                                                                  [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                       FILED
                                                               U.S. COURT OF APPEALS
                                No. 10-10894                     ELEVENTH CIRCUIT
                            Non-Argument Calendar                    JUNE 9, 2011
                          ________________________                    JOHN LEY
                                                                       CLERK
                  D.C. Docket No. 5:09-cr-00056-CAR-CWH-1

UNITED STATES OF AMERICA,

                                                   lllllllllllllllllllll Plaintiff-Appellee,

                                      versus

CURTIS JAMES HUDSON,

                                               lllllllllllllllllllll Defendant-Appellant.

                          ________________________

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

                                  (June 9, 2011)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

      Pursuant to a plea agreement, Curtis Hudson pled guilty to two counts of a

three-count indictment: possession with intent to distribute more than five grams
of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(B)(iii) (Count One), and

possession of a firearm after being convicted of a felony, in violation of 18 U.S.C.

§ 922(g) (Count Three). The district court sentenced Hudson to concurrent prison

sentences: 145 months on Count One,1 and 120 months on Count Three. He now

appeals his sentences.2

       First, Hudson argues that the district court infringed his constitutional rights

to due process and equal protection of the laws by applying the Guidelines

sentence range for crack cocaine, which is higher than the sentence range for

powder cocaine, in fashioning his Count One sentence. Second, Hudson argues

that Count One sentence is procedurally and substantively unreasonable because

the district court afforded de facto mandatory treatment to the guideline for crack

cocaine, failed to give due consideration to the 18 U.S.C. § 3553(a) sentencing

factors, failed to explain the sentence pursuant to 18 U.S.C. § 3553(c), and did not

sentence him based on a “1-to-1” crack-to-powder cocaine ratio.

                                              I.



       1
        The sentence range prescribed by the Guidelines for the Count One offense was 130-
162 months’ imprisonment.
       2
         Hudson appeals both sentences. The grounds for reversal, however, apply only to the
Count One sentence. Therefore, in this opinion, our discussion is limited to the Count One
sentence, although our disposition affirms the district court’s entire judgment, i.e., both
sentences.

                                              2
      We review constitutional claims de novo. United States v. Tagg, 572 F.3d

1320, 1325 (11th Cir. 2009). Under the rational basis test, “a law does not violate

equal protection so long as [it is] rationally related to a legitimate government

interest.” United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006)

(quotation omitted).

      We have rejected an equal protection challenge to the “100-to-1”

crack-to-powder cocaine sentencing disparity in the Sentencing Guidelines.

United States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992). After King, the

Sentencing Commission promulgated Amendment 706, which took effect on

November 1, 2007, and amended the Drug Quantity Table in Sentencing

Guidelines § 2D1.1(c). U.S.S.G. App. C, Amend. 706. The effect of Amendment

706 was to provide a two-level reduction in base offense levels for certain crack

cocaine offenses. See id.; United States v. Mills, 613 F.3d 1070, 1075 (11th Cir.

2010). In explaining the reasoning for Amendment 706, the Commission noted

that it had “updated its analysis of key sentencing data about cocaine offenses and

offenders,” based on scientific literature; trends in trafficking patterns, price, and

use; state drug laws; and relevant case law. U.S.S.G. App. C, Amend. 706,

Reason for Amendment. It concluded that there was an “urgent” and “compelling”

need to correct problems associated with the “100-to-1” crack-to-powder cocaine

                                           3
ratio, and that Amendment 706 was “an interim measure” to correct those

problems. Id.

      In Kimbrough, the Supreme Court noted that a number of Congressional

concerns that led to the “100-to-1” disparity rested on discredited assumptions

about crack cocaine. Kimbrough v. United States, 552 U.S. 85, 95-98, 128 S.Ct.

558, 567-68, 169 L.Ed.2d 481 (2007). In holding that district courts may depart

from the crack cocaine guidelines based on their disagreement with the crack-to-

powder cocaine disparity, the Court noted that “the Commission itself has reported

that the crack/powder disparity produces disproportionately harsh sanctions, i.e.,

sentences for crack cocaine offenses ‘greater than necessary’ in light of the

purposes of sentencing set forth in § 3553(a).” Id. at 110, 128 S.Ct. at 575. Even

so, the Court noted that the Commission’s most recent reports acknowledged that

“some differential” in treatment was warranted. Id. at 98, 128 S.Ct. at 568.

      The Fair Sentencing Act (“FSA”), signed into law on August 3, 2010,

changed the crack-to-powder ratio from 100:1 to about 18:1. See Pub.L.No 111-

220, 124 Stat. 2372. The Act amended the sentencing provisions in 21 U.S.C. §

841(b)(1) by raising from 50 grams to 280 grams the amount of crack cocaine

necessary to trigger a 10-year mandatory minimum sentence, and raising the

amount from 5 to 28 grams necessary to trigger a 5-year mandatory minimum. Id.

                                          4
§ 2(a)(1)-(2). However, because the FSA took effect in August 2010, the

punishment of crimes committed before August 2010 is not affected by the Act

pursuant to 1 U.S.C. § 109. See United States v. Gomes, 621 F.3d 1343, 1346

(11th Cir. 2010) (holding that § 109 bars the FSA from affecting the punishment

of a defendant who had committed the crime before the FSA took effect).

