                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-13516                ELEVENTH CIRCUIT
                                                              MARCH 17, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                D. C. Docket No. 04-00003-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

HARVEY EVANS, JR.,

                                                           Defendant-Appellant.


                         ________________________

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

                               (March 17, 2009)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Harvey Evans, Jr., appeals his 200-month sentence for possession with intent
to distribute 50 grams or more of cocaine base (“crack cocaine”) on the ground that

both 21 U.S.C. § 841(b)(1) and the Sentencing Guidelines violate the Eighth

Amendment’s prohibition against cruel and unusual punishment because of their

disparate treatment of crack and powder cocaine offenses. After review, we affirm.

                                I. BACKGROUND

      Evans pled guilty to conspiracy to possess with the intent to distribute 50

grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(iii),

and 846. The Presentence Investigation Report (“PSI”) calculated a base offense

level of 32, pursuant to U.S.S.G. § 2D1.1, based on the drug quantity. However,

an offense level of 37 applied, pursuant to U.S.S.G. § 4B1.1, because Evans

qualified as a career offender and his underlying offense carried a statutory

maximum penalty of life imprisonment. After applying a three-level reduction for

acceptance of responsibility, the PSI calculated an adjusted offense level of 34.

Evans’s criminal history category was VI, which yielded an advisory guidelines

range of 262 to 327 months’ imprisonment. The PSI also noted that a mandatory

minimum term of 10 years’ imprisonment applied.

      At the sentencing hearing, the district court adopted the PSI’s factual

statements and guidelines calculations. The district court acknowledged that it was

permitted to consider the crack/powder disparity after Kimbrough v. United States,



                                          2
552 U.S. __, 128 S. Ct. 558 (2007), and stated that it had considered that disparity.

The district court also stated that it had considered the 18 U.S.C. § 3553(a) factors,

Evans’s criminal history, his co-defendant’s sentence, and the other factors

discussed. The district court sentenced Evans to 200 months’ imprisonment and 5

years’ supervised release. This was below the advisory guidelines range of 262 to

327 months’ imprisonment. Evans raised no objections after sentencing.

                                            II. DISCUSSION

       Evans argues that the disparity between crack and powder cocaine offenses

in the Sentencing Guidelines and in the mandatory minimum sentences in 21

U.S.C. § 841(b)(1) violates the Eighth Amendment’s prohibition against cruel and

unusual punishment. Because Evans raises this constitutional argument on appeal

for the first time, we review only for plain error.1 United States v. Moriarty, 429

F.3d 1012, 1018 (11th Cir. 2005). For several reasons, Evans has not shown plain

error in either regard.

       First, this Court already has rejected the argument that the disproportionality

of sentences for crack and powder cocaine violates the Eighth Amendment. United



       1
         To prove plain error, an appellant must show “(1) error, (2) that is plain, and (3) that
affects substantial rights.” Moriarty, 429 F.3d at 1019. If all three conditions are met, we may
exercise our discretion to recognize the error, “but only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotation marks and brackets
omitted).

                                                   3
States v. Brazel, 102 F.3d 1120, 1158 (11th Cir. 1997); see also United States v.

Garcia-Carrasquillo, 483 F.3d 124, 134 (1st Cir.) (stating that “every other circuit

has rejected the argument that the sentencing disparity between crack and powder

cocaine constitutes cruel and unusual punishment”), cert. denied, 128 S. Ct. 338

(2007).

       Second, Evans’s Eighth Amendment argument is based on the Supreme

Court’s Kimbrough decision. Kimbrough addressed only whether a district court

was allowed to consider the Sentencing Guidelines’ crack/powder cocaine

disparity when determining an appropriate sentence in light of the § 3553(a)

factors. See Kimbrough, 128 S. Ct. at 564. Kimbrough did not address the

constitutionality of the Sentencing Guidelines’ offense levels or the statutory

minimum sentences in 21 U.S.C. § 841(b)(1) for crack cocaine offenses.2 Nor did

it address an Eighth Amendment challenge to the Sentencing Guidelines or 21

U.S.C. § 841(b)(1). And Evans has not pointed to any other case from the

Supreme Court or this Court in support of his Eighth Amendment argument.



       2
         To the contrary, it recognized that district court remain bound by the statutory minimum
sentences in § 841(b)(1). See Kimbrough, 128 S. Ct. at 574 (“[A]s to crack cocaine sentences in
particular, we note a congressional control on disparities: possible variations among district
courts are constrained by the mandatory minimums Congress prescribed in the [Anti-Drug
Abuse Act of 1986]”); id. at 572 (stating that the Anti-Drug Abuse Act of 1986 “does not require
the [Sentencing] Commission—or, after Booker, sentencing courts—to adhere to the 100-to-1
ratio for crack cocaine quantities other than those that trigger the statutory mandatory minimum
sentences” (emphasis added)).

                                                4
United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (stating an alleged

error cannot be plain “‘where there is no precedent from the Supreme Court or this

Court directly resolving it’” (quoting United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003))).

      Third, any crack/powder cocaine disparity in the Sentencing Guidelines is

irrelevant here because Evans’s base offense level was determined by the career

offender provision under U.S.S.G. § 4B1.1, not the drug guidelines provision for

his offense conduct. See United States v. Vazquez, __ F.3d __, 2009 WL 331014,

at **2–4 (rejecting argument that Kimbrough overruled this Court’s precedent that

a district court may not consider its disagreement with the career offender

provision in the Sentencing Guidelines at sentencing).

      Finally, we note that, in considering the § 3553(a) factors, the district court

acknowledged that it could consider the crack/powder cocaine disparity after

Kimbrough, stated that it had considered that disparity at sentencing, and sentenced

Evans below the advisory guidelines range of 262 to 327 months’ imprisonment.

      For all these reasons, we affirm Evans’s 200-month sentence.

      AFFIRMED.




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