                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-13351         ELEVENTH CIRCUIT
                         Non-Argument Calendar        MAY 23, 2011
                       ________________________        JOHN LEY
                                                        CLERK
               D.C. Docket No. 8:09-cr-00448-VMC-TGW-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


versus



VINCENT EDWARD UNDERWOOD,

                                                     Defendant-Appellant.

                      ________________________

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

                              (May 23, 2011)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Vincent Edward Underwood appeals his sentence of 180 months of

imprisonment for possessing with intent to distribute controlled substances, 21

U.S.C. § 841(a), being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),

and possessing a firearm in furtherance of a drug trafficking offense, id.

§ 924(c)(1). We affirm.

      Underwood pleaded guilty to drug and firearms offenses without the benefit

of a plea agreement. His presentence investigation report provided a combined

base offense level of 24. United States Sentencing Guidelines Manual § 2D1.1

(2009). The report stated that the Supreme Court had held in United States v.

Spears, 129 S. Ct. 840 (2009), that a district court may vary from the crack cocaine

guidelines, but the report stated that a variance would not affect Underwood’s

sentence because he faced mandatory minimum sentences of 10 years for his drug

crime, 21 U.S.C. § 841(b)(1)(B), and of 5 years for possessing a firearm, 18 U.S.C.

§ 924(c)(1)(A)(i). The report also detailed Underwood’s three prior convictions

for selling and possessing illegal drugs and other criminal conduct.

      At his sentencing hearing, Underwood asked the district court to vary from

the crack cocaine guidelines, but the district court rejected the request “for the

reasons . . . set[] forth” in the presentence report. After the district court sentenced

Underwood, he objected and argued that his sentence was unreasonable. The

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district court responded “that the minimum mandatory sentences [were]

appropriate and fair” based on Underwood’s criminal history.

      Underwood argues that he is “entitled” to be sentenced according the Fair

Sentencing Act, which was enacted while his appeal was pending, but this

argument is foreclosed by our decision in United States v. Gomes, 621 F.3d 1343

(11th Cir. 2010), cert. denied, 131 S. Ct. 1833 (2011). In Gomes, we held that the

savings statute, “1 U.S.C. § 109[,] bars the Act from affecting . . . punishment” for

crimes committed before its enactment. Id. at 1346. Underwood also argues that

his sentence to the mandatory minimum term of imprisonment based on the 100 to

1 crack cocaine ratio violates his right to equal protection under the Fifth

Amendment of the U.S. Constitution, but we have held that this disparity is not

unconstitutional, United States v. King, 972 F.2d 1259, 1259–60 (11th Cir. 1992).

      Underwood’s sentence is AFFIRMED.




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