           Case: 14-13670   Date Filed: 07/09/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13670
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:13-cr-00126-MSS-MAP-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

GREGG GERMAIN WILLIAMS,

                                                         Defendant-Appellant.

                       ________________________

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

                               (July 9, 2015)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Gregg Germain Williams appeals his total 120-month sentence, the statutory

mandatory minimum, after he was convicted of 1 count of conspiracy to possess

with intent to distribute 50 grams or more of methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, 1 count of possession with intent to

distribute 50 grams or more of methamphetamine, in violation of § 841(a)(1),

(b)(1)(A)(viii), and 2 counts of use of a communication device during the

commission of a drug-related offense, in violation of 21 U.S.C. § 843(b). First,

Williams argues that the district court abused its discretion in denying his motions

to continue sentencing until November 2014, pending the passage of legislation

that would have affected the penalties for his drug-related offenses. Next,

Williams argues that his total 120-month mandatory minimum sentence violates

the Due Process Clause of the Fifth Amendment. Finally, Williams argues that his

total 120-month mandatory minimum sentence constitutes cruel and unusual

punishment in violation of the Eighth Amendment.

                                         I.

      We review a district court’s denial of a motion to continue sentencing for

abuse of discretion. United States v. Lee, 427 F.3d 881, 896 (11th Cir. 2005). In

light of the circumstances presented, we must focus upon the reasons for the

continuance offered to the trial court when the request was denied to determine

whether the denial was proper. United States v. Edouard, 485 F.3d 1324, 1350


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(11th Cir. 2007). Fed.R.Crim.P. 32(b)(1) provides that “[t]he court must impose

sentence without unnecessary delay.” Fed.R.Crim.P. 32(b)(1). The defendant has

the burden to demonstrate that “the denial was an abuse of discretion and that it

produced specific substantial prejudice.” United States v. Smith, 757 F.2d 1161,

1166 (11th Cir. 1985).

      The district court did not abuse its discretion by failing to delay Williams’s

sentencing hearing until November 2014. Williams failed to show that he suffered

specific substantial prejudice from the court’s denials of his motions to continue

sentencing because the evidence suggests that both pieces of legislation, which he

stated would have affected his sentence, remain pending. In addition, he remained

subject to the mandatory minimum sentence of ten years, regardless of whether he

was sentenced under the November 1, 2013, Sentencing Guidelines or the

November 1, 2014, Sentencing Guidelines.

                                         II.

      Next, Williams argues that his total 120-month mandatory minimum

sentence violates the Due Process Clause of the Fifth Amendment. We review

constitutional sentencing arguments de novo. United States v. Flores, 572 F.3d

1254, 1268 (11th Cir. 2009). The Supreme Court has found that a sentencing court

may impose whatever penalty is authorized by statute so long as the penalty is not

based on an arbitrary distinction that would violate the Due Process Clause of the


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Fifth Amendment. Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919,

1927, 114 L.Ed.2d 524, 538 (1991). A sentence imposed by statute is not arbitrary

when the statute has a rational basis. See United States v. Solomon, 848 F.2d 156,

157 (11th Cir. 1988) (analyzing the mandatory minimum for possession of cocaine

with the intent to distribute, pursuant to § 841(b)(1)(B)(ii), under a rational basis

standard because no suspect classification or fundamental right was at issue). In

non-capital cases, “Congress has the power to define criminal punishments without

giving the courts any sentencing discretion.” Chapman, 500 U.S. at 467, 111 S.Ct.

at 1928. Thus, the district court is bound by statutory mandatory minimum

sentences. United States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008).

In addition, the general rule is that a defendant should be sentenced pursuant to the

law in effect at the time of his sentencing. United States v. Grimes, 142 F.3d 1342,

1351 (11th Cir. 1998).

      Williams’s due process argument fails because there is no evidence that his

120-month mandatory minimum sentence was based on an arbitrary distinction. In

particular, he acknowledged at the time of his sentencing that the statutory

mandatory minimum sentence was 10 years and that he qualified for this sentence,

and all district courts were bound to apply the statutory mandatory minimum

sentence, pursuant to § 841(a)(1), (b)(1)(A)(viii), in effect at the time of his

sentencing.


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      Finally, Williams argues that his total 120-month mandatory minimum

sentence constitutes cruel and unusual punishment in violation of the Eighth

Amendment. In evaluating an Eighth Amendment challenge in a non-capital case,

we first make the threshold determination that the sentence imposed is grossly

disproportionate to the offense committed. United States v. Johnson, 451 F.3d

1239, 1243 (11th Cir. 2006). The defendant bears the burden of making this

threshold showing. Id. In Solem v. Helm, 463 U.S. 277, 279-303, 103 S. Ct. 3001,

3004-17, 77 L.Ed.2d 637 (1983), the Supreme Court held that “a criminal sentence

must be proportionate to the crime for which the defendant has been convicted”

and in determining whether a sentence is in violation of the Eighth Amendment,

courts “should be guided by objective criteria, including (i) the gravity of the

offense and the harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences imposed for commission

of the same crime in other jurisdictions.” The Supreme Court has recognized that,

although the application of new sentencing minimums to offenders sentenced after

new Sentencing Guidelines take effect will create sentencing disparities, “those

disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a

new law changing sentences” and such a disparity “cannot make a critical

difference.” Dorsey v. United States, 567 U.S. __, __, 132 S.Ct. 2321, 2335, 183

L.Ed.2d 250 (2012).


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      Williams has failed to establish that the Eighth Amendment applies because

he did not show that his sentence was grossly disproportionate to his

methamphetamine offenses. In addition, it did not make a critical difference that

he could have been sentenced under different standards than a defendant in the

same jurisdiction convicted of the same offense, who was sentenced at a later date,

especially given that no legislation has passed that has changed the mandatory

minimum sentence for methamphetamine offenses. Accordingly, upon review of

the record and the parties’ briefs, we affirm.

      AFFIRMED.




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