           Case: 14-14313   Date Filed: 06/12/2015   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14313
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20232-RNS-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

SAMUEL EXIL,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 12, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
               Case: 14-14313     Date Filed: 06/12/2015    Page: 2 of 3


      Samuel Exil appeals his 120-month sentence, imposed within the advisory

guideline range and in compliance with the statutory minimum, after pleading

guilty to one count of conspiring to possess with intent to distribute five or more

kilograms of cocaine, in violation of 21 U.S.C. § 846. On appeal, Exil argues for

the first time that his prison sentence of 120 months is unconstitutional because the

statute setting forth the minimum sentence, 21 U.S.C. § 841(b)(1)(A), violates his

rights under the Due Process Clause and the Equal Protection Clause of the Fifth

and Fourteenth Amendments. Exil also avers that his sentence constitutes cruel

and unusual punishment under the Eighth Amendment because the district court

did not engage in a proportionality analysis using the factors outlined in Harmelin

v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991). Upon review of the record on

appeal and after consideration of the parties’ briefs, we find that Exil’s 120-month

sentence is constitutional, and we affirm the district court.

      We have squarely held that the statutory minimum sentences under 21

U.S.C. § 841(b) are not unconstitutional. United States v. Osburn, 955 F.2d 1500,

1505 (11th Cir. 1992). We have also held that minimum sentences under § 841(b)

do not constitute cruel and unusual punishment. See United States v. Holmes, 838

F.2d 1175, 1178–79 (11th Cir. 1988); see also United States v. McGarity, 669 F.3d

1218, 1256 & n.57 (11th Cir. 2012). Exil’s conclusory argument that the district

court “must” employ an individualized test for his case does not explain what


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makes his sentence unique among the myriad other sentences imposed in this

Circuit under statutory minima, such that a proportionality analysis would have

resulted in a finding of unconstitutionality for him and him alone. Without making

such a showing, and without showing thereby that his rights were substantially

affected, Exil cannot show that the district court committed plain error. See United

States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (finding that a constitutional

challenge to a statute raised for the first time on appeal is subject to plain error

review and setting forth the requirements thereof).

      AFFIRMED.




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