                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-3217
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Tyrone L. Ford,                           *
                                          *     [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                               Submitted: March 8, 2010
                                  Filed: August 6, 2010
                                   ___________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       Tyrone Ford pleaded guilty to one count of conspiracy to distribute more than
five grams of crack cocaine, in violation of 21 U.S.C. § 846. At sentencing, Ford
objected to the imposition of § 841(b)(1)'s mandatory five-year minimum sentence on
the ground that it would violate his right to equal protection under the law. The district
court1 disagreed and sentenced Ford to five years' imprisonment. On appeal, Ford
renews his constitutional challenge to § 841(b)(1). We affirm the district court.



      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
                                    I. Background
       On December 17, 2008, law enforcement officers executed a search warrant for
crack cocaine at an apartment in Omaha, Nebraska. The officers found six grams of
crack cocaine in a single package in the bedroom of the residence. In the hallway
adjacent to the bedroom, the officers discovered Ford and arrested him. Ford was later
indicted for conspiracy to distribute more than five grams of crack cocaine, in
violation of § 846 ("Count 1")2, and for possession with intent to distribute more than
five grams of crack cocaine, in violation of §§ 841(a)(1) and(b)(1) ("Count 2")3.




      2
       Count 1 of the indictment reads:

      From an unknown date but at least as early as October 1, 2008, and
      continuing through December 17, 2008, in the District of Nebraska,
      TYRONE L. FORD, Defendant herein, did knowingly and intentionally
      combine, conspire, confederate and agree with other persons both known
      and unknown to the Grand Jury, to distribute and possess with intent to
      distribute 5 grams or more of a mixture or substance containing a
      detectable amount of cocaine base (i.e. "crack cocaine"), a Schedule II
      controlled substance, in violation of Title 21, United States Code,
      Section 841(a)(1) and Title 21, United States Code, Section 841(b)(1).

      In violation of Title 21, United States Code, Section 846.
      3
       Count 2 of the indictment reads:

      On or about December 17, 2008, in the District of Nebraska, TYRONE
      L. FORD, Defendant herein, did knowingly and intentionally possess
      with intent to distribute 5 grams or more of a mixture or substance
      containing a detectable amount of cocaine base (i.e. "crack cocaine"), a
      Schedule II controlled substance.

      In violation of Title 21, United States Code, Section 841(a)(1) and Title
      21, United States Code, Section 841(b)(1).

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       Ford initially pleaded not guilty to the full indictment but later pleaded guilty
to Count 1. In exchange for Ford's guilty plea, the government agreed to dismiss
Count 2. Following Ford's guilty plea, a presentence investigation report (PSR) was
prepared. The PSR noted that Ford's drug offense involved at least five grams but less
than 20 grams of crack cocaine, and therefore carried a base offense level of 24 under
U.S.S.G. § 2D1.1. A three-level adjustment for acceptance of responsibility reduced
Ford's total offense level to 21. Ford had six criminal history points, which placed him
in criminal history category III. These calculations resulted in a Guidelines range of
46 to 57 months' imprisonment. However, pursuant to § 841(b)(1), Ford's offense
carried a statutory mandatory minimum penalty of five years' imprisonment. Ford
objected to the imposition of the mandatory minimum sentence on the ground that it
would violate his constitutional right to equal protection of the laws under the Fifth
Amendment. Ford asserted that Congress's decision to punish crack cocaine offenders
100 times more severely than powder cocaine dealers had a discriminatory impact on
African-American offenders like himself.

       At the sentencing hearing, the district court overruled Ford's objection. The
court then imposed the mandatory minimum five-year sentence.

                               II. Discussion
      On appeal, Ford argues that the 100-to-1 crack/powder cocaine ratio
incorporated into § 841(b) disproportionately impacts African-Americans and
therefore is unconstitutional.

       We review the question of whether a statute is constitutional de novo. United
States v. Prior, 107 F.3d 654, 658 (8th Cir. 1997).

      Ford's arguments have been addressed and resolved in our prior cases. We have
held that "[d]istrict courts lack the authority to reduce sentences below
congressionally-mandated statutory minimums." United States v. Watts, 553 F.3d 603,

                                          -3-
604 (8th Cir. 2009). Additionally, we have also held that § 841(b) does not violate the
Equal Protection Clause. United States v. McClellon, 578 F.3d 846, 861 (8th Cir.
2009); United States v. Mendoza, 876 F.2d 639, 641 (8th Cir. 1989) (finding that
§ 841(b)(1)'s mandatory minimum does not violate due process or equal protection
rights). Accordingly, Ford's challenge to the constitutionality of § 841(b) fails.

                                  III. Conclusion
      The judgment of the district court is affirmed.
                     ______________________________




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