      The district court’s consideration of the crack cocaine guidelines did not

deny Hudson equal protection of the law, even after the developments set forth

above. While the Supreme Court noted in Kimbrough that the Sentencing

Commission viewed Amendment 706 as “‘only . . . a partial remedy,’” it also

noted that the Commission supported a ratio in excess of “1-to-1.” Furthermore,

Hudson was not sentenced based on a 100:1 ratio; rather, he was sentenced based

on guidelines that had a crack/powder ratio of between 25:1 and 80:1. Finally, in

King, we rejected the argument that the crack/powder disparity denied equal

protection of the law, and under the prior precedent rule, we are “bound to follow

a prior binding precedent unless and until it is overruled by this [C]ourt en banc or

by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236

(11th Cir. 2008) (quotation omitted). In sum, the district court did not err in

applying the crack cocaine guidelines to Hudson.

                                         II.

                                          5
      We review a sentence for reasonableness. United States v. Winingear, 422

F.3d 1241, 1245 (11th Cir. 2005). The reasonableness standard means review for

abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). We review de novo whether a sentence is procedurally

reasonable based on the sufficiency of the district court’s explanation under

§ 3553(c)(1). United States v. Ghertler, 605 F.3d 1256, 1261-62 (11th Cir. 2010).

      A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the Guidelines, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, selected a sentence based on

clearly erroneous facts, or failed to adequately explain the chosen sentence. Gall,

552 U.S. at 51, 128 S.Ct. at 597.

      The § 3553(a) factors include (1) the applicable guideline sentence range;

(2) the nature and circumstances of the offense; (3) the history and characteristics

of the defendant; (4) the need for the sentence imposed to reflect the seriousness

of the offense, promote respect for the law, and provide just punishment for the

offense; (5) the need for adequate deterrence to criminal conduct; (6) protection of

the public from further crimes of the defendant; and (7) the need to avoid

unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

      In imposing a sentence, the court must state its reasons for the sentence. 18

                                          6
U.S.C. § 3553(c). There is no requirement under § 3553(c) that the court

explicitly reveal its consideration of each of the § 3553(a) factors on the record, as

long as the court “set[s] forth enough to satisfy the appellate court that [it] has

considered the parties’ arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356,

127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). In a “typical” case involving a

sentence within the advisory guideline sentence range, “the district court is not

required to give a lengthy explanation for its sentence.” United States v. Livesay,

525 F.3d 1081, 1090 (11th Cir. 2008); see also United States v. Ellisor, 522 F.3d

1255, 1278 (11th Cir. 2008) (stating that we have “held that a court’s explicit

acknowledgment that it has considered a defendant’s arguments and the § 3553(a)

factors is sufficient to demonstrate that it has adequately and properly considered

these factors”).

      Once we conclude that the district court made no procedural errors, we then

consider “the substantive reasonableness of the sentence,” under the totality of the

circumstances. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The weighing of § 3553(a)

factors is within the court’s discretion, so long as the court has made no clear error

of judgment. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc) (reviewing government appeal of downward variance).

                                           7
      The Supreme Court previously considered the sentence of a defendant who

had been sentenced under the November 1, 2004, version of the Guidelines and

was affected by the “100-to-1” ratio then in effect. Kimbrough, 552 at 91, 92 n.2,

128 S.Ct. at 564, 565 n.2 (2007). In Kimbrough, the Court held that “it would not

be an abuse of discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a sentence ‘greater than

necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” such that

district courts possess the authority to deviate from the “100-to-1” ratio. Id. at

110, 128 S.Ct. at 575. However, the “ultimate question” still is whether the

sentence is reasonable. Id. at 111, 128 S.Ct. at 576.

      Hudson’s Count One sentence is procedurally reasonable. The district court

did not treat the Guidelines as de facto mandatory, because (a) it explicitly

acknowledged that the Guidelines were advisory, (b) it stated that it was not bound

to apply the Guidelines, and (b) it stated that it was deciding not to vary downward

based on its unanswered questions about why the Sentencing Commission has still

not definitively decided how to resolve the crack/powder disparity. Additionally,

the court expressly stated that it had considered the § 3553(a) factors and

demonstrated that consideration by discussing the nature of the underlying offense

and the sentencing disparity between crack and powder cocaine. By finding that

                                          8
the § 3553(a) factors and the totality of the circumstances justified Hudson’s

sentence, the court provided an explanation sufficient to allow for meaningful

appellate review. Accordingly, the court committed no procedural error.

      Hudson’s 145-month sentence was substantively reasonable because it was

supported by the § 3553(a) factors. The court balanced Hudson’s arguments for

mitigation based on the disparity between crack cocaine and powder cocaine

sentences against the Government’s argument that a departure was not warranted

because of Hudson’s significant criminal history. Moreover, the record reflects

that the court gave due consideration to mitigating factors because Hudson’s

sentence fell in the middle of the crack-cocaine guideline sentence range—which

already addressed the sentencing disparity to some degree in light of Amendment

706—and was substantially below the statutory maximum term of 40 years’

imprisonment.

      AFFIRMED.




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