United States v. Dwight W. Alexander , 301 F. App'x 580 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2672
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Dwight William Alexander, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 3, 2008
Filed: December 8, 2008
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Dwight Alexander appeals the 120-month sentence the district court1 imposed
after he pleaded guilty to possessing with intent to distribute 50 grams or more of a
mixture containing cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A). Alexander argues that his criminal history is overstated; that the court
should have imposed a lesser sentence; and that the 120-month statutory minimum
sentence is unconstitutional because it does not take into consideration the disparity
in sentencing for offenses involving powder cocaine and those involving crack.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
We reject these arguments. First, the district court’s discretionary refusal to
depart downward for overstated criminal history is unreviewable. See United States
v. Betts, 509 F.3d 441, 446 (8th Cir. 2007). Second, even after Kimbrough v. United
States, 128 S. Ct. 558, 564 (2007) (district court may reasonably vary under18 U.S.C.
§ 3553(a) to account for 100-to-1 crack to powder cocaine disparity), the district court
could not sentence Alexander below the 120-month statutory minimum, see id. at 573-
74 (sentencing courts remain bound by statutory minimum sentences); United States
v. Jenkins, 537 F.3d 894, 896 (8th Cir. 2008) (even after Kimbrough, district courts
are not authorized to sentence below Congressionally mandated statutory minimums).
Third, the mandatory minimum sentence under section 841(b)(1)(A) is constitutional.
See United States v. Buckley, 525 F.3d 629, 635 (8th Cir.), cert. denied, 77 U.S.L.W.
3242 (U.S. Oct. 20, 2008) (No. 08-6427); United States v. Williams, 474 F.3d 1130,
1132 (8th Cir. 2007).
Accordingly, we affirm the sentence.
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