                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                  Fed. R. App. P. 32.1




              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                   Argued May 14, 2009
                                   Decided July 7, 2009



                                             Before

                           KENNETH F. RIPPLE, Circuit Judge

                           DANIEL A. MANION, Circuit Judge

                           JOHN DANIEL TINDER, Circuit Judge



No. 08-1771

UNITED STATES OF AMERICA,                             Appeal from the United States District
                                                      Court for the Eastern District of
                       Plaintiff-Appellee,            Wisconsin

      v.                                              No. 02 CR 144

DEXTER E. FOWLER, also known as D,                    Charles N. Clevert, Jr., Judge.

                    Defendant-Appellant.



                                         ORDER

       Dexter Fowler (also known as “D”) pleaded guilty to conspiring to distribute five
kilograms or more of cocaine and 50 grams or more of crack cocaine in violation of
21 U.S.C. §§ 841(b)(1)(A) and 846. Although the plea agreement acknowledged the ten-year
mandatory minimum contained in § 841(b)(1)(A), Fowler nevertheless moved for a
“downward departure,” arguing that the ten-year mandatory minimum did not bind the
No. 08-1771                                                                                  Page 2



district court in light of Booker v. United States, 543 U.S. 220 (2005); Kimbrough v. United
States, 128 S. Ct. 558 (2007); and Gall v. United States, 128 S. Ct. 586 (2007). The district court
denied that motion, stating that it did “not have the power to deviate from the mandatory
minimum sentences.” It then calculated an advisory guidelines range of 188–235 months’
imprisonment and imposed a 160-month sentence.

        Despite that below-guidelines sentence, Fowler appealed. He takes issue with the
district court’s conclusion that it cannot deviate from the mandatory minimum sentence
prescribed in § 841(b)(1)(A) and presses on appeal the same Booker-Kimbrough-Gall
argument he asserted in the district court, which we reject. Nothing in those decisions
suggests that a district court may overlook a statutory mandatory minimum. Indeed, the
Supreme Court in Kimbrough recognized that district courts are still bound by the
mandatory minimums. See Kimbrough, 128 S. Ct. at 573–74 (acknowledging that, because
sentencing courts still remain bound by mandatory minimum sentences, deviations from
the 100-to-1 crack-powder cocaine ratio could result in sentencing “cliffs” around quantities
that trigger the mandatory minimums).

        Fowler offers one other argument, a variant of the first. He claims there is tension
between the “shall” in 21 U.S.C. § 841(b)(1)(A), which states that a person “shall be
sentenced to a term of imprisonment which may not be less than 10 years,” and the “shall”
in 18 U.S.C. § 3553(a), which states that a “court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set forth in paragraph (2) of this
subsection.”1 (emphases added). According to Fowler, that tension was resolved prior to
Booker by U.S.S.G. § 5G1.1(b), which automatically converted any statutorily designated
minimum sentence into the “guideline sentence” unless the regularly-computed guidelines
range was higher. However, because Booker renders the Guidelines advisory, § 5G1.1(b) is
no longer mandatory. Faced with what he asserts are now “conflicting shalls,” Fowler
resorts to the principle of lenity and interprets § 3553(a)’s “no greater than necessary”
language as trumping the “shall” in § 841(b)(1)(A), thereby allowing a district court to
sentence below the statutory minimum.




       1
        Paragraph (2) of section 3553(a) sets forth such factors as the need for the sentence
imposed to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, afford adequate deterrence to criminal conduct, protect the public
from further crimes of the defendant, and to provide the defendant with needed educational or
vocational training.
No. 08-1771                                                                               Page 3



        Fowler’s reading of § 3553(a) conflicts with our past precedent, see United States v.
Roberson, 474 F.3d 432, 436–37 (7th Cir. 2007) (“We acknowledge the tension with section
3553(a), but that very general statute cannot be understood to authorize courts to sentence
below minimums specifically prescribed by Congress.”), and the holdings of all other
circuits to address this question. See, e.g., United States v. Samas, 561 F.3d 108, 110–11 (2d
Cir. 2004); United States v. Huskey, 502 F.3d 1196, 1200 (10th Cir. 2007); United States v.
Franklin, 499 F.3d 578, 584–86 (6th Cir. 2007). It also is not mandated by the statutory
language. See, e.g., Samas, 561 F.3d at 111 (“The wording of § 3553(a) is not inconsistent
with a sentencing floor. The introductory language of the federal sentencing scheme is
qualified: ‘[e]xcept as otherwise specifically provided, a defendant who has been found guilty of
an offense described in any Federal statute . . . shall be sentenced in accordance with the
provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A)
through (D) of section 3553(a)(2) . . . .’ 18 U.S.C. § 3551(a) (emphasis added). In this case, §
841(b)(1)(A) specifically provides for a mandatory minimum sentence of twenty years.”).
Moreover, it would render sections 3553(e) and (f) superfluous. See id. Thus, following
Roberson, we reject Fowler’s contention that § 3553(a) allowed the district court to sentence
him below the ten-year mandatory minimum set forth in § 841(b)(1)(A). The decision of the
district court sentencing Fowler to 160 months’ imprisonment is therefore AFFIRMED.
