                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-11639                 JAN 20, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                          D.C. Docket No. 8:09-cr-00091-EAK-MAP-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

PHILIP HARRIS BRADLEY,

lllllllllllllllllllll                                             Defendant-Appellant.


                                ________________________

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

                                      (January 20, 2011)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      Philip Harris Bradley appeals his 262-month sentence imposed after he

pleaded guilty to one count of distribution of 5 grams or more of crack cocaine in

violation of 21 U.S.C. § 841(a)(1). Bradley’s sentence was at the low end of the

range recommended by the advisory guidelines, and Bradley does not contend that

his range of 262–327 months was improperly calculated. Instead he raises three

other arguments to this Court. First he contends that his sentence was both

substantively and procedurally unreasonable. Procedurally, he argues that

comments from the district court suggest it erroneously found that it could not

vary from the guidelines range based on its disagreement with the career offender

guideline, and that the court therefore failed to properly consider the sentencing

factors in 18 U.S.C. § 3553(a). Substantively, he argues that his sentence was

greater than necessary to achieve the purposes of sentencing. Second, he contends

that the district court abused its discretion in denying his motion to continue the

sentence hearing. Finally he seeks to preserve an objection he made in district

court to the constitutionality of the mandatory minimum sentencing provisions for

cocaine offenses in 21 U.S.C. § 841(b) (2006).

                                          I.

      A federal grand jury returned an indictment against Bradley and a

codefendant in March 2009 for one count of distributing 5 grams or more of

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cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The

indictment alleged that Bradley had brokered the sale of 12.2 grams of crack

cocaine from his codefendant to two undercover detectives. Bradley was not

arraigned on that charge until September 2009, at which time he was serving a 3-

year sentence with the Florida Department of Corrections for an unrelated drug

offense. Shortly after the arraignment, the government filed an “Information and

Notice of Prior Convictions,” which under 21 U.S.C. §§ 851 and 841(b)(1)(B)

(2006) increased Bradley’s applicable mandatory minimum sentence from five

years to ten and increased the potential maximum sentence from forty years to life

imprisonment.

      Bradley pleaded guilty to the single-count indictment in December 2009

without the benefit of any plea agreement. His presentence investigation report,

which detailed his extensive criminal history, determined that Bradley should be

classified as a career offender. That report calculated his total offense level at 34

and his criminal history category as VI, which resulted in an advisory guidelines

range of 262–327 months.

      Before the sentence hearing Bradley objected in part to the mandatory-

minimum sentencing scheme in effect at that time, arguing that it violated the Fifth

and Eighth Amendments by arbitrarily distinguishing between crack and powder

                                          3
cocaine offenses. Additionally, approximately two weeks before his sentence

hearing, he filed a motion to continue the hearing until the fall of 2010. Bradley

argued that pending federal legislation—the proposed Fair Sentencing

Act—would eliminate the sentencing disparity between crack and powder cocaine

offenses. The court, however, denied that motion.

      At the sentence hearing Bradley renewed the motion for continuance and

also argued his objections to the PSR, including his constitutional challenges to

the mandatory-minimum sentencing scheme. The court overruled Bradley’s

objections and again denied his motion for a continuance. In doing so, the court

addressed the possibility that the sentencing scheme might be overturned

legislatively:

      If that does happen, it will be handled the way we handled the last
      group of cases. It will be processed through the probation office
      through the U.S. Attorney’s Office and through the assigned judge
      and the assigned judge’s office in a very orderly, organized, and
      specific way so that we don’t miss anybody who should be
      considered.

The court then adopted the findings in the PSR, including the calculations of

Bradley’s offense level, criminal history category, and guidelines range.

      Defense counsel then addressed the 18 U.S.C. § 3553(a) factors, arguing

that Bradley’s lack of family support during childhood, early exposure to drug use,



                                         4
and traumatic experiences in the foster care system, among other considerations,

supported a sentence below the advisory guidelines range and at the statutory

minimum term of ten years. The government argued instead for a sentence at the

high end of the guidelines range, emphasizing Bradley’s extensive criminal history

and recent disciplinary troubles in state prison. The government also noted that 28

U.S.C. § 994(h) “mandates that the [Sentencing] [C]ommission assure that career

offenders receive a sentence of imprisonment at or near the maximum term

authorized.”

       In response Bradley pointed out that our decision in United States v.

