United States v. Steven Davis

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 23, 2010
No. 09-13708 JOHN LEY
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 08-00166-CR-1-MHS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVEN DAVIS,
a.k.a. Steve Davis,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(April 23, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
 Steven Davis appeals the 180-month prison sentence imposed by the district

court following his conviction for possession of a firearm by a convicted felon.

Because Davis had numerous felony convictions prior to the firearm conviction, he

was sentenced to a mandatory minimum sentence pursuant to the Armed Career

Criminal Act (“Act”), 18 U.S.C. § 924(e).

On appeal, Davis argues that sentences imposed under the Act constitute

cruel and unusual punishment in violation of the Eighth Amendment. Davis also

argues that, in establishing mandatory sentences, the Act conflicts with the

sentencing factors set forth in 18 U.S.C. § 3553(a), and is inconsistent with the

Supreme Court’s decision in Booker v. United States, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005).

We review constitutional challenges to a sentence de novo. United States v.

Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). Questions of statutory interpretation

are likewise reviewed de novo. United States v. Searcy, 418 F.3d 1193, 1195 (11th

Cir. 2005).

In United States v. Johnson, 528 F.3d 1318, 1322 (11th Cir. 2008), cert.

granted on other grounds, 129 S.Ct. 1315 (2009), we reiterated that minimum

mandatory sentences for armed career criminals do not violate the Eighth

Amendment. Accord United States v. Lyons, 403 F.3d 1248, 1256-57 (11th Cir.

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2005) (stating that because the minimum mandatory sentences are based on

recidivism, there is no necessary constitutional violation, even where the count of

conviction itself may be relatively minor); United States v. Reynolds, 215 F.3d

1210, 1214 (11th Cir. 2000).

We have also previously held that district courts are not empowered to

impose a sentence below an applicable statutory mandatory minimum sentence

using the § 3553(a) factors. United States v. Castaing-Sosa, 530 F.3d 1358, 1361-

62 (11th Cir. 2008). Moreover, “the district court remains bound by statutes

designating mandatory minimum sentences even after the holding of [Booker]”:

To avoid infringing a defendant’s Sixth Amendment right
to a jury trial, Booker made advisory the Sentencing
Guidelines, not statutory mandatory minimums enacted
by Congress. Thus, 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.

Id. at 1362 (citations omitted).

Davis concedes that our precedent forecloses his constitutional argument, as

he must. See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t

is the firmly established rule of this Circuit that each succeeding panel is bound by

the holding of the first panel to address an issue of law, unless and until that

holding is overruled en banc, or by the Supreme Court.”). Similarly, Davis’s

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arguments regarding the possible effect of Booker and the § 3553(a) factors on

mandatory minimum sentences are foreclosed by binding precedent, and must be

rejected. Hogan, 986 F.2d at 1369.

Upon review of the record and consideration of the parties’ briefs, we affirm

the sentence.

AFFIRMED.1

1
Davis’s request for oral argument is denied.

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