                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-14350                ELEVENTH CIRCUIT
                                                             JUNE 25, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                D. C. Docket No. 08-00043-CR-001-CAR-5

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ARMARD JEROME DAVIS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________
                             (June 25, 2010)


Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Armard Jerome Davis appeals his 95-month sentence imposed following his

guilty plea to distributing more than 5 grams of crack cocaine, 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(iii), and 18 U.S.C. § 2. Davis contends (1) the district court

violated his right to equal protection by considering the crack cocaine Guidelines

range as part of its sentencing decision, and (2) his sentence is procedurally and

substantively unreasonable.1 After review, we affirm Davis’s sentence.

                                                  I.

       For the first time on appeal, Davis argues the district court violated his right

to equal protection because the crack cocaine Guidelines are unconstitutional based

on their racially disparate impact.2 Davis relies on the 2007 Sentencing

Commission's Report and Amendment 706 which altered the Guidelines so that the

crack/powder ratio varies at different offense levels between 25 to 1 and 80 to 1.

Davis argues this Court should reject the disparity because it is arbitrary and based

on "unsound judgment."




       1
       For purposes of this appeal, we deny the Government’s motion to dismiss and assume
arguendo that the sentence-appeal waiver contained in Davis’s plea agreement is unenforceable.
       2
         Davis’s mention of Kimbrough v. United States, 128 S. Ct. 558 (2007), was not sufficient
to implicate an equal protection challenge because the Kimbrough holding did not relate to the
constitutionality of the amended crack cocaine Guidelines. Thus, the plain error standard applies.
United States v. Douglas, 489 F.3d 1117, 1125 (11th Cir. 2007). Under the plain error standard,
“there must be (1) an error, (2) that is plain, and (3) that affects substantial rights.” United States
v. Williams, 469 F.3d 963, 966 (11th Cir. 2006).

                                                  2
       The district court’s consideration of the crack cocaine Guidelines was not

plain error. We have not held the post-Amendment 706 crack cocaine Guidelines

violate equal protection. Similarly, the Supreme Court has made no such holding.

Moreover, the legitimacy of the rationale behind the continued sentencing disparity

remains a matter of debate.3 Thus, Davis has failed to show the court plainly erred

by considering the crack cocaine Guidelines in fashioning his sentence.

                                                II.

       Davis argues his sentence is procedurally and substantively unreasonable

because the court treated the crack cocaine Guidelines as mandatory and failed to

sentence him based on a "1-to-1" crack to powder cocaine ratio.

       A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the Guidelines, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, selected a sentence based on

clearly erroneous facts, or failed to adequately explain the chosen sentence. Gall v.

United States, 128 S. Ct. 586, 597 (2007). Once we conclude the district court

made no procedural errors, we will then consider “the substantive reasonableness



       3
        Currently, pending legislation in the House of Representatives would impose a “1-to-1”
crack-to-powder cocaine ratio with regard to statutory penalties. See Fairness in Cocaine Sentencing
Act of 2009, H.R. 3245, 111th Cong. (2010). By contrast, the Senate recently approved a bill which
only would contain an “18-to-1” crack-to-powder cocaine ratio. See Fair Sentencing Act of 2010,
S. 1789, 111th Cong. (as passed by Senate, March 17, 2010).

                                                 3
of the sentence,” under the totality of the circumstances. Gall, 128 S. Ct. at 597.

A sentence is substantively unreasonable if it is not supported by the § 3553(a)

factors. Id. at 600. A district court’s “unjustified reliance” on a single § 3553(a)

factor “may be a symptom of an unreasonable sentence.” Pugh, 515 F.3d at 1191.

Nevertheless, “[t]he weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” Williams, 526 F.3d

at 1322 (quotation omitted).

      We conclude Davis’s sentence was procedurally reasonable. First, the

district court correctly calculated the Guidelines, explicitly acknowledged the

Guidelines were advisory and expressly stated it had considered the § 3553(a)

factors. Second, the district court considered Davis's request for a downward

departure. Finally, the district court's explanation of the sentence is sufficient to

allow for meaningful appellate review.

      Davis's sentence is also substantively reasonable because the § 3553(a)

factors, including Davis’s history and characteristics and the nature of the offense,

show his sentence is sufficient but not greater than necessary to fulfill the statutory

purposes of sentencing. Moreover, the record reflects that the court gave due

consideration to mitigating factors because Davis's sentence fell in the middle of

the Guidelines range and was substantially below the statutory maximum of 40



                                            4
years' imprisonment. Thus, the district court did not abuse its discretion by

refusing to depart below Davis's Guidelines range based solely on the disparity

between crack cocaine and powder cocaine sentences. See Kimbrough, 128 S. Ct.

558. Accordingly, we affirm Davis’s sentence as reasonable.

      AFFIRMED.




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