                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 23, 2007
                             No. 06-14612                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D. C. Docket No. 05-00114-CR-ORL-31KRS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CARL DENNIS JOHNSON,

                                                         Defendant-Appellant.



                       ________________________

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

                           (February 23, 2007)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Carl Dennis Johnson appeals his 192-month sentence for possession with

intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A). On appeal, Johnson argues that any sentence above the

ten-year statutory mandatory minimum sentence for his offense is inherently

“greater than necessary” because only the statutory minimum sentence is

“necessary.” Johnson does not raise any other argument regarding the

reasonableness of his sentence, nor does he allege that the district court failed to

address any of the § 3553(a) factors. On the contrary, Johnson acknowledges that

the district court comprehensively reviewed the sentencing factors, as reflected in

the record.

      At the sentencing hearing, Johnson argued only that mandatory minimum

sentences violate separation of powers because the courts, not Congress, have the

authority to prescribe a punishment. Neither party had any further objections to

the PSI calculations, which established that a guidelines sentence would be within

the range of 262 to 327 months. In mitigation, however, Johnson argued that 27

years’ imprisonment, which was near the maximum of the recommended range,

was excessive, and that he was not “such a threat, such a harm or such a bad person

as a 20-year sentence would seem to indicate.” The government requested a 262-

month sentence, which was at the low-end of the Guidelines range.



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      The district court, recognizing that it had an obligation to impose a sentence

that was sufficient but not greater than necessary and to consider the 18 U.S.C.

§ 3553(a) factors, found that a Guidelines sentence would be disproportionate to

the seriousness of the offense in this case, would promote disrespect for the law,

and would not provide just punishment. The district court then sentenced Johnson

to 192 months’ imprisonment, which the court found to be a substantial sentence

that would provide adequate deterrence. Johnson stated that he had no further

objections. The government objected that, although the sentence did exceed the

statutory minimum sentence, it was still unreasonable because it was 70 months

below the Guidelines range.

      On appeal, Johnson argues that the district court should only have imposed

the statutory minimum sentence because only the statutory minimum sentence was

“necessary,” and the district court failed to articulate why a greater sentence was

warranted. The government responds that the district court sufficiently articulated

the basis for Johnson’s sentence and did not impose an unreasonable sentence.

This argument differs from that made by Johnson at sentencing. At sentencing,

Johnson argued that mandatory minimum sentences were unconstitutional and that

a Guidelines sentence was excessive in his case. In this appeal, Johnson does not

challenge the constitutionality of mandatory minimum sentences but instead argues



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that any sentence above the statutory mandatory minimum sentence violates 18

U.S.C. § 3553(a) because it is inherently “greater than necessary.”

      Because Johnson did not make either this argument to the district court or a

related argument that he should have received a ten-year sentence, we review for

plain error, see United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005).

Under the plain error standard, Johnson must show that: (1) an error occurred; (2)

that was plain; (3) that affected his substantial rights; and (4) that seriously affected

the fairness of the judicial proceedings. Id. at 1328-29. Having reviewed the

record, we find no error, plain or otherwise, in the district court’s imposition of

sentence.

      Although we have not previously addressed whether sentences in excess of

an applicable statutory minimum are inherently “greater than necessary,” we have

upheld such sentences to reasonableness challenges on numerous occasions, and

we have never held that the district court is bound to impose a statutory minimum

sentence. See, e.g., United States v. Dowd, 451 F.3d 1244, 1248-49, 1256-57

(11th Cir.), cert. denied, 127 S.Ct. 335 (2006). In the absence of any case law

supporting his position, Johnson’s argument that any sentence in excess of the ten-

year statutory mandatory minimum is greater than necessary as a matter of law is

not, even if considered erroneous, error that is plain.

      AFFIRMED.


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