           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 16, 2009
                                     No. 08-51272
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

WENDALL KEITH ROBINSON,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 7:08-CR-156-ALL


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Wendall Keith Robinson pleaded guilty to possession with intent to
distribute five grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B).      The district court imposed a statutory mandatory
minimum prison sentence of 120 months and an eight-year term of supervised
release.
       Robinson argues that the ten-year mandatory minimum sentence imposed
for possession with intent to distribute under § 841(b)(1)(B) violates the Due

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-51272

Process Clause. He relies on a May 2007 Sentencing Commission report that
concluded that the 100 to one ratio between crack cocaine and powder cocaine
was unwarranted, and Kimbrough v. United States, 552 U.S. 85 (2007), to
support his argument.
      The district court did not plainly err in sentencing Robinson to the
mandatory minimum penalty because this court has rejected claims that the
sentencing disparity between powder cocaine and crack cocaine violates the Due
Process Clause. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(holding that unpreserved errors are reviewed for plain error); Burge v. Parish
of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (holding that a panel of this
court may not overrule a prior panel’s decision in the absence of intervening
contrary or superseding authority); United States v. Wilson, 77 F.3d 105, 112
(5th Cir. 1996) (holding that the argument that the disparity between powder
cocaine and crack cocaine is unconstitutional is foreclosed by Fifth Circuit
precedent); see also United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.
2008) (Kimbrough, 552 U.S. at 108) (quoting Kimbrough, “‘possible variations
among district courts are constrained by the mandatory minimums Congress
prescribed in the 1986 Act’ which district courts may not ignore”).
      Robinson also argues that the factual basis was insufficient because it did
not establish the amount of crack cocaine he intended to personally use versus
the amount of crack cocaine he intended to distribute. Robinson, however, has
failed to show that, but for the district court’s alleged error, he would not have
pleaded guilty. See United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir.
2006). Accordingly, the district court’s judgment is AFFIRMED.




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