The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11541 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 8, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cr-60303-UU-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
HAYWARD COLEMAN,
lllllllllllllllllllll Defendant-Appellant.
________________________
No. 10-11658
Non-Argument Calendar
________________________
D.C. Docket No. 0:09-cr-60303-UU-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
PIERRE COLEMAN,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 8, 2011)
Before DUBINA, Chief Judge, HULL, and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Hayward Coleman (“Hayward”) appeals his 120-month sentence
for conspiracy to possess with intent to distribute 50 grams or more of crack
cocaine, in violation of 21 U.S.C. § 846. Appellant Pierre Coleman (“Pierre”) also
appeals his 120-month sentence for conspiracy to possess with intent to distribute
50 grams or more of crack cocaine, in violation of § 846. On appeal, both
Hayward and Pierre argue that 21 U.S.C. § 841(b) is unconstitutional under the
Equal Protection Clause because it makes arbitrary classifications, punishes
defendants at a level disproportionate to the seriousness of their offenses, is
irrational, and causes unjust punishment. Hayward and Pierre further contend that
the sentence required by § 841(b) is a cruel and unusual punishment, in violation
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of the Eighth Amendment. In addition, Pierre argues that the enactment of the
Fair Sentencing Act (“FSA”) on August 3, 2010, requires the district court to
resentence him under the amended penalty provisions of § 841(b). Finally, Pierre
contends that the Equal Protection Clause requires the district court to resentence
him under the less severe provisions of the FSA.
I.
Pierre and Hayward argue that § 841(b) violates the Equal Protection Clause
because it makes arbitrary classifications and punishes defendants at a level
disproportionate to the seriousness of their offenses. Hayward and Pierre further
contend that the sentence required by § 841 is irrational and is a cruel and unusual
punishment, in violation of the Eighth Amendment. Finally, they argue that
because the Sentencing Commission’s views are entitled to “great weight,” we
must reconcile the 120-month sentence required by § 841(b) with the range
recommended by the Guidelines.
We review de novo constitutional issues related to sentencing. United
States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008).
We have upheld the constitutionality of the former crack-to-powder ratio for
sentencing purposes on numerous occasions. See, e.g., United States v. Hanna,
153 F.3d 1286, 1288-89 (11th Cir. 1998) (the sentencing disparity between crack
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and powder cocaine does not violate a defendant’s substantive due process or
equal protection rights); United States v. Byse, 28 F.3d 1165, 1168-70 (11th Cir.
1994) (sentencing disparity does not violate the Equal Protection Clause); United
States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988) (mandatory minimum
provisions for crack cocaine do not violate the Eighth Amendment).
Although the FSA amended the statute under which Hayward and Pierre
were sentenced, binding precedent holds that the previous version of § 841(b)
does not violate the Constitution.
II.
Pierre argues that the district court should resentence him under the
amended penalty provisions of § 841(b). According to Pierre, the pre-FSA version
of § 841(b) lost any justification on the day that the new statute took effect. Pierre
contends that Congress passed the FSA to address constitutional infirmities in the
now-repealed crack cocaine sentencing laws. In addition, Pierre argues that
1 U.S.C. § 109 does not preserve his harsher sentence under the repealed version
of § 841(b) because preservation would serve no legislative purpose.
As noted above, we review de novo constitutional issues related to
sentencing. Steed, 548 F.3d at 978. De novo review also applies to the application
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of law to sentencing issues. United States v. Alexander, 609 F.3d 1250, 1253
(11th Cir. 2010), petition for cert. filed (U.S. Nov. 22, 2010) (No. 10-7680).
On August 3, 2010, Congress enacted the FSA to “restore fairness to
Federal cocaine sentencing.” Pub. L. No. 111-120, 124 Stat. 2372, 2372 (2010).
The FSA increased the amounts of crack cocaine required to trigger both the
10-year and 5-year mandatory minimum sentences in 21 U.S.C. § 841(b). Id. §
2(a)(1). Under the FSA, the 10-year minimum sentence only applies to offenses
involving 280 grams or more of crack cocaine, and the 5-year minimum only
applies to offenses involving 28 grams or more of crack cocaine. Id. § 2(a)(2).
Prior to enactment of the FSA, offenses involving 50 grams or more of crack
cocaine triggered the 10-year minimum. 21 U.S.C. § 841(b)(1)(A) (2009). The
FSA did not amend the requirement that, once triggered, statutory
mandatory-minimum sentences apply unless the government files a motion for
substantial assistance under 18 U.S.C. § 3553(e) or the defendant qualifies for
safety-valve relief under 18 U.S.C. § 3553(f). See United States v. Gomes, 621
F.3d 1343, 1346 (11th Cir. 2010).
The general savings statute provides, in relevant part, that “[t]he repeal of
any statute shall not have the effect to release or extinguish any penalty . . .
incurred under such statute, unless the repealing Act shall so expressly provide . .
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. .” 1 U.S.C. § 109. Moreover, the savings statute dictates that the repealed statute
“shall be treated as still remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement of such penalty . . . .” Id. In Gomes, we
noted that § 109 barred the FSA from applying retroactively because the defendant
in that case committed his crimes before the FSA took effect. 621 F.3d at 1346.
Under the prior precedent rule, we are bound to follow prior precedent “unless and
until it is overruled by this court en banc or by the Supreme Court.” United States
v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v.
Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)).
Because the FSA is silent on the issue of retroactivity, § 109 dictates that
Pierre is not entitled to be resentenced under the FSA’s less severe penalty
provisions. The district court was correct in imposing a sentence of 120 months.
III.
Finally, Pierre contends that the Equal Protection Clause requires changes in
the criminal law to be applied to cases on appeal at the time of the change.
According to Pierre, we must also interpret § 109 consistently with the directives
of the Equal Protection Clause. Pierre contends that, in spite of § 109, the FSA
should apply to him even though he committed his offense when the prior version
of § 841(b) was in effect.
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When interpreting a statute, the “starting point . . . is the language of the
statute itself.” United States v. Rush, 874 F.2d 1513, 1514 (1989). When the
statutory language is clear, it is unnecessary to consider legislative history. Id.
We have also held that “the plain language of the statute [is] conclusive as clearly
expressing legislative intent, unless the resulting application would be ‘absurd’ or
‘internal inconsistencies’ must be resolved.” United States v. Veal, 153 F.3d 1233,
1245 (11th Cir. 1998).
Pierre’s citations of legislative history fail to establish either that the former
crack-to-powder ratio violates the Equal Protection Clause or that Congress
intended for the FSA to apply retroactively to defendants who committed their
offenses under the repealed penalty scheme.
For the aforementioned reasons, we affirm Hayward and Pierre’s sentences.
AFFIRMED.
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