Vazquez, 558 F.3d 1224 (11th Cir. 2009), had been vacated and remanded by the

Supreme Court after the Solicitor General had conceded error. See ___U.S.___,

130 S.Ct. 1135 (2010). In Vazquez we held that the district court had properly

refused to consider its disagreement with the career offender guideline; Bradley

argued that as a result of the Supreme Court’s remand, the district court now had

“authority” to disagree with the career offender guideline, and he asked the court

to do just that.

       The court denied Bradley’s request for a variance and instead sentenced him

to 262 months imprisonment. In doing so it acknowledged that his past had been

“hanging around [his] neck.” But the court also told Bradley that even if it were to

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ignore the mistakes of his youth up to age 20, that in just the past ten years “you

just keep pushing yourself, law enforcement, other people, you’re still doing it

even now.” The court continued:

             Here you are at 30 [years old] with the kind of record you have.
      I am going to give you the 262. You should have more than that for
      your acting up in prison.
             But I’m trying to take a number of factors into consideration.
      262, it’s a lot. You’re 30 years of age, but you’ve got to pay a penalty
      for what you’[ve] done. I can’t give you the minimum 120. I just
      cannot do it. You’re getting the 262. That’s as low as I can go.
             If things change in the law, we’ll see what it is in the future.

Before formally pronouncing the sentence, the court expressly stated that it had

reviewed “the presentence report, and advisory guidelines, pursuant to Title 18

United States Code Section 3551 and 3553, and the Sentencing Reform Act of

1984.” The court reiterated as much after it pronounced the sentence, stating that

it had considered the “advisory sentencing guidelines” and “all of the factors

identified in Title 18, United States Code, Section 3553(a)(1) through (7)” and

found that “the sentence is sufficient but not greater than necessary to comply with

the statutory purposes of sentencing.”

                                         II.

      We review the reasonableness of a district court’s sentence under a

deferential abuse of discretion standard. See Gall v. United States, 552 U.S. 38,



                                          6
41, 128 S.Ct. 586, 591 (2007); United States v. Irey, 612 F.3d 1160, 1188–89

(11th Cir. 2010) (en banc). That review involves two steps. We first ensure that

the sentence was procedurally reasonable, meaning that the district court treated

the guidelines as advisory, properly calculated the guidelines range, considered the

§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597.

After we determine that a sentence was procedurally sound, we must examine

whether the sentence was substantively reasonable in light of the record and the §

3553(a) factors. Id. at 51, 56, 128 S.Ct. at 597, 600. The party challenging the

sentence has the burden of establishing that the sentence was unreasonable. Irey,

612 F.3d at 1191 n.16; see also United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). “[W]hen the district court imposes a sentence within the advisory

Guidelines range, we ordinarily will expect that choice to be a reasonable one.”

Talley, 431 F.3d at 788. But whatever the sentence, in reviewing its

reasonableness we must consider “the totality of the facts and circumstances,” and

we will reverse “if, but only if, we are left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the §

3553(a) factors by arriving at a sentence that lies outside the range of reasonable




                                          7
sentences dictated by the facts of the case.” Irey, 612 F.3d at 1189, 1190

(quotation marks omitted).

      Bradley’s arguments contesting the procedural reasonableness of his

sentence are not persuasive. He asserts that the court’s statements “I can’t give

you the minimum 120” and “[t]hat’s as low as I can go” imply that the court had

erroneously determined it could not vary from the guidelines. But that argument

rips the court’s comments completely out of context. A review of the entire

transcript makes very clear that those comments reflected only the court’s intent to

impose a significant sentence because of Bradley’s criminal history, not an

indication that the court believed it lacked authority to vary from the guidelines.

      Bradley’s argument about the court’s comment “If things change in the law,

we’ll see what it is in the future” is similarly flawed. He suggests that comment

shows that the district court “felt compelled to adhere to [our vacated panel

decision in] Vazquez” and “mistakenly reasoned that it could not sentence Mr.

Bradley outside the career offender guidelines range.” Appellant’s Br. at 16. In

rejecting that argument, we need not address the implications of our vacated

decision in Vazquez because the court’s statement obviously had nothing to do

with that case. Instead, the court’s comment about a “change in the law” referred

to arguments from earlier in the hearing which had focused on the Fair Sentencing

                                          8
Act, whether the act might eliminate the crack/powder cocaine disparity, and

whether the act would be made retroactive. The court explicitly and frequently

referred to the guidelines range as advisory and at no point suggested that it would

have varied from that range were it not constrained by our decision in Vazquez or

its predecessor, United States v. Williams, 456 F.3d 1353 (11th Cir. 2006).1

       The record makes clear that the court properly calculated the guidelines

range, considered the § 3553(a) factors, and treated the guidelines range as

advisory. Its denial of Bradley’s request for a variance at the statutory minimum

of ten years was based on the court’s analysis of the § 3553(a) factors, not on the

belief that it was bound by the career offender guideline range in § 4B1.1. The

court committed no procedural error.

