United States v. Abdullah Woods , 282 F. App'x 483 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2445
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Abdullah Faruq Woods, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 30, 2008
Filed: July 1, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Abdullah Woods challenges the concurrent 124-month prison sentences the
district court1 imposed after he pleaded guilty to two counts of possessing with intent
to distribute more than 5 grams of a mixture or substance containing a detectable
amount of cocaine base (crack), in violation of 21 U.S.C. § 841. On appeal, he asks
this court to remand for resentencing, arguing that the district court should have
considered the sentencing disparity between crack and powder cocaine, as well as the
Sentencing Commission’s then-proposed two-level reduction in offense levels for
1
The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.
crack cocaine offenses, as supported by the subsequent enactment of Amendment 706
and recent Supreme Court cases discussing a district court’s sentencing discretion, see
Kimbrough v. United States, 128 S. Ct. 558 (2007); Gall v. United States, 128 S. Ct.
586 (2007). We affirm.
Woods’s argument that the court should have considered the sentencing
disparity between crack and powder cocaine is unavailing because he did not raise this
issue at sentencing. See United States v. King, 518 F.3d 571, 575-77 (8th Cir. 2008)
(defendant who did not ask court to consider disparity between sentences for crack
and powder cocaine in determining his sentence cannot argue on appeal that court
erred by failing to consider that factor). The court properly sentenced Woods
according to the Guidelines in effect on the date of sentencing, and the later-enacted
Amendment does not require resentencing. See U.S.S.G. § 1B1.11 (court shall use
Guidelines manual in effect on date of sentencing unless use would violate Ex Post
Facto Clause); King, 518 F.3d at 576-77 (rejecting defendant’s argument that, because
he was sentenced for crack cocaine offense prior to November 1, 2007, case should
be remanded for resentencing in light of recent Guidelines amendment).
Accordingly, we affirm the district court’s judgment, but without prejudice to
Woods’s ability to move for modification of his sentence pursuant to 18 U.S.C.
§ 3582(c). See King, 518 F.3d at 577.
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