United States v. Bennie C. Rivera ( 2010 )

[DO NOT PUBLISH]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
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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
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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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