                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 10-13769                   APR 22, 2011
                                                                JOHN LEY
                            Non-Argument Calendar                 CLERK
                          ________________________

                   D.C. Docket No. 2:09-cr-00271-LSC-HGD-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                      versus

MICHAEL DONNELL SUMERLIN,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (April 22, 2011)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-appellant Michael Donnell Sumerlin was indicted in 2009 with

distributing 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)
and (b)(1)(A). The government filed its notice of intent to seek enhanced

penalties based on Sumerlin’s prior felony drug convictions. Following a jury

trial, Sumerlin was convicted of the offense; the proof at trial established the

amount of drugs to be 126 grams.

      The probation officer determined Sumerlin’s guideline range to be 360

months to life imprisonment due to the quantity of drugs involved and Sumerlin’s

status as a career offender. Because Sumerlin had two prior felony drug

convictions, however, the mandatory minimum sentence was life imprisonment

under § 841(b)(1)(A). Although Sumerlin raised the question whether the Fair

Sentencing Act of 2010 (FSA) would apply to his crack cocaine offenses, he

conceded that the Act did not appear to be retroactive. The court sentenced

Sumerlin to the mandatory minimum of life imprisonment. This is Sumerlin’s

appeal.

      Sumerlin argues that the FSA should apply retroactively to his sentence

because, even though the Act does not contain any express language indicating its

application to pending cases, the mandatory minimum sentence he is serving no

longer furthers a valid legislative purpose. He further alleges that the pre-FSA

version of 21 U.S.C. § 841(b)(1)(A), under which he was sentenced, was

unconstitutional on its face and in violation of the Equal Protection Clause.

                                          2
       When a defendant fails to object to a district court’s action below, we will

review his arguments on appeal for plain error. See United States v. Olano, 507

U.S. 725, 733-34 (1993). On August 3, 2010, Congress enacted the FSA to

“restore fairness to Federal cocaine sentencing.” Pub. L. No. 111-120, 124 Stat.

2372, 2372 (2010). The FSA increased the amounts of crack cocaine required to

trigger the mandatory minimum sentences under 21 U.S.C. § 841(b) from 50 to

280 grams. Id. § 2(a)(1). Prior to enactment of the FSA, defendants who had two

prior felony drug convictions when they committed an offense involving 50 grams

or more of crack cocaine faced a mandatory term of life imprisonment. 21 U.S.C.

§ 841(b)(1)(A) (2009). The FSA did not amend the requirement that, once

triggered, statutory mandatory-minimum sentences apply.1 See United States v.

Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010). The FSA contains no language

indicating its application to offenses committed before its enactment. See

generally 124 Stat. 2372.

       The general savings statute provides in relevant part that “[t]he repeal of any

statute shall not have the effect to release or extinguish any penalty . . . incurred

under such statute, unless the repealing Act shall so expressly provide.” 1 U.S.C.


       1
          The mandatory minimums would not apply only if the government filed a motion for
substantial assistance under 18 U.S.C. § 3553(e) or the defendant qualified for safety-valve relief
under 18 U.S.C. § 3553(f). Neither exception is applicable here.

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§ 109. In Gomes, we held that § 109 barred the FSA from applying retroactively

to the defendant’s punishment because he committed his crimes before the FSA

took effect. Gomes, 621 F.3d at 1346.

      Moreover, we have upheld the constitutionality of the pre-FSA sentencing

statute on numerous occasions. See, e.g., United States v. Hanna, 153 F.3d 1286,

1288-89 (11th Cir. 1998) (rejecting Due Process or Equal Protection Clause

arguments); United States v. Byse, 28 F.3d 1165, 1170-71 (11th Cir. 1994)

(holding that discriminatory impact of the crack-to-powder ratio does not violate

the Equal Protection Clause absent a showing of discriminatory purpose).

      Under the prior precedent rule, we are bound to follow prior precedent

“unless and until it is overruled by this court en banc or by the Supreme Court.”

United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting

United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)). Therefore, the

district court did not plainly err in sentencing Sumerlin under the pre-FSA version

of 21 U.S.C. § 841(b)(1)(A). Accordingly, we affirm Sumerlin’s sentence.

      AFFIRMED.




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