                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-11020                ELEVENTH CIRCUIT
                                                           FEBRUARY 11, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________                 CLERK

                  D. C. Docket No. 04-00104-CR-ORL-28KRS

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                    versus

BENNIE C. RIVERA,
a.k.a. Mario Quinones,
a.k.a. Carlos Alberto Quinones,

                                                          Defendant-Appellant.

                         ________________________

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

                              (February 11, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Bennie Rivera appeals his 240-month sentence for conspiracy to possess

with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), (b)(1)(B), and 846, and possession with intent to distribute heroin, in

violation of 21 U.S.C. § 841(a), (b)(1)(A). On appeal, Rivera argues that his

sentence is unreasonable because he was a “middle man in a run-of-the-mill drug

conspiracy.” He argues that the mandatory minimum sentence, as applied to this

case, violated the Eighth Amendment prohibition against cruel and unusual

punishment, due process, and the Sixth Amendment. In short, he argues that the

mandatory minimum is unconstitutional in this case because it forced the district

court to impose a sentence greater than necessary to achieve the purposes of 18

U.S.C. § 3553(a). Thus, he contends that the district court should have discretion

to sentence below the mandatory minimum. Rivera acknowledges that our binding

precedent prohibits the district court from imposing a sentence below the

mandatory minimum in this case, but requests that we revisit the issue en banc and

acknowledges that he is attempting to preserve the issue for review by the

Supreme Court.

      Subsequent to the Supreme Court’s decision in Booker, we review a

sentence for procedural and substantive reasonableness. Gall v. United States, 552

                                          2
U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed.2d 445 (2007). “After Booker, a

district court must consider the correctly calculated sentencing range under the

Guidelines and the factors set forth in 18 U.S.C. § 3553(a) in determining a

reasonable sentence.” United States v. Garey, 546 F.3d 1359, 1363 (11th Cir.

2008), cert. denied, 129 S. Ct. 2432 (2009). Nonetheless, “Booker’s instruction to

district courts to consider the factors in § 3553(a) in fashioning a reasonable

sentence cannot be read to authorize using the § 3553(a) factors to impose a

sentence below an applicable statutory mandatory minimum.” United States v.

Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008). Section 841(b)(1)(A) states

that an individual convicted under the statute, who has also been convicted of a

prior felony drug offense, “shall be sentenced to a term of imprisonment which

may not be less than 20 years.” 21 U.S.C. § 841(b)(1)(A).

      Upon review of the record and consideration of the briefs of the parties, we

discern no error. At the outset, we note that at the sentencing hearing, Rivera

conceded that the district court lacked the discretion to sentence below the

mandatory minimum. Because Rivera raises the instant arguments for the first

time on appeal, we will review for plain error. United States v. Aguillard, 217

F.3d 1319, 1320 (11th Cir. 2000). Rivera cannot point to any authority supporting

his arguments. In fact, our prior cases reject Rivera’s arguments; therefore, he

                                          3
cannot demonstrate plain error. See Castaing-Sosa, 530 F.3d at 1362 (holding that

district courts remain bound to statutory mandatory minimum after Booker);

United States v. Holmes, 838 F.2d 1175, 1178-79 (11th Cir. 1988) (rejecting

Eighth Amendment challenge to § 841(b)).

      Because Rivera was properly sentenced to the statutory mandatory

minimum pursuant to 21 U.S.C. § 841(b)(1)(A) and the district court correctly

determined that it lacked the discretion to impose a sentence below the statutory

mandatory minimum, Rivera has failed to demonstrate that his sentence

constituted plain error. Accordingly, we affirm.

      AFFIRMED.




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