       Bradley’s sentence was also substantively reasonable. The court’s 262-

month sentence was at the lowest end of the guidelines range of 262–327 months,

and we would ordinarily expect such a sentence to be reasonable. See Talley, 431

F.3d at 788. The total sentence was also well below the statutory maximum

sentence of life imprisonment. See United States v. Gonzalez, 550 F.3d 1319,



       1
        In Williams we remanded a defendant’s case for resentencing, holding that the district
court had relied on impermissible factors in its sentencing decision. Among those factors was
the court’s disagreement with the Congressional policy behind the career offender guidelines
enhancement. 456 F.3d at 1369–72.

                                                9
1324 (11th Cir. 2008) (concluding that a sentence was reasonable because, in part,

it was well below the statutory maximum). Especially given Bradley’s long and

extensive criminal history, nothing from the facts and circumstances of this case

leaves us with the “definite and firm conviction” that a sentence of 262 months

was outside the range of reasonable sentences. See Irey, 612 F.3d at 1190.

                                         III.

      Bradley next argues that the district court erred in denying his motion to

continue the sentence hearing in light of the pending legislation that ultimately

became the Fair Sentencing Act of 2010. See Pub. L. No. 111-220, 124 Stat. 2372

(Aug. 3, 2010). He asserts that granting his motion would not have impeded the

administration of justice since he was already serving a sentence in state prison

until 2012.

      Federal Rule of Criminal Procedure 32(b)(1) provides that district courts

“must impose sentence without unnecessary delay.” We review a district court’s

denial of a motion to continue sentencing only for abuse of discretion. United

States v. Edouard, 485 F.3d 1324, 1350 (11th Cir. 2007). The appellant bears the

burden of showing that the denial “produced specific substantial prejudice.” Id.

      In our recent decision United States v. Gomes, 621 F.3d 1343 (11th Cir.

2010) (per curiam), we made clear that the amendments in the Fair Sentencing Act

                                         10
do not apply to crimes committed before the FSA was enacted in August 2010. Id.

at 1346. We based our reasoning on the “Savings Statute” at 1 U.S.C. § 109,

which states,

      The repeal of any statute shall not have the effect to release or
      extinguish any penalty, forfeiture, or liability incurred under such
      statute, unless the repealing Act shall so expressly provide, and such
      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, forfeiture, or liability.

Because Bradley’s crime was committed before the FSA became law, the

amendments in that act do not apply to him. Bradley has therefore not suffered

“substantial prejudice” as a result of the denial of his motion to continue

sentencing, and we will not disturb the district court’s ruling.

                                         IV.

      Bradley finally argues for purposes of preservation that the sentencing

scheme for crack cocaine offenses in effect at the time of his hearing violated the

Due Process and Equal Protection Clauses of the Fifth Amendment, as well as the

Eighth Amendment’s prohibition against cruel and unusual punishment.

      We review de novo a defendant’s preserved constitutional challenge to a

statute. United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). We are

bound by prior panel decisions unless or until we overrule them en banc or they



                                          11
are overruled by the Supreme Court. See United States v. Vega-Castillo, 540 F.3d

1235, 1236 (11th Cir. 2008).

      We have repeatedly held that the sentencing disparity between crack

cocaine and powder cocaine offenses that was created by the enactment of the now

superceded version of § 841(b) did not violate the Equal Protection Clause, even

though the sentencing scheme had a disparate impact. See, e.g., United States v.

Butler, 102 F.3d 1191, 1194–95 (11th Cir. 1997). Similarly, we have rejected the

claim that the resulting sentencing disparity was “arbitrary and capricious” in

violation of due process. United States v. Lawrence, 972 F.2d 1580, 1583 (11th

Cir. 1992).

      We have also rejected the argument that the disproportionality of sentences

for crack and powder cocaine violates the Eighth Amendment. See United States

v. Brazel, 102 F.3d 1120, 1158 (11th Cir. 1997) (rejecting without discussion an

Eighth Amendment argument about disparity as meritless). And we have held that

the former statutory minimum sentences for possession of crack cocaine did not

violate the Eighth Amendment. See United States v. Solomon, 848 F.2d 156, 157

(11th Cir. 1988).




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      In light of our precedent, and as Bradley himself concedes, his

constitutional arguments regarding the superceded version of 21 U.S.C. § 841 are

foreclosed.

      AFFIRMED.




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