                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4625


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAKEEM ABDUK JOHNSON,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00876-RBH-1)

Submitted:   July 12, 2010                 Decided:   July 22, 2010


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, Carrie A. Fisher, Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Hakeem       Abduk    Johnson         pled     guilty    to    conspiracy     to

distribute and possess with intent to distribute cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), (b)(1)(C), 846 (2006).                           He now appeals,

arguing    that    the     application        of     the      crack-to-powder       cocaine

sentencing    disparity          violated      his       equal    protection      and     due

process    rights    and     that      his    168-month        sentence     violates      the

Eighth     Amendment’s       prohibition           against        cruel     and     unusual

punishment.       Finding no reversible error, we affirm.

            The     constitutionality             of     a     federal    statute    is     a

question of law that is reviewed de novo.                             United States v.

Buculei, 262 F.3d 322, 327 (4th Cir. 2001).                          We repeatedly have

rejected    claims    that       the   sentencing            disparity    between    powder

cocaine and crack offenses violates either equal protection or

due process.       See United States v. Perkins, 108 F.3d 512, 518-19

& n.34 (4th Cir. 1997) (citing cases); United States v. Burgos,

94 F.3d 849, 876-77 (4th Cir. 1996) (en banc).                             To the extent

that     Johnson     seeks       to    have       this       court   reconsider      these

decisions, a panel of this court cannot overrule the decision of

a prior panel.        United States v. Simms, 441 F.3d 313, 318 (4th

Cir. 2006).



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              Furthermore,         the    2007     amendments        to   the   sentencing

guidelines      have      no       effect        on     the    constitutionality          or

applicability of the statutory mandatory minimum sentences for

crack offenses.        Although Johnson refers to the Supreme Court’s

decisions in Spears v. United States, 129 S. Ct. 840 (2009), and

Kimbrough v. United States, 552 U.S. 85 (2007), to bolster his

equal   protection     argument,          this        reference      is   misplaced.      In

Spears, the Supreme Court held that the district court may apply

a different crack-to-powder-cocaine ratio when considering the

§ 3553(a)      factors,     and      in       Kimbrough,       the    Court     held    that

district      courts      may       consider           the    crack-to-powder-cocaine

sentencing     ratio   as      a    possible          basis   for    variance    from    the

guidelines.            These         holdings           are       unrelated      to      the

constitutionality of the sentencing disparity in the statute.

In fact, the Supreme Court explicitly stated in Kimbrough that,

even after the 2007 amendments, “district courts are constrained

by      the       mandatory              minimum[]            [sentences]         Congress

prescribed . . . .”            Id.       at   108;      see   also    United    States    v.

McClellon, 578 F.3d 846, 861 (8th Cir. 2009) (rejecting equal

protection and due process challenge to § 841 and stating that

“while there is proposed legislation in Congress that may remedy

the problems in question, these actions remain mere proposals,



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and it is not the province of this court to anticipate and

implement what may or may not occur in Congress”).

               Johnson also seeks to challenge his sentence on Eighth

Amendment grounds, arguing that the penalties for crack offenses

are   “cruel     and    unusual”          because       they     are    disproportionately

harsh    in    comparison          to    the    penalties        for    offenses       involving

cocaine powder.               The       Eighth    Amendment           “contains    a     ‘narrow

proportionality          principle’              that      ‘applies          to     noncapital

sentences.’”           Ewing       v.    California,           538    U.S.   11,    20    (2003)

(quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)).

However, “[t]his [C]ourt has held that proportionality review is

not   available        for    any       sentence        less    than     life     imprisonment

without the possibility of parole.”                       United States v. Ming Hong,

242     F.3d     528,        532        (4th     Cir.     2001).             Therefore,       the

proportionality         of     Johnson’s         sentence        is    not    reviewable      on

appeal.

               Accordingly,         we     affirm        Johnson’s       within-Guidelines

sentence.       See United States v. Allen, 491 F.3d 178, 193 (4th

Cir. 2007) (holding that sentence within a properly calculated

Guidelines range is reasonable).                       We dispense with oral argument

because the       facts       and       legal    are    adequately       presented       in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                              AFFIRMED




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