) (holding that while district courts may

grant variances based on the crack-to-powder cocaine disparity, they are still

constrained by statutory mandatory minimums).

      As explained above, Garrastequi’s argument that § 841's mandatory

minimum penalties violate the separation of powers doctrine is foreclosed by

Holmes and Ciszkowski, which are binding precedent. See United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008) (recognizing that “a prior panel’s holding is



                                         4
binding on all subsequent panels”). Accordingly, the district court did not violate

the separation of powers doctrine by sentencing Garrastequi to the statutory

minimum term of imprisonment.

      Due Process

      Constitutional challenges raised for the first time on appeal are reviewed for

plain error. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.

2005). Under the plain error standard, a defendant must show (1) error, (2) that is

plain, and (3) that affects substantial rights. Id. We may exercise our discretion to

correct a plain error if the error “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id.

      Garrastequi’s due process argument is foreclosed by precedent. We have

held that § 841's mandatory minimum sentences do not deprive a defendant of an

individualized sentencing proceeding or due process. See Holmes, 838 F.2d at

1177 (noting that § 841(b)(1) only establishes a minimum and maximum penalty

and does not prevent a defendant from presenting “information concerning his

background, character and conduct to aid the sentencer in determining an

appropriate sentence”).     Accordingly, Garrastequi has failed to show that the

district court plainly erred by violating his due process rights when it sentenced

him to the ten-year statutory minimum.



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      18 U.S.C. § 3553(a)

      We review sentencing arguments raised for the first time on appeal for plain

error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009). Under the

plain error standard, a defendant must show (1) error, (2) that is plain, and (3) that

affects substantial rights. Camacho-Ibarquen, 410 F.3d at 1315. We may exercise

our discretion to correct a plain error if the error “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” Id.

      Garrastequi has failed to show that the district court erred, let alone

committed plain error, by failing to sentence him below the statutory minimum

based on a consideration of the 18 U.S.C. § 3553(a) sentencing factors. We have

held that “§ 3553(a) merely lists the factors the district court must consider in

determining an appropriate sentence” and “plainly does not confer upon the district

court the authority to sentence a defendant below the statutory mandatory

minimum based on its consideration of the § 3553(a) factors.” United States v.

Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008). Accordingly, because all of

Garrastequi’s arguments are foreclosed by binding precedent, we affirm

Garrastequi’s 120-month sentence.

      AFFIRMED.




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